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HomeMy WebLinkAbout99-06833`;t? BRIAN T. DUFFIL'-, RACHEL DUFFIE, Plaintiffs V. RICHARD DIAMOND. : WALTERTIIEODORE . TROTH, POUR MILE RUN DIAMOND LODGE,: INC.. T HOMAS DIXON DIAMOND, JAMES BRIAN SMITH, Defendants V. BEVERLY WAT KINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants IN THE COURT OP COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 99-6833 CIVIL TERM RULE TO SHOW CAUSE AND NOW, this day of January, 2000, upon consideration of the Petition for Change of Venue Pursuant to Pa. R.C.P. 1006(d)(1) tiled by Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and'fhomas Dixon Diamond, it is ordered that (1) A rule is issued upon Plaintiffs. the remaining Defendants and Additional Ucfendants to show cause, i f ally it has. Nvby the relief requested should not be granted; (2) Plaintiff's, the remaining Defendants and Additional Defendants shall file an answer to the lot ion within 21 days of the (late of this order; (3) 'file Motion shall be decided under Pa. R.C.P. 206.7: (4) Depositions shall be completed within -19 clays of this date; (>) Argument shall be held on Monday, April 3, 2000, at 9:30 a.m.. in Courtroom No- I, Cumberland County Courthouse, Carlisle, Pennsy Ivania; and (6) Notice of the entry of this order shall be provided to all parties by the Dclcnclants filing this Petition. John Andrexv Statlcr. Esq. 320 G. Market Street I-larrisbura. PA 17103-0340 .lames G. Nealon. 11. Esq. 301 Market Street Harrisburg. PA 17101 Charles G. Flacklick. Jr.. I sq. Alan M. Robinson. Esq. 20 South 36111 Street Camp Hill. PA 17011 Attorneys for Defendants Richard Diamond, Pour Mile Run Diamond Lodge, Inc., zinc] Thomas Dixon Diamond Beverly Watkins. t/d/a/a Another's Treasures 44 Gast 1"01.117111 Street Emporium. PA 1533=4 BY TI II COURT. J./Wesley Olcr.'.Ir.,,l. , 1-13-00 RYP Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Walter Thcodorc 'T'roth Box 295A Emporium, PA 15834 :rc BRIAN T. DUFFIE and RACHEL DUFFIE, Plaintiffs vi. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA No. 99.6633 Civil RICHARD DIAMOND, CIVIL ACTION - LAW WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, : JURY TRIAL DEMANDED Defendants vi. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants ORDER AND NOW, this clay of , 2000, it is ORDERED that the Petition For Change of Venue filed by Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond is GRANTED and that the above-captioned action is transferred to the Court of Common Pleas of Cameron County. BY THE COURT BRIAN T. DUFFIE and RACHEL DUEFIE, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : No. 99-6833 Civil Vii. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED Vii. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants ORDER AND NOW this _ day of January 2000, it is hereby ORDERED: 1. A Rule is issued upon each of the parties to show cause why the above-captioned case should not be transferred to the Court of Common Pleas of Cameron County; 2. The Rule is returnable and argument will be held 3. Petitioners shall serve this Order and the attached Petition on al I counsel of record and unrepresented parties. BY THE COURT BRIAN T. DUFFIE and RACHEL DUFFIE, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA No. 99-6833 Civil V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants : CIVILACTION-LAW JURY TRIAL DEMANDED V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additict:.d Defendants PETITION FOR CHANGE OF VENUE PURSUANT TO Pa.R.C.P. 1006(d)(1) AND NOW come the Defendants Richard Diamond, Four Mile Run Diamond Lodge Inc., and Thomas Dixon Diamond, by and through their attorneys, Marshall & Haddick, P.C. and file this Petition pursuant to Pa.R.C.P. 1006(c) raising the cloetrine of forum non conveniens. In support thereof, Defendants aver the following: 1. This is an action for damages arising out of a fireworks accident that occurred on July 25, 1998. 2. The accident occurred at a hunting camp in Cameron County Pennsylvania. i_ 0 The hunting camp is owned by Defendant Four Mile Run Diamond Defendant Richard Diamond is a resident of the state of Maryland. Defendant Thomas Dixon Diamond resides in Philadelphia, 6. Defendant James Brian Smith is a resident of the state of Maryland. 7. Defendant Waller Theodore Troth resides in Emporium, Cameron County, Pennsylvania. 8. Additional Defendant Beverly Watkins, VdIb/a Another's Treasures is a resident of Emporium, Cameron County, Pennsylvania. 9. Additional Defendant Greg Signor is a resident of Emporium, Cameron County, Pennsylvania. 10. Defendant Four Mile Run Diamond Lodge, Inc. conducts no business in Cumberland County. H. Defendant Four Mile Run Diamond Lodge, Inc. owns no property in Cumberland County. 12. The sole purpose for the existence of Four Mile Run Diamond Lodge, Inc. is the maintenance of the hunting camp located in Cameron County Pennsylvania. 13. No acts which form the basis of Plaintiff's lawsuit occurred in Cumberland County. e„, sylvania. 14, The sole basis for venue i n Cumberland County is fact that Four We Run Diamond Lodge, Inc. is a corporate on with a mailing address in Cumberland County. 15. Cameron County will provide easier access to witnesses and other proof relevant to Plaintiff's cause of acti on. 16. The accident was investigated by the Pennsylvania State Pol ice, Emporium Barracks, in Cameron County. 17. This matter was investigated by the Cameron County Coroner. 18. The emergency response personnel that responded to the accident are Cameron County residents. 19. All emergency medical treatment was provided in Cameron or neighboring counties. 20. Plaintiffs allege that the defendant Richard Diamond was negligent in igniting a noisemaking device in close proximity to themselves and other persons present at the hunting camp. 21. Plaintiff alleges that Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond were negligent in fail i ng to prevent Richard Diamond from igniting the noisemaking device in close proximity to themselves and other persons present at the hunting camp. 22. Plaintiff alleges that Richard Diamond, Pour Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond are liable for punitive clarnages clue the close proximity between the point of ignition and themselves and other persons present at the hunting camp. 23. A fair determination of each of the Defendants' responsibility for this action, including a determination of whether the conduct complainecl of rises to the level that warrants punitive damages, will require the facifincler to be thoroughly familiar with the physical features of the property, such as the locations of hills, trees and other physical features of the land, as well as the location of the viewing area and the point of ignition of the noisemaking device. 24. A view of the premises will be required for a just adjudication of Plaintiff's cause of action. 25. II would be highly inconvenient for a Cumberland County jury to view the premises. 26. The present forum, Cumberland County, is oppressive and vexatious to petitioning Defendants. 27. Cameron County is a more convenient forum for the parties and witnesses to this action. 28. Pa.R.C.P. 1000(d)(1) authorizes this Court, for the convenience of the parties and witnesses, to transfer this case to any other county where the action could original ly have been brought. 29. Counsel of record for Plaintiffs and Co-Defenclam James Brian Smith do not concur in this petition. WHEREFORE, Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond request that their Petition be granted and that this suit be transferred to the Court of Common Pleas of Cameron County Pennsylvania. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: 1 1 -O O G- Charles E. Had click, Jr. Attorney I.D. No: 55666 Alan ill. Robinson Attorney I.D. No. 82670 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 111torneys for Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond CERTIFICATE OF SERVICE AND NOW, this 7th clay of January, 2000, I, Charles E. Haddick, Esquire, hereby certify that I did serve a true anti correct copy of the foregoing document upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mall, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: John Andrew Statler, Esquire Goldberg, Katzman K Shipman, P.C. 320 E. Market Street Harrisburg, PA 17108-0840 James G. Nealon, II, Esquire Nealon and Gover 301 Market Street Harrisburg, PA 17101 Beverly Watkins, t/d/b/a Another's Treasures 44 East 4"' Street Emporium, PA 15834 Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Waller Theodore Troth Box 295A Emporium, PA 15834 Charles E. Hat lick, Jr., Esquire SHERIFF'S RETURN - OUT OF COUNTY ' CASE NO: 1999-06833 P COMMONWEALTH OF' PENNSYLVANIA: COUNTY OF CUMBERLAND DUFFIE BRIAN T ET AL VS DIAMOND RICHARD ET AL R. Thomas Kline _ Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'L DEFENDANT , to wit: WATKINS BEVERLY T/D/B/A ANOTHERS TREASURES but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of CAMERON County, Pennsylvania, to serve the within COMPLAINT & NOTICE On Januarv 28th , 2000 , this office was in receipt of the attached return from CAMERON Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 8.00 DEP. CAMERON CO 28.55 .00 63.55 01/28/2000 MARSHALL & HADDICK Sworn and subscribed to before me this y 7? day of L u? So ans. js: i' R. Thomas Kline Sheriff of Cumberland '2 v2-y A. D. I prothonotary County SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-06833 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DUFFIE BRIAN T ET AL VS DIAMOND RICHARD ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'L DEFENDANT , to wit: SIGNOR GREGORY but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of CAMERON County, Pennsylvania, to serve the within COMPLAINT & NOTICE On Januarv 28th , 2000 , this office was in receipt of the attached return from CAMERON Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 8.00 DEP. CAMERON CO 28.55 .00 42.55 01/28/2000 MARSHALL & HADDICK So answers: R-: Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this y - day of A.D. A, Prot onh otary a In The Court of C?ornrnon Pleas of CUI-11ber-.ancf County, Penrls;Y[vania No.99-6833 Civil 19 , I, SHERIFF OF CUMBEPZA-ND COUNTY, PA, do hereby deputize the Sheriff of ramer 0 County to execute this Writ, this deputation being made az the request and risk of the Plaintiff. ??,?,,N,•,t-„dad' 2 Sheriff or Cumberland Counry, PA Af= davit of Service Brian T. Duffiet,s -t. a l. Richard Diamond, e t. al. verve: Gregory Signor Now, 12/30/99 Now within upon at by handing to a and made known to So answers, the contents thereof. Sheriff of Sworn and subscribed before me this _ day of 19 19_, at o'clock M. served the cony of the original COSTS SER\%I CE S MILEAGE AFFIIBAVIT County, FA ! In The Court of Common Pleas of Cumberland County, Pennsylvania ' Brian T. Duffie, et. al. VS. Richard Diamond, et. al. Serve: Beverly Watkins, t/d/b/a No 99_6833 Civil Another's Treasures Now, 12 /30/99 19_, 1, SHERIFF OF (MiM 3ERLAND COUNTY, PA, do hereby deputize the Sheriff of came ron County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of CuntherlanciCounty, PA Affidavit of Service Now. within upon at by handing to _ a and made known to coon- of the on uinal the contents thereof. So answers, Sli_•riffof Sworn and subscribed before me this _ day of 19 COSTS SERVI CE _ MILEAGE _ AFFIDAVIT County, PA S s 19 , at o'clock M. served the it t AFFIDAVIT OF SERVICE Brian T. DdFfie VS Serve: Beverly Watkins, t/d/b/ Another 's Treasures No. ----99--68-33 ------------ Term 19 99_-- _Writ_to Joined Addl' Defendant Returnable within ___-_____ __________ from date of service hereof. days slow ---- ------------ 2C QQ_ at ------ ! 1? 3 _ Served the within 1Jxit__tD_-J-0inad_Addl_1 -__ 4 O'clock A_M_______ On Bevxrjx_W.atkius._SJ_d b a _AuntAer__s_Treasutes_____----- - L____------- Al bei_place__oP__bi siness„_llnotheL_s__Lreas-es,_g_y__B4st__e9u[th_S_t_rge t--- DY I?Qx_sD.na1J_X-hanrlioE--t9 A true and attested copy of the original Wcit__to_,Loine?-p?l?l!__QQ-?endanhad made known to lfex ----------------------- the contents thereof. Sworn to before me this _____? ?t +------------- Day of A. D.uJO So answers ------------ Prothonotary. -? - ---- _ ?-`P4- I _Sherif i i AFFIDAVIT OF SERVICE No. _12-j.8.3-1 ------------- Term ----- l'Lri_t_lo_Jnined_Additiona1_Defendant VS Returnable within ______________________ days Ri clLa rd U i nm? .......... froln date of service hereof. Serve: Gregory Signor 10W Is7ILLLUJ_X.z./LLh_.._ QVSL____ _.___, at ____AL9A______________ O'clock _PM______ Served the within _____Wr 1L------------------- On _rrvgor_y _SJgo Lz-_-------------------- -------------------------------------------------------------------------------------------- At his__p11LCe__nf_-CL` Ldl'Jll'1L.__1?f.-t:L:L_.?L1LgaiLy_sleenue?__Empor_tum?_P?1___151; 34 cy .p.cr.souJLLl y__biuid 1_Ilg..LU__:1 U11_11::IY_LUg__411J1_1L --------------------------------- A true and attested copy of the original W.ti.L_ui_Jn.iurd_AddiLinnal__De_C-and made known to ___giuL -------------------- the contents thereof. Sworn to before me this __-.25.LL------------- So answers Day of --1-°n- rY------------ A. D. _0QO i l l l JA ;--------------- ?/ - '-- ? -------------- (I1. is ? Prothonotary. r 1 pa/ y Sheriff. I'RU'f I lU N0'I'A I2Y A(q("Minusinn LWim litNmd.jy,>an ZUJ J t I a Lr, 0 c ? g z . O ripp U_ . p . U J4 U Q O Ft -?? W '• u C o F ? j Y Q C U N 't i. x !?? 7 ?U• b +t ?t PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) BRIAN T. DUFFIE and RACHEL DUFFIE, Plaintiffs (Plaintiff) Vs. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND, JAMES BRIAN SMITH, Defendants BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREOGORY SIGNOR, Additional Defendants (Defendant) No, 99-6833 Civil 19 99 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Petition for Change of Venue Pursuant to Pa.R.C.P. 1006(d)(1) 2. Identify counsel who will argue case: (a) for plaintiff: Address: See Certificate of Service attached. (b) for defendant: Address: See Certificate of Service attached. 3. I will notify all parties in writing within tuo days that this case has been listed for argument. 4. Argument Court Date: March 1, 2000 i Attorney for Defendants Richard Diamond, Da ted: CERTIFICATE OF SERVICE AND NOW, this 7th day of January, 2000, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing clocument upon all counsel of record by depositing, or causing to be deposited, same in the U.S. rnai I, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: John Andrew Statler, Esquire Goldberg, Katzman 8 Shipman, P.C. 320 E. Market Street Harrisburg, PA 1 7108-0840 James G. Nealon, II, Esquire Nealon and Gover 301 Market Street Harrisburg, PA 1 7101 Beverly Watkins, t/d/b/a Another's Treasures 44 East 4"' Street Emporium, PA 1 5834 Gregory Signor 336 East Allegheny Avenue Emporium, PA 1 5834 Walter Theodore Troth Box 295A Emporium, PA 1 5834 Charles E. Haddick, Jr., squire SHERIFF'S RETURN - REGULAR CASE NO: 1999-06833 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DUFFIE BRIAN T ET AL VS. DIAMOND RICHARD ET AL SHANNON SUNDAY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, savs, the within NOTICE & COMPLAINT was served upon FOUR MILE RUN DIAMOND LODGE T_NC the defendant, at 15:33 HOURS, on the 15th day of November 1999 at 529 SPRINGHOUSE ROAD CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to PATRICIA DIAMOND (PART-OWMER) a true and attested copy of the NOTICE & COMPLAINT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 6.00 Service 6.20 Affidavit .00 Surcharge 8.00 n-T Fioonas =?S111e,; ri f $7627-iOLDBER9, K TZMAN & SHIP14AN by (/ +l epu y SherlP=f`7 Sworn and subscribed to before me this /3 fs day of 30 A.D. 1-lri-otEioioT-?ary Q r SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-06833 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DUFFIE BRIAN T ET AL VS. DIAMOND RICHARD ET AL R. Thomas Kline Sheriff, who being duly sworn according to lave, says, that he made a diligent search and inquiry for the within named defendant, to wit: DIAMOND THOMAS DIXON but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA County, Pennsylvania. to serve the within NOTICE & COMPLAINT On December 14th, 1999 , this office was in receipt of the attached return from PHILADELPHIA Countv, Pennsylvania. Sheriff's Costs: So answe s: , i Docketing 18.00 Out of County 9.00 Surcharge 8 00 T7-Tnomas _ iI-' ie; n Teri ?--- DEP. PH1LA CO 116. .00 $1T5T-.UU GOLDBERG, KATZMAN & Si-IIPMAN 12/14/1999 Sworn and subscribed_ to before me this day of 1e3 ?c-vO A.D. ? ro nono'axy I I" :,;n SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-06833 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DUFFIE BRIAN T ET AL VS. DIAMOND RICHARD ET AL R. Thomas Kline Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: TROTH WALTER THEODORE but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of CAMERON County, Pennsylvania. to serve the within NOTICE & COMPLAINT On December 14th, 1999 , this office was in receipt of the attached return from CAMERON County, Pennsylvania. Sheriff's Costs: 00 6 So answer" / Docketing . . l? ? " Out of County 9.00 Surcharge 8.00 (, comas i ne, Sheri DEPT. CAMERON CO 25.16 $48-T6 0 D BERG, KATZMAN & SHIPMAN 1 / 1 4/1999 Sworn and subscribed, to before me this day of L -c. 10 ;) a A.D. Pro ono aiy In The Court of Common Pleas of Cumberland County, Pennsylvania Brian T. Duffie, et. al. VS. Richard Diamond, et. al. Serve: Thomas Dixon Diamond No. 99_6833 Civil Now, 11/12/99 , 19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Philadelphia County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now. within 19 , at o'clock Nl. served the upon at by handing to a and made known to Sworn and subscribed before me this _ day of . 19 copy of the original So answers, the contents thereof. Sheriff of County, PA COSTS SERVICE S MILEAGE AFFIDAVIT S ?' ,? ? ?? SHERIFF'S RETURN - SUMMONS/COMPLAINT VERSUS .4 COMMON PLEAS NO. COUNTY COURT NO. TERM, 19 1 i ( I ,i ?,?i Defendant SERVED AND MADE KNOWN TO Defendant Company by handing a true and attested copy of the within Summons/Complaint, issued in the above captioned matter on 19 )r % at--Z--- clock, M., E.S.T./D.S.T. at in the County of Philadelphia, State of Pennsylvania, to ? (1) the aforesaid defendant, personally; ? (2) an adult member of the family of said defendant, with whom said defendant resides, who stated that his/her relationship to said defendant is that of ? (3) an adult person in charge of defendant's residence; the said adult person having refused, upon re- quest, to give his/her name and relationship to said defendant; ? (9) the manager/clerk of the place of lodging in which said defendant resides; ? (5) agent or person for the time being in charge of defendant's office or usual place of business. ? (6) the and officer of said defendant Company; So Answers, JOHN D. GREEN, Sheriff 12-38 (Rev. 12,97) 13y. = 1. ? Deputy Sherill In The Court of Common Pleas of Cumberland County, Pennsylvania Brian T. Duffie, et. al. VS. Richard Diamond, et, al.. Serve: Walter Theodore Troth No 99_6833 Civil. Now, 7 t/ 1 /99 , 19_, 1. SFIL'IZIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Cameron Count}- to execute this Writ, this deputation being made at the request and risk of the Plaintiff. '. Sheriff of Cumberland County. PA Affidavit of Service Now within upon at by handing to a and made known to copy of the original the contents thereof. So answers. Sheriff of Sworn and subscribed before me this-day of . 19 19 , at o'clock M. served the COSTS SERVICE MILEAGE AFFIDAVIT County, PA S S AFFIDAVIT OF SERVICE No. ___92:A83-3 -------------- Term 1912 ... -Brian -T.__Du f f ie___ Rac he l J. Du([i _e ------ Norlce_s7RSJ__Cc9P1R1s1iPC___________ VS Returnable within ______________________ days Richard Diamond,gt Serve : Wafter Troth from dale of service hereof. ' '-ow LLecrJU6r_c_ILth----------- 19 9J___, at ---J-Q; DA-------- Served the within Notice_and_Comolaint__ On _W alte_r_Troth ---- ---- ----- --- -------- ---------------------------------------------------------------------`-= :.. At his_ptace__of_as_ald_eo?e,__6Rl/.4 _ Rox_395Q?__EntRer?uo?_PA___L5334__ By _eersona I t_!vvvst.ios _t9 _and_?ea_v_inP _W!_tb_ltin?------------------------ A true and attested copy of the original _NAti ce_ an d_ Ggm_p) a_iat___________ and made known lc hint ---------------------- the contents thereof. Sworn to before me this ------ ----------- a So answers, --- -- ------------ ------------ P ----------------------------------- Q? p?y Prothonotary. Sheriff. j i STRAWSSNRY SOVARE r.b:,nox lzos - iHURO: PENNSYLVANIA 17108-J266 John A. Sinner, Esquire. Altomey I. D. No. 43812 GOLDBERG, KATZMAN & S111PMAN, P.C. 320 Market Street P.O. 13os 1268 I larrisburg, PA 17108.1268 Telephone: (717) 2341161 Attorney for Plaintiffs BRIAN T. DUFFIE and RACHEL J. DUFFLE, Plaintiff's V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants IN THE COURT OF CUM MUN FLI-AZ) CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 99-6833 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, come the Plaintiffs, Brian T. Duffle and Rachel J. Duffle, by their attorneys, Goldberg, Katzman and Shipman, P.C., who file the following Response to the Preliminary Objections filed by Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond to Plaintiffs' Complaint: Admitted in part, denied in part. It is admitted that Plaintiff Brian Duffic was seriously injured on July 25, 1998 as a result of the detonation and explosion of a cannon at a social gathering at the pour Mile Run Diantond Lodge in Cameron County, Pennsylvania. It is specifically denied that this incident was a non-preventable "accident" as implied by the objecting Defendants. 2. Admitted in part, denied in part. Plaintiffs admit that they have filed a Complaint against various Defendants including Richard Diamond alleging that Diamond, inter alia, was negligent. By way of further answer, the Plaintiffs' Complaint alleges that Defendant Richard Diamond's actions, omissions and conduct constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. Duffie. By way of further answer, Plaintiffs incorporate by reference the averments contained in paragraphs I through 184 of their Complaint as if set forth at length. 3. Admitted in pan, denied in pan. Plaintiffs admit that they have filed a Complaint against various Defendants including Pour Mile Run Diamond Lodge, Inc. alleging that Four Mile Run Diamond Lodge, Inc., inter alia, was negligent. By way of further answer, the Plaintiffs' Complaint alleges that Defendant Four Mile Run Diamond Lodge, Inc.'s actions, omissions and conduct constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. Duffie. By way of further answer, Plaintiffs incorporate by reference the averments contained in paragraphs I through 184 of their Complaint as if set forth at length. 2 Admitted in part, denied in part. Plaintiffs admit that they have filed a Complaint against various Defendants including Thomas Dixon Diamond alleging that Thomas Dixon Diamond, inter alia, was negligent. By way of further answer, the Plaintiffs' Complaint alleges that Defendant Thomas Dixon Diamond's actions, omissions and conduct constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. Dufiie. By way of further answer, Plaintiffs incorporate by reference the averments contained in paragraphs I through 184 of their Complaint as if set forth at length. 5. Admitted. 6. Admitted. THOMAS DIXON DIAMOND'S DEMURRER' TO COUNTS VII AND VIII Denied. It is unnecessary for the Plaintiffs to prove the elements of the "participation theory" in their initial pleadings. Plaintiffs have sufficiently alleged a cause of action against Defendant Thomas Dixon Diamond in negligence and have further alleged his knowledge and recklessness sufficient to state a demand for punitive damages. 8. Denied. It is unnecessary for the Plaintiffs to plead or prove either the "sham corporation" or "participation" theory to establish that Defendant Thomas Dixon Diamond breached a duty of care owed to the Plaintiffs on July 25, 1998. 9. Denied. Defendant Thomas Dixon Diamond owed the Plaintiffs a duty of care as a possessor of the property on July 25, 1998 under the Restatement of -forts, §318, and the holding of Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). By way of further answer, Thomas Dixon Diamond's duty of care may have arisen in his individual capacity as a possessor of the property because the corporation granted him permission to use the property or, in the alternative, in his capacity as an officer of Pour Mile Run Diamond Lodge, Inc. or, possibly due to both rolls. 10. Denied. It is specifically denied that the only duty Thomas Dixon Diamond owed to the Plaintiffs was solely in his capacity as a corporate officer. RatEier, by way of further answer, Defendant Thumas Dixon Diamond's duty arises out of his possession of the property and not solely out of his capacity as a corporate officer of Four Mile Run Diamond Lodge, Inc. 11. It is specifically denied that the Plaintiffs have failed to state a claim against Thomas Dixon Diamond in his individual capacity. WHEREFORE, Plaintiffs Brian T. Duffie and Rachel J. Dude respectfully request that Thomas Dixon Diamond's Demurrer to the Plaintiff's' Complaint be -dismissed. In the alternative, 4 A is inclined to grant the Defendants' Preliminary Objections, Plaintiffs request the opportunity to file an Amended Complaint. DEMURRER TO PUNITIVE DAMAGES CLAIMS 12. Admitted. 13. Denied as stated. Restatement (Second) of Torts, §908(2) states: Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indiffer-rice to the rights of others. In assessing punitive damages the trier of fact can properly consider the character of the defendant's act, the nature and extent of harm to the plaintiff that the defendant caused or intended to cause, and the wealth of the defendant. Restatement (Second) of Torts, §908(2) (1979). 14. Denied. It is specifically denied that the allegations in the Plaintiffs' Complaint are legally insufficient to establish the requisite state of mind for an award of punitive damages. By way of further answer, the Defendants failed to comprehend that Pa. R.C.P. 1019 sets forth what a plaintiff is required to plead in his Complaint and that Restatement (Second) of Torts, §908 indicates what a plaintiff is required to prove at trial. The plaintiff is required to plead only material facts in his Complaint, not his evidence. Pa. R.C.P. 1019(a). 15. Denied. The Plaintiffs are not required to plead their evidence of recklessness in order to plead sufficiently a demand for punitive damages. Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 622 A2d 355, 357 (1993). Punitive damages do not constitute a separate cause of action for which a demurrer is appropriate. See Kirkbride v. Libson's Contractors. Inc., 555 A.2d 800, 802 (Pa. 1989). 16. Denied. It is specifically denied that the Plaintiffs' Complaint does not contain any allegations that can support a finding that Richard Diamond, Pour Mile Run Diamond Lodge, Inc. or Thomas Dixon Diamond acted intentionally, maliciously, or in conscious disregard or a known and realized risk to others. By way of further answer, Plaintiffs incorporate by reference the averments contained in paragraphs I through 184 oftheir Complaint which sufficiently allege conscious and reckless disregard for the safety of others on the part of all named Defendants. 17. Denied. It is specifically denied that the Plaintiffs have failed to state a claim for punitive damages against Richard Diamond, (:our Mile Run Diamond Lodge, Inc. or Thomas Dixon Diamond. WHEREFORE, Plaintiffs Brian T. Duffie and Rachel J. Dufiie respectfully request that the demurrer to the Plaintiffs' claims for punitive damages be dismissed. In the alternative, if the 6 Court is inclined to grant the Defendants' Preliminary Objections, Plaintiffs request the opportunity to file an Amended Complaint. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: John A , Esquire I:Sa2lerr Attorney I. D. No. 43812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Plaintiffs Brian T. Duffle and Rachel J. Duffle DATE: I l/ y l e 36857.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that 1 served a true and correct copy ofthe foregoing document upon ail parties or counsel of record by depositing a copy of same in the United States Mail at u?" JnnwY Harrisburg, Pennsylvania, with first-class postage prepaid on the Iday of 2000, addressed to the following: Charles E. Iladdick, Jr., Esquire James G. Nealon, III, Esquire Marshall, Smith & Haddick, P.C. Nealon and Gover 20 South 36's Street 301 Market Street Camp Hill, PA 17011 Harrisburg, PA 17101 Ms. Beverly Watkins Mr. Gregory Signor t/d/b/a Another's Treasures 336 East Allegheny Avenue 44 Last Fourth Street Emporium,PA 15834 Emporium, PA 15834 Mr. Walter Theodore Troth Box 295-A Emporium, PA 15834 GOLDBERG, KATZMAN & SII1PNIAN, P.C. ? By. John A. Statier, Esquire Attorney 1. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108.1268 Telephone: (717) 234-4161 Attorney for Plaintiffs } t(t ?•__ ? C F i .. G?: u . ".- 'J ?- 1 ?? .' tJ C` J ?? BRIAN T. DUFFIE and RACHEL J. DUFFIE Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants IN THE COURT OP COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 99-6833 Civil CIVIL ACTION -LAW JURY TRIAL DEMANDED V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants DEFENDANTS, RICHARD DIAMOND, FOUR MILE RUN DIAMOND LODGE, INC. AND THOMAS DIXON DIAMOND'S REPLY TO PLAINTIFFS' NEW MATTER IN RESPONSE TO PETITION FOR CHANGE OF VENUE 30. It is admitted that Brian T. Duffie and Rachel J. DUffie are residents of Cumberland County. 31. Denied as stated. It is admitted That Defendant Richard Diamond is a resident of the State of Nlaryland. It is denied Ihat Cameron County is a more convenient forum for Defendant Richard Diamond. 32. Denied as stated. It is admitted that Defendant James Brian Smith is a resident of the Slate of Maryland. After reasonable investigation, Answering Defendants are Without information or knowledge to forma belief regarding the remaining averments of this paragraph. 33. Denied as stated. It is admitted that Defendant Four Mile Run amond Lodge, Inc. is a Pennsylvania corporation with a business address in mberland County, Pennsylvania. It is admitted that Cumberland County is a technically proper venue under the Pennsylvania Rules of Civil Procedure. It is denied that Cumberland County is a convenient forum for this case. 34. After reasonable investigation, Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the avermetts contained in this paragraph. 35. After reasonable investigation, Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph. 36. Denied. WHEREFORE, Defendants, Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond, respectfully request that this Court grant their Petition for Change of Venue. Date: / 2l Respectfully submitted, MARSHALL & HADDICK, P.C. a Charles E. HSddi64 Jr. Allomey I.D. No: 55666 20 South 361h Street Camp Hill, PA 17011 (717)731-4800 Attomeys for Defendants Richard Diamond, Four Alife Run Diatnond Lode, /tic., and Thomas Dixon Diamond CERTIFICATE OF SERVICE AND NOW, this 24th clay of January, 2000, I, Charles E. Fladdick, Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record by cleposiling, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: John Andrew Slatler, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Market Street Harrisburg, PA 17108.0840 James G. Nealon, II, Esquire Nealon and Gover 301 Market Street Harrisburg, PA 17101 Beverly Watkins, r/d/b/a Another's Treasures 44 East 4"' Street Emporium, PA 15834 Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Walter Theodore Troth Box 295A Emporium, PA 15834 (S E r 7 -?? % Charles E. Ha ldic Jr., Esquire John A. Slatler, Esquire. Anomey I. D. No. .13812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Slrcel P.O. Dos 1249 I larrisbur@, PA 17109-1249 1'elephonc (717) 234-1141 Attorney for PlaintilTs BRIAN T. DUFFIE and RACFIEL J. DUFFIE, Plaintitls V. RICHARD DIAMOND, WALI'ER'f 1iEODORE 'I'ILO'1`11, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. q q, 6. 1 JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiffs, Brian T. Duffle and Rachel J. Duffle, by and through their attorneys, Goldberg, Katzman R. Shipman, P.C., who file this Complaint against the Defendants, averring as follows: PARTIES Plaintills, Brian T. Dutlic and Rachel J. Dutlle, are adult individuals %V110 at all times material hereto were lawtidly married and residing at 311 Rosemont Avenue, New Cumberland, Cumberland County, Pennsylvania 17070. 2. Defendant, Richard Diamond, is an adult individual who currently resides at I I Fifcshire Court, Gaithersburg, Maryland 20879. I. Defendant, Walter Troth, is an adult individual who currently resides at Box 295A, Emporium, Cameron County, Pennsylvania 15834. 4. Defendant, Pour Mile Run Diamond Lodge, Inc., is a Pennsylvania corporation with a business address of 529 Springhouse Road, Camp Mill, Cumberland County, Pennsylvania, 17011, and is the owner of'the property comprising the Pour Mile Run Diamond Lodge and hunting camp located in Shippen Township, Cameron County, Pennsylvania, which property was the location of the events that give rise to the plaintiffs' causes of action. 5. Defendant, "Thomas Dixon Diamond, is an adult individual currently residing at 1607 Pine Street, Philadelphia, Philadelphia County, Pennsylvania, 1910.; and is an officer, director and/or owner of the Pour Mile Rune Diamond Lodge, Inc. 6. Defendant, James Brian Smith, is an adult individual currently residing at 6571 Cornell (toad, Bryans Road, Maryland 20616. FACTS 7. Brian 1'. Duflie, suffered serious personal injuries on July 25, 1995, at the Pour Mile Itun Diamond Lodge, a hunting camp owned by four Mile Run Diamond Lodge, Inc., 2 located in Shipper Township, Cameron County, Pennsylvania (hcreinaticr referred to as "Diamond Lodge-). S. Diamond Lodge is owned by Defendant Pour Mile Run Diamond Lodge, Inc , and/or Thomas Dixon Diamond, and is controlled and opermed by Defendant Thomas Dixon Diamond and others. 9. Defendant \Valter Troth lives near or adjacent to the Diamond Lodge Bunting camp/cabin. 10. On or about July 25, 1995, a group of about 2S people, including Brian T. Dutlie and Rachel J. Dullic and Richard Diamond, -athered at Diamond Lodge. 1 I. On July 2), 1995, Brian T. DUMIC nntl Rachel J Millie were lawfully present at Diamond Lodge having been invited to spend the weekend as guests on the property. 12. The Defendants knew that Brian T. Dunie and Rachel J. Dottie were present at Diamond Lodge on Ju1V 25, 1995. 13. At some point in the day or evening of July 25, 1998, Defendant Waller,f'roth approached Richard Diamond and showed Defendant Diamond a cannon. v J 14. Defendant Walter Troth indicated that the cannon could be packet) with "black" gunpowder and ignited as part of a fireworks display at Diamond Lodge. 15. Defendant Walter Troth had previously set Off tho cannon using black powder and/or blasting powder Utilized normally in mining or demolition. 16. On or about July 25, 199S, Defendant Walter Troth sent it 1 iend, Greg Signor, to Emporium to purchase black powder for the cannon. 17. On or about July 25, 1995, Greg Signor was unable to purchase black powder and bought smokeless gunpowder, designed for use in modern ammunition reloading, and transported the smokeless gunpowder to Walter Troth's residence. IS. On or about July 25, 1995, Defendant Walter froth opened the can of smokeless gunpowder and looked at it. 19. On or about July 25, 1995, Defendant Walter Troth inlimned Greg Signor that the ,unpowder did not look the same as the black powder he had used in the past. 20. On or about July 25, 1995, Defendant Walter "froth inserted in excess of one-half pound of sawkcless gunpowder into the cannon. 'I 4 21. On or about July 25, 1995, Del'cnd,mt Walter Troth packed newspaper and then dirt on top of the sntokdess gunpowder in the cannon and tamped the dirt with a wooden dowel or stick. 22. On or about July 25, 1995, Defendants Richard Diamond and James Smith arrived at the home of Walter froth to pick up the cannon. 23. On or abrnn JUIv 25, 1995, Greg Sinnor inlet n ed Defendants Richard Diamond and James Smith that Defendant Walter Troth had put "a lot" ofgunpowder in the cannon. 24. On or about Julv 25, I998, Defendants Richard Diamond and James Smith transported the cannon to the property ol'Diantond Lod4e_ and Defendant Richard Diamond ignited the sntokcless gunpowder with a firework's fuse or wick. 25. On or about July 25, I998, the cannon supplied by Defendant Walter Troth exploded, causing debris and shrapnel to be propelled in various directions. 26. A piece or pieces ofdebris or shrapnel from the explosion struck Brian 'f. Dttflie in the left call'causing severe igjuries and dantagc ; 27. At the time of the explosion, the premises of Diamond Lodge were under the direct control and supervision of Defendants Richard Diamond, '"10mas Dixon Diamond and/or hour Nlile Roo Diantoncl Lodge, Inc. CO I I NT I BRIAN 'r. DUPrIE %,. WALTER TROTH 25. The averments of Paragraphs I through 27 are incorporated herein by reference as ifset forth at length. 29. At all relevant times on Ju1%, 199S, Dclcndant Walter froth had a duty not to injure Brian T. Dube. 30. Dclcndant Walter Troth breached this duty ol.care and was negligent as fitllows: (a) Defendant Troth constructed and/or supplied it dangerous and deadly device, it cannon, which used gunpowder with explosive force; (b) Defendant Troth provided file cannon to Richard Diamond and assisted in loading the cannon with smokeless gunpowder instead of the black powder he utilized earlier, without reading or hollowing the warnings that came with the smokeless gunpowder, (c) Dclcndant Troth participated in site detonation of the smokeless gunpowder on July 25, 1995, by loading and tamping or by supervising the loading and tamping ol'the smokeless gunpowder into the cannon, atul (d) Defcndant'I'roth constructed or made available to Richard Diamond it cannon Made of insufficient materials to contain the 161ce and pressure of the resulting explosion G 3 I . Defendant 'froth was aware that explosive fireworks of this tvpc arc extremely dangerous. 33. Defendant Trot It was aware that one-half of a pound of gunpov Aer could apply deadly force and could endanger anyone near the explosion. 33. Brian T. Millie was injured as a direct and proximate result of the reckless and negligent acts and/or omissions of Defendant Walter Troth 34. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth, Plaintiff Brian T. Dutlie sutlcred serious and painful injurics to his left calfwhich required medical treatment and hospitalization. 3i. As a direct and proximate result of the negligent and reckless acts and/or omissions ol'Detcnclant \\'alter Troth. Plaintill-Brian T Dullic incurred nteclical, hospital and prescription expenses tin' treatment ncce>san' tix injurics and may in the IUtlrr'e incur expenses for additional necessary t'eatnent. 3G. As it direct and proximate result ofthe negligent and reckless acts and/or omissions of Defendant Walter Troth, Plainti11'13rian T. Dullic lost time from his regular 7 entployntcnt and may in the future lose additional time, wages and/or sutler a diminution of his future earning capacity. 37. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth, Plaintiff Brian T. Dullic was caused to endure severe pain and suffering, emotional distress and loss of life's pleasures and may in the future suffer additional pain and suffering, emotional distress and loss of life's pleasures. 38. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth, maintifl'13rian T. DUlllc has sustained permanent physical scarring and disligurement and has endured embarrassment and humiliation, all to his great detriment and loss. 39. Defendant Walter Troth's actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests ofothers, including Brian T. Dufhe. WIIEREFORE. Plaintiff Brian T. Dnflic demandsjudgntcnt against Defendant Walter Troth for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs ol'suil. 8 COUNT I I RACIIR.L.1. DUFFIE v. WALTER TROTH 40. I'he averments Paragraphs I Through 39 are incorporated herein by reference as if set forth at length. 41. At all times material hereto, Rachel J. Duflie was in close physical proximity to Brian T. Duflie and, unbeknownst to Plaintills, was in the zone ofdanger of the flying debris and shrapnel. 42. Rachel J. Duflie witnessed the explosion and the resultant injuries to her husband, Brian T. mini e. 43. As it direct and proximate result oft he negligent and reckless acts and/or omissions of Defendant Walter Troth, 1)lain tiflr Rachel J. DuIli C sullered severe emotional distress, mental upsel, frig-ht, worry and inconvenience. 44. As it direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth and the resultant injuries to Brian T. Duflie, Plaintiff Rachel 1. Duflie has been deprived oft Ile consortium, comfort, aid, affection and services of her husband and may be so deprived in the lithe. 9 :Y W111FREFORF:, Plainliff Rachel J. Duflie dentandsjudgmcnt against Defendant Walter 'froth for compensatoryand punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs ofsuit. COUNT III BRIAN T. DUFFIE v. RICIIARD DIANIOND 45. The averments of paragraphs I through 44 are incorporated herein by reference as if set forth at length. 46. At all relevant times on July 25, 1995, Del'enclant Richard Diamond had a duty not to injure Brian T. Dome. 47. Dcfcndant Richard Diamond knc%v on July 25, 1995, that the cannon provided by Walter Troth was designed to be fired with black powder or blasting powder. 45. Defendant Richard Diamond knew on July 25, 1995, that the cannon provided by Walter Troth was loaded with smokeless -gunpowder rather than black powder or blasting powder. 10 Defendant Richard Diamond %%as told bl, a witness_ Greg Signor, that till` calln0n had been loaded with °a lot" of smokeless gunpowder when Diamond received the fireworks cannon. 50. Defendant Richard Diamond knew that gunpowder, whether black powder or smokeless powder, was an abnormally dangerous product and knew that any gunpowder could cletonate or explode, causing injuries to others. 5 I. "file smokeless gunpowder product which was packet) or loaded into the cannon was sold in an original container which had integral warnings and the packaging contained language indicating the proper use of the gunpowder product. 52. Defendant Richard Diamond had sufficient time and opportunity to read and understand and follow the warnings. 53. Defendant Richard Diamond had a dual to read the warninu information oil the ,unpowder container and packaging inlornlation bell/re using or iWlitinc the gunpowder. 54. Defendant Richard Diamond did not read the warning information contained on the gunpowder container or within the packaging materials 55, The warnings on the gutyto%vcler product used in the cannon on July 25, 1998, indicated that the gunpowder was to be usecl for the purpose of reloading ammunition only. 56. The warnings on the gunpowder product used in the cannon on July 25, 1995, indicated that smokeless gunpowder never should be substituted for black powder. 57. Defendant Richard Diamond had no specialized knowledge about black powder, smokeless gunpowder, or annnunition reloading and was aware of his lack ol'knowlcdge. 58. Defendant Richard Diamond had sufficient tittle and opportunity to see and inspect the cannon prior to its use and knew that he had no specialized knowledge of the safety of the cannon or gunpowder. 59. Defendant Richard Diamond and Defendant James Smith hand-carried the cannon to the location where it was ignited. 60. Defendant Richard Diamond placed the cannon in Prosintily to spectators who were watching the fireworks display. I'_ 61. Defendant Richard Diamond knew or should have known that numerous individuals, including Brian T. Duffic and Rachel J. Duffe, were in proximity of where he positioned the cannon for ignition. 62. Defendant Richard Diamond took no special precautions before igniting the cannon, such as familiarizing himself with the use of gunpowder, warning the spectators, warning Brian T. Duflie or Rachel J. Duffe, evacuating the spectators and/or Brian or Rachel DUflie, removing the cannon to a safe location in case of malfunction, reading the warnings on the can of gunpowder, test-firing the cannon at a safer location farther away from people, or other reasonable and feasible safety precautions. 63. Defendant Richard Diamond knew and comprehended the risk of explosion or detonation of the cannon before he ignited the cannon. 64. Defendant Richard Diamond knew and comprehended the risk that an explosion could propel shrapnel or other debris. and that debris or shrapnel could reach the spectators from the cannon's location. 65. Defendant Richard Diamond attempted to flee front the ignited cannon directly after ignition ofthe fuse. 13 66. Defendant Richard Diamond positioned and ignited the cannon within about ninety (90) feet of invited spectmors, including Brian T. Dullie and Rachel .I. DUllie, who were watching Diamond's fireworks show outside the cabin at the Diamond Lodge. 67. Defendant Richard Diamond knew the location of the spectators in relation to the cannon before he ignited the cannon. 68. Defendant Richard Diamond positioned and ignited the cannon within about 113.3 feet ofthe cabin 69. Defendant Richard Diamond knew the location of the cabin in relation to the cannon before he ignited the cannon. 70. Defendant Richard Diamond ignited the fuse and, thereby, the gunpowder contained inside the cannon. 71. Defendant Richard Diamond breached his lute ofcarc and was negligent as fitllows. (a) Defendant igttited a dan:crous and deadh Lichee utilizing approximately one-half tot hrcc•quarters of a pound of gunpowder within approximately 90 feet of- Brian T. Dullie and Rachel J. Dullie. lolm A. Slatler. Esquire. Altoniec I. D. No. •13812 GOLD BERG, KATZMAN : SI IIPNL\N, P.C- 3211 Market Street P.O. Box 1268 1 Lurishurg, PA 17108-1268 Telephone: (717) 23.1-116 1 Attorney for Plaintiffs BRIAN T. DUFFIL• and RACHEL J. DUFFIE, Plaintill's V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC.,'fIIOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants IN TI IE COURT OF COMMON PLEAS CUMBERL.AND000NTY, PENNSYLVANIA CIVIL ACTION - LAW NO. &'L L L' JURY TRIAL DEMANDED NO'T'ICE YOU HAVE BEEN SUED IN COURT. Ifyou wish to del'end against the claims set forth in the following, pages, yon most take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing it, writing with the Court your defenses or objections to the claims set forth against you. You arc warned that if you fai 1 to do so the case may proceed without yon and ajudgment may be entered against YOU by the COUrt without further notice for any nwney claimed in the Complaint or for any other claim or rel ief requested by the Plaintiff You may lose money or property or other rights important to YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFI'-ORD ONE, GO TO OR'TELF_PI-IONE THE OF171CE SE'T' FOR'TFI BELOW TO FI ND OUT WHERE YOU CAN GGI' LEGAL I IELP. CUNlilERLAND COIIN'1'1' 13A12 ASSOCIATION 3 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3106 NO'fICI,\ Le flan dentandado it usted en la torte. Si usted quiere dcfcnderse de estas dcmandas expuestas en [as paginas Siguientes, usted tiene viente (20) dins de plazo al partir de la fecha cle la demanda y la notiticacion. Usted debe presentar Una apariencia escrita o en persona o por abogado y archivar en la torte en forma escrita sus defensas o sus objectiones it his dcmandas en contra tlc Su person,. Sea aclisado que si usted no se defiende, la sin previo aviso o notiticacion y por cualcluier quja o puede perder dinero o sus propiedades o otros derechos importantes para UStctl. LI_IiVli I:S"I"A DI'MANDA A UN ABOGADO ICI;\11iD1:1'I'i\i\IENTL SI NO TIENG ABOGADO 0 SI NO 1lENl EL DINFRO SLIT:IC'11:N'1'li Dli PAGAR T:11. SI RVICIO, VAYA EN PERSONA O 1,1_POIZ TISI.IiPONO A LA OPICIiNA CUYA DIRECCION SG ENCUENTRA ESCRITA ABAJO Pr\IL1 A\'LRIGUAR DON'DI, SI P[JIiDG CO ASISTENCIA LEGAL. NSEGUIR CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty:\venue Carlisle, PA 17013 Telephone: (717) 2.19_.; IGG i _-:__??.-.-? -scda?w:ucrs.?x--?xz Iu) Defendant set up and ignited the cannon, knowing that it was loaded with smokeless gunpow dcr instead of black powder. (c) Dctcndant ignited and otherwise participated in the detonation of the smokeless gunpowder packed within the cannon on July 25, 1998, (d) Dctcndant failed to take safety precautions to contain the force and prC$SnrC Of the intended CxplOSion So as not to igjure bystanders; (c) Defendant failed to take safety precautions such as reading the warning labels on the original container supplied with the gunpowder used in the cannon; (Q Defendant failed to take safety precautions such as warning the surrounding spectators or bystanders such as Brian T. Duflic and Rachel J. Duflic that he had no specialized knoxelcdge of gunpowder, that gunpowder was about to be ignited, or to warn of possible malfunction of the cannon, (g) Defendant failed to CvacUate the spectators and bystanders such as Brian T. Duflic and Rachel J. mime before igniting the cannon; and (h) Dctcndant failed to position the cannon in it place or position as to eliminate or to minimize the risk of harm to others in the event of an explosion or other malfunction. 72. Defendant Richard Diamond was aware that explosive fireworks like the cannon were extremely dangerous. 73. Defcnclant Richard Diamond was aware that one-halfto three-cluartersofa pound ol'gunpowder could apply deadly lorce and Could endanger anyone near the explosion. 15 74. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff' Brian T. Duff c sulfcred serious and painful injuries to his left calrwhich required medical treatment and hospitalization. 75. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, PlaintifTBrian T. DUMC incurred medical, hospital and prescription expenses for treatment necessary for injuries and may in the future incur expenses for additional necessary treatment. 76. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff Brian 1'. Duflie lost time from his regular employment and may in the future lose additional time, wages and/or sufTer a diminution of his future earning capacity. 77. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff Brian T. Dame was caused to endure severe pain and suffering, emotional distress and loss of life's pleasures and may in the future sutler additional pain and suffering, emotional distress and loss of life's pleasures. 73. As a direct and proximate result of the negligent all(] reckless acts anti/or omissions of Defendant Richard Diamond, Plaintiff Brian l'. Du(lic has sustained permanent 16 physical scarring and disfigurement and has endured great detriment and loss. embarrassment and humiliation, all to his 79. Defendant Richard Diamond's actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. DufTie. WHERE.FORE, PlaimifrBrianT. DufTicdemandsjudgtnent against Derendant Richard Diamond for compensatory and punitive damages in excess or the amount required for compulsory arbitration, together with delay damages and costs of sun. COUNT IV RACt1ELd. DUFFIE v. RICHARD DIAMOND 80. The averments of Paragraphs I through 79 are incorporated herein by reference as if set forth at length. SI At all times material hereto, Rachel J. DURIC was in close physical proximity to Brian T. Dultle and, unbeknownst to plaintills, was in the zone of danger of the flying debris and shrapnel. 17 S3. Rachel .I. Duflic witnessed the explosion and the resuluuu injuries to her husband, Brian T. Dufiic. 81 As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintill'Rachel J. Dull is suflcrcd severe emotional distress, nlemal upset, fright, worry and inconvenience. 84. As a direct and proximate result of the negfigent and reckless acts and/or omissions of Defendant Richard Diamond and the resultant injuries to Brian T. DUtlle, Plaintiff Rachel J. Duflic has been deprived of the consortium, comfort, aid, affection and services of her husband and may be so deprived in the linure N'l1EREFORE., I'laintitf Rachel J. Duflic demandsjutlgment against Defendant Richard Diamond for compensatoq, and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT V ItRIAN T. DUFFIE, v. FOUR MILE RUN DIAMOND LODGE, INC. S>. The averments of Paragraphs I through 8-1 are incorporated herein by reference as ifso firth m length. IS 86. On or about July 25, 1995, Defendant Pour Mile Run Diamond Lodge, Inc., owned, controlled and operated the Pour Mile Rtm Diamond Lodge comprised of a hunting cabin and surrounding real estate. 87. On or about July 25, 1998, Defendant Pour Mile Run Diamond Lodge, Inc., as the owner of the land, had a duty to control the actions of permissive users- of the corporation's property so that other individuals would not be injured by the negli-ent, reckless and dangerous activities of permissive users of the property. 88. On or about July 25, 1995, Defendant Pour Mite Run Diamond Lodgc, Inc., as the owner of the land, had a duty to control the actions of Richard Diamond and James Brian Smith, permissive users ofthe corporation's property. S9. On or about July 25, 1998, Detendant Pour Mile Run Diamond I-o(l,,,C, 111c., had the ability, as the owner of the land, to control the actions ol'permissive users of the corporation's property, such as Defendants Richard Diamond and James Brian Smith. go. On or about July 25, 1995, Defendant Pour \lile Run Diamond Lodge, Inc., had an officer of the corporation present, Thomas Dixon Diamond, who had the power and authority, as well as a duty, to control the actions of permissive users of the corporation's property. 19 91. On or about July '-5. 1995, Defendant four \iilc Run Diamond Lodge, Inc , through its officer, Thomas Dixon Dianxntd, knew that the cannon was to be set oil' as it finale to the fireworks display. 92. On or about July 25, 1995, Defendant four %tile Run Diamond Lodge, Inc , through its olliccr, Thomas Dixon Diamond, knew that home-made firet%orks like the cannon cauld beextrenlely clan`,crous and hazardous to bystanders 93. On or abcrtu July 25, 1995, Defendant Pour Mile Run Diamond Lodge, Inc., through its (dicer, Thomas Dixon Diamond, knew that the cannon n'as about to be set oll'in close proximity to bystanders who were watching the fireworks display - 94. On araboul July 25, 1995, Defendant Pour \lile Run Diamond Lodge, Inc., through its oflicer, Thomas Dixon Diamond, knew that the fireworks cannon would contain =unpoteder which could cause an explosion if used improperly. 9i. On ur about .1111%'_;, DCICmIam POUT Mile Run Diamond Lodge, htc . breached its duty ofcare and was negligont as it corporation as Ibllo%%s (a) Defendant failed to control the actions of permissive users ol'its property. Defendants Richard Diamond aid James Brian Smith, % hich actions resulted in injuries to Brian T. Dullie,, 20 r-^ (b) Defendant t?tiled to ascertain the type and amount ofgunpowder used in the cannon; (c) Defendant failed to take any safety precautions such as warning the guests at Diamond Lodge or evacuating the guests before the cannon was ignited; and (d) Defendant failed to prevent Richard Diamond from igniting the cannon. 96. On or about July 35, 1998, Defendant Four Mile Run Diamond Lodge, Inc., was responsible and liable for the actions of the permissive users of its property, Defendants Richard Diamond and James Brian Smith. 97. On or about July 35, 1998, Detimdant four Mile Run Diamond Lodge, Inc., was responsible for the actions, negligence and reckless conduct of its oflicer, Thomas Dixon Diamond. 98. Defendant Four Mile Ron Diamond Lodge, Inc., through its officer, Thomas Dixon Diamond, was aware that explosive fireworks like the cannon were extremely dangerous. 99. Defendant Four %Mile Run Diamond Lodge, Inc., through its otlicer, Thomas Dixon Diamond, was aware that one-half of a pound of gunpowder could apply deadly force and could endanger anyone near the explosion. 21 100. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Four Mile Run Diamond Lodge, Inc., Plaintiff Brian *r. Duffle suffered serious and painful injuries to his left calf which required medical treatment and hospitalization. I OL As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Four Mile Run Diamond Lodge, Inc., Plaintiff' Brian "r. Duffle incurred medical, hospital and prescription expenses I'or treatment necessary for injuries and may in the future incur expenses for additional necessary treatment. 102. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Four Mile Run Diamond Lodge, Inc., Plaintiff Brian 'r. DUffie lost time from his regular employment and may in the future lose additional time, %vages and/or suffer a diminution of his future earning capacity. 103. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Four Mile Run Diamond Lodge, Inc., Plaintiff' Brian 'r. Duffle was caused to endure severe pain and suffering, emotional distress and loss of life's pleasures and may in the Rnure suffer additional pain and suffering, emotional distress and loss oflife's pleasures. 104. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Four Mile Run Diamond Lodge, Inc., Plaintiff Brian 1'. DUflle has ,Y) sustained permanent physical scarring and disfigurement and has endured embarrassment and humiliation, all to his great detriment and loss. 105. Defendant Four Mile Run Diamond Lodge, Inc.'s actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of ethers, including Brian 'r. DUMC. N111 1EREFO11L, Plaintil7Brian T. Du11ie demands judgment against Defendant Four Mile anti punitive damages in excess of the amount Run Diamond Lodge. Inc., fitr compensatory required for compulsory arbitration, together with delay damages and costs of suit. COIINI' VI 106. The averments of Paragraphs I through 105 are incorporated herein by reference as ifsct forth at Icngth. 107. At all times material hereto, Rachel J Duflie was in close physical proximity to Brian T. Duflie and, Unbeknownst to Plaintiffs, was in the zone of clanger of the flying debris and shrapnel. 2 ; -- =?IaIIL1YY11YffG?lii11 Y!1® allm9lY IOS. Rachel.l Dullie witnessed the csplosion and the resulutttt injuries to her husband, Brian T. Dullie 109. Asa direct and proximate result of the negfgcnr and reckless acts and/or omissions of Delendant Pour Mile Run Diamond Lodge, Inc , PlaintitYRachel J. Millie suffiered severe emotional distress, mental upset, fright, worry and inconvenience. 110 As it direct and proximate result oflhe negligent and reckless acts and/or omissions of Defendant Pour Mile Run Diamond Lodge. Inc , and the rosultanl injuries to Brian T. [)Lillie, Plaintiff Rachel J Dullic has been deprived of the consortium, comfort, aid. atlccdon and services of her husband and map be so deprived in the future. NN'IIERI:P0RE, I'laintill,Rachel J Dullic demands judgment against Defendant Pour Mile Run Diamond Lodge, Inc, for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COII\T NJI BRIAN T. DUFFIE v. THOMAS DIXON DIAMOND I 1 1. 'I he aterments of Paragraphs I through I I tl are incorporated herein by reference as if set forth at length 4 1 12. At all relevant times on July 25. 1998, De`endant Thomas Dixon Diamond had a duty not to injure Brian T. Dullie through his actions or o missions. 1 13. De(endam Thomas Dixon Diamond knew on Jul), 25, 1998, that the cannon provided by Walter Troth was designed to be fired with b lack powder or blasting powder. 114. Defendant Thomas Dixon Diamond knew on July 25, 1998, that the cannon provided by Walter'I'roth was loaded with smokeless gunpowder rather than black powder or blasting powder. 115. Defendant'l'homas Dixon Diamond knew- that gunpowder, whether black powder or smokeless gunpowder, was an abnormalh• dangerous product and knew that any gunpowder could detonate or explode, causing injuries to others 116. The smokeless gunpowder product which was packed or loaded into the cannon was sold in an original container which had integral warnings and the packaging contained language indicating the proper use of the gunpowder product. 117. Defendant Thomas Dixon Diamond had sullicieut time anti opportunity to read and understand and to cause Richard EDiantond to follow the warnings supplied with the gunpowder used in the fireworks cannon. 118. Defendant Thomas Dixon Diamond had a duty to read the warning information on the gunpowder container and packaging information before allowing Richard Diamond to use or ignite the gunpowder. 119. Defendant "rhomas Dixon Diamond did not read the warning information contained on the gunpowder container or within the packaging materials. 120. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that the gunpowder was to be used for the purpose of reloading ammunition only. 121. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that smokeless gunpowder never should be substituted for black powder. 123. Defendant rhomas Dixon Diamond had no specialized knowledge about black powder, smokeless gunpowder, or ammunition reloading and was aware of his lack of knowledge. 123. Defendant Thomas Dixon Diamond also knew on July 21, 1998, that Defendant Richard Diamond had no specialized knowledge of black powder, smokeless gunpowder, ammunition reloading or explosives. 26 9; . 124. Defendant Thomas Dixon Ditunond had sufficient tittle and opportunity to see and inspect the cannon prior to its use at Diamond Lodge and knew that neither he nor Richard Diamond had any specialized knowledge of the safety of the cannon or gunpowder. 125. Defendant Thomas Dixon Diamond saw Defendant Richard Diamond and Defendant James Brian Smith hand-carry the cannon to the location where it was ignited. 126. Defendant Thomas Dixon Diamond did not raµtire Defendants Richard Diamond and James Brian Smith to take special precautions before igniting the cannon such as htmiliarizing Ihentsclves with the use of gunpowder, warning the spectators, warning Brian T. Duflie or Rachel J. Duffle, evacuating the spectators and/or Brian or Rachel Duflie, removing the cannon to a safe location in case of malfunction, reading the warnings on the can of eunpowder, test-firing the cannon at a safer location farther away from people, or other reasonable and feasible safety precautions. 137. Defendant Thomas Dixon I7iantond knew and comprehended the risk of explosion or detonation of the cannon before the cannon was ignited. 125. Del''endam Thomas Dixon Dianwnd knew and comprehended the risk that an explosion could propel shrapnel or other debris and that debris or shrapnel could reach the spectators from the cannon's location. 27 139. Defendant Thomas Dixon Diamond saw and matched the other Defendants position and ignite the cannon within about ninety (90) feet of invited spectators who were watching Diamond's fireworks show outside the cabin at the Diamond Lodge. 130. Defendant Thomas Dixon Diamond knew the location ol'the spectators in relation to the cannon before the cannon was ignited. 131. Defendant Thomas Dixon Diamond saw Defendants Richard Diamond and James Smith position and ignite the cannon within about I I S.3 feet of the cabin. 132. Defendant Thomas Dixon Diamond knew the location of the cabin in relation to the cannon before the cannon was ignited. 133. Defendant Thomas Dixon Diamond knew that Defendant Richard Diamond was going to ignite the fuse and, thereby, the gunpowder contained in the cannon. 134. Defendant Thomas Dixon Diamond breached his duty of care and was negligent as follows: (a) Defendant allowed a permissive user of the property owned by Four Mile Run Diamond Lodge, Inc., to ignite a dangerous and deadly device utilizing approximately one-half pound ofgunpowder within approximately 90 feet ol'Brian T. Dullie and Rachel J DUIIIC; 28 (b) Defendant allowed permissive users of the property at Diamond Lodge to set up and ignite the cannon, knowing that it was loaded with smokeless gunpowder instead of black powder; (c) Defendant failed to stop the ignition of the smokeless gunpowder packed within the cannon on July 25, 1995; (d) Delendant failed to take reasonable safety precautions and failed to cause the permissive users of the property to take reasonable safety precautions to contain the force and pressure of the intended explosion so as not to injure bystanders; (e) Defendant failed to take safety precautions such as reading the warning labels on the original container supplied with the gunpowder used in the cannon; (f) Delendant failed to take safety precautions such as warning the surrounding spectators or bystanders such as Brian and Rachel Duffle that the permissive users of the property had no specialized knowledge of gunpowder, that gunpowder was about to be ignited, or to warn of possible malfunction of the cannon; (g) Defendant failed to evacuate or to cause the permissive users of the property to evacuate the spectators and bystanders such as Brian and Rachel Duffle before allowing the ignition of the cannon; and (h) Defendant failed to cause the permissive users of the property to position the cannon in a place or position as to eliminate or to minimize the risk of harm to others in the event of an explosion or other malfunction. 1 15. Defendant Thomas Dixon Diamond was aware that explosive fireworks like the cannon were extremely dangerous. 116. Defendant Thomas Dixon Diamond was aware that one-half pound of gunpowder could apply deadly force and could endanger anyone near the explosion. 29 137. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff Brian T. Duffle suffered serious and painful injuries to his left calf which required medical treatment and hospitalization. IN. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff Brian T. Duflie incurred medical, hospital and prescription expenses for treatment necessary for injuries and may in the future incur expenses for additional necessary treatment. 139. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond. Plaintiff Brian T. Duple lost time from his regular employment and may in the future lose additional time, wages and/or suffer a diminution of his future earning capacity. 140. As a direct and proximate result of the nepligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff Brian T. Duflie was caused to endure severe pain and suffering, emotional distress and loss of fife's pleasures and may in the future suffer additional pain and suffering, emotional distress and loss of life's pleasures. 141. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff l3rian T. Millie has sustained 3 0 permanent physical scarring and disfigurement and has endured embarrassment and humiliation, all to his great detriment and loss. 142. Defendant 'rhomas Dixon Diamond' s actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. Du tlie. WIIIEREFORE, Plaintifl'Brianl'. Dullie dcmancisjudgntent against Defendant l'hortlas Dixon Diamond for compeosa;,)ry and punitive dar tiages in excess of the amount required Ibr compulsory arbitration, together wish delay damages and costs of suit. COUN'1- VIII RA(: IIEI,.1.1) 11FFII.,,,.'1'I10\1,4B DI\ON 1)IAN10N1) 143. The averments Paragraphs I through 1.12 are incorporated herein by reference as if set forth at length. 144. At all times material hereto, Rachel J. DuBie was in close physical proximity to Brian T. Dtdlic and, unbeknownst to plaintitys, vcas jr, the zone of danger c)fthe flying debris and shrapnel. ,I tel J. Duple witnessed the explosion and the resultant injuries to her husband, 146. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff Rachel J. DU IC suffered severe emotional distress, mental upset, fright, worry and inconvenience. 147. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond and the resultant injuries to Brian 1'. Duffle, Plaintiff Rachel J. Duffle has been deprived of the consortium, comfort, aid, affection and services of her husband and may be so deprived in the fixture. WHEREFORE, Plaintifl'Rachel J. Duffe demandsjudgment against Defendant Thomas Dixon Diamond for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT I\ BRIANT. DUFFIEv..IAM11ES BRIANSI1111'll 145. The averments Paragraphs I through 147 are incorporated herein by reference as if set forth at length. 32 tii..i Brian T. Duffle. 149 At all relevant times on July 25, 1995, Detcndant James IIrhIn Smith had a duty not to injure Brian T DuMe 150 Defendant James Brian Smith knew on July 25, 1995, that the cannon provided by Walter ToM was designed to be fired with black powderorblasting ponder. 151 Detcndant James Brian Smith knew on,luly A 1995, that the cannon provided by Walter froth teas loaded with smokeless gunpowder rather than black powder or blasting powder. 152. Detcndant James Brian Smith knew that gunpowder, whether black powder or smokeless gunpowder, was an abnormally dangerous product and knew that any, gunpowder could detonate or explode, causing injuries to others 153. ''he smokeless gunpowder product which was packed or loaded into the cannon teas sold in an ori_inal container which had integral warnings and the packaging contained language indicatiIlg the proper use of the gunpowder product 15.1. Detcndant James Brian Smith had sutlicicnt time and opportunity to read and understand and to tcllon the warnings supplied with the gunpowder used in the fireworks cannon. 33 v' 155, Derenclam James Brian Smith had it duty to rail the warning inflornuttion on the gunpowder container and packaging information bel'ore allowing Richard Diamond to use or ignite the gunpowder. 156. Dcfenclant Jantes Brian Smith did not read the warning information contained on the gunpowder container or within the packaging materials. 157. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that the gunpowder was to be used for the purpose of reloading anununition only. 158. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that snwkcless gunpowder never should be substituted Ihr black powder. 159. Dcfenclant James Brian Smith had no specialized knowledge about black powder, Smokeless gunpowder or ammunition reloading and was aware of his lack of knowledge. 160. Defendant James Brian Smith also knew on July 25, 1995, that Defenclam Richard Diamond had no specialized knowledge ofblack powder, smokeless gunpowder, ammunition reloading or explosives. 3-1 161. Dclcoda[It James Brian Smith had sufficient tithe and opportunity to see and inspect the cannon prior to its use ;11 Diamond Lodge and knc%v that neither he nor Richard Diamond had any specialized knowledge of the safety of the cannon or gunpotrder 162 Defendant Richard Diamond and Defendant James Brian Smith hand-carried the cannon to the location where it was ignited. 163. Defendant .lames Brian Smith positioned the cannon in proximity to spectators who were watching the fireworks display. 164. Defendant James Brian Smith failed to take reasonable precautions before igniting the cannon such as familiarizing himself with the ose ofgunpow'der. warning the spectators, warning Brian 'f. Dullic or Rachel J. DUlllc, evacoattioL the Spectators and/or Brian and Rachel Duflic, removing the cannon to it safe location in case ofnudlimction, reading, the warnings on the can Of gunpowder, text-tiring the cannon at it safer location further imay tiont people, or other reasonable and feasible safety precautions. 165. Dclendanl James Brian Smith knew and comprehended the risk ofc.xplosion or detonation of the cannon betiare the cannon w-as ignited. iC 166. Defendant James Brian Smith knew and comprehended the risk that an explosion could propel shrapnel or other debris and that debris or shrapnel could reach the spectators from the cannon's location. 167. Defendant James Brian Smith positioned the cannon within about ninety (90) feet of invited spectators, including Brian and Rachel Duffle, who were watching the fireworks show outside the cabin at the Diamond Lodge. 168. Defendant James Brian Smith knew the location ol'the spectators in relation to the cannon before the cannon was ignited. 169. Defendant James Brian Smith positioned the cannon within about 118.3 feet of the cabin. 170. Defendant James Brian Smith knew the location of the cabin in relation to the cannon before the cannon was ignited. 171. Defendant James Brian Smith breached his duhY of care and was negligent as fbllows: (a) Defendant participated in the positioning and ignition of a dangerous and deadly device utilizing approximately one-half to three-quarters ofa pound 36 of gunpowder within approxinnately 90 feet of Brian T. Dun le and Rachel i Dnllie during a fireworks display: (b) Defendant Set up and assisted the ignition of the cannon, knowing that it leas loaded with smokeless gunpowder instead ofblack powder; (c) Defendant failed to stop the ignition of the smokeless gunpowder packed within the cannon on July 2? 1995; (d) Defendant failed to take reasonable safety precautions to contain the force and pressure of the intended explosion so as not to injure bystanders; (e) Defendant failed to take safety precautions such as reading the warning labels on the original container Supplied with the gunpowder used in the cannon; (t) Defendant failed to take salcty precautions such as warning the surrounding spectators or bystanders such as Brian T. DufTie mid Rachel J Duflie that he and Defendant Richard Diamond had no specialized knowledge of gunpowder, that Gunpowder was about to be ignited, or to warn of possible malfunction of the canton; (g) Defendant failed to evacuate the spectators and bystanders such as Brian T Dufic and Rachel J. Dufiie before igniting the cannon; and (h j Defendant failed to position the cannon in it place or position as to eliminate or to rninimize the risk of harm to others in the event of an explosion or other oral function. 172. Defendant James Brian Smith was aware that explosive fireworks like the cannon were axtrennely dangerous. 17; Defendant James Brian Solith leas aware that one-half pound ofgunpowder could apply deadly force and could endanger anyone near the explosion 37 174, As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintiff Brian T Millie suflered serious and painful injuries to his let calf which required medical treatment and hospitalization 175. As it direct and proximate result ol'the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintifl'Brian T Dutlie incurred medical, hospital and prescription expenses for treatment necessan• I'm injuries and may in the fU[Ure incur eSpenses for additional necessary treatment. 176. As a direct and proximate result of the negligent and reckless acts anti/or omissions of Defendant James Brian Smith, Plaintiff Brian T Dutlic lost time from his regular employment and may in the linurc lose additional time, wages and/or stiller a diminution of his future earning capacity 177. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith. Plaimifl' Brian T. Dutlic was caused to endure severe pain and suflering, emotional distress and loss of file's pleasures and may ill tile Future SL]n'cr additional pain and suffering. emotional distress and loss of life's pleasures. 175. As it direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Janus Brian Smith, Plaintill'Brian T. Dutlic Itas sustained permanent c,•I IL a 1- r S I physical scarring and disfigurement and has endured embarra.sntent and huntifiation, all to his great detriment and loss. 179. Defendant James Brian Smith's actions, ontisslons, conduct and negligence set forth above constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. Duffle. WIIERI?poRE, PlaintitTBrian •f. DUthe deltruldsjudgntent against Defendant James or compensatory and punitive damages in excess of the amount required for l3rian Sntith f together %vith delay damages and costs `t";"" compulsory arbitration, CouNT N R:,,CIIE1.,1. DIIFPIE v. IANIES IMI .%N SMITH 1 a ']'lie averments Paragraphs I through 179 are incorporated herein by reference as if set forth at length Isl. At all times Inaterial hereto, Rachel J. Dutlic %%as in close physical proximity to and l3rian'I'. Dutlic and. unbeknownst to I'laintills, tvaS in the rune of ctangcr of the thing debris shrapnel. 9 1 Duffie witnessed the explosion and the resultant injuries to her husband, 183. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintiff Rachel J. Duflfe suffered severe emotional distress, mental upset, fright, worry and inconvenience. 184. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith and the resultant injuries to Brian 1'. DUBie, Plaintiff Rachel J. Duffie has been deprived of the consortium, comfort, aid, al'ection and services of her husband and may be so deprived in the future. WHEREFORE, Plaintiff' Rachel J. Dulfie demands judgment against Defendant James Brian Smith for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. Respectfully submitted, 7-GOLDBERG, KA,rziNlAN & SIIIPMAN, P.C. By. John . Statler, Esquire Attorney I. D. No. 438 12 320 Market Street P. 0. Box 1268 Harrisburg, PA 17108-1268 DATE: Attorneys fir Plaintills 71473.1 d0 Brian l'. Duffle, VERIFICATION 1, BRIAN T. DUFFIE, hereby acknowledge that I ant the PlaintifTin this action; that 1 have read the foregoinL document; and that tlw facts stated therein are true and correct to the best of in)' knowledge. inli rmation and belief. I understand that any false statements herein are made subject to penalties of 1,' Ila. C. S. Section 1904, relating to unsWorn falsiFICmlon to authorities. IiRIAN"I'. Wu FIE DATE: / Olgb(? `9 VI:R11'ICA ION I, RACI IGI„ I. DUFFIE, hereby acknowledge that I am the Phintin'in this action; that I have read the foregoing document; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any Use statements herein are made subject to penalties of IS Fa. C. s. Section 4904, relating to unsworn falsification to authorities. RA 'IIF:I,.I. Du FI DATE: J `` ,J . ',"' . = ? r i. ?. _ ? - c? j ?? ?_?.. -- ' L ' ?" .. II 1. n v ?? ? `? ? ?J ?? 1 i a _ _ O?G ? lJr v tt nj ?R 1 2s n J 1 U V Q A rTi ? o ? N 4 C F- Fe .3 F s Cn" C Q BRIAN T. DUFFIE and RACHEL J. DUFFIE Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 99-6833 Civil CIVIL ACTION -LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance for Defendants, Thomas Dixon Diamond, Richard Diamond and Four Mile Run Diamond Lodge, only, in the above-captioned matter. Respectfully submitted, MARSHALL, SMITH & HADDICK, P.C. Date: Qr M 7 a4 ?-- Charles E. Haddick, Jr., Esquire Attorney I.D. No. 55666 Date: 1 6`"?? Alan M. Robinson, Esquire Attorney I.D. No. 82670 20 South 36"' Street Camp Hill, PA 17011 Tele: (717) 731-4800 Counsel for Defendants Richard Diamond, Thomas Dixon Diamond and Four Mile Run Diamond Lodge, Inc. CERTIFICATE OF SERVICE AND NOW, this.J clay of November, 1999, I, Charles E. Haddick, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing Entry of Appearance upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: GOLDBERG, KATZMAN & SHIPMAN, P.C. Attn: John A. Statler 320 Market Street P.O. Box 1268 Harrisburg, Pennsylvania 17108 Attorney for Plaintiff Charles E. Haddick, Jr., Es ire 1w BRIAN T. DUFFIE and RACHEL J. DUFFIE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiffs V. NO. 99-6833 Civil RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND, and JAMES BRIAN SMITH : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please enter the undersigned's appearance on behalf of the Defendant, James Brian Smith, only, with regard to the above-captioned matter. Respectfully submitted, NEALON & GOVER gy;r ?_Citl James G. Nealon, III, Esquire Attorney I.D. #46457 301 Market Street, 9th Floor P.O. Box 865 Harrisburg, PA 17108-0865 (717) 232-9900 CERTIFICATE OF SERVICE AND NOW, this 17"' day of December, 1999, 1 hereby certify that I have served the foregoing Praecipe entering my appearance on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: John A. Statler, Esquire GOLDBERG, KATZMAN & SHIPMAN, P. C. 320 Market Street PO Box 1268 Harrisburg, PA 17108-1268 Richard Diamond 11 Fifeshire Court Gaithersburg, MD 20879 Walter Troth Box 295A Emporium, PA 15834 Four Mile Run Diamond Lodge, Inc- 529 Springhouse Road Camp Hill, PA 17011 Thomas Dixon Diamond 1607 Pine Street Philadelphia, PA 19103 James G. Nealon, III, Esquire Dated: ; t?lnha ENjy'?,120) oAVS. FROM CADSP !III Lr.PL'I?SYLVANIA 17011.; _i Bac01N 7=" y BEflVIOEC!'{N RFOR ?:OR A JUOOMENT ] 1 ANY BEi.ENIFOEDA!RSJ "'? I r r r -(717) 701-413 00^ -, .'^.. BRIAN T. DUFFIE and T OF COMMON PLEAS RACHEL J. DUFFIE Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, Mir THOMAS DIXON DIAMOND IN THE LOUR CUMBERLAND COUNTY, PENNSYLVANIA No. 99-6833 Civil : CIVIL ACTION -LAW JAMES BRIAN SMITH, : JURY TRIAL DEMANDED Defendants PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, come the Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond and file their objections to Plaintiffs' Complaint as follows: This case arises out of a fireworks accident which occurred on July 25, 1998 at a social gathering at the Four Mile Run Diamond Lodge in Cameron County Pennsylvania. (See Complaint, attached as Exhibit "A"). 2. The Complaint against Richard Diamond sounds in negligence for the alleged failure to take necessary safety precautions in the ignition of a noisemaking device, which has been described as a cannon. (See Counts III and IV of Exhibit „A"). The Complaint against Four Mile Run Diamond Lodge, Inc., the corporation which owns the real property where the accident occurred, sounds in negligence for its alleged failure to control the actions of permissive users of the property and failing to prevent this accident. (See Counts V and VI of Exhibit "A"). l/ r ,a 4. The Complaint against Thomas Dixon Diamond, an officer of the e corporation, sounds in negligence for his alleged failure to prevent the accident. (See Counts VII and VIII of Exhibit "A"). 5. The Complaint includes claims for punitive damages against each Defendant. (See Counts III, IV, V, VI, VII and VIII of Exhibit "A"). 6. Pa.R.C.P. 1028(x)(4) allows a defendant to file preliminary objections on the grounds of the legal insufficiency of a pleading. THOMAS DIXON DIAMOND'S DEMURRER TO COUNTS VII and VIII 7. Plaintiffs' Complaint fails to state a claim against Thomas Dixon Diamond in his individual capacity. 8. The allegations in Plaintiffs' Complaint are legally insufficient to pierce the corporate veil or to establish the participation theory. 9. Thomas Dixon Diamond, the individual, did not owe any duties to Brian Duffie or Rachel Duffie. 10. Any duties Thomas Dixon Diamond owed Brian or Rachel Duffie were owed solely in his capacity as a corporate officer 11. Plaintiffs have failed to state a claim against Thomas Dixon Diamond in his individual capacity. WHEREFORE, Thomas Dixon Diamond respectfully requests that this Court sustain his demurrer and dismiss Counts VII and VIII of Plaintiffs Complaint with prejudice. DEMURRER TO PUNITIVE DAMAGES CLAIMS A a, 12. Plaintiffs' Complaint contains claims for punitive damages against Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond. (See Counts III, IV, V, VI, VII and VIIU. 13. Punitive damages are warranted only when a defendant's conduct is outrageous, because of an evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Restatement (Second) of Torts § 908(2). 14. The allegations in Plaintiffs' Complaint are legally insufficient to establish the requisite state of mind for an award of punitive damages. 15. Allegations of negligence, or even gross negligence, can not sustain a claim for punitive damages. 16. The Complaint does not contain any allegations that can support a finding that Richard Diamond, Four Mile Run Diamond Lodge, Inc., or Thomas Dixon Diamond acted intentionally, maliciously, or in conscious disregard of a known and realized risk to others. 17. Plaintiffs have failed to stale a claim for punitive damages against Richard Diamond, Four Mile Run Diamond Lodge, Inc., or Thomas Dixon Diamond. WHEREFORE, Richard Diamond and Four Mile Run Diamond Lodge, Inc. respectfully request that this Court sustain their demurrers and dismiss Plaintiffs' punitive damages claims with prejudice. Further, in the event that this Court does J, not sustain his demurrer to Counts VII and VIII, Thomas Dixon Diamond respectfully requests that this Court sustain his demurrer anCl CIISm15$ PIaInU s' punitive damage claims with prejudice. l Respectfully submitted, MARSHALL, SMITH & HADDICK, P.C. ----- Dale: Char[ I-adclic Jr• Attorney I.D. Na: 55666 Alan M. Robinson Attorney I.D. No. 82670 20 South 36th Street Camp Hill, PA 17011 (717)731.4800 Attorneys for Defendants Richard Diamond, (our Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond I i It J EXHIBIT A r John A. Startler, 1sgoirc. Attorney 1. l). No. 43912 CO LDBERG, KAT%M1I\N & SIIIRMAN, P.C. 320 Market Street P.O. Boa 1269 IJu=isbtag, 11A 17109-1269 Telephone (717)2341161 BRIAN T. DUFFIE and RACRELJ. DUFFIE, Plaintiffs V. RICHARD DIAMOND, WALTER TI?ODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIX40N DIAMOND and JAMES BRIAN SMITH, Defendants Attorney for Plaintiffs IN THE COURT Of COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. q I --- bd? JURY TRIAL DEMANDED NOTICE ?' cT urn '^ n YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAM YER AT ONCE. IF YOU DO NOT HAVE A LAWYER Olt CANNOT AFFORD ONE, GO TO OR TELEPHONE THE ELP. OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUNIBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 1701) Telephone: (717) 249-3 166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia escrita o en persona o por abogado y archivar en la cone on forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAML POR TL-LEFONO A LA OpICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3 166 J John A. Stotler, l?squire. Attorney 1. D. No. 43912 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Markel Street P.O. Boa 1269 Harrisburg, PA 17108-1268 relcphonc: (717) 234AI61 BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiffs, Brian T. Duffle and Rachel J. Duffle, by and through their attorneys, Goldberg, Katzman & Shipman, P.C., who file this Complaint against the Defendants, averring as follows: PARTIES Plaintiffs, Brian T. Duffle and Rachel J. Duffle, are adult individuals who at all times material hereto were lawfully married and residing at 211 Rosemont Avenue, New Cumberland, Cumberland County, Pennsylvania 17070. A 2. Defendant, Richard Diamond, is an adult individual who currently resides at 11 Fifeshire Court, Gaithersburg, Maryland 20579. 3. Defendant, Walter Troth, is an adult individual who currently resides at Box 295A, Emporium, Cameron County, Pennsylvania 15834. 4. Defendant, Four Mile Run Diamond Lodge, Inc., is a Pennsylvania corporation with a business address of 529 Springhouse Road, Camp Hill, Cumberland County, Pennsylvania, 17011. and is the owner of the property comprising the Four Mile Run Diamond Lodge and hunting camp located in Shippen Township, Cameron County, Pennsylvania, which property was the location of the events that give rise to the PlaintifFs' causes of action. 5. Defendant, Thomas Dixon Diamond, is an adult individual currently residing at 1607 Pine Street, Philadelphia, Philadelphia County, Pennsylvania, 19103 and is an officer, director and/or owner of the Four Mile Rune Diamond Lodge, Inc. 6. Defendant, James Brian Smith, is an adult individual currently residing at 6571 Cornell Road, Bryans Road, Maryland 20616. FACTS 7. Brian T', Duffle, suffered serious personal injuries on July 25, 1998, at the Four Mile Run Diamond Lodge, a hunting camp owned by Four Mile Run Diamond Lodge, Inc., 1) located in Shippen Township, Cameron County, Pennsylvania (hereinafter referred to as "Diamond Lodge"). 8. Diamond Lodge is owned by Defendant Four Mile Run Diamond Lodge, Inc., and/or Thomas Dixon Diamond, and is controlled and operated by Defendant Thomas Dixon Diamond and others. 9. Defendant Walter Troth lives near or adjacent to the Diamond Lodge Hunting camp/cabin. 10. On or about July 25, 1998, a group of about 28 people, including Brian T. Duffe and Rachel J. Du11ie and Richard Diamond, gathered at Diamond Lodge. 11. On July 25, 1998, Brian T. Duffle and Rachel J. Duffle were lawfully present at Diamond Lodge having been invited to spend the weekend as guests on the property. 12. The Defendants knew that Brian T. Duffle and Rachel J. Duffle were present at Diamond Lodge on July 25, 1998. 13. At some point in the day or evening of July 25, 1998, Defendant Walter Troth approached Richard Diamond and showed Defendant Diamond a cannon. 3 I 14. Defendant Walter Troth indicated that the cannon could be packed with "black" gunpowder and ignited as part of a fireworks display at Diamond Lodge. 15. Defendant Walter Troth had previously set off the cannon using black powder and/or blasting powder utilized normally in mining or demolition. 16. On or about July 25, 1998, Defendant Walter Troth sent a friend, Greg Signor, to Emporium to purchase black powder for the cannon. 17. On or about July 25, 1998, Greg Signor was unable to purchase black powder and bought smokeless gunpowder, designed for use in modern ammunition reloading, and transported the smokeless gunpowder to Walter Troth's residence. 18. On or about July 25, 1998, Defendant Walter Troth opened the can of smokeless gunpowder and looked at it. 19. On or about July 25, 1998, Defendant Walter Troth informed Greg Signor that the gunpowder did not look the same as the black powder he had used in the past. 20. On or about July 25, 1998, Defendant Walter Troth inserted in excess of one-half pound of smokeless gunpowder into the cannon. 4 t 21. On or about July 25, 1998, Defendant Walter froth packed newspaper and then dirt on top of the smokeless gunpowder in the cannon and tamped the dirt with a wooden dowel or stick. 22. On or about July 25, 1998, Defendants Richard Diamond and James Smith arrived at the home of Walter Troth to pick up the cannon. 23. On or about July 25, 1998, Greg Signor informed Defendants Richard Diamond and James Smith that Defendant Walter Troth had put "a lot" of gunpowder in the cannon. 24. On or about July 25, 1998, Defendants Richard Diamond and James Smith transported the cannon to the property of Diamond Lodge, and Defendant Richard Diamond ignited the smokeless gunpowder with a firework's fuse or wick. 25. On or about July 25, 1998, the cannon supplied by Defendant Walter Troth exploded, causing debris and shrapnel to be propelled in various directions. 26. A piece or pieces of debris or shrapnel from the explosion struck Brian T. Duffle in the left calf causing severe injuries and damage. 5 27. At the time of the explosion, the premises of Diamond lodge were under the direct control and supervision of Defendants Richard Diamond, Thomas Dixon Diamond and/or pour Mile Run Diamond Lodge, Inc. COUNTI BRIAN T. DUrp7E v. WALTER TROTH 28. The averments of Paragraphs I through 27 are incorporated herein by reference as if set forth at length. 29. At all relevant times on July 25, 1998, Defendant Walter Troth had a duty not to injure Brian T. Duffle. 30. Defendant Walter Troth breached this duty of care and was negligent as follows: (a) Defendant Troth constructed and/or supplied a dangerous and deadly device, a cannon, which used gunpowder with explosive force; (b) Defendant Troth provided the cannon to Richard Diamond and assisted in loading the cannon with smokeless gunpowder instead of the black powder he utilized earlier, without reading or following the warnings that came with the smokeless gunpowder; (c) Defendant Troth participated in the detonation of the smokeless gunpowder on July 25, 1998, by loading and tamping or by supervising the loading and tamping of the smokeless gunpowder into the cannon; and (d) Defendant Troth constructed or made available to Richard Diamond a cannon made of insufficient materials to contain the force and pressure of the resulting explosion. 6 31. Defendant Troth was aware that explosive fireworks of this type are extremely dangerous. 32. Defendant Troth was aware that one-half of a pound of gunpowder could apply deadly force and could endanger anyone near the explosion. 33. Brian T. Duflie was injured as a direct and proximate result of the reckless and negligent acts and/or omissions of Defendant Walter Trott. 34. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth, Plaintiff Brian T. Duffle suffered serious and painful injuries to his left calf which required medical treatment and hospitalization. 35. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth, Plaintiff Brian 'r. Duffle incurred medical, hospital and prescription expenses for treatment necessary for injuries and may in the future incur expenses for additional necessary treatment. 36. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter "froth, Plaintiff Brian T. Dufiie lost time from his regular employment and may in the future lose additional time, wages and/or suffer a diminution of his future earning capacity. 37. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth, Plaintiff Brian T. Duf lie was caused to endure severe pain and suffering, emotional distress and loss of life's pleasures and may in the future suffer additional pain and suffering, emotional distress and loss of life's pleasures. 38. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter "froth, Plaintiff Brian T. Duffic has sustained permanent physical scarring and disfigurement and has endured embarrassment and humiliation, all to his great detriment and loss. 39. Defendant Walter Troth's actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indilPerence to the health, safety, rights and interests of others, including Brian'r. Duffle. WlIERUORE, Plaintill?Brian1'. Dutfie demands judgment against Defendant Walter Troth for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT ii RACI Ih.L .1. Dll RI' ll's v. NALTI'11111O'I'11 40. 'file averments Paragraphs I through 39 are incorporated herein by reference as if set forth at length. 41. - At all times material hereto, Rachel I Duffie was in close physical proximity to Brian T. Duffle and, unbeknownst to Plaintiffs, was in the zone of danger of the (lying debris and ` i shrapnel. 42. Rachel J. Duffle witnessed the explosion and the resultant injuries to her husband, Brian T. Duffie. 43. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth, Plaintiff Rachel 3. Duffie suffered severe emotional distress, mental upset, fright, worry and inconvenience. 44. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Walter Troth and the resultant injuries to Brian 7. Duffie, Plaintiff Rachel J. Duffle has been deprived of the consortium, comfort, aid, aRection and services of her husband and may be so deprived in the future. 9 WIIEREFORE, PlaintithRachel J. DuiGe dentandsjudgment against Defendant Walter Troth for compensatory and punitive damages in excess of the amount required for compulsory y i; arbitration, together with delay damages and costs of suit. L COUNT III BRIAN T. DUFFIE v. RICHARD DIAMOND 45. The averments of Paragraphs I through 44 are incorporated herein by reference as if set forth at length. 46. At all relevant times on July 25, 1998, Defendant Richard Diamond had a duty not to injure Brian T. Dufe. 47. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter Troth was designed to be fired with black powder or blasting powder. 48. Defendant Richard Diamond knew on July 25, 1998, that the cannon provided by Walter Troth was loaded with smokeless gunpowder rather than black powder or blasting powder. 10 49. Defendant Richard Diamond was told by a witness, Greg Signor, that the cannon had been loaded with "a lot" of smokeless gunpowder when Diamond received the fireworks cannon. 50. Defendant Richard Diamond knew that gunpowder, whether black powder or smokeless powder, was an abnormally dangerous product and knew that any gunpowder could detonate or explode, causing injuries to others. 51. The smokeless gunpowder product which was packed or loaded into the cannon was sold in an original container which had integral warnings and the packaging contained language indicating the proper use of the gunpowder product. 52. Defendant Richard Diamond had sufficient time and opportunity to read and understand and follow the warnings. 53. Defendant Richard Diamond had a duty to read the warning information on the gunpowder container and packaging information before using or igniting the gunpowder. 54. Defendant Richard Diamond did not read the warning information contained on the gunpowder container or within the packaging materials. i i L_I j i i 55. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that the gunpowder was to be used f'or the purpose of reloading ammunition only. 56. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that smokeless gunpowder never should be substituted for black powder. 57. Defendant Richard Diamond had no specialized knowledge about black powder, smokeless gunpowder, or ammunition reloading and was aware of his lack of knowledge. 58. Defendant Richard Diamond had sufficient time and opportunity to see and inspect the cannon prior to its use and knew that he had no specialized knowledge of the safety of the cannon or gunpowder. 59. Defendant Richard Diamond and Defendant James Smith hand-carried the cannon to the location where it was ignited. 60. Defendant Richard Diamond placed the cannon in proximity to spectators who were watching the fireworks display. 12 61. Defendant Richard Diamond knew or should have known that numerous individuals, including Brian T. Duffle and Rachel J. Duffle, were in proximity of where he positioned the cannon for ignition. 62. Defendant Richard Diamond took no special precautions before igniting the cannon, such as familiarizing himself with the use of gunpowder, warning the spectators, warning Brian T. Duffle or Rachel 1. Duffle, evacuating the spectators and/or Brian or Rachel Duffle, removing the cannon to a safe location in case of malfunction, reading the warnings on the can of gunpowder, test-firing the cannon at a safer location farther away from people, or other reasonable and feasible safety precautions. 63. Defendant Richard Diamond knew and comprehended the risk of explosion or detonation of the cannon before he ignited the cannon. 64. Defendant Richard Diamond knew and comprehended the risk that an explosion could propel shrapnel or other debris, and that debris or shrapnel could reach the spectators from the cannon's location. 65. Defendant Richard Diamond attempted to flee from the ignited cannon directly after ignition of the fuse. 13 66. Defendant Richard Diamond positioned and ignited the cannon within about ninety (90) feet of invited spectators, including Brian T. Dufiie and Rachel J. Duf ie, who were watching Diamond's fireworks show outside the cabin at the Diamond Lodge. 67. Defendant Richard Diamond knew the location of the spectators in relation to the cannon before he ignited the cannon. 68. Defendant Richard Diamond positioned and ignited the cannon within about 118.3 feet of the cabin. 69. Defendant Richard Diamond knew the location of the cabin in relation to the cannon before he ignited the cannon. 70. Defendant Richard Diamond ignited the fuse and, thereby, the gunpowder contained inside the cannon. 71. Defendant Richard Diamond breached his duty of care and was negligent as follows: (a) Defendant ignited a dangerous and deadly device utilizing approximately one-half to three-quarters of a pound of gunpowder within approximately 90 feet of Brian T. DufTie and Rachel J. Duffie; H (b) Defendant set up and ignited the cannon, knowing that it was loaded with smokeless gunpowder instead of black powder; (c) Defendant ignited and otherwise participated in the detonation of the smokeless gunpowder packed within the cannon on July 25, 1998; (d) Defendant failed to take safety precautions to contain the force and pressure of the intended explosion so as not to injure bystanders; (e) Defendant failed to take safety precautions such as reading the warning labels on the original container supplied with the gunpowder used in the cannon; (f) Defendant failed to take safety precautions such as warning the surrounding spectators or bystanders such as Brian T. Duffle and Rachel I Duffle that he had no specialized knowledge of gunpowder, that gunpowder was about to be ignited, or to warn of possible malfunction of the cannon; (g) Defendant failed to evacuate tine spectators and bystanders such as Brian T. Duffle and Rachel J. Duffle before igniting the cannon; and (h) Defendant failed to position the cannon in a place or position as to eliminate or to minimize the risk of harm to others in the event of an explosion or other malfunction. 72. Defendant Richard Diamond was aware that explosive fireworks like the cannon were extremely dangerous. 73. Defendant Richard Diamond was aware that one-half to three-quarters of a pound of gunpowder could apply deadly force and could endanger anyone near the explosion. 15 74. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff Brian T. Duffle suffered serious and painful injuries to his left calf which required medical treatment and hospitalization. 75. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff Brian T. Duffle incurred medical, hospital and prescription expenses for treatment necessary for injuries and may in the future incur expenses for additional necessary treatment. 76. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff Brian T. Duffle lost time from his regular employment and may in the future lose additional time, wages and/or suffer a diminution of his future earning capacity. 77. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff Brian T. Duffle was caused to endure severe pain and suffering, emotional distress and loss of life's pleasures and may in the future suffer additional pain and suffering, emotional distress and loss of life's pleasures. 78. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff Brian T. Duffie has sustained permanent 16 physical scarring and disfigurement and has endured embarrassment and humiliation, all to his great detriment and loss. 79. Defendant Richard Diamond's actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. Duffie. WHEREFORE, Plaintiff Brian T. Duffle demands judgment against Defendant Richard Diamond for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT IV RACHEL I DUFFIE v. RICHARD DIAMOND 80. The averments of Paragraphs 1 through 79 are incorporated herein by reference as if set forth at length. 81. At all times material hereto, Rachel 1. Duffle was in close physical proximity to Brian T. Duffie and, unbeknownst to Plaintiffs, was in the zone of danger of the flying debris and shrapnel. 17 I 82. Rachel J. DutTic witnessed the explosion and the resultant injuries to her husband, Brian T. Duffle. i I 83. As a direct and proximate result ofthe negligent and reckless acts and/or omissions of Defendant Richard Diamond, Plaintiff Rachel J. Duflie suffered severe emotional distress, mental upset, fright, worry and inconvenience. 84. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Richard Diamond and the resultant injuries to Brian T. Duffle, Plaintiff Rachel J. Duffle has been deprived of the consortium, comfort, aid, affection and services of her husband and may be so deprived in the future. WHEREFORE, Plaintiff Rachel J. Duffle demands judgment against Defendant Richard Diamond for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT V BRIAN T. DUFFIE V. FOUR MILE RUN DIAMOND LODGE. INC 85. The averments of Paragraphs I through 84 are incorporated herein by reference as if set forth at length. IS 86. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., owned, controlled and operated the Four Mile Run Diamond Lodge comprised of a hunting cabin and surrounding real estate. 87. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, fnc., as the owner of the land, had a duty to control the actions of permissive users of the corporation's property so that other individuals would not be injured by the negligent, reckless and dangerous activities of permissive users of the property. 88. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., as the owner of the land, had a duty to control the actions of Richard Diamond and James Brian Smith, permissive users of the corporation's property. 89. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., had the ability, as the owner of the land, to control the actions of permissive users of the corporation's property, such as Defendants Richard Diamond and James Brian Smith. 90. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., had an officer of the corporation present, Thomas Dixon Diamond, who had the power and authority, as well as a duty, to control the actions of permissive users of the corporation's property. 19 91. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., through its officer, Thomas Dixon Diamond, knew that the cannon was to be set off as a finale to the fireworks display. 92. On or about July 25, 1998, Defendant Pour Mile Run Diamond Lodge, Inc., through its officer, Thomas Dixon Diamond, knew that home-made fireworks like the cannon could be extremely dangerous and hazardous to bystanders. 93. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., through its officer, Thomas Dixon Diamond, knew that the cannon was about to be set off in close proximity to bystanders who were watching the fireworks display. 94. On or about July 25, 1998, Defendant Pour Mile Run Diamond Lodge, Inc., through its officer, Thomas Dixon Diamond, knew that the fireworks cannon would contain gunpowder which could cause an explosion if used improperly. 95. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., breached its duty of care and was negligent as a corporation as follows: (a) Defendant failed to control the actions of permissive users of its property, Defendants Richard Diamond and James Brian Smith, which actions resulted in injuries to Brian T. Dullie; 20 (b) Defendant failed to ascertain the type and amount ol'gunpowder used in t he canton; (c) Defendant failed to take any safety precautions such as warning the guests at Diamond Lodge or evacuating the guests before the cannon was ignited; and (d) Defendant failed to prevent Richard Diamond from igniting the cannon. 96. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., was responsible and liable for the actions of the permissive users of its property, Defendants Richard Diamond and James Brian Smith. 97. On or about July 25, 1998, Defendant Four Mile Run Diamond Lodge, Inc., was responsible for the actions, negligence and reckless conduct of its officer, Thomas Dixon Diamond. 98. Defendant Four Mile Run Diamond Lodge, Inc., through its officer, Thomas Dixon Diamond, was aware that explosive fireworks like the cannon were extremely dangerous. 99. Defendant Four Mile Run Diamond Lodge, Inc., through its officer, Thomas Dixon Diamond, was aware that one-half of a pound of gunpowder could apply deadly force and could endanger anyone near the explosion. 21 100. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Dour Mile Run Diamond Lodge, Inc., Plaintill'Brian T. Duffle suffered serious and painful injuries to his left calf which required medical treatment and hospitalization. 101. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Pour Mile Run Diamond Lodge, Inc., Plaintiff' Brian T. Duffle incurred medical, hospital and prescription expenses for treatment necessary for injuries and may in the future incur expenses for additional necessary treatment. 102. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Pour Mile Run Diamond Lodge, Inc., Plaintiff Brian T. Duffle lost time from his regular employment and may in the future lose additional time, wages and/or suffer a diminution of his future earning capacity. 103. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Pour Mile Run Diamond Lodge, Inc., Plaintiff Brian T. Duffle was caused to endure severe pain and suffering, emotional distress and loss of life's pleasures and may in the future sutler additional pain and suffering, emotional distress and loss of life's pleasures. 104. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Pour Mile Run Diamond Lodge, Inc., Plaintiff' Brian T. DUfffe has 22 sustained permanent physical scarring and disfigurement and has endured embarrassment and humiliation, all to his great detriment and loss. 105. Defendant Four Mile Run Diamond Lodge, Inc.'s actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. Duffle. WHEREFORE, Plaintiff Brian T. DuBie demands judgment against Defendant Four Mile Run Diamond Lodge, Inc., for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT VI RACHEL J DUFFIE v FOUR MILE RUN DIAMOND LODGE, DVC_ 106. The averments of Paragraphs I through 105 are incorporated herein by reference as ifset forth at length. 107. At all times material hereto, Rachel J. Duflic was in close physical proximity to Brian T. Duffle and, unbeknownst to Plaintiffs, was in the zone of danger of the flying debris and shrapnel. ?; 105. Rachel J. Dullic witnessed the explosion and the resultant injuries to her husband, Brian T. Dullic. 109. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Pour Mile Run Diamond Lodge, Inc., Plaintiff Rachel J. Duffie suffered severe emotional distress, mental upset, fright, worry and inconvenience. 110. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Pour Mile Run Diamond Lodge, Inc., and the resultant injuries to Brian T. Duffie, Plaintiff Rachel J. Duffle has been deprived of the consortium, comfort, aid, affection and services of her husband and may be so deprived in the future. WHEREFORE, Plaintiff Rachel J. DufTie demands judgment against Defendant Pour Mile Run Diamond Lodge, Inc., for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNTVII 131ZIAN T. DUFNE'v.'I'IIOD1AS DIXON DIAMOND 111. The averments of Paragraphs I through 110 are incorporated herein by reference as if set forth at length. 24 112, At all relevant times on July 25, 1995, Defendant'I'honias Dixon Diamond had a duty not to injure Brian T. DUfTIC through his actions or omissions. 113. Defendant'I'horttas Dixon Diamond knew on July 25, 1995, that the cannon provided by Walter "froth was designed to be fried with black powder or blasting powder. 114. Dcfendant'I'homas Dixon Diamond knew on July 25, 1995, that the cannon provided by Walter Troth was loaded with smokeless gunpowder rather than black powder or blasting powder. 115. Defendant'rhomas Dixon Diamond knew that gunpowder, whether black powder or smokeless gunpowder, was an abnormally dangerous product and knew that any gunpowder could detonate or explode, causing injuries to others. 116. The smokeless gunpowder product which was packed or loaded into the cannon was sold in all original container which had integral warnings and the packaging contained language indicating the proper use of the gunpowder product. 117. Defendant'1'honaas Dixon Diamond had SU111CICnt time and opportunity to read and understand and to cause Richard Diamond to follow the warnings supplied with the gunpowder used in the fireworks cannon. 25 1 18. Defendant Thomas Dixon Diamond had a duty to read the warning information on the gunpowder container and packaging information before allowing Richard Diamond to use or ignite the gunpowder. 119. Defendant Thomas Dixon Diamond did not read the warning information contained on the gunpowder container or within the packaging materials. 120. 'rhe warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that the gunpowder was to be used for the purpose of reloading ammunition only. 121. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that smokeless gunpowder never should be substituted for black powder. 122. Defendant 'rhontas Dixon Diamond had no specialized knowledge about black Powder, smokeless gunpowder, or ammunition reloading and was aware of Iris lack of knowledge. 123. Defendant Thomas Dixon Diamond also knew on July 25, 1998, that Defendant Richard Diamond had no specialized knowledge of black powder, smokeless gunpowder, ammunition reloading or explosives. 26 124. Derendam Thomas Dixon Diamond had sufficient time and opportunity to see and inspect the cannon prior to its use at Dianiond Lodge and knew that neither he nor Richard Diamond had any specialized knowledge of the safety of the cannon or gunpowder. 125. Defcndant'rhomas Dixon Diamond saw Defendant Richard Diamond and Defendant James Brian Smith hand-carry time cannon to the location where it was ignited. 126. Defendant Thomas Dixon Diamond did not require Defendants Richard Diamond and James Brian Smith to take special precautions before igniting the cannon such as familiarizing themselves with the use of gunpowder, warning the spectators, warning Brian T. Duffle or Rachel J. Duffle, evacuating the spectators and/or Brian or Rachel Duffe, removing the cannon to a safe location in case of malfunction, reading the warnings on time can of gunpowder, test-firing the cannon at a safer location farther away from people, or other reasonable and feasible safety precautions. 127. Defendant Thomas Dixon Diamond knew and comprehended the risk of explosion or detonation of the cannon before the cannon was ignited. 128. Defendant 'T'homas Dixon Diamond knew and comprehended the risk that an explosion could propel shrapnel or other debris and that debris or shrapnel could reach the spectators from the cannon's location. 27 129. Defendant'I'homas Dixon Diamond saw and watched the other Defendants position and ignite the cannon within about ninety (90) feet of invited spectators who were watching Diamond's fireworks show outside the cabin at the Diamond Lodge. 130. Defendant Thomas Dixon Diamond knew the location of the spectators in relation to the cannon before the cannon was ignited. 131. Defendant Thomas Dixon Diamond saw Defendants Richard Diamond and James Smith position and ignite the cannon within about 118.3 feet of the cabin. 132. Defendant Thomas Dixon Diamond knew the location of the cabin in relation to the cannon before the cannon was ignited. 133. Defendant Thomas Dixon Diamond knew that Defendant Richard Diamond was going to ignite the fuse and, thereby, the gunpowder contained in the cannon. 134. Defendant Thomas Dixon Diamond breached his duty of care and was negligent as follows: (a) Defendant allowed a permissive user of the property owned by Four Mile Run Diamond Lodge, Inc., to ignite a dangerous and deadly device utilizing approximately one-half pound of gunpowder within approximately 90 feet of Brian T. Duthie and Rachel J. DUMC; 28 (b) Defendant allowed permissive users of the property at Diamond Lodge to set up and ignite the cannon, knowing that it was loaded with smokeless gunpowder instead ol'black powder; (c) Defendant failed to stop the ignition of the smokeless gunpowder packed within the cannon on July 25, 1996; (d) Defendant failed to take reasonable safety precautions and failed to cause the permissive users of the property to take reasonable safety precautions to contain the force and pressure of the intended explosion so as not to injure bystanders; (e) Defendant failed to take safety precautions such as reading the warning labels on the original container supplied with the gunpowder used in the cannon; (f) Defendant failed to take safety precautions such as warning the surrounding spectators or bystanders such as Brian and Rachel Duffie that the permissive users of tine property had no specialized knowledge of gunpowder, that gunpowder was about to be ignited, or to warn of possible malfunction of the cannon; (g) Defendant failed to evacuate or to cause the permissive users of the property to evacuate the spectators and bystanders such as Brian and Rachel Duffic before allowing the ignition of the cannon; and (h) Defendant failed to cause the permissive users of the property to position the cannon in a place or position as to eliminate or to minimize the risk of harm to others in the event of an explosion or other malfunction. 135. Defendant'fhontas Dixon Diamond was aware that explosive fireworks like the canno n were extremely dangerous. 136. Defendant Thomas Dixon Diamond was aware that one-half pound of gunpowder could apply deadly force and could endanger anyone near the explosion. 29 137. As a direct and proximate result of the negligent and reckless aces and/or omissions of Defendant Thomas Dixon Diamond, Plaintin'Brian'I'. Duflic suffered serious and painful injuries to his left calf which required medical treatment and hospitalization. 138. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff Brian 1'. Dttflie incurred medical, hospital and prescription expenses for treatment necessary for injuries and may in the future incur expenses for additional necessary treatment. 139. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff Brian '1'. Dune lost time from his regular employment and may in the future lose additional time, wages and/or sutler a diminution of his future earning capacity. 140. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff Brian l'. Duflie was caused to endure severe pain and suffering, emotional distress and loss of life's pleasures and may in the future suffer additional pain and suffering, emotional distress and loss of life's pleasures. 141. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintin' Brian 'I'. Dunie has sustained 30 permanent physical scarring and disfigurement and has endured embarrassment and humiliation, all to his great detriment and loss. 142. Defendant Thomas Dixon Diamond's actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indifference to the health, safety, rights and interests of others, including Brian T. Duffle. WHEREFORE, Plaintiff Man T. Duffle demands judgment against Defendant Thomas Dixon Diamond for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT VIII RACHEL J. DUPRIE v. THOMAS DIXON DIAMOND 143. The averments Paragraphs I through 142 are incorporated herein by reference as if set forth at length. 144. At all times material hereto, Rachel J. Duflie was in close physical proximity to Brian T. Dullie and, unbeknownst to Plaintiffs, was in the zone of danger of the (lying debris and shrapnel. ±I 145. Rachel J. Duffle witnessed the explosion and the resultant injuries to her husband, Brian T. Duflie. 146. As a direct and proximate result ofthe negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond, Plaintiff Rachel J. Duflie suffered severe emotional distress, mental upset, fright, worry and inconvenience. 147. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant Thomas Dixon Diamond and the resultant injuries to Brian T. Duflie, Plaintiff Rachel J. Duflie has been deprived of the consortium, comfort, aid, affection and services of her husband and may be so deprived in the future. WHEREFORE, PlaintiffRachel J. Duffle demands judgment against Defendant Thomas Dixon Diamond for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT 1\ 1311 IAN T. DUFFIIs v..IAMES 13RIAN SNIITII 148. The averments Paragraphs I through 147 are incorporated herein by reference as if set forth at length. ?2 149. At all relevant times on July 25, 1995, Defendant James Brian Smith had a duty not to injure Brian T. Duffie. 150. Defendant James Brian Smith knew on July 25, 1995, that the cannon provided by Walter Troth was designed to be fired with black powder or blasting powder. 151. Defendant James Brian Smith knew on July 25, 1999, that the cannon provided by Walter Troth was loaded with smokeless gunpowder rather than black powder or blasting powder. 152. Defendant James Brian Smith knew that gunpowder, whether black powder or smokeless gunpowder, was an abnormally dangerous product and knew that any gunpowder could detonate or explode, causing injuries to others. 153. The smokeless gunpowder product which was packed or loaded into the cannon was sold in an original container which had integral warnings and the packaging contained language indicating the proper use of the gunpowder product. 154. Defendant James Brian Smith had sufficient time and opportunity to read and understand and to follow the warnings supplied with the gunpowder used in the fireworks cannon. 33 i 155, Delbnclam James 13rian Smith had a fluty to rad the warning inlbrmation on the i gunpowder container and packaging inlbrmation before allowing Richard Diamond to ignite the gunpowder. use or i i 156. Defendant James Brian Smith did not read the wanting information contained on I the gunpowder container or within the packaging materials. 157. The warnings on the gunpowder product used in the cannon on July 25, 1998, indicated that the gunpowder was to be used for the purpose of reloading ammunition only. 158. The warnings on the gunpowder product used in the cannon on July 25 1998, indicated that smokeless gunpowder never should be substituted for black powder. 159, Defendant Jantes Brian Smith had no specialized knowledge about black powder, smokeless gunpowder or ammunition reloading and was aware of his lack of knowledge, 160. Defendant James Brian Smith also knew on July 25, 1995, that Defendant Richard Diamond had no specialized knowledge of black powder, smokeless gunpowder, reloading orcxplosives. anrrnwrition J-t „s 161. Defendant James Brian Smith had sun Icient time and opportunity to see and inspect the cannon prior to its use at Diamond Lodge and knew that neither he nor Richard Diamond had any specialized knowledge of the safety of the cannon or gunpowder. 162. Defendant Richard Diamond and Defendant James Brian Smith hand-carried the cannon to the location where it was ignited. 163. Defendant James Brian Smith positioned the cannon in proximity to spectators who were watching the fireworks display. 164. Defendant James Brian Smith failed to take reasonable precautions before igniting the cannon such as familiarizing himself with the use of gunpowder, warning the spectators, warning Brian T. Duffie or Rachel J. DuBie, evacuating the spectators and/or Brian and Rachel Dufie, removing the cannon to a safe location in case of malfunction, reading the warnings on the can of gunpowder, test-firing the cannon at a safer location farther away from people, or other reasonable and feasible safety precautions. 165. Defendant James Brian Smith knew and comprehended the risk ofexplosion or detonation ofthe cannot before the cannon was ignited. 35 166. Defendant James Brian Smith knew and comprehended the risk that an explosion could propel shrapnel or other debris and that debris or shrapnel could reach the spectators from the cannon's location. 167. Defendant James Brian Smith positioned the cannon within about ninety (90) feet of invited spectators, including Brian and Rachel Duf ie, who were watching the fireworks show outside the cabin at the Diamond Lodge. 168. Defendant James Brian Smith knew the location of the spectators in relation to the cannon before the cannon was ignited. 169. Defendant James Brian Smith positioned the cannon within about 118.3 feet of the cabin. 170. Defendant James Brian Smith knew the location of tite cabin in relation to the cannon before the cannon was ignited. 171. Defendant James Brian Smith breached his duty of care and was negligent as follows: (a) Defendant participated in the positioning and ignition of a dangerous and deadly device utilizing approximately one-half to three-quarters of a pound 36 of gunpowder within approximately 90 feet of 13rian'f. Duf ie and Rachel 1. Duflie during it fireworks display. (b) Defendant set up and assisted the ignition of the c;uuton, knowing that it was loaded with smokeless gunpowder instead of black powder, (c) Defendant failed to stop the ignition of the smokeless gunpowder packed within the cannon on July 25, 1995; (d) Defendant failed to take reasonable safety precautions to contain the force and pressure of the intended explosion so as not to injure bystanders; (c) Defendant failed to take safety precautions such as reading the warning labels on the original container supplied with the gunpowder used in the cannon; (f) Defendant failed to take safety precautions such as warning the surrounding spectators or bystanders such as Brian 'r. Dufie and Rachel J. DulTie that he and Defendant Richard Diamond had no specialized knowledge of gunpowder, that gunpowder was about to be ignited, or to warn of possible malfunction of the cannon; (g) Defendant failed to evacuate the spectators and bystanders such as Brian T. Duflic and Rachel J. DufTie before igniting the cannon; and (h) Defendant failed to position the cannon in a place or position as to eliminate or to minimize the risk of harm to others in the event of an explosion or other malflmction. 172. Defendant James Brian Smith was aware that explosive fireworks like the cannon were extremely dangerous. 173, Defendant lames 13rian Smith was aware that one-half'pound of gunpowder could apply deadly force and could endanger anyone near the explosion 37 174. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintiff Brian T. Duffie suffered serious and painful injuries to his left calf which required medical treatment and hospitalization. 175. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintiff Brian T. Duffie incurred medical, hospital and prescription expenses for treatment necessary for injuries and may in the future incur expenses for additional necessary treatment. 176. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintiff Brian T. Duflie lost time from his regular employment and may in the future lose additional time, wages and/or suffer a diminution of his future earning capacity. 177. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintiff Brian T. Duffe was caused to endure severe pain and suffering, emotional distress and loss of life's pleasures and may in the future suffer additional pain and suffering, emotional distress and loss of life's pleasures. 178. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintiff Brian T. DUAIC has sustained permanent 3S physical scarring and disfigurement and has endured embarrassment and humiliation, all to his great detriment and loss. 179. Defendant James Brian Smith's actions, omissions, conduct and negligence set forth above constitute wanton, outrageous and reckless indif Terence to the health, safety, rights and interests of others, including Brian T. Duflie. WHEREFORE, Plaintiff Brian T. Duflie demands judgment against Defendant James Brian Smith for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. COUNT X RACHEL J. DUFFIE v. JAMES BRIAN SMPI'll 180. The averments Paragraphs I through 179 are incorporated herein by reference as if set forth at length. 181. At all times material hereto, Rachel J. Duflie was in close physical proximity to Brian "r. Duflic and, unbeknownst to Plainti0s, was in the -none of danger of the flying debris and shrapnel. 19 a '. 182. Rachel J. DUtlie witnessed the explosion and the resultant injuries to her husband, Brian T. Duflie. 183. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith, Plaintiff Rachel J. Duflie suffered severe emotional distress, mental upset, fright, worry and inconvenience. 184. As a direct and proximate result of the negligent and reckless acts and/or omissions of Defendant James Brian Smith and the resultant injuries to Brian T. Duffle, Plaintiff Rachel J. Duffle has been deprived of the consortium, comfort, aid, affection and services of her husband and may be so deprived in the future. WHEREFORE, Plaintiff Rachel J. Duflie demands judgment against Defendant James Brian Smith for compensatory and punitive damages in excess of the amount required for compulsory arbitration, together with delay damages and costs of suit. Respectfully submitted, I,DBERG, KNI'ZVIAN &, SHIPMAN, P.C. By: John . Statler, Esquire Attorney I. D. No. 13812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 DATE: 0 /T49 i .11,173A Attorneys for Plaintiffs 40 V F. RI FICATION 1, BRIAN T. DUFFIE, hereby acknowledge that I ant the Plaintiff in this action; that I have read the foregoing document; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. 13RIAN T. UTFII's DATE: ola(?q VNRIFICATION 1, RACIIEL J. I) UFFIE, hereby acknowledge that I ant the Plaintill'in this action; that I have read the foregoing document; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. 1 understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Lc?CX? qA1 EL"JD DATE: lel.2,5-1? 9 CERTIFICATE OF SERVICE AND NOW, this 23"' clay of December, 1999, I, Charles E. Haciclick, lr., hereby certify that I did serve a true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT upon all counsel of record and unrepresented parties by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: John Andrew Staller, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Market Street Harrisburg, Pennsylvania 17108-0840 (Counsel for Plaintiff) James Brian Smith 5720 Tobacco Road Indianhead, MD 20640 Walter Troth Box 295A Emporium, PA 15834 Charle4EIldclic , Jr I. HMO IN I„, PENNSYLVANIA Plaintiffs No. 99-6833 Civil V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants PRAECIPE FOR WRIT OF SUMMONS TO JOIN ADDITIONAL DEFENDANTS TO: Curt Long, Prothonotary Kindly issue a Writ of Summons joining Beverly Watkins t/d/b/a Another's Treasures, 44 East 4"' Street, Emporium, PA and Gregory Signor, 336 East Allegheny Avenue, Emporium, PA as Additional Defendants in the above-captioned matter. Respectfully submitted, Date: December 23, 1999 MARSHALL & HADDICK, P.C. Ch-awles E. Haddick, Jr. Attorney I.D. No: 55666 Alan M. Robinson Attorney I.D. No: 82670 20 South 36th Street Camp Hill, PA 17011 (717) 731-4800 Attorney for Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond CERTIFICATE OF SERVICE AND NOW, this 23"' clay of December, 1999, I, Charles E. Haddick, Jr., hereby certify that I did serve a true and correct copy of the foregoing PRAECIPE FOR WRIT OF SUMMONS TO JOIN ADDITIONAL DEFENDANTS upon all counsel of record and unrepresented parties by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, al Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: John Andrew Statler, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Markel Street Harrisburg, Pennsylvania 17108-0840 (Counsel for Plaintiff) James Brian Smith 5720 Tobacco Road Inclianhead, MD 20640 Walter Troth Box 295A Emporium, PA 15834 ?I :: Charles E. Hadclic Jr Cumberland County, ss : The Commonwealth of Pennsylvania toBvrrl, W- *Jsl a Annth ' PYparures (Name of Additional Defendant), and Gregory Signor _ You are notified that Richard Diamond, Wd (Name (s) of Def (Name (ss) of DefendaTrothn t (s) Fnnr ) Mil Rnn Dlamnd Iodge, Inc., Thomas Dixon Diamond, James Brian Smith has (have) joined you as an additional defendant in this action, which you are re- quired to defend. Date Decenber 23, 1999 _ Curtis R. Ion PS^ro+t'honattary ??? ry o C.. Derputy (SEAL) Beverly Watkins t/d/b/a Another's Treasures 44 East 4th Street Emporium, PA Gregory Signor 336 East Allegheny Avenue Emporium, PA L 1 ? p H y u 0 H F E- >4 y c zi ro Q C l y cu 'I ro ° c5 l WW cOOE ? a? I ?xm •?1 v D ° mo ri> m N p n' a * F Z / G wz@ f.i L L 0 1 O L o+? a •.) a ri) U) lam` N O W S4 C7 r?i S4 L N N H C ra " x 3) V] ¢ %°NC Ey H 4 y r O a" I? E u Q m e 0 Q d q w W z ~ 0 Q C~ H Gw>:1 w Q z ? E..1 h a XX Lr 0 H J ? xuao 0 O w ta N i+ •'I '-I CY -? N ] aS M ? Q Spa ra5tf?] v0] 0,1\ ? Q U£ N U r° F-I c :i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRIAN T. DUFFIE and RACHEL J DUFFIE, Plaintiffs, vs. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, CIVIL DIVISION No. 99-6833 Code No. PRAECIPE FOR APPEARANCE Filed on Behalf of Defendants, Beverly Watkins Udlb/a Another's Treasures Counsel of Record for this Party: Defendants, JOHN M. NOBLE, ESQUIRE PA. I.D. #36933 vs. BEVERLY WATKINS t/dlb/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants. MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.L.C. Firm No. 198 114 South Main Street Greensburg, PA 15601-3102 Telephone No.: (724) 836-4840 Fax No.: (724) 836-0532 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRIAN T. DUFFIE and RACHEL J. DUFFIE, CIVIL DIVISION No. 99-6833 Plaintiffs, vs. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants, vs. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants. PRAECIPE FOR APPEARANCE Kindly enter my appearance on behalf of the additional defendant Beverly Watkins, t/d/b/a Another's Treasures with regard to the above-captioned matter. Respectfully submitted, MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, PLLC By: JOHN M. NOBLE, ESQUIRE ATTORNEY FOR ADDITIONAL DEFENDANT BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the within PRAECIPE FOR APPEARANCE has been mailed to all counsel of record by forwarding a copy of same, First Class U.S. Mail, postage prepaid, this 8" Day of February, 2000. James A. Statler, Esquire 320 Market Street P O Box 1268 Harrisburg, PA 17108-1268 Attorney for Plaintiffs Brian and Rachel Duffie Charles E. Haddick, Jr., Esquire Alan M. Robinson, Esquire 20 South 36`h Street Camp Hill, PA 17011 Attorney for Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond James G. Nealon, III, Esquire Nealon & Gover 301 Market Street, 91h Floor P O Box 865 Harrisburg, PA 17108 Attorney for Defendant, James Brian Smith JOHN M. NOBLE, ESQUIRE ATTORNEY FOR ADDITIONAL DEFENDANT BEVERLY WATKINS, d/d/b/a ANOTHER'S TREASURES v ::, _? 4. ?J ?_' J ?:a ? I r BRIAN T. DUPPIE, IN TI-11-7 COURTOP COMMON PLEAS OF RACHEL DURPIE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW RICI-IARD DIAMOND, WALTER TFIEODORE TROTH, POUR MILE RUN DIAMOND LODGE,: INC., THOMAS DIXON DIAMOND, JAMES BRIAN SMITI-1, Defendants V. BEVERLY WATKINS t/d/b/a ANOTFIER'S TREASURES and GREGORY SIGNOR, Additional Defendants NO. 99-6833 CIVIL TERM RULE'f0 SHOW CAUSP AND NOW, this (j1?day of January, 2000, upon consideration of the Petition for Change of Venue Pursuant to Pa. R.C-P. 1006(d)(1) filed by Defendants Richard Diamond, Pour Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond, it is ordered that (I) A rule is issued upon Plaintiffs, the remaining Defendants and Additional Defendants to show cause, if any it has, why the relief requested should not be granted; (2) Plaintiffs, the remaining Defendants and Additional Defendants shall file an answer to the motion within 21 days ofthe date of this order; iy: i (3) The Motion shall be decided under Pa. R.C.P. 206.7; ',I !! i'? I ii;l' Ou Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Walter "Theodore "Troth Box 295A Emporium, PA 15834 :rc ? v ? Wa ? U i v. Q 0 x C/) F = t is _..JAN t ,g eurit e BRIAN T. DUFFIE and RACHEL DUFFIE, Plaintiffs vi, RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA No. 99.6833 Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED Vi. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants ORDER AND NOW, this_ day of , 2000, it is ORDERED that the Petition For Change of Venue filed by Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond is GRANTED and that the above-captioned action is transferred to the Court of Common Pleas of Cameron County. BY THE COURT BRIAN T. DUFFIE and RACHEL DUFFIE, Plaintiffs Vii. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants Vii. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : No. 99-6833 Civil CIVIL ACTION-LAW :JURY TRIAL DEMANDED BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants ORDER AND NOW this _ day of January 2000, it is hereby ORDERED: A Rule is issued upon each of the parties to show cause why the above-captioned case should not be transferred to the Court of Common Pleas of Cameron County; 2. The Rule is returnable and argument will be held 3. Petitioners shall serve this Order and the attached Petition on all counsel of record and unrepresented parties. BY THE COURT BRIAN T. DUFFIE and RACHEL DUFFIE, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 99-6833 Civil V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants PETITION FOR CHANGE OF VENUE PURSUANT TO Pa.R.C.P. 1006(d)(1) AND NOW come the Defendants Richard Diamond, Four Mile Run Diamond Lodge Inc., and Thomas Dixon Diamond, by and through their attorneys, Marshall & Haddick, P.C. and file this Petition pursuant to Pa.R.C.P. 1006(d) raising the doctrine of forum non conveniens. In support thereof, Defendants aver the following: This is an action for damages arising out of a fireworks accident that occurred on July 25, 1998. 2. The accident occurred at a hunting camp in Cameron County Pennsylvania. 3. The hunting camp is owned by Defendant Four Mile Run Diamond Lodge, Inc. 4. Defendant Richard Diamond is a resident of [fie state of itilaryland. 5. Defendant Thomas Dixon Diamond resides in Philadelphia, Pennsylvania, 6. Defendant James B rian Smith is a resident of the slate of ,Maryland. 7. Defendant Walter Theodore Troth resides in Emporium, Carneron County, Pennsylvania. 8. Additional Defendant Beverly Watkins, t/d/b/a Another's Treasures is a resident of Emporium, Cameron County, Pennsylvania. 9. Additional Defendant Greg Signor is a resident of Emporium, Cameron County, Pennsylvania. 10. Defendant Four Mile Run Diamond Lodge, Inc. conducts no business in Cumberland County. If. Defendant Four Mile Run Diamond Lodge, Inc. owns no properly in Cumberland County. 12. The sole purpose for the existence of Four Mile Run Diamond Lodge, Inc. is the maintenance of the hunting camp located in Cameron County Pennsylvania. 13. No acts which form the basis of Plaintiff's lawsuit occurred in Cumberland County. 14. The sole basis for venue in Cumberland County is fact that Four Mile Run Diamond Lodge, Inc. is a corporation with a mailing address in Cumberland County. 15. Cameron County will provide easier access to witnesses and other proof relevant to Plaintiffs cause of action. 16. The accident was investigated by the Pennsylvania State Police, Emporium Barracks, in Cameron County. 17. This matter was investigated by the Cameron County Coroner. 18. The emergency response personnel that responded to the accident are Cameron County residents. 19. All emergency medical treatment was provided in Cameron or neighboring counties. 20. Plaintiffs allege that the Defendant Richard Diamond was negligent in igniting a noisemaking device in close proximity to themselves and other persons present at the hunting camp. 21. Plaintiff alleges that Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond were negligent in failing to prevent Richard Diamond from igniting the noisemaking device in close proximity to themselves and other persons present at the hunting camp. 22. Plaintiff alleges that Richard Diamond, (our Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond are liable for punitive d unages due the close proximity hetween the point of ignition and themselves and other persons present at the hunting camp. 23. A fair determination of each of the Defendants' responsibility for this action, including a determination of whether the conduct complained of rises to the level that warrants Punitive damages, will require the factfinder to be thoroughly familiar with the physical features of the property, such as the locations of hills, trees and other physical features of the land, as well as the location of the viewing area and the point of ignition of the noisernaking device. 24. A view of the premises will be required for a just adjudication of Plaintiff's cause of action. 25. It would be highly inconvenient fora Cumberland County jury to view the premises. 26. The present forum, Cumberland County, is oppressive and vexatious to petitioning Defendants. 27. Cameron County is a more convenient forum for the parties and witnesses to this action. 28. Pa.R.C.P. 1006(d)(1) authorizes this Court, for the convenience of the parties and witnesses, to transfer this case to any other county where the action could originally have been brought. 29. Counsel of record for Plaintiffs and Co-Defendant James Brian Smith do not concur in this petition. WHEREFORE, Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond request that their Petition be granted and that this suit be transferred to the Court of Common Pleas of Cameron County Pennsylvania. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: 11 -? O ZLI-Ia Charl ick, Jr. Attorney I.D. No: 55666 Alan M. Robinson Attorney I.D. No. 82670 20 South 36th Street Camp Hill, PA 1701 1 (717)731-4800 Attorneys for Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond CERTIFICATE OF SERVICE AND NOW, this 71h day of January, 2000, I, Charles E. Fladdick, Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, al Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: John Andrew Statler, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Market Street Harrisburg, PA 17108.0840 James G. Nealon, It, Esquire Nealon and Cover 301 Market Street Harrisburg, PA 17101 Beverly Watkins, t/d/b/a Another's Treasures 44 East 4°i Street Emporium, PA 15834 Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Walter Theodore Troth Box 295A Emporium, PA 15834 Charles E. Ha ick, Jr., Esquire y.v? y DAYS FAvOM fpm, -,li v ".'20 SOUTII 36TILSTRIiC'I' 20 `TVHEi'L'wmuN ie-. oR:?^JODOMENT llllt.,'.PRNNSnVANIA 17011- CORRECTCOPV MNST VOL FILED INTH19 A0TM S, RI, '+ ,1 vv i .5! (717)701 4000,. OY BRIAN T. DUFFIE and : IN THE COURT OF COMMON PLEAS RACHEL DUFFIE, : CUMBERLAND COUNTY, PA Plaintiffs : No. 99-6833 Civil V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants BRIEF IN SUPPORT OF PETITION FOR CHANGE OF VENUE PURSUANT TO Pa.R.C.P. 1006(d)(1) Petitioning Defendants hereby incorporate, as if fully set forth herein, the Brief in Support of Petition for Change of Venue Pursuant to Pa.R.C.P. 1006(4)(1) filed in Deaner v. Diamond, et al., Civil Action No. 99-6649. Petitioning Defendants recognize that Plaintiff in this case (Duffie) did not institute an action in Cameron County. Thus, Petitioning Defendants do not rely on those portions of the Brief filed in Deaner that argue that the case should be transferred on the basis of the prior lawsuit. Respect(rdly submittecl, Date: ! /? L{Z_ MARSHALL R HADDICK, P.C. Charles E. Fladdick, Jr. Attorney I.D. No: 55666 Alan M. Robinson Allorney I.D. No. 82670 20 South 36th Street Camp Hill, PA 1 7011 (717)731-4800 Attorneys for Defendants Richard Diamond, Four j'Wile Run Diamond Lodge, Inc., and Thomas Dixon Diamond BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiffs vs. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants BEVERLY WATKINS Ud/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-6833 JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of Defendant Thomas Dixon Diamond in the above matter. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP by:?c 14. `z James K. Thomas, II, Esquire I.D. No. 15613 305 North Front Street, 6m Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7617 CERTIFICATE OF SERVICE AND NOW, this day of 200_, I, Coleen M. Polek, ,j of the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Charles E. Haddick, Jr., Esq. Alan M. Robinson, Esq. Marshall & Haddick, P.C. 20 S. 36th Street Camp Hill, PA 17011 James G. Nealon, III, Esq. Nealon & Gover 301 Market Street, 9th Floor POB 865 Harrisburg, PA 17108-086; James R. Ronca, Esq. Schmidt & Ronca, P.C. 209 State Street Harrisburg, PA 17101 John A. Statler, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street POB 1268 Harrisburg, PA 17108-1268 John M. Noble, Esq. Meyer, Darragh, Buckler , Bebenek & Eck, PLLC 114 South Main Street Greensburg, PA 15601-3102 Waller Theodore Troth Box 295A Emporium, PA 15834 Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Coleen M. Polek ;.::.: I , BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND, and JAMES BRIAN SMITH, Defendants V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-6833 CIVIL TERM r: ORDER OF COURT AND NOW, this 3rd day of April, 2000,?.`upon_, consideration of the Petition for Change of Venue Pursuant:: :3,r to Pa. R.C.P. 1006(d) (1) filed by Defendants Richard . ...i Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond, and following oral argument on the petition at which Plaintiffs were represented by John Statler, Esquire, Defendants Richard Diamond and Four Mile Run Diamond Lodge, Inc., were represented by Alan M. Robinson, Esquire, Defendant Thomas Dixon Diamond was represented by Alan M. Robinson, Esquire, and James K. Thomas, Esquire, Defendant James Brian Smith was represented by David J. Freed, Esquire, Defendant Beverly Watkins (who is reported to be deceased) was represented by Lee R. Demosky, Esquire, Defendant William Theodore Troth (Box 295-A, Emporium, Pennsylvania, 15834), who has been served, was not present or represented, and Defendant Gregory Signor (336 East Allegheny Avenue, Emporium, Pennsylvania, 15834), who has been served, was not present or represented, and following oral argument, which was not of record, and counsel having on the record stipulated to the admission of Court's Exhibits 1, 2, 3, and 4 for purposes of disposition of the petition, and having agreed that venue is proper in Cumberland County, subject to the argument that venue should be transferred on grounds of forum non conveniens, and Defendant James Brian Smith and Plaintiffs having opposed transfer of venue, the Petition for Change of Venue Pursuant to Pa. R.C.P. 1006(d) (1) is taken under advisement. It is noted that this case is being consolidated with the case at No. 99-6649 CIVIL TERM (Deaner v. Diamond) for purposes of the change of venue proceeding only. Counsel have indicated that they expect to file a stipulation with regard to consolidation of the cases at Nos. 99-6649 CIVIL TERM and 99-6833 CIVIL TERM for purposes of discovery and trial, in the event that the cases are retained in Cumberland County following i 'I disposition of the petitions for change of venue. John Statler, Esquire For the Plaintiffs Alan M. Robinson, Esquire For Defendants Richard Diamond and Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond James K. Thomas, Esquire For Defendant Thomas Dixon Diamond David J. Freed, Esquire For Defendant James Brian Smith Lee R. Demosky, Esquire For Additional Defendant Beverly Watkins Pulliam Theodore Troth Box 295-A Emporium, PA 15834 Defendant Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Additional Defendant ,00 wcy R., r i, a rn, r 16 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW • ii „ No. 99-6833 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of April, 2000, after careful consideration of the Petition for Change of Venue Pursuant to Pa. R.C.P. 1006(d) (1) filed by Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond, and following oral argument on the petition at which Plaintiffs were represented by John Statler, Esquire, Defendants Richard Diamond and Four Mile Run Diamond Lodge, Inc., were represented by Alan M. Robinson, Esquire, Defendant Thomas Dixon Diamond was represented by Alan M. Robinson, Esquire, and James K. Thomas, Esquire, Defendant James Brian Smith was represented by David J. Freed, Esquire, Defendant Beverly Watkins (who is reported to be deceased) was represented by BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiffs v. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND, and JAMES BRIAN SMITH, Defendants V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants Lee R. Demosky, Esquire, Defendant William Theodore Troth (Box 295-A, Emporium, Pennsylvania, 15834), who has been served, was not present or represented, and Defendant Gregory Signor (336 East Allegheny Avenue, Emporium, Pennsylvania, 15834), who has been served, was not present or represented, and following oral argument, which was not of record, and counsel having on the record stipulated to the admission of Court's Exhibits 1, 2, 3, and 4 for purposes of disposition of the petition, and having agreed that venue is proper in Cumberland County, subject to the argument that venue should be transferred on grounds of forum non conveniens, and Defendant James Brian Smith and Plaintiffs having opposed transfer of venue, the Petition for Change of Venue Pursuant to Pa. R.C.P. 1006(d) (1) on grounds of forum non conveniens is denied. John Statler, Esquire For the Plaintiffs Alan M. Robinson, Esquire For Defendants Richard Diamond and Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond James K. Thomas, Esquire For Defendant Thomas Dixon Diamond OC) a ? David J. Freed, Esquire For Defendant James Brian Smith By the Court, Lee R. Demosky, Esquire For Additional Defendant Beverly Watkins William Theodore Troth Box 295-A Emporium, PA 15834 Defendant Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Additional Defendant wcy G; ? i IS.If L. N ._7 l j 1 ?-' O ra -) CU h.: L.. I V '? e i Z L' 5e R F- rn F- 02 BRIAN T. DUFF-IE and RACHEL J. DUFFIE Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES 13RIAN SMITH, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : No. 99-6£333 Civil : CIVIL ACTION -LAW :JURY TRIAL DEMANDED V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants NOTICE TO PLEAD TO: ALL PARTIES YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN ANSWER WITH NEW MATTER AND CROSSCLAINI WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING OR JUDCMENT MAYBE ENTERED AGAINST YOU. Respectfully Submitted, MARSHALL & HADDICK, P.C. Date: Charles E. Hadclick, Jr. ' Attorney I.D. No: 55666 Alan M. Robinson 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorneys for Defendants Richard Diamond, (our Nlile Run Diamond Lodge, Inc., and Thomas Dixon Diamond. BRIAN T. DUFFIE and : IN THE COURT OF COMMON PLEAS RACHEL J. DUFFIE : CUMBERLAND COUNTY, PA Plaintiffs : No. 99-6633 Civil V. RICHARD DIAMOND, CIVIL ACTION - LAW WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, : JURY TRIAL DEMANDED Defendants V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants ANSWER TO PLAINTIFFS' COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM PURSUANT TO Pa.R.C.P. 2252(d) AND NOW, come the Defendants, Richard Diamond, Four Mile Run Diamond Lodge, and Thomas Dixon Diamond, by and through their attorneys, Marshall & Haddick, P.C. and Answer Plaintiffs' Complaint as follows: PARTIES 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. FACTS 7. Denied as slated. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. I .' I r 8. Denied as staled. It is admilled that Diamond Lodge is owned by Four Mile Run Diamond Lodge, Inc The allegation that Thomas Dixon Diamond controlled or operated Diamond Lodge is denied as a conclusion of law. By way of further response, it is specifically denied that Thomas Dixon Diamond controlled or operated Diamond Lodge at any time relevant to this action. 9. Admitted. 10. Admitted. 11. Denied as stated. It is admitted only that Plaintiffs were present. It is denied that Plaintiffs were invited by Answering Defendants. 12. Denied as stated. It is admitted that Richard Diamond and Thomas Dixon Diamond were aware that Plaintiffs were present. 13. Denied as slated. Troth approached, but clid not, show Richard Diamond a cannon on the 241' 14. Denied as stated. Troth stated that the cannon could be loaded with gunpowder." vs F' ,.c r? 1 5. Denied as staled. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to this truth of this averment. 16. Denied as stated. After reasonable investigation Answering Defendants are without knowledge or information sufficient to torn a belief as to this Irulh of this averment. 17. Denied as stated. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to this truth of this averment. 18. Denied as stated. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to this truth of this averment. 19. Denied as stated. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to this truth of this averment. 20. Denied as stated. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to this truth of this averment. 21. Denied as staled. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to this truth of this averment. 22. Admitted. 23. Admitted. By way of further response, Richard Diamond asked Troth questions regarding the use and safety of the cannon. 24. Admitted. 25. Admitted. 26. Denied as stated. After reasonable investigation Answering Defenclanls are without knowledge or information sufficient to form a belief as to this truth of this averment. 27. Denied as stated. The allegations concerning control and supervision are denied as conclusions of law. By way of further response, it is denied that the premises of Diamond Lodge were under the direct control and supervision of Richard Diamond, Thomas Dixon Diamond and/or Four Mile Run Diamond Lodge, Inc. COUNT I BRIAN DUFFIE vs. WALTER TROTH 28 39. The allegations contained in these paragraphs are directed to a Defendant other than the Answering Defendants, thus no reply is required by the Pennsylvania Rules of Civil Procedure. To the extent that it is determined that a reply is required, Answering Defendants deny each allegation because after reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity contained in these paragraphs. Further, to the extent applicable, Answering Defendants generally deny the allegations of these paragraphs pursuant to Pa.R.C.P. 1029(e). COUNT II RACHEL DUFFIE vs. WALTER TROTH 4G 44. The allegations contained in these paragraphs are directed to a Defendant other than the Answering Defendants, thus no reply is required by the Pennsylvania Rules of Civil Procedure. To the extent that it is determined that a reply is required, Answering Defendants deny each allegation because after reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity contained in these paragraphs. Further, to the extent applicable, Answering Defendants general ly deny the allegations of these paragraphs pursuant to Pa.R.C.P. 1029(e). COUNT III BRIAN T. DUFFIE vs. RICHARD DIAMOND 45. Defendant's responses to Paragraphs 1.44 are incorporated herein by reference. 46. Denied as a conclusion of law. 47. Denied. 46. Denied. 49. Denied. 50. Denied as stated. Richard Diamond admils knowing that gunpowder can explode and that explosions can result in injuries. The allegation that gunpowder is an abnormally dangerous product is denied as a conclusion of law. Denied as stated. After reasonable investigation Defenclant is without knowledge or information sufficient to form a belief as to this truth of the remainder of this averment. 51. Denied as stated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation. 52. Denied as stated. Paragraph 51 is incorporated by reference herein. Byway of further response, this paragraph is clenied as a conclusion of law. 53. Denied as a conclusion of law. 54. Admitted. By way of further response, Paragraph 51 is incorporated herein by reference. Defendant does not know what warnings, if any, were on the package. 55. Denied as stated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 56. Denied as stated. After reasonable investigation Defenclant is without knowledge or information sufficient to form a belief as to this truth of this averment. 57. Denied as stated. Defendant (foes not know what is considered "specialized knowledge" for the purposes of this complaint. 58_ Admitted in part clenied in part. Richard Diamond admits that he saw the cannon prior 10 use and asked Walter Troth questions about the use and safety of the cannon. Paragraph 57 is incorporated by reference herein. The remaining allegations of the paragraph are denied as conclusions of law, 59. Denied. 60. Denied as stated. Defendant does not know the definition of "proximity" as it relates to this complaint. 61. Denied as stated. Defendant does not know the definition of "proximity" as it relates to this complaint. 62. Denied pursuant to Pa.R.C.P. 1029(e). 63. Denied. 64. Denied. 65. Denied. 66. It is admitted that Richard Diamond positioned and ignited the cannon. The remaining allegations are denied pursuant to Pa.R.C.P. 1029(e). 67. Denied pursuant to Pa.R.C.P. 1029(e). 68. It is admitted [hat Richard Diamond positioned and ignited the cannon. The remaining allegations are denied pursuant to Pa.R.C.P. 1029(e). 69. Denied pursuant to Pa.R.C.P. 1029(e). 70. Admitted. 71. The allegations of Paragraph 71 (a-h) are denied as conclusions of law. Further, the allegations are generally denied pursuant to Pa. R.C.P. 1029(e). 72. Denied. 73. Denied as a conclusion of la%V. ;s 74. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 75. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 76. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is Without knowledge or information sufficient to form a belief as to this truth of this averment. 77. Denied as a conclusion of laW. By Way of further response, after reasonable investigation Defendant is Without knowledge or information sufficient to form a belief as to this truth of this averment. 78. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is Without knowledge or information sufficient to form a belief as to this truth of this averment. 79. Denied as a conclusion of law. WHEREFORE, Defendant requests that this Honorable Court enter judgment in favor of Richard Diamond and against Plaintiff, Brian T. Duffie and dismiss Plaintiff's claims for compensatory and punitive damages, delay damages, and costs of suit. 80. Defendant's responses to paragraphs 1-79 are incorporated herein by reference. 81. Denied as staled. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 82. Denied as stated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 83. Denied as a conclusion of law. 84. Denied as a conclusion of law. WHEREFORE, Defendant requests that this Honorable Court enter judgment in favor of Richard Diamond and against Plaintiff, Rachel J. Duffie and dismiss Plaintiff's claims for compensatory and punitive clamages, delay damages, and costs of suit. COUNT V BRIAN T. DUFFIE vs. FOUR MILE RUN DIAMOND LODGE, INC. 85. Defendant's responses to paragraphs 1-84 are incorporated herein by reference. 86. Denied as stated. It is admitted that Diamond Lodge is owned by Four Mile Run Diamond Lodge, Inc. The remaining allegations relating to control and operation are denied. 87. Denied as a conclusion of law. 88. Denied as a conclusion of law. 89. Denied as a conclusion of law. To the extent that it is determined that a response is required, the allegation is denied pursuant to Pa. R.C.P. 1029(e). 90. Denied as stated. It is admitted only that Thomas Dixon Diamond was present in his individual capacity at some point on July 25, 1 998. The remaining averments of this paragraph are denied. 91. Denied as stated. Thomas Dixon Diamond was aware that the cannon was to be related, but was present only as an individual, not in the capacity of a corporate officer. 92. Denied. 93. Denied as stated. Defendant does not know the definition of "close proximity" for the purposes of this complaint. By way of further response, denied pursuant to Pa.R.C.P. 1029(e). Paragraph 91 is incorporated by reference. 94. Denied. 95. The allegations of Paragraph 95 (a-d) are denied as conclusions of law. Further, the allegations are generally denied pursuant to N.R.C.P. 1029(e). 96. Denied as a conclusion of law. 97. Denied as a conclusion of law. 98. Denied. 99. Denied. 100. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 101. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 102. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 103. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 104. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 105. Denied as a conclusion of law. WHEREFORE, Defendant requests that this Honorable Court enter judgment in favor of Four Mile Run Diamond Lodge and against Plaintiff, Brian I. Duffie and dismiss Plaintiff's claims for compensatory and punitive damages, delay damages, and costs of suit. COUNT VI RACHEL J. DUFFIE vs. FOUR MILE RUN DIAMOND LODGE, INC. 106. Defendant's responses to paragraphs 1-105 are incorporated herein by reference. 107. Denied as stated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 108. Denied as stated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 109. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 110. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. WHEREFORE, Defendant requests that this Honorable Court enter judgment in favor of Four Mile Run Diamond Lodge, Inc., and against Plaintiff, Rachel J. Duffie and dismiss Plaintiff's claims for compensatory and punitive damages, delay damages, and costs of suit. COUNT VII BRIAN T. DUFFIE vs. THOMAS DIXON DIAMOND 111. Defendant's responses to paragraphs 1-110 are incorporated herein by reference. 112. Denied as a conclusion of law. 113. Denied. 114. Denied. 115. Denied as stated. Thomas Dixon Diamond admits knowing that guopowdo, can explode and that explosions can result in injuries. The allegation that gunpowder is an abnormally dangerous product is denied as a conclusion of law. 116. Denied as stated. After reasonable investigation Defend,u,t is svithuul knowledge or information sufficient to form a belief as to this truth of this avol neat. 117. Denied as stated. Paragraph 11 6 is incorporated by reference herein. By way of further response, this paragraph is denied as a conclusion of law. 118. Denied as a conclusion of law. 119. Admitted. Byway of further response, Paragraph 51 is incorporated herein by reference. Defendant does not know what warnings, if any, were on the package. 120. Denied as stated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 121. Denied as stated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 122. Denied as stated. Defendant does not know what is considered "specialized knowledge" for the purposes of this complaint. 123. Denied as stated. Defendant does not know what is considered specialized knowledge" for the purposes of this complaint. 124. Denied. By way of further response paragraph 122 is incorporated herein by reference. 125. Denied. 126. Denied pursuant to Pa.R.C.P. 1029(e). 127. Denied. 128. Denied. 129. Denied pursuant to Pa.R.C.P. 1029(e). 130. Denied pursuant to Pa.R.C.P. 1029(e). 131. Denied 132. Denied pursuant to Pa.R.C.P. 1029(e). 133. Denied pursuant to Pa.R.C.P. 1029(e). 134. The allegalions of Paragraph 134 (a-h) are denied as conclusions of law. Further, the allegations are generally denied pursuant to Pa.R.C.P. 1029(e). 135. Denied. 136. Denied. 137. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 138. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 139. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 140. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 141. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 142. Denied as a conclusion of law. WHEREFORE, Defendant requests that this Honorable Court enter judgment in favor of Thomas Dixon Diamond and against Plaintiff, Brian T. Duffie and dismiss Plaintiff's claims for compensatory and punitive damages, delay damages, and costs of suit. 143. Defendant's responses to paragraphs 1-142 are incorporated herein by reference. 144. Denied as slated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 145. Denied as stated. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 146. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to this truth of this averment. 147. Denied as a conclusion of law. By way of further response, after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to th is truth of this averment. WHEREFORE, Defendant requests that this Honorable Court enter judgment in favor of Thomas Dixon Diamond and against Plaintiff, Rachel J. Duffie and dismiss Plaintiff's claims for compensatory and punitive damages, delay damages, and costs of suit. ¦ COUNT IX BRIAN T. DUFFIE vs. JAMES BRIAN SMITH 148 179. The allegations contained in these paragraphs are directed to a Defendant other than the Answering Defendants, thus no reply is required by the Pennsylvania Rules of Civil Procedure. To the extent that it is determined that a reply is required, Answering Defendants deny each allegation because after reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity contained in these paragraphs. Further, to the extent applicable, Answering Defendants generally deny the allegations of these paragraphs pursuant to Pa.R.C.P. 1029(e). COUNT X RACHEL J. DUFFIE vs. JAMES BRIAN SMITH 180- 181. The allegations contained in these paragraphs are directed to a Defendant other than the Answering Defendants, thus no reply is required by the Pennsylvania Rules of Civil Procedure. To the extent that it is determined that a reply is required, Answering Defendants deny each allegation because after reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity contained in these paragraphs. Further, to the extent applicable, Answering Defendants generally deny the allegations of these paragraphs pursuant to Pa.R.C.P. 1029(e). NEW MATTER 1 85. Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc. Corporation, and Thomas Dixon Diamond hereby incorporate by reference Paragraphs 1 through 184 of their Answer. 186. Plaintiffs have failed to stale a claim against Answering Defendant upon which relief can be granted. 187. Plaintiffs' claims are barred by the applicable statute of limitations. 188. Answering Defendants complied with any and all duties owed to Plaintiffs and, if any existed, at limes material hereto. 189. At all times material hereto, Answering Defendants acted reasonably, properly, and prudently. 190. The alleged negligence of Answering Defendants, such negligence being specifically denied, was not the proximate cause of the damages sustained by Plaintiff, if any. 191. At all times material hereto, Plaintiffs were guilty of comparative negligence, and such negligence was comparatively higher than the alleged negligence of the answering Defendant, which is specifically denied; accordingly Plaintiffs' claims are barred or, in the alternative, limited in accordance with the Pennsylvania Comparative Negligence Act. 192. No conduct on the part of any Answering Defendant ryas a substantial factor in causing or contributing to any harm which Plaintiffs may have suffered. 1 93. If any damages were sustained by the Plaintiffs in this litigation, such clamages were caused by parties other than Answering Defendants over whom Answering Defendants had no control or right to control. Accordingly, Plaintiffs have failed to state a claim against Answering Defendants upon which relief can be granted. 1 94. Plaintiffs' claims are barred, in whole or in part, by the doctrine of assumption of the risk. 1 95. The Plaintiff's damages, if any, were caused by the actions or inaction of other persons or entities, over whom Answering Defendants have no control; and therefore, the actions or inactions of such other persons or entities are intervening, superseding causes of the Plainliffs' clamages as alleged. Accordingly, some or all of the claims against Answering Defendants should be dismissed. 196. Some or all of the Plaintiffs' claims against Answering Defendants are not recoverable items of damage under Pennsylvania law. 1 97. The cannon belonged to Walter Troth. 1 98. The gunpowder loaded into the cannon was supplied by Waller Troth. 199. Defendants were not present when the gunpowder was purchased. 200. Defendants did not purchase the gunpowder. 201. Defendants did not pay for the gunpowder. 202. The cannon was loaded by Walter *Troth and/or Greg Signor. 203. Defendants were not present when the cannon was loaded. 204. Defendants never saw the gunpowder that was loaded into the cannon. 205. Richard Diamond asked Walter Troth specific questions about the use and safety aspects of the cannon. 206. Walter Troth assured Richard Diamond that the cannon was safe. 207. Defendants relied on Walter Troth's instructions on use and assurances of safely at all times. WI-IEREFORE, Answering Defendants deny that Plaintiffs, Brain T. DUITiC arid Rachel J. Duffie, are entitled to the relief claimed in the Complaint and request That this Honorable Court enter judgment in favor of Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond, and against Plaintiffs, Brian T. Duffie and Rachel J. Duffie Margaret M. Deaner and dismiss Plaintiffs' Complaint and all claims for damages, delay damages, and costs of suit contained therein. NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) RICHARD DIAMOND, FOUR MILE RUN DIAMOND LODGE, INC., and THOMAS DIXON DIAMOND VS. WALTER THEODORE TROTH, and JAMES BRIAN SMITH 208. Answering Defendants, Richard Diamond, Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond, without vouching for its accuracy, hereby incorporates by reference Plaintiffs' Complaint and also incorporates their own Answer and New Matter above, as if fully set forth herein and avers that if Plaintiff is entitled to any recovery, which entitlement is specifically denied, the liability is the sole liability of Waller Theodore Troth and/or James Brian Smith. 209. In the alternative, Walter Theodore Troth and/or James Brian Smith are jointly and/or severally liable to the Plaintiffs and/or liable over to Answering Defendants for contribution and/or indemnity. WHEREFORE, Answering Defendants, Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond, respectfully request that Defendants Waller Theodore Troth and/or James Brian Smith be found solely liable to Plaintiffs or in (he alternative, be held jointly and/or severally liable on the Plaintiffs' claims and/or be held liable as to Answering Defendants for contribution and/or indemnity. Respectfully submitted, MARSHALL & HADDICK, P.C. Charles E. addick, Jr. Attorney I.D. No: 55666 Alan M. Robinson Attorney I.D. No. 82670 20 South 36th Street Camp Hill, PA 17011 (71 7)731-4800 Attorneys for Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc., and Thomas Dixon Diamond VERIFICATION PURSUANT TO Pa.R.C.P. 1024(c) I, Alan M. Robinson, Esquire, state that I am the attorney for the party filing the foregoing document; that I make this affidavit as an attorney, because the party I represent lacks sufficient knowledge or information upon which to make a verification and/or because I have greater personal knowledge of the information and belief than that of the party for whom I make this affidavit; and/or because the party for whom I make this affidavit is outside the jurisdiction of the court, and his verification cannot be obtained within the lime allowed for the filing of the foregoing document; and that I have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa.C.S. 4904, relating to unsworn falsification of authorities. Date: fa I! Alan . obinson, Esquire Pa. I.D. No. 82670 r CERTIFICATE OF SERVICE AND NOW, Ihis2sclay of June, 2000, I, Alan M. Robinson, Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: John Andrew Statler, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Markel Street Harrisburg, PA 17108-0840 James G. Nealon, II, Esquire Nealon and Gover 301 Market Street Harrisburg, PA 17101 John M. Noble, Esquire MEYER, DARRAGH, BUCKLER, BEBENEK & ECK 114 S. Main Street Greensburg, PA 15601-3102 Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 Walter Theodore Troth Box 295A Emporium, PA 15834 GC? Alan M. Robinson, Esquire 13RIAN T. DUFEIE and IN THE COURT OF COMMON PLI'AS OF RACHEL.1. DUFFII:, CUMBERLAND COUNTY, PrNNSYLVANIA Plaintiffs V. CIVIL ACTION-LAW RICHARD DIAb10ND, WALTER THEODORE. TROT fl, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND,: an(I JAMES BRIAN SMITII, Defendants V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants No. 99-6833 CIVIL TERM PRAECIPE FOR ENTRY OF APPEARANCE TO: The Prothonotary Kindly enter the appearance of'Michael J. McGovern on behalf of Defendant, Gregory Signor Respectfully Submitted, i Date: O 00 WoucrCtIOD. Michavern, Bsquirc SuprcNo. 52802 Yorktowne Insurance Company P.O. Box 3709 3350 Whiteford Road York PA 17402-0136 (717)757-0000 Q,'RT1FICATF. Or SERVICE I, Kristie L. Staub, hereby certify that a true and correct copy of the foregoing Entry of' Appearance was served this (late upon the parties listed below at the addresses shown below by United States Certified NIail postage prepaid. Date: ?- Knsti •• L. Staub James R. Ronca, Esquire Schmidt, Ronca & Kramer, P.C. 209 State Street Harrisburg, PA 17101 Telephone #: 717-232-6300 Attys for Delcndants. Richard Diamond. Thomas Dixon Diamond, and Pour Mile Run Diamond Lodge. John A. Statler, Esquire Goldberg, Katzman R Shipman, P.C. 320 E. Market Street Harrisburg, PA 17108-0840 Atty for Plaintil'Is Brian T. Duffie and Rachel J. Duliic Charles E. Iladdick, Jr., Esquire and Alan M. Robinson, Esquire Marshall & liaddick. P.C. 20 South 'W" Street Camp I-fill, PA 1701 1 Telephone #: 717-731-4800 Fax #: 717-731-4503 Attys for Defendants- Richard Diamond. Thomas Dixon Diamond. and Pour Mile Run Diamond Lodge. Walter Theodore Troth Box 295A Emporium, PA 15834 James K. Thomas 11. Esquire 'T'homas, Thomas & Haler 305 North Front Street. 61" Floor F.O. Box 999 I larrisburg, I'A 17108 Attorney for Defendant'I'homas Dixon Diamond James G. Nealon 111. Esquire Nealon & Gover 301 Markel Street I-larrisburg, PA 17101 Atty for Defendant, James Brian Smith John M. Noble, Esquire Meyer, Darragh, Buckler, Bebenck & Eck 114 S. Main Street Greensburg, PA 15601-3102 Atty for Additional Defendant, Beverly Watkins t/d/b/a Another's Treasures ,. ?? ? '? ?` ?' ti ?-- ?._ -,.:, _ ` : - =::? . :, `? ,; .'L ? o -7 [IPMAN;'RC John A. Stutter, Esquire. Attorney 1. D. No. 43812 COLBBERG, KATZMAN & SIIIPNIAN, P.C. 320 Market Street P.o. Box 1268 1larrisburg, PA 17108.1269 Tocphwe: (717)234-1161 BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants Attorney for Plaintiffs IN TIIE COURT OP COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 99-6833 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANTS RICHARD DIAMOND, FOUR 11,71LE RUN DIAMOND LODGE 1NC. AND TIIOIIAS DIXON DIAMOND AND NOW, conic the Plaintiffs, Brian T. Duf c and Rachel J. Duffie, by their attorneys, Goldberg, Katzman and Shipman, P.C., who file the following Reply to the New Matter of Defendants Richard Diamond, Four Mile Run Diamond Lodge, Inc. and Thomas Dixon Diamond: 185. Plaintiffs incorporate by reference the averments contained in paragraphs 1-184 or ??F the Plaintiffs' Complaint as if set forth at length. 186. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Plaintiffs have failed to state a claim against answering Defendants upon which relief can be granted. 187. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Plaintiffs' claims are barred by applicable Statute of Limitations. 188. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Defendants complied with any and all duties owed to PlaintitTs at all times material hereto. 189. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that at all times material hereto the answering Defendants acted reasonably, properly and prudently. 190. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the 2 negligence of the answering Defendants was not a proximate cause of the damages sustained by the Plaintiffs. 191. The averments in this paragraph constitute conclusions of lakv to which no response is required. In the event a response is deemed to be required, it is denied that the Plaintiffs were guilty of comparative negligence and denied that any such comparative negligence was greater than the alleged negligence of the answering Defendants. 192. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that no conduct on the part of the answering Defendants was a substantial factor in causing or contributing to the harm suffered by the Plainti(T's. 193. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is admitted that the Plaintiffs' damages were caused by all of the Defendants named in this litigation including the answering Defendants. It is denied that the Plaintiffs have failed to state a claim against the answering Defendants upon which relief can be granted. 194. The avenuents in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Plaintiffs' claims are barred in whole or in part by the Doctrine of Assumption of the Risk. 195. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that the Plaintiffs' damages were caused by the actions or inaction of persons or entities over whom the answering Defendants had no control and denied that such actions or inaction constitute intervening, superseding causes of the Plaintiffs' damages. By way of further answer, it is denied that some or all of the claims against the answering Defendants should be dismissed. 196. 'rhe averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is denied that some or all of the Plaintiffs' claims against the answering Defendants are not recoverable items of damage under Pennsylvania law. 197. Denied. After reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the avenuents in this paragraph and, therefore, deny the same and demand strict proof at time of trial if deemed material. 4 198. Denied. After reasonable investigation, Plaintins are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof at time of trial if deemed material. 199. Denied. After reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof at time of trial if deemed material. 200. Denied. After reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proofat time of trial if deemed material. 201. Denied. After reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof at time of trial if deemed material. 202. Denied. After reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof at time of trial if deemed material. 203. Denied. Afer reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof at time of trial if deemed material. 204. Denied. Afler reasonable investigation, Plaintiff's are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof at time of trial if deemed material. 205. Denied. Afer reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proofat time of trial if deemed material. 206. Denied. Afer reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof at time of trial if deemed material. 207. Denied. After reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth or falsity of the averments in this paragraph and, therefore, deny the same and demand strict proof at time oftriai ifdeented material. 6 WHEREFORE, Plaintiffs Brian T. DufTie and Rachel J. Duffle respectfully request that the New Matter of Defendants Richard Diamond, Pour Mile Run Diamond Lodge, Inc, and Thomas Dixon Diamond be dismissed and that judgment be entered in favor of the Plaintiffs and against the Defendants. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By John A. taller, Gsqu' Attorney I. D. No. 43812 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiffs Brian T. Duflic and Rachel J. Duffle DATE: -7 /5100 47510.1 WRIFICA'I'ION 1, JOHN A. STA'1'LER, ESQUIRE, hereby acknowledge that I am the attorney for the Plaintiffs Brian T. Duffic and Rachel J. Dufiie; that I have read the foregoing Reply to New Matter; that there arc no new facts of record contained in the within Reply to New Matter and that the facts stated therein are true and correct to the best of my knowledge, information, and belief. 1 understand that any false statements herein are made subject to penalties of 18 Pa. C. S. §4904, relating to unsworn falsification to authorities. ,1011 A. STATLE , QUIRE DATE: 7 I s-1eO CERTIFICATE OF SERVICE. 1 HEREBY CERTIFY that I served a true and correct copy ofthe foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at 'M Harrisburg, Pennsylvania, with first-class postage prepaid on the s day of ill /!I 2000, addressed to the following: Charles E. Haddick, Jr., Esquire Marshall, Smith & Iladdick, P.C. 20 South 36' Street Camp Hill, PA 17011 James G. Nealon, 111, Esquire Nealou and Gover 301 Market Street Harrisburg, PA 17101 William A. Addams, Esquire Addams & Rundle 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 Mr. Walter Theodore Troth Box 295-A Emporium, PA 15834 James R. Ronca, Esquire Schmidt, Ronca & Kramer, P.C. 209 State Street I Iarrisburg, PA 17110 Mr. Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 GOLDBERG, KAT'LDIAN & SIIIPIMAN, P.C. i. By: John r . Statler, Esquire Attorney I. D. No. 43812 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for PlaintiB's .., ?= - .. ,. .:... o ' YOU ARE HEREBY NOTIFIED TO PILE A WRITTEN RESPONSE TO THE ENCLOSED WITHIN TWENTY (TBI DAYS FROM SERVICE HEREOF OR A JUDGEMENT MAY BE ENTERED AGAINST YOU. BY ATTORNEY MARSHALL & HADDICK 20 SOUTH 36TH STREET CAMP HILL, PENNSYLVANIA 17011 (717) 731-1800 BRIAN T. DUFFIE and RACHEL J. DUFFIE Plaintiffs WE DO HEREBY CERTIFY THAT THE:.".? WITHIN 15 A TRUE AND CORRECT COPY Of THE ORIGINAL PILED INTHIS -' ACTION. BY ATTORNEY ,. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : No. 99-6833 Civil V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAECIPETO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly affix the attached Verifications to Defendants' Answer to Plaintiffs' Complainl with New Matter and New Matter Crossclaim, which was filed with the Court Oil June 21, 2000, in the above-captioned matter. Respectfully submitted, MARSHALL & HADDICK, P.C. Dated: July 18, 2000 Charles E. Haddrek, Jr., Esqu(re Attorney I.D. No. 55666 Lori Adamcik Kariss, Esquire Attorney I.D. No. 66465 20 South 36"' Street Camp Hill, PA 17011 (717) 731-4800 Counsel for Defendants AN- ahz. IIIG13311)uffie v. Diamond, ee al. VERIFICATION I, Richard Diamond, hereby verify that the facts set forth in the Answer to Plaintiffs' Complaint wilh New Matter and New Matter Crossclaim Pursuant to Pa.R.C.P. 2252(d) are [rue and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject [o the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Dale: 716 C9O _- ; e,c{?( ?LtGoc / Richard Diamond HIC-1330uffie v. Diamond, cl aI. VERIFICATION I, Thomas Dixon Diamond, hereby verify that the facts set forth in the Answer to Plaintiffs' Complaint with New Matter and New Matter Crossclaim Pursuant to Pa.R.C.P. 2252(4) are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Dale. Thomas Dixon Dia fond HIC-133113uffie v. Diamond, et al. VERIFICATION I, -1homas Dixon Diamond, hereby verify that the facts set forth in the Answer to Plaintiffs' Complaint with New Matter and New Mailer Crossclaim Pursuant to Pa.R.C.P. 2252(4) are true and correct to the best of my knovvleclge, information and belief. I understand that (alse slatements herein are made subject to the penallies of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. FOUR MILE RUN DIAMOND LODGE, INC. Dale: ---I ` D 0 i Thomas Dixon Dia fond g /? CERTIFICATE OF SERVICE AND NOW, this (t' "(lay of )idy, 2000, I, Charles E. Fladdiek, Esquire, hereby certify that I did serve a true and correct copy of the foregoing doCUmenl upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER, P.C. 209 State Street Harrisburg, PA 17101 (Counsel for the Deaner Estate) James G. Nealon, II, Esquire Nealon and Gover 301 Market Street Harrisburg, PA 17101 (Counsel for James Smith) William A. Addams, Esquire ADDAMS & RUNDLE P.O. Box 208 28 South Pitt Street Carlisle, PA 17013-0208 (Counsel for Add'I Defendant., Beverly Watkins thl/b/a Another's Treasures) Waller Theodore Troth Box 295A Emporium, PA 15834 (Additional Defendant) John Andrew Statler, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Markel Street Harrisburg, PA 17108-0840 (Altorney for Brian Duffy) Michael J. McGovern, Esquire Yorklown Insurance Company P.O. Box 3709 3350 Whiteford Road York, PA 17402-0136 (Counsel for Gregory Singor) Charles [. I-laddick, Jr., µiire :, - ; ?_' .. <s ?.. `, w......., , . ? _ BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND, and JAMES BRIAN SMITH, Defendants V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO, 99.6833 Civil BEVERLY WATKINS, t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: All Parties And Their Counsel YOU ARE HEREBY NOTIFIED, that the New Matter set forth herein contains averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. Respectfully submitted, NEALON R GOVER James G. Nealon, III, Esquire Attorney I.D. 446457 David J. Freed, Esquire Attorney I.D. #76622 301 Market Street , 9"' Floor P.O. Box 865 Harrisburg, PA 17108.0865 717-232-9900 BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiffs v. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND, and JAMES BRIAN SMITH, Defendants V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 99-6833 Civil BEVERLY WATKINS, t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants JURY TRIAL DEMANDED ANSWER WITH NEW MATTER PURSUANT TO PA R.C.P. 2252(d) AND NOW, comes Defendant, James Brian Smith, by and through his attorneys, NEALON & GOVER, P.C., and files the following Answer: 1-5. Admitted, upon information and belief. 6. Admitted in part and denied in part. It is admitted that James Brian Smith (hereinafter "Smith") is an adult individual. His correct address is 7665 Logging Lane, Indian Head, MD 20646. 7. It is admitted that Brian T. Duffie suffered injuries on July 25, 1998 at Four Mile Run Diamond Lodge. After reasonable investigation, Smith is without knowledge .ic or information sufficient to form a belief as to the truth of the averments contained in the rest of this paragraph and proof is demanded at trial. 8-10. Admitted, upon information and belief. 11. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. 12. It is admitted that Smith knew that Brian and Rachel Duffie were present at Diamond Lodge on July 25, 1998. To the extent that this paragraph is directed at other Defendants, Smith cannot answer. 13-21. After reasonable investigation, Smith is without knowledge or information sufficient to form a belief as to the truth of the matters asserted and proof is demanded at trial. 22. Admitted in part and denied in part. It is admitted that Smith was with Richard Diamond when Diamond picked up the cannon from Walter Troth. It is denied that James Smith assisted in returning or transporting the cannon in any manner and proof is demanded at trial. 23. Admitted in part and denied in part. It is admitted that Smith was with Richard Diamond when Diamond picked up the cannon. It is denied that Smith was directly informed by Signor that Troth had put a lot of powder in the cannon and proof is demanded at trial. By way of further answer, Smith recalls a comment about the powder, but cannot recall the exact comment, to whom it was made or who made it. 2 24. Admitted in part and denied in part. It is specifically denied that Smith assisted Richard Diamond in transporting the cannon and proof is demanded at trial. It is admitted that Richard Diamond ignited the cannon with a fuse or wick. 25. Admitted. 26. It is admitted that shrapnel struck Brian Duffie in the left calf. After reasonable investigation, Smith is without knowledge or information sufficient to form a belief as to the remaining averments in this paragraph and proof is demanded at trial. 27. After reasonable investigation, Smith is without knowledge or information sufficient to form a belief as to the truth of the matter asserted and proof is demanded at trial. COUNTI BRIAN T. DUFFIE v. WALTER TROTH 28-39. These averments are directed at a Defendant other than Smith. Therefore, no answer is required. COUNT II RACHEL J. DUFFIE v. WALTER TROTH 40-44. These averments are directed at a Defendant other than Smith. Therefore, no answer is required. 3 COUNT III BRIAN T. DUFFIE v. RICHARD DIAMOND 45-79. These averments are directed at a Defendant other than Smith. Therefore, no answer is required. COUNT IV RACHEL J. DUFFIE v. RICHARD DIAMOND 80-84. These averments are directed at a Defendant other than Smith. Therefore, no answer is required. COUNT V BRIAN T. DUFFIE v. FOUR MILE RUN DIAMOND LODGE, INC. 85-105. These averments are directed at a Defendant other than Smith. Therefore, no answer is required. COUNT VI RACHEL J. DUFFIE v. FOUR MILE RUN DIAMOND LODGE, INC. 106-110. These averments are directed at a Defendant other than Smith. Therefore, no answer is required. COUNT VII BRIAN T. DUFFIE v. THOMAS DIXON DIAMOND 111-142. These averments are directed at a Defendant other than Smith. i? Therefore, no answer is required. 4 COUNT VIII RACHEL J. DUFFIE v. THOMAS DIXON DIAMOND 143-147. These averments are directed at a Defendant other than Smith. Therefore, no answer is required. COUNT IX BRIAN T. DUFFIE v. JAMES B. SMITH 148. This paragraph contains no factual averments. Therefore, no response is required. 149. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. 150. Admitted in part and denied in part. It is admitted that Srnith knew that the cannon was designed to be fired in order to create noise. It is denied that Smith had any knowledge of what powder was to be used in the cannon or how that powder was used to create an explosion and proof is demanded at trial. 151. Denied. It is denied that Smith knew what type of gunpowder was loaded in the cannon and proof is demanded at trial. 152. Denied. It is denied that Smith had any knowledge about the nature of the gunpowder loaded into the cannon by others, or the likelihood of the gunpowder to cause injuries and proof is demanded at trial. 5 153. After reasonable investigation, Smith is without knowledge or information sufficient to form a belief as to the truth of the matter asserted and proof is demanded at trial. 154. Denied. It is denied that Smith had any knowledge of the type of gunpowder used or the warnings supplied therewith and proof is demanded at trial. By way of further answer, Smith never inspected the gunpowder container nor read any warnings thereon. 155. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. 156. Admitted. By way of further answer. Smith did not inspect the gunpowder container in any manner. 157. After reasonable investigation, Smith is without knowledge or information sufficient to form a belief as to the truth of the matter asserted and proof is demanded at trial. 158. After reasonable investigation, Smith is without knowledge or information sufficient to form a belief as to the truth of the matter asserted and proof is demanded at trial. 159. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. 6 160. Denied. It is denied that Smith had any knowledge regarding Defendant Richard Diamond's knowledge, specialized or otherwise, about gunpowder, ammunition or explosives and proof is demanded at trial. 161. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. By way of further answer, see previous answers. 162. Denied. It is denied that Smith hand-carried the cannon to any location on July 25, 1998 and proof is demanded at trial. 163. Denied. It is denied that Smith positioned the cannon in proximity to spectators who were watching the fireworks display and proof is demanded at trial. 164-166. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. 167. Denied. It is denied that Smith positioned the cannon within 90 feet of the spectators and proof is demanded at trial. 168. Admitted in part and denied in part. It is admitted that Smith was assisting with the fireworks display and was aware that there were spectators watching. To the extent that this paragraph alleges any additional facts, the same are denied and proof is demanded at trial. 169. Denied. It is specifically denied that Smith positioned the cannon within about 118.3 feet of the cabin. 170. Admitted. 171-179. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. 7 COUNT X RACHEL J. DUFFIE v. JAMES BRIAN SMITH 180. This paragraph contains no factual averments. Therefore, no response is required. 181. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. 182. Admitted. 183-184. This paragraph states a conclusion of law to which no responsive pleading is required. To the extent that it alleges facts, the same are denied and proof is demanded at trial. NEW MATTER WITH CROSS CLAIM PURSUANT TO PA R C P 2252(d) AGAINST DEFENDANTS RICHARD DIAMOND WALTER THEODORE TROTH FOUR MILE RUN DIAMOND LODGE, INC. , THOMAS DIXON DIAMOND. GREGORY SIGNOR AND BEVERLY WATKINS T/D/B/A ANOTHER'S TREASURES 185. Paragraphs 1-184 of this Answer and New Matter are incorporated herein by reference. 186. Plaintiffs Complaint is incorporated herein by reference without admission thereto or adoption thereof. 187. No act or failure of Smith caused or contributed to the occurrence of the accident giving rise to this lawsuit or to the damages claimed by Plaintiffs. 188. In the event that any of the Defendants are liable to Plaintiffs, Defendants Richard Diamond, Walter Troth, Thomas Dixon Diamond and Four Mile Run Diamond Lodge, Inc., and Additional Defendants Gregory Signor and Beverly Watkins t/d/b/a Another's Treasures are either solely or exclusively liable to Plaintiffs on their cause of action, or liable over to Defendant James Brian Smith on Plaintiffs' cause of action, or 8 are jointly and severally liable with Defendant James Brian Smith on Plaintiffs' cause of action. 189. Plaintiffs' claims are barred by the doctrine of Assumption of Risk. 190. Plaintiffs' claims are either barred or limited by the application of contributory and/or comparative negligence. WHEREFORE, Defendant, James B. Smith, respectfully requests that the Complaint against him be dismissed. Respectfully submitted, NEALON & GOVER By: James G. Nealon, III, Esquire Attorney I.D. #46457 David J. Freed, Esquire Attorney ID # 76622 301 Market Street. 9th Floor P.O. Box 865 Harrisburg, PA 17108.0865 (717) 232-9900 9 VERIFICATION I, JAMES BRIAN SMITH, verify that the statements made in the foregoing Answer 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. i MES BRIAN SMITH CERTIFICATE OF SERVICE AND NOW, this =?v day of 2000, 1 hereby certify that I have served the foregoing ANSWER WITH NEW MATTER PURSUANT TO PA. R.C.P. 2252(d) on the following by depositing a true and correct copy of same in the United States mails, postage prepaid, addressed to: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER, P.C. 209 State Street Harrisburg, PA 17101 William A. Addams, Esquire ADDAMS & RUNDLE P.O. Box 208 28 South Pitt Street Carlisle. PA 17013-0208 Waller Theodore Troth Box 295A Emporium, PA 15834 .ohn Andrew Statler, Esquire GOLDBERG, KATZMAN & SHIPMAN, PC 320 East Market Street Harrisburg, PA 17108-0840 Michael J. McGovern, Esquire YORKTOWN INSURANCE COMPANY P.O. Box 3709 3350 Whiteford Road York. PA 17402-0136 Charles E. Haddick, Jr., Esquire MARSHALL, SMITH & HADDICK, PC 20 South 36th Street Camp Hill, PA 17011 James K. Thomas, 11, Esquire THOMAS, THOMAS & HAFER, P.C. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 David J. Freed, Esquire i 4L- F i ?c 5S j`t,,., F L, v rE '1t(L.. t r N 1_111 Q o ui,l 41 CA, rf '. D ?K dJ r \r T.t r ? sti ' M x ? ri Kr ? Y n t ? 1 . F ti il.`. ?:1 f: .f t. t 1 r n ?r r: V M r~ wwNN a O. cn r = 02 ? V 11 7 BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiff V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, Defendants V. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. 99-6633 Civil CIVIL ACTION - LAW BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants JURY TRIAL DEMANDED REPLY OF DEFENDANTS RICHARD DIAMOND, FOUR MILE RUN DIAMOND LODGE, AND THOMAS DIXON DIAMOND TO NEW .MATTER WITH CROSS CLAIM PURSUANT TO PA R.C.P. 2252(d) OF DEFENDANT JAMES BRIAN SMITH AND NO"', come the Defendants, Richard Diamond, Four Mile Run Diamond Lodge, and Thomas Dixon Diamond (hereinafter "Answering Defendants), by and through their counsel, Marshall & Hadcdick, P.C., by Charles E. Haclclick, Jr., Esquire, and responds to New Matter with Cross Claim Pursuant to PA R.C.P. 2252(4) of Defendant James Brian Smith as follows: 167. Denied. The averments contained in this paragraph are conclusions of law to which no affirmative response is required. to the extent an affirmative response may be required, said averments are specifically and unequivocally denied and strict proof thereof is 1 demanded at time of trial if deemed material. By way of further response, the averments are cleniecl since after reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in this paragraph ancl, therefore, cleny same and demand strict proof thereof at time of trial if deemed material. By way of yet further response, the averments contained in this paragraph are cleniecl in accordance with Pa. R.C.P. 1029(e). 188. Denied. The averments contained in this paragraph are conclusions of law to which no affirmative response is required. To the extent an affirmative response may be required, it is specifically and unequivocally denied that Answering Defendants are solely or exclusively liable to Plaintiffs, liable over to James Brian Smith, or jointly and severally liable with Defendant James Brian Smith on the causes of action asserted by Plaintiffs in their complaint. By way of further response, Answering Defendants hereby incorporate by reference their Answer with New Matter and New Matter Crossclaims pursuant to Pa. R.C.P. 2252(cp filed in response to Plaintiffs' Complaint as if fully set forth herein. The remaining averments in Paragraph 188 are acldressecl to defendants other than Answering Defendants; therefore, no response is required. 189. Acimitted. 190. Acimitted. WHEREFORE, Answering Defendants deny that Plaintiffs and/or co-defenclants are entitled to the relief claimed or any relief whatsoever and demands that judgment be entered in favor of Answering Defendants and against the Plaintiffs and against co- defenclants, and that Answering Defendants be awarded all allowable costs, fees, and interest. Respectfully submitted, MARSHALL & HADDICK, P.C. Date: September 5, 2000 Charles E. HNdic , Jr., Es uire Attorney I.D. No: 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorney, for Defendants VERIFICATION PURSUANT TO Pa.R.C.P. 1024(c) I, Charles E. Haddick, Jr., Esquire, state that I am the attorney for the party filing the foregoing document; that I make this affidavit as an attorney, because the party I represent lacks sufficient knowledge or information upon which to make a verification and/or because I have greater personal knowledge of the information and belief than that of the party for whom I make this affidavit; and/or because the party for whom I make this affidavit is outside the jurisdiction of the court, and his verification cannot be obtained within the time allowed for the filing of the foregoing document; and that I have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa.C.S. 4904, relating to unsworn falsification of authorities. Date: J Charles E. Haddick, Jr., squire Pa. I.D. No. 55666 M! CERTIFICATE OF SERVICE AND NOW, Ihis , / I y of September, 2000, I, Charles E. I-laclclick, Esquire, hereby certify that I clid serve a true and correct copy of the foregoing Response upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hiil, Pennsylvania, addressed as follows: By First-Class Mail: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER, P. C. 209 State Street Harrisburg, PA 17101 (Counsel for the Deaner Estate) James G. Nealon, II, Esquire Nealon and Gover 301 Market Street Harrisburg, PA 17101 (Counsel forlames Smith) William A. Addams, Esquire ADDAMS & RUNDLE P.O. Box 208 28 South Pitt Street Carlisle, PA 17013-0208 (Counsel (or Add? Defendant., Beverly 1,1471kfns IIHW7 Anodrer's Treasoms) Walter Theodore Troth Box 295A Emporium, PA 15834 (Additional Defendant) John Andrew Statler, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Market Street Harrisburg, PA 17108-0840 (Attorne)y for Brian Duftj,) Michael J. McGovern, Esquire Yorktown Insurance Company P.O. Box 3709 3350 Whiteford Road York, PA 17402-0136 (Counsel for Gregory Singor) Charles K-ickfick, j . Esgc ire 4 John A. SWller, Esquire. A homey I. D. No. 43812 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Markel Street 1W. Box 1268 lia risburg, PA 17108-1268 Telephone: (717) 2344161 BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 99-6833 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT.IAMES BRIAN SIIIITII AND NOW, come the Plaintiffs, Brian T. Duffle and Rachel J. Duffle, by their attorneys, Goldberg, Katzman and Shipman, P.C., who file the following Reply to New Matter of Defendant James Brian Smith: 185. Plaintiffs incorporate by reference each and every averment contained in their Complaint. 186. No response is required. 187. Denied. It is specifically denied that no act or failure of James Brian Smith caused or contributed to the occurrence of the accident giving rise to this lawsuit or to the damages claimed by the Plaintiff's. 188. The averments in this paragraph constitute conclusions of law to which no response is required. In the event a response is deemed to be required, it is averred that Defendant James Brian Smith and/or the other Defendants are solely and/orjointly liable to the Plaintiffs in this case. 189. Denied. It is specifically denied that the Plaintiffs' claims are barred by the Doctrine of Assumption of Risk. 190. Denied. It is specifically denied that the Plaintiffs' claims are either barred or limited by the application of contributory and/or comparative negligence. 2 WHEREFORE, Plaintiffs Brian T. Duffle and Rachel J. Duf£e respectfully request that the New Matter filed by Defendant James Brian Smith be dismissed and thatjudgment be entered in favor of the Plainti0's and against all other parties. Respectfully submitted, GOLI)BERG, KATZL%lAN & SHIPMAN, P.C. By: ? V 21 - John A. Statler, Esquire Attorney 1. D. No. 438 12 320 Market Street 11. O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiffs Brian T. Du(Tie and Rachel J. I)ulfie DATE: / /// le O 50980.1 3 VERIFICATION 1, BRIAN -F. DUFFIE, hereby acknowledge that I am a Plaintiff in this action; that I have read the foregoing document; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities, Fi7C? BRIAN T. DUFFIE DATE: 4li iuc VERIFICATION 1, RACHEL I DUFFIE, hereby acknowledge that I am a Plaintiff in this action; that I have read the foregoing document; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. RACI(ELJ. DUFFIE ?DATE: CERTIFICATE OF SERVICE 1 II EREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at 11n Harrisburg, Pennsylvania, with first-class postage prepaid on the day of 2000, addressed to the following: Charles E. Haddick, Jr., Esquire Marshall, Smith & lladdick, P.C. 20 South 36 s Strect Camp Hill, PA 17011 James G. Nealon, III, Esquire Nealon and Gover 301 Market Street Harrisburg, PA 17101 William A. Addams, Esquire Addams & Rundle 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 Mr. Walter Theodore Troth Box 295-A Emporium, PA 15834 James R. Ronca, Esquire Schmidt, Ronca & Kramer, P.C. 209 State Street Harrisburg, PA 17110 Michael J. McGovern, Esquire Yorktown Insurance Company P.O. Box 3709 3350 Whiteford Road York, PA 17402-0136 GOLDBERG, KATZMAN & SHIPMAN, P.C. John A. $ atler,l squire By Attorney I. D. No. 43S 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARGARET M. DEANER, Individually and as the Executrix of the Estate of WILLIAM L. DEANER, NO. 99-6833 Civil Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., CIVIL ACTION - LAW THOMAS DIXON DIAMOND, and JAMES BRIAN SMITH, Defendants V. BEVERLY WATKINS, t/d/b/a ANOTHER'S TREASURES and JURY TRIAL DEMANDED GREGORY SIGNOR, Additional Defendants ADDITIONAL DEFENDANT GREGORY SIGNOR'S REPLY TO DEFENDANT JAMES BRIAN SMITH'S NEW MATTER PURSUANT TO PA.R.C.P.2252(d) AND NOW comes Additional Defendant Gregory Signor, by and through his attorney Michael J. McGovern, and Answers as follows: 319. No response required on the pan of Answering Defendant herein. 320. No response required on the part of Answering Defendant herein. 321 No response required on the part of Answering Defendant herein. 322. Denied. Answering Defendant herein is advised by counsel and therefore avers that the averments in paragraph 322 of Defendant James Brian Smith's New Matter are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is required. 'fo the extent a responsive pleading may be required on the part of Answering Defendant, the aforesaid averments arc specifically denied. 323. No response required on the part of Answering Defendant herein. 324. No response required on the part of Answering Defendant herein. WHEREFORE, Additional Defendant Gregory Signor requests Your Honorable Court to enter Judgment in his favor together with the costs of this action and such other relief as the court deems just and proper. Respectfully Submitted, i Date: /0 of U ?/ %!? l K ichae? J. cGovern, Esquire Suprem> &urt I.D. No. 52802 Yorktowne Insurance Company P.O. Box 3709 3350 Whiteford Road York PA 17402-0136 (717) 757-0000 Attorney for Defendants VERIFICATION 1, Gregory Signor, verity that the averments of fact contained in the attached Reply to Defendant's New Matter are true and eorrect to the best of my knowledge, information and belief. and are made subject to the penalties of 18 Pa. Con. Stat. Ann §4904 relating to unsworn falsification to authorities. Date: 'O /17 0 Gm o-'O C / regttn?ig or Y?@?IC!l!' . ... ,. _ .__ ...._?henaLiL'1f'?!'L:SwFIW.fKL.Y}G^S1:+AT[:? :"_C.?.?.N]^...? _, w?? CE..RTIFICATI., OR SERVICE I, ht'istie L. Staub. hereby certik that a true and correct cope of the Iiiregoing Additional Defendant, Gregory Signor's Rcply t() James Brian Smith's New Matter pursuant to Pa. R.C.P. 2252(4) was served this date upon the parties listed below at the addresses shotsn below by United States Certified Mail postage prepaid. James R. Ronca, Esquire Schmidt, Ronca & Kramer, P.C. 209 State Street Harrisburg, PA 17101 John A. Statler, Esquire Goldberg, Katzman & Shipman. P.C 320 E. Markel Street P.O. Box 1265 Harrisburg, PA 17108-0840 Charles E. I laddick, In. Esquire Nlarshall R Iladdick, P.C. 20 South 36°i Street Cantp Bill. PA 17011 James K. Thomas 11. Esquire Thomas, Thomas K I lafcr 305 North Front Strcct, 6"' Floor P.O. 130 999 Harrisburg, PA 17 105 K?ristic L. Sumh?,! ?1 James G. Nealon III, Esquire Ncalon LQ Cioter 301 Market Street Ifarrishur=,PA 17101 William A. Addams. lisquire Addants fi Rundle 28 South Pitt Strcct Carlisle. PA 17013 Walter "I'hcoclore Troth RD I Box 295A lanporium. PA 15S')4 I . IN TILE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRIAN T. DUFFIE and RACHEL.J. DUFFIE, NO. 99-6833 Civil Plaintiffs V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., CIVIL ACTION - LAW THOMAS DIXON DIAMOND, and JAMES BRIAN SMITH, Defendants V. BEVERLY WATKINS, t/d/b/a ANOTHER'S TREASURES and JURY TRIAL DEi\IANDED GREGORY SIGNOR, Additional Defendants ADDITIONAL DEFENDANT GREGORY SIGNOR'S REPLY TO DEFENDANT JANIES BRIAN SAIITIPS NEW MATTER PURSUANT TO PA.R.C.P.22i2(d) AND NOW comes Additional Defendant Gregory Signor, by and through his attorney Michael J. McGovern, and Answers as follows: 185. No response required on the part of Answering Defendant. 186. No response required on the part of Answering Defendant. 187. No response required on the part of Answering Defendant. I SS. Denied. Answering Defendant herein is advised by counsel and therefore avers that the averments in paragraph 185 of Defendant James Brian Smith's New Matter are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading may be required on the pan of Answering Defendant, the aforesaid averments arc specifically denied. I S9. No response required on the part of Answering Defendant. 190. No response required on the part of Answering Defendant. WHEREFORE, Additional Defendant Gregory Signor requests Your Honorable Court to enter Judgment in his favor together Milt the costs of this action and such other relief as the court deems just and proper. Date: i' C ) Respectfully Submitted. Michael J. McGovern, Esquire Supreme Court I.D. No. 52S02 Yorktowne Insurance Compam P.O. Box 3709 ,350 \1 hiteford Road York PA 17402.0136 (717) 757-0000 Attorney for Defendants I VERIFICATION 1. Cregory Signor. verify that the averments of fact contained in the attached Reply to DclcndanPs New IN/latter are true and correct to the best of in%, knott•ledec, information and belief, and are made subject to the penalties of 18 Pa. Con. Stat. Ann §4904 relating to unsworn falsification to authorities. Date: %U a- F/d f 1 ---] •Grcgo ?• S' nor I CERTHF KATE: OF SERVICE 1. Kristie L. Staub, hereby certilN' that a true and correct copy of the foregoing Additional Defendant. Gregory Signor's Reply to James Brian Smith's New NJatter pursuant to Pa. R.C.P. 2252(d) tvas served this date upon the parties listed below at the addresses shown below by United States Certified Nlail postage prepaid. Date: James R. Ronca. Esquire Schmidt. Ronca & Kramer. I'.C. 209 State Street Flarrisbum. PA 17101 John A. Statler. Esquire Goldber_,. Katzman &. Shipman. RC 320 E. Market Strcet P.O. Box 1365 l larrisbura. PA 17108-0840 Charles E. Hatldick. Jr.. Esquire Marshall & Haddick. P.C. 20 South 36°i Street Camp Hill. PA 17011 Jaynes K. Thomas 11. Esquire Thomas. Thomas & Hafer 30= North Front Street. 6°i Floor P.O. Box 999 Harrisburg. PA 17108 I By:t `, t I C,1?t.,?Lc 1- krisuc L. Staub r, James G. Nealon 111. E=squire Nealon &C Gover 301 Market Street Flarrisbur_-, PA 17101 William A. Addams. Esquire Addams & Rundle IS South Pitt Street Carlisle. PA 17013 Walter Theodore Troth RD I Box 293A Emporium, PA 13531 its BRIAN T. DUFFIE and RACHEL J DUFFIE, Plaintiffs vs. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND and JAMES BRIAN SMITH, Defendants BEVERLY WATKINS Ud/b/a ANOTHER'S TREASURES and GREGORY SIGNOR, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-6833 JURY TRIAL DEMANDED REPLY OF DEFENDANT THOMAS DIXON DIAMOND TO NEW MATTER WITH CROSSCLAIM PURSUANT TO PA.R.C.P. 2252(d) AND NOW, Defendant Thomas Dixon Diamond ("Answering Defendant") by his attorneys, Thomas, Thomas & Hafer, LLP, and files his Answer to the New Matter Pursuant to Pa.R.C.P. 2252(d) of Defendant James Brian Smith as follows: 185-188. Denied. The averments of these paragraphs are denied as legal conclusions and pursuant to Pa.R.C.P. 1029(e). 189. Admitted. 190. Admitted. Wherefore, Defendant Thomas Dixon Diamond demands judgment in his favor and against Defendant James Brian Smith. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP by:C::- \? -b James K. Thomas, II, Esquire I.D. No. 15613 Michele J. Thorp, Esquire I.D. No. 71117 305 North Front Street, 6'h Floor POB 999 Harrisburg, PA 17108-0999 CERTIFICATE OF SERVICE AND NOW, this z day of tio? Em3??2000, I, Michele J. Thorp, of the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Charles E. Haddick, Jr., Esq. Alan M. Robinson, Esq. Marshall & Haddick, P.C. 20S.36 1h Street Camp Hill, PA 17011 James G. Nealon, III, Esq. Nealon & Gover 301 Market Street, 9m Floor POB 865 Harrisburg, PA 17108-0865 James R. Ronca, Esq. Schmidt & Ronca, P.C. 209 State Street Harrisburg, PA 17101 John A. Statler, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street POB 1268 Harrisburg, PA 17108-1268 John M. Noble, Esq. Meyer, Darragh, Buckler, Bebenek & Eck, PLLC 114 South Main Street Greensburg, PA 15601-3102 Michael J. McGovern, Esq. Yorktowne Insurance Company P.O. Box 3709 3350 Whiteford Road York, PA 17402-0136 Gregory Signor 336 East Allegheny Avenue Emporium, PA 15834 William A. Addams, Esq. Addams & Rundle P.O. Box 208 28 South Pitt Street Carlisle, PA 17013 .. J tJ [i _I 4 BRIAN T. DUFFIE and RACHEL J. DUFFIE, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. 99-6833 Civil CIVIL ACTION -LAW Defendants V. BEVERLY WATKINS t/d/b/a ANOTHER'S TREASURES and GREGORY SIGNOR Additional Defendants JURY TRIAL DEMANDED V. RICHARD DIAMOND, WALTER THEODORE TROTH, FOUR MILE RUN DIAMOND LODGE, INC., THOMAS DIXON DIAMOND JAMES BRIAN SMITH, PRAECIPETO SETTLE DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned action settled, discontinued and ended with prejudice. Respectfully submitted, Date: GOLDBERG, KATZMAN & SHIPMAN, P.C. John An rew Slatl quire 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 / a CERTIFICATE OF SERVICE AND NOW, this-5day of 2002, I, Charles E. Fladdick, Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: William A. Addams, Esquire ADDAMS & RUNDLE P.O. Box 208 28 South Pitt Street Carlisle, PA 17013-0208 (Counsel forAdd'I Defendant., Beverly Watkins t/d/b/a Another's- Treasures) James G. Nealon, II, Esquire Nealon and Gover 301 Market Street Harrisburg, PA 17101 (Counsel for James Smith) Walter Theodore Troth 324 West 4°i Street, Apt. 202 Emporium, PA 15834 (Additional Defendant) John Andrew Statler, Esquire Goldberg, Katzman & Shipman 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (Attorney for Brian Duffy) Michael J. McGovern, Esquire Yorktown Insurance Company P.O. Box 3709 3350 Whiteford Road York, PA 17402.0136 (Counsel for Gregory Singod E. Haddick, Jr., Esquire M:. -, • C. ; C L IJ .LI ? f I l t 1 i 1