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HomeMy WebLinkAbout03-3138BRUCIS CARTER, on behalf of LASHAE CARTER, a minor Plaintiff, YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISE Defendants. IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO.: 03- 313g CIVIL TERM CIIV1L ACTION PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue a Writ of Summons in the above-captioned action. Writ of Summons shall be assigned and forwarded to Defendant: Young Men's Christian Association of Carlisle 311 South West Street Carlisle, PA 17013 I.D. No. 86772 THOMAS & ASSOCIATES 3111 N. Front Street Harrisburg, PA 17110 Attorney for Plaintiffs WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAI~/~FIFF HAS COMMENCED AN ACTION AGAINST YOU. Prothon Date:--~-~'~/ ,~. ~z)~ by: Deputy SHERIFF'S RETURN CASE NO: 2003-03138 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CARTER BRUCIS ET AL VS YOUNG MEN'S CHRISTIAN ASSN - REGULAR RON KERR , Cumberland County, Pennsylvania, says, the within WRIT OF SUMMONS was served upon YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE DEFENDANT , at 1103:00 HOURS, at 311 SOUTH WEST STREET CARLISLE, PA 17013 Sheriff or Deputy Sheriff of who being duly sworn according to law, on the 25th day of July by handing to NATHAN BRANT, ASST EX DIRECTOR ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS the · 2003 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this ~ ~ day of 0,~ ~ ~z~3 A.D. 'P~othonotary So Answers: R. Thomas Kline 07/28/2003 ANTHONY THOMAS By: Dep~uty~ BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor Plaintiff, YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE Defendants. : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 03-3138 COMPLAINT - Civil Action NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO / A EN CORTE. Si usted desea defenderse de las demandas que se presenten mas adelante en las siguientes paginas, debe tomar aecion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando comparecencia escrita y radicando en la Corte porescrito sus defenses de, y objecciones a, las demandas presentadas acqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo pot cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otms derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor Plaintiff, YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 03-3138 : COMPLAINT - Civil Action COMPLAINT 1. Plaintiff Lashae Carter is a minor child, with the birth date of September 12, 1990, residing at 312 E. North Street, Carlisle, Cumberland County, Pennsylvania, 17013. 2. Brucis M. Carter is an adult individual, and the grandmother of Plaintiff Lashae Carter, residing at 312 E. North Street, Carlisle, Cumberland Connty, Pennsylvania, 17013. 3. Plaintiff Lashae Carter, a minor child, has selected her grandmother Brucis M. Carter to represent her as guardian in this action. Brucis M. Carter has no interest in the subject matter in this action. Bucis M. Carter is thus permitted to act for and on behalf of her granddaughter Lashae Carter. 4. Defendant, YMCA of Carlisle is a Pennsylvania Non-Stock, Non-Profit Corporation with the entity name "Young Men's Christian Association of Carlisle" with business address of 311 South West Street, Cumberland County, Carlisle, Pennsylvania il 7013. 5. At all times referenced herein and at the time of the incident, Defendant held the YMCA of Carlisle premises and its surrounding areas out as a safe and secure business location and encouraged members of the public to utilize and come onto the premises, particularly the area of the swimming pool where the Defendant was to guard against and/or warn of dangerous or potentially dangerous conditions existing at or about the premises and surrounding area, especially to and including the Plaintiff. 2 6. At all times relevant hereto, the premises was, especially the swimming pool, under the sole and exclusive control, management and maintenance of said YMCA, their agents, employees, officers, staff, administrators, representatives, servants and/or volunteers, acting within the course and scope of their employment or authority. 7. At all times relevant hereto, Defendant, had a duty to Plaintiff Lashae Carter, and to other lawful guests or invitees, to maintain the premises and surrounding areas of the establishment, particularly the swimming pool, in a safe and secure condition and to guard against and/or warn of dangerous or potentially dangerous conditions existing at or about the premises and surrounding area. COUNT I NEGLIGENCE 8. Plaintiff repeats each and every foregoing allegation contained in the proceeding paragraphs, and hereby incorporates same by reference, as if fully set forth at length herein. 9. Defendant, through their agents, employees, officers, staff, administrators, representatives, servants and/or volunteers, breached the duty owed to lawful invitees, including Plaintiff Lashae Carter, 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, particularly the swimming pool; (b) Failing to provide and maintain safe use of the swimming pool; (c) Failing to provide forseeable safeguards to prevent the incident complained of; (d) Failing to warn of the foreseeable and unreasonable risk of harm created by condition(s) in and around the area of the swimming pool; 3 (e) Failing to inspect and supervise the YMCA and snrrounding area, particularly the swimming pool, adequately; (f) Failing to protect guests and invitees, including Plaintiff Lashae Carter, from dangerous conditions and risks of harm such as that involved with the incident complained of; (g) Failing to provide adequate supervision and water safety instructors in and around the YMCA and surrounding area; (h) Failing to have sufficient security measures to protect guests and invitees, including Plaintiff Lashae Carter, to prevent incidents such as that involved in this matter; (i) Failing to oversee and/or supervise existing swimming pool rules and regulations to ensure that such measures were being properly performed; (j) Failing to improve existing swimming pool oversight measures that Defendant knew, or in the exercise of reasonable care should have known, were inadequate and/or ineffective and/or inefficiently performed or executed; (k) Failing to establish adequate standards for the safe operation and management of the YMCA, particularly the swimming pool so as to preclude the incident complaint of; (1) Failing to provide reasonable and adequately trained personnel to provide protection to Plaintiff, Lashae Carter, and other lawful guests and invitees of the YMCA; (m) Failing to provide reasonable and adequate instruction and/or supervision to agents, employees, officers, staff, administrators, representatives, servants and/or volunteers in connection with the safe operation and management of the YMCA, particularly the oversight of summer interns assisting with swimming pool instruction and activities; 4 (n) Failing to adopt such other measure(s) that were necessary and reasonable to protect and safeguard the safety and well being of lawful invitees and individuals present at or near the YMCA such as Plaintiff Lashae Carter; Exposing Plaintiff to a foreseeable and unreasonable risk of harm and/or bodily (o) injury; (p) Creating a foreseeable and unreasonable risk of personal injury by failure to discharge duties to guests or invitees such as Plaintiff Lashea Carter; 10. By reason of the negligence of Defendant, Plaintiff sustained a closed head injury. Such injuries included ataxic, confusion, and slurring of words, as well as a concussion. 11. As a direct and proximate result of Defendants' negligence and recklessness, Plaintiff was caused to receive a closed head injury. These losses are permanent and continuing in nature. 12. By reason of the said injuries, Plaintiff has incurred and will continue to incur various expenses for physicians, therapists, and hospitals in an effort to treat and cure herself of the aforesaid injuries. 13. By reason of the said injuries, Plaintiffhas also sustained great pain, suffering, anguish, shock, and injury to her nerves and nervous system, and will continue to suffer the same in the future. 14. Defendant acted with malice, fraud, gross negligence and/or oppression, which was not the product of mistake of fact or law, honest error of judgment, overzealousness, mere negligence or other human failing. COUNT II ASSAULT AND BATTERY 15. Plaintiff repeats each and every foregoing allegation contained in the proceeding paragraphs, and hereby incorporates same by reference, as if fully set forth at length herein. 16. The trauma to the head of Plaintiff constituted an assault and/or battery, as Defendant is responsible for the injuries to the Plaintiff. That is, Defendant is responsible for the oversight of summer interns assisting with swimming pool instruction and activities, and Defendant caused trauma to the head of Plaintiff as she was violently swung twice into the side of the swimming pool despite her pleas to the contrary. Such injuries included ataxic, confusion, and slurring of words, as well as a concussion. 17. As a direct and proximate result of trauma to the head, Plaintiff was caused and did suffer bodily and personal injury, mental anguish, medical care, treatment and costs associated therewith. These losses are continuing in nature. COUNT III PUNITIVE DAMAGES 18. Plaintiff repeats each and every foregoing allegation contained in the proceeding paragraphs, and hereby incorporates same by reference, as if fully set forth at length herein. 19. Defendant acted with malice, fraud, gross negligence an&/or oppression, which was not the product of mistake of fact or law, honest error of judgment, overzealousness, mere negligence or other human failing. Defendant is responsible for the injuries to the Plaintiff. Such injuries included ataxic, confusion, and slurring of words, as well as a concussion. 20. An award of punitive damages is necessary to punish DefEndant and to deter others from the same or similar conduct. 6 21. The public interest would be served by the deterrent effe.ct of an award of punitive damages against Defendant. WHEREFORE, Plaintiff seeks damages to the fullest extent permitted by law, which does exceed the jurisdictional amount requiring arbitration, together with costs of this suit and attorney fees, and any other and further relief that the Court considers proper. A jury trial is demanded. April 2J;>, 2004 By: Respectfully submitted: THOMAS & ASSOCIATES Harrisburg, PA 17110 Tele: 717.541.9979 Attorney I.D. # 85150 Attorney for Plaintiff 7 BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor Plaintiff, YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 03-3138 COMPLAINT - Civil Action VERIFICATION The undersigned, pursuant to Pa. R.C.P. No. 1024(b), hereby verifies that the Plaintiff is outside the jurisdiction, and consequently this Verification is made not based upon personal knowledge, but predicated upon information provided to the undersigned that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. By: ~1; lh° o~h' [rho°n~;eEe~quire Harrisburg, PA 17110 Tele: 717.541.9979 Attorney I.D. # 85150 Attorney for Plaintiff 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Brucis M. Carter, on behalf of Lashae Carter, a minor, Pl~miff Young Men's Christian Association of Carlisle, Defendant CASE NUMBER: 03-3138 ISSUE NUMBER: PLEADING: PRAECIPE FOR APPEARANCE CODE AND CLASSIFICATION: FILED ON BEHALF OF: Young Men's Christian Association of Carlisle, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 CIPRIANI & WERNER, P.C. 1017 Mumma Road Lemoyne, PA 17043 (717) 975-9600 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Brucis M. Carter, on behalf of Lashae Carter, CASE NO: 03-3138 a minor, Plaintiff Vo Young Men's Christian Association of Carlisle, Defendant PRAECIPE FOR APPEARA~ CE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter my appearance on behalf of the Defendant, Young Men's Christian Association of Carlisle, in the above-captioned matter. A JURY TRIAL IS DEMANDED Respectfully submitted, ?fS"J. I~O~ETTI, ESQUIRE Aoy~gtey for the Defendant Men's Christian Association of Carlisle CERTIFICATE OF SERVICE That counsel for the Defendant, Young Men's Christian Association of Carlisle, hereby certifies that a true and correct copy of its PRAEC]PE FOR APPEARANCE has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the Q day of ,2004. Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 BY: Respectfully submitted, RNER, P.C. ~II-S J~tB~)NETTI, ESQUIRE At~ ney for the Defendant Y6ung Men's Christian Association of Carlisle IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Brucis M. Carter, on behalf of Lashae Carter, a minor, Plaintiff Young Men's Christian Association of Carlisle, Defendant CASE NUMBER: 03-3138 ISSUE NUMBER: PLEADING: PRELIMINARY OBJECTIONS CODE AND CLASSIFICATION: FILED ON BEHALF OF: Young Men's Christian Association of Carlisle, Defendants. COUNSEL OF RECORD: DENNIS J. BONE'I-rl, ESQUIRE Pa. ID# 34329 CIPRIANI & WIERNER, P.C. 1017 Mumma Road Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Brucis M. Carter, on behalf of Lashae ) Carter, a minor, ) ) Plaintiff ) ) ) v. ) ) Young Men's Christian Association of ) Carlisle, CASE NO: 03-3138 JURYTRIALDEMANDED Defendant PRELIMINARY OBJECTIONS OF YOUNG MEN'S CHRISTIAN ASSOCIATION CARLISLE AND NOW, comes Defendant, Young Men's Christian Association of Carlisle "YMCA"), by and through its counsel, Cipriani & Werner, and hereby files the following Preliminary Objections to Plaintiff's Complaint. A. PRELIMINARY OBJECTION PURSUANT Ti::) PA.R.C.P. 1028 (a)(2)(3) 1. On April 28, 2004, Plaintiff filed a Complaint in the above-referenced matter. 2. Pa.R.C.P. 1019 requires that: (a) The material facts upon which a cause of action or defense is based shall be stated in concise and summary form. (b) Averments of fraud or mistake shall be averred with particularity... (f) Averments of time, place and items of special damage shall be specifically stated. as follows: Plaintiff's Complaint fails to comply with the aforementioned requirements a. The Complaint does not identify the date and/or time of the alleged incident; b. It does not identify the location with an!/reasonable specificity; c. The Complaint does not identify andy alleged agents, servants or "summer interns" purportedly involved iin this incident; d. The Complaint does not set forth the material facts as to what actually occurred; e. Subparagraphs (a) through (p) of paragraph 9 state nothing more than general legal conclusions without any f:3ctual basis. 4. Rather than pleading the facts necessary to put the YMCA on notice of the claims to be defended, PlaintifFs Complaint is filled with generalized boilerplate averments that provide no substantive information with regard to the claims that the YMCA should be prepared to defend. 5. To the contrary, the only averment that could be remotely categorized as an averment of fact is buried in the middle of Count II "Assault and Battery", paragraph 16 (of a 21-paragraph Complaint), which states: The trauma to the head of Plaintiff constituted an assault and/or battery as Defendant is responsible for the injuries to the Plaintiff. That is, Defendant is responsible for the oversight of summer i~nterns assisting with swimming pool instruction and activities, and Defendant caused trauma to the head of Plaintiff as she was violently swung twice: into the side of the swimming pool despite her pleas to the contrary. 6. However, the Complaint is devoid of any allegations as to who was allegedly the perpetrator of this activity, when this activity took place, what if any role any YMCA employees had with regard to this activity, any notice of this impending activity or any other facts required to be pleaded pursuant to the Rules of Civil Procedure. 7. The allegations of the Complaint (with the possible exception of the rather nebulous allegations involving damages) fail to conform to law or the Rules of Courts and said allegations are vague and do not state material facts. 8. The Complaint fails to advise the YMCA of the specific acts of commission or omission which constitute the alleged improper conduct of which Plaintiff complains. 9. The general allegations contained in the Complaint fail to inform the YMCA of the issues that it must meet at trial, and further prevents the YMCA from forming a proper Answer to the Complaint. 10. The defective Complaint severely prejudices the YMCA in that, if allowed to remain without pleading specific facts, it will then ellow Plaintiff the opportunity to amend the Complaint and introduce new causes of action after the applicable Statute of Limitation has expired. See Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), and its progeny, including Starrv. Mya,rs, 109 Dauphin 147 (1988). WHEREFORE, the Young Men's Christian Association of Carlisle requests that the Complaint be stricken with the opportunity of Plaintiff filing a more specific Complaint that complies with the Pennsylvania Rules of Civil Procedure. B. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER PURSUANT TI ~ PA.R.C.P. 1028 (b){4) 11. In Count II, Plaintiff alleges: 16. Trauma to the head of Plaintiff constituted an assault and/or battery, as Defendant is responsible for the injuries to the Plaintiff. That is, Defendant is responsible for the oversight of summer interns assisting with swimming pool instruction and activities, and Defendant caused trauma to the head of Plaintiff as she was violently .'swung twice into the side of the swimming pool despite her pleas to the contrary. 12. Plaintiff did not allege that the YMCA committed said acts or, for that matter, that any agent, servant or employee (including the summer interns) actually committed said alleged act. 13. Although by no means clear, it appears that Plaintiff is attempting to allege that some unidentified third person swung Plaintiff into the side of the pool and that somehow the YMCA should have, with the exercise of reasonable care, stopped the activities of these unidentified individuals. 14. The foregoing allegations are legally deficient to support a claim for either assault or battery. 15. In Cucinotti v. Ortman, 159 A.2d 216 (Pa. 1960), the Pennsylvania Supreme Court affirmed the Decision of the Trial Court to dismiss a claim of assault. The Supreme Court noted: Generally speaking, an assault may be de,scribed as an act intended to put another person in reasonable apprehension of an immediate battery, and which succeeds in causing an apprehension of such battery. (Citation omitted) Words in themselves, no matt,~r how threatening, do not constitute an assault; the actor must be in a position to carry out the threat immediately, and he must take some affirmative action to do so. (Emphasis applied in original.) Cucinotti Id. at 217. 16. In the present case, there are no averments of any threat. Certainly, the Complaint is devoid of any allegations of any threats by anyone under the control of the YMCA. 17. In Montgomery v. Bazaz. Sehgal, 742 A.2d 1125 (Pa. Super 1999), the Superior Court reiterated the elements necessary to stalle a cause of action in battery by quoting from Section 18 of the Restatement (Second of 'Torts), as follows: The actor is subject to liability to another for battery if: a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. An offensive contact with the person of the other directly or indirectly results. Montgomery Id. at 1130. 18. In other words, to state a cause of action for battery, Plaintiff must allege that the Defendant improperly touched Plaintiff. In the present case, there is no allegation that any agent, servant or employee of the YMCA was actually involved in the alleged touching of the Plaintiff. WHEREFORE, the Young Men's Christian Association of Carlisle request that a demurrer be sustained to Count II and that Count Ill be stricken from Plaintiff's Complaint. 20. alleges: C., PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER PURSUANT T[~ PA.R.C.P. 1028 {b){4) 19. Without alleging any material facts, Plaintiff alleged in paragraph 14: Defendant acted with malice, fraud, gross negligence and/or oppression, which was not the product of mistake ,of fact or law, honest error of judgment, overzealousness, mere negligence or other human failing. Further, the Complaint includes in Count III, punitive damages and Defendant acted with malice, fraud, gross negligence and/or oppression, which was not the product of mistake of fact or law, honest error of judgment, overzealousness, mere negligence or other human failing. Defendant is responsible for the injuries to the Plaintiff. Such injuries included ataxic, confusion, and slurring of words, as well as a concussion. An award of punitive damages is necessary to punish Defendant and to deter others from the same or similar conduct. The public interest would be served by the deterrent effect of an award of punitive damages against Defendant. 21. The aforesaid allegations, along with the other allegations contained in Plaintiff's Complaint aver at most, negligence on the parl: of the YMCA, which is legally deficient to support a claim for punitive damages. 22. Plaintiff has failed to allege any material facts to demonstrate that the actions of the YMCA "were 'outrageous,' badly motivated or recklessly indifferent." Start v. Allegheny General Hospital, 307 Pa. Super. 2~'5, 451 A.2d 499, 506 (1982); Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (19880); See also Vaningen v. Wentz, 70 D&C2d 555 (Monroe ~975); Witchey v. L~isi, 17 D&C3d 131 (Clinton (1980); Adams v. Rodfong, 7 D&C3d 463 (Beaver ~978). 23. As a matter of law, the Plaintiff has failed to plead facts sufficient to support the conclusion that the YMCA acted in an intentional, reckless, malicious or outrageous manner which could warrant the imposition of punitive damages. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980); s~ also. Moran v. G. & W. H. Corson, Inc. 402 Pa. Super. 101, 586, A.2d 416 (199~) allocatur denied in 602 A.2d 860 (1991). 24. In a claim for punitive damages, "It]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious." Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984). 25. The factual cimumstances which make conduct outrageous or which give rise to an inference to the Defendant's state of mind must be pleaded. Witchey v. Lisi, 17 D&C3d 131 (Clinton 1980). 26. Outrageous conduct has been defined as: An 'act done with a bad motive or 'with a reckless indifference to the interests of others.' Focht v. Rabada, 217 Pa. Super. 35, 38, 268 A.2d 157 (1970) citing comment (b) to section 908 of the Restatement of Torts. 'Reckless indifference to the interests of others', or as it is sometimes, referred to, 'wanton misconduct', means that 'the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.' Evans v. Philadelphia Transportation Company, 418 Pa. 567, 574, 212 A.2d 440, 443 (1965). Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743, 745 (1980). 27. Further, to establish wanton or reckless conduct, Plaintiff must meet the requirements of Restatement (Second) of Torts, :§500, which defines "reckless disregard of safety" to exist when: The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable main to realize, not only that his conduct creates an unreasonable risk of physical harm to another but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Restatement (Second) of Torts, {}500 (quoted in Morgan v. G. & W.H. Corson, Inc., 402 Pa. Super. 101, 586 A.2d 416, 423 (1991), allocatur denied in 602 A.2d 860 28. Review of Plaintiff's Complaint reveals that Plaintiff has failed to plead sufficient facts to suggest that the YMCA acted outrageously, intentionally, recklessly or maliciously in any manner regarding the alleged accident. 29. To the contrary, Plaintiff's Complaint, at most, alleges negligence on the part of the YMCA. 30. Punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment. Martin v. Johns-Manville Corporation, supra., at A.2d at 1097. WHEREFORE, Defendant, Young Men's Christian Association of Carlisle, requests that a demurrer be sustained to Plaintiffs request for punitive damages and that Count III be stricken from Plaintiffs Complaint. Date: ~2-~ ~ By: CIPRIANI & WERNER ~]IS J. BONETTI, ESQUIRE Atto ney I.D. #34329 101' Mumma Road Lemoyne, PA 17043 (717) 975-9600 CERTIFICATE OF SERVICF That counsel for the Defendant, Young Men's Christian Association of Carlisle, hereby certifies that a true and correct copy of its Preliminary Objections has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the ~c~r''/J day of 6/~' ~ ,2004. Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 Respectfully submitted, C A &WERNER, P.C. ONE rtl, ESQUIRE ~o )rney for the Defendant ung Men s C[ r'stian Association of Carlisle PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and su~tted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl~-~e list the within matter for the n~t Argt~.ent Court. CAPTION OF CASE (entire caption must be stated in ~lll) .o~n~c~s M. Carter, on behalf of Lashae Carter, a minor, ( p1 ai ntiff ) Youn% Men's Christian Association of Carlisle, ( Defendant ) No. Civil 73-3138 19 State matter to be argued (i.e., plaintiff's motion for new tri~], defendant's d~.urrer to cu,%,l~int, etc.): Defendant's Preliminary Objections to Plaintiff's Complaint Identify co~msel who w~l] argue case: (a) for p]~i.tiff: Jeffrey J. Wood, Esquire, ~ss: Thomas & Associates, 3111 North Front Street Harrisburg, PA 17110 (b) for defendant: Dennis J. Bonetti, Esquire ~ress: Cipriani & Werner, 1017 Mu~mq Road, Lemoyne, PA 17043 3. I w~ 11 notify ~] ] parties in writing within ~o days that this case bas been listed for ar~t. 4. Azx3~ent Court Dete: Jul7 28, 2004 .~::2.z'.Z/~ ~--6'~ ,~for Dennis J. ~onetti, Esq. Attorney for Defedd~_~ CERTIFICATE OF SERVICE That counsel for the Defendant, Young Men's Christian Association of Carlisle, hereby certifies that a true and correct copy of its PRAECIPE FOR LISTING CASE FOR ARGUMENT has been served on all counsel of record, by first class mail, postage pre- paid,/~according to the Pennsylvania Rules of Civil Procedure, on the ) ~' day of :/'; ] l ~-s~ ~ ,2004. Jeffrey J. Wood, Esquire Thomas & Associates 3111 North Front Street Harrisburg, PA 17110 BY: C~ANI & WERNER, P.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Brucis M. Carter, on behalf of Lashae Carter, a minor, Plaintiff Young Men's Christian Association of Carlisle, Defendant CASE NUMBER: 03-3138 ISSUE NUMBER: PLEADING: MOTION TO COMPEL DISCOVERY CODE AND C~SSIFICATION: FILED ON BEHALF OF: Young Men's Christian Association of Carlisle, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 MARK R. ZOGBY,ESQUIRE Pa. ID# 84032 CIPRIANI & WERNER, P.C. 1017 Mumma Road Lemoyne, PA 17'043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Brucis M. Carter, on behalf of Lashae Carter, a minor, Plaintiff Young Men's Christian Association of Carlisle, Defendant CIVIL DIVISION CASE NO: 03-3138 JURY TRIAL DEMANDED MOTION OF DEFENDANT, YOUNG MEN'S CHRIS'I'IAN ASSOCIATION OF CARLISLE~ TO COMPEL DISCOVERY OF PLAINTIFF AND NOW, comes the Defendant, Young Men's Christian Association of Carlisle ("YMCA"), by and through its attorneys, Cipriani & Werner, P.C., and files the following Motion to Compel and in support thereof states the following: 1. This action was commenced by Writ of Summons on July 2, 2003. 2. On or about June 22, 2004, Defendant, YMCA, served Interrogatories and Request for Production of Documents upon Plaintiff. A true and correct copy of the Certificates of Service for Defendant, YMCA's, Interregatories and Request for Production of Documents respectively are attached hereto as Exhibit "A." 3. On or about August 16, 2004, counsel for Defendant, YMCA, wrote to counsel for Plaintiff and requested responses to Defendant, YMCA's, Interrogatories and Request for Production of Documents within thirty (30) days. A true and correct copy of counsel's August 16, 2004 letter is attached hereto as Exhibit "B." 4. To date, Plaintiff has neither answered Defendant, YMCA's, interrogatories nor responded to Defendant, YMCA's, Request for Production of Documents. Further, Plaintiff has not responded to counsel's letter of August 16, 2004. 5. Pennsylvania Rule of Civil Procedure 4003.1 provides, in relevant part, that "A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Pa. R.C.P. 4003.1 (a). 6. Under the discovery rules, Plaintiff had thilty (30) days from June 22, 2004 to serve its Answers or to object to Defendant, YMCA's, interrogatories and Request for Production of Documents. See, Pa. R.C.P. 4006 (a)(2) and 4009.12. 7. Pennsylvania Rule of Civil Procedure 4019 provides that: (a)(1) The Court may, on Motion, make an appropriate Order if: (viii) A party or person otherwise fails to make discovery or to obey an Order of Court respecting discovery. (c) make: 5. The Court, when acting under subdivision (a) of this Rule may Such Order with regard to the failure to make discovery as is just. WHEREFORE, Defendant, YMCA, respectfully requests that this Honorable Court enter an Order compelling Plaintiff to provide full, complete and adequate answers and responses to Defendant's Interrogatories arid Request for Production of Documents. Date: By: CIPRIANI & WERNER Attorney I.D. #34329 MARK R. ZOGBY, ESQUIRE Attorney I.D. #84032 1017 Murnma Road Lemoyne, PA 17043 (717) 975-9600 Attorney for the Defendant BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor, Plaintiff YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 03-3138 JURY TRIAL DEMANDED TO: iNTERROGATORIES OF D.EFENDANT YOUNJ3 MEN'S CHRISTIAn A~SOCIATION OF CARLISL.~_L~_,~E DIRECTED TO ~LAI____~IFF - FIRST SET Plaintiff, Brucis Carter, on behalf of Lashae Carter, a minor c/o Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 WE ARE ENCLOSING HEREWITH Interrogatories propounded by Defendant, Young Men's Christian Association of Carlisle, to be answered by Plaintiff within thirty (30) days from the date of service hereof with the request that a copy of the Answers be served upon counsel for the Defendant pursuant to Pennsylvania Rules of Civil Procedure, Rule 4005. You are further notified that if you later learn of any information not supplied in your 'Answers to these Interrogatories, you are required by the Rules of Civil Procedure to supply the undersigned with such information in the form of Supplemental Answers to these Interrogatories. , "~X'I ~ C,~I ~/~i/~ WERNER / De ~tfis I. 'BonetU, ~squ P~,t~ orney I.D.//34329 I017 Mumma Road Lemoyne, PA 17043 (717) 975-9600 Attorney for Defendant DEFINITIONS The following definitions are applicable to each Interrogatory and are incorporated by reference into each Interrogatory. (a) The terms "you" or "your" as used herein shall be deemed synonymous and shall be deemed to include the Plaimiff and any and allt appropriate agents, servants, employees, attorneys, insurers, and other representatives of Plaintiff. (b) The term "person" as used herein, means any natural person, partnership, corporation, or other business entity and all officers, former officers, directors, agents, employees, attorneys and others acting or purporting to act on behalf of such natural person, partnership, corporation or other business entity. (c) The term "document" as used herein, means the original and all copies of any writing and any other tangible thing or data compilation in your custody, possession or control, including, but not limited to, letters, reports, agreements, telegrams, memoranda, summaries or records of personal or telephone conversations., diaries, tape recordings, statistical statements, minutes or records of meetings, minutes or records of conferences, expressions or statements of policy, lists of persons attending meetings or conferences, report and/or summaries of interviews, opinions or reports of consultants, reports or summaries of negotiations, brochures, pamphlets, circulars, draft of any documents, revisions of drafts of any documents, and original or preliminary notes. (d) The term ,,communications" as used herein, means all statements, admissions, denials, inquiries, discussions, conversations, negotiations, agreements, contracts, understandings, meetings, telephone conversations, letters, correspondence, notes, telegrams, telexes, advertisements, or any other form of written or verbal intemourse. (e) The term "identify" as used with respect to documents means to state the date, author, addressee, type of document (e.g., letter), to identi~y its last-known custodian and location and the exhibit number of the document if it has been marked during the course of a court proceeding. (f) The term "identify" as used with respect to non-written communications, means to state the date, persons that participated in the communication, type of communication (e.g., telephone conversation) and substance of the communication. (g) The term "identify" when used with respect to an individual, means to give the person's full name, all known aliases, present and last-known telephone number and present position or business affiliation. (h) The term "identify" when used with respect to any other person, means to give the person's official, legal and formal name and/or the name under which the person acts or conducts business; the address of the person's place of business, profession, commerce or · home; and the identify of the person's principal or chief executive officer or person who occupies a position most closely analogous to a chief executive. (i) If you claim that the subject matter of a document or ora! comrnunication is privileged, you need not set forth the substance o[ the document or oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. iNTERROGATORIES 1. State: (a) Co) (c) (d) Your full name; Your date and place of birth; Your present home address; Your social security number; and From birth to the date of the accident, state whether you have been treated or examined by any doctor, nurse or therapist or have been treated or examined in or conf'med to, as out-patient or as in-patient, an3' hospital, clinic, nursing home, or other health care provider, and state: (a) The name and address of each such doctor, nurse, therapist, hospital, clinic or nursing home; (b) The nature of the treatment rendered or the examination performed by each such doctor, nurse, therapist or in each such hospital, clinic or nursing home; and Each date upon which each such treatment was rendered. (c) (a) (c) (d) (e) In detail, each injury you claim you sustained as a result of the accident upon which this action is based; The date you recovered from each particular injury; If you are not fully recovered, in what respect are you still affected by each injury, giving your present disabilities and complaints in detail; Dates confined to bed by your injuries; Dates confined to your house by your injuries; and Each health care provider from whom you sought diagnosis, treatment or other services as a result of each injury. From the time of the accident to the present, state whether you have been treated or examined by any doctor, nurse or therapist, or have been treated or examined in or confined to, as out-patient or as in-patient, any hospital, clinic, nursing home, or other health care provider, and state: (a) The name and address of each such doctor, nurse, therapist, hospital, clinic or nursing home; (b) The nature of the treatment rendered or the examination performed by each such doctor, nurse, therapist or in each such hospital, clinic or nursing home; and (c) Each date upon which each such treatment was rendered. Do you have a family physician or other medical practitioner with whom you consult for a general physical or mental complaint? If so, give his name and address and the date upon which you last consulted him or her and the reason for such consultation. If, as a result of this incident, you have been unable to perform any of your customary occupational duties or social or other activities in the same manner as prior to the incident, state with particularity: (a) The duties and/or activities you have been unable to perform; (b) The periods of time you have been. unable to perform; and (c) The identity of all persons having knowledge thereof. 7. If you sustained any financial loss as a result of the: accident upon which this action is [~ased, other than those covered by the preceding interrogatories, state: (a) The nature, dates and amounts of such losses; (b) If claim is made for nursing service or household help, state the name and address of each person employed, the period of employment and the amounts of the charges for the same and the amounts actually paid; (c) Whether you or anyone acting on your behalf retained bills, cancelled checks or copies thereof reflecting such charges; and if so, (d) Please forward a copy of each such bill or cancelled check to me with your answers to these interrogatories. Have you ever made claim for any benefits under any medical pay coverage or policy of insurance relating to injuries from the incident out of which this claim arose? If so~ state: (a) The name of the insurance company or organization to whom said claim was made; (b) The date of the claim or application; (c) The claim number and policy number; (d) Whether or not such claim was paid, and, if so, the nature and amount received; and (e) Whether the company required you to assign to it any rights of recovery you may have against others. Please supply the following information as to any and all experts who you ex20ect to or may call at trial to testify on any aspect of this case: (a) His full name and address; (b) (c) (d) (e) (0 (g) (b) (i) His age; His present professional affiliations and employment; His prior educational background; His prior occupational background; The titles, publication names, dates and page numbers and present source for all writings and speeches; The subject matter on which the expert may or is expected to testify; The substance of the facts to which the expert may or is expected to testify; Any mad all opinions to which the expert may or is expected to testify; A summary of the grounds for each opinion; and The date when the expert was initially contacted by Plaintiff, Plaintiff's counsel or any individ'aal representing Plaintiff or acting in any fashion on behalf of Plaintiff. lO. With respect to (a) (b) (c) (d) each expert witness previously identified, state: Whether the facts and opinions upon which he is expected to testify are contained in a written report, memorandum or other transcript, and, if so, attach a copy of said document to your answers to these interrogatories; If the opinion of any expert listed is based in whole or in part on any code or regulation, governmental or otherwise, state the narare of any such code or regulation, identifying it by title or description, setting forth the name and date of publication and page number, and specifically set forth the section retied upon; If the opinion of any expert listed is based in whole or in part on any scientific rule or principle, set forlh said rule or principle; and If the opinion of any expert listed, is based in whole or in pan upon any scientific or engineering texthook, or any other publication, set forth the name of said textbook or publication, its author, the date of publication and the specific portion of said textbook or publication, giving chapter and page numbers. 11. Identify each and every person that you intend to call as a witness at trial. 12. Identify each exhibit you intend to introduce at trial. 13. Except as set forth in Interrogatories No. 13 and 14 above, list the narrtes and addresses of all persons known or believed by you or anyone acting on your behalf who has knowledge of any discoverable matter. Were any investigations made or reports prepared regarding the incident out of which this claim arose? If so, for each investigation or report, state: (a) The subject matter contained therein; (b) The name, address and occupation of the person or persons making, preparing or submitting the same; (c) The identify of the person or persons to whom the investigation or report was directed or addressed; (d) The identity and the location of the person or persons having its present custody and control; and (e) The substance of such investigation or report. 15. Are you, or does anyone acting on your behalf, have possession of or know of the existence of any photographs of the instrumentalilies, equipment, tools, locality or any other thing or matter involved in the incident in suit? If so, state: (a) The date or dates when such photographs were taken; (b) The name and address of the party taking them; (c) Where they were taken; (d) The present whereabouts of the photographs, and the names and addresses of the persons presently in custody thereof; (e) The specific subject matter of the photographs; and (f) What the photograph or photographs purport to show or illustrate or represent. 16. Have you ever been involved in any other legal action for personal injury or property damage, either as a defendant or as a plaintiff? If so, state: (a) Date and place each such action was filed, giving the name of the court, the names of the other parties involved, the number of such action and the names of the attorneys representing each party; (b) The description of the nature of each such action; and (c) The result of each such action, whether there was an appeal, and the result of the appeal. 17. Have you ever made any claim for any benefits under any insurance policy or against any person, firm or corporation for personal injuries of for a physical condition other than for the accident which is the subject of Plaintiff's Complaint'? If so, state: (a) (b) (c) (d) The injury or condition for which such claim was made; The name and address of the person, firm or corporation to whom or against whom it was made; The date it was made; and The nature and amount of any payment received therefrom. 18. Are you withholding from production under any of the preceding interrogatories and/or request to produce any document or t:a~gible item on the grounds of privilege or work product? If so, please state: (a) (b) (c) (d) (e) (0 The identify of the document or item; The date the document was prepared; The identify of the author of the document; The recipient of the document (if ~my); The grounds on which you are withholding the document from production; and The identity of the custodian of the document. cIP~ ~NI ~&~WERNER ~)ghn s J. Bonetti, Esquire Nttorney I.D. #34329 1017 Mumma Road Lemoyne, PA 17043 (717) 975-9600 Attorney for the Defendant CERTIFIC__ATE OF SE__RVICE: I HEREBY CERTIFY that a true and correct copy of the foregoing Interrogatories of Defendants Directed to Plaintiff - First Set has been duly served upon all counsel of record and parties of interest by depositing the same in the United States mail, first class, postage ~..f~J f'X , .) 200,4, addressed as follows: prepaid, on this ,.,~) . day of [ ~3~.~ ' Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 CIPRIANI & WERNER BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor, Plaintiff YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE, Defendant IN THE COURT OF COMMON PLEAS CUIVlBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 03-3138 JURY TRIAL DEMANDED REQUE_ST FOR PRODUCTION OF DOCUMEN_TS OF DEFENDANT YOUNG MEN'S CHRISTIAN'ASSOCI"---ATION OF CARLISLE, DIRECTED TO pL__~AINTII~'F- FIRST SET TO: Plaintiff, Bmcis Carter, on behalf of Lashae Carter, a minor c/o Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 Pursuant to Pa. R.C.P. 4009, you are hereby requested to produce the below listed documents and/or items for purposes of discovery. 'This material will be examined and/or photocopies; photograph negatives will be processed and photographs reproduced. Said documents or tangible things are to be produced at the oftices of Cip?iani & Werner, 1017 Murmna Road, Lemoyne, PA 17043, within thirty (30) days of the date of service hereof and supplemented thereafter in accordance with Pa. R.C.P. 4007.4. You are further notified that if you later learn of any information not supplied in your Response to Request for Production of Documents, you are required by the Rules of Civil Procedure to supply the undersigned with such information in the tbrm of Supplemental Responses to Request for Production of Documents. 1. The entire contents of any investigation file or files and any other documentary material in your possession which support or relate to Plaintiffs' Complaint (excluding references to mental impressions, conclusions or opinions representing the value or merit of the ctaim or defense or respecting strategy or tactics and privileged communications from and to counsel). 2. Any and all statements concerning the action, as defined by Rule 4003.4, including, but not limited to, statements from the parties herein, potential witnesses, individuals with knowledge of any discoverable matter, or their respective agents, servants or employees. 3. All photographs taken or diagrams prepared of the scene of the accident or any instrumentality involved therein. 4. Any and all documents containing the names anti home and business addresses of all individuals contacted as potential witnesses. · 5. Reports and curriculum vitae of any and all e~:perts who will testify at trial. 6. Any and all medical records, x-rays, physician's reports and bills, hospital records or abstracts of same which relate in any way to the injuries allegedly afflicting Plaintiffs, as well as the treatment of any similar injuries or illnesses prior or sul0sequent to the occurrence of the incident which gave rise to this action, response to Interrogatories of Defendant, propounded '7. All documents identified in upon Plaintiff. 8. All exhibits and/or demonstrative evidence intended to be used at trial. Date: By: CIPRIANI ~ WERNER D~s J. Bonetti, Esquire Attorney I.D. #34329 1017 Munmaa Road Lemoyne, PA 17043 (717) 975-.9600 Attorney for the Defendant CERTIFICATE OF S~ER¥I___CE I HEREBY CERTIFY that a tree and correct copy of the foregoing Request for Production of Documents Directed to Plaintiff - First Set has been duly served upon all counsel of record and parties of interest by depositing the same in the United States mail, first class, postage prepaid, onthis ~tg~L[._day°f'/~- '~'-~ ,2004, addressed as - rd follows: Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 CIPRIANI & WERNER Dennis P Cullen Jr. ~: Dennis J, Bonetti * Lewis L. Wolfgang jason R. BumS ~ Mark R. Zogby Julia E. Snow Hal A. Kestler Of Counsel Also admitted in NJ Also admitted in D C. & NJ Board Certified Civil Trial Adv°cate CIPRIANI & WERNER pRoFESSIONAL CoRpORATION ATTORN~T LAW 1017 Murama Road Lemoyn¢, pennsylvania 17043-1145 Telephone (717) 975-9600 Fax: (717) 975-3846 vonw.C-WLAW.cote Philadelphia Office: Suite 111 482 Norrislowu Road Blue Bell, PA 19422-2352 Telephone (610) 567-0700 Pittsburgh Office: Suite 1100 Two Chatham Center pinsburgh, PA 15219-3437 Telephone (412) 281-2500 Scranton Office: Suite 210 Oppanheira Building 409 Lackawanna Avenue Scranton, PA 18503-2059 Telephone (570) 34743600 Writer's E.rnail: DBonetti~c-wlaw.com August 16, 2004 Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 Jeffrey Wood, Esquire 3111 North Front Street Harrisburg, PA 17110 Re: Carter v. YMCA Dear Gentlemen: On June 22, 2004, I served interrogatories and Request for Production of Documents. To date, you have not responded to the discovery request. Kindly file substantive responses within thirty (30) days of the date of this letter. Otherwise, I will have no choice but to file a Motion to Compel. Should you have any questions or wish to discuss this matter further, please do not hesitate to contact me. Ve~/truly yours, DJB/oeb Dennis J. Bonetti on all counsel Pennsylvania CERTIFICATE OF SERVICE. That counsel for the Defendant, Young Men's Christian Association of Carlisle, hereby certifies that a true and correct copy of its Motion to Compel has been served of record, by first class mail, postage pre-paid, according to the Rules of Civil Procedure, on tile ~ "/% day of _, 2004. Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 BY: Respectfully submitted, CIPRIANI & WERN~-R, P.C. D~I~NIS J. BO~F.~I, ESQU MARK R. ZOGBY, ESQUIRE Attorney for the Defendant Young Men's Christian Association of Carlisle OCT 1 2 200~, ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Brucis M. Carter, on behalf of Lashae Carter, a minor, Plaintiff Young Men's Christian Association of Carlisle, ) ) ) ) ) ) ) ) ) CASE NO: 03-3138 JURY TRIAl_ DEMANDED Defendant ORDER AND NOW, this /?" day of /').~J.~- , 2004 this Honorable Court hereby orders that Plaintiff is compelled to provide full, complete and adequate answers and responses to Defendant's Interrogatories and Request for Production of Documents within 3o days of the date of Athis order. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C1VIL DIVISION Brucis M. Carter, on behalf of Lashae Carter, a minor, Plaimiff Young Men's Christian Association of Carlisle, Defendant CASE NUMBER: 03-3138 ISSUE NUMBER: PLEADING: PRAECIPE TO FILE CERTIFICATE OF SERVICE CODE AND CLASSIFICATION: FILED ON BEHALF OF: INSERT NAME OF PARTY, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 CIPRIANI & WERNER, P.C. 1017 Mumma Road Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Brucis M. Carter, on behalfofLashae Carter, ) CASE NO: 03-3138 a minor, ) ) Plaintiff ) ) ) v. ) ) Young Men's Christian Association of ) Jth'3' Trial Demanded Carlisle, Defendant PRAECIPE TO FILE CERTIFICATE OF SERVICE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly file the attached Certificate of Service evidencing that a copy of the October 14, 2004 Order signed by Judge Hess compelling Plaintiff to provide full, complete and adequate answers and responses to Defendant's Interrogatories and Request for Production of Documents within 30 days of the service of the order was served upon counsel for Plaintiff on the 18th day of October, 2004. A JURY TRIAL IS DEMANDED Respectfully submitted, ~C~:~?~ & WERNER, P.C. BY:/;:~?J~- BONETTI, ESQUIRE Attorney for the Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Brucis M. Carter, on behalfofLashae Carter, ) CASE NO: 03-3138 a minor, ) ) Plaintiff ) ) ) v. ) ) Young Men's Christian Association of ) Jury Trial Demanded Carlisle, Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the October 14, 2004 Order signed by Judge Hess compelling Plaintiff to provide full, complete and adeqtmte answers and responses to Defendant's Interrogatories and Request for Production of Documents within 30 days of the service of the order was served upon counsel for Plaintiff on the 18th day of October, 2004 via first class mail as follows: Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 Respectfully submitted, D/ENNIS J. BONETTI, ESQUIRE Attorney for the Defendant CERTIFICATE OF SERVICE I hereby certify that a tree and correct copy of the foregoing Praecipe to File Certificate of Service was served upon all counsel of record by depositing the same in first-class mail on the 18th day of October, 2004 as follows: Anthony Thomas, Esquire 3111 North Front Street Harrisburg, PA 17110 BY: Respectfully submitted, C If,~ WERNER, P.C. I~E~qlS J. BONETTI, ESQUIRE A~tomey for the Defendant BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : NO.: 03<1138 CIVIL TERM YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE Defendants : CIVIL ACTION : JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS Before HOFFER, P.J. and OLER. J. JJ.. ORDER OF COURT AND NOW, this r day of -'12~, 2005, upon consideration of the Defendant's Preliminary Objections to the Plaintiff's Complaint, it is hereby ordered that the objections are SUSTAINED and Complaint is DISMISSED without prejudice. By the Court, / t. ,Anthony N. Thomas, Esquire 3111 N. Front Street Harrisburg, PA 17110 (717)541-9979 Attorney for Plaintiff ;6ennis J. Bonetti, Esquire Cipriani & Werner, P.C. 1017 Mumma Road Lemoyne, PA 17043 (717)975-9600 Attorney for Defendant I BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : NO.: 03-::1138 CIVIL TERM YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE Defendants : CIVIL ACTION : JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS Before HOFFER, P.J. and OLER. J. OPINION HOFFER. P.J.: Before the Court are the Preliminary ObjeGtions of the Defendants, Young Men's Christian Association of Carlisle (hl3reinafter "YMCA") to the Complaint of the Plaintiff, Lashae Carter. The Complaint asserts negligence, assault and battery, and punitive damages claims against the YMCA. The Defendant's first objection contends that the Complaint be stricken and that the Plaintiff be required to file a more specific Complaint. The two other objections are in the nature of a demurrer dismissing both the assault and battery and punitive damages claims. This issue was scheduled to be argued before the Court on July 28, 2004. However, the Plaintiff's attorney failed to appear and failed to file a brief responding to the Defendant's objections. For reasons stated within this opinion, Defendant's Preliminary Objections shall be SUSTAINED. STATEMENT OF FAGTS The allegations that can be gathered from the Complaint are paltry at best. It appears that the Plaintiff, Lashae Carter, is a fourteen-year-old girl, who on an unspecified date visited some facility maintained by the YMCA. (Complaint 1]1-10.) No specific address or location of this facility is provided. The Plaintiff played in a swimming pool on the premises wherein she sustained bodily injury as a direct result of trauma to the head. (CampI. 1]16- 17.) No agent or employee of the YMCA is identified or referred to as being involved in the incident. It is simply alleged that "Defendant caused trauma to the head of Plaintiff as she was violently swung twice into the side of the swimming pool despite her pleas to the contrary." (CampI. 1] 16.) Furthermore, although the Plaintiff states that her injuries were a direct result of the YMCA's negligence and recklessness (Corn pI. 1] 11), no allegations describing any instances of negligent acts or omissions are averred. DISCUSSION Preliminary Objections may be brought based on insufficient specificity in a pleading. Pa.R.C.P. 1028(a)(3)(2004). A plaintiff is required to state "[t]he material facts on which a cause of action ... is based ... in a concise and summary form." Pa .R.C.P. 1019(a). This rule requires that the complaint give notice to the defendant of an asserted claim and synopsize the essential facts to support the claim. Kraisa v. Keypunch. Inc., 622 A.2d 335, 357 (Pa.Super.Ct. 1993). In addition, "averments of time, place and items of 2 special damage shall be specifically stated." Pa.R.C.P. 1019(f). To determine if a complaint meets Pennsylvania's specificity requirements, a court must ascertain whether the facts alleged are "sufficiently specific so as to enable [a] defendant to prepare [its] defense." Smith v. Wagner. 588 A.2d 1308, 1310 (Pa.Super.Ct. 1991). Where a pleading fails to conform to a rule, it is susceptible to preliminary objections. See Pa. R. C. P. 1028(a)2. In the instant case, a careful reading of the Complaint indicates that the Plaintiff's claims cannot be understood as a synopsis of essential facts that gives the YMCA notice of what must be defended against. It does not identify: 1) the date and/or time of the incident; 2) the location; 3) if any YMCA employees or agents were involved in the incident.: 4) any material facts describing the circumstances of the incident. The closest thing to an averment of fact appears in Paragraph 16, where it is alleged that "the Defendant caused trauma to the head of the Plaintiff as she was violently swung twice into the side of the pooL.." The Complaint fails to give any essential facts that would enable the YMCA to identify the incident in question or prepare a defense. Therefore, it fails to conform to the requirements of Rule 1019(a),(f) and must be stricken. Pa.R.C.P 1028(a)(4) also allows for preliminalY objections based on legal insuffiCiency of a pleading. When reviewing pn3liminary objections in the form of a demurrer, "all well-pleaded material, factual averments and all inferences fairly deducible therefrom" are presumed Ita be true. Tucker v. 3 Philadelphia Dailv News, 757 A.2d 938, 941-42 {pa.Super.Ct. 2000). Preliminary objections, whose end result would be the dismissal of a cause of an action, should be sustained only where "it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief." Bourke v. Kazara. 746 A.2d 642, 643 (Pa.Super.Ct. 2000). A complaint which consists of argumentative conclusions as opposed to properly pleaded statElments of fact cannot withstand a demurrer for failure to set forth a claim. Division 85 Amalgamated Transit Union v. Port Authoritv, 455 A.2d 1265 (Pa.Commw.Ct. 1983). In their objections to the battery and assault claim (Count II) and punitive damages claim (Count III), YMCA contends that no facts pleaded can establish these claims, and that only argumentative legal conclusions are presented. After an examination of the Complaint, the Court agrees. In Pennsylvania, an actor commits a battery if: (a) he acts intending to cause a harmful or offensive contact with a person, or a imminent apprehension of such a contact, and; (b) a harmful contact directly or indirectly results. Restatement (Second) of Torts ~18. Furthermore, an assault is committed if: (a) a person acts with the intention to cause a harmful or offensive contact or to put another in reasonable apprehension of an immediate battery, and; (b) he succeeds in causing an immediate apprehension. Restatement (Second) of Torts ~21. Both bodily contact and/or intent to cause bodily contact or immediate apprehension of such contact are necessary elements. 4 In the instant case, absent from the Complaint is any allegation of bodily contact between the Plaintiff and a YMCA employee, yet alone harmful or offensive contact. Further absent are any alle!~ations that any YMCA employee acted to place the Plaintiff in reasonable apprehension of imminent harmful bodily contact. Without these facts, this claim is insufficiently pled. Likewise, the claim for punitive damages is legally insufficient and cannot withstand a preliminary objection. PunitivEl damages must be based on conduct which is "'malicious', 'wanton,' 'reckless', or 'willfull'." Chambers v. Montaomerv, 192 A.2d 355, 358 (Pa. 1963). In order to substantiate a punitive damages claim, facts must be pled to demonstrate that an actor's conduct was not just tortious or wrong, but outrageous. See M. Commonwealth v. Kitchen Aooliances Distributors. Inc., 27 Pa. D. & C.3d 91 (Pa.Com.PI. 1981.) The only averments in the Complaint charactl9rizing the YMCA's conduct state that, "[they] acted with malice, fraud, woss negligence and/or oppression..." (Com pI. 11 19), and that "Defendant knew, or in the exercise of reasonable care should have known, that [safety measures) were inadequate" (Com pI. 90).) These statements are not factual, but merely conclude that some unspecified conduct was malicious and reckless. They are insufficient to put the YMCA on notice as to what outrageous conduct is being alleged, let alone summarize that conduct. Therefore, the pleading violates Pa.R.C.P. 1 019(a),(f), and this preliminary objection must sustained. 5 ,I . i ~i ." 'J ~ f' .(... U,':: ';... z - ~i Ij ';;}GZ -