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99-04754
Y z x a A IZ6 e-? w IAN STUART, P.C. ATTORNEY AT LAW BY: JAMES P. CARFAGNO, ESQUIRE I.D. 82960 Suite 608 1211 Chestnut Street Philadelphia, PA 19107 (215) 928-1129 ATTORNEY FOR PLAINTIFF THIS IS AN ARBITRATION CASE. ASSESSMENT OF DAMAGES HEARING IS NOT L. G. DeWitt Trucking: Company Inc. Plaintiff VS. Pleasants Inns and Super: 8 Motel Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY COMPLAINT NO. (?q -- "/7 - .Sy COMPLAINT - CIVIL ACTION NOTICE You have been rod in Court. Ifyou with to defeM against the claim ntforth in the following pager, you mtot take arrian w,dun twemy (20) days after this Cornolalro and Notice are ter d, by entering a written appearance personally or by attorney ad filing in writing with the Court your defewer or abjection to the claims set rand, agdwtyou, Yowex mdthw Ifyoufailtodoso,theemerimy Proceed withow you and a fud8mem may be entered agalmt you by the Coun without further "Ice for any money chinned in the Comphdat orfor any other claim orrellefrequevdbydepla/wig. You may lose money orpmperty or other right, to ponam talent. YOUSHOUIDTAKETIIISPAP£RT'0 YOURLAWYERATONCE. IFYOUDO NOT 11AVEA LAWYER OR GNNGTAFFORD ONE, GOTOOR 7ELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. PHILADELPHIA COUNTY Lawyer Referral and ISho wevon Service One Reding Came, Philadelphia. Pennglvmia 19107 (115)138.1701 l_Iog Cl JL"? AWSO Le him demaedado a toted to to roar. 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CARFAGNO, I.D.#82960 The Lewis Tower Building 27"' Floor 225 South 15" Street Philadelphia, PA 19102 ATTORNEY FOR PLAINTIFF L.G.DEWITT L. G. DeWitt Trucking Company Inc. COURT OF PLAINTIFF(S) : CUM13ERLLANDOCOUNTYLEAS VS. COMPLAINT PLEASANTS INNS and SUPER 8 MOTEL NO. DEFENDANT(S) COUNT I 1. Plaintiff, Certain Underwriters at Lloyds of London, herein after Lloyds, is an insurance company authorized to do business within the State of Pennsylvania. 2. The plaintiff L.G. DeWitt Trucking Company, Inc., is a trucking corporation that purchased certain insurance from Lloyds, providing coverage for among other things, loss from theft. 3. The defendant Pleasant Inns and Super 8 Motel is a motel located at 1800 Harrisburg Pike, Carlisle, PA. 4. Upon information and belief, and at all times pertinent hereto, the defendant Pleasant Inn and Super 8 Motel, was acting by and through its agents, servants, workman and employees in the course and scope of their employment and furtherance of the business of the Super 8 Motel. 5. Upon information and belief, in approximately May of 1992 DeWitt Trucking, began renting a motel room from the defendant, Pleasant Inn and Super 8 Motel. DeWitt Trucking, maintained an office at this location from approximately May of 1992 through of October of 1997. 6. During this relevant time frame, the defendant Pleasant Inns and Super 8 Motel, offered DeWitt Trucking space in their parking facility to accommodate trucks, tractors and trailers owned and utilized by DeWitt Trucking. 7. On or about October 14, 1997, DeWitt Trucking, at the lot designated by Super 8 for use by L.G. DeWitt Trucking Company Inc. At the time the trailer was parked it contained goods and products which were picked up at the Hershey Eastern Distribution Center. 8. Sometime between when the vehicle was parked on the defendants premises and the following day, October 14,1997, the trailer with all of the goods and merchandise was stolen. An employee of L.G.DeWitt Trucking Company reported the theft to the local police. 9. As a result of the loss, L.G. DeWitt Trucking Company, made a claim to Lloyds for the value of the goods and property which were inside of the trailer when it was stolen. As a result Lloyds paid L.G.DeWitt Trucking Company $66,791.90. L.G.DeWitt Trucking company, paid an additional $10,000.00 representing their deductible to Hershey Chocolate USA. Accordingly, the total loss as a result of the theft was $76,791.90. 10. Upon information and belief, thefts of this kind were occurring with some frequency in and around the area where defendants property was located. As a result of these thefts taking place, defendants knew or should have known, the likelihood of theft and other criminal actions, and should have taken additional precautions to protect the subject trailer and its merchandise. 11. The damage was caused by the negligence, recklessness, and carelessness of the defendant in that it: a. Failed to adequately protect and\or safe guard plaintiff's items; b. Failed to notify plaintiff about the potential damage and/or criminal activity; C. Failed to provide plaintiff with a secure location for the property; 12. The damage of plaintiff's items resulted from the negligence, recklessness and carelessness of defendant Pleasant Inn and Super 8 Motel and was in no manner whatsoever due to any act or failure to act on the part of the plaintiff. As a direct and approximate result of the negligence, recklessness and carelessness of the defendant, the plaintiff has suffered damage in the amount of $76,791.90. Wherefore, Plaintiff demands judgment against the defendant in the amount of $76,791.90 together with costs, reasonable attorneys fees and any other such relief as the court shall deem just and equitable. COUNT 11 13. Plaintiff hereby incorporates paragraphs one through twelve and by reference as if fully set forth herein. 14. The relationship between the plaintiff and the defendant was that of a bailment, whereby plaintiff was the bailor and defendant was the bailee. 15. The bailment was for the mutual benefit of both the bailor and the bailee, 16. The defendant as bailee, has a duty to exercise reasonable or ordinary care regarding the storage and safe keeping of plaintiffs items. Defendant failed to do so at all or did so improperly. 17. The damage to plaintiffs items was caused by the negligence, recklessness and carelessness of the defendant in that it: a. Failed to adequately protect and/or safe guard plaintiff's items; b. Failed to notify plaintiff about the damage to the items; C. Failed to provide adequate security, despite knowledge concerning prior acts. 18. The damage to plaintiff's items resulted from the negligence, recklessness, carelessness of the defendant, Pleasant Inn and Super 8 Motel, and was in no manner due to any act or failure to act on the part of the plaintiff. 19. As a direct and approximate result of the negligence, recklessness, and carelessness of the defendant the plaintiff has suffered damage in the amount of $76,791.90. WHEREFORE plaintiff demands judgment against the defendants in the amount of $76,791.90 together with costs, reasonable attorneys fees and any other such relief as the court shall deem just and equitable. COUNT III 20. Plaintiff hereby incorporates Counts One and Two by reference as though fully set forth herein. 21. Plaintiff L.G.DeWitt Trucking Company rented a room from the defendants, for use as an office. Defendants charged plaintiffs a premium above the standard rate for such a room. 22. Defendants agreed to provide plaintiffs with an area on defendants property on which to park and store trucks and trailers. 23. The agreement to provide plaintiff with a room to conduct business and a space for vehicles, constituted a contract between plaintiffs and defendant. 24. By the terms of the contract, the defendant was obligated to use ordinary diligence in the storage, safe keeping of plaintiffs items. 25. Defendant breached the contract by not exercising ordinary diligence relating to the storage and safe keeping of plaintiff's items. 26. As a direct and proximate result of the defendant breaching of the contract, the plaintiff has suffered damages in the amount of $76,791.90. Wherefore, Plaintiff demands judgment against the defendant in the amount of $76,791.90 together with costs, reasonable attorneys fees and any other such relief as the court shall deem just and equitable. DATE : Y)'rr?- A J?h1ES-P. CARFAGNO,/ SQUIRE ATTORNEY FOR PLAI TIFF ID No. 8290 The Lewis Tower Building 27th Floor 225 South 15th Street Philadelphia, PA 19102 VERIFICATION I verify that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. I sign this verification on behalf of my client as he/she is presently outside the jurisdiction of the court and is not presently available to sign within the time allowed for the filing of this pleading. n P. CARFAGNO, 9SQUIRE 0- Os 2 ILI a? CX ci ?1 . CJ 1 6% IAN STUART, P.C. BY: JAMES P. CARFAGNO, I.D.#82960 The Lewis Tower Building 27" Floor 225 South 15'h Street Philadelphia, PA 19102 ATTORNEY FOR PLAINTIFF L.G.DEWITT L. G. DeWitt Trucking Company Inc. PLAINTIFF(S) vs. PLEASANTS INNS and SUPER 8 MOTEL DEFENDANT(S) COURT OF COMMON PLEAS CUMBERLAND COUNTY COMPLAINT NO. 99-4754 PRAECIPE TO REISSUE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the Complaint in the above-captioned civil action for an additional thirty days ?- n ? t: ? H F- .. - IJ1-? ??' ? ? C ' - • i_ . ?? C, ? r. ?? '. _J -; h- F- G ? rn ? ?. IAN STUART, P.C. BY: JAMES P. CARFAGNO, I.D.#82960 The Lewis Tower Building 27' Floor 225 South 15'h Street Philadelphia, PA 19102 ATTORNEY FOR PLAINTIFF L.G.DEWITT L. G. DeWitt Trucking Company Inc. PLAINTIFF(S) VS. PLEASANTS INNS and SUPER 8 MOTEL DEFENDANT(S) COURT OF COMMON PLEAS CUMBERLAND COUNTY COMPLAINT NO. 99-4754 PRAECIPE TO AMEND THE CAPTION TO THE PROTHONOTARY: Kindly amend the caption in the above referenced matter so that the identity of the plaintiff is Underwriters at Lloyds of London as subrogee of L.G.DeWitt Trucking Company. This is due to the fact that Underwriters at Lloyds of London is the true party of interest in this matter. submitted, rfagno, Esq. / l/ lid Ii L.1 . J I IAN STUART, P.C. BY: JAMES P. CARFAGNO, I.D.#82960 The Lewis Tower Building 27" Floor 225 South 15'h Street Philadelphia, PA 19102 ATTORNEY FOR PLAINTIFF L.G.DEWITT L. G. DeWitt Trucking Company Inc. PLAINTIFF(S) VS. PLEASANTS INNS and SUPER 8 MOTEL DEFENDANT(S) COURT OF COMMON PLEAS CUMBERLAND COUNTY COMPLAINT NO. 99-4754 PRAECIPE TO SUBSTITUTE THE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the verification of Joe Ashley in place of James P. Carfagno. submitte , 7 rfagno, Esq. e)7/ IAN STUART PC ''I •I 3S.'o ti. °=. . ? JI r Y? + 11„ I.r; J ??" is . t/ •+E7. ,• ''I x , n fay `".1 r' A I, Joe Aehft#x:91 t don,iinby verify ft (f 4?dilyb 'miu lrFtfaa wW?!f ?l>herlttl tb ste buy 06 cwvpc?te IFiNt plfi? f 1 rlebfitapbf`? hMbflilOb 006 'I •44 fJl td r ? r ''? ' • yy'?? v f tit { ? 1 ? 1 }}??yyyy + r..+ f /?r 1 ..M?J'St" i1d t, i???? je 1? ,y*1.' w, ? jt,r,? 1 ? ' • , u t ?f jr''• ,I }. LyC,\TMS VTI t,., ?. r; ( c I : a imr4 . - t r1 A i I .1 t 1. , 1 1y?.. (lY .? t ' 4' 1 t f ? " R VI + ? .fl it 1 ,. I0. ?T r t ., t :a < r 1 IVY "t 1? 2' °Jv 1 ? /, r; '?•.y 11 n r ?, D! , ?i r , } ? ,('{?rk??t> f1(( rtf it ?i y ,a 11 \ i t h?)'U - ? .. ;IYt r t t?1 1 r r ?tr ? r .? + ?t r e?x ? ? • f t ,?a 'T I,r , e x 7 ? r ??rr e3y,? 'W' r ', ri3 M yy , 4f ,, ? qM V.f wAl"A '+ ?'I '.i AA??^^G 1i f k r t. k ' r v. Y. .a la t i t i i i r . , 5 fL 4 i i• \Jl ? 1 Vik, , .i \ h ? IrINZU 11? ....... ri . 13f ?i j. . ?.. t' - i®r 1 .,..? i1 ti1L r.1•A,I,rl?l w? '4 C7 = U ? ?1 CL u: Z F' o a p C" rn V SHERIFF'S RETURN - REGULAR CASE NO: 1999-04754 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DEWITT L G TRUCKING CO INC VS. PLEASANT INNS ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within REINSTATED COMPLAINT was served upon SUPER 8 MOTEL the defendant, at 17:20 HOURS, on the 12th day of October 1999 at 1800 HARRISBURG PIKE CARLISLE, PA 17013 CUMBERLAND County, Pennsylvania, by handing to ANIL PARIKH (MANAGER) a true and attested copy of the REINSTATED COMPLAINT together with NOTICE and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So answers- 18.00 3.10 .00 8.00 R-1 omah s Arine, 5 eri 10/13/1999 by Sworn and subscribed to before me this 13 at, day of Cea? l 19A.D. ?A.c re ro f2 ro ?nono a y IAN STUART, P.C. BY: JAMES P. CARFAGNO, I.D.#82960 The Lewis Tower Building 27th Floor 225 South 15" Street Philadelphia, PA 19102 ATTORNEY FOR PLAINTIFF L.G.DEWITT L. G. DeWitt Trucking Company Inc. PLAINTIFF(S) VS. PLEASANTS INNS and SUPER 8 MOTEL DEFENDANT (S) COURT OF COMMON PLEAS CUMBERLAND COUNTY COMPLAINT NO. 99-4754 AFFIDAVIT OF SERVICE SERVICE ADDRESS: Super Motel 1800 Harrisburg Pike Carlisle, PA 17013 un, uctooer 12, 1999, I, James P. Carfagno, Esquire, being a competent adult over the age of 18, and not a party to this action, served a Complaint on Super 8 Motel at 1800 Harrisbura Pike, Carlisle Pennsylvania in the manner described below: Served personally. Served adult family member of household. Served agent of person in charge of place of business. Served officer or director of company. X Other (Specify) Sheriff of Cumberland County, Pennsylvania personally served General manager, Anil Parikh a certified copy of the summons and complaint. Refused to give name or relationship. Description: Race: Sex: Age:_ Hgt.:Approx ® Wgt.: . Eyes_ Distinguished characteristics: i.A s`JdY ?xx?o it , I? BY: Att pted service on N 0o served because: er ATTORNEY INFORMATION A.M./P.M. Moved - Unknown _ Vacant NOTARY IAN STUART, P.C. Attn: James P. Carfagno, Esquire Lewis Tower Building 225 South 15`" Street 27th Floor Philadelphia, PA 19102 215-928-1129 Sworn to? before me 'n t ??.,? ? ib day of e oAfej TAM L KRAMR ,101ARV PURUC OE NEWJERSEY C6mmaslon ErD6u 10/24/XM SHERIFF'S RETURN - REGULAR CASE NO: 1999-04754 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND I8 DEWITT L G TRUCKING CO INC VS. PLEASANT INNS ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within REINSTATED COMPLAINT was served upon SUPER 8 MOTEL the defendant, at 17:20 HOURS, on the 12th day of October 1999 at 1800 HARRISBURG PIKE CARLISLE, PA 17013 CUMBERLAND County, Pennsylvania, by handing to ANIL PARIKH (MANAGER) a true and attested copy of the REINSTATED COMPLAINT together with NOTICE and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 3.10 So answers- 8.00 .00 8.00 somas i`n eri $2U 10 13%lART by Sworn and subscribed to before me this day of 19 A. D. ro ono ary Lf) >- p U- f= LI ? G,;, N .n 4.. I. - CV .JL. u.. t. U !` 1 . 4 O a U c n i epOnan E. O"wq, Et0uMt i AOOmay I P. Na 19070 TNOW191.7M0MAe 0 NAP111, "r i 900 NOM PmNIi P001 OMea oft 090 H9111 ,y,P1Mt11Wny 17fa9 . i (717) 237.7100 E•Mail: se flhmw OOm L.G. DEWITT TRUCKING, COMPANY, INC., Plaintiffa' V. PLEASANTS INNS and SUPER S MOTEL, Defendants! Ar°tM'0 ?phn4/n1t PLEASANTI INN$ and WP11119 a NOTEL IN THE COURT OF COMMON PLEAS OF C11MBERLAND COUNTY, PENNSYLVANIA I No. 99-4754 Civil AOR9}1DtT PUM80)W'l! TO AOLB 237,2 TO 1j.13 M TTRX TO ?BLZAO mi=oMa TPII DAY XCITICZ It is agraed.that Defendants, Pleasant Inns and Super S Motel, are granted ;an axtensicn of time through January 15, 2000, in which to file an answer or preliminary objections. After the above date,;a judgment of non pros or by default, as may be appropriate, ropy be entered upon praecipe without further notice. Il 3c'? Date Jttoxney s P. Carfagno, Es re for Plaintit Date Stephen E. Geduldi , Esquire Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the !V day of December, 1999, on all counsel of record as follows: James Carfagno, Esquire IAN STUART, P.C. The Lewis Tower Building 27th Floor 225 South 15th Street Philadelphia, Pennsylania 19102 Attorneys for Plaintiff THOMAS, THOMAS 6 SAFER, LLP Rosa B. Ku p, Secre ary 79588.1 S:1 i- ~ OI ill U L.. U- rn U. U Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER LLP 305 North Front Street Post Ofike Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seQnd-tthlaW.com Attorneys for Defendants PLEASANTS INNS endSUPER 8 MOTEL CERTAIN UNDERWRITERS AT LLOYDS OF LONDON as subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs V. PLEASANTS INNS and SUPER 8 MOTEL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-4754 Civil PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Stephen E. Geduldig, Esquire, and Thomas, Thomas & Hafer, LLP, as attorneys for Defendants, Pleasants Inn and Super 8 Motel, in the above-captioned matter, reserving our right to answer or otherwise plead to Plaintiff's Complaint. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP z ? l?f By: I :79569.1 STEPHEN E. GEDULDIG, SQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, PLEASANTS INN AND SUPER 8 MOTEL CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the `flay of December, 1999, on all counsel of record as follows: James Carfagno, Esquire IAN STUART, P.C. The Lewis Tower Building 27th Floor 225 South 15th Street Philadelphia, Pennsylania 19102 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP Rosa B. Kull, Secretary :79566.1 >_ > ?_ ??.?5? cv :_?.. ?-'' `-; C ' C1 v) L: L. v !Yl u? ?.i :? 1 ? Stephen E. Geduidip, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Poet Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E-Mail: seci(WtthlaW.00m CERTAIN UNDERWRITERS AT LLOYDS OF LONDON as subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs v. PLEASANT INNS and SUPER 8 MOTEL, Defendants Attorneys for Defendants: PLEASANT INNS and SUPER 8 MOTEL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-4754 Civil NOTICE TO PLEAD M! TO: Plaintiffs and their counsel YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Respectfully submitted, f THOMAS, THOMAS & HAFER, LLP l? `bb t By: ?Zl?e4l STEPHEN E. GEDUL IG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, PLEASANT INNS AND SUPER 8 MOTEL Stephen E. Oeduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post OfBoe Box 999 Harrisburg, Pennsylvania 17108 (717) 237.7100 E-Mall: SeqCCD _fthlaW.COM CERTAIN UNDERWRITERS AT LLOYDS OF LONDON as subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs v. PLEASANT INNS and SUPER 8 MOTEL, Defendants Adomeys for Defendants PLEASANT INNS and SUPER 8 MOTEL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-4754 Civil ANSWER AND NEW MATTER OF DEFENDANTS, >7NS and SUPER 8 MOTEL, TO PLATmTTvoa AND NOW, come Defendants, Pleasant Inns and Super 8 Motel ("Defendants"), by and through its attorneys, Thomas, Thomas & Hafer, LLP, and files the following Answer and New Matter to Plaintiffs' Complaint: COUNT I 1. Denied. To the extent that paragraph 1 of Plaintiffs' Complaint purports to aver additional facts the same are denied pursuant to Pa. R.C.P. 1029(e). 1. Denied pursuant to Pa. R.C.P. 1029(e). 2. Denied pursuant to Pa. R.C.P. 1029(e). 2 3. Admitted in part and denied in part. Admitted that at all times material hereto there was a Super 8 Motel located at 1800 Harrisburg Pike, Carlisle, Pennsylvania. By way of further answer, there is no entity known as "Pleasant Inns". On the contrary, Pleasant Inns of America, Inc. was a franchisee of Super 8. 9. Denied as a legal conclusion. 5. Admitted. 6. Denied pursuant to Pa. R.C.P. 1029(e). 7. Denied pursuant to Pa. R.C.P. 1029(e). B. Denied pursuant to Pa. R.C.P. 1029(e). 9. Denied pursuant to Pa. R.C.P. 1029(e). 10. Denied pursuant to Pa. R.C.P. 1029(e). 11 (a) - (c). Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e). 12. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendants, Pleasant Inns and Super 8 Motel, respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. 3 COUNT II 13. No response is required as this is a paragraph of incorporation. 19. Denied as a legal conclusion. 15. Denied as a legal conclusion. 16. Denied as a legal conclusion. 17. (a) - (c). Denied as legal conclusions and pursuant to Pa. R.C.P. 1029(e) 18. Denied as a legal conclusion. 19. Denied as a legal conclusion. WHEREFORE, Defendants, Pleasant Inns and Super 8 Motel, respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. COUNT III 20. No response is required as this is a paragraph of incorporation. 21. Denied pursuant to Pa. R.C.P. 1029(e) 22. Denied pursuant to Pa. R.C.P. 1029(e) 23. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). 29. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). 4 25. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). 26. Denied as a legal conclusion and pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendants, Pleasant Inns and Super 8 Motel, respectfully request that Plaintiffs' Complaint be dismissed in its entirety and judgment entered in their favor. NEW MATTER 27. Defendants, Pleasant Inns and Super 8 Motel, hereby incorporates each and every paragraph of the foregoing Answer as if set forth fully. 28. Plaintiffs' Complaint fails to state a cause of action. 29. Defendants had no legal duty to police any portion of the premises where any alleged theft took place. 30. Plaintiffs were comparatively negligent. 31. Plaintiffs failed to mitigate its damages and losses. 32. Plaintiffs' claim may be barred by a release. 33. Plaintiffs' claims are barred by collateral estoppel/res judicata. 39. Plaintiffs' claims are barred by the statute of limitations. 5 `ii WHEREFORE, Defendants, Pleasant Inns and Super 8 Motel, respectfully request that Plaintiffs, Complaint be dismissed in its entirety and judgment entered in their favor. Respectfully submitted, THOMAS, THOMAS 6 HAFER, LLP 60 By. STEPHEN E. UEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, PLEASANT INN AND SUPER 8 MOTEL 6 I ?f VERIFX Subject to the penalties unsworn falsification °f " Pa. C.S.A. §9909 to authorities relating to have acquired ' I hereby certify that I giving rise the alleged facts to this claim and and circumstances verificati am authorized °n on behalf to f execute this o Defendant, PLEASANT INNS AND SUPER g MOTEL; and further, that I have in the fore Provided the answers going document based set forth answ upon that knowled ers set forth herei 9e and the n are true and correct knowledge, information and belief. to the best of my L ?a'- Stephen E. Geduldi 9. Esquire Previous Image Refilmed to Correct possible Error VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §9904 relating to unsworn falsification to authorities, I hereby certify that I have acquired knowledge of the alleged facts and circumstances giving rise to this claim and am authorized to execute this verification on behalf of Defendant, PLEASANT INNS AND SUPER 8 MOTEL; and further, that I have provided the answers set forth in the foregoing document based upon that knowledge and the answers set forth herein are true and correct to the best of my knowledge, information and belief. (14/0m Stephen E. Geduldig, Esquire CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the day of 2000, on all counsel of record as follows: James Carfagno, Esquire IAN STUART, P.C. The Lewis Tower Building 27th Floor 225 South 15th Street Philadelphia, Pennsylvania 19102 Attorneys for Plaintiff THOMAS, THOMAS S HAFER, LLP Stephen E. ueduldig, squire 7 ?- c? ? c iii;-; c ?- .'.,? i , ?" ? i =-? r.:> -i _. r_J U .40 Stephen E. Geduldip, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Omoe Box 999 Harrisburg, Pennsylvania 17103 (717) 237-7100 E-Mail: seo antthlaw.com CERTAIN UNDERWRITERS AT LLOYDS OF LONDON as subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs v. PLEASANT INNS and SUPER 8 MOTEL, Defendants Attorneys for Defendants PLEASANT INNS and SUPER 8 MOTEL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-4754 Civil PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached Verification of , Jimmie George, for the Verification of the undersigned counsel for Defendant, Pleasant Inns and Super 8 Motel, which was attached to the Answer and New Matter, filed on or about January 14, 2000 . Respectfully submitted, THOMAS, THOMAS & HAFER, LLP I t By: STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 Attorneys for Defendants, PLEASANT INN AND SUPER 8 MOTEL VERIFICATION IC I, JIMMTGEORGE, hereby verify that the averments made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. 41=G?EORGE to r CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid at Harrisburg, Pennsylvania, on the I !/i`L-day of 2000, on all counsel of record as follows: James Carfagno, Esquire IAN STUART, P.C. The Lewis Tower Building 27th Floor 225 South 15th Street Philadelphia, Pennsylvania 19102 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig, Es uire 2 ii= Ll `? r?- ;+' ,, -' °5 `? ?,-i ? ?, __ /;'? ? J .. !.? ?) V, IAN STUART, P.C. ATTORNEY AT LAW BY: JAMES P. CARFAGNO, ESQUIRE I.D. #82960 THE LEWIS TOWER BUILDING 225 S. 15TH STREET, 27th FLOOR PHILADELPHIA, PA 19102 ATTORNEY FOR PLAINTIFF CERTAIN UNDERWRITERS AT LLOYDS OF LONDON AS SUBROGEE OF L.G. DeWitt Trucking Company Inc. PLAINTIFF(S) VS. PLEASANTS INNS and SUPER 8 MOTEL DEFENDANT(S) COURT OF COMMON PLEAS CUMBERLAND COUNTY COMPLAINT NO. 99-4754 CIVIL PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER 27-34. These paragraphs of defendant's New Matter constitute legal conclusions to which no response is required pursuant to Pennsylvania Rules of Civil Procedure. To the extent that an answer is required, these pleadings are denied. pectfully su mittteed, Ja es P. Carfagno, Esquire orney TD: 82960 VERIFICATION I verify that the statements made in the foregoing Answer to New Matter are true and correct to the best of my knowledge and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. I sign this verification on behalf of my client as he/she is presently outside the jurisdiction of the court and is not presently available to sign within the time allowed for the filing of this pleading. P. CARFAGN0,4?SQUIRE Y MAILING CERTIFICATION I, James P. Carfagno, of full age, hereby certify, as follows: I am employed by Ian Stuart, Esquire, counsel for the Plaintiff, and on January 18, 20001 mailed a copy of: Plaintiff Reply To Defendant's New Matter to: Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor PO BOX 999 Harrisburg, PA 17108 I certify that the foregoing statement made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: / James P. Carfag ?- s' ;,_ : ii ??? cv . ; _)?<C `- ?`' ?... ?J Cam! ii j r-; ?? 7 CERTAIN UNDERWRITERS AT IN THE COURT OF COMMON PLEAS OF LLOYDS OF LONDON as CUMBERLAND COUNTY, PENNSYLVANIA subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs V. No. 99-4754 Civil PLEASANTS INNS and SUPER B MOTEL, Defendants CERTIFICATE PREREQUISITE,TO SERVICE OVA,SUBPOENA PURSUANT *RULE 4009:22, As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve A Subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the day on which the subpoena was sought to be served; 2. A copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate; 3. No objection to the subpoena has been received; and 4. The subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to Serve A Subpoena. THOMAS, THOMAS & HAFER, LLP STEPHEN E. GEDULDIG, ESQUIRt 305 NORTH FRONT STREET-6TH FLOOR HARRISBURG, PA 17108 (717) 237-7119 ATTORNEY FOR DEFENDANT t"' Date: v r CERTIFICATE:OF SERVICE' I, STEPHEN E. GEDULDIG, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that I served the foregoing document on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: James Carfagno, Esquire IAN STUART, P.C. The Lewis Tower Building 27'" Floor 225 South 15a' Street Philadelphia, Pennsylania 19102 (t`? Od Date: THOMAS, THOMAS & HAFER, LLP STEPHEN E. GEDULDIG, ESQUIRE r James Carfagno, Esquire IAN STUART, P.C. The Lewis Tower Building 27'" Floor 225 South 15" Street Philadelphia, Pennsylania 19102 (717) 237.7119 January 14, 2000 Re: Llovds of London a/s/o Dewitt Truokina V. Pleasants Inn and Super 8 Motel Cumberland County No. 98-4306 Civil Dear Attorney Carfagno: please a Notice o Intent to Serve A Subpoena Pa.R.C.P. 4009.21oand a copy of'said Subpoenafregarding the above-referenced matte pursuant to Very truly yours, SEG:kcb THOMAS, THOMAS & HAFER, LLP Stephen E. Geduldig L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs V. PLEASANT INNS and SUPER B MOTEL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-9754 Civil Defendants, PLEASANT INNS AND SUPER 8 MOTEL, intend to serve a subpoena identical to the one attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. THOMAS, THOMAS & HAFER, LLP STEPHEN E. GEDULDIG, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR HARRISBURG, PA 17108 (717) 237-7119 ATTORNEY FOR DEFENDANT Date: l u: t-ounsel and Parties of Record I, STEPHEN E. GEDULDIG, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that I served the foregoing document on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: James Carfagno, Esquire IAN STUART, P.C. The Lewis Tower Building 27th Floor 225 South 15"" Street Philadelphia, Pennsylania 19102 THOMAS, THOMAS & HAFER, LLP DATE: STEPHEN E. GEDULDIG, ESQUIRE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND L.G. DEWITT TRUCKING, INC., IN THE COURT OF COMMON PLEAS Plaintiff V. NO. 99-4754 CIVIL. PLEASANT INNS AND SUPER 8 MOTEL, : Defendant JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Hershey Chocolate USA, 19 East Chocolate Avenue, Hershey, PA 17033 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Stephen E. Geduldig, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7119 SUPREME COURT ID#: 43530 ATTORNEY FOR: Defendant BY THE COURT: DATE: / i 1? ?7^?Y+ / a?a Ea rl Seal of the Court Prothonotary/Clerk, Civ' Division Deputy You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. I 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. CERTAIN UNDERWRITERS AT LLOYDS OF LONDON as subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PLEASANT INNS and SUPER 8 MOTEL, Defendants No. 99-4754 Civil State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Motion for Judgment on the Pleadings. 2. Identify counsel who will argue case: (a) for plaintiff: Ian Stuart Esq. Address: 225S.15 t' Street, 27`" Floor Philadelphia, PA 19102 (b) for defendant: Stephen E. Geduldig, Esq. Address: 305 N. Front Street, P.O. Box 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: December 12, 2001 Dated: C l ° Attorney for Defendants ,.i 1 C: nS =i J j F c?r_ Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg. Pennsylvania 17108 (717) 237-7100 E-Mail: SeE@tthlaw.com Attorneys for Defendants PLEASANTINNS and SUPER 8 MOTEL CERTAIN UNDERWRITERS AT LLOYDS OF LONDON as subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs V. PLEASANT INNS and SUPER 8 MOTEL, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 99-4754 Civil AND NOW, come Defendants, Pleasant Inns and Super 8 Motel ("Defendants") by and through their counsel, Thomas, Thomas & Hafer, LLP and file the within Motion for Summary Judgment: The within action concerns events which occurred on or about October 14, 1997, at a motel owned and operated by Defendants Pleasant Inns & Super 8 Motel ("Defendants") and located at 1800 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 2. At the aforesaid date and place, a trailer owned by L.G. Dewitt Trucking Company, Inc. ("Dewitt") and containing Hershey chocolates was stolen by an unknown third party. After the loss, Plaintiff Certain Underwriters at Lloyds of London ("Lloyds" or "Plaintiffs"), paid the loss under a policy of insurance issued to Lloyds' insured, Dewitt. 4. Thereafter, Plaintiffs, as subrogee of Dewitt, filed a Complaint ("Dewitt II") (attached hereto and marked Exhibit "A") against Defendants alleging negligence, breach of bailment agreement and breach of contract, and seeking recovery of the money it paid to Hershey (contents) and to Dewitt (trailer) in this theft. Essentially, Plaintiffs allege that Defendants failed to provide adequate security in its parking lot. 5. On or about January 14, 2000, Defendants filed an Answer with New Matter in Response to Plaintiffs' Complaint. Therefore, the pleadings are closed. 6. The circumstances and facts of this case (with the exception of the date of the incident) are identical to a previous case before this Court, involving the same parties and docketed at number 98-4306 Civil ("Dewitt I"). The allegations and legal claims of the Complaint in Dewitt I (attached hereto and marked Exhibit "B") are exactly the same as in this matter, Dewitt If. In Dewitt I, a trailer owned by Dewitt and containing Hershey chocolates was stolen by an unknown third party on July 30, 1997. Dewitt continued to park trailers in the lot of the Defendants, and a second theft occurred on October 14, 1997, the subject of the case at hand. 7. Pa.R.C.P. 1034 provides that: a. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. b. The court shall enter such judgment or order as shall be proper on the pleadings. 8. On June 22, 2000, Defendants filed a Motion for Summary Judgment in Dewitt I, which, on June 29, 2001, Honorable George Hoffer granted, dismissing the case (Exhibit "C"). 2 9. As the allegations and issues are identical as between Dewitt I and Dewitt D, the judgment in Dewitt I is final, and on its merits, and inasmuch as Plaintiff had a full and fair chance to litigate the issue of whether Defendants owed a legal duty to Plaintiffs, the summary judgment in favor of Defendants is collateral estoppel as to this matter, and Defendants are entitled to judgment as a matter of law. 10. Based on the ruling in Dewitt I, counsel for the Defendants corresponded with Plaintiffs' counsel, requesting that Plaintiffs withdraw Dewitt II, which is based on identical facts and subject to the same law. No response was received from counsel for the Plaintiffs, and Defendants now request that they be awarded counsel fees as there is no reasonable legal basis to continue the matter at hand, as Dewitt I and Dewitt II are factually and legally indistinguishable. 42 Pa.C.S. § 2503(a). WHEREFORE, Defendants, Pleasant Inns and Super 8 Motel, respectfully request This Honorable Court to Grant the within Motion for Judgment on the Pleadings and enter judgment against Plaintiffs, Certain Underwriters at Lloyds of London as subrogee of L.G. Dewitt Trucking Company, Inc., and award attorneys fees and costs pursuant to 42 Pa.C.S. § 2503(a). Respectfully submitted, / Thomas, Thomas & Hafer, LLP Date: t l (((? by l Stephen E. Geduldig, Esquire 305 N. Front Street POB 999 Harrisburg, PA 1 7 1 08-0999 Exhibit A 11/30/1999 13:45 546610' ItVJ STL.kIF,T PC .:; PPSE 03 f: it- jS$1N $IIART,.:P C ;,'Ar t ?Y •.fE9 P . CARk'11dN0 7\ 5?N' ? ? ? p The' w? a TeWer 8ui7'YI 27,Eoo# ''' ?,hi1??lphi;a,: PA• 181 ??? `x ll, .;' ti t 1 1 ?,` r rt Ikr 'W ?. i 'DeWitt T { 9 4 T r 4QIJ?t@P ,COMMON PLEAS { ,. a ?,, Fs ? ? Qmpan?!- Ines .•; ;, i P " "ir .. i , ., f??- r p r r;l `L?r Yl' i '„'CQjINTY ,' r, ,^yJ yli r ? MJJS , ..{{.., PT.T! ?Q t'v vM ''k!?? 'kM?'+?1!+ ?r i,"TSVM?', tn$ {,I ?.+y 44 a? r J r Y ' yx C .A.y°s !fW .?? r ? , x' r 'i raT; r i•?T.t?$AN'T9 4NNa ? i, „.?Q 9;x'4754 `I ? . t?; i 4 ?° ' t 'MOTEL ` Y ' 7 'k l' Lu`,iw r t ,[i rir.1 'r? , ? '1C ? r 1 r d , i y{2i a {h :LI at Lloyd@ of London, n r ^ ,it 41 r fzx c ? er$34 aftor Lioyde,? ?4 r ``?SSrgpany authgrized. to do r Q ,? c F br,} t' I 3 y'. 71 ' `ij iitaJ{ `$ ,yMil•l17' T Ye r Y k4 Z t r t! Z ?. r v 1ti yy ,.'T Dlr. tfL I,Q2 r?9 14 '' rl 's \ The .', Ylaintl,r K g Company, inc. + '?, r \ '?Tr f?''. r ?5ryrlN T. i - r i } i r r' krk trt?b?4g coxporakia ' ?? r4{ ?`t a1.; Erom irLloyS?? Y#rgvi din co w . tia'd 4r } I + 3 ?Xa1X?g prl?s ;th?tn,gs;' loss from r f 'k. . t ?r. I T! eleEendar ?? y ?? ? tx g y`trtd Super 8 Motel ,ie'a motel i y,r y ' +,+ r 'lpdated at 1Q00d„ s?Nl s ,?r rrr +, .rF?`rit ^ ?• : `r? i....a 1 c'4 Upon r j,n ,OTI? ? c lr,Mbr`Br e. 'r ? 7d t ail t mes pertinent it r? t+r#,S`? r °'t \ +??; the dfefld3?1 '?y5t{per B Motel, was'eatin 9 w' Vv: 'I. i n_ >thraugh Ftq ate' „?g<<4;we l?ht n and eieployeea 3a the= ° • r ?`?1 ?s? ba _G,'and seope o f a L h '" ? A fuxtherailCe of the', 'f 'r" QB Of the Su a=A ., ',yl?r r .1, i 5M ' ty. 1 i = Y?tp u? , r i ?'1 7? 1W 1 °4'5 ^..?.>. .+• .(itt J}Fkh'43. Ir Jrr ;•k "9 rl i 11/3©/1955 13:45 54E61E' IAN STLWRT FC PAGE 04 '?1 f d in:approximatAly may of xerlLAq ?' matel room from the 4:> 4 BU?•?ryt8 Motu.,: DeWitt Trucking; r 'c< .nom .. '-. I ? ?{ So atlio glfi approximately may of. ?n?ted by S ?rthe ?ti.me fvhich wprL o11ce'.' As a seam pl-aim to Flo $6 3 $76;;.7'S, S .;9 D he€te of Ehis k;#4 were, 11/30/1555 13:,15 546610' IAN ETUAPT PC F43E 05 i "oCCUriing with abme'fi rfr' A`? y 11{ and around the area where ,dof?n?tants property'L ?fibed,. As result !QE these thefts.' ,Yawl ??L' G J,? Lakin lac6 deftnda } c p ?_,,or lglrouXd have known, the likeY -hood of, ..t -h, Ya ^ 4 Crm7naa actions,. and should have y BAketi ;adds tional pre v F„ ?, tdI"protegt4 the subfect trailer and. P, V The; dam?ge;Ail ?T e ?b i he", ? i, leglagence, reckleasness "???&nd C?I`e?e®ranes9 Oft I `y lY ! } - 1 a 1 r ?`? y r: is sYdarr tlyat it " { Fa?.led to ad ? wui+?T v I• 1 } And\or safe' guard , r rs to n q yr ',?At 'f r" the, ut g b. failed ,A ,p potential damse . [, x r' lip , aj t F$11ed f,o t 3?sf >is3h a secure location for 21, y eh r ; `12 The 'datfiageYY "?'>f}? iQSUltedrem`the j r `F-n6 i ?i BIICG , Yeckee :£ ,c,},' t M1 : ,a g, ? u , r??esHnh of defendant LXeasant i'? ??}}n a?c? Sulrez .9 Mote?r# ">IM ?np `n1a?Y31er,ghatsoever due to any; '' ?" it, #ailure tb aGt 'Kpac?}? plaintiff As a Idirect r 4 t S •,- da iroxiYnatB resin 3a? (?'y?r rec7cleskiese ani ± amount ''of ?78? ' r ' , ,. A. , z srefore', Fdaa ?} p audn¢nt against the defendants amoµnt`of`$7b;,; 1 v$ 11 l r cv'hh costs r bl ' ; ? , , easona e to fees' and a #erel 3 -the :court shall deem i e uit ble " q a 1 P3ainti f o s at ' Y A ja g e? pa agraphs one through , { ? a ? } y i ,1 rP rf ,l ?1 J ? ??ISIUn I 2 F ,,.... LL LL '1 'P?IL.rC L'y??y5?1',f P t ,, 1 J µ 11/30/1999 13:45 546610' twelve and by refere <r:.. 1,4. The relati s a6fendant was that o i } p! , bailps and. `defendant r3 ; j 15. The bailmel bailor and the bailei The defends V rcaaonable or ordinal 3ceng of 'plaintiffg so improperly. f rIt 1?. The damage t • negligence, recklesai:i k? t t ? :hat i;?t Failed to.ad piaintiffle items; •:'i'';. .. b: . Failed to. nn 3.terhs; ' e o: Failed to prj C :Concerning prior acts;; 18. The damage'4 fiegliggace,' recklessrii b+ , i elfin and. super 8 Motel; ; failure to act on th@i tK 19. As a direcitx; i FIf reckle'eeriegs, and caxE ¢ ?uffered damage in t1E WHEREFORE plaint8 ` Y \ y Y' ? C 11/30/1999 13:45 546810, k ?. in the :amount of $761 1 j ' attorneys fees and a. ;just and equitable, 20. Plaintiff h reference as though: 21. Plaintiff ji r ` from tha defendants.;:: "; ?J421ingiffs a premium Defendants }w 40:7 :aefeildants,;property ox ?i trailers. " r? + 2i3. The agreem- 15 ,yy conduct business and' 'jbetween plaintiffs ari 24.. By the terM I44 STLV' FT PC PAGE 07 With costs, reasonable lief as the court shall deem ?'tCounts Oneand Two by rein. R';Company rented a room ice. Defendants charged' ? ate for such a room, plaintiffs _.with an area on id store trucks and .ntiff with aroom to eb, constituted a contract the defendant waa f ,,the storage,', safe keeping, i reiult of the defendant a ntZ& has suffered damages in Ont against the defendant th casts, reasonable' f.as the court shall deem :. i% 11/30/1999 13:45 546810, just and equitable. Ll } DATE: ,z a x } Y?1 {f 1^1 5 i N ps 2 t A {n r , 3 } IIY , { W ? t S i , 1L t° r P i r l Y ` 4{ S r ? 1 1 s R L .( r 1, ? s t ¢ , 1 1AIJ STLvFT PC + NO, r HN Y 0' FP.T,AINTZFFUIR $ s s.ewlq ToW 'r Building south; 15thrStreet. ^ yl3delphi?, RA 191A2 J w.. yt? > ry t f r1 +vf 1 is t Y T ` AT'`?'H t fY ? ! ra ry s ?+ t. 7 r f i • Y Vry ?[` 'n Y}"ihb, f Nt Ilij ?'? '' Sst}^ f? ? lY ?y ? c „s z k: ;. J.? 4 VL • yi' F 1? y> y<f a- > , y r s •? ? t .yl, L..+ . 11 1 Y 'jl L •! ?? X14 ' Y} ?r } i .. ?Jn. t •f' ,•? 4 ri Y ixMY^i 1 L PFVIE 08 11/30/1999 13:45 54EBM' I;i Joe Ashley, as aged the statements made in the4 Oorrect to the best of rqy irifQ ?1 helefi are made subfpct to t ' '' i {{ Falstncklon to authorities , k I tY { ? j 1 t 11)? ..Date x' .. , + ? . J4e1 „ a. Undo Londe t ? 'Y l rl tl? ;lh 4 ?! f; I +? 4 .4 , 1 ZY 3t t t N It ?: nl )f } t '•F rl a Yip r IFVJ STJaR7 FL` P v3E 69 3r ijrwrlten:;,at Lloy;.ds of London, hereby verify that a . ; I?Writing aad any'attacbment thereto are true and ` fd bell8f cl Ociierstand.that false statements r. des of !6-139S.'§4904 relative to sworn {I +f h Y It a! [e Y? ??:. 411 1.'I Lloyds ott yrr , ?I y. t, - x ?I J' 1(? f. y 11/30/1999 13:45 546;316] ?t , , just and ;:equitable.. DATE :, i t c? 5 ' y 1 . . l ' J< ? l 1 1 It t ry . R 1 } 1 1 i .' a M1 Y'` J? i. t P4 3E 10 Exhibit B Apt. Ct. UlJ]i11 Ir1s, l9-Burg, fa, IANNY P.C. ATTOR2 E" AT LAW 3Y: MICtt.`- J. n-mm"YIK, :;SQUIRE,.D. 533?_ The. Lewis Tower Bldg. 225 South '15th Street PA 19102 (215) 925-1129 ATTOR-NEY FOR PLAINTIFF No. 7863 P. 3/10 CEF7A_,.N I.Loyrs svarocee Trucking NIS. PL-ASANm 8 MOTEL UNDERUMIT_ERS AT: CF LONDON as: of L.G. DeWitt: Company Inc. 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F aue: pin dewdm dr m demf'dar GWUWU N mxf-di=u.m dmr-OadacdtOW u p°^vdr kj 1e u Nmarak d aHJwpy arr. Jrdruaavw eempora mm A de w awlwo7rno-qurm eone a o = dQvdm uvkwart eMUVrae wjeaxraNr demmdera wove dereperaw. So arua anmyspgirn. AQunar.O fmpWr dreiAle efarwdd danWar7 rrgfrre qv. uawu,q¢roaradulorpmwiwedreaodm?mtlr. Umdp'rdI Pmder dinmo a avPnwKNSr rW=1..V4="Zt%WMa !(A10mct7 U L40ADO 0 0 51 No WA YlUT & 2 DIANI DINUO NUgEDNTMP E D Dg E PA GAR ZAL SMV747 M IN NN MUOYA 0 !LIME IELEF . YAYA DCUI (FA I EtCRITA RA ABdfO TR O PA A PART AYNRIGWR LA OPIOU DOCUYANDD OA U =J UYA ggmE S SE E PUF nEDE COAfEGWR,IAti=NOA lnCYIL. iUD4MIYDr RqumdePOpomndw GYq - .• M AYS Caluk 7T11t !1 ?166 717-249-!166 I r -IAN S I'UART, P. C. BY: Michael J Jubanyik, Esquire The Lewis Tower Building 27y Floor 225 South 15" Street Philadelphia, PA 19102 ATTORNEY FOR FLAINTSFF L•G.DEW_TT CEFTA= ZT.=PWRIT nS AT LLOYDS OF LONDON as subrogee of L. G. DeWitt COURT OF COMMON PLaAS Trucking Company Inc. CUNLEPSAAID COUNTY vs. : NO. PLEASP_*ITS INNS and SUPER : 8 MOTEL COMPLAINT DEFENDANT (S) 1. Plaintiff, Certain Underwriters at liloyds of Lo_don, herein after Lloyds, is an insurance company authorize-, to do business within the State o; Penrsyl%rania. 2. The p'_aint±`f L.G. Dewitt Tucking Company, irc., is a trucking corporation that purchased certain irsu:a:ce zrcm Lloyds, providing coverage for among other things, less from theft. 3.: -The dePemdant Pleasant --nns and Super 8 Motel is a motel located at 1800 Earrisburg Pike, Carlisle, PA. a. Upon information and belief, and at all times pertinent hereto, the defendant Pleasant in and Super 9 Motel, was acting by and through its agents, servants, workman and eM;joVeeS in -Z-'-e Course and scope of their employment and furtherance 0= the business of the Super 8 Motel.. 1 s S. Upon information and belief, in approximately May of Oi/n 'd £-u£?'qt, Ta'fan_-Y1 S11T Nrl1Ilf!x1p? ku , 31. 195: 6:" 1+1 CC UNION iu, M-Bur;, Y2. No. 7863 P. 5/10 1992 OeWttt Trucking` - began renting a motel room from tr.e defendant, &leasant Inn and Super 8 Mccel. DeWitt :r ck_ng, maintain _d an office at this location from apprzx.nately may of 159: through Of September of 1997. E• ?ur_na this relevant time frame, the defendant Pleasant T--s and Seer a motel, offered Lewitt Trucking space in their parking =acuity to accommodate trucks, tractors an3 tra'lers Owned and utilized by DeWitt Trucking. 1 7, on or about July 30, 1997, DeWitt Trucking, parked a 1392 utilit' refrigerated container, bearing part.al via number '-?15.35C1 ar_d license plate pA-As-3140, listed as *_railer number 000., at the lot designated by Super a for use by L.. G. DeWitt rucking company Inc. At the time the trailer was parked it contained goods and products which were picked up at the Hershey Eastern D :- °_r1::ULiCn Center. 3- Sometime between when the vehicle was parked on the defendants premises and the following day, bein July ? g. 1, at 7:i6 a.m., the trailer wi _ ..•-----..--'- t- - ail of the goods and mercha :dice was sto_en. An employee of L.G.DeWitt Tr ucki._g Company reported the theft tc 'z%-6'IcDCil police at 7,13 a.m. 9•, is a result of the loss, L.G. DeWitt ?racking Comcany, made a glair„ to Lloyds for the value'pf the goods and property which were inside of the trailer when it was stolen. As a result a_ocr^s nai_ - _.G.DeNitt Truc!cin? Company $86,481.80. I:.G.DeWict ?rtcY.ing "ompar_y, paid an additional $10,000.00 representing *-.'teir deduct_ble to Hershev Chocolate USA, Accordingly, the total loss as a result of he theft was $99,481.e0, i0 '40r, i-formation and belief, thefts of t_._. , Id were occurring with some frequency in and around the area w ere defendants property was located. As a result of es: thefts taking place, defendants rnew or should have known., t-e like lzhood e` theft and other criminal actions, and have taker. additional precautions to protect the subject t_,__e- and its merchandise. 11. The damage was caused by the negligence, recklessness, 6nc'carelessress o£ the defendant in that it: a• Pared to adequately protect and\cr safe t^ca_.; Plaintiff's items; b. ?ailed to notify plaintiff about the potential damage and/or criminal activity; c• :ailed to provide pla-ntiff with a secure loca-.,07 `or the Property; - d. Otherwise violated the rules and reculations of the Commonwealth of Pennsylvania. 12. The damage of plaintiff's items resulted from the neglicerce, recklessness and carelessness of de£erdart ?leasant inn Ann Sppe T 8 Motsl and was in no ma.::er whatsoever due to any act or failure to act on the Part of the Plaintiff. As a direct and apPros'_rate result of the negligence, rack- mssress and carelessness of the defendant, the P _ laiati°f has suf.___q damage in the amou.:t o=539,481.80. Wherefore, Plaintiff demands judgment against the defendant it the amount o$99,481.80 together with costs, rsascn a'r== attorneys fees and any other such relief as the court s:°ali deem i 01/9 'd t?c?"W Pr'?•?Aa Pe ?u1 NiiH9 Yt?VG:? f41;9 s'Gi 'l; ir'v flr, 76'63 P. 7/10 :ust and e? itable. COUNT TWO NEGL*rrntnr 1. P!Elr.tiff aershy incorporates paragraphs one thxough twely ar'? by reference as if fully set forth herein. The rel4ticnship between the plairtz:f and the defendant was tha: of a bailment, wherebv plaintiff was the ba" or and defendant was the bailee. ?. The bailment was for the mut F-' benefit of both the bai:cr ant the bailee. ?• `e defendant as bailee, has a duty to exercise _eescnab_= c_ crd2.nary care regarding tae storage and safe , ke`-ping c= c'_aia:iffs items, Defendant Failed to do so at all or did so_:n_ rcperly. -• the damage to plaintiff_°s items was caused by the aecligence, racklessness and carelessness cf the de`_=_ndart in that --'t: F2ilad to adequately protect and/or saga y- ?la..nt,:_ _tems; t. Failed to notify plaintiff about the damage to the items; c- -2__ed to Provide adecvate security, des_ite knowledge cor_cerning prior acts, and; d• Othe raise vitiated the rules and regulations of the _ommorwea_th cf Pennsylvania. E• The damage to Plair_tiff's items resulted from the nec'._:re.Ice, =mcklessness, carelessness o£ the deferdant, Pleasant r= and Supe_ A Motel, and was in no mazLier due to arv act or failure to ac: on the Dart of the plaintiff. 7. AS a direct and approxI-mate result Of the neg_ic?rce, recklessness, and carelessness of the defendant to ,_air_tiff _s suffered damage in the amount of $99,481.80. W8_R FC&E Flaintiff demands -,udgment against the 9efen danzi in the amount of 599,481.80 together withccsts, reaso=ac:e attorneys fees and any other such relief as the court shall deem just and equitable. TV-RD COUNT BRFAC$ OF CONTP-ACT l.Plainti°f hereby inco aerates Counts One and Two by reference as though fully set forth herein. 2. Plaintiff L.G.DeWitt Trucking Company re.tsd a room 'ran. A?+1? the defendants, for use as an office. Defendants charced l plaintiffs a premium above the standard rate for such a room. 3. Defendants agreed to provide plaintiffs with an area on rd defendants property on which to park and store tucks and ?a trailers. 4. The acreement to provide plaintiff with a room to conduct business and a space for vehicles, constituted a ccrtract between plaintiffs and defendant.' S. By taa terms of the contract, the defendant was obligated to use ordinary diligence in the storage, safe keeninc of plaintiffs,items. ' G. Defendant breached the contract by not e„erc_sing ordinary diiioenon relat_ng to the storage and safe 'seeping of plaintiff's items. 7. As a direct and proximate result of the defendant 01/& 'd GG^?'CIT 'ei eao= I'i 7 ui 1E, IHii V?t0? I,i':-c Fh? " ' ?'d Au ;. 21. 199? ?•:a_A. CC UNION Ins, M-Eur;, Fs. No. 7c6? P. 9/10 tre±chi-c cf the contract, the plaintiff has suffer=_d damages in the ar..ou:.t .f 599,48'_.80. r`ere`_ort, Plaintiff demands judgment against the defendant in the amclnt of $99,481.80 together with costs, reasonable atccr'!evs '_ees and any other such relief as the court shall deem just and e:ruitable. ronTF COUNT N°,SUMIC= ?=aiaiff herebv irncorpcrates Counts One, .Twc_ard Three ate,re b}r reference as though fully set forth at length herein. 2 . Cm or about July, 30, 1997, prior to the theft of pls:ntiff's trailer, Tim Peters a maintenance employee, of - de:enfa_t, observed a suspicious looking individual d-i+ring a c? r; + I truck and hanging around the area where plaintiff Is vehicle icca_.ea. As a result cf su_p_cicus activity, Mr. =tees spoke to the individual who indicated he was planning to rent a room at defendant's motal later that day. 4. Des_ite the suspicious activity, Tim -meters, acting as an agent; server, employee of the defendant fail=_d to notify his superiors Of this Slisp?C1CU5 activity, and failed to take any ether 'urt:^er steps to protect the property of the Plaintiffs'. ?eters acting as rha agent, server, employee of the de a :da_ t was negligent, careless and/or reckless in failing to advise his superiors of the suspicious activity, failing to notify the to_ice, failing to notify the plaintiff, and/or is ctner,,rise neaLi cenz, in `_a? ia5 tc take reasonable steps to insure the safety of plai.:tiff's property. 5. As a direct result of the negligence, of an .servant, or enployeas of defendants, giaintiff su!fered ianag=_s in the amcunt of $99,481.5.0. Wherefore, Plaintiff demands judgment aga'_nst the defendant; :.n the amount of $93,581.30 together with costs, reascr.abie attorneys fees and any other such reliez as the court s ai_ deer just and equitable. DATE: _ ..... .__...__.. _ MICs.IIEL J. ;jM;w?: Esc =--a ATTORNEY FOR PLA:117iFF ID No, 53893 Ol!01 'd f 48 'oly e 'ian8-{f 1''JI ?7 bay Exhibit C CERTAIN UNDERWRITERS AT :IN THE COURT OF COMMON PLEAS OF LLOYDS OF LONDON as :CUMBERLAND COUNTY, PENNSYLVANIA subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiff V. NO. 98-4306 CIVIL TERM PLEASANT INNS and SUPER 8 MOTEL, Defendants IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Before HOFFER, P.J., OLER. J. ORDER OF COURT AND NOW, /W 2001, pursuant to the opinion filed on this date, Defendant's Motion for Summary Judgment is hereby granted. By the Court, James P. Carfagno, Esquire Stuart, Clark & Wells, P.C. The Lewis Tower Building 225 South 15`h Street, 27th Floor Philadelphia, PA 19102 Attorney for Plaintiff Stephen E. Geduldig, Esquire Michele J. Thorpe, Esquire Thomas, Thomas, & Hafer, LLP 305 North Front Street P.O. Box 999 kll? offer, P.J. Harrisburg, PA 17108 Attorney for Defendants CERTAIN UNDERWRITERS AT LLOYDS OF LONDON as subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs V. PLEASANT INNS and SUPER 8 MOTEL, Defendants HOFFER, J.: :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :NO. 98-4306 CIVIL TERM OPINION In this opinion, we address Defendants' Motion for Summary Judgment. This suit arises from the July 30, 1997, theft of an L.G. Dewitt Trucking Company, Inc. trailer, containing Hershey's chocolate products, from a motel parking lot. Plaintiffs Certain Underwriters at Lloyds of London, as subrogee of L.G. Dewitt Trucking Company, Inc. paid Hershey for the stolen chocolate and its insured, DeWitt, for the stolen trailer. The total loss due to the theft was $99,481.80. On August 19, 1998, plaintiffs filed a Complaint against defendants, alleging that defendants are responsible under breach of contract, bailment, and negligence theories for the theft. The Complaint states that defendants had a duty to provide adequate security for the trailer and failed to fulfill that duty. Defendants filed an Answer with New Matter on November 23, 1998. Discovery was subsequently completed, and this motion for summary judgment followed, Discussion Parties may move for summary judgment when there is no genuine issue of material fact as to any necessary element of the cause of action or a defense to the action. Pa.R.Civ.P. 1035.2. The courts have stated that "an entry of summary judgment may be granted only in cases where the right is clear and free from doubt." Demmler v. Smithkline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996) (citing Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989)). When considering summary judgment, the court must examine the record in the light most favorable to the non-moving party. Id. "[T]he trial court must accept as true, all well-pleaded facts in the non-moving party's pleadings... giving the non-moving party the benefit of all reasonable inferences which may be drawn therefrom." Thompson v. Nason Hoso., 370 Pa. Super. 115, 117, 535 A.2d 1177, 1178 (1988). Furthermore, "[i]n a summary judgment proceeding, the court's function is not to determine the facts, but only to determine if a material fact exists." Kelly v. Ickes, 427 Pa. Super. 542, 547, 629 A.2d 1002, 1004 (1993). Through the Court's independent research, we have found a case that is directly applicable to the case sub i'u dice. In Duneoan v Apico Inns of Green Tree. Inc., 356 Pa. Super. 386, 514 A.2d 912 (1986) the Pennsylvania Superior Court held that an owner of a motor inn was not required to safeguard patron's vehicle against theft by third-persons, and thus was not liable for theft of patron's automobile. A duty to protect one's automobile from theft will arise only if a 2 responsibility was undertaken for safeguarding the vehicle as part of a contractual agreement between the parties. See Sparrow v. Airport Parking Co of America, Inc., 221 Pa, Super. 32, 289 A.2d 87 (1972). Under the circumstances of the instant case, there could be no liability on behalf of the innkeeper to safeguard plaintiffs' vehicle from theft. The driver did not surrender possession of the vehicle to the defendants, he retained the keys to the vehicle, and the vehicle was accessible to the driver throughout his stay. Plaintiffs were granted no more than a privilege to park the vehicle on the lot because of the driver's patronage of the inn. Under these circumstances, the legal relationship existing between the defendants and the plaintiffs was that of a licensor-licensee. As a licensor, the owner of a motor inn is under no duty to protect the vehicles of its guests from theft. Dunegan, 356 Pa. Super. 386, 392, 514 A.2d 912, 914. Therefore we find, after thorough examination of the case at bar, that there are no disputed issues of material fact, and therefore summary judgment must be granted. 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the 9ht day of November, 2001, on all counsel of record as follows: Ian Stuart, Esquire The Lewis Tower Building 27'h Floor 225 South 15'h Street Philadelphia, Pennsylania 19102 Attorney for Plaintiffs THOMAS, THOMAS & HAFER, LLP Jaso F. Ernest, P ra gal a,r- =' <` ? L a , h "_ -' ?J (? }- ..? (q i?' _ 1.? `? i(? J- _ L'_ ? ?L) v ?? Stephen E. Geduldig, Esquire Attorney I.D. No. 43530 Michele J. Thorp, Esquire Attorney I.D. No. 71117 THOMAS, THOMAS 8 HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108 (717) 237-7100 E•Mail: segC tthlaw.com Attorneys for Defendants PLEASANTS INNS and SUPER 8 MOTEL CERTAIN UNDERWRITERS AT IN THE COURT OF COMMON PLEAS OF LLOYDS OF LONDON as CUMBERLAND COUNTY, PENNSYLVANIA subrogee of L.G. DEWITT TRUCKING COMPANY, INC., Plaintiffs V. No. 99-4754 Civil PLEASANTS INNS and SUPER 8 MOTEL, Defendants PRAECIPE TO WITHDRAW TO THE PROTHONOTARY: Please withdraw Defendants' Motion for Summary Judgment with regard to the above case. Respectfully submitted, THOMAS, THOMAS 6 HAFER, LLP 1?V1 I > 1 By: V :1514373.2 STEP •N E. GE DIG ESQUIRE Attorney I. No. 43530 MICHELE J. THORP, ESQUIRE Attorney I.D. No. 71117 Attorneys for Defendants, PLEASANTS INN AND SUPER 8 MOTEL CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the _u= day of December, 2001, on all counsel of record as follows: Ian Stewart, Esquire IAN STUART, P.C. The Lewis Tower Building 27th Floor 225 South 15th Street Philadelphia, Pennsylania 19102 Attorneys for Plaintiff THOMAS, THOMAS b HAFER, LLP $3iii J. ®rp, qu ire :30338.1 r l I J