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HomeMy WebLinkAbout99-05668% I -?4 ,< f ?" X1ka .. P DONALD M. DESSEYN, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ATTORNEY FOR DEFENDANTS, Daniel H. Shetron Shetron's Tire Service, Inc. Daniel H. Shetron t/d/b/a Shetron's Car Wash GARY R. HERSHEY, et al. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. : NO. 99-5668 DANIEL H. SHETRON, et al Defendants : JURY TRIAL DEMANDED To: Gary R. Hershey and Cindy L. Hershey Date of Notice: 2gf Z'Aw c/o Clark DeVere, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street PO Box 5300 Harrisburg, PA 17110 NOTICE You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days of the date of service hereof pursuant to Pa. R.C.P. 1026, or default judgment may be entered against you. Date: +? By: Agi; W Donald M. esseyn, squire Attorney for Defendants DONALD M. DESSEYN, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 GARY R. HERSHEY, et al. Plaintiffs V. ATTORNEY FOR DEFENDANTS, Daniel H. Shetron Shetron's Tire Service, Inc. Daniel H. Shetron t/d/b/a Shetron's Car Wash : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5668 DANIEL H. SHETRON, et al. Defendants : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT AND NOW comes Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron t/d/b/a Shetron's Car Wash, by and through their counsel, Donald M. Desseyn, Esquire, and files the following Answer with New Matter to Plaintiffs' Complaint and in support thereof avers as follows: 1. Denied. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations as set forth in Paragraph 1 of Plaintiffs' Complaint and therefore deny same, and strict proof is demanded at the time of trial. 2. Admitted in part and denied in part. Defendant, Daniel H. Shetron, admits that he is an adult individual. Defendant denies the remaining allegations as set forth in Paragraph 2 of Plaintiffs' Complaint. 3. Admitted. 4. Admitted in part and denied in part. Defendant, Daniel Shetron, admits he was the fee simple owner of real property located at 143-145 West Orange Street, Shippensburg, Cumberland County, Pennsylvania 17257. Defendant specifically denies each and every remaining allegation as set forth in Paragraph 4 of Plaintiffs' Complaint. 5. Admitted in part and denied in part. Defendant admits the existence of a coin-operated car wash, self-service, which is open twenty-four (24) hours a day, seven (7) days a week and is called Sheiron's Tire Service, Inc. and Car Wash. Defendant denies the remaining allegations as set forth in Paragraph 5 of Plaintiffs' Complaint. 6. Admitted. 7. Admitted. 8. Denied. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations as set forth in Paragraph 8 of Plaintiffs' Complaint and therefore deny same, and strict proof is demanded at the time of trial. 9. Denied. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations as set forth in Paragraph 9 of Plaintiffs' Complaint and therefore deny same, and strict proof is demanded at the time of trial. 10. Denied. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations as set forth in Paragraph 10 of Plaintiffs' Complaint and therefore deny same, and strict proof is demanded at the time of trial. It. Denied. Legal conclusion. COUNTI 12. This answering Defendant incorporates his answers to Paragraphs 1 through I 1 above by reference as if more fully set forth at length herein. 13. Admitted in part and denied in part. Defendant, Daniel H. Shetron, admits that as president of Shetron's Tire Service, Inc. and Car Wash, he was responsible for the supervision of Defendant Shetron's Tire Service, Inc. Defendant specifically denies each and every remaining allegation as set forth in Paragraph 13 of Plaintiffs' Complaint. 14. Denied. 15. Denied. Legal conclusion. 16. Denied. Legal conclusion. 17. Denied. 18. Denied. Defendant denies any general allegation of negligence as set forth in Paragraph 18 of Plaintiffs' Complaint. Further, Defendant responds to the specific allegations as follows: (a) Denied. (b) Denied. (c) Denied. (d) Denied. (e) Denied. (f) Denied. (g) Denied. (h) Denied. (i) Denied. 0) Denied. (k) Denied. (1) Denied. (m) Denied. (n) Denied. (o) Denied. 19. Denied. Legal conclusion. 20. Denied. Defendant, Daniel H. Shetron, denies any general allegations of negligence as set forth in Paragraph 20 of Plaintiffs' Complaint. Further, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations as set forth in Paragraph 20 (a)-(d) of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. 21. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 21 of Plaintiffs' Complaint. Further, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth in Paragraph 21 of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. 22. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 22 of Plaintiffs' Complaint. Further, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth in Paragraph 22 of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. 23. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 23 of Plaintiffs' Complaint. Further, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth in Paragraph 23 of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. 24. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 24 of Plaintiffs' Complaint. Farther, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth in Paragraph 24 of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. WHEREFORE, Defendant, Daniel H. Shetron, individually and incorrectly identified as t/d/b/a Shetron's Car Wash, demands judgment in his favor and against the Plaintiff, together with costs of suit. COUNT II 25. This answering Defendant incorporates the answers to Paragraphs 1 through 24 above by reference as if more fully set forth at length herein. 26. Admitted. 27. Denied. Legal conclusion. 28. Denied, Legal conclusion. 29. Denied. Legal conclusion. 30. Denied. 31. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 31 of Plaintiffs' Complaint. Further, this Defendant responds to the specific allegations as follows: (a) Denied. (b) Denied. (c) Denied. (d) Denied. (e) Denied. (f) Denied. (g) Denied. (h) Denied. (i) Denied. 0) Denied. (k) Denied. (1) Denied. (m) Denied. (n) Denied. (o) Denied. 32. Denied. Legal conclusion. 33. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 33 of Plaintiffs' Complaint. Further, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth in Paragraph 33 (a)-(d) of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. 34. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 34 of Plaintiffs' Complaint. Further, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth in Paragraph 34 of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. 35. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 35 of Plaintiffs' Complaint. Further, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth in Paragraph 35 of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. 36. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 36 of Plaintiffs' Complaint. Further, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth in Paragraph 36 of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. 37. Denied. This answering Defendant denies the general allegations of negligence as set forth in Paragraph 37 of Plaintiffs' Complaint. Further, after reasonable investigation, this answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations as set forth i : Paragraph 37 of Plaintiffs' Complaint and therefore denies same, and strict proof is demanded at the time of trial. WHEREFORE, Defendant, Shetron's Tire Service, Inc., demands judgment in its favor and against the Plaintiffs, together with costs of suit. COUNT III 38. These answering Defendants incorporate the answers to Paragraphs 1 through 37 above by reference as if more fully set forth at length herein. 39. Denied. These Defendants deny the general allegations of negligence as set forth in Paragraph 39 of Plaintiffs' Complaint. Further, reasonable investigation, these Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations as set forth in Paragraph 39 of Plaintiffs' Complaint and therefore deny same, and strict proof is demanded at the time of trial. WHEREFORE, Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, demand judgment in their favor and against the Plaintiffs, together with costs of suit. NEW MATTER 40. Plaintiffs' Complaint fails to set forth a cause of action upon which relief can be granted against these answering Defendants. 41. Plaintiffs' cause of action and/or right of recovery is bared or modified by the Doctrine of Assumption of Risk as applied in the Commonwealth of Pennsylvania. 42. If the Plaintiff, Gary R. Hershey, fell as alleged, the answering Defendants aver that the Plaintiff's claims are barred in whole or in part due to Plaintiff's contributory and/or comparative negligence, generally and in the following particulars: (a) In negligently and carelessly failing to insure his balance; (b) In failing to wear appropriate footwear; (c) In failing to observe the area where he was walking; (d) In washing his vehicle and causing overspray to land on the unheated portion of the wash bay area; (e) In failing to adhere to the warning signs which were in place at the time of the alleged fall; (t) In failing to take notice of the existing weather conditions and the possibility that water might freeze given those existing weather conditions; (9) In failing to take the necessary care and caution to walk without falling; (h) In failing to utilize the safest course available to him in regard to washing his subject vehicle. 43. To the extent Plaintiff has failed to mitigate his alleged damages, any recovery to which he might be otherwise entitled should be reduced accordingly. WHEREFORE, Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, demand judgment in their favor and against the Plaintiffs, together with costs of suit. BERLON & TIMMEL Date: .rafTOOD By: Donald d. esseyn, squire Attorney for Defendants VERIFICATION I, a Defendant herein, verify that I am authorized to execute this verification and verify that the facts set forth in the foregoing Defendant's Answer to Plaintiffs' Complaint are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: a ?E Name: Daniel H. Shetron CERTIFICATE OF SERVICE AND NOW, this z day of 49449"9,-1, Donald M. Desseyn, Esquire, Attorney for Defendants, Daniel H. Shetron, Shetron's Tin: Service, Inc., and Daniel H. Shetron t/d/b/a Shetron's Car Wash, hereby certify that I served a copy of the within Answer with New Matter to Plaintiffs' Complaint on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Clark DeVere, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street PO Box 5300 Harrisburg, PA 17110 By: Donald N1 esseyn, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 ai'r, a O 414' ?- s! Can. F" ? :T GARY R. HERSHEY and CINDY L. HERSHEY 171 Chamberlin Road Shippensburg, PA 17257-9713 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ; No. /- I ?/1 a II L (//1 Civil Action - (X) Law ( ) Equity Plaintiff(s) 8 Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Defendant(s) d Address(es) Please issue writ of summons in the above-captioned action. 3 Writ of Summons shall be issued and forwarded to ( )Attorney (X)Sheriff Clark DeVere, Esquire 3211 North Front St. ox 5300 Harrisburg, PA _ Names/Address/ Telephon No. of Attorney DANIEL H. SHETRON -and- SHETRON'S TIRE SERVICE, INC. -and- DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH 143-145 W. Orange Street versus Shippensburg, PA 17257 Signs ure ofCATiorney Supreme Court ID No. 68768 Date: ?h ?/qq WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. Date: 44-k- ; re_ ) Check here if reverse is issued for additional information PROTHON. - 55 ?- a ?. r o _ UO GARY R. HERSHEY and CINDY L. HERSHEY, Plaintiffs VS. DANIEL }I. SHETRON, SHETRON'S TIRE SERVICE, INC. and DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 99-5668 JURY TRIAL DEMANDED NOTICE TO DEFEND TO: Daniel H. Shetron, Shetron's Tire Service, Inc. and Daniel H. Shetron t/d/b/a Shetron's Car Wash c/o Donald M. Desseyn, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within Twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT 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 or (800) 990-9108 Donimenl N: 163458. / GARY R. HERSHEY and CINDY L. HERSHEY, Plaintiffs vs. DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC. and DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5668 JURY TRIAL DEMANDED CIVIL COMPLAINT 1. The Plaintiffs Gary R. Hershey and Cindy L. Hershey, husband and wife, are adult individuals residing at 171 Chamberlin Road, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant Daniel H. Shetron, is an adult individual who trades and does business as Shetron's Car Wash at 143-145 West Orange Street, Shippensburg, Cumberland County, Pennsylvania 17257. 3. Defendant Shetron's Tire Service, Inc., is a Pennsylvania corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 143-145 West Orange Street, Shippensburg, Cumberland County, Pennsylvania 17257. 4. On or about November 17, 1997, Defendant Daniel Shetron was the fee simple owner and in possession of real property located at 143-145 West Orange Street, Shippensburg, Cumberland County, Pennsylvania 17257 (hereinafter referred to as the "Property"). D=menl N: 163138.1 5. At all times material hereto, a coin-operated car wash, self-service, which was open 24 hours a day, seven days a week was situated on the Property which was called "Shetron's Car Wash" (hereinafter referred to as the "Car Wash"). 6. At all times material hereto, Defendant Shetron's 'fire Service, Inc. leased the location of the Car Wash from Defendant Daniel 11. Shetron on a month-to-month basis pursuant to an oral lease. 7. At all times material hereto, Defendant Shetron's Tire Service, Inc. was responsible for managing, supervising, operating and maintaining the Car Wash which included cleaning bays, snow removal and placing chemicals for ice. 8. On or about November 17, 1997, at approximately 12:00 p.m., Plaintiff Gary Hershey pulled his truck and camper into one of the bays of the Car Wash, rinsed his truck off and then pulled his truck partially out of the bay, leaving his camper in the bay so that he could rinse off his camper. 9. As Plaintiff Gary Hershey exited his truck, he slid on some ice which had built up from the spray, drippage and/or run-off from the car wash. 10. Plaintiff Gary Hershey slipped on the dangerous build up of the ice and fell onto his left shoulder on the asphalt and/or concrete. 11. At all times material hereto. Defendants acted or failed to act individually or through their employees, agents, servants and/or workmen within the course and scope of their agency or employment. -2- Doe"mem N: 163438.1 COUNT I - PLAINTIFF GARY HERSHEY v. DEFENDANT DANIEL H. SHETRON INDIVIDUALLY and t/d/b/a SHETRON'S CAR WASH 12. Paragraphs 1 through 11 hereof are incorporated herein by reference as if fully set forth. 13. At all times material hereto, Defendant Daniel H. Shetron had in his possession and under his care, custody, control, direction, management, operation and/or responsibility the supervision, control and/or maintenance of the Car Wash to include the supervision of Defendant Shetron's Tire Service, Inc. 14. At the time of Plaintiff Gary Hershey's aforesaid fall, Plaintiff Gary Hershey was a business invitee of Defendant Daniel H. Shetron. 15. Defendant Daniel H. Shetron had a duty to properly maintain the Car Wash for the protection of customers traveling thereon including the Plaintiff Gary Hershey. 16. Defendant Daniel H. Shetron had or should have had knowledge or notice of the existence of the dangerous condition at the Car Wash caused by the ice build up to the rear of the bays and knew or should have expected that its customers including Plaintiff Gary Hershey would not discover the hazard and protected its customers including Plaintiff Gary Hershey against the hazard. 17. Defendant Daniel H. Shetron breached his duty owed to business invitees, customers and to Plaintiff Gary Hershey in particular by his negligent conduct as set forth herein. 18. The Defendant Daniel H. Shetron individually and/or by his agents, servants, workmen and/or employees, acting within the scope of their authority and course of employment, was negligent in the following particulars: (a) Allowing foreign materials including ice to accumulate to the rear of the bay on the Car Wash within a potential walkway for its customers who may be washing their cars; -3- Do meni N: 163458.1 (b) Failing to take the necessary protective and precautionary measures to ensure that customers including Plaintiff Gary Hershey had a safe walkway surface and were not subject to a slip and fall; (c) Failing to properly inspect the Car Wash to avoid the accumulation of water, ice and/or snow in the situation which occurred to Plaintiff Gary Hershey; (d) Failing to properly warn customers and Plaintiff Gary Hershey of the dangerous accumulation of water and/or ice to include failing to have in place proper warning signs; (e) Failing to eliminate or remove the accumulation of water and/or ice at the Car Wash; (f) Failing to maintain, clean up or otherwise clear the dangerous accumulation of water and/or ice in the Car Wash; (g) Failing to cinder, salt, place chemicals on or otherwise treat the surface of the Car Wash so that customers including Plaintiff Gary Hershey did not slip and fall; (h) Failing to have the necessary personnel, employees, agents, servants, workmen and/or independent contractors available to maintain the Car Wash surface and keep it free from hazardous accumulations including ice; (i) Failing to supervise his employees, servants, workmen, agents and/or independent contractors to ensure that the surface of the Car Wash was clear and free from hazardous materials including ice; (j) Failing to barricade, rope off or otherwise bar access to the hazardous accumulation caused by the ice so that customers including Plaintiff Gary Hershey are not subject to it; (k) Failing to employ the necessary maintenance, repair, custodial and/or janitorial service to clear, maintain, repair and clean the Car Wash; (1) Failing to have in place a program to prevent or respond to such dangerous accumulations and to prevent such falls; (m) Failing to properly and adequately train his employees, servants, workmen, agents and/or independent contractors to ensure that the Car 4- Document N.: 163458.1 Wash did not pose a hazardous condition to customers including Plaintiff Gary Hershey; (n) Hiring and/or maintaining employees, servants, workmen, agents and/or independent contractors who were unfit or incompetent to maintain the Car Wash; and (o) Failing to exercise reasonable care to protect customers including Plaintiff Gary Hershey against the hazardous condition. 19. Defendant Daniel H. Shetron is vicariously liable for the acts, commissions or omissions of his agents, employees, servants, workmen and/or independent contractors including Defendant Shetron's Tire Service, Inc. as though he performed those acts, commissions or omissions himself. 20. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey sustained, or may sustain, serious and debilitating injuries, some of which may be permanent, and some of which may be an aggravation and/or exacerbation of a pre-existing condition, which include, but are not limited to, the following: (a) Trauma and injuries to his left shoulder; (b) Trauma and injuries to his neck and cervical spine; (c) Trauma and injury to his left arm; and (d) Psychiatric and/or psychological trauma and injury. 21. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey was forced to incur medical bills and expenses for the diagnosis and treatment of the injuries he has suffered and will reasonably incur in the future further medical expenses for the treatment and care of his continuing injuries. -5- Do menl #: 163458.1 22. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey has suffered a past loss of earnings, a future of loss earnings, lost earning capacity, loss of ability to perform household services, loss of ability to work on his rental properties, loss of productivity, and shortening of his economic horizons. 23. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey has undergone and in the future will undergo physical pain, mental anguish, discomfort, inconvenience, distress, embarrassment, humiliation, loss of ability to enjoy the pleasures of life and limitation in the pursuit of daily activities all to his great loss and detriment. 24. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey has also suffered incidental costs and expenses including, but not limited to, equipment rentals and purchases to compensate for his injuries and other losses associated with his injuries. WHEREFORE, Plaintiff Gary R. Hershey demands judgment against Defendant Daniel H. Shetron, individually and t/d/b/a Shetron's Car Wash, either individually and/or jointly and k' severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in Cumberland County, Pennsylvania plus interest and/or damages for delay and costs $ r?rt of prosecution. 25. forth. COUNT II - PLAINTIFF GARY HERSHEY v. DEFENDANT SHETRON'S TIRE SERVICE, INC. Paragraphs 1 through 24 hereof are incorporated herein by reference as if fully set -6- Dmamenl N: 163458.1 26. At all times material hereto, Defendant Shetron's Tire Service, Inc. had in its possession and under its care, custody, control, direction, management, operation and/or responsibility the supervision, control and/or maintenance of the Car Wash. 27. At the time of Plaintiff Gary Hershey's aforesaid fall, Plaintiff Gary Hershey was a business invitee of Defendant Shetron's Tire Service, Inc. 28. Defendant Shetron's Tire Service, Inc. had a duty to properly maintain the Car Wash for the protection of customers traveling thereon including the Plaintiff Gary Hershey. 29. Defendant Shetron's Tire Service, Inc. had or should have had knowledge or notice of the existence of the dangerous condition at the Car Wash caused by the ice build up to the rear of the bays and knew or should have expected that its customers including Plaintiff Gary Hershey would not discover the hazard and protected its customers including Plaintiff Gary Hershey against the hazard. 30. Defendant Shetron's "fire Service, Inc. breached its duty owed to business invitees, customers and to Plaintiff Gary Hershey in particular by its negligent conduct as set forth herein. 31. The Defendant Shetron's Tire Service, Inc. individually and/or by its agents, servants, workmen and/or employees, acting within the scope of their authority and course of employment, was negligent in the following particulars: (a) Allowing foreign materials including ice to accumulate to the rear of the bay on the Car Wash within a potential walkway for its customers who may be washing their cars; (b) Failing to take the necessary protective and precautionary measures to ensure that customers including Plaintiff Gary Hershey had a safe walkway surface and were not subject to a slip and fall; 7- Document #: 1631393 (c) Failing to properly inspect the Car Wash to avoid the accumulation of water, ice and/or snow in the situation which occurred to Plaintiff Gary Hershey; (d) Failing to properly warn customers and Plaintiff Gary Hershey of the dangerous accumulation of water and/or ice to include failing to have in place proper warning signs; (e) Failing to eliminate or remove the accumulation of water and/or ice at the Car Wash; (f) Failing to maintain, clean up or otherwise clear the dangerous accumulation of water and/or ice in the Car Wash; (g) Failing to cinder, salt, place chemicals on or otherwise treat the surface of the Car Wash so that customers including Plaintiff Gary Hershey did not slip and fall; (h) Failing to have the necessary personnel, employees, agents, servants, workmen and/or independent contractors available to maintain the Car Wash surface and keep it free from hazardous accumulations including ice; (i) Failing to supervise its employees, servants, workmen, agents and/or independent contractors to ensure that the surface of the Car Wash was clear and free from hazardous materials including ice; (j) Failing to barricade, rope off or otherwise bar access to the hazardous accumulation caused by the ice so that customers including Plaintiff Gary Hershey are not subject to it; (k) Failing to employ the necessary maintenance, repair, custodial and/or janitorial service to clear, maintain, repair and clean the Car Wash; (1) Failing to have in place a program to prevent or respond to such dangerous accumulations and to prevent such falls; (m) Failing to properly and adequately train its employees, servants, workmen, agents and/or independent contractors to ensure that the Car Wash did not pose a hazardous condition to customers including Plaintiff Gary Hershey; (n) Hiring and/or maintaining employees, servants, workmen, agents and/or independent contractors who were unfit or incompetent to maintain the Car Wash; and -g- Dwimenl q.: 163458 1 (o) Failing to exercise reasonable care to protect customers including Plaintiff Gary Hershey against the hazardous condition. 32. Defendant Shetron's Tire Service, Inc. is vicariously liable for the acts, commissions or omissions of its agents, employees, servants, workmen and/or independent contractors including Defendant Daniel FI. Shetron as though it performed those acts, commissions or omissions itself. 33. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey sustained, or may sustain, serious and debilitating injuries, some of which may be permanent, and some of which may be an aggravation and/or exacerbation of a pre-existing condition, which include, but are not limited to, the following: (a) Trauma and injuries to his left shoulder; (b) Trauma and injuries to his neck and cervical spine; (c) Trauma,Lnd injury to his left arm; and (d) Psychiatric and /or psychological trauma and injury. 34. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey was forced to incur medical bills and expenses for the diagnosis and treatment of the injuries he has suffered and will reasonably incur in the future further medical expenses for the treatment and care of his continuing injuries. 35. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey has suffered a past loss of earnings, a future of loss earnings, lost earning capacity, loss of ability to perform household services, loss of ability to work on his rental properties, loss of productivity, and shortening of his economic horizons. -9- Daumenr 8.: 163458.1 36. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey has undergone and in the future will undergo physical pain, mental anguish, discomfort, inconvenience, distress, embarrassment, humiliation, loss of ability to enjoy the pleasures of life and limitation in the pursuit of daily activities all to his great loss and detriment. 37. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey has also suffered incidental costs and expenses including, but not limited to, equipment rentals and purchases to compensate for his injuries and other losses associated with his injuries. WHEREFORE, Plaintiff Gary R. Hershey demands judgment against Defendant Shetron's Tire Service, Inc., either individually and/or jointly and severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in Cumberland County, Pennsylvania plus interest and/or damages for delay and costs of prosecution. COUNT III - PLAINTIFF CINDY HERSHEY v. DEFENDANTS DANIEL H. SHETRON'S TIRE SERVICE, INC. AND DANIEL H. SHETRON INDIVIDUALLY AND t/d/b/a SHETRON'S CAR WASH 38. Paragraphs I through 37 hereof are incorporated herein by reference as if fully set forth. 39. During all material times hereto, Gary R. and Cindy L. Hershey were husband and wife; and solely as a result of the negligent conduct of Defendant Daniel H. Shetron and/or Defendant Shetron's Tire Service, Inc., and as a result of the injuries sustained by Plaintiff Gary R. Hershey, Plaintiff Cindy L. Hershey has been deprived of the assistance, services, -10- Do menl M: 163458. / companionship, consortium and society of her husband, all to her great loss and detriment which may continue indefinitely. WHEREFORE, Plaintiff Cindy L. Hershey demands judgment against Defendants Daniel H. Shetron, individually and t/d/b/a Shetron's Car Wash and Defendant Shetron's Tire Service, Inc., either individually and/or jointly and severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in Cumberland County, Pennsylvania plus interest and/or damages for delay and costs of prosecution. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By: Clark DeVere, Esquire Attorney I.D. No. 68768 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiffs Dated: V IOM IOM Document M: 163438.1 VERIFICATION I, Gary R. Hershey, hereby certify that the following is correct: The facts set forth in the foregoing Civil Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel and not my own. I have read the Civil Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Civil Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Dated:. yq y Gary R. H r ey "zb Vyll? e{r?fi Dommenr N. 163458. / VERIFICATION 1, Cindy L. Hershey, hereby certify that the following is correct: The facts set forth in the foregoing Civil Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel and not my own. I have read the Civil Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Civil Complaint is that of counsel, I have relied upon such counsel in making this Verification. 1 hereby acknowledge that the facts set forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Dated: 11/8/99 Cindy L. Hers Document M: 163458.1 CERTIFICATE OF SERVICE I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C., hereby certify that I served a true and correct copy of the civil Complaint with reference to the foregoing action by first class mail, postage prepaid, this 10-!Nay of November, 1999 on the following: Daniel H. Shetron, Shetron's Tire Service, Inc. and Daniel H. Shetron t/d/b/a Shetron's Car Wash c/o Donald M. Desseyn, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 METZGER, WICKERSHAM,KNAUSS & ERB, P.C. -?aFs ? Clark?beVere, Esquire Dxamenl #: 16345& 1 1 i O H I I a 'yy? O W 1 U N ?y P4 I w V >+ I N u zFz G a V co ! x a U V 1 x 1 p EF w m i `? x r$? I 7a. vl a C ? HU z 1 Ux 7 s 11 N z W ° H W F N zxx H H 3 X 6 6 P4 w " q U G z v w ? H N O w to z W q .? x In x W tq ,4 L) W \ q vi u I I I I I 1 I I I I I I F I w U 1 ?+ I U 1 1 1 I q n- in c c L q : Y u L L N 1 -n y DONALD M. DESSEYN, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 GARY R. HERSHEY and CINDY L. HERSHEY, Plaintiffs V. ATTORNEY FOR DEFENDANTS, Daniel H. Shetron Shetron's Tire Service, Inc. Daniel H. Shetron t/d/b/a Shetron's Car Wash IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5668 DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC., and DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH Defendants JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron t/d/b/a Shetron's Car Wash, 143-145 W. Orange Street, Shippensburg, PA 17257, in the above-captioned matter. Date: By •,,/ Dona ess squire Attorney for Defendants h ?JG UL ??.: 6" i.??l 7?_` ui?;: n ..-1;i ? emu: o. (Y7 :i itu F-? V a2 O of j GARY R. HERSHEY and CINDY L. HERSHEY, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5668 DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC., and DANIEL H. SHETRON dd/b/a SHETRON'S CAR WASH, Defendants JURY TRIAL DEMANDED RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Issue a Rule upon Plaintiffs, Gary R. Hershey and Cindy L. Hershey, to file their complaint against defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., Daniel H. Shetron t/d/b/a Shetron's Car Wash, within twenty days (20) from the date of service hereof; otherwise, judgment of non pros to be entered in accordance with Rule 1037 (a) of the Pennsylvania Rules of Civil Procedure. By: G? •? Donald esseyn, squire Attorney I.D. # 69179 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney for Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron t/d/b/a Shetron's Car Wash AND NOW, this,13f4- day offs 11 1 1999, in accordance with the aforesaid Order, a Rule is issued upon Plaintiffs, Gary R. Hershey and Cindy L. Hershey, to file their complaint against Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron t/d/b/a Shetron's Car Wash, within twenty days from the date of service hereof, otherwise, judgment of non pros to be entered in accordance with Rule 1037 (a) of the Pennsylvania Rules of Civil Procedure. Prothonotary ??` UJ _ L. Lu V? i 11 C1 ly u m .? v 1 CASE NO: 1999-05668 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HERSHEY GARY R ET AL VS. SHETRON DANIEL H ET AL _BRIAN BARRICK Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS, PLTFF'S was served upon SHETRON DANIEL H the defendant, at 16:30 HOURS, on the 22nd day of September 1999 at 143-145 WEST ORANGE STREET SHIPPENSBURG, PA 17257 CUMBERLAND County, Pennsylvania, by handing to DANIEL H. SHETRON (OWNER) a true and attested copy of the WRIT OF SUMMONS, PLTFF'S together with REQUEST FOR ENTRY & PLTFF'S PRE-PLEADING INTERROGATORIES and at the same time directing His attention to the contents thereof. She Service Costs: So a e r Docketing 18.00 13.02 Affidavit Surcharge 8.00 A-T omas ine, 5 eri- $3?S OZ-ME?ZG?R, WICKERSHAM 09M 1999 ka epu y eri Sworn and subscribed o before me this :Z 34-A day of 1999 A. D. SHERIFF'S RETURN - REGULAR .. i CASE NO: 1999-05668 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HERSHEY GARY R ET AL VS. SHETRON DANIEL H ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS, PLTFF'S was served upon SHETRON'S TIRE SERVICE INC the defendant, at 16:30 HOURS, on the 22nd day of September 1999 at 143-145 WEST ORANGE STREET SHIPPENSBURG, PA 17257 CUMBERLAND County, Pennsylvania, by handing to DANIEL H. SHETRON a true and attested copy of the WRIT OF SUMMONS, PLTFFIS together with REQUEST FOR ENTRY & PLTFFIS PRE-PLEADING INTERRATORIES and at the same time directing His attention to the contents thereof. Sheriff's Costs: So answers: Docketing 6.00 Service .00 C4 Affidavit .00 Surcharge 8.00 K.I om §-RTine, 5 eri X09/23?1J99ICKERS epu y5_ Sworn and subscribed to before me this -IAA day of 19Q!?_ A. D. rocnonocary A SHERIFF'S RETURN - REGULAR CASE NO: 1999-05668 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HERSHEY GARY R ET AL VS. SHETRON DANIEL H ET AL BRIAN BARRICK Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS, PLTFF.IS was served upon SHETRON'S CAR WASH defendant, at 16:30 HOURS, on the 22nd day of September the 1999 at 143-145 WEST ORANGE STREET SHIPPENSBURG, PA 17257 County, Pennsylvania, by handing to DANIEL H. SHETRON (OWNER)D a true and attested copy of the WRIT OF SUMMONS, PLTFF.IS together with REQUEST FOR ENTRY & PLTFF'S PRE-PLEADING INTERROGATORIES and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing So answer. Service 6.00 Affidavit 00 Surcharge 8 .00 m s ine, i $TT.-T -METZG$R WICKERSHAM 09/23/1§99 by i e u y ri Sworn and subscribed o before me this :(3M day of 19__ A.D. --7 i i n DONALD M. DESSEYN, Esquire ATTORNEY FOR DEFENDANTS, Berlon & Timmel Daniel H. Shetron 4999 Louise Drive, Suite 103 Shetron''s Tire Service, Inc. Mechanicsburg, PA 17055 Daniel H. Shetron t/d/b/a Shetron's Car Wash (717) 791-0400 Attorney I.D. # 69179 GARY R. HERSHEY, et al. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 99-5668 DANIEL H. SHETRON, et al. Defendants : JURY TRIAL DEMANDED ORDER AND NOW, this day of , 1999, after consideration of the Preliminary Objections of Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, it is hereby ordered and decreed that said Defendants' Preliminary Objections in the Nature of a Motion for a More Specific Pleading is sustained, and it is hereby ordered and decreed that said Defendants' Motion for a More Specific Pleading as to Paragraphs 8, 9, 10, 18 (o), and 31 (o) is sustained, and Plaintiffs shall file a more specific pleading against Defendants within days of the date of this Order. BY THE COURT: J. DONALD M. DESSEYN, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney 1,D, N 69179 ATTORNEY FOR DEFENDANTS, Daniel H. Shetron Shetron's Tire Service, Inc. Daniel H. Shetron t/d/b/a Shetron's Car Wash GARY R. HERSHEY, et al. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. : NO. 99-5668 DANIEL H. SHETRON, et al, Defendants . JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT AND NOW, comes the Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, by and through their attorney, Donald M. Desseyn, Esquire, who files the following Preliminary Objections to the Plaintiffs' Complaint based upon the following: 1. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION FOR A MORE SPECIFIC PLEADING ON BEHALF OF DEFENDANTS 1. Plaintiffs filed a Writ of Summons on September 13, 1999, in the above-captioned matter. 2. Plaintiffs subsequently filed a Complaint against the Defendants on or about November 10, 1999. A true and correct copy of Plaintiffs' Complaint is attached hereto and made a part hereof and marked, Exhibit "I." 3. Plaintiffs' Complaint alleges that the incident which is the basis of the subject Complaint occurred on or about November 17, 1997, when Plaintiff, Gary R. Hershey, pulled his vehicle into one of the bays of the car wash. See Paragraph 8 of Plaintiffs' Complaint. 4. Plaintiffs' Complaint alleges that the Plaintiff exited his vehicle and slid on some ice prior to his alleged fall. See Paragraph 9 of Plaintiffs' Complaint. 5. Plaintiffs' Complaint alleges that the Plaintiff fell onto his left shoulder on the asphalt and/or concrete. See Paragraph 10 of Plaintiffs' Complaint. 6. Pa. R.C.P. 1028 (3) requires that a pleading be with specificity, and the language as set forth by Plaintiffs in Paragraphs 8-10 of their Complaint fails to comport with the requirements of said Rule and thus fails to afford these Defendants any meaningful opportunity to investigate and respond to said allegations. WHEREFORE, Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, respectfully request that this Honorable Court require the Plaintiffs to file a more specific pleading delineating the factual averments upon which the alleged cause of action is based pursuant to Pa. R.C.P. 1028 (3). H. PuFr.rtvrNARY OBJECTION IN THE NATURE OF A MOTION FOR A MORE SPECIFIC PLEADING ON BEHALF OF DEFENDANT. DANIEL H. SHETRON 7. The averments of Paragraphs 1-6 of the within Preliminary Objections are incorporated herein by reference as if fully set forth at length. 8. Plaintiffs' Complaint alleges that Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash was negligent in failing to exercise reasonable care to protect customers, including Plaintiff Gary R. Hershey, against any hazardous condition. See Paragraph 18 (o) of Plaintiffs' Complaint. 9. Plaintiffs' Complaint fails to delineate and define "hazardous condition" as set forth in Plaintiffs' Complaint. 10. Pa. R.C.P. 1028 (3) requires that a pleading be with specificity, and the language "hazardous condition" fails to comport with the requirements of said Rule and thus fails to afford this Defendant any meaningful opportunity to investigate and respond to said allegation. WHEREFORE, Defendant, Daniel H. Shetron improperly identified as Ud/b/a Shetron's Car Wash, respectfully requests that this Honorable Court require the Plaintiffs to file a more specific pleading delineating the factual averments upon which their alleged cause of action is based pursuant to Pa. R.C.P. 1028 (3). III. PRELEVE NARY OBJECTION IN THE NATURE OF A MOTION FOR A MORE SPECIFIC PLEADING ON BEHALF OF DEFENDANT SHETRON'S TIRE SERVICE. INC. 11. The averments of Paragraphs 1-10 of the within Preliminary Objections are incorporated herein by reference as if fully set forth at length. 12. Plaintiffs' Complaint alleges that Defendant, Shetron's Tire Service, Inc., was negligent in failing to exercise reasonable care to protect customers, including Plaintiff Gary R. Hershey, against any hazardous condition. 13. Plaintiffs' Complaint fails to delineate and define "hazardous condition" as set forth in Plaintiffs' Complaint. 14. Pa. R.C.P. 1028 (3) requires that a pleading be with specificity, and the language "hazardous condition" fails to comport with the requirements of said Rule and thus fails to afford this Defendant any meaningful opportunity to investigate and respond to said allegation. WHEREFORE, Defendant, Shetron's Tire Service, Inc., respectfully requests that this Honorable Court require the Plaintiffs to file a more specific pleading delineating the factual averments, including but not limited to defining the specific allegations upon which their alleged cause of action is based and to comport with Pa. R.C.P. 1028 (3). Respectfully submitted, BERLON & TIlvAdEL Date: Ay 0%/999 By; -4 *v4r4ne?? Donald 4. esseyn EXHIBIT "1" GARY R. HERSHEY and CINDY L. IN THE COURT OF COMMON PLEAS OF HERSHEY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION- LAW VS. NO. 99-5668 DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC. and DANIEL H. SHETRON Vd/b/a SHETRON'S CAR WASH, Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND TO: Daniel H. Shetron, Shetron's Tire Service, Inc. and Daniel H. Shetron t/d/b/a Shetron's Car Wash c/o Donald M. Desseyn, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 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 maybe entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT 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 or (800) 990-9108 Dmvmenr k 163118.1 GARY R. HERSHEY and CINDY L. IN THE COURT OF COMMON PLEAS OF HERSHEY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW VS. NO. 99-5668 DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC. and DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH, Defendants JURY TRIAL DEMANDED CIVIL COMPLAINT 1. The Plaintiffs Gary R. Hershey and Cindy L. Hershey, husband and wife, are adult individuals residing at 171 Chamberlin Road, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant Daniel H. Shetron, is an adult individual who trades and does business as Shetron's Car Wash at 143-145 West Orange Street, Shippensburg, Cumberland County, Pennsylvania 17257. 3. Defendant Shetron's Tire Service, Inc., is a Pennsylvania corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 143-145 West Orange Street, Shippensburg, Cumberland County, Pennsylvania 17257. 4. On or about November 17, 1997, Defendant Daniel Shetron was the fee simple owner and in possession of real property located at 143-145 West Orange Street, Shippensburg, Cumberland County, Pennsylvania 17257 (hereinafter referred to as the "Property")- Dommml 8: 163438.1 5. At all times material hereto, a coin-operated car wash, self-service, which was open 24 hours a day, seven days a week was situated on the Property which was called "Shetron's Car Wash" (hereinafter referred to as the "Car Wash"). 6. At all times material hereto, Defendant Shetron's Tire Service, Inc. leased the location of the Car Wash from Defendant Daniel H. Shetron on a month-to-month basis pursuant to an oral lease. 7. At all times material hereto, Defendant Shetron's Tire Service, Inc. was responsible for managing, supervising, operating and maintaining the Car Wash which included cleaning bays, snow removal and placing chemicals for ice. 8. On or about November 17, 1997, at approximately 12:00 p.m., Plaintiff Gary Hershey pulled his truck and camper into one of the bays of the Car Wash, rinsed his truck off and then pulled his truck partially out of the bay, leaving his camper in the bay so that he could rinse off his camper. 9. As Plaintiff Gary Hershey exited his truck, he slid on some ice which had built up from the spray, drippage and/or run-off from the car wash. 10. Plaintiff Gary Hershey slipped on the dangerous build up of the ice and fell onto his left shoulder on the asphalt and/or concrete. 11. At all times material hereto, Defendants acted or failed to act individually or through their employees, agents, servants and/or workmen within the course and scope of their agency or employment. -2- Document N: 163458.1 COUNT I - PLAINTIFF GARY HERSHEY v. DEFENDANT DANIEL H. SHETRON, INDIVIDUALLY and t/d/b/a SHETRON'S CAR WASH 12. Paragraphs I through I I hereof are incorporated herein by reference as if fully set forth. 13. At all times material hereto, Defendant Daniel H. Shetron had in his possession and under his care, custody, control, direction, management, operation and/or responsibility the supervision, control and/or maintenance of the Car Wash to include the supervision of Defendant Shetron's Tire Service, Inc. 14. At the time of Plaintiff Gary Hershey's aforesaid fall, Plaintiff Gary Hershey was a business invitee of Defendant Daniel H. Shetron. 15. Defendant Daniel H. Shetron had a duty to properly maintain the Car Wash for the protection of customers traveling thereon including the Plaintiff Gary Hershey. 16. Defendant Daniel H. Shetron had or should have had knowledge or notice of the existence of the dangerous condition at the Car Wash caused by the ice build up to the rear of the bays and knew or should have expected that its customers including Plaintiff Gary Hershey would not discover the hazard and protected its customers including Plaintiff Gary Hershey against the hazard. 17. Defendant Daniel H. Shetron breached his duty owed to business invitees, customers and to Plaintiff Gary Hershey in particular by his negligent conduct as set forth herein. 18. The Defendant Daniel H. Shetron individually and/or by his agents, servants, workmen and/or employees, acting within the scope of their authority and course of employment, was negligent in the following particulars: (a) Allowing foreign materials including ice to accumulate to the rear of the bay on the Car Wash within a potential walkway for its customers who may be washing their cars; -3- Document 8: 163138.1 (b) Failing to take the necessary protective and precautionary measures to ensure that customers including Plaintiff Gary Hershey had a safe walkway surface and were not subject to a slip and fall; (c) Failing to properly inspect the Car Wash to avoid the accumulation of water, ice and/or snow in the situation which occurred to Plaintiff Gary Hershey; (d) Failing to properly want customers and Plaintiff Gary Hershey of the dangerous accumulation of water and/or ice to include failing to have in place proper warning signs; (e) Failing to eliminate or remove the accumulation of water and/or ice at the Car Wash; (f) Failing to maintain, clean up or otherwise clear the dangerous accumulation of water and/or ice in the Car Wash; (g) Failing to cinder, salt, place chemicals on or otherwise treat the surface of the Car Wash so that customers including Plaintiff Gary Hershey did not slip and fall; (h) Failing to have the necessary personnel, employees, agents, servants, workmen and/or independent contractors available to maintain the Car Wash surface and keep it free from hazardous accumulations including ice; (i) Failing to supervise his employees, servants, workmen, agents and/or independent contractors to ensure that the surface of the Car Wash was clear and free from hazardous materials including ice; (j) Failing to barricade, rope off or otherwise bar access to the hazardous accumulation caused by the ice so that customers including Plaintiff Gary Hershey are not subject to it; (k) Failing to employ the necessary maintenance, repair, custodial and/or janitorial service to clear, maintain, repair and clean the Car Wash; (1) Failing to have in place a program to prevent or respond to such dangerous accumulations and to prevent such falls; (m) Failing to properly and adequately train his employees, servants, workmen, agents and/or independent contractors to ensure that the Car -4- Document N; 163138.1 t .t Wash did not pose a hazardous condition to customers including Plaintiff Gary Hershey; (n) Hiring and/or maintaining employees, servants, workmen, agents and/or independent contractors who were unfit or incompetent to maintain the Car Wash; and (o) Failing to exercise reasonable care to protect customers including Plaintiff Gary Hershey against the hazardous condition. 19. Defendant Daniel H. Shetron is vicariously liable for the acts, commissions or omissions of his agents, employees, servants, workmen and/or independent contractors including Defendant Shetron's Tire Service, Inc. as though he performed those acts, commissions or omissions himself. 20. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey sustained, or may sustain, serious and debilitating injuries, some of which may be permanent, and some of which may be an aggravation and/or exacerbation of a pre-existing condition, which include, but are not limited to, the following: (a) Trauma and injuries to his left shoulder; (b) Trauma and injuries to his neck and cervical spine; (c) Trauma and injury to his left arm; and (d) Psychiatric and/or psychological trauma and injury. 21. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey was forced to incur medical bills and expenses for the diagnosis and treatment of the injuries he has suffered and will reasonably incur in the future further medical expenses for the treatment and care of his continuing injuries,' ^?S -5- Document M: 163458.1 22. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey has suffered a past loss of earnings, a future of loss earnings, lost earning capacity, loss of ability to perform household services, loss of ability to work on his rental properties, loss of productivity, and shortening of his economic horizons. 23. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey has undergone and in the future will undergo physical pain, mental anguish, discomfort, inconvenience, distress, embarrassment, humiliation, loss of ability to enjoy the pleasures of life and limitation in the pursuit of daily activities all to his great loss and detriment. 24. As a direct and proximate result of the negligent conduct of Defendant Daniel H. Shetron, Plaintiff Gary Hershey has also suffered incidental costs and expenses including, but not limited to, equipment rentals and purchases to compensate for his injuries and other losses associated with his injuries. WHEREFORE, Plaintiff Gary R. Hershey demands judgment against Defendant Daniel H. Shetron, individually and t/d/b/a Shetron's Car Wash, either individually and/or jointly and severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in Cumberland County, Pennsylvania plus interest and/or damages for delay and costs of prosecution. COUNT II - PLAINTIFF GARY HERSHEY v. DEFENDANT SHETRON'S TIRE SERVICE INC 25. Paragraphs 1 through 24 hereof are incorporated herein by reference as if fully set forth. -6- Document N: 163138.1 26. At all times material hereto, Defendant Shetron's Tire Service, Inc. had in its possession and under its care, custody, control, direction, management, operation and/or responsibility the supervision, control and/or maintenance of the Car Wash. 27. At the time of Plaintiff Gary Hershey's aforesaid fall, Plaintiff Gary Hershey was a business invitee of Defendant Shetron's Tire Service, Inc. 28. Defendant Shetron's Tire Service, Inc. had a duty to properly maintain the Car Wash for the protection of customers traveling thereon including the Plaintiff Gary Hershey. 29. Defendant Shetron's Tire Service, Inc. had or should have had knowledge or notice of the existence of the dangerous condition at the Car Wash caused by the ice build up to the rear of the bays and knew or should have expected that its customers including Plaintiff Gary Hershey would not discover the hazard and protected its customers including Plaintiff Gary Hershey against the hazard. 30. Defendant Shetron's Tire Service, Inc. breached its duty owed to business invitees, customers and to Plaintiff Gary Hershey in particular by its negligent conduct as set forth herein. 31. The Defendant Shetron's Tire Service, Inc. individually and/or by its agents, servants, workmen and/or employees, acting within the scope of their authority and course of employment, was negligent in the following particulars: (a) Allowing foreign materials including ice to accumulate to the rear of the bay on the Car Wash within a potential walkway for its customers who may be washing their cars; (b) Failing to take the necessary protective and precautionary measures to ensure that customers including Plaintiff Gary Hershey had a safe walkway surface and were not subject to a slip and fall; -7- Da enl M: 163158.1 (c) Failing to properly inspect the Car Wash to avoid the accumulation of water, ice and/or snow in the situation which occurred to Plaintiff Gary Hershey; (d) Failing to properly warn customers and Plaintiff Gary Hershey of the dangerous accumulation of water and/or ice to include failing to have in place proper warning signs; (e) Failing to eliminate or remove the accumulation of water and/or ice at the Car Wash; (f) Failing to maintain, clean up or otherwise clear the dangerous accumulation of water and/or ice in the Car Wash; (g) Failing to cinder, salt, place chemicals on or otherwise treat the surface of the Car Wash so that customers including Plaintiff Gary Hershey did not slip and fall; (h) Failing to have the necessary personnel, employees, agents, servants, workmen and/or independent contractors available to maintain the Car Wash surface and keep it free from hazardous accumulations including ice; (i) Failing to supervise its employees, servants, workmen, agents and/or independent contractors to ensure that the surface of the Car Wash was clear and free from hazardous materials including ice; (j) Failing to barricade, rope off or otherwise bar access to the hazardous accumulation caused by the ice so that customers including Plaintiff Gary Hershey are not subject to it; (k) Failing to employ the necessary maintenance, repair, custodial and/or janitorial service to clear, maintain, repair and clean the Car Wash; (1) Failing to have in place a program to prevent or respond to such dangerous accumulations and to prevent such falls; (m) Failing to properly and adequately train its employees, servants, workmen, agents and/or independent contractors to ensure that the Car Wash did not pose a hazardous condition to customers including Plaintiff Gary Hershey; (n) Hiring and/or maintaining employees, servants, workmen, agents and/or independent contractors who were unfit or incompetent to maintain the Car Wash; and -8- Document N: 163438.1 (o) Failing to exercise reasonable care to protect customers including Plaintiff Gary Hershey against the hazardous condition. 32. Defendant Shetron's Tire Service, Inc, is vicariously liable for the acts, commissions or omissions of its agents, employees, servants, workmen and/or independent contractors including Defendant Daniel H. Shetron as though it performed those acts, commissions or omissions itself. 33. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey sustained, or may sustain, serious and debilitating injuries, some of which may be permanent, and some of which may be an aggravation and/or exacerbation of a pre-existing condition, which include, but are not limited to, the following: (a) Trauma and injuries to his left shoulder; (b) Trauma and injuries to his neck and cervical spine; (c) Trauma and injury to his left arm; and (d) Psychiatric and /or psychological trauma and injury. 34. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey was forced to incur medical bills and expenses for the diagnosis and treatment of the injuries he has suffered and will reasonably incur in the future further medical expenses for the treatment and care of his continuing injuries. 35. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey has suffered a past loss of earnings, a future of loss earnings, lost eaming capacity, loss of ability to perform household services, loss of ability to work on his rental properties, loss of productivity, and shortening of his economic horizons. -9- Document N: 163438.1 36. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey has undergone and in the future will undergo physical pain, mental anguish, discomfort, inconvenience, distress, embarrassment, humiliation, loss of ability to enjoy the pleasures of life and limitation in the pursuit of daily activities all to his great loss and detriment. 37. As a direct and proximate result of the negligent conduct of Defendant Shetron's Tire Service, Inc., Plaintiff Gary Hershey has also suffered incidental costs and expenses including, but not limited to, equipment rentals and purchases to compensate for his injuries and other losses associated with his injuries. WHEREFORE, Plaintiff Gary R. Hershey demands judgment against Defendant Shetron's Tire Service, Inc., either individually and/or jointly and severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in Cumberland County, Pennsylvania plus interest and/or damages for delay and costs of prosecution. COUNT III - PLAINTIFF CINDY HERSHEY v. DEFENDANTS DANIEL H. SHETRON'S TIRE SERVICE, INC. AND DANIEL H SHETRON INDIVIDUALLY AND t/d/b/a SHETRON'S CAR WASH 38. Paragraphs 1 through 37 hereof are incorporated herein by reference as if fully set forth. 39. During all material times hereto, Gary R. and Cindy L. Hershey were husband and wife; and solely as a result of the negligent conduct of Defendant Daniel H. Shetron and/or Defendant Shetron's Tire Service, Inc., and as a result of the injuries sustained by Plaintiff Gary R. Hershey, Plaintiff Cindy L. Hershey has been deprived of the assistance, services, -10- Dmmem N: 163458.1 companionship, consortium and society of her husband, all to her great loss and detriment which may continue indefinitely. WHEREFORE, Plaintiff Cindy L. Hershey demands judgment against Defendants Daniel H. Shetron, individually and t/d/b/a Shetron's Car Wash and Defendant Shetron's Tire Service, Inc., either individually and/or jointly and severally, for the aforesaid damages in an amount which exceeds the limits of compulsory arbitration in Cumberland County, Pennsylvania plus interest and/or damages for delay and costs of prosecution. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By: l Clark DeVere, Esquire Attorney I.D. No. 68768 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiffs Dated: I'/10/v? Da mint N: 163438.1 I, Gary R. Hershey, hereby certify that the following is correct: The facts set forth in the foregoing Civil Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel and not my own. I have read the Civil Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Civil Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswomfalsificationto authorities. Dated: g.) qq 9 'O/W Gary R. H ey Da ew N: 163158.1 i VERIFICATION I, Cindy L. Hershey, hereby certify that the following is correct: The facts set forth in the foregoing Civil Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Civil Complaint is that of counsel and not my own. I have read the Civil Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Civil Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswomfalsificationto authorities. Dated: 11/8/99 4A 'L A/, A A A/ Cindy L. Hers Document 0: 163438.1 CERTIFICATE OF SERVICE I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C., hereby certify that I served a true and correct copy of the Civil Complaint with reference to the foregoing action by first class mail, postage prepaid, this IO t'o'day of November, 1999 on the following: Daniel H. Shetron, Shetron's Tire Service, Inc, and Daniel H. Shetron t/d/b/a Shetron's Car Wash c/o Donald M. Desseyn, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Clark eVere, Esquire D=wnt M: 163438.1 CERTIFICATE OF SERVICE AND NOW, this D/=r day of ,, 1999, I, Donald M. Desseyn, Esquire, Attorney for Defendants, Daniel H. Shetron, Shetron's Tire Service, Inc., and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, hereby certify that I served a copy of the foregoing Preliminary Objections on December 1, 1999, by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Clark DeVere, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street PO Box 5300 Harrisburg, PA 17110 Date: Asue o//sp9 By: Donald esseyn, squire Attorney for Defendants Berlon & Timmei 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 Ln CV i ) uj a O m U i . A ?t DONALD M. DESSEYN, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 GARY R. HERSHEY, et al. Plaintiffs V. DANIEL H. SHETRON, et al. Defendants ATTORNF,Y FOR DEFENDANTS, Daniel H. Shetron Shetron's Tire Service, Inc. Daniel H. Shetron t/d/b/a Shetron's Car Wash IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNS?YLVX % c .a n CIVIL ACTION - LAW ° n? NO. 99-5668 ?} ; • tv C ytc 7-4 N ,rn JURY TRIAL DEMANDED ;n ca PRAECIPE FOR ARGUMENT AND NOW, comes the Defendants, Daniel H. Shetron, Shetron's Tire Service, and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, by and through their counsel, Donald M. Desseyn, Esquire, and respectfully request that the Preliminary Objections of Defendants, Daniel H. Shetron, Shetron's Tire Service, and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, to Plaintiffs' Complaint be argued on January 5, 2000, pursuant to Cumberland County Local Rules 206-2 and 210-1, et seq. Respectfully submitted, Date: jkr o/, /999 By: Donald WDessFy-n" Attorney for Defendants Ch A CERTIFICATE OF SERVICE AND NOW, this ? day of jie nYB<Z , 1999, I, Donald M. Desseyn, Esquire, Attorney for Defendants, Daniel H. Shetron, Shetron's Tire Service, and Daniel H. Shetron improperly identified as t/d/b/a Shetron's Car Wash, hereby certify that I served a copy of the foregoing Praecipe for Argument on December 1, 1999, by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Clark DeVere, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street PO Box 5300 Harrisburg, PA 17110 Date: . a/ /999 By: G? Donald-l esseyn, Esquire Attorney for Defendants Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 69179 DEC 2 s IsssbP GARY R. HERSHEY and CINDY L. IN THE COURT OF COMMON PLEAS HERSHEY, : OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION -LAW Vs. : NO. 99-5668 DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC. and DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH, Defendants : JURY TRIAL DEMANDED ORDER AND NOW, this 79 ay of the Stipulation of the parties, through their undersigned counsel, regarding the Preliminary Objections to the Complaint is hereby APPROVED and the Preliminary Objections are marked withdrawn. Defendant shall file an Answer to the Com?fPt?Taint within 10 days from the ate of this Order..[ zNls W zcr is ilt-tc?ecn Fr-ma c z???v,cr+l Cow ?ls??? ZV7 S (Z o 0 0 BY THE COURT: _/ "_9 cc: Clark DeVere, Esquire - Counsel for Plaintiffs 1;?-,36J0 y'yt9a9,?p( Donald M. Desseyn, Esquire - Counsel for Defendants RKS I ? I ? :J • i1 ;J ?J?fl Document N: 165544.1 GARY R. HERSHEY and CINDY L. HERSHEY, Plaintiffs VS. DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC. and DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5668 JURY TRIAL DEMANDED STIPULATION OF COUNSEL TO RESOLVE THE PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT IN THE ABOVE-CAPTIONED ACTION The parties, through their undersigned counsel, agree to and stipulate to the following: At the time of his fall, Plaintiff Gary Hershey had pulled his truck and camper into the large bay of the car wash which is the second bay from the right as you are facing the front of the car wash. A true and correct photocopy of a photograph showing Plaintiff Gary Hershey's vehicle in the bay he was using at the time of his fall is attached hereto as Exhibit "A" and incorporated herein by reference. 2. The exact location of where Plaintiff Gary Hershey fell on November 17, 1997, whether on asphalt and/or concrete, will be raised during the deposition of Plaintiff Gary Hershey to be scheduled at a later time. 3. For the purposes of the Civil Complaint filed in this action, "hazardous condition" is defined as the "water and/or ice which had built up from the spray, drippage and/or run off from the car wash." Dwumew #. 1633!4.1 The parties, through their undersigned counsel respectfully request that the Court approve of the above Stipulation and agree that the Preliminary Objections will be withdrawn to the Complaint and that an Answer will be filed to the Complaint within 10 days after Court approval. Date:_..ae,,24 /949 Clark DeVere, Esquire Attorney for Plaintiffs Date: Aker /x/999 Donald lbI esseyn, quire Attorney for Defendants -2- Dxumeni N: 165544.1 ?•,rV 5; z+ Y 1. i?ly u)? h . rC4R, ':Yn Exhibit A DEC 2 31999 M F I 0H H W .7 a i N i 1 j N 0 N N N I W O O O E P. vJ I I F W 3 F HO 6 p I w a N I P4 .7 F P. G I N 6 U i 0.. 0 U O 1 }yN 1) z 0 I z'N N I Ooh E. F ro 0 i C d 0 f W c 7 ' ! a' N ?2 W 1 zHO qzqz S 7 0 H 0 U6 ?n I 5 NN 0 F .?..-7777 W T I a w N I E-4 W 6 d H x W HA I ....77 70.ai44 Z p. N a b 1 w E. a N U " L I dU' x N W I I -I W F S W z . 7 C7 W +.+ I w F p N ssY S j 1 c J i GARY R. HERSHEY and CINDY L. : IN THE COURT OF COMMON PLEAS HERSHEY, : OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION -LAW VS. NO. 99-5668 DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC. and DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH, Defendants JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANTS' NEW MATTER 40. Conclusion of law, no reply required. If a reply is required, the averments are denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, the Plaintiffs' Complaint states causes of action upon which relief can be granted against answering Defendants. 41. Conclusion of law, no reply required. If a reply is required, the averments are denied pursuant to Pa.R.C.P. No. 1029(e) and 1030(note). By way of further reply, the Plaintiffs did not assume any risk. 42.(a)-(h) Conclusions of law, no reply required. If a reply is required, the averments are denied pursuant to Pa.R.C.P. No. 1029(e) and 1030(note). By way of further reply, Plaintiff Gary Hershey was not negligent in any manner. 43. Conclusion of law, no reply required. If a reply is required, the averments are denied pursuant to Pa.R.C.P. No. 1029(e). By way of further reply, Plaintiff Gary Hershey has satisfied any responsibility he has to mitigate his damages. Domimem N: 167085.1 WHEREFORE, Plaintiffs Gary and Cindy Hershey demand that Defendants' New Matter be dismissed and that judgment be entered against Defendants as requested in the Complaint filed in this action. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By:_ Clark DeVere, Esquire Attorney I.D. No. 68768 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiffs Dated: i/1.t/oo -2- Document M: 167083.1 VE 6I IC-- ATIpN The undersigned hereby certifies that he is the attorney for Plaintiffs and that any facts in the foregoing Plaintiff's' Reply to Defendants' New Matter are true and correct to the best of his knowledge, information and belief, and that said matters relating to the Plaintiffs' Reply to Defendants' New Matter are as known to the undersigned as to the Plaintiffs, said knowledge being based upon information contained in the attorney's file in this matter, and further states that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Clark DeVere, Esquire Dated: Iii y/OU Document q: 167085,1 CERTIFICATE OF SERVICE 1, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C., hereby certify that 1 served a true and correct copy of the Plaintiffs' Reply to Defendants' New Matter with reference to the foregoing action by first class mail, postage prepaid, this 14th day of January, 2000 on the following: Daniel H. Shetron, Shetron's Tire Service, Inc. and Daniel H. Shetron t/d/b/a Shetron's Car Wash C/o Donald M. Desseyn, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Clark DeVere, Esquire Document N: 167085.1 ? I I I I N ? 4 > w w 'z I I i i .7 ? ? N W u ? z z O W a I U •. + N - 1 c w V I N O I I O x U 00 1 w O 1 W x V V I w rn i x ? x z IX H V Z I td'J 5 x y W d N U v 0 ,4 ? Id F G z F N N F N W A Z V y F ~ a zw? N V'O N x a " W -G W n C44 W F x ca'dH?a ywy W w w a F E. a? w zw Z to w w zZ N a w %a- LL t r' c y?c /LE is e? :L _ c. L r C7 C r_ LD , 7)I' fI II, _ CI w -c ? lG r A GARY R. HERSHEY and CINDY L. HERSHEY, Plaintiffs VS. DANIEL H. SHETRON, SHETRON'S TIRE SERVICE, INC. and DANIEL H. SHETRON t/d/b/a SHETRON'S CAR WASH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5668 Civil JURY TRIAL DEMANDED PLAINTIFFS' PRAECIPE TO SETTLE DISCONTINUE AND END Kindly mark the above action by Plaintiffs Gary R. and Cindy L. Hershey settled, discontinued and ended. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By: ? Z&Q VZ- Clark DeVere, Esquire Attorney I.D. No. 68768 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiffs Dated: November 5, 2001 90 9) e ?t .m t? f M Document N: 219061.1 CERTIFICATE OF SERVICE I, Clark DeVere, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C., hereby certify thatI served a true and correct copy of Plaintiffs Praecipe to Settle, Discontinue and End with reference to the foregoing action by first class mail, postage prepaid, this 5th day of November, 2001 on the following: Daniel H. Shetron, Shetron's Tire Service, Inc. and Daniel H. Shetron t/d/b/a Shetron's Car Wash c/o Donald M. Desseyn, Esquire Berlon & Timmel 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 Go-?L NF1 Clark DeVere, Esquire' Document N: 719061.1 r:= --. ?= nl C\. _' _ ?: ?p ?.? :_? L-: ii ?y? .r. i?_ ,:: ? ?7 V w w I I 1 O I I I W C I H F 1 W I I I O H I F x I W I T. i N I a d ? ?? F I F W r-7 ? I N 'G x x N I il j [ N m W 1 q w a 6 F I I o z z I H u E W 3 N 1 O ., O w 1 U C 5 2 a r I F i / W ` W 1 -.1 N 6 6 N I W I Z n ? o ,n O N i m p. o m q W I?c7 u• o S F . Q z c] g 2 F O U I x E a i p, I 6 i ZO` c 00 1 a w zw I - W I rv m ?^ x I v» I ' ?' n , N I x W (, I t wa a? i zw W t0 i HH i = 94 F I 7+ vxi rw-i ' I z O I a44 6 av I V w I HU z 1 c az > Nu i s 105 A\LIAB\TJM\LLPG11093 I\MMK119181\00617 FRANK PENNINGTON, Personal Representative of the Estate of LENA SORBELLO Plaintiff V. HEALTHSOUTH CORPORATION and HEALTHSOUTH REHABILITATION OF MECHANICSBURG - ACUTE REHAB HOSPITAL Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-5668 CIVIL TERM 1. Admitted in part; denied in part. It is admitted only that when this action was instituted Plaintiff was Lena Sorbello and that Mrs. Sorbello during her lifetime was who she says she was. By way of further answer, and upon information and belief, Defendants understand that Mrs. Sorbello expired due to causes unrelated to the alleged medical negligence set forth in Plaintiffs Second Amended Civil Action Complaint. Defendants understand that the current Plaintiff is Frank Pennington, Personal Representative of the Estate of Decedent, Lena Sorbello. 2. Admitted in part; denied in part. It is admitted that Defendant HealthSouth Corporation is a corporation which maintains an address at One HealthSouth Parkway, Birmingham, Alabama. With respect to Defendant HealthSouth Rehabilitation of Mechanicsburg - Acute Rehab Hospital, it is specifically denied that this is a corporation as alleged. The remaining allegations of this Paragraph are denied. 3. Denied as stated. Defendants deny that Plaintiff was admitted to "defendant HealthSouth" as alleged. By way of further answer, it is admitted that Plaintiff was admitted on or about October 2, 1996 to HealthSouth Rehabilitation Hospital of Mechanicsburg for rehabilitation following a surgical procedure performed upon her cervical spine on September 27, 1996. 4. Admitted in part; denied in part. It is admitted only that Defendants act through agents, servants and/or employees. However, because the allegations set forth in this Paragraph do not identify the particular or specific alleged agents, servants, employees and/or apparent employees who are otherwise and further alleged to have acted within the course and scope of their employment or apparent agency, Defendants cannot further admit the allegations of this Paragraph and accordingly the same are denied and proof thereof is demanded at trial, if relevant. 5. Admitted in part; denied in part. It is admitted only that on or about October 3, 1996, sometime after 12:30 p.m., Plaintiff Lena Sorbello was taken to the Occupational Therapy Department of HealthSouth Rehabilitation Hospital of Mechanicsburg. The remaining allegations of this Paragraph are denied. 6. Denied. It is specifically denied that Lena Sorbello was left unattended in the Occupational Therapy Department as alleged. To the contrary, at no time on October 3, 1996 was Lena Sorbello left unattended at the Occupational Therapy Department of HealthSouth Rehabilitation Hospital of Mechanicsburg. With respect to the remaining allegations set forth in this Paragraph, those allegations constitute conclusions of law within the meaning of Pa.R.C.P. 2 1029(e) and accordingly are denied on that basis and proof thereof is demanded at trial, if relevant. 7. Denied. The allegations set forth in this Paragraph together with its subparts (a)- (m) constitute conclusions of law to which no further responsive pleading is required. By way of further answer, Defendants specifically deny each and every allegation of negligence as set forth in this Paragraph and its subparagraph (a)-(m) and to the contrary, Defendants aver that at all times relevant to the medical care provided to Plaintiff Lena Sorbello, Defendants acted within an appropriate standard of care and otherwise acted reasonably under the circumstances. 8. Denied. The allegations of this Paragraph constitute conclusions of law to which no further responsive pleading is required and accordingly the same are denied and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendants demand judgment in their favor and against the Plaintiff together with such other relief as this Court shall deem appropriate. NEW MATTER DIRECTED TO THE PLAINTIFF 9. Plaintiffs Complaint fails to state a cause of action as against Defendants upon which relief may be granted. 10. Plaintiffs claims may be barred and/or limited by the applicable Statute of Limitations. 11. Plaintiffs injuries and/or losses, if any, were caused in whole or in part by persons or events outside the control of Answering Defendants. 12. Plaintiffs injuries and/or losses, if any, were caused in whole or in part by persons and/or entities not party to this action. 3 13. Plaintiffs injuries, if any, were sustained as a result of natural and/or unknown causes and not as a result of any action or inaction on the part of Defendants. 14. All care and/or treatment rendered to Plaintiff by Defendants was appropriate, reasonable and within the applicable standard of care in October of 1996. 15. Defendants believe and therefore aver that the evidence accumulated through discovery and provided at trial may establish that Plaintiff was contributory negligent and, solely in order to protect the record, Defendants hereby plead contributory and comparative negligence as affirmative defenses. 16. Whatever injuries and/or damages, if any, were sustained by Plaintiff as averred by Plaintiff in her Complaint, all such injuries and/or damages being expressly and specifically denied, were caused in whole or in part by persons or entities over whom Defendants had neither any duty to supervise or control or any right of supervision or control and accordingly Defendants are not liable and Plaintiff may not recover as against them as a matter of law. 17. Plaintiffs injuries and/or damages, if any, were not caused by any conduct or negligence on the part of Defendants but rather were caused by pre-existing medical conditions and causes beyond the control of Defendants or any of them and accordingly the Plaintiff may not recover against Defendants in this action as a matter of law. 18. Plaintiffs claims may be barred and/or limited by the applicable provisions of the Pennsylvania Healthcare Malpractice Act and/or the MCare Act and accordingly those are referenced herein as affirmative defenses. 19. No act or omission on the part of Defendants or any of them was a substantial contributing factor in bringing about Plaintiffs injuries and/or damages, all such injuries and/or damages being expressly denied. 4 WHEREFORE, Defendants demand judgment in their favor and against Plaintiff together with such other relief as this Court shall deem appropriate. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE; P JA I L ill ZCU 3 BY: c)1VIAHON, ESQUIRE I IMOTHY(`. )?l I.D. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendants s A t;n 5 VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answer with New Matter to Plaintiffs Second Amended Complaint are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the Answer with New Matter to Plaintiffs Second Amended Complaint is that of counsel and not my own. I have read the Answer with New Matter to Plaintiffs Second Amended Complaint, and, to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer with New Matter to Plaintiffs Second Amended Complaint are that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. DATE: Melissa Kutz, Administrator/CEO HealthSouth Mechanicsburg, Inc. FRANK PENNINGTON, Personal Representative of the Estate of LENA SORBELLO Plaintiff V. HEALTHSOUTH CORPORATION and HEALTHSOUTH REHABILITATION OF MECHANICSBURG - ACUTE REHAB HOSPITAL Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-5668 CIVIL TERM CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do ' hereby certify that on this&A?day of April, 2003 served a copy of the foregoing document via United States, First Class Mail as follows: Mark R. Cuker, Esquire WILLIAMS & CUKER One Penn Center at Suburban Station 1617 JFK Blvd. Suite 800 Philadelphia, PA 19103 Joal . Parr ?_ ..? ?? C l,i 1 _ . ' l - ?. ..I •. 1 i.? . •' l :I 1 ;. ? ` i U