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HomeMy WebLinkAbout99-03864 'I a 4 h N L W .oo David A. Szewczak, Esq. Prothonotary Patricia A. Whittaker Chief Clerk Superior Aknsylvania Middle District Fulton Building, 200 N. Third Street, 9th Floor Harrisburg, PA 17101 April 30, 2001 717.772.1294 iv w.supericr.court.state.pa.us Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: THERES, M., A MINOR, BY THERES J. v. EMBERS INN, I No. 1113 MDA 2000 Trial Court/Agency Dkt. Number: 99-3864 CIVIL TERM Trial Court/Agency Name: Cumberland County Court of Common Pleas Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description PART September 12, 200 1 Date of Remand of Record: MAY P 1 9nn1 Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning the enclosed copy to the Prothonotary Office or the Chief Clerk's office. a. / xi, 4- 4-, Patricia A. Whittaker c, Chief Clerk k 11" Signatu e. Gtr a(/ii2 Printed Name r. -n n Enclosure 3. S07016/01 M.T., A MINOR, BY JUDY THERES, AS GUARDIAN, AND IN HER OWN RIGHT, Appellants V. EMBERS INN, INC., Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1113 MDA 2000 Appeal from the Order entered April 27, 2000, In the Court of Common Pleas of Cumberland County, Civil Division at No. 99-3864 Civil Term BEFORE: FORD ELLIOTT, JOYCE, and CERCONE, P.J.E. MEMORANDUM: FILED MAR 132001 M.T.1 (minor Appellant) and Judy Theres (Mother Appellant) appeal from the order sustaining Appellee's preliminary objections in the nature of a demurrer and dismissing Appellants' amended complaint with prejudice. For the following reasons, we affirm. The trial court accurately recounted the relevant facts and procedural history of this case as follows. The minor [Appellant] attended a birthday party for a friend. The party consisted of four (4) children of mixed gender and ranging in ages from 12 to 14 years. The party was to include a sleepover. Minor [Appellant's] mother was told that the sleepover would be at the friend's residence. However, the sleepover was actually held in a room at the motel owned and operated by [Appellee]. The friend's father registered for the room at the [Appellee] motel. He provided the room key to the children and returned home, leaving the children attended 1 The minor Appellant's name has been changed to initials to protect her identity. See Matter of C.A.E., 516 Pa. 419, 420 n.1, 532 A.2d 802, 803 n.1 (1987). J. S07016/00 only by the seventeen (17) year old step sister of the birthday celebrant. During the course of the day, and well into the night, the children used the pool and other common facilities at the [Appellee] motel. (Appellee's] employees had numerous opportunities to see the children using its facilities without adult supervision. Employees of the [Appellee] were in the room on at least two occasions after midnight to deliver additional bedding. The appearance of the room made it clear that a party was in progress. The employees did nothing to confirm that the children were being supervised by an adult. The partygoers, as well as the 17 year old step sister, eventually went to sleep. Minor [Appellant] fell asleep in a bed with two party guests, at least one of which was a male. During the course of the night one of the minor [Appellant's] bedmates woke her up and had sexual intercourse with her. Minor [Appellant] neither consented nor desired to engage in sexual intercourse which resulted in the loss of her virginity. Trial Court Opinion, 8/25/2000, at 1-2. On November 16, 1999, Appellants filed a complaint against Appellee, alleging negligence and seeking compensatory damages. On December 6, 1999, Appellee filed preliminary objections to Appellants' complaint. Thereafter, Appellants sought leave from the trial court to file an amended complaint. By order dated January 12, 2000, the trial court granted the request, thereby rendering Appellee's preliminary objections moot. On January 31, 2000, Appellants filed a first amended complaint. On February 22, 2000, Appellee filed preliminary objections in the nature of a demurrer to the first amended complaint. By order dated April 28, 1999, the trial -2- 3. S07016/00 court sustained the preliminary objections and dismissed the complaint with prejudice. Appellants then timely appealed. The trial court ordered Appellants to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellants then filed. The matter is now before this Court. The sole issue presented on appeal is whether the trial court erred in applying the standard for demurrer when granting Appellee's preliminary objections and dismissing Appellants' complaint with prejudice in connection with Appellants' claims for recovery of personal injuries when Appellants have stated a cause of action for which relief can be granted. Where a preliminary objection in the nature of a demurrer is sustained, an appellate court's review is limited. All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Moser v. Heistand, 545 Pa. 554, 559, 681 A.2d 1322, 1325 (1996) (citation omitted). We need not accept a party's allegations as true to the extent they constitute conclusions of law. Scarpitti v. Weborg, 530 Pa. 366, 368, 609 A.2d 147, 148 (1992). We will examine the trial court's decision and Appellants' argument with these principles in mind. In this case, we have thoroughly reviewed the record and studied the parties' briefs. We conclude that the August 24, 2000 opinion of the trial -3- 1507016/00 court carefully and correctly responds to the issue Appellants have raised. Accordingly, we hereby adopt that opinion and affirm its basis. See Trial Court Opinion, 8/25/00. Order affirmed. -4- ?- Vl A Cl CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on de the transcript of the proceedings, if any, and the docket entries in the following matt0 FILED IN SUPERIOR OOURr MEGAN TNERES, a minor, by JUDY TNERES, as Guardian -Va- EMBERS TNN. INC. 99-3864 CIVIL TERM 1113 MDA 2000 SEP 1 2 20005,( HARRISBURG ' 1`Pp Y? The documents comprising the record have been numbered from No. 1 to 78 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 9-6-00 . ___-- Cj s R. Long, Pr ho odt d tary Jane Ii. Sparling, Dpty. tI An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Received In Superior Court Date SEP - 7 2000 MIDDLE Signature & Title /h CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: MEGAN THERES, a minor, by JUDY THERES, as Guardian -vs- EMBERS fNN. INC. 99-3864 CIVIL TERM 1113 MDA 2000 The documents comprising the record have been numbered from No. 1 to 78 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 9-6-00 . A C #s R. Long, Pr hog otary Jane H. Sparling, Dpty. An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Received In Superior Court Date SEP - 7 2000 Signature & Title MIDDLE • 0 Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND i1 3g ??yy in the Commonwealth of Pennsylvania to No. 99138VDDACI000 Term, 19 is contained the following: COPY OF COMPLETE APPEARANCE DOCKET ENTRY MEGAN THERES, a minor, by JUDY THERES, as Guardian -vs- EMBERS INN, INC. SEE ATTACHED CERTIFIED DOCKET ENTRIES. • t'1 Commonwealth of Pennsylvania County of Cumberland ss: • i? Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Megan Theres, a minor, by Judy Theres, as Guardian Plaintiff, and m ers nn, nc. Defendant , as the same remains of record before the said Court at No. 99-'A864 of Civil Term. A.D.19-. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 5th day of September o q D X00 r u oc ?( tt' ?ytt,?i?nhonotarv George E. Hoffer President Judge of the Ninth f Judicial District, composed of the County of Cumberland. do certify that Curtis R. The by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qutlified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of lag and made b th r er f ' er. resident .IudEe Commonwealth of Pennsylvania County of Cumberland ss: 1, Curtis R. Long . Prothonotary of the Court of Common Pleas in and for the said County, do certifv that the Honorable George E. Hoffer, P.J. by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 5th day n SeotemberA.D,a?00 IL t l -??c? ?? y?dL / 7 ' Pruthonoia (U i P E u` F d z i P E `u F 6 z N 7 L O O V C {ic a f x m - o (J P c A y v ` o ? E u v ?i D ? V w A a r a 6 ?%d ?lw J+. el* . PYS510 Cumberland County Prothonotary's Office Page 1 Civil Case Inquiry 1999 031164 THERES MEGAN ET Al, (vs) EMBERS INN INC Reference No..: Filed........: 6/25/1999 Case 'T'ype.....: WRIT OF SUMMONS Time.........: 10:07 Judgment. ... 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 --------- Case Comments ------------- Higher Crt 1.: 1113 MDA2000 Higher Crt 2.: •?aaa+a++ww+waawwa+++«a«www«a+++«+«aa«++w+aa««a«a+++++a««+«++aw++aa+w+aaw«++++++ General Index Attorney Info TUNRES MEGAN MINOR PLAINTIFF RUSSO PETER J TIIERES JUDY PLAINTIFF RUSSO PETER J EMBERS INN INC DEFENDANT NARVOL TODD B 55 WEST CHURCH AVENUE CARLISLE PA 17013 * Date Entries + FIRST ENTRY 1 7'2 6/25/1999 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- 3 7/01/1999 SHERIFF'S RETURN FILED Litigant.: EMBERS INN INC SERVED : 6/30/99 WRIT OF SUMM Costs....: $29.10 Pd By: PETER RUSSO 07/01/1999 ------------------------------------------------------------------ 4 - 5 10/28/0099 PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFENDANT BY TODD B NARVOL ESQ ------------------------------------------------------------------- 6 - 7 10/28/0099 PRAECIPE FOR RULE TO FILE COMPLAINT BY TODD B NARVOL ESQ ------------------------------------------------------------------- 6 - 7 10/28/0099 RULE TO FILE COMPLAINT BY CURTIS R LONG PROTHONOTARY --------------------- 8 - 17 11/16/1999 COMPLAINT 18 - 26 12/06/1999 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT --------------------------------- - -------------------------------- 27 - 29 12/06/1999 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY TODD B NARVOL ESO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT ------------------------------------------------------------------- 30 - 32 12/21/1999 PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT ------------------------------------------------------------------- 33 1/13/2000 ORDER OF COURT - DATED 1/12/00 - IN RE DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAITNIFF'S COMPLAINT - PLAINTIFF HAS REQUESTED LEAVE TO FILE AN AMENDED COMPLAINT PURSUANT TO PA RULE OF CIVIL PROCEDURE 1033 SAID REQUEST IS GRANTED - THIS ACTIONS RENDERS MOOT THE PRELIMINARY OBJECTIONS FILED BY THE DEFENDANT TO PLAINTIFF'S COMPLAINT - HOWEVER THIS DOES NOT PREJUDICE DEFENDANT'S RIGHT TO FILE PRELIMINARY OBJECTIONS TO THE AMENDED COMPLAINT - BY EDWARD E GUIDO J - COPIES MAILED 1/13/00 -------------------------------- - --------------------------------- 34 - 46 1/31/2000 FIRST AMENDED COMPLAINT ---- - ----- ---- - 47 - 54 2/22/2000 DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFFS;-FIRST-AMENDED--- _ _ _______ COMPLAINT 55 - 56 2/22/2000 PRAECIPF. FOR LISTING CASE FOR ARGUMENT BY TODD BY NARVOL ESQ DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' FIRST AMENDED COMPLAINT -------------------------------------------- - --------------------- 57 4/28/2000 ORDER OF COURT - DATED 4/27/00 - IN RE DEFENDANTS PRELIMINARY OBJECTIONS - GRANTED - THE COMPLAINT IS DISMISSED WITH PREJUDICE BY THE COURT EDWARD E GUIDO J COPIES MAILED 4/28/00 -- - -- - ---------- ----------------------- - ---------------------- 58 - 64 5/25/2000 NOTICE OF APPEAL TO SUPERIOR COURT PETER J RUSSO ESQ PLFF ------------------------------- --------------------------- 65 - 66 6/07/2000 SUPERIOR COURT OF PA NOTICE OF APPEAL, DOCKETING TO k 1113 MDA 2000 ------------- ------------------- --------- 67 6/08/2000 ORDER OF COURT6/8D00ED 6/5/00 - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- 68-70 71 72-- 77 --, 1- PYS510 Cumberland County Prothonota ry's Office Page 2 Civil Case Inquiry 1999-03864 THF.RES MEGAN ET AT, (vs) EMBERS INN INC Reference No.. : Filed........: 6/25/1999 Time....... 10 : 07 ..: 10:07 Caso TUP ...... WRIT OF SUMMONS Execution Date 0/00/0000 ludgmen ......: Jury Trial.... .00 Judge Assigned: GUIDO EDWARD E Disposed Date. 0/00/0000 Disposed Desc.: ------------- Higher Crt 1.: 1113 MDA2000 --------- - Case Comments Higher Crt 2.: 6/19/2000 STATEMENT OF MATTERS PURSUANT TO RULE OF APPELLATE PROCEDURE 1925 B ----------------------------- OF 8/24/2000 WIZ,{RTRANSMITTTHE1IRECORD/TO/ SUPERIORTCOURTA RY BYSTHERCOURT EDWARDTE GUIDO J COPIES MAILED 8/25/00 _ _ ______________________ 8/25/2000 RULEID1925N- BY THE COURT EDWARDOE GUIDORJ CCOPIIESNMAILEDA8r/250/00 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ LAST ENTRY - - - - - - +aaaaaaaaaaa+++a+a++aaaaaaaaaa+aaa+aaaa+aaaa+a+aaaaaaaa++aaaaa+++aaaa+aa+++++aaaa + Escrow Information End Bal + * Fees S Debits Beck Bal Pmts/Ad ++++aaaaaa+++x+++aaaa+++++aa++++ +aaaaaaa aaaaaa aaaa++++a*+xaa++aa+++++aaaa+++a WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 -------- - ----------------------- 75.50 00 +++aaaa+a+aaaa++aaaaa++aaaa+aaa++a+a+a+aaa+++a+aaas++++aaa++aa+aa++aaaaaaa+aa++* + End of Case Information +*++++++aaaa++a+++++++aaa+++++aa++aa+a+aaaa+a+++++a++++++aaa++aa+aaa+++++++++aa 78 8131/00 Plaintiff's and Defendant's Briefs TRUE (;OPY FROM RECORD In Testimony whereof, I here unto set my hand and the s4at ofda o oCou at Carom Pa. fhi • P?rot o otary .. µ PETE J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 61 West Louther Street Carlisle, PA 17013 717-249-2721 Attorney for Plaintiffs MEGAN THERES, a minor, by IN THE COURT OF COMMON PLEAS, JUDY THERES, as GUARDIAN CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION - LAW V. NO.99- ,?P6y CIVIL TERM EMBERS INN, INC. Defendant JURY TRIAL DEMANDED PRAECIPE TO ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons in the above-captioned matter upon the Defendant in this matter: EMBERS INN, INC. 55 West Church Ave. Carlisle, PA 17013 Kindly serve all of Plaintiffs documents on counsel as indicated below: PETER J. RUSSO, ESQUIRE 61 West Louther Street Carlisle, PA 17013 p ully s i 61a 5- R 9 Peter J. Russo Date: r• Il_ C: I:. fil ((-41 v! 1 JN ? A O Q Commonwealth of Pennsylvania County of Cumberland MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN Court of Conunon Pleas VL No. ______-_99.3864 Ci_v_il_7hrm EMBERS INN, INC, f„ _ Civ_il_ Action -Law - ---- ----------------------- 5 WEST CHURCH AVE. CARLISLE, PA 17013 To & hers-- nn,--INc--------------------------- You are hereby notified that .___Megan_ Therns, tninor by_ Judy_ Theres,, as Guardian ---- --------------------------------------- the Plaintiff has commenced an action in ------ CiviL_Bction- =_Late____________________________ against you which you are required to defend or a default judgment may be entered against you. (SEAL) Curtis R. Long °----------------------------------------------- Prothonota?ryy Date ------ UM-25---------------- 19-_49 ?6.L_ _ / _?jCr°22 Gr Deputy t a I Ri 9! 4! U? MI 01i d z h 0 M H U '-I z?a Z U a?WHj tll V .d O a i i C j O O $4 r, wim S h r 7 W W? U ri (N g i { Hr Ca N I ? j V r H d SHERIFF'S RETURN - REGULAR r?1 r CASE NO: 1999-03864 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND THERES MEGAN ET AL VS. EMBERS INN INC DAVID MCKINNEY Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon EMBERS INN INC defendant, at 13:50 HOURS, on the 30th day of June the 1999 at 322 S HANOVER ST CARLISLE, PA 17013 CUMBERLAND County, Pennsylvania, by handing to KURT SUTER 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: Service 18.00 Service 3.10 Affidavit .00 Surcharge 8.00 R.rromas ine, eti== 5?7?-PE RUSSO 07M/1999 // by ' pu ,V 1 Sworn and subscribed to before me this )A,4- day of 19 99 A.D. ,c Pr ono ®r ar j Todd B. Narvol Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 ID#42136 (717)237-7133 r"t Attorneys for Defendant MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN, Plaintiffs V. EMBERS INN, INC., To the Prothonotary: Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of Todd B. Narvol of Thomas, Thomas & Hafer, LLP as counsel for Defendant in the above case. Respectfully submitted, Thomas, Thomas & Hafer, LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 by Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 Date: 161 Z7 /ti y 4 r'1 CERTIFICATE OF SERVICE I do hereby certify that on this day I served a true and correct copy of the foregoing by first class mail, postage prepaid, addressed to the following: Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 Date: 10 (7 7f t l Thomas, Thomas & Hafer, LLP by Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 } Ot C, t W! F- ifJ C; !C. Q "*? , Todd B. Narvol Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 ID#42136 (717)237-7133 ' . Attorneys for Defendant MEGAN THERES, A MINOR BY JUDY THERES, AS GUADIAN, Plaintiffs V. EMBERS INN, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED PRAECIPE AND RULE TO FILE COMPLAINT TO THE PROTHONOTARY/CLERK OF SAID COURT: Please issue rule on Plaintiffs to file a Corn laint in the above case within twenty days after service of the rule or suffer a judgment of non pros. DATE: ?D 21lR? Signature: Todd B. Narvol 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Telephone No.: 717-237-7133 Supreme Court ID No.: 42136 NOW, r Z 1999, RULE ISSUED AS ABOVE. By: CERTIFICATE OF SERVICE I do hereby certify that on this day I served a true and correct copy of the foregoing by first class mail, postage prepaid, addressed to the following: Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 Thomas, Thomas & Hafer, LLP by -qb @A'C?' Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Date: ID (21(11 Harrisburg, PA 17108-0999 F_ . Gl , r=, PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 61 West Louther Street Carlisle, PA 17013 717-249-2721 MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION - LAW V. EMBERS INN, INC. Defendant NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED COMPLAINT AND NOW, COME, the Plaintiffs, by and through their Attorney, Peter J. Russo, Esquire and state the following in support of this Complaint: PARTIES 1. Plaintiff, Megan Theres, is a minor who resides with her mother at 1008 Pheasant Drive North, Carlisle, PA, 17013. 2. Judy Theres is an adult individual and the mother of minor plaintiff, Megan Theres, residing at 1008 Pheasant Drive North, Carlisle, PA. She brings this action as guardian on behalf of minor plaintiff, Megan Theres, and as plaintiff in her own right on a derivative claim arising from her daughter's injuries. V 3. Defendant, Embers Inn, Inc., is a corporation organized and existing under the laws of the state of Pennsylvania with its principal place of business located at 1700 Harrisburg Pike, Carlisle, Pennsylvania 17013, Cumberland County, Pennsylvania. FACTUAL AVERMENTS 4. On or about March 28, 1998, minor plaintiff, Megan Theres, was to attend a birthday "sleep over" party for a friend, Serena Caban, another minor, at the residence of Oscar Caban located at Petersburg Road, Carlisle, Pennsylvania. 5. On or about March 28, 1998, adult plaintiff, Judy Theres, dropped Megan Theres off at Serena Caban's residence. 6. Adult plaintiff arranged to pick up her daughter at that residence the next day in the afternoon. 7. Judy Theres was advised that this overnight birthday party for Serena Caban was to be held at the Caban residence. 8. Unknown to Judy Theres, said overnight birthday party was held at the Embers. 9. In addition to minor plaintiff, four other children, ages between twelve (12) years old to fourteen (14) years old, attended this party at the Embers. (Herein-after "minor guests") 10. On or about March 28, 1998, the above-referenced children were brought to the Embers by a 17 year old step sister of Serena Caban only known as Sherry. 9 2 11. The children checked into an unknown room at the Embers. The room was registered under the name of Oscar Caban, the father of Serena Caban. 12. The above-mentioned children spent the day in an open and conspicuous manner at the Embers' swimming pool. 13. On March 28, 1998, Sharon Caban, Serena Caban's step-mother, briefly stopped by the Embers on one occasion to provide food for the children. 14. Sharon Caban left the Embers after the children were provided with food. 15. The children spent the night at the Embers in the room registered to Oscar Caban. 16.. The room was furnished with only two (2) beds. 17. Serena Caban spent the night in one bed with her step- sister and her step- brother. 18. Megan Theres was directed to and did sleep in a bed with two other minor guests. 19. Later in the evening of March 28, 1998, a group of four (4) children, each approximately 14 years old, of varying ethic backgrounds approached the front desk of the Embers and requested pillows and blankets for their room. 20. An agent, employee or representative of the Embers provided the children with blankets and pillows without asking any questions about the request. 1; io 3 P" 1 ews 21. After receiving the blankets and pillows, the minor plaintiff along with the other minor guests openly and conspicuously gathered at a common area fireplace on the premises. 22. At no time during the gathering at the common area fireplace did any agents, employees or representatives of the Embers question the children about their presence there without adult supervision. 23. The children later returned to the room registered to Oscar Caban. 24. While sleeping during the night, minor plaintiff was awakened by one of the minor guests. 25. Said minor guest, a male, removed minor plaintiffs pants and climbed on top of her. 26. Said minor guest proceeded to engage and to complete the act of vaginal sexual intercourse. 27. Megan Theres had never engaged in or experienced any type of similar sexual conduct prior to this night. 28. Megan Theres did not consent to engage in sexual intercourse with said minor guest. 29. Megan Theres did not desire to engage in sexual intercourse with said minor guest. 4 ell% 30. The sexual intercourse between Megan Theres and said minor guest occurred in the room where no adult was present. 31. The children remained at the Embers throughout the day and overnight without any adult supervision. 32. The following morning, on or about March 29, 1998, the children were returned to Serena Coban's residence. 33. Judy Theres, adult plaintiff, was not made aware of this incident until April, 1998. 34. At all times relevant and material hereto, the business premises of the Embers, including but not limited to the pool area, the lobby area, the rooms, and any other surrounding area were open to and used by guests and invitees, such as the minor plaintiff. 35. At all times relevant and material hereto, and at the time of the incident complained of, the Defendant by and through its agents, employees, officers, and servants were responsible for the following: a. The management, the operation, the maintenance and the control of the referenced premises and surrounding areas; b. The exercise of control over the agents, employees, officers, staff, administrators, representatives, servants and security personnel; 5 C. The exercise of control over the procedures and policies that the agents, employees, staff, administrators, representatives, servants, and security personnel had the obligation of enacting and performing; and d. The determination of the qualifications or lack thereof as to the agents, employees, staff, administrators, representatives, servants, and security personnel including, but not limited to, those procedures, policies and duties that it devised and enacted. COU- N- T_ NEGLIGENCE 36. Plaintiffs aver each and every allegation contained in Paragraphs 1-35 of the Complaint and incorporate them herein by reference as if the same were set forth at length. 37. At all times relevant hereto and at the time of the incident complained of, the Embers held itself out as a safe and secure business location and encouraged members of the public to use and come onto the premises. 38. At all times relevant hereto and at the time of the incident complained of, the Embers had a duty to minor plaintiff to maintain the premises in a safe and secure condition and to guard against and/or warn of dangerous or potentially dangerous conditions existing at or about the Embers. 13 6 OW% 39. At all times relevant hereto and at the time of the incident complained of, the Embers had a duty to assure that the above-referenced children were under adult supervision at all times while on the premises, including the overnight stay in defendant's room. 40. The defendant knew or should have known that the children were on the premises during their stay without proper and adequate adult supervision. 41. The defendant knew or should have known that the children were staying overnight in a room without proper and adequate adult supervision. 42. The Embers, through its agents, employees, officers, staff, administrators, representatives, servants, and security personnel breached the duty owed to lawful guests and invitees, including minor plaintiff by committing one or more of the following negligent acts of commission and/or omission: a. Failing to provide and maintain a safe and secure premise; b. Failing to provide foreseeable safeguards to prevent the above-described incident; c. Failing to notify a responsible adult as to the unsupervised activities of the children while on the premises; d. Failing to establish and to implement adequate standards for the safe operation and management of the premises; 14 1") to's e. Failing to investigate and act accordingly on the unsupervised activities of the children on the premises; f. Exposing minor plaintiff to a foreseeable and unreasonable risk of harm or bodily assault; g. Permitting children to stay and to remain overnight in a hotel room without proper and adequate adult supervision; h. Such other negligence as may be revealed through discovery. 39. As a direct and proximate result of defendant's negligence, minor plaintiff did suffer severe physical pain, loss of virginity, medical care and treatment and costs associated therewith; and mental anguish and may in the future continue to suffer the same. WHEREFORE, Megan Theres, minor plaintiff, and Judy Theres, adult plaintiff and guardian of minor plaintiff, demand judgment for compensatory damages against defendant, the Embers, in excess of the jurisdictional amount. Res?ectfullysu itted, Peter J. Russo 61 West Louther Street Carlisle, PA 17013 (717) 249-2721 Date: 1J Ill411ggdl ) I /,? MEGAN THERES, a minor, by : IN THE COURT OF COMMON PLEAS, JUDY THERES, as : CUMBERLAND COUNTY, PENNSYLVANIA GUARDIAN, and IN HER : OWN RIGHT Plaintiffs V. CIVIL ACTION - LAW THE EMBERS INN AND NO. CONVENTION CENTER Defendant : JURY TRIAL DEMANDED VERIFICATION I, Judy Theres, verify that the statements made in the forgoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities. Judy Th res Dated: / /b MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter J. Russo, hereby certify that I am on this day, serving a copy of the foregoing document upon the person and in the manner indicated below: Service by First Class Mail, Postage Prepaid, and addressed as follows: TODD B. NARVOL, ESQUIRE Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 DATE: 11 I 1 re ( Ig19 < i' Peter J. Russo 17 Lf> Ci ?r i" u L c, MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN, Plaintiffs V. EMBERS INN, INC., Defendant r"? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2000, upon consideration of Defendant's Preliminary Objections, IT IS HEREBY ORDERED that the Defendant's Preliminary Objections are Sustained and further that the Complaint is dismissed for legal insufficiency. [In the alternative, Subparagraph 42(h) is stricken for failure to conform to Rule of Court and for insufficient specificity.] BY THE COURT: J. A Todd B. Narvol Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 ID#42136 (717)237-7133 r-1 lAMJ Attorneys for Defendant MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN, Plaintiffs V. EMBERS INN, INC., Defendant To: Megan Theres, by Judy Theres, Guardian c/o Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 NO. 99-3864 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days of service hereof or the relief requested may be entered against you. Date: Oki IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 19 THOMAS, THOMAS & HAFER, LLP By: Todd B. Narvol I.D. No. 42136 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Todd B. Narvol Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 ID#42136 (717)237-7133 n Attorneys for Defendant MEGAN THERES, A MINOR BY JUDY IN THE COURT OF COMMON PLEAS OF THERES, AS GUARDIAN, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 99-3864 V. EMBERS INN, INC., Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW, Defendant Embers Inn, Inc., by and through its attorneys, Thomas, Thomas & Hafer, LLP, files these Preliminary Objections to Plaintiffs' Complaint, pursuant to Pa.R.Civ.P. 1028(a)(2),(3), and (4), and in support thereof avers the following: 1. Plaintiffs filed their Complaint on or about November 16, 1999. 2. Defendant files the following Preliminary Objections to Plaintiffs' Complaint. 1. Motion to Dismiss the Complaint pursuant to Rule 1028(a)(4), for legal insufficiency of a pleading (demurrer). 3. The minor Plaintiff, Megan Theres, was approximately 14 years old on March 28, 1998. 4. On the night of March 28, 1998, Megan Theres spent the night in a hotel room at the Embers Inn, which was located on the Harrisburg Pike, just outside of Carlisle. 5. She was attending an overnight birthday party for her friend, Serena Caban. ?V 6. The room was registered to Serena's father, Oscar Caban. In the Complaint, Plaintiff Megan Theres and her mother, Plaintiff Judy Theres, allege that one of the other children who attended the overnight sleeping party had sexual intercourse with Megan, without Megan's consent, in the hotel room on the night of March 28, 1998. 8. The Plaintiffs allege that the Embers is responsible for allowing this to occur. 9. As an innkeeper, the Embers would not be responsible for any such harm occurring to Megan Theres as a result of the acts of another hotel guest, unless the Embers failed to exercise reasonable care to discover that such alleged harm was occurring or was likely to occur to Megan Theres and failed either to wam her or otherwise protect her against such harm. 10. The facts alleged in the Complaint by the Plaintiffs, even if taken as true, are insufficient to establish that the Embers breached such a generalized duty to Megan Theres. 11. The factual averments set forth in the Complaint by the Plaintiffs are as follows: a. Judy Theres dropped off her daughter, Megan Theres, at Serena Caban's house for an overnight birthday party for Serena. Complaint 114-7. b. Unbeknownst to Judy Theres, the overnight party was to be held at the Embers. Complaint ¶8. C. Aside from Megan, four other minors attended the party, and they were between 12 and 14 years old. Complaint ¶9. d. Serena Caban's 17-year-old sister, Sherry, took the children to the Embers. Complaint ¶11. e. The children checked into a room registered under the name of Oscar Caban, Serena's father. (The Complaint is silent as to who signed for the room; in reality it was Oscar Caban that signed for the room). The children spent the day at the Embers' swimming pool. Complaint, ¶12. aI n g. Serena's mother, Sharon Caban, stopped by the Embers to feed the children, and then left. Complaint %13-14. h. The children spent the night in the room, which had two beds. Complaint ¶15. Serena spent the night in one bed with her step-sister and step-brother; and Megan was directed to and did sleep in the other bed with the two other minorguests. Complaint ¶¶17-18. j. Later in the evening, four children, approximately 14 years old, approached the front desk and asked for blankets and pillows. Complaint ¶19. k. An Embers employee gave the children blankets and pillows, but asked them no questions. Complaint 120. The children gathered in the lobby for awhile. Complaint ¶21. M. No one from the Embers questioned the children about their presence in the lobby without adult supervision. Complaint 122. n. The children then returned to the room. Complaint 123. o. During the night, a minor male guest had sexual intercourse with Megan Theres without her consent. Complaint 1124-29. P. There was no adult in the room when this alleged activity occurred. Complaint ¶20. q. The children remained in the room until the following morning, when they were returned to the Caban residence. Complaint 132. Approximately one month later, Megan told her mother about what had happened in the room. Complaint 133. 12. Plaintiffs have alleged no facts, which if proven, would establish that the Embers failed to exercise reasonable care by not discovering that Megan was engaging in sexual intercourse in the room or that such activity was about to occur. as .,,IN 13. Serena Caban's father registered for the room; the children were escorted by a 17- year-old teenager; and Serena Caban's mother attended to the children while they were there in the afternoon. 14. The circumstances of four children asking for pillows and blankets and then spending some time in the lobby of the hotel, without more, does not put the hotel on notice that Megan Theres would be in any danger once she returned to her guest room. 15. In the absence of any rowdy behavior, complaints, expressed fears, or anything similarly overt, the Embers simply was not and could not be on notice that the claimed acts were occurring or where about to occur to Megan Theres such that its employees, agents or other representatives should have warned or otherwise protected Megan Theres against any such particular harm. WHEREFORE, the Defendant demurs to the Plaintiffs' Complaint, and respectfully requests that Your Honorable Court sustain Defendants Preliminary Objection to the Complaint on grounds of legal insufficiency. II. Motion to Strike Paragraph 42(h) of Plaintiffs Complaint pursuant to Rule 1028(a)(2) and (3). 16. Defendant incorporates by reference as though fully stated herein the averments contained in Paragraphs 1 through 15 of these Preliminary Objections. 17. In Paragraph 42(h) of the Complaint, Plaintiffs allege that Megan Theres' alleged harm occurred as a result of "such other negligence as may be revealed through discovery." 18. Such a boilerplate allegation must be stricken for failure to conform to Pa.R.Civ.P. 1019(a), which provides that the material facts on which a cause of action is based -1 c,3 shall be stated in concise and summary form, and also should be stricken for being insufficiently pled. WHEREFORE, Defendant respectfully requests Your Honorable Court to strike Subparagraph 42(h) of Plaintiffs Complaint pursuant to Pa.R.Civ.P. 1028(a) (2) and (3). Respectfully submitted, Thomas, Thomas & Hafer, LLP by Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 Date: 11,1 ; III :79274.1 ay r, 1-, CERTIFICATE OF SERVICE I do hereby certify that on this day I served a true and correct copy of the foregoing by first class mail, postage prepaid, addressed to the following: Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 Thomas, Thomas & Hafer, LLP by Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Date: Harrisburg, PA 17108-0999 a? a W W -tl F O ? ? N y lw tl Q 2 T 6 \C O p a. : o a Y t m 0 Il.\lll ? C ? N ?? o a v z a O Z m 0 L:., ,, w w r PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE: (entire caption must be stated in full) MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN, Plaintiffs V. EMBERS INN, INC., Defendant NO. 99-3864 CIVIL ACTION - LAW JURY TRIAL DEMANDED State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs' Complaint. 2. Identify counsel who will argue case: (a) for plaintiff: Peter J. Russo, Esq. Address: 61 W. Louther Street, Carlisle, PA 17103-2936 (b) for defendant: Todd B. Narvol, Esq. Address: 305 N. Front Street, P.O. Box 999, Harrisburg, Pa 17108-0999 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA a? 1 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 5, 2000. Respectfully submitted, Thomas, Thommassj& Hafer, LLP by Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 Date: 111 *1 Attorney for Defendant 08 1. CERTIFICATE OF SERVICE I do hereby certify that on this day I served a true and correct copy of the foregoing by first class mail, postage prepaid, addressed to the following: Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 Date: Bbl1gq Thomas, Thomas & Hafer, LLP by '(??4? dl ?9? n0/? ApriPL. Casper, Secretaryi ?c I? L1i t,b LLB, 1 1 I ; L. PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 61 West Louther Street Carlisle, PA 17013 717-249-2721 MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, COME, the Plaintiffs, by and through their Attorney, Peter J. Russo, Esquire and aver the following: 1. Admitted. 2. Admitted. 3. Denied. Megan Theres was 12 years old on March 28, 1999. 4. Admitted. 5. Admitted. 30 18. Denied. The averments contained in this paragraph are conclusions of law which require no response. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's Preliminary Objections or, in the alternative, grant Plaintiffs leave to amend their Complaint. RetfuRlly sub Peter J. Russo 61 West Louther Street Carlisle, PA 17013 (717) 249-2721 Date: !?J Z.0Iq q 31 3 MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter J. Russo, hereby certify that I am on this day, serving a copy of the foregoing document upon the person and in the manner indicated below: Service by First Class Mail, Postage Prepaid, and addressed as follows: TODD B. NARVOL, ESQUIRE Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 DATE: - VA-/24 / 1 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION - LAW Peter J. Russo 4 c LEI L. i I t L-' C l ) 1. #8 MEGAN THERF,S, A MINOR BY JUDY THERES, AS GUARDIAN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. EMBERS INN, INC. NO. 99-3864 CIVIL TERM IN RF DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMP .AL INT AND NOW, this 121!.. day of JANUARY, 2000, it appearing to the Court that Plaintiff has requested leave to file an amended complaint pursuant to Pa. Rule of Civil Procedure 1033, said request is GRANTED. This action renders moot the preliminary objections filed by the Defendant to Plaintiff s complaint. However, this does not prejudice Defendant's right to file preliminary objections to the amended complaint. By the Co Peter J. Russo, Esquire For the Plaintiff Todd B. Narvol, Esquire For the Defendant :sld Edward E. Guido, J. t ?3-ao RKS 33 L:I ?-Ori b.F 00 JAN I:i P;'':12: 99 PENINSYLV :SPA ?J PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 81 West Louther Street Carlisle, PA 17013 717-249-2721 Attorney for Plaintiffs MEGAN THERES, a minor, by IN THE COURT OF COMMON PLEAS, JUDY THERES, as GUARDIAN, CUMBERLAND COUNTY, PA and IN HER OWN RIGHT Plaintiffs CIVIL ACTION - LAW V. NO. 99- 3864 CIVIL TERM EMBERS INN, INC. Defendant JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT AND NOW, COME, the Plaintiffs, by and through their Attorney, Peter J. Russo, Esquire and state the following in support of this First Amended Complaint: PARTIES 1. Plaintiff, Megan Theres, is a minor who resides with her mother at 1008 Pheasant Drive North, Carlisle, PA, 17013 and at all relevant times hereto was a business invitee of the defendant. 2. Judy Theres is an adult individual and the mother of minor plaintiff, Megan Theres, residing at 1008 Pheasant Drive North, Carlisle, PA. She brings this action as 2-Z/ tgl? guardian on behalf of minor plaintiff, Megan Theres, and as plaintiff in her own right on a derivative claim arising from her daughter's injuries. 3. Defendant, Embers Inn, Inc., is a corporation organized and existing under the laws of the state of Pennsylvania with its principal place of business located at 1700 Harrisburg Pike, Carlisle, Pennsylvania 17013, Cumberland County, Pennsylvania. FACTUAL AVERMENTS 4. On or about March 28, 1998, minor plaintiff, Megan Theres, was to attend a birthday "sleep over' party for a friend, Serena Caban, another minor, at the residence of Oscar Caban located at Petersburg Road, Carlisle, Pennsylvania. 5. On or about March 28, 1998, adult plaintiff, Judy Theres, dropped Megan Theres off at Serena Caban's residence. 6. Adult plaintiff arranged to pick up her daughter at that residence the next day in the afternoon. 7. Judy Theres was advised that this overnight birthday party for Serena Caban was to be held at the Caban residence. 8. Unknown to Judy Theres, said overnight birthday party was held at the Embers. 9. In addition to minor plaintiff, four other children, ages between twelve (12) years old to fourteen (14) years old, attended this party at the Embers. (Herein-after "minor guests'). 10. On or about March 28, 1998, the above-referenced children were brought to the Embers by a 17 year old step sister of Serena Caban only known as Sherry. 2 3- 01 tlv? 11. The children checked into an unknown room at the Embers. The room was registered under the name of Oscar Caban, the father of Serena Caban. 12. It is believed, therefore averred that Mr. Caban registered for the room in question and provided the children with the room key, then returned to the Caban home. 13. Shortly after checking into the hotel, the children walked passed the front desk to the pool location to determine whether it was open. 14. Upon confirming that that the pool was open, the children again walked passed the front desk to return to their room. 15. Once at their room, the children changed into their swimwear and returned to the pool, yet again passing the front desk. 16. Each time the children passed the front desk, at least one employee of the defendant was attending the front desk. 17. The above-mentioned children spent the day in an open and conspicuous manner at the Embers' swimming pool. 18. At the time the above-mentioned children were at the pool, there were several other families present at the pool, all with adult supervision. 19. No adult accompanied the above-mentioned children during their stay at the pool. 20. Later in the afternoon of March 28, 1998, Sharon Caban, Serena Caban's step- mother, briefly stopped by the Embers on one occasion to provide food for the children. 3 ??0 n 21. It is believed, therefore averred that Mrs. Caban walked passed the front desk on her way into the pool area carrying the food for the children. 22. After approximately 5 minutes, Sharon Caban left the Embers after the children were provided with food. 23. Once again, it is believed, therefore averred that Mrs. Caban exited the hotel and passed the front desk on her way out of the hotel. 24. The children remained in the pool until the evening hours. 25. After completing their stay at the pool, the children again passed the front desk as they returned to their room. 26. Upon returning to the room, the children opened several bags of chips and soda containers. 27. The children began to spread their clothes around the room and take the bedspread and covers off the beds. 28. During the evening hours, one of the children made several calls to the front desk to ask for additional pillows and blankets. 29. At approximately 11:30 p.m. on night of March 28, 1998, a group of five (5) children of similar ages and varied ethnic backgrounds approached the front desk of the Embers which was manned by two individuals and requested pillows and blankets for their room. 4 3-7 elli w?+ 30. An agent, employee or representative of the Embers provided the children with blankets and pillows without asking any questions about the request or even inquiring about a room number. 31. After receiving the blankets and pillows, the minor plaintiff along with other minor guests openly and conspicuously gathered at a common area fireplace on the premises. 32. The children remained in the common area near the fireplace for about an hour. 33. At no time during the gathering at the common area fireplace did any agents, employees or representatives of the Embers question the children about their presence there without adult supervision. 34. The children later returned to the room registered to Oscar Caban. 35. Upon returning to the room, the children began to eat again and continued to spread their duffel bags, clothing, food, drink, pillow and bed coverings around the room. 36. After midnight on and shortly after returning to the room, an agent, employee or representative of the defendant wearing a uniform appeared at the door of the room to deliver pillows and blankets. 37. The agent, employee or representative that was delivering the blankets had a clear view of the room and could see all of the food items strewn around the room as well as the bedding being re-arranged. 5 39 r'1 ell) 38. Further, the agent, employee or representative that was delivering the blankets also had a clear view of all of the children lying around the room without any adult present in the room. 39. It is believed, therefore averred that the time of night, the lack of adult supervision in the hotel, the food items around the room and bedding in disarray would clearly indicate to a reasonably prudent person that there was some type of party being held by the minor children in the room. 40. The agent, employee or representative of the defendant that delivered the blankets and pillows did nothing to confirm there was adult supervision for the minor children. 41. Between 1:00 a.m. and 1:30 a.m. on March 29, 1998, one of the minor guests called the front desk and requested a roll out bed. 42. Shortly after making the telephone call to the front desk, an agent, employee or representative of the defendant wearing a uniform appeared at the door of the room to deliver the roll out bed. 43. The agent, employee or representative that was delivering the bed had a clear view of the room and could see all of the food and beverage items strewn around the room as well as the bedding being re-arranged. 44. Further, the agent, employee or representative that was delivering the bed also had a clear view of all of the children lying around the room without any adult present in the room. 6 ?39 ?OON 45. In fact, the the agent, employee or representative that delivered the bed also had entered the room and set the bed up for the children. 46. It is believed, therefore averred that the time of morning, the lack of adult supervision in the hotel, the food items around the room and bedding in disarray would clearly indicate to a reasonably prudent person that there was some type of party being held by the minor children in the room. 47. The agent, employee or representative of the defendant that delivered the bed did nothing to confirm there was adult supervision for the minor children. 48. Serena Caban spent the night in one bed with her step-sister. 49. Megan Theres was directed to and did sleep in a bed with two other minor guests. 50. While sleeping during the night, minor plaintiff was awakened by one of the minor guests. 51. Said minor guest, a male, removed minor plaintiffs pants and climbed on top of her. 52. Said minor guest proceeded to engage and to complete the act of vaginal sexual intercourse. 53. Megan Theres had never engaged in or experienced any type of similar sexual conduct prior to this night. 54. Megan Theres did not consent to engage in sexual intercourse with said minor guest. 7 40 ? n 55. Megan Theres did not desire to engage in sexual intercourse with said minor guest. 56. The sexual intercourse between Megan Theres and said minor guest occurred in the room where no adult was present. 57. The children remained at the Embers throughout the day and overnight without any adult supervision. 58. The following morning, on or about March 29, 1998, the children were returned to Serena Caban's residence. 59. Judy Theres, adult plaintiff, was not made aware of this incident until April, 1998. 60. At all times relevant and material hereto, the business premises of the Embers, including but not limited to the pool area, the lobby area, the rooms, and any other surrounding area were open to and used by guests and invitees, such as the minor plaintiff. 61. At all times relevant and material hereto, and at the time of the incident complained of, the Defendant by and through its agents, employees, officers, and servants were responsible for the following: a. The management, the operation, the maintenance and the control of the referenced premises and surrounding areas; b. The exercise of control over the agents, employees, officers, staff, administrators, representatives, servants and security personnel; 8 ?/1 r` c. The exercise of control over the procedures and policies that the agents, employees, staff, administrators, representatives, servants, and security personnel had the obligation of enacting and performing; and d. The determination of the qualifications or lack thereof as to the agents, employees, staff, administrators, representatives, servants, and security personnel including, but not limited to, those procedures, policies and duties that it devised and enacted. COUNT ONE NEGLIGENCE 62. Plaintiffs aver each and every allegation contained in Paragraphs 1-61 of the Complaint and incorporate them herein by reference as if the same were set forth at length. 63. At all times relevant hereto and at the time of the incident complained of, the Embers held itself out as a safe and secure business location and encouraged members of the public to use and come onto the premises. 64. At all times relevant hereto and at the time of the incident complained of, the Embers had a duty to minor plaintiff to maintain the premises in a safe and secure condition and to guard against and/or warn of dangerous or potentially dangerous conditions existing at or about the Embers. 65. At all times relevant hereto and at the time of the incident complained of, the Embers had a duty to assure that the above-referenced children were under adult ' ?a 9 supervision at all times while on the premises, including the overnight stay in defendant's room. 66. The defendant knew or should have known that the children were on the premises during their stay without proper and adequate adult supervision. 67. The defendant knew or should have known that the children were staying overnight in a room without proper and adequate adult supervision. 68. The Embers, through its agents, employees, officers, staff, administrators, representatives, servants, and security personnel breached the duty owed to lawful guests and invitees, including minor plaintiff by committing one or more of the following negligent acts of commission and/or omission: a. Failing to provide and maintain a safe and secure premise; b. Failing to provide foreseeable safeguards to prevent the above-described incident; c. Failing to notify a responsible adult as to the unsupervised activities of the children while on the premises; d. Failing to establish and to implement adequate standards for the safe operation and management of the premises; e. Failing to investigate and act accordingly on the unsupervised activities of the children on the premises; f. Exposing minor plaintiff to a foreseeable and unreasonable risk of harm or bodily assault; 0 10 g. Permitting children to stay and to remain overnight in a hotel room without proper and adequate adult supervision; 69. As a direct and proximate result of defendant's negligence, minor plaintiff did suffer severe physical pain, loss of virginity, medical care and treatment and costs associated therewith; and mental anguish and may in the future continue to suffer the same. WHEREFORE, Megan Theres, minor plaintiff, and Judy Theres, adult plaintiff and guardian of minor plaintiff, demand judgment for compensatory damages against defendant, the Embers, in excess of the jurisdictional amount together with costs of suit, delay damages and interest thereon. Date: 1 /31 let coo Res ecffully nsud, Peter J. Russo 61 West Louther Street Carlisle, PA 17013 (717) 249-2721 ry' l MEGAN THERES, a minor, by IN THE COURT OF COMMON PLEAS, JUDY THERES, as GUARDIAN, CUMBERLAND COUNTY, PA and IN HER OWN RIGHT Plaintiffs CIVIL ACTION - LAW V. EMBERS INN, INC. N0.99- 3864 CIVIL TERM Defendant JURY TRIAL DEMANDED VERIFICATION I, Judy Theres, verify that the statements made in the forgoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities. Judy Theres DATE: / 3o/ate 4? MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION - LAW V. EMBERS INN, INC. Defendant NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter J. Russo, hereby certify that I am on this day, serving a copy of the foregoing document upon the person and in the manner indicated below: Service by First Class Mail, Postage Prepaid, and addressed as follows: TODD B. NARVOL, ESQUIRE Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 DATE: % 1'z 0I a000 <H' Peter J. Russo Y? } V i ( 1 1?. L. 4. ?J R.U s V MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN, Plaintiffs V. EMBERS M, INC., Defendant AND NOW, this day of 2000, upon consideration of Defendant's Preliminary Objection to Plaintiffs' First Amended Complaint, IT IS HEREBY ORDERED THAT, Defendant's Preliminary Objection is Sustained, and that Plaintiffs' First Amended Complaint is dismissed. BY THE COURT: J. eoo? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL ACTION -LAW JURY TRIAL DEMANDED ORDER L/7 r'1 Todd B, Narvol Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 I ID#42136 (717)237-7133 MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN, Plaintiffs V. EMBERS INN, INC., Defendant To: Plaintiffs c/o Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 t^ Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to Plead to the enclosed Preliminary Objection within twenty (20) days of service hereof or the relief requested may be entered against you. Date: 2/Z11 2.000 THOMAS' THOMAS & HAFER, LLP By: - Todd B. Narvol I.D. No. 42136 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 /0 Todd B. Narvol Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 ID#42136 (717)237-7133 n Attorneys for Defendant MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN, Plaintiffs V. EMBERS INN, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFFS' FIRST AMENDED COMPLAINT AND NOW, Defendant Embers Inn, Inc., by and through its attorneys, Thomas, Thomas & Hafer, LLP, files these Preliminary Objections to Plaintiffs' Complaint, pursuant to Pa.R.Civ.P. 1028(a)(2),(3), and (4), and in support thereof avers the following: 1. Plaintiffs filed their Complaint on or about November 16, 1999. 2. On December 6, 1999, Defendant filed Preliminary Objections to Plaintiffs' Complaint. By Order dated January 12, 2000, the Court granted Plaintiff leave to file an Amended Complaint, without prejudice to Defendant's right to file Preliminary Objections to the Amended Complaint. 4. On or about January 31, 2000, Plaintiff filed an Amended Complaint. W e) (" 5. Defendant files these Preliminary Objections to Plaintiffs' First Amended Complaint. Motion to Dismiss the Complaint pursuant to Rule 1028(a)(4), for legal insufficiency of a pleading (demurrer). 6. The minor Plaintiff, Megan Theres, was 4pproximately 12 years old on March 28, 1998. 7. On the night of March 28, 1998, Megan Theres spent the night in a hotel room at the Embers Inn, which was located on the Harrisburg Pike, just outside of Carlisle. 8. She was attending an overnight birthday party for her friend, Serena Caban. 9. The room was registered to Serena's father, Oscar Caban. 10. In the First Amended Complaint, Plaintiff Megan Theres and her mother, Plaintiff Judy Theres, allege that one of the other children who attended the overnight sleeping party had sexual intercourse with Megan, without Megan's consent, in the hotel room on the night of March 28, 1998. 11. The Plaintiffs allege that the Embers is responsible for allowing this to occur. 12. As an innkeeper, the Embers would not be responsible for any such harm occurring to Megan Theres as a result of the acts of another hotel guest, unless the Embers failed to exercise reasonable care to discover that such alleged harm was occurring or was likely to occur to Megan Theres, and failed either to warn her or otherwise protect her against such harm. 13. The facts alleged in the First Amended Complaint by the Plaintiffs, even if taken as true, are insufficient to establish that the Embers breached such a generalized duty to Megan Theres. s0 ? n 14. The factual averments set forth in the Amended Complaint by the Plaintiffs are as follows: a. Judy Theres dropped off her daughter, Megan Theres, at Serena Caban's house for an overnight birthday party for Serena. First Amended Complaint (hereinafter "FAC") ¶$4-7. b. Unbeknownst to Judy Theres, the overnight party was to be held at the Embers. FAC $8. Aside from Megan, four other minors attended the party, and tL9y were between 12 and 14 years old. FAC ¶9. d. Serena Caban's 17-year-old sister, Sherry, drove the children to the Embers. FAC ¶11. e. The children checked into a room registered under the name of Oscar Caban, Serena's father; Caban himself signed for the room and provided the room key to the children. FAC ¶¶11-12. f. The children spent the day at the Embers' swimming pool. FAC ¶¶13-18. g. Serena's step-mother, Sharon Caban, stopped by the Embers to feed the children at the pool, and then left. FAC ¶120-23. h. The children remained at the pool until the evening hours and then returned to the room registered to Serena's father. FAC ¶25. At about 11:30 p.m., "a group of five (5) children of similar ages and varied ethnic backgrounds" approached the front desk of the Embers and requested pillows and blankets for their room. FAC $29. The Embers employees did not ask any questions. FAC T30. k. The children then gathered in a common area of the hotel for about an hour. FAC ¶¶ 31-32. The Embers employees did not ask any questions. FAC ¶33. M. The children then returned to the room registered to Oscar Caban. FAC 134. n. After midnight, an Embers employee delivered extra pillows and blankets to the room registered to Oscar Caban, and could see food items and bedding on the floor, and ail of the children lying around the room without any adult being present. FAC ¶37-38. o. The Embers employee did not ask whether the children were being supervised by an adult. FAC ¶40. P. Between 1:00 and 1:30 a.m., one of the minor guests called the front desk and requested a rollout bed. FAC ¶41. q. Shortly thereafter, an Embers employee delivered a roll out bed to the room. FAC ¶ 42, 45. r. The Embers employee could see food items and beverages in the room, re- arranged bedding, and the children lying around the room, without any adult being present. FAC ¶¶ 43-44. S. The Embers employee did not ask whether the children were being supervised by an adult. FAC 147. t. Serena Caban spent the night in one bed with her 17-year-old step-sister Sherry; and Megan was directed to and did sleep in the other bed with two other minor guests. FAC 1$ 48-49. U. During the night, a minor male guest had sexual intercourse with Megan without her consent. FAC ¶T50-55. V. There was no adult in the room when this alleged activity occurred. FAC $56. W. The children remained in the room until the following morning, when they were returned to the Caban residence. FAC ¶¶57-58. X. Approximately one month later, Megan told her mother about what had happened in the room. FAC ¶59. 15. Plaintiffs have alleged no facts, which if proven would establish that the Embers failed to exercise reasonable care by not discovering that Megan was engaging in sexual intercourse in the room or that such activity was about to occur. 16. Serena Caban's father registered for the room; the children were escorted by a 17- year-old sibling of two of the children; and Serena Caban's mother attended to the children while they were there in the afternoon. _50? t'1 17, The circumstances of five minor guests asking for pillows and blankets and then spending some time in the lobby of the hotel, without more, would not put the hotel on notice that Megan Theres would be in any danger of a sexual assault. ii 18. Likewise, the circumstances of several minor guests, including a 17-year-old I I older sister, asking for additional bedding and having snack food in a room, without more, would not put the Embers on notice that Megan Theres would be in any danger of a sexual assault. 19. In the absence of any rowdy behavior, complaints, expressed fears, or anything similarly overt, the Embers simply was not and could not be on notice that the claimed acts were occurring or where about to occur to Megan Theres such that its employees, a representatives should have warned or otherwise protected Megan Theres against any such particular harm. 20• A hotel is not an insurer of its guests' safety against unforeseen injuries. WHEREFORE, the Defendant demurs to the Plaintiffs' Amended Complaint, and respectfully requests that Your Honorable Court sustain Defendants' Preliminary Objection to the Amended Complaint on grounds of legal insufficiency. Respectfully submitted, Thomas, Thomas & Hafer, LLP by Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 Date: Z?t?l2 000 :79274.1 SJ CERTIFICATE OF SERVICE I do hereby certify that on this day I served a true and correct copy of the foregoing by first class mail, postage prepaid, addressed to the following: Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 Thomas, Thomas & Hafer, LLP by Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Date: Harrisburg, PA 1 7 1 08-0999 ?r? I 'J n PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. MEGAN THERES, A MINOR BY IN THE COURT OF COMMON PLEAS JUDY THERES, AS GUARDIAN, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. I NO. 99-3864 EMBERS INN, INC., I CIVIL ACTION - LAW Defendant I JURY TRIAL DEMANDED State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs' First Amended Complaint. 2. Identify counsel who will argue case: (a) for plaintiff: Peter J. Russo, Esq. Address: 61 W. Louther Street Carlisle, PA 17013 (b) for defendant: Todd B. Narvol, Esq. Address: 305 N. Front Street, POB 999 Harrisburg, PA 17108-0999 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Dated: Z'Z lIZouo Todd B. Narvol, I.D. No. 42136 Attorney for Defendant S? CERTIFICATE OF SERVICE I do hereby certify that on this day I served a true and correct copy of the foregoing by first class mail, postage prepaid, addressed to the following: Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 Thomas, Thomas & Hafer, LLP by V N Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Date: 21111200'? Harrisburg, PA 17108-0999 SCn i ,,.i -? ?- i ? ' ? ;. _ , s. MEGAN THERES, A MINOR BY JUDY THERES, GUARDIAN tl 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. EMBERS INN, INC. NO. 99-3864 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, this 221! day of APRIL, 2000, after review of the briefs submitted by each party, and after having heard argument thereon, the defendant's preliminary objections in the nature of a demurrer are GRANTED. The complaint is DISMISSED with prejudice. By the Cou Peter J. Russo, Esquire Todd B. Narvol, Esquire :sld Edward E. Guido, J. 17 57 1.? COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant DOCKET NO. 99- 3864 CIVIL TERM NOTICE OF APPEAL Notice is hereby given that Plaintiffs, Megan Theres, a Minor, by Judy Theres, as Guardian, and in her own right, above named, hereby appeal to the Superior Court of Pennsylvania from the order entered in this matter on the 27th day of April, 2000. This order has been entered in the docket as evidenced by the attached copy of the docket entry. Date: ap Ily Peter J. Russo 61 West Louther Street Carlisle, PA 17013 (717) 249-2721 5. MBCiAN T1IFRkS, A MINOR B JIIDY •I III.-AWS, GMA[mIAN V EMI,'FRS INN, IN-,:, eool? IN''flll', CO! IRT OF COMMON P!.BAS OP CUMM M.ANO COUNTY, PF NSYLVANIA NO, Q93801 CIVII', "IT'.MM INS it] "!'F) I,I\1f\:?I2Y_C)RTL:_4'I_IQ\'$ PRIM ,A -oil' -OAURT AND NOW, this JOY day ofAPRII., 20MI alto review ofthe hricfs subrnittal by each party, and after wvW9 heard aTument thrn•on, the defendant's preliminary objections in the ns;turc of a demurrer are GltAN'I G.D. The complaint is INSMISSIiU with prejudice. I'cL:r J. Rn;:so, Escpcire Todd 13. Narvol, lisquirc Ad Py the. CnPrQ? Iidward 1?. Chcido,,I. t r"• 1 " COPY F FioFdi iI?:C?. PI0 lit I ; .oa.;ICiul? v;h^iG: ', I kro U'i;0 sn"°: fiiy L&;m '+r.' sr?ai W laic Ca'iri I+i G87PIS.7, Fib, -my S? PY2510 ('unP-"•-1arld County Prothonoto):yrfice Page 1 Civi l Ci ;,• l11,111 iry 1.999-03864 TH?RES MEGAN KT Al, ( vs) EMIIKRS INN INC Rerere'nc:o No... filed... ... 6/25/1999 Cttsc Ty!!)c.....: WR 1 T' ON SI.IMMONS Ti r .:! ..... 10:07 ]udgnlent.......: 00 Exl_cution hate 0/00/0000 Judge As_:i.gnc(j: GUIDO '-;DWARI) 1; '111J-y Tr.iEll, .... Disposed Desc•: Di:;{{m-cd Date. 0/00/0000 ------°----- CElse Comments IIiglle) C'rt 1.: Higher CrL 2.: ****!:***#A*******AA'A**A*A:*A**'ni.# b:FAw*AA#*kAAA*****A#***k*.'.*A*i***iA**}*:r******** Geller-Ell index Attorney Info TIIFfIlES MEGAN MINOR I IAINTIIT PILISSO PE7PER ,I TIII'RL;S JI.IDY I1IJ1.INT:11I' Itt1;;SO 111{11'1{) J EMHERS INK INC DL:i'i:1111)/1NT' NAI:VOI: 'I'ODi F 'i WEST CI[URCII AVI:NIII•J CARLISLE I'll, 17013 'k****'A***•1:'kAA*AA*AA AA1:#AI.AAA#*R*A**#:lIA/:*k*********i: is ::*A*uA*J:************ DEI Le 1'. 11 t. 111 (1!; **#*****,:**#*1:*#AA# ** i. is AA A A A A A A A: k 4. 4. A.A: '1.*##*******A:*k*#*9:A**A A; 1: ***A is****A'**A•** - - FIRS'T' ENTRY 6/25/1.999 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED 7/01/1999 SHERIFF'S RE'T'URN F'1.LEU Litic)ant..: Eh111ERS INN INC SERVED : 5/30/99 l^ilm, OI' SLI14M Costs..... $29.10 Pd fly: PETER RUSSO 07/01/1999 -- ------------------ 10/28/0099 1'RAL.CIPE: FOR ENTRY OF APPEARANCE FOR DI.FF:NDANT fly TODD Ii NARV01, ESQ --- -.. _-. -.. -__ __..._.. ......._.__._ ._._._...- -`---_. .------------------ 10/28/0099 PRAF.CIPE FOR RULE TO FILE COMPLAINT BY TODD B NARVOL ESQ ............... .........__------------------------------------------------ 10/28/0099 RULE: TO FILE COMPLAINT BY CURTIS R f,ONG PROTHONOTARY 11/16/1999 COMPLAINT 12/06/1.999 DEFF:NDANT1S PRELIMINARY 0!,JL':C'I'IONS TO 11f,AINTIFFS' COMPLAINT 12/06/1999 PRAECIPE FOR 1:1STING CASE FOR ARGUME'N'T BY TODD D NARVOL: EST` DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S' COMPLAIN 12/21/1.999 I'f.:AINI'IFF'S 1,cS1'OidSP: 70 DXPENPANi'S PRELIMINARY OLMEC111ONS '110 PLAIN'CIFF'S COMPLAINT 1/13/20011 ORDCE( Ol' COURT - 1`t1TfiD 1/1'/00 - IN PE PEFRNDANT'S PREMI-IT NARY 011JECT10US TO PT,AI11v.IF", Crnkl'IAID"1' - PLAINTIF'F I1A4 Ri:9UESTED LEAVE TO F1LC AN AMC.]DFD COI;1`T AIII)' PUF S'I'.N`' TO PA 12UL,E O:' C.,x IT, PROCEDURE 1033 SAID 'JQ.LJ Vl IS CI:AHTED - ldi`; Ar'17nNS RENDER:; MOOT THE NI:I,I:;IdAR) oa?KCI ION'; L f1"NO LW! TH': ):'LI1.,1gDANi TO PLAINTIFF"S C'OMPL,AH111 IIOI4BVF:T,1 '.r,I:f.S DOES MOT Pi:hJtl')IC0 D, TillRN'1"S R_ f.!T TO fI:F' i'1;i:L,IMTNAI:Y O'IJECTIONS TO THE ARffa%')ED COill'1.AIN'T - 11Y LI)WARD E GU:fI' 1 7 - Cn_'II';? I. Ji.r1D 1/13/00 1/31/2000 A Iiil'•101JD COMPLAINT 2/22/2000 DEFENDANT"S 1'1:1:1,)M].Id7Ut1' 0!i,IL:CI'1('i '1'O PLAIN'i'll'I" FIRST AMEI':DED CO:J1'LFII'f-:'I' 4/20/2000 ORDER OF COURT - DVPED 4127100 -- IN RE DPFF:NDANT S PRE:LIMINAUY OBJECTI(1N9 -- GRANTED - THE COMPLAINT IS DISMISSED WITH PREJUDICE: Fly 7'l1E CO IRT F.1.)WARD E GUIDO J COPIES MAILED -1/20/00 - - - - - - - - LAST ENTRY - - - - - - - - - - - - ************A***A*#"k**A*A*AA* #i1:Ak*AA***::k****A,1.k**1:*****'****,':*•k************ E."cL ow 11) f OI'fl! A t.. 1. o I I * FCCS & Doh! L. ; lief, I.: 1 I''villI.. A': j I:nrl 1:,111 +k *AA*A -A A*AA>A-.-;.k:.i.#AA Ar.?:'.A1.A Ar. AA/ A. A 1.C I A A; 1.il#.,.*:I* 1.:'::A.-A VAA it 4:*******is****A7** tQ1L 1'I' O1' Cil1i'.f ?(Id:<1 ?., l; ll iii T.. T'. (1 Eil:'P'19:1?E:1':IJ'P Ti.OU ',.00 .00 J(11' FRI; O BI . (10 e?D 11 Y-1; 'i10 Cun?•'lrlit nrl Cnunt.y 1'rnl.hr,nriLnry,, Fficr? Pa L, Civil Ca: u: III, I u i ry g 2 7 999--03864 THERES MEGAN ET Al. (vs) EMhERS INN I NC RePerOrlco No..: 1•'I Irxl........ : 6/25/1999 Chore Illy llc.....: WRIT' OF SUMMON:; Tim, lodgment....... . . . . . . . . • : 10 : 07 : 00 Execut.inn Date 0/00/0000 Judge As,;ignecl: GMDO EDWAItD N fury Trial.. Disposed Desc.: D.i.f.;lmsud Dale. 0/00/0000 Casa Commoril.s Vlig1lcrCrC 1.: Iligher. Cr.L Z.: 4 i..'i0 4''1.50 00 *****#**4***A************k**A***#***k*A*i AA A*#kAA4..*A:;*kk *A*A*******il*kk******** * I::nd of C1so In formatic, i ******_*****AA*ki *****##*#tAi*I.A###*dkA#*AAAAA**#*****#k'I:**A.******#•k*?.A#'**#'*** I11 vr`or, h-w Urd0 sfl my {.:ASI!I Court M G u;f ,%l.3, f*i{. a Y ac t 0'-. G', uifttaU`.. y 6( COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. DOCKET NO. 99- 3864 CIVIL TERM EMBERS INN, INC. Defendant CFRTrFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa.R.A.P. 121: Service in person as follows HONORABLE EDWARD E. GUIDO (717) 240-6290 Judge of Cumberland County Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 HONORABLE RICHARD J. PIERCE (717) 240-6200 Court Administrator of Cumberland County Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 HONORABLE CURTIS R. LONG (717) 240-6195 Prothonotary of Cumberland County Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 CGS`' COURT REPORTER (717) 240-6207 Office of the Court Reporters Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Service by US Mail - First Class and Addressed as follows: TODD B. NARVOL, ESQUIRE Thomas Thomas & Hafer Counsel for Defendant P.O. Box 999 Harrisburg, PA 17108 DATED: J ??'ZDOa Peter J. Russo, Esquire PA. IDH 72897 61 West Louther Street Carlisle, PA 17013 Counsel for Plaintiff (717) 249-2721 63 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. DOCKET NO. 99- 3864 CIVIL TERM EMBERS INN, INC. Defendant REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Res ectfully submitted, Emd Peter J. Russo, Esquire PA. ID# 72897 61 West Louther Street Carlisle, PA 17013 Counsel for Plaintiff (717) 249-2721 Dated: 5,25-2= 6/ M m c? 4 C, i c? tr w U ', r., cq 3 ?'?? 2:09 P.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 1113 MDA 2000 Page 1 of 2 June 6, 2000 MEGAN THERES, A MINOR, BY JUDY THERES, AS GUARDIAN, AND IN HER OWN RIGHT, Appellant V. EMBERS INN, INC., Appellee Initiating Document Notice of Appeal Case Status: Active Case Processing Status: May 30, 2000 Awaiting Original Record Journal Number. Case Category: Civil CaseType: Civil Action Law Consolidated Docket Nos.: Next Event Type: Case Initiation Next EventType: Docketing Statement Received Next Event Type: Original Record Received Related Docket Nos.: SCHEDULED EVENT Next Event Due Date: Next Event Due Date: June 20, 2000 Next Event Due Date: July 4, 2000 COUNSEL INFORMATION Appellant Megan Theres, a minor, by Judy Theres Pro Se: Appoint Counsel Status: IFP Status: No Attorney: Russo, Peter Bar No.: 72897 Law Finn: Address: 61 West Louther Street Carlisle, PA 17013 Phone No.: (717)249-2721 Fax No.: (717)249-4514 Receive Mail: Yes Appellee - ----EMBERS N . Pro Se: Appoint Counsel Status: IFP Status: Attorney: Narvot Todd B. Bar No.: 42136 Law Finn: Thomas, Thomas & Hafer, LLP Address: 305 N Front St 6th FI PO Box 999 10/1199 /„? 3023 - 2:091W. ,,,, Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 1113 MDA 2000 Page 2 of 2 June 6, 2000 Harrisburg, PA 17108-0999 Phone No.: (717)237-7133 Fax No.: (717)237-7105 Receive Mail: Yes FEE INFORMATION Receipt No.: TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: April 27, 2000 Judicial District: 9 Date Documents Received: May 30, 2000 Date Notice of Appeal Filed: May 25, 2000 Order Type: Order Entered OTN: Judge: Guido, Edward E. Lower Court Docket No.: 99-3864 CIVIL TERM Judge ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By May 30, 2000 Notice of Appeal Filed Notice of Appeal Appellant Megan Theres, a minor, by Judy Theres June 6, 2000 Docketing Statement Exited (Civil) Middle District Filing Office 1011199 ?? 3023 ± Cpl cr, r O ?4 ; Ci. tn 7 a1W u MEGAN THERES, a minor, by JUDY THERES, as guardian and IN HER OWN RIGHT V. EMBERS INN, INC. n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL TERM ORDER OF COURT i AND NOW, this 5"1 day of JUNE, 2000, Plaintiff Is counsel is directed to file a concise statement of matters complained of on appeal within fourteen (14) days of todays date in accordance with Rule of Appellate Procedure 1925(b) By the Cou District Attorney Peter J. Russo, Esquire For the Plaintiff Edward E. Guido, J. ) qq L ? _ a -J L-8.00 - K9 :sld r Jtf CJ^,. ffY iT.l. ?J r1.l lL ..J ''1 PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 61 West Louther Street Carlisle, PA 17013 717-249-2721 MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant ell?l Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED STATEMENT OF MATTERS PURSUANT TO RULE OF APPELLATE PROCEDURE 1925 (b) AND NOW, COME, the Plaintiffs, Megan Theres and Judy Theres, by and through their Attorney, Peter J. Russo, Esquire, having appealed the Order of Court entered by the Honorable Edward E. Guido, dated April 27, 2000, state the following reasons: Based on the averments contained in Plaintiffs' Complaint and Plaintiffs' Amended Complaint, this Honorable Court incorrectly applied the standard for demurrer when granting Defendant's preliminary objections and dismissing Plaintiffs' complaint with prejudice. At a minimum, Plaintiffs should have been afforded an opportunity to conduct formal discovery including depositions. I Plaintiff has fully set out their theories as to why demurrer should not be granted in both briefs in opposition to Defendant's preliminary objections and re-asserts those same theories and incorporates those theories as though set forth herein in their entirety. Res ectfull 'fled, Peter J. Russo 61 West Louther Street Carlisle, PA 17013 (717) 249-2721 Date: '1000 6`/ r? MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter J. Russo, hereby certify that I am on this day, serving a copy of the foregoing document upon the person and in the manner indicated below: Service by First Class Mail, Postage Prepaid, and addressed as follows: TODD B. NARVOL, ESQUIRE Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 DATE: --- (Z?t Peter J. Russo 70 3 J. •J n MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT V. EMBERS INN, INC. eo? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL TERM CIVIL ACTION - LAW AND NOW, this 2,42 day of AUGUST, 2000, the Prothonotary is directed to forthwith transmit the record to the Superior Court. By the Cou Edward E. Guido, J. Peter J. Russo, Esquire For the Plaintiff Todd B. Narvol, Esquire For the Defendant :sld 7 ?. ,:; ?,; ???, „ < ., . ,, C?? - ??;Y _? ,,. , MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT, Plaintiffs V. EMBERS INN, INC., Defendant Guido, J., August 24, 2000 P'` IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL TERM : CIVIL ACTION-LAW On April 28, 1999, we sustained defendant's preliminary objections in the nature of a demurrer and dismissed plaintiffs' amended complaint with prejudice. In this timely appeal, plaintiffs allege that we improperly applied the standard for sustaining a demurrer.I The minor plaintiff attended a birthday party for a friend. The party consisted of four (4) children of mixed gender and ranging in ages from 12 to 14 years.Z The parry was to include a sleepover. Minor plaintiff's mother was told that the sleepover would be at the friend's residence.3 However, the sleepover was actually held in a room at the motel owned and operated by defendant.a Refer to Plaintiffs Statement of Matters Complained of on Appeal. Amended complaint paragraphs 4, 9. Amended complaint paragraph 7. Amended complaint paragraph 8. 7.?. 99-3864 CIVIL TERM r'1 The friend's father registered for the room at the defendant motel.5 He provided the room key to the children and returned home, leaving the children attended only by the seventeen (17) year old step sister of the birthday celebrant.6 During the course of the day, and well into the night, the children used the pool and other common facilities at the defendant motel.7 Defendant's employees had numerous opportunities to see the children using its facilities without adult supervision.8 Employees of the defendant were in the room on at least two occasions after midnight to deliver additional bedding .9 The appearance of the room made it clear that a party was in progress.10 The employees did nothing to confirm that the children were being supervised by an adult.I I The partygoers, as well as the 17 year old step sister, eventually went to sleep. Minor plaintiff fell asleep in a bed with two party guests, at least one of which was a male. 12 During the course of the night one of the minor plaintiffs bedmates woke her up and had sexual intercourse with her. 13 Minor plaintiff neither consented nor desired to engage in the sexual intercourse which resulted in the loss of her virginity. 14 The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: 'Amended complaint paragraph 12. s Amended complaint paragraphs 10, 12. Amended complaint paragraph 17. " Amended complaint paragraphs 12 - 24, 25 - 33. 'Amended complaint paragraphs 36, 42. Amended complaint paragraphs 35, 43, 46. Amended complaint paragraphs 40, 44, 47. Amended complaint paragraphs 43, 49. Amended complaint paragraphs 50 - 52. 14 Amended complaint paragraphs 53 - 55. 73, 99-3864 CIVIL TERM A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. (citations omitted). Allegheny County v. Commonwealth, 507 Pa. 360,372 490 A.2d 402 (1985). Applying the above standard to the case at bar, we are satisfied that plaintiffs' amended complaint clearly and without a doubt failed to state a cause of action. In order to state a cause of action in negligence, the plaintiff must establish (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the breach of duty and resulting harm, and (4) actual loss or damage. TA, v. A&D, 447 Pa. Super. 302, 669 A.2d 360 (1995). Where there is no duty, there can be no negligence. Maxwell v. Kea s, 433 Pa. Super 70, 639 A.2d 1215 (1994). Under the circumstances existing in the instant case, we concluded as a matter of law that defendant motel owed no duty to plaintiffs. In Wenrick Y. Schloemann - Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989) our Supreme Court stated: Before a person may be subject to liability for failing to act in a given situation, it must be established that the person has a duty to act; if no care is due, it is meaningless to assert that a person failed to act with due care. Certain relations between parties may give rise to such a duty. Although each person may be said to have a relationship with the world at large that creates a duty to act where his own conduct places others in peril, Anglo-American common law has for centuries accepted the fundamental premise that mere knowledge of a dangerous 74, 99-3864 CIVIL TERM situation, even by one who has the ability to intervene, is not sufficient to create a duty to act. Id. at 8, 564 A.2d at 1248. Stated another way, a defendant cannot be held liable for injury caused by the criminal conduct of another in the absence of a special relationship imposing a duty. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).15 In Feld v. Merriam, supra, the Supreme Court recognized that an innkeeper may, under certain circumstances, be subject to liability for the intentionally harmful acts of third persons. The EeW court indicated that such liability is predicated upon Section 344 of the Restatement (Second) Torts which provides as follows: § 344. Business Premises Open to Public: Acts of Third Persons or Animals A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. is See also Section 315 of Restatement of Torts (Second) which provides as follows: § 315. General Principle There is no duty so to control the conduct of a third person as to prevent him from causing physical harts to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection. 7- eON 99-3864 CIVIL TERM However, the &W court further indicated that the duty imposed by Section 344 is limited by f comment thereto which provides as follows: 16 f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection. (emphasis added) Plaintiffs have not pled any facts which would justify an inference that the motel employees should have known that minor plaintiff would be sexually assaulted by a party guest. Furthermore, the duty imposed by Section 344 is primarily designed to protect against the intentionally harmful acts of unknown third persons. 17 It is not designed to protect those who enter upon the premises together from intentionally harming each other. A motel owner should not be put in the position of having to police what goes on between invited guests in the privacy of their own rooms. To hold otherwise would result in far reaching and unintended consequences. In the instant case, the room was properly rented by an adult. He made the decision to allow the children to stay under the supervision of a 17 year old. The motel 16 Comment "f' of Section 344 of the Restatement (Second) Torts was adopted by the Supreme Court in Moran v Valley Forge Drive-In Theater. Inc., 431 Pa. 432, 246 A.2d 875 (1968). See Feld v. Merriam, supra. 7`' 99-3864 CIVIL TERM r employees were under no duty to second guess that decision. For that reason, the plaintiffs have failed to state a cause of action. August ?q , 2000 Peter J. Russo, Esquire For the Plaintiff Todd B. Narvol, Esquire For the Defendant :sld 4F',? Edward E. Guido, J. 6 77, r? ??s g Mi APR 2 4 2000 MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED PETER J. RUSSO, ESQUIRE 61 West Louther Street Carlisle, PA 17013 (717)249-2721 TABLE OF CONTENTS 1. COUNTER-STATEMENT OF FACTS .......................................... ........................... 1 II. PROCEDURAL HISTORY ............................................................ ........................... 2 III. QUESTIONS PRESENTED .......................................................... ........................... 3 IV. ARGUMENT .................................................................................. ...........................4 V. CONCLUSION .............................................................................. ......................... 12 M 2 MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED 1. COUNTER-STATEMENT OF THE FACTS On or about March 28, 1998, the Plaintiff, Megan Theres, was to attend a "sleep- ever" birthday party at the home of a friend, Serena Coban. Megan Theres was dropped off at the Coban home. Instead of remaining at the Coban home, the parents of Serena, transported all of the invited guests to the Embers. The Cobans signed into the hotel: and shortly thereafter left the Embers and only returned to the Embers twice. The first time was later in the day on March 28, 1998, to provide food to the children and finally to pick up the children the next day. The children utilized the hotel facilities including the hotel pool. All day the children were without adult supervision in an open manner. During the day, various hotel employees saw the children. In particular, Plaintiff pled that later in the evening of March 28, 1998, a group of the children approached the front desk and requested pillows and blankets. Without any concern or question, the staff member handed the 3 children all of the items they requested. The children remained within eyeshot of the staff. After midnight on and shortly after returning to the room, an agent, employee or representative of the defendant wearing a uniform appeared at the door of the room to deliver pillows and blankets. The agent, employee or representative that was delivering the blankets had a clear view of the room and could see all of the food items strewn around the room as well as the bedding being re-arranged. The individual that delivered the blankets and pillow had a clear view of all of the children lying around the room without any adult present in the room. 4. Later, sometime between 1:00 a.m. and 1:30 a.m. on March 29, 1998, one of the minor guests called the front desk and requested a roll out bed. Shortly after making the telephone call to the front desk, an agent, employee or representative of the defendant wearing a uniform appeared at the door of the room to deliver the roll out bed. The individual that delivered the bed had a clear view of the room and could see all of the food and beverage items strewn around the room as well as the bedding being re-arranged. That individual also entered the room and set the bed up for the children. Later in the early hours of March 29, 1998, after the defendant ignored several clear signs that the children were unsupervised, Megan Theres was raped by one of the other "sleep-over" guests. 4 II. PROCEDURAL HISTORY On June 25, 1999, Plaintiff commenced this action by filing a Pra ecipe to Issue a Writ of Summons with the Cumberland County Prothonotary's Office. Gn October 28, 1999, Defendant filed a Praecipe to Issue a Rule to File a Complaint. On November 16, 1999, Plaintiff filed a Complaint. Thereafter, Defendant filed Preliminary Objections in the form of demurrer. 5 III. QUESTIONS PRESENTED A. HAVE PLAINTIFFS PROVIDED SUFFICIENT FACTS TO OVERCOME A PRELIMINARY OBJECTION IN THE FORM OF A DEMURRER? (Suggested Answer in the Affirmative) 6 r IV. LAW & ARGUMENT A. Plaintiffs alleged that the defendant was negligent when it allowed six minor children to stay in a room and on their property unsupervised. As a result of the defendant's negligence, the result was a minor, Megan Theres, was raped. It has been established by the Pennsylvania Supreme Court that "[o]wners of land who hold their property open to the public for business purposes are subject to liability for accidental, negligent or intentionally harmful acts of third persons, as are ... inkeepers and other owners of places of public resort and, under § 344 of the Restatement (Second) of Torts, must take reasonable precaution against that which might be reasonably anticipated." Feld v. Merrium, 506 Pa. 383, 485 A.2d 742 (1984). (Emphasis added) The plaintiffs in Feld sought to hold their landlord liable for the criminal acts of unknown third parties. The Court held that the landlord was under no duty unless he voluntarily undertook to provide security or the lease specifically mentioned security. However, innkeepers and common carriers are held to a much higher standard. As noted in Feld: Section 344 [of the Restatement] is followed in Pennsylvania. It requires that [owners of land who hold their property open to the public for business purposes] take reasonable precaution against that which might be reasonably anticipated. The reason is clear; places to which the general public are invited might indeed anticipate, either from common experience or know fact, that places of general public resort are also places where what men can do, they might. One who invites all may reasonably expect that all might not behave, and bears responsibility for injury that follows the absence of reasonable precaution against that common expectation. Feld, 506 Pa. at 391, 485 A.2d at 745. (Emphasis added) 7 Comment (f) of Section 344 of the Restatement (Second) of Torts goes on to state that common carriers, innkeepers and other owners of places of public resort should take reasonable precaution against that which might be reasonably anticipated Section 323 of the Restatement (Second) of Torts, Negligent Performance of Undertaking to Render Services, which provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. Section 448 of the Restatement (Second) of Torts provides: The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. Defendant Embers had a duty to ensure the safety of its patrons, including the minor children staying at the hotel unsupervised. The Embers failed to take reascnable precautions to ensure the safety of its business invitees. The question now raised is whether the acts of the Embers were reasonable. While a factual question, if we take 8 the potential risk of harm to children who are unsupervised at an establishment such as the Embers against the measures required to take reasonable precautions, i.e. asking the children the location of the adult supervision, it is clear that the steps needed to meet a reasonable precaution standard was not far from reach. This, considering or courts have decided that harm can befall persons in places of public resorts "where what men can do, they might" and where "who invites all may reasonably expect that all might not behave, and bears responsibility for injury that follows..." Plaintiffs seek to establish that as a part of the Embers duty to make their hotel safe from its patrons, the Embers also has a duty to ensure that minor patrons are accompanied by adult supervision. With the duty to make the hotel safe for its business invitees, we look to Section 323 of the Restatement (Second) of Torts which, as stated supra, subjects the Embers to liability for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if the failure to exercise such care increases the risk of such harm. Once again, we are faced with reasonable care and its meaning. Plaintiffs proffer that it is entirely reasonable to ask a group of children that have been all around a hotel for a full day without any sign of parental supervision, where their parents are. Further, the failure by the Embers staff to ask that salient question, dramatically increases the possible harm to all of the guests invited to this "birthday party." Had an Embers staff member taken its duty seriously and used reasonable care to confirm the safety of these children and asked for an adult, in all likelihood this event would have never taken place. The steps that would have been required to 9 confirm the presence of adult supervision were minimal and without invasion to the guests. Finally, it is also clear that in places of public resorts "where what men can do, they might" and where "who invites all may reasonably expect that all might not behave, and bears responsibility for injury that follows..." a third person might find a group of 12 to 14 year old children a prime target in his or her efforts to commit an intentional tort or crime. As the Restatement of Torts tells us, this is merely a superseding cause. Therefore, the harm which resulted from the attack of Megan Theres was created by the negligent conduct of the Embers in creating the opportunity for a third person to commit such an act. Failing to carry out this duty through negligence was causally connected to the resultant harm that minor plaintiff Megan Theres suffered. Failing in this duty also creates a cause of action for which relief may be granted. Since defendant Embers did not attempt to locate the parents of the minor children after observing the children all day at the swimming pool and by the fireplace, the children were permitted to stay, unattended, all evening in the hotel room. It was during this time that Megan was raped. A reinforcement of the principle that a guest or invitee is owed a greater duty by an innkeeper than by either a landlord or landowner is echoed in Starke v. Long, 221 Pa. Super. 338, 292 A.2d 440 (1972). There, the court held that "one entering a ... hotel, is entitled to expect that his host will make far greater preparation to secure the safety of his patrons than a householder will make for his social or even his business 10 visitors." 221 Pa. Super. at 342, 292 A.2d at 443. This standard is much more stringent than the "reasonably prudent landowner." Since invitees are targeted by businesses such as hotels, they are afforded more protection than a visitor in one's home. While defendant Embers did not have an obligation to baby-sit the minors, the duty did arise to refuse them service or, at the very least, question them about the location of their parents. By acquiescing in the unsupervised presence of the minors at the hotel, defendant Embers was negligent in its duty to secure their safety. The question that must be asked is whether the Embers knew or should have known that Megan Theres may have been subject to some danger. There is nothing in any case proffered by the defense that suggests that the Embers needed to know the exact risk but rather that a risk existed. The only way to ascertain whether the Embers knew or should have know what risks existed, is to complete discovery. The Court should note that the vast majority of the case on this issue revolve around a Summary Judgment Motion. After the parties conducted discovery and plaintiff was permitted to flesh out what the defendant knew or should have known based on defendants' prior experiences. To dismiss this matter on preliminary objections without providing plaintiff the opportunity to conduct discovery to determine what the defendant knew or should have known as well as the Embers' prior experiences would be an error. If this matter is to be dismissed prior to determination on its merits, it should happen after discovery is completed and on Motion for Summary Judgment. V. CONCLUSION While, the issue of whether the Defendant knew or should have known anything is a factual question that should not be decided by preliminary objection, Defendant's motion should be denied because the plaintiffs have stated a cause of action upon which relief may be granted. Defendant Embers acted negligently when it did not contact the minors' parents and instead stood idly by after witnessing the children playing alone all day at the swimming pool, congregating at a common fireplace area and having two separate employees enter the room at late hours to see no adults and only children in the room. Through its inaction, the defendant acquiesced to the presence of the children and assumed responsibility for their welfare. As a result of the defendant Embers' negligence, minor plaintiff Megan Theres was raped while unsupervised in the defendant's hotel room. Peter J. Russo DATE: 41 a3 I a WVU 12 MEGAN THERES, a minor, by JUDY THERES, as GUARDIAN, and IN HER OWN RIGHT Plaintiffs V. EMBERS INN, INC. Defendant IN THE COURT OF COMMON PLEAS, CIVIL ACTION - LAW CUMBERLAND COUNTY, PA NO. 99- 3864 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter J. Russo, hereby certify that I am on this day, serving a copy of the foregoing document upon the person and in the manner indicated below: Service by First Class Mail, Postage Prepaid, and addressed as follows: TODD B. NARVOL, ESQUIRE Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 DATE: Li 1; 3) a 0 0 0 Peter J. Russo 13 r, Todd B. Narvol Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 ID#42136 (717)237-7133 Defendant APR - 4 20001 Attorneys for Defendant MEGAN THERES, A MINOR BY JUDY THERES, AS GUARDIAN, Plaintiffs V. EMBERS INN, INC., 1. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3864 CIVIL ACTION - LAW JURY TRIAL DEMANDED TO PLAINTIFFS' FIRST AMENDED COMPLAINT Plaintiffs filed their Complaint on or about November 16, 1999. They claim that the Embers Inn negligently failed to protect the minor Plaintiff from beii,g subjected to non- consensual sexual intercourse in a guest room. Both the minor Plaintiff and her alleged assailant were guests of the hotel. (Both were guests of the same properly registered adult patron, Oscar Caban.) The incident in question, which the minor Plaintiff first reported about one month after it allegedly happened, allegedly occurred during a sleep-over birthday party that the minor Plaintiff was attending, and allegedly was perpetrated by another minor attending the same party. Defendant filed Preliminary Objections to Plaintiffs' Complaint. The Court (Judges Hoffer and Guido) heard oral argument on these objections on January 3, 2000. By Order dated January 12, 2000, the Court granted Plaintiffs leave to file an Amended Complaint, without prejudice to Defendant's right to file Preliminary Objections to Plaintiffs' Amended Complaint. Plaintiffs filed a pleading titled "First Amended Complaint" on January 31, 2000. Defendant then filed a preliminary objection in the nature of a demurrer to Plaintiffs' First Amended Complaint. This brief is submitted in support of Defendant's preliminary objection. The minor Plaintiff, Megan Theres, was approximately 12 years old on March 28, 1998. On the night of March 28, 1998, Megan Theres spent the night in a hotel room at the Embers Inn, which was located on the Harrisburg Pike, just outside of Carlisle. She was attending an overnight birthday party for her friend, Serena Caban. The room was registered to Serena's father, Oscar Caban. Oscar Caban had signed for the room. In the Complaint, Plaintiff Megan Theres and her mother, Plaintiff Judy Theres, allege that one of the other children who attended the overnight birthday party had sexual intercourse with Megan, without Megan's consent, in the hotel room on the night of March 28, 1998. The Plaintiffs allege that the Embers is responsible for allowing this to occur. The relevant factual averments set forth in the Amended Complaint by the Plaintiffs are as follows: a. Judy Theres dropped off her daughter, Megan Theres, at Serena Caban's house for an overnight birthday party for Serena. First Amended Complaint (hereinafter "FAC") ¶¶4-7. b. Unbeknownst to Judy Theres, the overnight party was to be held at the Embers. FAC ¶8. C. Aside from Megan, four other minors attended the party, and they were between 12 and 14 years old. FAC 19. d. Serena Caban's 17-year-old sister, Sherry, drove the children to the Embers. FAC ¶11. C. The children checked into a room registered under the name of Oscar Caban, Serena's father; Caban himself actually signed for the room and provided the room key to the children. FAC ¶¶l 1-12. f The children spent the day at the Embers' swimming pool. FAC ¶¶13-18. 2 g. Serena's step-mother, Sharon Caban, stopped by the Embers to feed the children at the pool, and then left. FAC T¶20-23. h. The children remained at the pool until the evening hours and then returned to the room registered to Serena's father. FAC $25. i. At about 11:30 p.m., "a group of five (5) children of similar ages and varied ethnic backgrounds" approached the front desk of the Embers and requested pillows and blankets for their room. FAC 129. j. The Embers employees did not ask any questions. FAC ¶30. k. The children then gathered in a common area of the hotel for about an hour. FAC ¶T 31-32. 1. The Embers employees did not ask any questions. FAC 133. M. The children then returned to the room registered to Oscar Caban. FAC T 34. n. After midnight, an Embers employee delivered extra pillows and blankets to the room registered to Oscar Caban, and could see food items and bedding on the floor, and all of the children lying around the room without any adult being present. FAC ¶37-38. o. The Embers employee did not ask whether the children were being supervised by an adult. FAC ¶40. P. Between 1:00 and 1:30 a.m., one of the minor guests called the front desk and requested a roll out bed. FAC ¶41. q. Shortly thereafter, an Embers employee delivered a roll out bed to the room. FAC T 42, 45. r. The Embers employee could see food items and beverages in the room, re- arranged bedding, and the children lying around the room, without any adult being present. FAC $$ 43-44. S. The Embers employee did not ask whether the children were being supervised by an adult. FAC ¶47. t. Serena Caban spent the night in one bed with her 17-year-old step-sister Sherry; and Megan was directed to and did sleep in the other bed with the two other minor guests. FAC ¶T 48-49. U. During the night, a minor male guest had sexual intercourse with Megan without her consent. FAC TiT50-55. There was no adult in the room when this alleged activity occurred. FAC 156. W. The children remained in the room until the following morning, when they were returned to the Caban residence. FAC 1157-58. X. Approximately one month later, Megan told her mother about what had happened in the room. FAC 159. The Plaintiffs' averments in the First Amended Complaint are similar to the averments in the original Complaint, but differ in the following respects. The Plaintiffs have added chronological times to their averments. For example, the Amended Complaint alleges that the children congregated at the fireplace of the hotel around 11:30 p.m. The Amended Complaint also states that on two occasions between Midnight and 1:30 a.m., Embers employees were called to the room registered to Oscar Caban-once to deliver bedding and once to deliver a roll- out bed. Plaintiffs aver that the Embers employees could see snack foods, disarrayed bedding and minors in the room, but no adults. However, there is no allegation of any complaints, expressed fears, or wrongdoing on the part of any of the minor guests. Moreover, it is clear that the children were being supervised in the room by a 17-year-old older sister of the birthday girl. On the basis of these averments, Plaintiffs allege that Defendant breached a duty owed to the minor Plaintiff by: a. Failing to provide and maintain a safe and secure premises; b. Failing to provide foreseeable safeguards to prevent the above-described incident; C. Failing to notify a responsible adult as to the unsupervised activities of the children while on the premises; d. Failing to establish and to implement adequate standards for the safe operation and management of the premises; e. Failing to investigate and act accordingly on the unsupervised activities of the children on the premises; f. Exposing minor plaintiff to a foreseeable and unreasonable risk of harm or bodily assault; and 4 g. Permitting children to stay and to remain overnight in a hotel room without proper and adequate adult supervision. H. ARGUMENT MOTION TO DISMISS THE COMPLAINT PURSUANT TO RULE 1028(a)(4), FOR LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER). As an innkeeper, the Embers would not be responsible for the alleged harm occurring to Megan Theres as a result of the acts of another hotel guest, unless the Embers failed to exercise reasonable care to discover that such alleged harm was occurring or was likely to occur to Megan Theres and failed either to warn her or otherwise protect her against such harm. The facts alleged in the Amended Complaint by the Plaintiffs, even if taken as true, are insufficient to establish that the Embers had any duty to protect Megan Theres from the alleged incident, nor that the Embers breached any such duty to Megan Theres. The Court should grant a Defendant's demurrer when the facts alleged in the Amended Complaint, taken as true, fail to establish a cause of action upon which relief can be granted. See generally, Morgan v. McPhail, 449 Pa.Super. 71, 73, 672 A.2d 1359, 1360 (1996). In the present case, the Plaintiffs' claims essentially are that the Embers Inn failed to protect the minor Plaintiff from the sexual incident that allegedly occurred during the overnight birthday party. It is undisputed, and the Plaintiffs would agree, that an innkeeper is not an insurer of its guests' safety. See, Restatement (2d) of Torts, §344 Comment f, which has been adopted as the law of Pennsylvania in Moran v Valley Forge Drive-In Theater. Inc., 431 Pa.432, 246 A.2d 875 (1968) and Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Whereas innkeepers, like common carriers and other owners of places of public resort, may be subject to liability for the intentionally harmful acts of third persons, the law only requires that such entities take reasonable precaution against that which might be reasonably anticipated. Feld, supra, 506 Pa. at 391, 485 A.2d at 745. The legal question in this case is governed by Section 344 of the Restatement (2d) of Torts, which provides as follows: A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, or by the failure of the possessor to exercise reasonable care to a. Discover that such acts are being done or are likely to be done, or b. Give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. To clarify that §344 does not impose a strict liability standard on innkeepers, Comment f to §344 further provides as follows: Since the [innkeeper] is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. Comment f further provides for a category of circumstances wherein the innkeeper or other possessor of land may have constructive notice that a guest is reasonably likely to fall victim to the criminal acts of a third person. However, for the reasons discussed below in this brief, such notice is not established by the factual averments of the Amended Complaint in this case, even if those averments were true. As to this matter, Comment f further provides as follows: [The innkeeper] may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor even though he has no reason to expect it on the part of any particular individual. If the place or character of his business or his past experience, is such that he should reasonably anticipate ... criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precaution against it, and to provide a reasonably sufficient number of servants to afford reasonable protection. See, for example, Morgan v Bucks Associates, 428 F.Supp. 546, 549 (E.D.Pa. 1977). See also, Moran v. Valley Forge Drive-Inn Theater Inc., 431 Pa. at 435-36, 246 A.2d 875, 878 (1968). Plaintiffs here have averred no facts, which if proven, would establish that the Embers failed to exercise reasonable care by not discovering that Megan was engaging in or was in danger of engaging in non-consensual sexual intercourse in the room registered to Oscar Caban, and by not acting to protect her from such an occurrence. Serena Caban's father registered for the room; the children were escorted and later chaperoned in the room by a 17-year-old older sister; and Serena Caban's mother attended to the children while they were there in the afternoon. There is no allegation that the children were unruly or that they acted in any manner that would cause concern or raise suspicion on the part of the hotel employees. It is not unusual for several junior high school age teenagers to be in the common area of a hotel, such as the pool or in the lobby, particularly when they are the guests of adults who have registered for rooms. The circumstances of such children asking for pillows and blankets and then spending some time in the lobby of the hotel, without more, would not put the hotel on notice that there was is any danger that Megan Theres would be in any danger from one of the other guests when she returned to her guest room. In the absence of any rowdy behavior, complaints, expressed fears or anything similarly overt, the Embers simply was not and could not be on notice that the claimed acts were occurring or were about to occur to Megan Theres, such that the Embers' employees, agents or other representatives should have warned or otherwise protected Megan Theres against any such particular harm. The alleged fact that Embers employees went to the room on two occasions and saw the minor guests and snack foods, but not Oscar Caban himself, would not in itself create a duty to protect Megan Theres from the unforeseen harm that she allegedly suffered. The Plaintiffs' themselves allege that the Embers had been led to believe the children were being supervised- (a) Oscar Caban registered for the room; (b) Sharon Caban attended to the children at the pool; and (c) even while in the room, the children admittedly were chaperoned by the seventeen-year- old sister of the birthday girl.' There is simply nothing about this factual scenario that would or should have caused the Embers staff to believe that Megan Theres was in danger of being sexually assaulted. Under the facts alleged, the Embers had no legal duty to inquire further, nor to take affirmative steps to prevent such unforeseen acts from happening. Whether a duty exists is a question of law. Kleinknecht v Gettysburg College, 989 F.2d 1360, 1366 (3rd Cir. 1993). For the reasons discussed in the preceding paragraphs, the Complaint presents no facts that should have placed the Embers on notice of any danger to Megan Theres. Since there was no reasonable notice of a need to protect the minor Plaintiff from any harm, no duty on the part of the Embers arose. It follows that no such duty could have been breached. Likewise, Plaintiffs have alleged no facts which would demonstrate that the Embers, from prior experience, should have been on notice of a danger of harm to Megan Theres. In a contrary situation, in Moran v. Valley Forge Drive-In Theater Inc., 431 Pa. 432, 246 A.2d 875 (1968), the Pennsylvania Supreme Court held that the Defendant had reason to know, from past experience, that the foreseeable criminal acts of third persons created a likelihood of danger to certain patrons at the theater. The Plaintiff had gone to the drive-in theater with his family, and had gone to the restroom. There were rowdy teenagers congregated around the restroom on the night in question, and the theater owner was aware that there was a history of firecrackers being exploded on the premises by similar groups of rowdy teenagers. While the Plaintiff was in the restroom, a firecracker was thrown into the room and exploded. The Plaintiff suffered serious hearing loss problems as a result of this occurrence. The Court held that because there was t Surely the Plaintiffs do not mean to suggest that the fact-as averred in Paragraph 29 of the Amended Complaint-that the children were of "varied ethnic backgrounds" should have put the hotel on notice that Megan Theres was in danger of being sexually assaulted." evidence of prior experiences with rowdy teenagers and exploding firecrackers, there was a question of fact as to whether or not the theater took adequate measures to wam patrons of possible danger, or to prevent acts on the part of third persons which might injure patrons of the theater. The Court held that although the theater owner was not an insurer of his visitor's safety, he had reason to know that there was danger to the Plaintiff, based upon the evidence of prior instances of similar behavior. Consequently, it was appropriate for a jury to decide whether there was a duty on the part of the theater owner and whether he breached that duty. Similarly, in Morgan v. Bucks Associates, 428 F.Supp. 546 (E.D.Pa. 1977), the United States District Court held that there was sufficient evidence presented at trial to establish that a shopping mall owner should have known, from past experience, that there was a likelihood of criminal conduct on the part of third persons, which conduct was likely to endanger the safety of the Plaintiff. The Plaintiff was a department store employee who was assaulted in the mall parking lot on the way to her car. The Plaintiff had presented evidence of significantly frequent prior criminal activity by third persons in the parking lot, as well as evidence of inadequate security in response to those incidents. On the basis of this evidence, the Court held that there was sufficient evidence to support ajury's determination that the Defendant shopping mall owner owed a duty to the Plaintiff and breached that duty by failing to protect the Plaintiff from the foreseeable harm posed by third parties. The present case is different from Moran and Morgan, because Plaintiff has alleged no evidence of prior instances or experiences which would cause the Embers to know or to have reason to know that there was a likelihood of criminal conduct on the part of third persons, which conduct was likely to endanger Megan Theres. Rather, the present case is similar to Kerns v. Methodist Hospital, 393 Pa.Super. 533, 574 A.2d 1068 (1990). In Kerns, a pizza delivery firm employee sued a hospital and its security firm for an assault that occurred on the Plaintiff while he was delivering a pizza to the nurses' quarters. Although the issue in Kerns was whether the hospital and security firm negligently breached a voluntarily undertaken duty to provide security, the reasoning behind the Court's decision is instructive here. In granting summary judgment in favor of the Defendants, the Court found that the Plaintiffs failed to establish notice to the hospital or to the security firm of a particular threat of violence to its tenants or their invitees from the criminal acts of third parties. As such, the Court noted that it was not necessary to reach the issue as to whether the hospital or security firm had a duty to act to prevent such harm or to wain the Plaintiff of such harm. In the present case, the facts alleged by the Plaintiffs in their First Amended Complaint could not establish that the Embers failed to exercise reasonable care to discover that Megan Theres was being subjected to or was likely to be subjected to non-consensual sexual intercourse in the room, nor are the alleged facts sufficient to establish that the Embers should have warned or otherwise protected Megan Theres against such alleged harm. As discussed above, the mere presence of several young teenagers (and a 17-year-old female chaperone) in a hotel room, which is registered to the parent of several of the children, and the use of the hotel's facilities by those minor guests, without more, does not put the hotel on notice that one of the minor guests is likely to be sexually assaulted by another. In the absence of any averment (or evidence) that there were complaints about the minor guests, or that there were misbehaving in anyway, or that any of them expressed any fears or displayed any other overt signs of a problem, the hotel employees had no duty to question them about anything. Likewise, the First Amended Complaint contains no averments of prior similar incidents that would have put the Embers on notice that such an event was likely to occur. 10 As a matter of policy, a hotel is not in the business of policing what goes on in the guest rooms of lawfully registered guests who have given no indication of misbehavior. As far as the hotel was concerned, the Plaintiff was a part of a group of children under the control of a lawfully registered adult, Oscar Caban. Under the facts alleged, the hotel had no reason to be concerned about the adult's whereabouts at any given time. In light of the foregoing, Plaintiffs have failed to state a claim against the Embers, and their Amended Complaint against the Embers must be dismissed. Respectfully submitted, Thomas, Thomas & Hafer, LLP by Mod B. Narvol, I. o. 42136 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 Date: [ 3, a Attorneys for Defendant Embers Inn, Inc. CERTIFICATE OF SERVICE I do hereby certify that on this day 1 served a true and correct copy of the foregoing by first class mail, postage prepaid, addressed to the following: Peter J. Russo, Esquire 61 W. Louther Street Carlisle, PA 17013-2936 Date: J6 2 ?O o Thomas, Thomas & Hafer, LLP by Todd B. Narvol, I.D. No. 42136 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 PYS510 Cumberland ounty Inquiry tary's Office Page 1 1999-03864 THF.RES MEGAN ET AL (vs) EMBERS INN INC Reference No..: Filed........: 6/25/1999 Case Type.....: WRIT OF SUMMONS Time.........: 10:07 Judgment. ... Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ----- - ------ Higher Crt 1.: 1113 MDA2000 Higher Crt 2.: General Index Attorney Info THERES MEGAN MINOR PLAINTIFF RUSSO PETER J THERES JUDY PLAINTIFF RUSSO PETER J EMBERS INN INC DEFENDANT NARVOL TODD 0 CARLISLECPARC17013NUE #******+a*+a#+**a#+****#a*+k+**#+**+*++*+**#+****++*++aa+**+*+**aa+a*aa+aa#**+a* * Date Entries *+*++*#+*#*#+*+a*+**+**a*+*#*}*+*+*****+a*+*#+*#as*ak*+a++a*+*+*+aaa+*+aa+aaa#a FIRST ENTRY - - - - 1 -.'2 6/25/1999 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS-_SSUED ------------------------- 3 7/01/1999 SHERIFF'S RETURN FILED Litigant.: EMBERS INN INC SERVED : 6/30/99 WRIT OF SUMM Costs....: $29.10 Pd By: PETER RUSSO 07/01/1999 _ ______________ ---------------------------------------------------- 4 - 5 10/28/0099 PRAECIPE_FOR-ENTRY_OF_APPEARANCE_FOR_DEFENDANT-BY TODD B-NARVOL-ESQ 6 - 7 10/28/0099 PRAECIPE FOR RULE TO FILE COMPLAINT BY TODD-B-NARVOL-ESQ----------- --------------------- 6 _ 7 10/28/0099 RULE-TO _FILE _COMPLAINT -BY-CURTIS R LONG PROTHONOTARY--------------- ------ ---- --------- -- ------ - ---- ------------ 8 - 17 11/16/1999 COMPLAINT---------------------------------------------------------- 18 - 26 12/06/1999 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT - ----------------------- ---------- -- ----------- --------- 27 - 29 12/06/1999 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY TODD B NARVOL ESO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT ------------------------------------------------------------------- 30 - 32 12/21/1999 PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT _ ----------------- ----- -- ----- - ---- 33 1./1.3/2000 ORDER TOF_COURT 1r.DATED F1cl?nmor.AINT REPLAINTDIFFTHASPREQUESTEDYLEAVE - IN nnoc COMPLAINT - HOWEVER THIS uutb Nui rmnju i - -BY EDWARD FILE PRELIMINARY OBJECTIONS TO THE AMENDED COMPLAINT - GUIDO J - COPIES MAILED 1/13/00 ------------------------------------------------ 34 - 46 1/31/2000 FIRST AMENDED COMPLAINT -------------------------- ----------------------------- 47 - 54 2/22/2000 DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFFS' FIRST AMEND COMPLAINT ---------------------Q-------- --------------------- 55 - 56 2/22/2000 DEFENDANT'S CASE FOR FIRSTLAMENDED COMPLAINT _ ----------------'-"--- ----------------------DEFENDANTS 57 4/28/2000 OER OF COURT - TiiE COMPLAINTf1Is DISMISSED WITHIPREJUDICE BY THE COURT EDWARD E GUIDO J COPIES MAILED 4/28/00 ------------------------------------ ------ ------- 65 RUSSO ESQPLFF 58 - 64 5/25/2000 NOTICE OF APPEAL TO SUPERIOR COURT PETER J ------------------------------------------ - 66 6/07/2000 SUPERI OR COURT OF PA NOTICE OF APPEAL DOCKETING TO N- 1113_MDA_ 2000- 67 6/08/2000 ORDER OF COURT - DATED 6/5/00 - BY THE COURT EDWARD E GUIDO J COPIES MAILED 6/8/00 ----------------- ---- . K Al 00 PYS510 Cumberland County Prothonotary's Office Civil. Case inquiry 1999-03864 THERE'S MEGAN FT Al. (vs) EMBERS INN INC Reference No..: Ease Type.....: WRIT OF SUMMONS Judgment......: 00 ,Judge Assigned: GUIDO EDWARD F Disposed Desc.: ..-------- Case Comments ----------- 68 - 70 6/19/2000 71 8/24/2000 72 - 77 8/25/2000 Page Filed........: 6/25/1999 Time.........: 10:07 Execution Date 0/00/0000 Dispy0sed aDate. 0/00/0000 Higgqher Crt 1.: 1113 MDA200 STATEMENT OF MATTERS PURSUANT TO RULE OF APPEILATEtPROCEDURE 1925 R WITHRTRANSMITTTHEDRECORD TO/SUPERIORTCOURTA- BYSTHERCOURT EDWARD E GUIDO ,J COPIES MAILED 8/25/00 ------------------------------------------------------------------- OPINION AND ORDER - DATED 8/28/00 - IN RE OPINION PURSUANT TO PA RULE 1925 - BY THE COURT EDWARD E GUIDO J COPIES MAILED 8/25/00 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - + Escrow Information * Fees & Debits Bn Bal Pmts/Ad ##+*+kEnd * Bal ***#**#****#+*+k*#**##**#****** *******# #***** *#*#**{***##***k****##* WRIT OF SUMMONS 35 5 35.00 0 TAX ON WRIT SETTLEMENT : 0 5 00 .50 00 5 . .00 JCP FEE . 5 00 . 5.00 APPEAL 30.00 --------------- 30.00 --------- -- .00 75.50 - 75.50 --------- .00 * End of Case Information 78 8/31/00 Plaintiff's and Defendant's Briefs