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HomeMy WebLinkAbout99-03487`. y s, JOHN KISNER, SR., and PATSY IN THE COURT OF COMMON PLEAS OF KISNER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. 99-3487 CIVIL CIVIL ACTION - LAW RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, JURY TRIAL DEMANDED Defendants IN RE: DEFENDANT'S MOTION TO COMPEL ORDER AND NOW, this /6-' day of October, 2001, a brief argument on the within motion to compel is set for Friday, October 26, 2001, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Larry L. Miller, Esquire For the Plaintiffs Jefferson Shipman, Esquire L4 .fie(, iJ-lt-•Ot Douglas Marcello, Esquire n For the Defendants Am -? • ?I Kevi .Hess, J. U! or.T 1 PN r; n7 CU BAFt'- '%,L) COUi , Ervnrsv«avw ?'ry PT 1 2 2001 JA, JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDcD ORDER AND NOW, this day of 2001, IT IS HEREBY ORDERED that Plaintiffs attend the depositions in the office of Defendant Metzger's counsel on , 2001 at o'clock, .M. Plaintiffs are further ordered to pay Defendant Metzger's cost in the amount of $ For the preparation of said Motion. BY THE COURT: J. 145554.1 JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION TO COMPEL ATTENDANCE AT DEPOSITIONS AND FOR SANCTIONS 1. Plaintiffs, by their counsel, refuse to attend properly noticed depositions. 2. Defendant, Carrie M. Metzger, requests this Court to Order Plaintiffs to attend a deposition and pay attorney's fees and costs with regard to the preparation of this Motion. 3. Plaintiffs' claim arises from an accident that allegedly occurred on November 28, 1998. 4. Plaintiff allegedly came upon the premises of his aunt, walked in through the door on the back porch and fell through an open cellar-way door. 5. Defendant Metzger has attempted, unsuccessfully, to schedule Plaintiffs depositions with regard to any basis for their claim as well as any alleged damages they allegedly suffered. 6. By correspondence of July 23, 2001, Defendant Metzger attempted to schedule the deposition of Plaintiffs and provided potential dates for said deposition. (A copy of said correspondence is attached as Exhibit "A"). 7. Defendant Metzger further corresponded to Plaintiffs' counsel on July 26, 2001, again indicating the available dates for said depositions and requesting a response. (A copy of said correspondence is attached as Exhibit `B"). 8. On August 23, 2001, not having received a response from Plaintiffs, Defendant forwarded Notices of Depositions to Plaintiffs' counsel, scheduling said depositions for October 4. 2001. (A copy of said correspondence is attached as Exhibit "C"). 9. Plaintiffs' counsel did not respond, object, or contact counsel for Defendant about said deposition dates until September 28, 2001, less than a week before the scheduled. to. Plaintiffs' counsel forwarded a fax on that date indicating that he was unavailable and requesting dates that he would run by his client. (A copy of said correspondence is attached as Exhibit "D"). 11. On October 2, 2001, Defendant's counsel responded, reviewing the history of the futile attempts to schedule the depositions and indicating that the Defendants intend to proceed with the depositions as properly noticed. (A copy of said correspondence is attached as Exhibit "E"). 12. On the day before the depositions were scheduled, Plaintiffs' counsel by fax refused to attend the deposition. (A copy of said correspondence is attached as Exhibit "F). 13. Plaintiffs failed to appear at the October 4, 2001 depositions which were properly noticed. 14. Plaintiffs failed to provide alternate dates or to attempt to resolve this issue at any time between the date that the depositions were noticed by correspondence of August 23, 2001 and Plaintiff's first fax to Defendant's counsel of September 28, 2001, indicating that they would not be attending. 15. Defendants have never received a response from Plaintiffs to any proposed dates for these depositions. 16. Defendant has no expectation of receiving cooperation based upon this course of conduct. 17. Plaintiffs never filed for a Protective Order. 18. Pa.R.C.P. Rule 4019(a)(1)(v) provides that the Court may enter the appropriate Order if a parry fails to appear at a deposition. 19. Pa.R.C.P. Rule 4019(c) provides the potential Orders that may be entered by the Court, including "such Order with regard to failure to make discovery as is just." Pa.R.C.P. Rule 4019(c)(5). 20. Plaintiffs have failed to cooperate in the scheduling of depositions, then refused to I appear at the noticed depositions. 2 WHEREFORE, Defendant, Carrie M. Metzger, requests this Honorable Court to Order Plaintiffs to attend the depositions on a date set by Defendant, in conjunction with the Court, and pay the cost of Defendant Metzger's counsel in preparing this Motion. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Dou+ & M ello, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 Date: October 10, 2001 :134077.1 3 Exhibit A THOMAS, THOMAS & HAFER, LLP ATTORNEYS AT LAW JOSEPH P. HAFER JAMES K. THOMAS, 11 ROBERTSON B. TAYLOR 305 NORTH FRONT STREET JEFFREY B. RETTIG SIXTH FLOOR PETER J. CURRY P.O. BOX 999 R. DURKE McLEMORE, IR. HARRISBURG, PA 17108 EDWARD H. JORDAN, IR. C. KENT PRICE (717) 237.7100 RANDALL G. GALE DAVID L. SCHWALM FAX (717) 231.7105 PETER J. SPEAKER DOUGLAS B. MARCELLO PAUL J, DELLASEGA LEHIGH VALLEY OFFICE: 3400 BATH PIKE OF COUNSEL SUITE: 201 JAMES K. THOMAS BETHLEHEM, PA 18017 (610) 868-1675 FAX (610) 868-1702 WRIT'ER'S DIRECT DIAL: (717) 255-7238 E-mail: DBM@tthlaw.com July 23, 2001 VIA FACSIMILE Q, (717) 954-4843 Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Re: Kisner v. RE/MAX Realty Associates, Inc. No. 99-3487 Civil Term Dear Larry: SARAH W. AROSELL EUGENE N. MCHUGH STEPHEN E. GEDULDIG KAREN S. COATES TODD B. NARVOL JAMES J. DODD-0 DANIEL L. GRILL JOHN J. MCNALLY, III KEVIN C. McNAMARA BROOKS R. FOLAND JOHN FLOUNLACKER JOHN M. POPILOCK JOHN T. HUSKIN MICHELE 1. THORP G. CHRISTOPHER PARRISH CLAUDIO 1. DIPAOLO STEPHANIE L. HERSPERGER DRUMMOND B. TAYLOR I would like to schedule the depositions of your clients, John and Patsy Kisner, in the above matter. The dates that Attorney Shipman and I have available are as follows: August 15, 16, September 19 and 20. Please contact my office upon receipt of this letter and advise if any of those dates are suitable for your clients' depositions. I would like to have the depositions here in my office and I will arrange for the Court Reporter. I look forward to hearing from you. B. Marcello LS, THOMAS & HAFER, LLP DBM:Sml:115152.2 cc: Jefferson J. Shipman, Esquire Exhibit B THOMAS, THOMAS & HAFER, LLP ATTORNEYS AT LAW SARAH W. AROSELL JOSEPH P. HAFER EUGENE; N. McHUGH JAMES K. THOMAS, II 305 NORTH FRONT STREET STEPHEN E. GEDULDIG B. TAYLOR ROBERTSON A B. SIXTH FLOOR KAREN S. COATES T JEFFREY EL REG BOX 999 P O N n TODD PETER J. CURRY . . DD-0 . LAME- 5 J. DODDA R. BURKE McLEMORE, JR. HARRISBURG, PA 17108 DANIEL L. GRILL EDWARD H. JORDAN, JR. J. Y, III IO C. KENT PRICE (717) 231.7100 M KEVIN C. . McNA MINAMARA RANDALL G. GALE BROOKS R. FOLAND DAVID L. SCHWALM FAX (717) 237-7 105 JOHN FLOUNLACKER PETER J. SPEAKER JOHN M. POPILOCK DOUGLAS B. MARCELLO LEHIGH VALLEY OFFICE: JOHNT.HUSKIN PAULJ.DELLASEGA 3400 BATH PIKE MICHELE J. THORP SUITE 201 G. CHRISTOPHER PARRISH OF COUNSEL PA 18017 BETHLEHEM CLAUDIO J. DIPAOLO JAMES K. THOMAS , (610) 868.1675 STEPHANIE L. HERSPERGER FAX (610) 868-1702 DRUMMOND B. TAYLOR WRITER'S DIRECT DIAL: (717) 255.7238 E-mail: DBM@tthlaw.com July 26, 2001 VIA FACSIMILE (' (717) 954-4843 and MAIL Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Re: Kisner v. REIMAX Realty Associates, Inc. No. 99-3487 Civil Term Dear Larry: I am attempting to schedule the depositions of the parties in the above matter. In my letter to you of July 23, 2001, I listed proposed dates. As of this date, the only dates available from that list are September 19 and 20. Please contact my office upon receipt of this letter and advise if any of those dates are suitable for your clients' depositions. I would like to have the depositions here in my office and I will arrange for the Court Reporter. I look forward to hearing from you. Marcello THOMAS & HAFER, LLP DBM:Sml:115152.3 cc: Jefferson J. Shipman, Esquire Exhibit C THOMAS, THOMAS & HAFER, LLP ATTORNEYS AT LAW JOSEPH P. HAFER JAMES K. THOMAS, II ROBERTSON B. TAYLOR JEFFREY B. RETfIG PETER I. CURRY R. BURKE McLEMORE, JR. EDWARD H. JORDAN, JR. C. KENT PRICE RANDALL G. GALE DAVID L. SCHWALM PETER J. SPEAKER DOUGLAS B. MARCELLO PAULI. DELLASEGA SARAH W. AROSELL EUGENE N. McHUGH OFCOUNSEL JAMES K. THOMAS Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 STEPHEN E. GEDULDIG KAREN S. COATES 305 NORTH FRONT STREET TODD B. NARVOL JAMES J. DODD-0 SIXTH FLOOR DANIEL L. GRILL JOHN J. McNALLY. III P.O. BOX 999 KEVIN C. McNAMARA HARRISBURG, PA 17108 BROOKS R. POLAND JONATHAN C. DEISHER JOHN FLOUNLACKER (717)2317100 JOHN T. HUSKIN. JR. _ FAX (717) 237-7105 MICHELE J. THORP CLAUDIO ). DiPAOLO _ WRITER'S DIRECT DIAL NUMBER STEPHANIE L. HERSPERGER HUGH P. O'NEILL. III DRUMMOND S. TAYLOR (717)255.7238 E-mail: DBM@tthlaw.com August 23, 2001 Re: Kisner v. RE/MAX Realty Associates, Inc. No. 99-3487 Civil Term Dear Larry: By letters dated July 23, 2001 and July 26, 2001, I have attempted to contact you to obtain dates in order to schedule the depositions of the parties in the above matter. To date, I have not received a response from you. Therefore, I have scheduled the depositions of the parties for October 4, 2001 in the above matter as follows: David Smolizer: 9:00 a.m. John Kisner: 10:00 a.m. Patsy Kisner: 11:00 a.m. Carrie Metzger: 12:00 p.m. The depositions will take place here in our offices and I have scheduled the Court Reporter. Enclosed please find Notices of Deposition for your clients. If you have any questions, please do not esitate to contact me. est egards, ouglas B. Marcello i1OMAS, THOMAS & HAFER, LLP DBM:sml:115152.4 Enclosure cc: Jefferson J. Shipman, Esquire (w/ encl.) LEHIGH VALLEY OFFICE: 3400 BATH PIKE. SUITE 201. BETHLEHEM. PA 18017 (610)868-1675 FAX (610) 868.1702 JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE :OYDEPOS1T1C1N To: Patsy Kisner, Plainitff c/o Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. 0. Box 1268 Harrisburg, PA 17108 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, the undersigned will take the deposition of Patsy Kisner, upon oral examination, for the purpose of discovery and for use as evidence at trial in the above-captioned action, at 305 North Front Street. 6th Floor. Harrisbure, PA 1701$ on Thursday, October 4, 2001 at 11:00 a.m., before a Notary Public or some other person authorized or commissioned to administer oaths on all matters not privileged which are relevant and material to the issues and subject matter involved in the pending action, including, but not limited to, the facts of the alleged incident, and the events leading up thereto. Parties and attorneys are directed to bring with them any and all materials or documents which in any way relate to the subject lawsuit,. 1 By: glas B. Marcello, I North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 Attorney for Defendant Metzger Date: August 23, 2001 :141355.3 ?.d?.l*Ss4a!? Vr"gqitTl-FL?.a1.L?'; t? C°r AND NOW, this 23rd day of August, 2001, I hereby certify that I sent a true and correct copy of the foregoing document to the following counsel of record, by placing a copy of same in the United States, first class mail, postage prepaid, addressed as follows: Larry L. Miller, Esquire Post Office Box 40 Duncannon,PA 17020 Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. 0. Box 1268 Harrisburg, PA 17108 TH?MAS, THOMAS & IrtFL. LLP By: Douglas B. Marcello, Esquire :85664.1 JOHN KJSNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL. ACTION - LAW JURY TRIAL DEMANDED NOTICE OFDEPOSITION To: John Kisner, Sr., Plainitff c/o Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. O. Box 1268 Harrisburg, PA 17108 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, the undersigned will take the deposition of John Kisner, Sr. upon oral examination, for the purpose of discovery and for use as evidence at trial in the above-captioned action, at 305 North Front Street 6« Floor Harrisbure, PA 17018 on Thursday October 4, 2001 at 10:00 a.m., before a Notary Public or some other person authorized or commissioned to administer oaths on all matters not privileged which are relevant and material to the issues and subject matter involved in the pending action, including, but not limited to, the facts of the alleged incident, and the events leading up thereto. Parties and attorneys are directed to bring with them any and all materials or documents which in any way relate to the subject lawsuit,. THQ? S,' HOMAS & GLP By: f Douglas B. Marcello, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 Attomey for Defendant Metzger Date: August 23, 2001 :141355.2 i' " x£'+=1 s r, " CEIt'ltIFICATE OF SERVICE &xas4, Y>r j?p?atu'??Y.'f ra+riY??•.iC?Vq?'4d '1,.?5., !,.. ?.s. C.r ??h+.altt,?fMk.1'.i$?' AND NOW, this 23rd day of August, 2001, I hereby certify that I sent a true and correct copy of the foregoing document to the following counsel of record, by placing a copy of same in the United States, first class mail, postage prepaid, addressed as follows: Larry L. Miller, Esquire Post Office Box 40 Duncannon, PA 17020 Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. O. Box 1268 Harrisburg, PA 17108 A THO S, T t7& HAFER j,)(' __ By: Douglas B. Marcello, Esquire :85684.1 JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE&IAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, the undersigned will take the deposition of David Smolizer upon oral examination, for the purpose of discovery and for use as evidence at trial in the above-captioned action, at 305 North Front Street 6th Floor. Harrisburg, pp 17018 on Thursday. October 4, 2001 at 9:nn a,m,, before a Notary Public or some other person authorized or commissioned to administer oaths on all matters not privileged which are relevant and material to the issues and subject matter involved in the pending action, including, but not limited to, the facts of the alleged incident, and the events leading up thereto. Parties and attorneys are directed to bring with them any and all materials or documents which in any way relate to the subject lawsuit,. _ By: & HAFER, LLP 1pouglas B. Marcello, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 Attorney for Defendant Metzger Date: August 23, 2001 :141355.1 1 0: uavro Smolizer, Defendant c/o Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. O. Box 1268 Harrisburg, PA 17108 r" ?S 'x r a ;CERTIFICATE'.OF SERVICE " r.tsH °`," r* r%t AND NOW, this 23`d day of August, 2001, I hereby certify that I sent a true and correct copy of the foregoing document to the fol'.owing counsel of record, by placing a copy of same in the United States, first class mail, postage prepaid, addressed as follows: Larry L. Miller, Esquire Post Office Box 40 Duncannon,PA 17020 Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. 0. Box 1268 Harrisburg, PA 17108 THO , THOMAS & HAFER, LLP By: Douglas B. Marcello, Esquire :85684.1 Exhibit D (19. 2A: :(101 FRI 15:07 FAX 1101 fd002 MILLER LAW OFFICES, P.C. Durmi v , PA 17070 717 087 2= Fa 717 957 4843 EMAIL Ilm@opbc.net VIA FAX Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 September 28, 2001 Re: Kisner v RJMax Realty Associates. Inc. No. 99-3487 Our File: #2877 Dear Doug: 50 ChdmA Rune Road COW" surety Company Mw"e, W 07615 201 476 9089 Fa 201 5731087 The October 4, 2001 date is not good for me. If you give me some dates later in the month, I will try to promptly clear them with Mr. and Mrs. Kisner. Also, the Kisners are interested in trying to settle this matter. Please advise if there is a reasonable way to dispose of this litigation at this time. Thank you. S' relY, Larry L. er cco_7o_7,an? 4c•10 M, P A,;, Exhibit E THOMAS, THOMAS & HAFER, LLP ATTORNEYS AT LAW JOSEPH P. HAFER JAMES K. THOMAS. 11 ROBERTSON B. TAYLOR JEFFREY B. RETTIG PETER J. CURRY R. BURKE MCLEMORE. JR. EDWARD H. JORDAN. JR. C. KENT PRICE RANDALL G. GALE DAVID L. SCHWALM PETER I. SPEAKER DOUGLAS B. MARCELLO PAULJ.DELLASEGA SARAH W. AROSELL EUGENEN.McHUGH OFCOUNSEL' JAMES K. THOMAS VIA FACSIMILE Larry L. Miller, Esquire 1423 State Road Duncannon,PA 17020 STEPHEN E. GEDULDIG KAREN S. COATES 305 NORTH FRONT STREET TODD B. NARVOL JAMES J. UODD-O SIXTH FLOOR DANIELL.GRILL JOHN J. McNALLY. III N.O. BOX 999 KEVIN C. M<NAMARA HARRISBURG, PA 17108 FOLAND BROOKS R. JONATHAN C. DEISHER EISHER _ JOHN FLOUNLACKER (717) 237-7100 JOHN T. HUSKIN. JR. _ FAX (717) 237-7105 MICHELE J. THORP CLAUDIO J. DiPAOLO WRITER'S DIRECT DIAL NUMBER STEPHANIE L. HERSPERGER HUGH P. O'NEILL. III DRUMMOND B. TAYLOR (717) 255-7238 E-mail: DBM@tthlaw.com October 2, 2001 Re: Kisner v. RE/MAX Realty Associates, Inc. No. 99-3487 Civil Term Dear Larry: I am receipt of your fax of September 28, 2001. As you recall, by correspondence on July 23, 2001 and July 26, 2001, I provided dates for the taking of your client's deposition. I have received no response to those dates. On August 23, 2001, I forwarded Notices of Deposition for your client. For over a month since that date, I have received no response or indication that those dates were not acceptable. Now, less than a week before these depositions are scheduled, I received your correspondence of September 28, 2001 without explanation or basis as to either you or your client's unavailability. The only explanation you provide is that the "date is not good for me." Please be advised we intend to proceed with Vdeposifions roperly noticed. I look forward to your client's attendance. Best r? Dougl s THOMAS, THOMAS & HAFER, LLP DBM:skr:t 15152.5 cc: Jefferson J. Shipman, Esquire LEHIGH VALLEY OFFICE: 3400 BATH PIKE. SUITE 201. BETHLEHEM. PA 18017 (610) 868.1675 FAX (610) 868-1702 Exhibit F MILLER LAW OFFICES, P.C. Ouneannon, PA 17020 717 957 2928 Fax 717 957 41143 EMAIL Ilm®e*net October 3, 2001 VIA FAx& MAIL Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Re: Msner v. Re-Max Realty Associates No. 99-3487 Our File: #2877 Dear Doug: 50 Chestnut Rldpe Road Coionlal Surety Company Montvale, NJ 07945 201 478 9009 Fax 201 5731002 As you know, I am handling this matter pro bono for Mr. and Mrs. Kisner because of their financial situation that was caused, in substantial part, by your client's activities. Because I am not billing them, it serves little benefit for you to jerk me around. I have a hearing at 9:30 a.m. in the Bankruptcy Court for the Eastern District in !IRA! Dennis J. Shortall. Jr., Bankruptcy No. 01-19369 (DWS), that has been scheduled since mid-August. The Court's Clerk just called and advised that I must appear. Therefore, I continue to request that depositions be held on a date that I can be available. Sinc ely, Larry L 'ller cc: Jefferson Shipman, Esquire AND NOW, this 10" day of October, 2001,1 hereby certify that I sent a true and correct copy of the foregoing document to the following counsel of record, by placing a copy of same in the United States, first class mail, postage prepaid, addressed as follows: Larry L. Miller, Esquire Post Office Box 40 Duncannon, PA 17020 Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. 0. Box 1268 Harrisburg, PA 17108 THBy: t777= Do Y as B. Marcello, Esquire :85684.1 _._ i .I t... J .J LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 MARIA K. MILLER, ESQUIRE Pa. Supreme Court I.D. 47433 1423 State Road Duncannon, PA 17020 Telephone: 717. 957.2828 u.,, uq• 0114 PATSY KISNER Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC.: DAVID SMOLIZER CARRIE M. METGZER Defendants Attorney for Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA Case No. 1999-3487 CIVIL TERM ANSWER OF PLAINTIFFS TO DEFENDANT METZGERIS MOTION TO COMPEL ATTENDANCE AT DEPOSTTTON AND FOR SANCTIONS Plaintiffs, John Kisner, Sr. and Patsy Kisner, by and through their counsel, hereby respond to Ms. Metzger's Motion to Compel as follows: 1. Denied. The averments set forth in paragraph 1 are false and accordingly, are specifically denied. On the contrary, Ms. Metzger's counsel arbitrarily scheduled the depositions on a date that Plaintiffs' counsP7 wwa Plaintiffs' counsel requested dates later in the month when all parties could be available and Ms. Metzger's counsel refused to respond by suggesting available dates. See Exhibit "A" hereto. 2. Denied. Because Plaintiffs offered to appear for depositions at a convenient date, Ms. Metzger's Motion is obviously inappropriate and unnecessary. 3. Admitted. By way of further response, Mr. Kisner, a business invitee, fell through a trap door into Ms. Metzger's basement which caused him substantial injuries including, without limitation, a fractured rib, and as a direct consequence, he could not work for many weeks. 4. Denied as stated. Plaintiffs incorporate the averments set forth above. 5. Denied. Plaintiffs offered to arrange for the scheduling of the depositions in late October and Ms. Metzger's counsel refused to cooperate. A true and correct copy of the letter from Plaintiffs' counsel to Mr. Marcello is attached hereto as Exhibit "A" and it is incorporated herein by reference. 6.-7. Admitted. By way of further response, Ms. Metzger's counsel's letters on July 23, 2001 and July 26, 2001 do not allow sufficient time for Plaintiffs' counsel to respond. By way of further response, Mr. Kisner is a long distance, independent truck driver and is unavailable for lengthy periods of time. 8. Admitted. 9. Denied. By way of further response, Plaintiffs' counsel advised Ms. Metzger's counsel on September 28, 2001 that new dates would have to be obtained. A true and correct copy of the letter dated September 28, 2001 is attached hereto as Exhibit "A." 10. Admitted. By way of further response, Plaintiffs' counsel had been scheduled for a hearing in the Eastern District of Pennsylvania, Bankruptcy court in a matter captioned In Re: Dennis J. Shortall, Bankruptcy No. 01-19369, before Judge Diane Weiss Sigmund, since August 23, 2001. See Exhibit "B" hereto. 11. Denied as stated. By way of further response, counsel for Plaintiffs was unavailable on the date that was arbitrarily selected by Ms. Metzger's counsel. 12. Denied as stated. By way of further response, counsel for Plaintiffs was scheduled before Judge Diane Weiss Sigmund in Philadelphia on the date Ms. Metzger's counsel arbitrarily selected for depositions. Moreover, Ms. Metzger's counsel was adequately informed of this. 13. Admitted. By way of further response, Plaintiffs' counsel had a hearing in Philadelphia on October 4, 2001. See Exhibit "C" hereto. 14. Denied. on the contrary, Ms. Metzger's counsel is the one who failed to provide dates for depositions when Plaintiffs and their counsel could be available. 15. Denied. Plaintiffs incorporate their above answers. 16. Denied. Plaintiffs incorporate their above answers. 17. Admitted. 18. Admitted. By way of further response, it is inappropriate to schedule depositions when an adversary's counsel cannot be available. See Exhibits "A," "B," and "C" hereto. 19. Plaintiffs incorporate their above averments. 20. Denied. The averments set forth in paragraph 20 are false and accordingly, are specifically denied. WHEREFORE, Plaintiffs request that Ms. Metzger be directed to cooperate in the scheduling of depositions when Plaintiffs and their counsel can both be available. DATE: October 25, 2001 By: , LARRY L MILLER MILLER LAW OFFICES, P.C. Otxw?nnon,262a PA 17020 717067 Fa 717 067 4649 EMAIL 0moopk,nN September 28, 2001 Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Re: Kisner v Re/Max Realty Associates, Inc. No. 99-3487 Our File: 42877 Dear Doug: 201 476 OW Fax 201 573 The October 4, 2001 date is not good for me. Ifyou give me some dates later in the month, I will try to promptly clear them with W. and Mrs. Kisner. Also, the Kisners are interested in trying to settle this matter. Please advise if there is a reasonable way to dispose of this litigation at this time. Thank you. S' rely, Larry L. ller EXHIBIT 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: CHAPTER 13 DENNIS J. SHORTALL, SR. Docket: 01-19369 (DWS) Debtor Apex Lumber Mart, Inc. ("Apex") has filed a Motion to Dismiss Petition of Debtor requesting dismissal of Debtor's Petition for violation of Section 109(g). Your r+ghts maY rie afF n You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. (If you do not have an attorney, you may wish to consult an attorney.) 1. If you do not want the court to grant the relief sought in the Motion or if you want the Court to consider your views on the Motion, then 'on or before September 4, 2001 you or your attorney must do AU of the following: (a) file an answer explaining your position at: Clerk's Office, U.S. Bankruptcy Court Eastern District of Pennsylvania 900 Market Street Philadelphia, PA 19107-4298 EXHIBIT If you nail your answer to the Bankruptcy Clerk's office for filing, you must mail it early enough so that it will be received on or before the date stated above; and (b) mail a copy to the movant's attorney: Larry L. Miller, Esquire Miller Law Offices, P.C. 1423 State Road Duncannon, PA 17020 Phone: (717) 957-2828 Fax: (717) 957-4843 2. If you or your attorney do not take the steps described in paragraphs 1(a) and 1(b) above and attend the hearing, the Court may enter an order granting the relief requested in the Motion. 3. A hearing on the Motion is scheduled to be held before the Honorable Diane Weiss Sigmund on October 4, 2001 at 9:30 a.m. in Courtroom 3 of the United States Bankruptcy Court, Eastern District of Pennsylvania, 900 Market Street, Philadelphia, PA. 4. If a copy of the Motion is not enclosed, a copy of the Motion will be provided to you if you request a copy from the attorney named in paragraph 1(b). 5. You may contact the Bankruptcy Clerk's office at 215.408.2803 to find out whether the hearing has been canceled because no one filed an answer DATE: August 23, 2001 By: t ` 1 LARRY L. MILLER r1 MILLER LAW OFFICES, P.C. Rood PA 17020 Fax 201573 1002 October 3, 2001 YfA FAX AIL Douglas B. Marcello, Esquire Thomas, Thomss & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Re: .9 "r y Re-MaY Realty Accnrior No. 99-3487 Our File: #2877 Dear Doug: As you know, I am handling this matter pro Bono for A& and Mrs. Kisner because of their financial situation that was caused, in substantial part, by your client's activities. Because I am not billing them, it serves little benefit for you to jerk me around. D I have shearing at 9:30 a.m. in the Bankruptcy Court for the Eastern District in rjq&. em116J.S- hl IIJr.,BankmptcyNo.01-19369(DWS),that hasbeen scheduled since mid-August. The Court's Clerk just called and advised that I must appear. available. Therefore, I continue to request that depositions be held on a date that I can be cc: Jefferson Shipman, Esquire Since{ ely, Larry L 'Her EXHIBIT C .w Rood VERIFICATION I, LARRY L. MILLER, have prepared the foregoing ANSWER OF PLAINTIFFS TO DEFENDANT METZGER'S MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR SANCTIONS. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my clients, John Kisner, Sr. and Patsy Kisner. Because of Defendant's untimely service of the Court's Order, Verifications of Mr. and Mrs. Kisner could not be obtained. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: October 25, 2001 By: +l; 1 LARRY L. MILLER CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER upon counsel of record this 25th day of October, 2001 by placing the same in the United States Mail, postage prepaid, addressed as follows: Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Jefferson J. Shipman, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 OCT-23 01 16:04 FROM: THOMAS THOMAS 7172377105 70:99574843 Wris a JOHN KISNER, SR., and PATSY IN THE COURT OF KISNER,. COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. 99.3487 CIVIL CIVIL ACTION - LAW RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE MBTZOER and CABBIE M. METZOER, JURY TRIAL DEMANDED Defendants PRGE:01?01 &-MQEFENDANl0L O nnnrr. ORDER AND NOW, this /P" day of October, 2001, a brief argument on the within motion to compel is sot for Friday, October 26, 2001, at 3:00 p.m, in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA, BY THE COURT, Larry L. Miller, Esquire For the Plaintiffs Jefferson Shipman, Esquire Douglas Marcello, Esquire For the Defendants Am Kevi Hess, J. TRUE In TeOlitnvC0Py FROM RL. 59J ny w,y.rc f 1 Fe ualo sal MY and tt, 'Z' o1 said Cot tl at Carlisle Pa. day? C3 , 11 Larry L. Miller, Esquire Marla K. Miller, Esquire Pa. Supreme Court I.D. No. 47433 P.O. Box 40 Duncannon, Pennsylvania 17020 Telephone: [717] 957-2828 Attorneys for Plaintiff JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA 200 Railroad Street Duncannon, PA 1702 CIVIL ACTION /? t/ ?II V. DOCKET NO. 99 -agn `tL*tC RE/MAX REALTY ASSOCIATES, INC.: 3425 Market Street Camp Hill, PA 17011 DAVID SMOLIZER 3425 Market Street Camp Hill, PA 17011 JOANNE METZER 564 Magaro Road Enola, PA 17025 Defendants TO: PROTHONOTARY OF SAID COURT: Please issue writs of Summons to the above-named Defendants and forward them to the Sheriff of Cumberland County for service. i Date: June 8, 1999 By: LARRY L. MILLER TO: RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER,, AND JOANNE METZER You are hereby notified that John Kisner, Sr. and Patsy Kisner, Plaintiffs, have commenced an action against you. Date: June 9 , 1999 By:ZT?_ ?RU? 12/ ¦ s=5 a CN. V vJ ? Y SHERIFF'S RETURN - REGULAR CASE NO: 1999-03487 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KISNER JOHN SR ET AL VS. RE/MAX REALTY ASSOCIATES INC CHRISTOPHER EVANS Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon METZER JOANNE the defendant, at 15:13 HOURS, on the 24th day of June 1999 at 204 VALLEY ROAD SUMMERDALE, PA 17093 CUMBERLAND County, Pennsylvania, by handing to BIL METZER III (SON) a true and attested copy of the WRIT OF SUMMONS and at the same time directing His attention to the contents thereof. Sheriff's Costa: So answeri?"""'?? Docketing 6.00 Affidavit 9.00 Surcharge 8.00 A. '115mas-Kline, Sfi€rlfp 20V25/1999ILL by Deputy Sne 1 Sworn and subscribed o before me this a S-¢- day of 19Qj A.D. 0. N SHERIFF'S RETURN - REGULAR CASE NO: 1999-03487 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KISNER JOHN SR ET AL VS. RE/MAX REALTY ASSOCIATES INC BRIAN BARRICK , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon RE/MAX REALTY ASSOCIATES INC the defendant, at 16:49 HOURS, on the 11th day of June 1999 at 3425 MARKET STREET CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to RON FREEDMAN (OWNER) a true and attested copy of the WRIT OF SUMMONS and at the same time directing His attention to the contents thereof. Sheriff's Costs: So aa??° d-? Docketing 18 .00 Service 9.30 Affidavit .00 Surcharge 8.00 m Mine, i $35 30 -LARRY L. MILLER 06/25/1999 by /? ?N 1 A w;, L J4 u y ri Sworn and subscribed to before me this 7S°? day of 19 194 A.D. ?? a_ ti 1 CASE NO: 1999-03487 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KISNER JOHN SR ET AL VS. RE/MAX REALTY ASSOCIATES INC BRIAN BARRICK Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SMOLIZER DAVID the defendant, at 16:49 HOURS, on the 11th day of June 1999 at 3425 MARKET STREET CAMP HILL PA 17011 CUMBERLAND County, Pennsylvania, by handing to RON FREEDMAN (OWNER) a true and attested copy of the WRIT OF SUMMONS and at the same time directing His attention to the contents thereof. Sheriff's Costs: So answers;. AO Docketing 6.00 Service 00 Affidavit Surcharge 8.00 -.LARRY L. MILLER 06 2 25 5/1999 by epu Sworn and subscribed to before me this a15% day of 19_?,?- A.D..?? rornonoca-ry Larry L. Miller, Esquire Marla K. Miller, Esquire Pa. Supreme Court I.D. No. 47433 P.O. Box 40 Duncannon, Pennsylvania 17020 Telephone: [717] 957-2828 Attorneys for Plaintiff JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA 200 Railroad Street Duncannon, PA 17020 Plaintiffs CIVIL ACTION V. DOCKET NO. 99-3487 CIVIL TERM RE/MAX REALTY ASSOCIATES, INC.: 3425 Market Street Camp Hill, PA 17011 DAVID SMOLIZER 3425 Market Street Camp Hill, PA 17011 JOANNE METZER 564 Magaro Road Enola, PA 17025 CARRIE M. METZGER 564 Magaro Road Enola, PA 17025 Defendants TO: PROTHONOTARY OF SAID COURT: Please issue a Writ of Defendant, Carrie M. Metzger. Date: September 14, 1999 Summons to the above-named 4RRTY By: L MILLER TO: CARRIE M. METZGER You are hereby notified that John Kisner, Sr. and Patsy Kisner, Plaintiffs, have commenced an action against you. ? Date: September D, 1999 By: 01 -IL _> ?? C? ?... -, r?, ('' f . '_ ?. . ` ' ' .. Lr.? ????? (_ V ?'- ("? i „? :.J !"f? Larry L. Miller, Esquire Marla K. Miller, Esquire Pa. Supreme Court I.D. No. 47433 P_0. Box 40 Duncannon, Pennsylvania 17020 Telephone: (717) 957-2828 Attorneys for Plaintiff JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION V. DOCKET NO. 99-3487 CIVIL TERM RE/MAX REALTY ASSOCIATES, INC.: DAVID SMOLIZER JOANNE METZER C:ARRIE M. METZGER Defendants TO: PROTHONOTARY OF SAID COURT: Please discontinue the above action as to Defendant, Joanne Metaer ONLY, without prejudice. Date: September 28, 1999 By: LARRY L MILLER I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE upon counsel and parties of record this 28`x' day of September, 1999 by placing the same in the United States Mail, first class mail, postage prepaid addressed as follows: Michael A. Koranda, Esquire 219 State Street Harrisburg, PA 17101 RE/MAX REALTY ASSOCIATES, INC. 3425 Market Street Camp Hill, PA 17011 DAVID SMOLIZER 3425 Market Street Camp Hill, PA 17011 1 Byc W a CD LIJ U: L. u {^ L? =J iJ ?- C*6 8 4 49 cb 9 Oo Qr- (t N cal ?y C,c a. u_ c% cj U i •? W F ? q Q9 q h q ? 2 q 6 O Y = q 0 • 1`\lll ? 6 ? N ?? o a .? z q O ? n JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, Carrie M. Metzger in the above-captioned matter. THOMAS, THOMAS & HAFER, LLP By: Dougla cello, Esquire 305 Na h Front Street Post Office Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 CERTIFICATE OF SERVICE l?U R 11?o 0 AND NOW, this -h day oaf ?, , I, Cynthia D. Byrd secretary in the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document to the following counsel of record, by placing a copy of same in the United States, first class mail, postage prepaid, addressed as follows: Larry L. Miller, Esquire Post Office Box 40 Duncannon, PA 17020 Cynthia D. Byrd JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLANDCOUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please issue a Rule upon Plaintiff to file a Complaint within twenty (20) days or suffer judgment no pros. THOMAS, THOMAS & HAFER, LLP By: _ Dougl ? squire 305 Wirth Front Street Post Office Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 r- ir c^ -. =? <t ?: - ? ;, ???-, ,- ? - .,? _ _ '?? C? ]% ? 7C r .. ..J :? JOHN KISNER, SR., and PATSY KISNER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 99-3487 CIVIL TERM RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants To: Plaintiff CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE You are ruled to file a Complaint within twenty (20) days after service hereof, or suffer judgment non pros. BY THE COURT: V .?! '? ?? ?= r. ?? r -- :.?;: "? iii Pd I::? _ ]!. ':'7 ::.J tC? ?J LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 MARLA K. MILLER, ESQUIRE Pa. Supreme Court I.D. 47433 1423 State Road Duncannon, PA 17020 Telephone: 717.957.2828 Attorneys for Plaintiff JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Case No. 1999-3487 CIVIL TERM V. RE/MAX REALTY ASSOCIATES, INC.: DAVID SMOLIZER CARRIE M. METGZER Defendants 1. Plaintiffs, John and Patsy Kisner, are husband and wife who reside at 200 Railroad Street, Duncannon, Pennsylvania. 2. Defendant David Smolizer, at all times relevant hereto, was an employee and agent of Re/Max Realty Associates, Inc. which regularly conducts business at 3425 Market Street, Camp Hill, Pennsylvania. 3. Defendant Carrie M. Metzger, at all times relevant hereto, was the owner of the property at 564 Magarc Road, Enola, Pennsylvania. 4. At all times mentioned herein, Defendant Metzger owned and occupied a private house located at 564 Magaro Road, Enola, Pennsylvania which was a structure with a cellar situated underneath the main floor. 5. On or about November 28, 1998 at 10:30 a.m., John Kisner went to the premises located at 564 Magaro Road, Enola, Pennsylvania to purchase some items that Defendant Metzger had offered to sell to him. 6. On November 28, 1998, Mr. Kisner was at the premises, with the consent of the owner and at her invitation for the purpose of doing business with her. 7. Upon entering the door that was regularly utilized by Mr. Kisner to visit his aunt, he stepped into the entrance way and immediately fell into the cellar through a floor opening. 8. Upon information and belief, the Defendant Smolizer, an agent and employee of Re/Max Realty Associates, Inc., unreasonably permitted the opening to the cellar to remain open without warning to social and business invitees to the premises. 9. The open trap door was immediately inside the exterior door that was regularly used by social and business guests. 10. Defendants negligently permitted, at the time mentioned above, a certain hole in the floor, which led to the cellar, and which was in line with and just inside '.he unguarded exterior door, to remain open and unguarded. 11. Defendants negligently and carelessly failed to warn Mr. Kisner in any manner of the existence of the opening, and failed to erect barriers or warning signs around the opening. 12. Defendants negligently failed to warn Mr. Kisner of this danger, or to gate the entranceway, or to protect Mr. Kisner from falling into the hole in the floor. 13. Mr. Kisner, upon entering the premises on November 28, 1998, was unaware that Mr. Smolizer and/or others had created an extremely dangerous condition, and stepped into the opening which caused him to fall into the cellar and onto the floor below. 14. As a direct result of his fall into the basement, Mr. Kisner suffered serious, permanent, and painful injuries. 15. The dangerous condition was recklessly created by Defendant Smolizer and/or others who were acting with the full permission and consent of the owner, Defendant Carrie M. Metzger. 16. Defendants were under a duty to take reasonable care to make safe, or to warn Mr. Kisner of the presance of, any condition on the premises that Defendants knew, or in the exercise of reasonable care should have known existed, and that Defendants realized, or should have realized, involved an unreasonable risk of harm to Mr. Kisner, and that Defendants knew, or in the exercise of reasonable care should have known, was unknown to and unlikely to be discovered by Mr. Kisner. 17. Defendants breached the duties owed to Mr. Kisner in that they created and permitted the dangerous condition, an open hole in the floor, to exist which constituted an unreasonable risk of harm to persons unaware of its presence and by not warning of the unguarded opening in the floor immediately inside the exterior door which constituted an unreasonable risk of death or serious injury to persons who were unaware of its existence. 18. Although Defendants knew, or in the exercise of reasonable care should have known, that Mr. Kisner was unaware of and unlikely to discover the existence of such extremely dangerous condition and the dangers posed thereby, they failed to warn Mr. Kisner in any way of the presence of the dangerous condition. 19. Mrs. Metzger breached her duty to exercise reasonable care in controlling the conduct of others on her property so as to avoid unreasonable risk of harm to others including, Mr. Kisner. She also was careless and negligent in failing to make reasonable inspections to discover dangerous conditions and to make them safe. 20. Mr. Kisner, at all times while at the premises, exercised due care for his own safety. 21. As a direct result of Defendants' breaches of duties owed by them to Mr. Kisner, Mr. Kisner sustained serious and painful injuries including, a fractured rib, and suffered severe shock to his physical and nervous system. 22. As a direct result of the injuries suffered by Mr. Kisner, he was unable to continue his employment, has had to undergo medical and hospital attention, and suffered substantial medical expenses and loss of enjoyment of life's pleasures. 23. Mr. Kisner has and in the future will suffer great 4. pain and mental anguish because of the painful and permanent 4 injuries. WHEREFORE, Plaintiffs request judgment against the Defendants in a sum exceeding the local arbitration limit, plus such other relief as this Court deems just and proper. 24. Mrs. Kisner incorporates by reference paragraphs 1 though 23 of this Complaint as if set forth in their entirety. 25. The recklessness, careless, and negligent actions of Defendants caused the injuries to Mr. Kisner. Because of the severe injuries suffered Mr. Kisner, Mrs. Kisner has lost and been deprived of the services of her spouse and she will continue to be permanently so deprived of the comfort and solace usually provided by a spouse in good health, to her great detriment and loss. 26. Mrs. Kisner has sustained great and irreparable loss and will be deprived for the remainder of her life of the society, companionship, consortium, and services of her spouse, for all of which loss, deprivation, injury and damage is the direct result of the misconduct and negligence of Defendants. 27. As a direct and proximate result of thF injuries to Mr. Kisner, Mrs. Kisner has become obligated for the costs of hospitalization, medicine, and other medical care and treatment of her husband including, doctor's and hospital bills, medial traveling expenses, and other expenses and will be obligated to incur bills and expense for medicines, medical care, and treatment in the future. 28. Mrs. Kisner made demand for compensation of the aforesaid injuries, damages, and losses, which Defendants have failed and refused and still refuse to pay. WHEREFORE, Mrs. Kisner demands judgment against Defendants in an amount in excess of the local arbitration limit. DATE: February 22, 2000 By: LARRY L. 'MILLER I, LARRY L. MILLER, have prepared the foregoing COMPLAINT. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, JOHN KISNER. The facts set forth in the pleading are based upon my review of the documents and information furnished by John Kisner. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. 0 Date: February 22, 2000 By; LAR Y L. MILLER G ?1? P I HEREBY CERTIFY that I served a true and correct copy of the foregoing COMPLAINT upon counsel of recorc, this 22'' day of February, 2000 by placing the same in the United States Mail, CERTIFIED mail, postage prepaid, addressed as follows: Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 Re/Max Realty Associates, Inc. Mr. David Smolizer 3425 Market Street Camp Hill, PA 17011 B ,:_: -., ?:: <:'. ' ? i'_. r ?:_ ??: ? ; : :? fa MAR 1 4 ?000 JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED hereof without admitting the facts therein as Exhibit "A". 2. Plaintiffs make general averments of negligence as to all Defendants. 3. Plaintiffs fail to allege what to aver the specific facts as to any alleged negligence of Defendant, Carrie M. Metzger. 4. Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1019, state that the material facts on which a cause of action is based shall be stated in a concise and summary form. 5. Plaintiffs have failed to state the specific facts and/or basis for their claim of negligence against Defendant Metzger. WHEREFORE, Defendant, Carrier Metzger, requests this Honorable Court enter an Order requiring Plaintiffs to file more specific pleadings in the above-captioned case. Respectfully submitted, Date: March 13, 2000 THOMAS, THOMAS & HAFER, LLP By: Douglas "arcel o, Esquire 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 Attorney for Defendant Carrie Metzger 1. Plaintiffs filed a Complaint, a copy of which is attached hereto and made a part Exhibit A LARRY L. MILLER, ESQUIRE Pa. Supreme court I.D. 28122 MARLA K. MILLER, ESQUIRE Pa. supreme court I.D. 47433 1423 State Road Duncannon, PA 17020 Telephone: 717.957.2829 Attorneys for Plaintiff JOHN KISNER, SR. and IN THE COURT OF CJMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Case No. 1999-3487 CIVIL TERM V. RE/MAX REALTY ASSOCIATES, INC.: DAVID SMOLIZER CARRIE M. METGZER Defendants COMPLAIN 1. Plaintiffs, John and Patsy Kisner, are husband and wife who reside at 200 Railroad Street, Duncannon, Pennsylvania. 2. Defendant David Smolizer, at all times relevant hereto, was an employee and agent of Re/Max Realty AsEociateS, Inc. which regularly conducts business at 3425 Market Street, Camp Hill, Pennsylvania. 3. Defendant Carrie M. Metzger, at all times relevant hereto, was the owner of the property at 564 Magaro Road, Encla, Pennsylvania. 4. At all times mentioned herein, Defendant Metzger owned and occupied a private house located at 564 Magaro Road, Enola, Pennsylvania which was a structure with a cellar situated underneath the main floor. 5. On or about November 28, 1998 at 10:30 a.m., John Kisner went to the premises located at 564 Magaro Road, Enola, Pennsylvania to purchase some items that Defendant Metzger had offered to sell to him. 6. On November 28, 1998, Mr. Kisner was at the premises, with the consent of the owner and at her invitation for the purpose of doing business with her. 7. Upon entering the door that was regularly utilized by Mr. Kisner to visit his aunt, he stepped into the entrance way and immediately fell into the cellar through a floor opening. 8. Upon information and belief, the Defendant Smolizer, an agent and employee of Re/Max Realty Associates, Inc., unreasonably permitted the opening to the cellar to remain open without warning to social and business invitees to the premises. 9. The open trap door was immediately inside the exterior door that was regularly used by social and business guests. 10. Defendants negligently permitted, at the time mentioned above, a certain hole in the floor, which led to the cellar, and which was in line with and just inside '--he unguarded exterior door, to remain open and unguarded. 11. Defendants negligently and carelessly failed to warn Mr. Kisner in any manner of the existence of the opening, and failed to erect barriers or warning signs around the opening. 12. Defendants negligently failed to warn Mr. Kisner of this danger, or to gate the entranceway, or to protect Mr. Kisner from falling into the hole in the floor. 13. Mr. Kisner, upon entering the premises on November 28, 1998, was unaware that Mr. Smolizer and/or others had created an extremely dangerous condition, and stepped into the opening which caused him to fall into the cellar and onto the floor below. 14. As a direct result of his fall into the basement, Mr. Kisner suffered serious, permanent, and painful injuries. 15. The dangerous condition was recklessly created by Defendant Smolizer and/or others who were acting with the full permission and consent of the owner, Defendant Carrie M. Metzger. 16. Defendants were under a duty to take reasonable care to make safe, or to warn Mr. Kisner of the pres=nce of, any condition on the premises that Defendants knew, or in the exercise of reasonable care should have known existed, and that Defendants realized, or should have realized, involved an unreasonable risk of harm to Mr. Kisner, and that Defendants knew, or in the exercise of reasonable care should have known, was unknown to and unlikely to be discovered by Mr. Kisner. 17. Defendants breached the duties owed to Mr. Kisner in that they created and permitted the dangerous condition, an open hole in the floor, to exist which constituted an unreasonable risk of harm to persons unaware of its presence and by not warning of the unguarded opening in the floor immediately inside the exterior door which constituted an unreasonable risk of death or serious injury to persons who were unaware of its existence. 18. Although Defendants knew, or in the exercise of reasonable care should have known, that Mr. Kisner was unaware of and unlikely to discover the existence of such extremely dangerous condition and the dangers posed thereby, they failed to warn Mr. Kisner in any way of the presence of the dangerous condition. 19. Mrs. Metzger breached her duty to exercise reasonable care in controlling the conduct of others on her property so as to avoid unreasonable risk of harm to others including, Mr. Kisner. She also was careless and negligent in failing to make reasonable inspections to discover dangerous conditions and to make them safe. 20. Mr. Kisner, at all times while at the premises, exercised due care for his own safety. 21. As a direct result of Defendants' breaches of duties owed by them to Mr. Kisner, Mr. Kisner sustained serious and painful injuries including, a fractured rib, and suffered severe shock to his physical and nervous system. 22. As a direct result of the injuries suffered by Mr. Kisner, he eras unable to continue his employment, has had to undergo medical and hospital attention, and suffered substantial medical expenses and loss of enjoyment of life's pleasures. 23. Mr. Kisner has and in the future will suffer great pain and mental anguish because of the painful and permanent injuries. WHEREFORE, Plaintiffs request judgment against the Defendants in a sum exceeding the local arbitration limit, plus such other relief as this Court deems just and proper. 24. Mrs. Kisner incorporates by reference paragraphs 1 though 23 of this complaint as if set forth in their entirety. 25. The recklessness, careless, and negligent actions of Defendants caused the injuries to Mr. Kisner. Because of the severe injuries suffered Mr. Kisner, Mrs. Kisner has lost and been deprived of the services of her spouse and she will continue to be permanently so deprived of the comfort and solace usually provided by a spouse in good health, to her great detriment and loss. 26. Mrs. Kisner has sustained great and irreparable loss and will be deprived for the remainder of her life of the society, companionship, consortium, and services of her spouse, for all of which loss, deprivation, injury and damage is the direct result of the misconduct and negligence of Defendants. 27. As a direct and proximate result of the injuries to Mr. Kisner, Mrs. Kisner has become obligated for the costs of hospitalization, medicine, and other medical care and treatment of her husband including, doctor's and hospital bills, medial traveling expenses, and other expenses and will be obligated to incur bills and expense for medicines, medical care, and treatment in the future. 28. Mrs. Kisner made demand for compensation of the aforesaid injuries, damages, and losses, which Defendants have failed and refused and still refuse to pay. WHEREFORE, Mrs. Kisner demands judgment against Defendants in an amount in excess of the local arbitration limit. DATE: February 22, 2000 By: LARRY L. 'MILLER I, LARRY L. MILLER, have prepared the foregoing COMPLAINT. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, JOHN KISNER. The facts set forth in the pleading are based upon my review of the documents and information furnished by John Kisner. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: February 22, 2000 By: / I i'L? - LARRY L: MILLER CERTIFICATE OF SFRyICr I HEREBY CERTIFY that I served a true and correct copy of the foregoing COMPLAINT upon counsel of record this 22 day of February, 2000 by placing the same in the United States Mail, CERTIFIED mail, postage prepaid, addressed as follows: Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 Re/Max Realty Associates, Inc. Mr. David Smoli2er 3425 Market Street Camp Hill, PA 17011 By: . "r y ; „ CERTIFICATE OF SERVICE I certify that the foregoing document in within action was served upon the following by enclosing the same in an envelope addressed as follows, postage prepaid and depositing the same in the United States Mail, First Class Mail, at Harrisburg, Pennsylvania on the 13d' day of March 2000: Larry L. Miller, Esquire Post Office Box 40 Duncannon, PA 17020 Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P.O. Box 1268 Harrisburg, PA 17108 & HAEK LLP By: llo B. Marcello, Esquire 30 orth Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7238 :85884,1 7 M C Q d ? ? f GOLDBERG, KATZMAN & SHIPMAN, P.C. Jefferson I Shipman - I.D. No. 51785 320 Market Strect Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 [7171234-4161 Attorneys for Defendants, Re/Max Realty Associates, inc. and David Smolizer JOHN KISNER, SR. and : IN THE COURT OF COMMON PLEAS PATSY KISNER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. No. 1999-3487 RE/MAX REALTY ASSOCIATES, INC., : CIVIL ACTION - LAW DAVID SMOLIZER, CARRIE M. METGZER Defendants JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: PLEASE enter the appearance of Jefferson J. Shipman, Esquire, of Goldberg, Katzman & Shipman, P.C., on behalf of Defendants, Re/Max Realty Associates, Inc. and David Smolizer, in the above-reference action. Respectfully submitted, Date: 1I, Iib?e 40495.1 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: Je rson J. Shipman, Esquire 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 [717] 234-4161 Attomey I.D. No. 51785 Attorneys for Defendants Re/Max Realty Associates, Inc. and David Smolizer CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with postage prepaid, first-class delivery and addressed as follows: Larry L. Miller, Esquire Miller & Miller 1423 State Road Duncannon, PA 17020 Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 GOLDBERG, KATZMAN & SHIPMAN, P.C. -v efferson J. Ship n, Esquire 320 Market Street Strawberry Square P.O. Box 1268 Attorney I.U. No. 51785 Harrisburg, PA 17108-1268 [717] 234-4161 Date: 3/1/"00.0 Attorneys for Defendants Re/Max Realty Associates, Inc. and David Smolizer I, n- Q, i'i ,-,JQ ?" N j r ?._. ,>r J.2 O e? ? V =?? ? . ;: ?: r:_. r:. ?? _ ? ;;: L111 ' " 1.. 1 . II ?" _ ?_ t.J GOLDBERG, KATZMAN & SHIPMAN, P.C. Jefferson J. Shipman - I.D. No. 51785 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 1717) 234-4161 Attorneys for Defendants, Re/Max Realty Associates, inc. and David Smolizer JOHN KISNER, SR. and PATSY KISNER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Vs. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, CARRIE M. METGZER Defendants No. 1999-3487 CIVEL ACTION - LAW JURY TRIAL NOTICE TO PLEAD To: Plaintiffs and their counsel, Larry L. Miller, Esquire Wier & Miller 1423 State Road Duncannon, PA 17020 Defendant Carrie M. Metgzer and her counsel, Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 You are hereby notified to plead to the within New Matter and Cross-Claim of answering Defendant within twenty (20) days of receipt hereof. GOLDBERG, KATZMAN & SHIPMAN, P.C. 4?effo . Shipman, Esquire Attorney I.D. 51785 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 2344161 Attorneys for Defendant DATE: ` I j _ ??eo Re/Max Realty Associates, Inc. and David Smolizer GOLDBERG, KATZMAN & SHIPMAN, P.C. Jefferson J. Shipman - I.D. No. 51785 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 [7171234-4161 Attorneys for Defendants, Re/Max Realty Associates, Inc. and David Smolizer JOHN KISNER, SR. and PATSY KISNER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. REIMAX REALTY ASSOCIATES, INC., DAVID SMOLIZEItCARRIE M. METGZER Defendants No. 1999-3487 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER NEW MATTER AND CROSS CLAIM OF RE/MAX REALTY ASSOCIATES,-INC. AND DAVID SMOLIZER AND NOW, come the Defendants, Re/Max Realty Associates, Inc. and David Smolizer, by and through their counsel, Goldberg, Katzman & Shipman, P.C., and file the following Answer, New Matter and Cross-Claim: Admitted. 2. Admitted. 3. Admitted in part. Denied in part. It is admitted only that Re/Max has an office at 3425 Market Street, Camp Hill, Pennsylvania. It is denied that Mr. Smolizer is an employee of Re/Max, 4. Admitted. 5. Admitted upon information and belief. 6. Admitted upon information and belief. 7. Admitted in part, denied in part. It is admitted that the Plaintiff, Mr. Kisner, regularly visited the property. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as the truth of the remaining averments of paragraph number 7 and the same are therefore denied and proof demanded at the time of trial. 8. Denied. The averments contained in paragraph number 8 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 9. Denied. The averments contained in paragraph number 9 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 10. Denied. The averments contained in paragraph number 10 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 11. Denied. The averments contained in paragraph number I 1 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 12. Denied. The averments contained in paragraph number 12 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 2 13. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as the truth of the remaining averments of paragraph number 13 and the same are therefore denied and strict proof demanded at the time of trial. 14. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as the truth of the remaining averments of paragraph number 14 and the same are therefore denied and strict proofdemanded at the time of trial. 15. Denied. The averments contained in paragraph number 15 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 16. Denied. The averments contained in paragraph number 16 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 17. Denied. The averments contained in paragraph number 17 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 18. Denied. The averments contained in paragraph number 18 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 3 19. Denied. The averments contained in paragraph number 19 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 20. Denied. The averments contained in paragraph number 20 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 21. Denied. The averments contained in paragraph number 21 are in part conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph number 21 relating to Plaintiff s alleged injuries and the same is therefore denied and strict proof demanded at the time of trial. 22. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments of paragraph number 22 relating to Plaintiffs alleged loss of income and medical expenses and loss of enjoyment of life's pleasures and the same is therefore denied and strict proof demanded at the time of trial. 23. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments of paragraph number 23 relating to Plaintiff s alleged pain and the same is therefore denied and strict proof demanded at the time of trial. 4 WHEREFORE, the answering Defendants, Re/Max Realty Associates, Inc. and David Smolizer, respectfully request that judgment be entered in their favor and the Plaintiffs' Complaint be dismissed with prejudice. COUNT II Patsy Kisner v. Re/Max Realty Associates. Inc.. David Smolizer and Carrie M. Meter 24. The answering Defendants incorporate herein by reference their answers to paragraphs 1-23 above as though fully set forth herein at length. 25. Denied. The averments contained in paragraph number 25 are in part conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph number 25 and the same are therefore denied and strict proof demanded at the time of trial. 26. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 26 and the same are therefore denied and strict proof demanded at the time of trial. 5 27. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 27 and the same are therefore denied and strict proof demanded at the time of trial. 28. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 28 and the same are therefore denied and strict proof demanded at the time of trial. WHEREFORE, the answering Defendants, Re/Max Realty Associates, Inc. and David Smolizer, respectfully request that judgment be entered in their favor and the Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER By way of additional answer and reply the Defendants interpose the following New Matter defenses: 29. That the Plaintiffs' claims are barred and/or limited by the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. § 7102 et. seq. and by the Doctrine of Comparative Negligence. 6 30. The Plaintiff John Kisner failed to exercise reasonable care for his own safety under the circumstances then and there existing. 31. That the Plaintiff, John Kisner, was comparatively negligent and failed to exercise reasonable care for his own safety in the following: a. walking and stepping inattentively without first ascertaining whether it was safe to do so; b. knowingly and voluntarily encountering an obvious danger; C. failing to take an alternative route; d. failing to watch where he was walking and stepping; e. walking and stepping in a hurry or otherwise inappropriate manner. 32. That the Plaintiffs failure to exercise reasonable care for his own safety was a substantial factor in the happening of the accident. 33. That the Plaintiffs injuries and damages, if any, were not caused by any act, omission or breach of duty by answering Defendants. 34. That if a dangerous condition existed at the time of the Plaintiffs' accident, which is denied, then the Defendants aver that they did not have actual constructive notice of the allegedly dangerous condition prior to the accident. 35. That the answering Defendants owed no duty of care to the Plaintiffs. 36. That if it should be found that there was any negligence on the part of the answering Defendants, which is expressly denied, any such negligence was not a proximate cause of any damages to the Plaintiff. 37. That the Plaintiff knowingly and voluntarily assumed the risk of his injuries under the circumstances then and there existing by identifying a dangerous condition, appreciating its dangerous character and voluntarily proceeding to encounter that condition. 38. That the Plaintiffs accident and any injuries sustained by him may have been caused in whole or in part by the negligence of third persons not presently involved in this action. 39. That the Plaintiffs accident any injuries sustained by him may have been caused by an intervening superceding cause. WHEREFORE, the Defendants Re/Max Realty Associates, Inc. and David Smolizer respectfully requests that judgment be entered in their favor and that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER IN THE NATURE OF A CROSS-CLAIM PURSUANT TO PA RCP 2252(d) 40. That if it is determined that Plaintiffs are entitled to recover any or all of the damages sought in their Complaint, which right as to the answering Defendants Relmax Realty Associates, Inc. and David Smolizer is specifically denied, then in that event, liability rests solely with Defendant, Carrie M. Metgzer based on the allegations set forth in the Plaintiffs' Complaint. 8 41. That if it is determined that the Plaintiffs are entitled to recover any or all of the damages sought in their Complaint, which right as to Re/Max Realty Associates, Inc. and David Smolizer is specifically denied, then in that event, Defendant Came M. Metgzer is jointly and/or severally liable withRe/Max Realty Associates, Inc. and David Smolizer, or liable over to Re(Max Realty Associates, Inc. and David Smolizer, for contribution or indemnity. WHEREFORE, the answering Defendants Re/Max Realty Associates, Inc. and David Smolizer demandjudgment against Defendant Carrie M. Metgzer for all sums which maybe adjudged against them in favor of the Plaintiffs or/in the alternative, demand judgment against Carrie M. Metgzer for contribution and/or indemnity. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: , 4e rson J. Shipman, Esquir 320 Market Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 [717] 234-4161 Attorney I.D. No. 51785 Date: 3 13-2sNdp Attorneys for Defendants 40501.1 Re/Max Realty Associates, Inc. and David Smolizer VERIFICATION I,16? ,41-0 P. F2ogE l hereby acknowledge that Re/Max Realty Associates, Inc., is a Defendant in this action and that I am authorized to make this verification on its behalf, that I have read the foregoing document, that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Name: ?QaiYflL Q D. F/?EDMSIn/ Title: Date: 13 VEM ATTON I, David Smolizer, hereby acknowledge that I am a Defendant in this action and that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. David Smolizer Date: CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with postage prepaid, first-class delivery and addressed as follows: Larry L. Miller, Esquire Miller & Miller 1423 State Road Duncannon, PA 17020 Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 GOLDBERG, KATZMAN & SHIPMAN, P.C. AAd Jq4teffiersonn I Shipm ' Esquire 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717] 234-4161 Attorney I.D. No. 51785 Date: Sh ZOOS Attorneys for Defendants Re/Max Realty Associates, Inc. and David Smolizer 10 LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 MARLA K. MILLER, ESQUIRE Pa. Supreme Court I.D. 47433 1423 State Road Duncannon, PA 17020 Telephone: 717.957.2828 Attorneys for Plaintiff JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Case No. 1999-3487 CIVIL TERM V. REIMAX REALTY ASSOCIATES, INC.: DAVID SMOLIZER CARRIE M. METGZER Defendants YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE IF YOU DO NOT AVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR mFT,EPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor, Cumberland county courthouse Carlisle, PA 17013 717-240-6200 Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viento (20) dias de plazo al partir de le fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea advisado que si usted no se defiende, Is corte tomara medidas y puede entrar una Orden contra usted sin previo adviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o es propiedades o otros derechos importantes para usted. T.L•EVE ESTA DEMAANDA A UN ABODAGO TNMEDTAT M NT T NO TIENE AROGADO O S NO TT .N . DIN .RO D FT T NT DE PAr.AR TAT SERVICIO, VAYA .N P .RSONA A LLAMR POR T .T.F.FONO A I,A OFICIIIA CUYA DTREC ION N NT A 9CRITA ABA O PA RA AV RT AR DOND SF P EBE CONSE.GUIR A T T ENCIA LEGAL, Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 717-240-6200 DATE: March 31, 2000 By:_ LAR MILLER LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 MARLA K. MILLER, ESQUIRE Pa. Supreme court I.D. 47433 1423 State Road Duncannon, PA 17020 Telephone: 717.957.2828 Attorneys for Plaintiff JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Case No. 1999-3487 CIVIL TERM V. RE/MAX REALTY ASSOCIATES, INC.: DAVID SMOLIZF.R CARRIE M. METGZER Defendants 1. Plaintiffs, John and Patsy Kisner, are husband and wife who reside at 200 Railroad Street, Duncannon, Pennsylvania. 2. Defendant David Smolizer, at all times relevant hereto, was an employee and agent of Re/Max Realty Associates, Inc. which regularly conducts business at 3425 Market Street, Camp Hill, Pennsylvania. 3. Defendant Carrie M. Metzger, at all times relevant hereto, was the owner of the property at 564 Magaro Road, Enola, Pennsylvania. 4, At all times mentioned herein, Defendant Metzger owned and occupied a private home located at 564 Magaro Road, Enola, Pennsylvania which was a structure with a cellar situated underneath the main floor. 5. On or about November 28, 1998 at 10:30 a.m., John Kisner went to the premises located at 564 Magaro Road, Enola, Pennsylvania to purchase some items that Defendant Metzger had offered to sell to him. 6, on November 28, 1998, Mr. Kisner was at the premises, with the consent of the owner and at her invitation for the purpose of doing business with her. 7. Upon entering the exterior door to the home that was regularly utilized by Mr. Kisner to visit his aunt, he stepped into the entrance way and immediately fell into the cellar through an opening in the floor. S. Despite Mr. Kisner's prior visits to the home, he had no notice or awareness of the trap door in the floor that provided access to the cellar. 9. Upon information and belief, Defendant smolizer, an agent and employee of Re/Max Realty Associates, Inc., with Defendant Metzger's consent and approval unreasonably permitted the opening to the cellar to remain open without any warning to social and business invitees to the premises. 10. The open trap door was immediately inside the exterior door that was regularly used by social and business guests 2 which made the unreasonably dangerous condition non-discoverable to Mr. Kisner prior to his fall. 11. Defendants negligently permitted, at the time mentioned above, a certain hole in the floor, which led to the cellar, and which was in line with and just inside the unguarded exterior door, to remain open and unguarded. 12. Defendants negligently, carelessly, and recklessly failed to warn Mr. Kisner in any manner of the existence of the dangerous opening, and failed to erect barriers or warning signs around the dangerous opening in the floor. 13. Defendants negligently failed to warn Mr. Kisner of this danger, or to gate the entranceway, or to protect Mr. Kisner from falling into the hole in the floor. 14. Mr. Kisner, upon entering the premises on November 28, 1998, was unaware that Mr. Smolizer and/or others had created an extremely dangerous condition, and stepped into the opening which caused him to fall into the cellar and onto the floor below where two men were then located. 15. As a direct result of his fall into the basement, Mr. Kisner suffered serious, permanent, and painful injuries that required emergency medical treatment at the Holy Spirit Emergency Room. 16. The dangerous condition was recklessly created by Defendant Smolizer and/or others who were acting with the full permission, knowledge, and consent of the owner, Defendant Metzger. 3 17. Defendants were under a duty to make safe, or to warn Mr. Kisner of the presence of any condition on the premises that Defendants knew, or in the exercise of reasonable care should have known existed, and that Defendants realized, or should have realized, involved an unreasonable risk of harm to Mr. Kisner, and that Defendants knew, or in the exercise of reasonable care should have known, was unknown to and unlikely to be discovered by Mr. Kisner. 18. Defendants breached the duties owed to Mr. Kisner in that they created and permitted the dangerous condition, an open hole in the floor, to exist which constituted an unreasonable risk of harm to persons unaware of its presence and by not warning of the unguarded opening in the floor immediately inside the exterior door which constituted an unreasonable risk of death or serious injury to persons who were unaware of its existence. 19. Although Defendants knew, or in the exercise of reasonable care should have known, that Mr. Kisner was unaware of and unlikely to discover the existence of said extremely dangerous condition, they failed to warn Mr. Kisner in any way of the presence of the dangerous condition. 20. Defendant Metzger breached her duty to exercise reasonable care in controlling the conduct of others on her property so as to avoid the unreasonable risk of harm to others including, Mr. Kisner. 4 21. Defendant Metzger also was careless and negligent in failing to make reasonable inspections to discover dangerous conditions on her premises and to make them safe for others. 22. Defendant Metzger knowingly permitted an extremely dangerous condition to exist on her premises that was likely to cause death or serious injury to social guests and business invitees. 23. Defendant Metzger never warned Mr. Kisner of the dangerous conditions existing on her premises even though she had full awareness and knowledge of them. 24. Defendant Metzger had specific knowledge of the dangers that were presented by the opening in the floor immediately inside her exterior door and yet, recklessly failed to warn Mr. Kisner of this extremely dangerous condition. 25. Additionally, Defendant Metzger had full notice and knowledge that Defendant Smolizer, and others, had entered her cellar through a trap door in the floor which created a risk of serious harm to others, and yet took absolutely no action to warn or safeguard invitees, including, Mr. Kisner. 26. Further, Defendant Metzger knowingly failed and refused to inspect her property for defects and dangerous conditions and refused to take the necessary steps to make her property safe for her guests. 27. Defendant Metzger knowingly permitted the unreasonably dangerous condition to exist on her property. 5 28. Defendant Metzger intentionally refused to take the necessary precautions to protect Mr. Kisner. She knowingly permitted the exterior door to remain unlocked even though she knew Mr. Kisner was unaware of and unlikely to discover the existence of said dangerous condition. 29. Defendant Metzger negligently and recklessly permitted others on her property to create an unreasonable risk of harm to Mr. Kisner when she knew or should have known that Mr. Kisner was unlikely to discover the unreasonably dangerous condition prior to suffering serious injury. 30. Further, Defendant Metzger had full notice and knowledge that the dangerous condition would not be obvious nor observable to Mr. Kisner. 31. Defendant Metzger had the actual ability and authority to control the actions of her co-defendants but despite her knowledge of their actions, negligently and recklessly failed to do so. 32. Mr. Kisner, at all times while at the premises, exercised due care for his own safety and had no notice, warning, or reasonable ability to discover the dangerous condition prior to his fall. 33. As a direct result of Defendants' breaches of duties owed by them to Mr. Kisner, Mr. Kisner sustained serious and painful injuries including, a fractured rib, and suffered severe shock to his physical and nervous system. 6 34. As a direct result of the injuries suffered by Mr. Kisner, he was unable to continue his employment, has had to undergo medical and hospital attention, and suffered substantial medical expenses and loss of enjoyment of life's pleasures. 35. Mr. Kisner has and in the future will suffer great pain and mental anguish because of the painful and permanent injuries. 36. Defendants' conduct as described above was wanton, willful, reckless, and malicious. WHEREFORE, Plaintiffs request judgment against the Defendants in a sum exceeding the local arbitration limit, plus such other relief as this Court deems just and proper. 37. Mrs. Kisner incorporates by reference paragraphs 1 though 36 of this Complaint as if set forth in their entirety. 38. The recklessness, careless, and negligent actions of Defendants caused the injuries to Mr. Kisner. 39. Because of the severe injuries suffered Mr. Kisner, Mrs. Kisner has lost and been deprived of the services of her spouse and she will continue to be permanently so deprived of the comfort and solace usually provided by a spouse in good health, to her great detriment and loss. 7 40. Mrs. Kisner has sustained great and irreparable loss and will be deprived for the remainder of her life of the society, companionship, consortium, and services of her spouse, for all of which loss, deprivation, injury and damage is the direct result of the misconduct and negligence of Defendants. 41. As a direct and proximate result of the injuries to Mr. Kisner, Mrs. Kisner has become obligated for the costs of hospitalization, medicine, and other medical care and treatment of her husband including, doctor's and hospital bills, medial traveling expenses, and other expenses and will be obligated to incur bills and expense for medicines, medical care, and treatment in the future. 42. Mrs. Kisner made demand for compensation of the aforesaid injuries, damages, and losses, which Defendants have failed and refused and still refuse to pay. WHEREFORE, Mrs. Kisner demands judgment against Defendants in an amount in excess of the local arbitration limit. DATE: March 31, 2000 By: / , LAWY . MILLER 8 I, LARRY L. MILLER, have read the foregoing AMENDED COMPLAINT. The factual statements contained therein are true and correct to the best of my knowledge, information, and belief. I an authorized to make this Verification on behalf of my client, JOHN KISNER. The facts set forth in the pleading are based upon my review of the documents and information furnished by John Kisner. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date:March 31, 2000 By: _ LAR Y L. MILLER I HEREBY CERTIFY that I served a true and correct copy of the foregoing AMENDED COMPLAINT upon counsel of record this 313' day of March, 2000 by placing the same in the united States Mail, CERTIFIED mail, postage prepaid, addressed as follows: Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 Jefferson J. Shipman, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 u? ??? ' . ='=; . t i :.? • ..; U JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants TO: John Kisner, Sr. and Patsy Kisner c/o Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Dou . Ma ello, Esquire 305 rth Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7629 Dated: Attorney for Defendant Carrie Metzger JOHN KISNER, SR., and PATSY KISNER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 99-3487 CIVIL TERM RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants CIVIL ACTION-LAW JURY TRIAL DEMANDED LLP, and Douglas B. Marcello, Esquire, hereby files the following Answer with New Matter to Plaintiffs' Amended Complaint: 1. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 1 and the same are therefore denied and proof is demanded at time of trial. 2. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 2 and the same are therefore denied and proof is demanded at time of trial. 3. Denied as stated. The averments of paragraph 3 state a conclusion of law to which no responsive pleadings are required. In the alternative, it is admitted that Carrie M. Metzger was, during a certain period of time, the owner of property at 564 McGaro Road, Enola, Pennsylvania. Any and all other averments of paragraph 3 are denied and proof is demanded at time of trial. 4. Denied as stated. The averments of paragraph 4 state a conclusion of law to which no responsive pleadings are required. In the alternative, it is admitted that Carrie M. Metzger was, during a certain period of time, the owner of property at 564 McGaro Road, Enola, Defendant, Carrie M. Metzger, by and through her attorneys, Thomas, Thomas & Hafer, Pennsylvania. Any and all other averments of paragraph 4 are denied and proof is demanded at time of trial. 5. Denied as stated. In the alternative, the answering Defendant is without information or belief as to the truth of the averments as to the purpose of Mr. Kisner's coming to the property at 564 McGaro Road. Hence, it is denied and proof is demanded at time of trial. Any and all other averments of paragraph 5 are denied and proof is demanded at time of trial. 6• Denied. It is denied that Mr. Kisner entered the premises with the knowledge or consent of Ms. Metzger. The answering Defendant is without information or belief as to the truth of the averments that he was at the premises to do business with her. Any and all other averments of paragraph 6 are denied and proof is demanded at the time of trial. 7. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 7 and the same are therefore denied and proof is demanded at time of trial. It is specifically denied that Mr. Kisner regularly utilized the exterior door without permission and knowledge of Ms. Metzger. Any and all other averments of paragraph 7 are denied and proof is demanded at the time of trial. 8. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 8 and the same are therefore denied and proof is demanded at time of trial pending further investigation. In the alternative, the averments are denied and proof is demanded at the time of trial. 9. Denied as stated. It is denied that the trap door was opened and/or left open with the consent and approval of Ms. Metzger. The answering Defendant is without information and belief as to the truth of the balance of the averments contained in paragraph 9 and the same are therefore denied and proof is demanded at time of trial. In the alternative, the averments of paragraph 9 are denied and proof is demanded at time of trial. 10. Denied. It is denied that social or business guests regularly came into the premises owned and occupied by Ms Metzger without obtaining her approval to enter, hence, the averments of paragraph 10 are denied and proof is demanded at time of trial. 11. Denied. It is denied that answering Defendant caused the hole in the floor to be open and/or permitted to be open at the time Mr. Kisner came into the house or had knowledge 2 either that the door was open and/or that Mr. Kisner was walking unannounced into the house. Any and all other averments of paragraph 11 are denied and proof is demanded at time of trial. 12. Denied. Any and all allegations of negligence, carelessness, or recklessness on the part of answering Defendant are denied and proof is demanded at the time of trial. As Mr. Kisner entered her home unannounced and without her specific permission at this time, the averments of paragraph 12 are denied, and any and all allegations and/or duty of said Defendant as to erecting barriers or warning signs are denied and proof demanded at time of trial. 13. Denied. Any and all allegations of negligence, carelessness, or recklessness on the part of answering Defendant are denied and proof is demanded at the time of trial. As Mr. Kisner entered her home unannounced and without her specific permission at this time, the averments of paragraph 13 are denied, and any and all allegations and/or duty of said Defendant as to erecting barriers or warning signs are denied and proof demanded at time of trial. 14. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 14 and the same are therefore denied and proof is demanded at time of trial. 15. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 15 and the same are therefore denied and proof is demanded at time of trial. 16. Denied. It is denied that any condition alleged by Plaintiff was caused by or with any knowledge, permission or consent of Ms. Metzger. 17. Denied. The averments of paragraph 17 state a conclusion of law to which no responsive pleadings are required. In the alternative, the averments of paragraph 17 are denied and proof is demanded at time of trial. 18. Denied. The averments of paragraph 18 state a conclusion of law to which no responsive pleadings are required. In the alternative, the averments of paragraph 18 are denied and proof is demanded at time of trial. 19. Denied. The averments of paragraph 19 state a conclusion of law to which no responsive pleadings are required. In the alternative, the averments of paragraph 19 are denied and proof is demanded at time of trial. 3 20. Denied. It is denied that Defendant Metzger breached any duty and/or that any duty existed to exercise reasonable care to control the conduct of others on her property so as to avoid unreasonable risk of harm to others, including Mr. Kisner. Any and all other averments of paragraph 20 are denied and proof is demanded at time of trial. 21. Denied. It is denied that Ms. Metzger was careless or negligent and/or failed to make reasonable inspections to discover the dangerous condition on the premises and/or to make them safe for others. Hence, it is denied and proof is demanded at time of trial. 22. Denied. It is denied that Ms. Metzger knowingly permitted an extremely dangerous condition to exist on her premises and any and all allegations of an extremely dangerous condition on the premises is specifically denied. Any and all other averments contained in paragraph 22 and the same are therefore denied and proof is demanded at time of trial. 23. Denied. It is denied that Ms. Metzger had a duty to and/or had knowledge of any dangerous condition existing on the premises which was necessary to warn Mr. Kisner. Hence, it is denied and proof is demanded at time of trial. 24. Denied. It is denied that Ms. Metzger had specific knowledge of the danger that was presented by an opening in the floor immediately inside her door and/or failed to warn Mr. Kisner of the condition. Hence, it is denied and proof demanded at time of trial. 25. Denied. It is denied that Ms. Metzger had knowledge and/or notice that Defendants Smolizer and/or others had entered her cellar through a trap door in the floor. Hence, it is denied and proof is demanded at time of trial. Any and all other averments of paragraph 25 are denied and proof is demanded at time of trial. 26. Denied. It is denied that Ms. Metzger knowingly failed and/or refused to inspect her property for defects or dangerous conditions or refused to take the necessary steps to make her property safe for her guests. Any and all other averments of paragraph 26 are denied and proof is demanded at time of trial. 27. Denied. It is denied that Ms. Metzger knowingly permitted the unreasonable dangerous condition to exist on her property. Any and all allegations of a unreasonably dangerous condition on her premises are denied and proof is demanded at time of trial. 4 28. Denied. It is denied that Ms. Metzger intentionally refused to take the necessary precautions to protect Mr. Kisner. It is denied that Ms. Metzger knowingly permitted the exterior door to remain unlocked. Any and all other averments of paragraph 28 are denied and proof is demanded at time of trial. 29. Denied. It is denied that Ms. Metzger negligently and/or recklessly permitted others on her property to create an unreasonable risk of harm to Mr. Kisner when she knew or should have known that Mr. Kisner was unlikely to discover the unreasonable dangerous condition prior to suffering serious injury. Any and all allegations of an unreasonably dangerous condition and/or serious injury are denied and proof is demanded at time of trial. 30. Denied. It is denied that Ms. Metzger had full notice and knowledge of the dangerous condition. It is denied that the condition would not be obvious and observable to Mr. Kisner. 31. Denied. It is denied that Ms. Metzger had any knowledge of their actions. Any and all allegations of negligence or recklessness in failing to control the actions is denied as she had no knowledge thereof. 32. Denied. It is denied that Mr. Kisner at all times while on the premises exercised due care for his own safety. It is denied that Mr. Kisner could not, if he exercised ordinary care, have had actual notice, warning, and the reasonable ability to discover that any condition upon which he complains upon the premises prior to his fall. Any and all allegations in paragraph 32 are denied and proof is demanded at time of trial. 33. Denied. Any and all allegations of Defendant's breach of duties are denied and proof is demanded at time of trial. Answering Defendant is without information or belief as to the truth of balance of the averments contained in paragraph 33 and the same are therefore denied and proof is demanded at time of trial. 34. Denied. Answering Defendants is without information or belief as to the truth of the averments contained in paragraph 34 and the same are therefore denied and proof is demanded at time of trial. 5 35. Denied. Answering Defendants is without inf rmation or belief as to the truth of the averments contained in paragraph 34 and the same are therefore denied and proof is demanded at time of trial. 36. Denied. It is denied that Defendant's conduct was wanton, willful, reckless and malicious. WHEREFORE, answering Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' Amended Complaint. COUNT II Patsy Kisner v. Re/Max Realty Associates. Inc.. David Smolizer and Carrie M. Metzger 37. The averments of paragraphs I through 36 of answering Defendant's Answer are incorporated herein and made a part hereof as though set forth in full. 38. Denied. The averments of paragraph 38 state a conclusion of law to which no responsive pleadings are required. In the alternative, any and all allegations of recklessness, carelessness or negligence arc specifically denied and proof is demanded at time of trial. Any and all other allegations of paragraph 38 are denied. 39. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 39 and the same are therefore denied and proof is demanded at time of trial. 40. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 40 and the same are therefore denied and proof is demanded at time of trial. Any and all allegations of negligence or misconduct of answering Defendant is denied and proof is demanded at time of trial. 41. Denied. The averments of paragraph 41 are denied and proof is demanded at time of trial. 42. Denied. The answering Defendant is without information or belief as to the truth of the averments contained in paragraph 42 and the same are therefore denied and proof is demanded at time of trial. 6 WHEREFORE, answering Defendant respectfully requests that this Honorable Court dismiss Plaintiffs' Amended Complaint. NEW MATTER 43. The averments of paragraphs 1 through 42 of answering Defendant's Answer are incorporated herein and made a part hereof as though set forth in full. 44. Some or all of Plaintiffs claims may be barred by Plaintiffs assumption of risk. 45. Some or all of Plaintiffs claims may be barred by the lack of duty of answering Defendant to Plaintiff. 46. Some or all of Plaintiffs claims may be barred by the intervening superseding acts of third parties, including, but not limited to, Defendants. 47. Some or all of Plaintiffs claims may be barred by John Kisner's comparative and/or contributory negligence, including the following: a. Entering Ms. Metzger's home without announcing his presence; b. Walking into the home without observing where he was walking; C. Walking into the door without making sure it was safe to do so; d. Failing to take due care under the circumstances; e. Failing to make sure that his path and/or entry onto the premises was safe; f. Failing to look out for the open cellar door which he should have observed; g. Failing to make sure that sufficient lighting and/or any other conditions necessary for him to safely enter the premises were engaged. 48. Some or all of Plaintiffs claims may be barred by a failure to state a cause of action. CROSS CLAIM Carrie M. Metzger v. Re/Max Realty Associates, Inc., David Smolizer 49. The averments of paragraphs I through 48 of answering Defendant's Answer are incorporated herein and made a part hereof as though set forth in full. 50. Answering Defendant asserts that any injuries sustained by Plaintiff, to the extent not barred by Plaintiff s comparative and/or contributory negligence and/or assumption of the risk, 7 were due to the negligence of Defendants Smolizer and Re/Mas Realty, Inc., including, but not limited to, the following: a. Opening the cellar door; b. Being on the premises unannounced and creating such condition; C. Failing to warn to take precautions as to secure the area around the door; d. Failing to lock the back door and/or prevent entry when the cellar door was open; e. Failing to post an individual to guard and/or to warn against such conditions; 1'. Failing to post a warning or sufficient notice of the creation of such condition. 51. Answering Defendant avers that said Defendants are solely liable to Plaintiffs, jointly or severally liable over to Plaintiffs or liable to answering Defendant for contribution and indemnity, including, but not limited to, common law and/or contractual indemnity. WIIERf'FORE, answering Defendant requests this Honorable Court to find Defendants Itc/Max Realty Associates, Inc. and David Smolizer solely liable to Plaintiffs, jointly or severally liable to Plaintiff's, or liable over to answering Defendant for contribution and indemnification for the claims set forth in Plaintiffs' Amended Complaint. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: l \ V Dou B. Marpet o, Esquire 30 rth Front Street P. O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 Attorney for Defendant Carrie Metzger Date: :91488.1 8 VERIFICATION I M491 W,¢,,. , do hereby swear and affirm that the facts and matters set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are made subject to the penalties of Pa. C.S. §4904 relating to unworn falsification to authorities. Date: L- - / l- ? Ct C' C 0 :72412.1 CERTIFICATE OF SERVICE 1, Kathy L. Sitler, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that the foregoing document in within action was served upon the following persons via United States Mail, first class, postage prepaid, as follows: Larry L. Miller, Esquire Post Office Box 40 Duncannon, PA 17020 Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. O. Box 1268 Harrisburg, PA 17108 Date: (;OALk KATHY L. t LER ti :,, , ' _; CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22•P IN THE MATTER OF: COURT OF COMiON PLEAS FISHER TERM -VS- CASE NO: 1999-3487 RE/MAX, ET AL As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of JEPFERSON J. SHIPMAN ESQUIRE defendant certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to the certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 04/24/2000 1 51 ale 9 .,/nom r,, 4 JEFFERSON J. SHIPMAN. ESQUIRE Attorney for DEFENDANT DEII-175469 7-5033.-L 03. COMMONWEALTH OP PENNSYLVANIA COUNTY O Er CUMBERLAND IN THE MATTER OF: COURT OF COMMON PLEAS KISNER -VS- RE/MAX, ET AL TERM, CASE NO: 1999-3487 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUNENTS DUNCANNON FAMILY HEALTH CTR. MEDICAL HOLY SPIRIT HOSPITAL MEDICAL TO: LARRY MILLER.ESQUIRE DOUGLAS B. MARCELLO. ESQUIRE MCS on behalf of JEFFERSON J. SHIPMAN, ESQUIRE intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure 4009.24. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 04103/2000 CC: JEFFERSON J. SHIPMAN, ESQUIRE - 22740-916 Any questions regarding this matter, contact MCS on behalf of JEFFERSON J. SHIPMAN ESQUIRE Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET 1800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-118233 2-5033--C--03. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND KISNER VS File No. 1999-3487 RE/MAX, ET AL SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 400922 TO: FOR: (Name of Peron or Within twenty (20) days after service of this things: CENTER are ordered by the court to produce the following documents or CHED at MCS GROUP INC. 1601 MARKET STREET SUITE 800 PHILADELPHIA PA 19103 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME JEFFERSON J. SHIPMAN, ESQUIRE ADDRESS: 320 MARKET STREET, P.O. BOX 1268 HARRISBURG PA 17108 TELEPHONE: (215) 246-0900 SUPREME COURT ID '": ATTORNEY FOR: THE DEFENDANT DATE J'(? .?n ?na13 Seal of the Court EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: DUNCANNON FAMILY HEALTH CCR. 510 NEW BLOOMFIELD RD. DUNCANNON, PA 17020 RE: 25031 JOHN KISNER SR. INCLUDING ANY AND ALL RECORDS FROM DR. DANIEL YUTRONICH, X-RAY REPORTS DOCTOR'S REPORTS/RECORDS, PHYSICAL THERAPY REPORTS/RECORDS, AND NURSE'S NOTES, ETC. FROM THE INITIAL OFFICE VISIT TO THE PRESENT. Any and all records, correspondence, files and memorandums, handwritten notes, billing and payment records, relating to any examination, consultation, care or treatment. Dates Requested: up to and including the present. Subject : JOHN KISNER SR. 200 RAILROAD STREET, DUNCANNON, PA 17055 Social Security 1h 195-32-0967 Date of Birth: 11-10-1943 SU10-241832 Z5033--]L-03. CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22'P IN THE NATTER OF: COURT OF COMMON PLEAS RISNER TERM, -VS- CASE NO: 1999-3487 RE/MAR. ET AL As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of JEFFERSON J. SHIPMAN, ESQUIRE defendant certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to the certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 04124/2000 JEFFERSON J. SHIPMAN, ESQUIRE Attorney for DEFENDANT DE11-175470 2-503:]L-3L.02- COMNM(ONWEALTH 0V PENNSYLVANIA COUNTY OF CUMBER LAND IN THE NATTER OF: COURT OF COMMON PLEAS EISNER -YS- RE/MAX, ET AL TERM, CASE NO: 1999-3487 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS DUNCANNON FAMILY HEALTH CTR. MEDICAL HOLY SPIRIT HOSPITAL MEDICAL TO: DOUGLAS B. MARCELLO, ESQUIRE LARRY MILLER, ESQUIRE MCS on behalf of JEFFERSON J. SHIPMAN. ESQUIRE intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure 4009.24. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 04/0312000 CC: JEFFERSON J. SHIPMAN. ESQUIRE - 22740-916 Any questions regarding this matter, contact MCS on behalf of JEFFERSON J. SHIPMAN, ESQUIRE Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET 1800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-118234 2-5033--C;02- COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND KISNER VS File No. 1999-3487 RE/MAX, ET AL SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CUSTODIAN OF RECORDS FOR: HOLY SPIRIT HOSPITAL (Name of Person or Entity) Within twenty (20) days after service of this sub things: are ordered by the court to produce the following documents or CHED at MCS GROUP INC. 1601 MARKET STREET SUITE 800 PHILADELPHIA PA 19103 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: JEFFERSON J. SHIPMAN, ESOUIRE ADDRESS: 320 MARKET STREET, P.O. BOX 1268 HARRISBURG PA 17108 TELEPHONE: (215) 246-0900 SUPREME COURT ID S: ATTORNEY FOR: THE DEFENDANT BYTH OU T:- ` ,? Jf/ -n r DATE ?_? 2n - ?(L n 7T-1 P othonotary/Cler Civil D v,ion De uty Sea) of the Court ,nr. I ,nT EXPLANATION OF REQUIRED TO: CUSTODIAN OF RECORDS FOR: HOLY SPIRIT HOSPITAL 503 N. 21ST STREET CAMP HILL, PA 17011 RE: 25031 JOHN KISNER SR. INCLUDING X-RAY REPORT'S, DOCTOR'S REPORTS/RECORDS, PHYSICAL THERAPY REPORTS/RECORDS, NURSE'S NOTES, ETC. FROM THE INITIAL OFFICE VISIT TO THE PRESENT. Any and all records, correspondence, files and memorandums, handwritten notes, relating to any examination, consultation care or treatment. Data Requested: up to and including the present. Subject : JOHN KISNER SR. 200 RAILROAD STREET, DUNCANNON, PA 17055 Social Security A 195-32-0967 Date of Birth: 11-10.1943 SU10-241834 25031-L.02 -_. _- ?; LAW OrrIUE3 GOLDBERO, KATZMAN & SHIPMAN, P.C. 020 MARKET NTRRET STRAWBERRY SQUARE P. O. ROx IRSS HARRISBURG. PENNSYLVANIA 17103-1208 GOLDBERG, KATZMAN & SHIPMAN, P.c. Jefferson J. Shipman, Esquire I.D. No. 51785 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendants, Re/Max Realty Associates, Inc. and David Smolizer JOHN KISNER, SR. and : IN THE COURT OF COMMON PLEAS OF PATSY KISNER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO.: 1999-3487 RE/MAX REALTY ASSOCIATES, : CIVIL ACTION - LAW INC., DAVID SMOLIZER, CARRIE M. METGZER Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD To: Plaintiffs and their counsel and Defendant Carrie M. Metgzer and her counsel: Larry L. Miller, Esquire Douglas B. Marcello, Esquire Miller & Miller Thomas, Thomas & Hafer, LLP 1423 State Road P.O. Box 999 Duncannon, PA 17020 Harrisburg, PA 17108 Attorneys for Plaintiffs Attorneys for Metgzer You are hereby notified to plead to the within New Matter and cross-Claim of answering Defendant within twenty (20) days of receipt hereof. GO RG, KATZMAN & SHIPMAN, P.C. Jef f r on J. Shipman , Esquire Attorney I.D. 51785 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendants. Re/Max Realty Associates and David Smolizer DATE : s I I ZfJ00 GOLDBERG, KATZMAN 6 SHIPMAN, P.C. Jefferson J. Shipman, Esquire I.D. No. 51785 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendants, Re/Max Realty Associates, Inc. and David Smolizer JOHN KISNER, SR. and : IN THE COURT OF COMMON PLEAS OF PATSY KISNER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO.: 1999-3487 RE/MAX REALTY ASSOCIATES, ; CIVIL ACTION - LAW INC., DAVID SMOLIZER, CARRIE M. METGZER Defendants JURY TRIAL DEMANDED ANSWER, NEW MATTER AND CROSS-CLAIM OF RE/MAX REALTY ASSOCIATES. INC. AND DAVID SMOLIZER TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, come the Defendants, Re/Max Realty Associates, Inc., and David Smolizer, by and through their counsel, Goldberg, Katzman & Shipman, P.C., and file the following Answer, New Matter and Cross-Claim to Plaintiffs' Amended Complaint: 1. Admitted. 2. Admitted in part, denied in part. It is admitted only that Re/Max Realty Associates, Inc., regularly conducts business at 3425 Market Street, Camp Hill, Pennsylvania. The remaining averments of paragraph 2 are denied. 3. Admitted upon information and belief. 9. Admitted upon information and belief. 5. Admitted upon information and belief. 6. Admitted upon information and belief. 7. Admitted in part, denied in part. It is admitted that the Plaintiff, Mr. Kisner, regularly visited the property. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as the truth of the remaining averments of paragraph number 7 and the same are therefore denied and proof demanded at the time of trial. 8. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as the truth of the averments contained in paragraph number 8 and the same are therefore denied and strict proof demanded at the time of trial. 9. Denied. The averments contained in paragraph number 9 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 10. Denied. The averments contained in paragraph number 10 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 11. Denied. The averments contained in paragraph number 11 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 12. Denied. The averments contained in paragraph number 12 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 13. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as the truth of the remaining averments of paragraph number 13 and the same are therefore denied and strict proof demanded at the time of trial. 14. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as the truth of the remaining averments of paragraph number 14 and the same are therefore denied and strict proof demanded at the time of trial. 15. Denied. After reasonable investigation the answering Defendant are without sufficient knowledge or information to form a belief as to the truth of the averments con6ained in Paragraph 15 and the same are therefore denied and strict proof demanded at the time of trial. 16. Denied. The averments contained in paragraph number 16 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 17. Denied. The averments contained in paragraph number 17 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 18. Denied. The averments contained in paragraph number 18 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 19. Denied. The averments contained in paragraph number 19 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 20. Denied. The averments contained in paragraph number 20 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 21. Denied. The averments contained in paragraph number 21 are in part conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 22. Denied. The averments contained in paragraph number 22 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 23. Denied. The averments contained in paragraph number 23 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 24. Denied. The averments contained in paragraph number 24 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 25. Denied. The averments contained in paragraph number 25 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 26. Denied. The averments contained in paragraph number 26 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 27. Denied. The averments contained in paragraph number 27 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 28. Denied. The averments contained in paragraph number 28 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 29. Denied. The averments contained in paragraph number 29 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 30. Denied. The averments contained in paragraph number 30 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 31. Denied. The averments contained in paragraph number 31 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 32. Denied. The averments contained in paragraph number 32 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 33. Denied. The averments contained in paragraph number 33 are conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 34. Denied. After reasonable investigation, the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 34 and the same are therefore denied and strict proof demanded at the time of trial. 35. Denied. After reasonable investigation, the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 35 and the same are therefore denied and strict proof demanded at the time of trial. 36. Denied. The averments contained in paragraph 36 are conclusions of law and fact to which no response is required. By way of further response, the Plaintiffs have stipulated to the removal of the language wanton and malicious from Paragraph 36 by agreement of counsel. WHEREFORE, the answering Defendants, Re/Max Realty Associates, Inc. and David Smolizer, respectfully request that judgment be entered in their favor and the Plaintiffs' Complaint be dismissed with prejudice. 7 COUNT II Patsy Kisner v. Re/Max Realty Associates, Inc., David Smolizgr and Carrie M. Metazer 37. The answering Defendants incorporate herein by reference their answers to paragraphs 1-36 above as though fully set forth herein at length. 38. Denied. The averments contained in paragraph 38 are in part conclusions of law and fact to which no response is required. If a response is deemed to be required the averments contained therein are specifically denied. 39. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments of paragraph 39 and the same are therefore denied and strict proof demanded Denied. 40. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments of paragraph 40 and the same are therefore denied and strict proof demanded at the time of trial. 41. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to 8 form a belief as to the truth of the averments of paragraph 41 and the same are therefore denied and strict proof demanded at the time of trial. 42. Denied. After reasonable investigation the answering Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments of paragraph 42 and the same are therefore denied and strict proof demanded at the time of trial. WHEREFORE, the answering Defendants, Re/Max Realty Associates, Inc. and David Smolizer, respectfully request that judgment be entered in their favor and that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER By way of additional answer and reply the Defendants interpose the following New Matter defenses: 43. That the Plaintiffs' claims are barred and/or limited by the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. §7102 et. seq. and by the Doctrine of Comparative Negligence. 9 44. That the Plaintiff John Kisner failed to exercise reasonable care for his own safety under the circumstances then and there existing. 45. That the Plaintiff, John Kisner, was comparatively negligent and failed to exercise reasonable care for his own safety in the following: a. walking and stepping inattentively without first ascertaining whether it was safe to do so; b. knowingly and voluntarily encountering an obvious danger; C. failing to take an alternative route; d. failing to watch where he was walking and stepping; and e. walking and stepping in a hurried or otherwise inappropriate manner. 46. That the Plaintiff's failure to exercise reasonable care for his own safety was a substantial factor in the happening of the accident. 47. That the Plaintiff's injuries and damages, if any, were not caused by any act, omission or breach of duty by answering Defendants. 48. That the Plaintiffs have failed to state a cause of action against the answering Defendants. 10 49. That if a dangerous condition existed at the time of the Plaintiffs' accident, which is denied, then the answering Defendants aver that they did not have actual or constructive notice of any allegedly dangerous condition prior to the accident. 50. That the answering Defendants owed no duty of care to the Plaintiffs. 51. That if it should be found that there was any negligence on the part of the answering Defendants, which is expressly denied, any such negligence was not a proximate cause of any damages to the Plaintiff. 52. That the Plaintiff knowingly and voluntarily assumed the risk of his injuries under the circumstances then and there existing by identifying a dangerous condition, appreciating its dangerous character and voluntarily proceeding to encounter that condition. 53. That the Plaintiff's accident and any injuries sustained by him may have been caused in whole or in part by the negligence of third persons not presently involved in this action. 54. That the Plaintiff's accident and any injuries sustained by him may have been caused by an intervening, superceding cause. 11 WHEREFORE, the Defendants, Re/Max Realty Associates, Inc., and David Smolizer, respectfully request that judgment be entered in their favor and that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER IN THE NATURE OF A CROSS-CLAIM PURSUANT TO PA R C P 2252(d) 55. That if it is determined that Plaintiffs are entitled to recover any or all of the damages sought in their Complaint, which right as to the answering Defendants, Re/Max Realty Associates, Inc., and David Smolizer, is specifically denied, then in that event, liability rests solely with Defendant, Carrie M. Metgzer, based on the allegations set forth in the Plaintiffs' Complaint. 56. That if it is determined that the Plaintiffs are entitled to recover any or all of the damages sought in their Complaint, which right as to Re/Max Realty Associates, Inc., and David Smolizer, is specifically denied, then in that event, Defendant, Carrie M. Metgzer, is jointly and/or severally liable with Re/Max Realty Associates, Inc., and David Smolizer, or 12 liable over to Re/Max Realty Associates, Inc., and David Smolizer, for contribution or indemnity. WHEREFORE, the answering Defendants, Re/Max Realty Associates, Inc., and David Smolizer, demand judgment against Defendant, Carrie M. Metgzer, for all sums which may be adjudged against them in favor of Plaintiffs or in the alternative, demand judgment against Carrie M. Metgzer for contribution and/or indemnity. GOLDBERG, KATZMAN & SHIPMAN, P.C. Je erson J. Shipman Esquire AA 677-1 32 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Defendants, ReMax and Smolizer 13 YEurmrrnmrnnT I, kAbUl.)tit CP1i Il , hereby acknowledge that Re/Max Realty Associates, Inc., is a Defendant in this action and that I am authorized to make this verification on its behalf; that I have read the foregoing document, that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Re/Max Realty Associates, Inc. BY ,1?61s-?J. L?/?•.Z?r6?s DATE: 43348.1 VERIFICATION I, David Smolizer, hereby acknowledge that I am a Defendant in this action and that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. 0 19 - David Smolizer Ir9l Date:?????d' CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with postage prepaid, first-class delivery and addressed as follows, on May 1, 2000: Larry L. Miller, Esquire Miller & Miller 1923 State Road Duncannon, PA 17020 Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 GOLDBERG, KATZMAN & SHIPMAN, P.C. Je 444,ttfSehipman, squire 32 Market reet P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Defendants, Re/Max and Smolizer LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 MARLA K. MILLER, ESQUIRE Pa. Supreme Court I.D. 47433 1423 State Road Duncannon, PA 17020 Attorneys for Plaintiff Telephone: 717.957.2828 JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Case No. 1999-3487 CIVIL TERM V. RE/MAX REALTY ASSOCIATES, INC.: DAVID SMOLIZER CARRIE M. METGZER Defendants PLAINTIFFS' ANSWER TC TTER OF CARRTF M METGGER John Kisner, Sr. and Patsy Kisner ("Plaintiffs"), hereby answer the New Matter of Carrie M. Metzger ("Ms. Metzger") as follows: 43. The averments of paragraphs 1 through 42 of Plaintiffs' Amended Complaint are incorporated herein and made a part hereof as though set forth at length. 44. Denied. The averments set forth in paragraph 44 of Ms. Metzger's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. 45. Denied. The averments set forth in Paragraph 45 set forth a conclusion of law for which no response is required. By way of further response, Ms. Metzger invited John Kisner to her home. 46. Denied. The averments set forth in paragraph 46 of Ms. Metzger's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. 47. Denied. The averments set forth in paragraph 47 of Ms. Metzger's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. By way of further response, Mr. Kisner visited Ms. Metzger's home on many occasions, but never before was there any indication that there was a trap door on the floor. Furthermore, Mr. Kisner was not aware that the cellar trap door had willfully and recklessly been left open by the Defendants 48. Denied. The averments set forth in Paragraph 48 set forth a conclusion of law for which no response is required. WHEREFORE, John Kisner, Sr. and Patsy Kisner respectfully demand that judgment be entered against the Defendants. DATE: May 9, 2000 By: MAR?,A MILLER I, MARLA K. MILLER, have prepared the foregoing PLAINTIFFS' ANSWER TO NEW THE MATTER OF CARRIE METZGER. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, JOHN KISNER The facts set forth in the pleading are based upon my review of the documents and information furnished by John Kisner. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. sl,?- Date: May 9, 2000 By: WdUk-. MILLER I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER TO NEW MATTER upon counsel of record this 9T" day of May, 2000 by placing the same in the United States Mail, CERTIFIED mail, postage prepaid, addressed as follows: Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 Jefferson J. Shipman, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 po G •`i 111 ?- - li" LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 MARLA K. MILLER, ESQUIRE Pa. Supreme Court Z.D. 47433 1423 State Road Duncannon, PA 17020 Telephone: 717.957.2828 Attorneys for Plaintiff JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Case No. 1999-3487 CIVIL TERM V. RE/MAX REALTY ASSOCIATES, INC.: DAVID SMOLIZER CARRIE M. METGZER Defendants PLAINTIFFS' ANSWER TO THE NEW MATTER OF DEFENDANTS, RE/MAX REALTY ASSOCIATES, INC. AND DAVID SMOLIZER John Kisner, Sr. and Patsy Kisner ("Plaintiffs"), hereby answer the New Matter of Re/Max Realty Associates, Inc. and David Smolizer (referred to collectively as "Re/Max") as follows: 43. Denied. The averments set forth in Paragraph 43 of Re/Max's New Matter set forth a conclusion of law to which no response is required. 44. Denied. The averments set forth in Paragraph 44 of Re/Max 's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. 45. Denied. The averments set forth in Paragraph 45 of Re/Max's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. By way of further response, John Kisner visited Carrie Metzger's home on many occasions, but never before was there any indication that there was a trap door in the floor. Furthermore, John Kisner was not aware that the cellar trap door had willfully and recklessly been left open by the Defendants. 46. Denied. The averments set forth in Paragraph 46 of Re/Max's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. 47. Denied. The averments set forth in Paragraph 47 of Re/Max's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. By way of further response, Re/Max willfully and recklessly left the cellar trap door open. 48. Denied. The averments set forth in Paragraph 48 of Re/Max's New Matter set forth a conclusion of law to which no response is required. 49. Denied. The averments set forth in Paragraph 49 of Re/Max's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. By way of further response, Re/Max willfully and recklessly left the cellar trap door open. 50. Denied. The averments set forth in Paragraph 50 of Re/Max •s New Matter set forth a conclusion of law to which no response is required. 51. Denied. The averments set forth in Paragraph 51 of Re/Max 's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. By way of further response, Re/Max willfully and recklessly left the cellar trap door open. 52. Denied. The averments set forth in Paragraph 52 of Re/Max's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. By way of further response, John Kisner visited Carrie Metzger's home on many occasions, but never before was there any indication that there was a trap door in the floor. Furthermore, John Kisner was not aware that the cellar trap door had willfully and recklessly been left open by the Defendants. 53. Denied. The averments set forth in Paragraph 53 of Re/Max's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. 54. Denied. The averments set forth in Paragraph 54 of Re/Max's New Matter are specifically denied and proof thereof is demanded at the time of trial, if relevant. WHEREFORE, John Kisner, Sr. and Patsy Kisner respectfully demand that judgment be entered against the Defendants. ?f- DATE: May 15, 2000 By: MARLA K LER I, MARIA K. MILLER, have prepared the foregoing PLAINTIFFS' ANSWER TO NEW THE MATTER OF RE/MAX REALTY ASSOCIATES, INC. AND DAVID SMOLIZER. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my client, JOHN KISNER The facts set forth in the pleading are based upon my review of the documents and information furnished by John Kisner. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. By; ? 11 "- Date: May 15, 2000 MARLI? TILLER ¦ I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER TO NEW MATTER upon counsel of record this 15V day of May, 2000 by placing the same in the United States Mail, CERTIFIED mail, postage prepaid, addressed as follows: Jefferson J. Shipman, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market street strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 ±- n i r ?. ; ?- u??-` c .?: r,_ _ -? ?:.: ' ?'<_ ; W?- - -r ;1iL ?"' it. U. CJ p ?) o U -. f JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED 41-54. The averments of said paragraphs are directed to a party other than Answering Defendant; hence, no responsive pleading is required. In the alternative, the averments statea conclusion of law to which no responsive pleading is required. In the further alternative, any and all allegations of said paragraphs are denied and proof is demanded at the time of trial. 55. Denied. The averments in Paragraph 55 are denied and proof is demanded at the time of trial. Any and all allegations of liability of Defendant Carrie Metzger are specifically denied. Answering Defendant incorporates its Answer and New Matter to Plaintiffs' Complaint as if set forth in full. 56. Denied. It is denied that Defendant Came M. Metzger is jointly or severally liable with Re/Max Realty Associates and for David Smolizer or liable over to Re/Max Realty Associates or David Smolizer for contribution or indemnity. Any and all allegations of liability of Carrie M. Metzger are denied and proof is demanded at the time of trial. Any and all other averments of said paragraph are denied. Answering Defendant incorporates her Answer and New Matter as if set forth in full. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Douglas Mari o, Esquire 305 N r Front Street P. O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 Attorney for Defendant Carrie Metzger 2 VERIFICATION 1, Carrie M. Metzger, do hereby swear and affirm that the facts and matters set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are made subject to the penalties of Pa. C.S. §4904 relating to unworn falsification to authorities. Date: {. n ?-M '-)T10Ln942 Came M. Metzger / Q :72412.1 CERTIFICATE OF SERVICE I, Kathy L. Sider, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that the foregoing document in within action was served upon the following persons via United States Mail, first class, postage prepaid, as follows: Larry L. Miller, Esquire Post Office Box 40 Duncannon, PA 17020 Jefferson J. Shipman, Esquire GOLDBERG, KATZMAN & SHIPMAN P. O. Box 1268 Harrisburg, PA 17108 KATHY L. TLER Date: F )(j El: 7-7 V. Q C. CJ i) 1 JOHN KISNER, SR., and PATSY KISNER, Plaintiff V RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-3487 CIVIL TERM JURY TRIAL DEMANDED IN RE: DEFENDANT'S MOTION TO COMPEL ORDER OF COURT AND NOW, this 26th day of October, 2001, action hereon is deferred, in keeping with the agreement as announced in open court this date. By the Court, Larry L. Miller, Esquire For the Plaintiffs John R. Ninosky, Esquire Douglas Marcello, Esquire For the Defendants ?/ IL Kev' A. Hess, J, M '- g6p-'t?p :bg .., C . C"T "'1 l : 13 jnlY LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 28122 MARLA K. MILLER, ESQUIRE Pa. Supreme Court I.D. 47433 1423 State Road Duncannon, PA 17020 Telephone: 717.957.2828 Attorney for Plaintiffs JOHN KISNER, SR. and IN THE COURT OF COMMON PLEAS PATSY KISNER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Case No. 1999-3487 CIVIL TERM V. RE/MAX REALTY ASSOCIATES, INC.: DAVID SMOLIZER CARRIE M. METGZER Defendants ANSWER OF PLAINTIFFS TO DEFENDANT METZGER'S MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR SANCTIONS Plaintiffs, John Kisner, Sr. and Patsy Kisner, by and through their counsel, hereby respond to Ms. Metzger's Motion to Compel as follows: 1. Denied. The averments set forth in paragraph 1 are false and accordingly, are specifically denied. On the contrary, Ms. Metzger's counsel arbitrarily scheduled the depositions on a date that Plaintiffs' counsel was unavailable. Furthermore, Plaintiffs' counsel requested dates later in the month when all parties could be available and Ms. Metzger's counsel refused to respond by suggesting available dates. && Exhibit "A" hereto. 2. Denied. Because Plaintiffs offered to appear for depositions at a convenient date, Ms. Metzger's Motion is obviously inappropriate and unnecessary. 3. Admitted. By way of further response, Mr. Kisner, a business invitee, fell through a trap door into Ms. Metzger's basement which caused him substantial injuries including, without limitation, a fractured rib, and as a direct consequence, he could not work for many weeks. 4. Denied as stated. Plaintiffs incorporate the averments set forth above. 5. Denied. Plaintiffs offered to arrange for the scheduling of the depositions in late Ontober and Ms. Metzger's counsel refused to cooperate. A true and correct copy of the letter from Plaintiffs' counsel to Mr. Marcello is attached hereto as Exhibit "A" and it is incorporated herein by reference. 6.-7. Admitted. By way of further response, Ms. Metzger's counsel's letters on July 23, 2001 and July 26, 2001 do not allow sufficient time for Plaintiffs' counsel to respond. By way of further response, Mr. Kisner is a long distance, independent truck driver and is unavailable for lengthy periods of time. 8. Admitted. 9. Denied. By way of further response, Plaintiffs' counsel advised Ms. Metzger's counsel on September 28, 2001 that new dates would have to be obtained. A true and correct copy of the letter dated September 28, 2001 is attached hereto as Exhibit "A." 10. Admitted. By way of further response, Plaintiffs' counsel had been scheduled for a hearing in the Eastern District of Pennsylvania, Bankruptcy Court in a matter captioned In Re: Dennis J. Shortall, Bankruptcy No. 01-19369, before Judge Diane Weiss Sigmund, since August 23, 2001. See Exhibit "B" hereto. 11. Denied as stated. By way of further response, counsel for Plaintiffs was unavailable on the date that was arbitrarily selected by Ms. Metzger's counsel. 12. Denied as stated. By way of further response, counsel for Plaintiffs was scheduled before Judge Diane Weiss Sigmund in Philadelphia on the date Ms. Metzger's counsel arbitrarily selected for depositions. Moreover, Ms. Metzger's counsel was adequately informed of this. 13. Admitted. By way of further response, Plaintiffs' counsel had a hearing in Philadelphia on October 4, 2001. See Exhibit "C" hereto. 14. Denied. On the contrary, Ms. Metzger's counsel is the one who failed to provide dates for depositions when Plaintiffs and their counsel could be available. 15. Denied. Plaintiffs incorporate their above answers. 16. Denied. Plaintiffs incorporate their above answers. 17. Admitted. 18. Admitted. By way of further response, it is inappropriate to schedule depositions when an adversary's counsel cannot be available. See Exhibits "A," "B," and "C" hereto. IIIII 19. Plaintiffs incorporate their above averments. 20. Denied. The averments set forth in paragraph 20 are false and accordingly, are specifically denied. WHEREFORE, Plaintiffs request that Ms. Metzger be directed to cooperate in the scheduling of depositions when Plaintiffs and their counsel can both be available. DATE: October 25, 2001 By: LA Y L ILLER MILLER LAW OFFICES, P.C. Durmww, PA 77020 717 9672826 For 7179874843 EMAIL pm 40aft September 28, 2001 Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Re: Visner v. Re/Mar Realty Associates Inc. No. 99-3487 Our File: 42877 Dear Doug: 60 CMWwit RWP Rood CabnW surety Comm Mortals. NJ 07846 201 476 9089 Fa 201573 IM The October 4, 2001 date is not good for me. If you give me some dates later in the month, I will try to promptly clear them with Mr. and Mrs. Kisner. Also, the Kisners are interested in trying to settle this matter. Please advise if there is a reasonable way to dispose of this litigation at this time. Thank you. S' rely, Larry LIler EXHIBIT ,/i r IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: CHAPTER 13 DENNIS J. SHORTALL, SR. Docket: 01-19369 (DWS) Debtor Apex Lumber Mart, Inc. ("Apex") has filed a Motion to Dismiss Petition of Debtor requesting dismissal of Debtor's Petition for violation of Section 109(g). Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. (If you do not have an attorney, you may wish to consult an attorney.) 1. If you do not want the Court to grant the relief sought in the Motion or if you want the Court to consider your views on the Motion, then on or before September 4, 2001 you or your attorney must do all of the following: (a) file an answer explaining your position at: Clerk's Office, U.S. Bankruptcy Court Eastern District of Pennsylvania 900 Market Street Philadelphia, PA 19107-4298 EXHIBIT f3 If you mail your answer to the Bankruptcy Clerk's office for filing, you must mail it early enough so that it will be received on or before the date stated above; and (b) mail a copy to the movant's attorney: Larry L. Miller, Esquire Miller Law offices, P.C. 1423 State Road Duncannon, PA 17020 Phone: (717) 957-2828 Fax: (717) 957-4843 2. If you or your attorney do not take the steps described in paragraphs 1(a) and 1(b) above and attend the hearing, the Court may enter an order granting the relief requested in the Motion. 3. A hearing on the Motion is scheduled to be held before the Honorable Diane Weiss Sigmund on October 4, 2001 at 9:30 a.m. in Courtroom 3 of the United States Bankruptcy Court, Eastern District of Pennsylvania, 900 Market Street, Philadelphia, PA. 4. If a copy of the Motion is not enclosed, a copy of the Motion will be provided to you if you request a copy from the attorney named in paragraph 1(b). 5. You may contact the Bankruptcy Clerk's office at 215.408.2803 to find out whether the hearing has been canceled because no one filed an answer. DATE: August 23, 2001 By: / LARRY L. MILLER MILLER LAW OFFICES, P.C. 1423 state Rood Duncannon, PA 17020 7170672828 Fox 717 9674643 EMAIL KMQa cnd October 3, 2001 YIA FAX &MAIL Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Re: Kisner v, R(,-M-m Realty Associates No. 99-3487 Our File: #2877 Dear Doug: cdw,w 201 476 9069 Fox 201 6731062 As you know, I am handling this matter pro bono for Mr. and Mrs. Kisner because of their financial situation that was caused, in substantial part, by your client's activities. Because I am not billing them, it serves little benefit for you to jerk me around. I have shearing at 9:30 a.m. in the Bankruptcy Court for theEastern District injaAL Dennis J. Shortall. Jr., Bankruptcy No. 01-19369 (DWS), that has been scheduled since mid-August. The Court's Clerk just called and advised that I must appear. Therefore, I continue to request that depositions be held on a date that I can be available. Sincerely, Larry L Iler cc: Jefferson Shipman, Esquire EXHIBIT L VERIFICATION I, LARRY L. MILLER, have prepared the foregoing ANSWER OF PLAINTIFFS TO DEFENDANT METZGER'S MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR SANCTIONS. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I an authorized to make this Verification on behalf of my clients, John Kisner, Sr. and Patsy Kisner. Because of Defendant's untimely service of the Court's Order, Verifications of Mr. and Mrs. Kisner could not be obtained. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: October 25, 2001 By: LARRY L. MILLER CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER upon counsel of record this 25th day of October, 2001 by placing the same in the United States Mail, postage prepaid, addressed as follows: Douglas B. Marcello, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Jefferson J. Shipman, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 _, :- - - ,,: ,: ?, ,. - 6 ?. , - ?- ,;; .: , JOHN KISNER, SR., and PATSY KISNER, Plaintiffs V. RE/MAX REALTY ASSOCIATES, INC., DAVID SMOLIZER, JOANNE METZGER and CARRIE M. METZGER, Defendants TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3487 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED Please mark the above-captioned matter settled, satisfied and discontinued. Respectfully submitted, 7 ? By: ,v L L. iller, Esquire 1423 State Road Duncannon, PA 17020 Date: (C L :152159.1 _7 c> CO i.1 ?ju c