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HomeMy WebLinkAbout07-4985r W. Scott Henning, Esquire I.D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax : (717) 233-3029 E-mail: Henning@HHRLaw.com THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - '4885 (.:ivi t lean CIVIL ACTION -LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mks adelante en las siguientes paginas, debe tomar accibn dentro de los prbximos veinte (20) dias despues de la notificacic5n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 HANDLER, HENNING & ROSENBERG, LLP By: COMPLAINT AND NOW comes the Plaintiff, Thomas Wheeler, Administrator of the Estate of F:1WP DirectorieslTFC\ComplaintslDram ShoplWheeler-Wrongful Death.wpd THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW Annette Wheeler, by and through his attorneys, HANDLER, HENNING & ROSENBERG, LLP, by W. Scott Henning, Esq., and makes the within Complaint against the Defendants, Kris Gamble, American Legion Post 751, and Enola Sportsmen's Association, and avers as follows: 1. Plaintiff, Thomas Wheeler, is an adult individual currently residing at 8 Black Pine Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Annette Wheeler, (hereinafter "Plaintiffs Decedent") formerly resided at 8 Black Pine Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. t 3. Defendant, Kris Gamble, is an adult individual currently residing at 105 Hollowview Drive, Enola, Cumberland County, Pennsylvania 17025. 4. Defendant, American Legion Post 751, anon-profit entity, organized and existing under the laws of Pennsylvania and having its registered address at 295 Shady Lane, Enola, Cumberland County, Pennsylvania 17025. 5. Defendant, Enola Sportsmen's Association, a non-profit corporation, organized and existing under the laws of Pennsylvania and having a principle place of business located at 25 N. Enola Drive, Enola, Cumberland County, Pennsylvania 17025. 6. At all times material hereto, Defendants American Legion and Enola Sportsmen's Association acted or failed to act through its agents, servants and/or employees, acting for Defendant's benefit, under Defendant's control, and within the course and scope of their authority and/or employment. 7. At all times material hereto, DefendantAmericanlegion owned and operated a bar and restaurant located at 295 Shady Lane, Enola, Pennsylvania 17025. 8. At all times material hereto, Defendant Enola Sportsmen's Association owned and operated a bar and restaurant located at 290 Pine Hill Road Extension, Enola, Pennsylvania 17025. 9. At all times material hereto, Defendant American Legion, was a licensee of the Pennsylvania Liquor Control Board, engaged in the sale and service of alcoholic beverages to patrons of their facility. 10. At all times material hereto, Defendant Enola Sportsmen's Association was a licensee of the Pennsylvania Liquor Control Board, engaged in the sale and service of alcoholic beverages to patrons of their facility. 2 11. On or about May 13, 2007, Defendant Gamble entered and was served and consumed alcoholic beverages at Defendant American Legion's establishment. After consuming alcoholic beverages at aforementioned location, Defendant Gamble traveled to Defendant Enola Sportsmen's Association and consumed more alcoholic beverages. 12. While Defendant Gamble was on Defendant American Legion's premises, Defendant American Legion wrongfully and unlawfully sold or furnished liquor and/or brewed beverages to Defendant Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. Stat. § 4-493 (1). 13. While Defendant Gamble was on Defendant Enola Sportsmen's premises, Defendant Enola Sportsmen's Association wrongfully and unlawfully sold or furnished liquor and/or brewed beverages to Defendant Gamble when he was visibly intoxicated, in violation of the Pennsylvania Liquor Control Code, 47 Pa. Stat. § 4-493(1). 14. After consuming alcohol on Defendant Enola Sportsmen's Association's premises, Defendant Gamble left the premises together with Plaintiff's Decedent. Both individuals boarded Defendant Gamble's motorcycle. A short distance from Defendant Enola's premises, Defendant Gamble's motorcycle struck an embankment along Orrs Bridge Road near the intersection with Kile Road. Plaintiff's Decedent suffered fatal injuries. 15. The aforementioned incident occurred directly after Defendant Gamble left Defendant Enola Sportsmen's Association's premises and while he was still intoxicated as a result of the alcoholic beverages he consumed on both Defendant Enola Sportsmen's Associations' and Defendant American Legion's premises. 3 16. The aforementioned incident occurred because of Defendant Gamble's impairment due to intoxication and was directly and proximately caused by both Defendant American Legion's and Defendant Enola Sportsmen's Association's negligence in selling alcoholic beverages to Defendant Gamble. 17. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff's Decedent, Annette Wheeler, were caused directly and proximately by the negligence of Defendants Enola Sportsmen's Association, American Legion, and Kris Gamble, by their agents, servants, workmen or employees, acting in the scope of their authority, generally and more specifically as set forth below. COUNT I -WRONGFUL DEATH/NEGLIGENCE Thomas Wheeler, as Administrator of the Estate of Annette Wheeler and Thomas Wheeler in his own right v. Kris Gamble 18. Paragraphs 1 through 17 are incorporated herein as if set forth at length. 19. Plaintiff, Thomas Wheeler, is the duly appointed, qualified, and currently acting Administrator of the Estate of Annette Wheeler. 20. This civil action is brought pursuant to the Pennsylvania Wrongful Death Act, 42 Pa. C.S.A. § 8301 et seq. and Rule 2201 of the Pennsylvania Rules of Civil Procedure. 21. Plaintiff s Decedent, Annette Wheeler, did not bring any other action during her lifetime and no other action for the death of said Decedent has been commenced against Defendant herein or any other person besides the aforementioned. 22. This civil action is being brought to recover, on behalf of all statutory beneficiaries of the Plaintiff's Decedent, all damages legally available under the Wrongful Death Act. 4 23. The occurrence of the aforesaid incident and the fatal injuries resulting therefrom were caused directly and proximately by the negligence of the Defendant, Kris Gamble, generally and more specifically as set forth below: (a) In failing to be reasonably vigilant to observe the roadway. (b) In driving his vehicle with a careless disregard for the safety of others, in violation of 75 Pa.C.S.A. § 3714; (c) In failing to be continuously alert, in failing to perceive any warning of danger that was reasonably likely to exist; (d) In failing to operate said vehicle under proper and adequate control in order that he could avoid causing the fatal accident; (e) In driving Defendant's vehicle in willful and/or wanton disregard for the safety of persons or property, in violation of 75 Pa.C.S.A. §3736; (f) In driving in a careless manner, in violation of 75 Pa. C.S.A. § 3714; (g) In driving while intoxicated, in violation of 75 Pa. C.S.A. § 3802; (h) In driving Defendant's motor vehicle at a time when he was unfit to do so, due to his consumption of alcohol and/or drugs; and (I) In otherwise driving Defendant's vehicle upon a roadway in a manner endangering persons and property and in a manner with careless disregard to the rights and safety of others in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 24. As a direct and proximate result of the negligence of the Defendant, Kris 5 Gamble, Plaintiff s Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to head trauma, which resulted in her death on May 21, 2007. 25. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedent's valuable support, comfort, society, counsel, services and companionship, and a claim is made therefor. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, Kris Gamble, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT II -SURVIVAL ACTION/NEGLIGENCE Thomas Wheeler, as Administrator of the Estate of Annette Wheeler and Thomas Wheeler in his own right v. Kris Gamble 26. Paragraphs 1 through 25 are incorporated herein as if fully set forth below. 27. Plaintiff, Thomas Wheeler, as the duly appointed, and currently acting Administrator of the Estate of Annette Wheeler, Deceased, incorporate Paragraphs 1 through 25 herein as if set forth at length. 28. In his capacity of personal representative of the Estate of Annette Wheeler, Plaintiff, Thomas Wheeler, brings this action pursuant to the Pennsylvania Act, 42 Pa. C.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373, et seq. 29. The occurrence of the aforesaid incident and the resultant fatal injuries to Plaintiff's Decedent were caused directly and proximately by the negligence of Kris Gamble, generally and more specifically set forth below: 6 (a) In failing to be reasonably vigilant to observe the roadway. (b) In driving his vehicle with a careless disregard for the safety of others, in violation of 75 Pa.C.S.A. § 3714; (c) In failing to be continuously alert, in failing to perceive any warning of danger that was reasonably likely to exist; (d) In failing to operate said vehicle under proper and adequate control in order that he could avoid causing the fatal accident; (e) In driving Defendant's vehicle in willful and/or wanton disregard for the safety of persons or property, in violation of 75 Pa.C.S.A. §3736; (f) In driving in a careless manner, in violation of 75 Pa. C.S.A. § 3714; (g) In driving while intoxicated, in violation of 75 Pa. C.S.A. § 3802; (h) In driving Defendant's motor vehicle at a time when he was unfit to do so, due to his consumption of alcohol and/or drugs; and (I) In otherwise driving Defendant's vehicle upon a roadway in a manner endangering persons and property and in a manner with careless disregard to the rights and safety of others in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 30. As a direct and proximate result of the negligence of the Defendant, Kris Gamble, Plaintiff s Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to head trauma, which resulted in her death on May 21, 2007. 31. As a result of the negligence and carelessness of the Defendant, Kris Gamble, Plaintiff's Decedent, Annette Wheeler, suffered physical and mental pain and anguish and, thus, a claim is made therefore. 32. As a result of the negligence of Defendant, Kris Gamble, Plaintiff's Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a claim is made for lost future wages and/or retirement benefits. 33. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relative has also been deprived of Annette Wheeler's comfort, counsel, companionship and society, and a claim is made therefore. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, Kris Gamble in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT III -WRONGFUL DEATH/NEGLIGENCE Thomas Wheeler, as Administrator of the Estate of Annette Wheeler and Thomas Wheeler in his own right v. American Legion Post 751 34. Paragraphs 1-33 are incorporated herein as if fully set forth below. 35. The occurrence of the aforementioned incident and the resulting fatal injuries to Plaintiff's Decedent, Annette Wheeler, were caused directly and proximately by the negligence of Defendant American Legion, by its agents, servants, workmen or employees, acting in the scope of their authority, generally and more specifically as set forth below: (a) In negligently and carelessly selling or furnishing liquor and/or brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493(1); 8 (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated; (c) In failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d) In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or furnishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants and/or employees; (e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when Defendant knew or 9 should have known that Kris Gamble was visibly intoxicated. 36. As a direct and proximate result of the Defendant's negligence, Plaintiff's Decedent has sustained fatal injuries including, but not limited to head trauma, which caused her death on May 21, 2007. 37. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedent's valuable support, comfort, society, counsel, services and companionship, and a claim is made therefor. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased and Thomas Wheeler, in his own right, seeks damages from the Defendant American Legion Post 751, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interests and costs. COUNT IV -SURVIVAL ACTION/NEGLIGENCE Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler, in his own right v. American Legion Post 751 38. Paragraphs 1-37 are incorporated here in as if fully set forth below. 39. Plaintiff, Thomas Wheeler, as the duly appointed, and currently acting Administrator of the Estate of Annette Wheeler, Deceased, incorporates Paragraphs 1 through 37 herein as if set for at length. 40. In his capacity of personal representative of the Estate of Annette 10 Wheeler, Plaintiff, Thomas Wheeler, brings this action pursuant to the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373, et seq. 41. The occurrence of the aforementioned collision and the resultant injuries to Plaintiff's Decedent, Annette Wheeler, were caused directly and proximately by the negligence and/or carelessness of Defendant, American Legion, by its agents, servants, workmen or employees, acting in the scope of their authority generally and more specifically as set forth below: (a) In negligently and carelessly selling or furnishing liquor and/or brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493(1); (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated; (c) In failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d) In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or furnishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known 11 intemperate habits by liquor licensees, their agents, servants and/or employees; (e) In failing to be responsible via respondeat superior and/or vicarious liability for acts and omissions of its employees, agents, servants, independent contractors, shareholders, partners and/or property owners; and (f) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when Defendant knew or should have known that Kris Gamble was visibly intoxicated. 42. As a direct and proximate result of the negligence of Defendant, American Legion, Plaintiff's Decedent, Annette Wheeler, sustained fatal injuries including, but not limited too head trauma, which resulted in her death on May 21, 2007. 43. As a direct and proximate result of the negligence of Defendant, American Legion, Plaintiff's Decedent, suffered physical and mental pain and anguish and, thus a claim is made therefore. 44. As a result of the negligence of Defendant, American Legion, Plaintiffs Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a claim is a made for lost future wages and/or retirement benefits. 12 45. By reason of the death of Plaintiffs Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedent's valuable support, comfort, society, counsel, services and companionship, and a claim is made therefor. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, American Legion Post 751, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT V -WRONGFUL DEATH/NEGLIGENCE Thomas Wheeler, as Administrator of the Estate of Annette Wheeler and Thomas Wheeler, in his own right v. Enola Sportsmen's Association 46. Paragraphs 1-45 are incorporated herein as if set forth at length. 47. The occurrence of the aforementioned incident and the resulting death to Plaintiff's Decedent, Annette Wheeler, were caused directly and proximately by the negligence of Defendant, Enola Sportsmen's Association, by its agents, servants, workmen or employees, acting in the scope of their employment and/or their authority, generally and more specifically as set forth below: (a) In negligently and carelessly selling or furnishing liquor and/or brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493(1); 13 (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated; (c) In failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d) In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or furnishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants and/or employees; (e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when Defendant knew or should have known that Kris Gamble was visibly intoxicated. 48. As a direct and proximate result of the Defendant's, Enola Sportsmen's Association, negligence Plaintiff's Decedent, Annette Wheeler, suffered fatal injuries, including but not limited to head trauma, which resulted in her death on May 21, 2007. 14 49. By reason of the death of Plaintiffs Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedent's valuable support, comfort, society, counsel, services and companionship, and a claim is made therefor. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, Enola Sportsmen's Association, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT IV -SURVIVAL ACTION/NEGLIGENCE Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler, in his own right v. Enola Sportsmen's Association 50. Paragraphs 1-49 are incorporated here in as if fully set forth below. 51. Plaintiff, Thomas Wheeler, as the duly appointed, and currently acting Administrator of the Estate of Annette Wheeler, Deceased, incorporates Paragraphs 1 through 49 herein as if set for at length. 52. In his capacity of personal representative of the Estate of Annette Wheeler, Plaintiff, Thomas Wheeler, brings this action pursuant to the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373, et seq. 53. The occurrence of the aforementioned collision and the resultant injuries to Plaintiff's Decedent, Annette Wheeler, were caused directly and proximately by the negligence and/or carelessness of Defendant, Enola Sportsmen's Association, by its 15 agents, servants, workmen or employees, acting in the scope of their authority generally and more specifically as set forth below: (a) In negligently and carelessly selling or furnishing liquor and/or brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493(1); (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated; (c) In failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d) In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or furnishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants and/or employees; 16 (e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when Defendant knew or should have known that Kris Gamble was visibly intoxicated. 54. As a direct and proximate result of the negligence of Defendant, Enola Sportsmen's Association, Plaintiff's Decedent, Annette Wheeler, sustained fatal injuries including, but not limited too head trauma, which resulted in her death on May 21, 2007. 55. As a direct and proximate result of the negligence of Defendant, Enola Sportsmen's Association, Plaintiff's Decedent, Annette Wheeler, suffered physical and mental pain and anguish and, thus a claim is made therefore. 56. As a result of the negligence of Defendant, Enola Sportsmen's Association, Plaintiff's Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a claim is a made for lost future wages and/or retirement benefits. 57. By reason of the death of Plaintiffs Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society, and a claim is made therefore. 17 WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, Enola Sportsmen's Association, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT VII -PUNITIVE DAMAGES Thomas Wheeler as Administrator of the Estate of Annette Wheeler, Deceased, and Thomas Wheeler, in his own right v. Kris Gamble 58. Paragraphs 1-57 are incorporated herein as if set forth at length. 59. The liability-producing conduct of Defendant, Kris Gamble, as set forth herein, was outrageous, done in a willful and wanton fashion, with a conscious indifference and/or reckless disregard for the safety of the public generally and was malicious and/or intentional, and so egregious as to be beyond the bounds of decency in a civilized society, and was in direct violation of specific ordinances, laws, statutes and regulations regulating the consumption of alcoholic beverages in the Commonwealth of Pennsylvania. 60. The very nature, quantity and type of violations of statutory provisions, which resulted in the severe injury to Plaintiff's Decedent, Annette Wheeler, evidences outrageous, malicious and intolerable conduct warranting the imposition of exemplary and/or punitive damages. 61. As a direct and proximate result of the grossly negligent and outrageous acts of Defendant, Kris Gamble, Plaintiff's Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to, head trauma, which resulted in her death on May 21, 2007. Plaintiff's Decedent suffered physical and mental pain and anguish from the moments commencing with the happening of the incident until her premature demise on May 21, 2007. 18 i 62. As a direct and proximate result of the grossly negligent and outrageous acts of Defendant, Kris Gamble, Plaintiffs Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a claim is made for lost future wages and/or retirement benefits. 63. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiffs Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society. WHEREFORE, Plaintiff, Thomas Wheeler, as Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seek damages, including punitive damages, from Defendant, Kris Gamble, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial by jury. COUNT VIII -PUNITIVE DAMAGES Thomas Wheeler as Administrator of the Estate of Annette Wheeler, Deceased, and Thomas Wheeler, in his own right v. American Legion No. 751 t 64. Paragraphs 1-63 are incorporated herein as if set forth at length. 65. The liability-producing conduct of Defendant, American Legion No. 751, by and through its agents, servants and/or employees, as set forth herein, was outrageous, done in a willful and wanton fashion, with a conscious indifference and/or reckless disregard for the safety of the public generally, the patrons American Legion No. 751, and Annette Wheeler specifically, and was malicious and/or intentional, and so egregious as to be beyond the bounds of decency in a civilized society, and was in direct violation of specific ordinances, laws, statutes and regulations regulating the sale of alcoholic beverages in the Commonwealth of Pennsylvania. 66. The very nature, quantity and type of violations of statutory provisions, which resulted in the severe injury to Plaintiff's Decedent, Annette Wheeler, evidences 19 outrageous, malicious and intolerable conduct warranting the imposition of exemplary and/or punitive damages. 67. As a direct and proximate result of the negligent and outrageous acts of Defendant, American Legion No. 751, Plaintiff's Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to, head trauma, which resulted in her death on May 21, 2007. Plaintiff's Decedent suffered physical and mental pain and anguish from the moments commencing with the happening of the incident until her premature demise on May 21, 2007. 68. As a direct and proximate result of the negligent and outrageous acts of Defendant, American Legion No. 751, Plaintiff s Decedent, Annette W heeler, is now unable to continue to be a productive member of the work force and thus a claim is made for lost future wages and/or retirement benefits. 69. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiffs Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society. WHEREFORE, Plaintiff, Thomas Wheeler, asAdministratorofthe Estate ofAnnette Wheeler, deceased, and Thomas Wheeler, in his own right, seek damages, including punitive damages, from Defendant, American Legion Post 751, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial by jury. COUNT IX -PUNITIVE DAMAGES Thomas Wheeler as Administrator of the Estate of Annette Wheeler, Deceased, and Thomas Wheeler, in his own right v. Enola Sportsmen's Association 70. Paragraphs 1-69 are incorporated herein as if set forth at length. 71. The liability-producing conduct of Defendant, Enola Sportsmen's Association, by and through its agents, servants and/or employees, asset forth herein, was outrageous, 20 a done in a willful and wanton fashion, with a conscious indifference and/or reckless disregard for the safety of the public generally, the patrons Enola Sportsmen's Association, and Annette Wheeler specifically, and was malicious and/or intentional, and so egregious as to be beyond the bounds of decency in a civilized society, and was indirect violation of specific ordinances, laws, statutes and regulations regulating the sale of alcoholic beverages in the Commonwealth of Pennsylvania. 72. The very nature, quantity and type of violations of statutory provisions, which resulted in the severe injury to Plaintiff's Decedent, Annette Wheeler, evidences outrageous, malicious and intolerable conduct warranting the imposition of exemplary and/or punitive damages. 73. As a direct and proximate result of the negligent and outrageous acts of Defendant, Enola Sportsmen's Association, Plaintiff's Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to, head trauma, which resulted in her death on May 31, 2007. Plaintiffs Decedent suffered physical and mental pain and anguish from the moments commencing with the happening of the incident until her premature demise on May 21, 2007. 74. As a direct and proximate result of the negligent and outrageous acts of Defendant, Enola Sportsmen's Association, Plaintiff's Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a claim is made for lost future wages and/or retirement benefits. 75. By reason of the death of Plaintiffs Decedent, Annette Wheeler, Plaintiffs Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society. WHEREFORE, Plaintiff, Thomas Wheeler, asAdministratorofthe EstateofAnnette Wheeler, deceased, and Thomas Wheeler, in his own right, seek damages, including 21 J punitive damages, from Defendant, Enola Sportsmen's Association, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial by jury. ~ ~~ ,~~ 7 Date: -" ~J / Respectfully submitted, HANDLER, HEN~G & ROSENBERG, LLP By: ~ W. Scott en i g, squ I.D. # 3229 1300 Linglest n oa Harrisburg, PA 1 11 (717) 238-2000 Attorney for Plaintiff 22 A 7 VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Thomas Wheeler Date: P~^~-i ~~ a- csa 7 ~i ~` oho ~ g ~ ~: _~ o -~ oO ° o O t ~, ---- ~ -~ ~ _-: ' f,,,.3 ~,~ r -> ~, ._~ ~,-_ .-; rl? SHERIFF'S RETURN - REGULAR CASE NO: 2007-04985 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHEELER THOMAS ADMIN EST OF VS GAMBLE KRIS ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GAMBLE KRIS the DEFENDANT at 1850:00 HOURS, on the 28th day of August 2007 at 105 HOLLOWVIEW LANE ENOLA, PA 17025 KRIS GAMBLE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. by handing to Sheriff's Costs: Docketing Service Postage Surcharge 9fb4'o7~./ Sworn and Subscibed to before me this of 18.00 14.40 .41 10.00 So Answers: ~~E~ /• R. Thomas Kline 08/29/2007 HANDLER HENNING ROSENBERG By: day A.D. _. CASE N0: 2007-04985 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHEELER THOMAS ADMIN EST OF VS GAMBLE KRIS ET AL JASON VIORAL Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE AMERICAN LEGION POST 751 DEFENDANT was served upon the at 1430:00 HOURS, on the 23rd day of August 2007 at 295 SHADY LANE ENOLA, PA 17025 ALLEN WOMER MANAGER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 14.40 Affidavit .00 Surcharge 10.00 .00 Q~b~(e 7 ~.,. ~ 0 Sworn and Subscibed to before me this day of , So Answers: .~E " /• R. Thomas Kline os/29/2007 HANDLER HENNING ROSENBERG By: D y Sheriff A.D. SHERIFF'S RETURN - REGULAR .. CASE NO: 2007-04985 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHEELER THOMAS ADMIN EST OF VS GAMBLE KRIS ET AL JASON VIORAL Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ENOLA SPORTSMEN'S ASSOCIATION the DEFENDANT at 1552:00 HOURS, on the 23rd day of August 2007 at 290 PINE HILL ROAD EXT ENOLA, PA 17025 JULIE HESS a true and attested copy of COMPLAINT & NOTICE by handing to (BARTENDER together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 14.40 Affidavit .00 Surcharge 10.00 406 jb'l ~' .00 3 0.4 0 Sworn and Subscibed to before me this day of , So Answers: .~E~ - /' R. Thomas Kline 08/29/2007 HANDLER HENNING ROSENBERG By . ~ ~~~ ~--~ D y Sheriff A.D. 1415 Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Cherry Hill, New Jersey 08034 (856) 795-9110 COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Jordan S. TafIlin, Esquire Identification No: 92399 THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff,: v. KRIS GAMB.I,E, AMERICAN LEGION POST 751, AND ENOLA~ SPORTSMEN'S ASSOCIATION, Defendants. PRAECIPE TO THE PRpTHONOTARY: COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4985 -Civil Term CIVIL ACTION -LAW Please refer the above-captioned matter to the assigned 3udge for disposition. Matter for disposition: Defendant American Legion Post 751 Preliminary Objections ,~ (signature) (name) Jord S. Tafflin, ] Attorney I.D.# 923 COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Jordan S. Tafflin, Esquire Identification No: 92399 1415 Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Cherry Hill, New Jersey 08034 (856) 795-9110 THOMAS WHEELER, Administrator of the Estate of : COURT OF COMMON PLEAS ANNETTE WHEELER, Deceased, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff,: v. NO. 07-4985 -Civil Term KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, Defendants.: CIVIL ACTION -LAW PRELIMINARY OBJECTIONS OF DEFENDANT, AMERICAN LEGION POST 751 Defendant, American Legion Post 751, by way of their attorneys, Cooper Levenson April Niedelman & Wagenheim, hereby file the following Preliminary Objections to plaintiffs' Complaint, and in support thereof, aver: 1. Plaintiffs commenced this action on or around August 21, 2007 by filing the Complaint. (A true and correct copy of plaintiffs' Complaint is attached hereto and made a part as Exhibit "A".) 2. This case involves a claim by plaintiff Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler in his own right due to the alleged injuries as a result of a motor vehicle accident. 1 3. Plaintiffs .allege that defendant American Legion Post 751, along with other licensed servers of alcoholic beverages, aze liable for plaintiffs' injuries due to the alleged negligent service of alcohol to the co-defendant Kris Gamble (hereinafter referred to as "Gamble".) (See Exhibit "A".) 4. The plaintiffs allege in their Complaint that co-defendant Gamble was served alcoholic beverages in the American Legion Post 751 establishment and that such service of alcoholic beverages caused Gamble to be involved in an automobile accident. 5. The plaintiffs allege that plaintiffs' decedent Annette Wheeler was riding with Gamble on Gamble's motorcycle when it allegedly struck an embankment causing Annette Wheeler's death. 6. The plaintiffs are making a claim against the licensed servers of alcoholic beverages due to the alleged unlawful service of alcohol. 7. Liability to a licensed server of alcoholic beverages is controlled by 47 P.S. §4- 493, commonly referred to as The Dram Shop Statute. 8. Pursuant to 47 P.S. §4-497: No licensee shall be liable to third persons on account of damages inflicted upon them off the licensed premises by customers or the licensee unless the customer who inflicts the damage was sold or furnished malt or brewed beverages by said licensee or its agents, servant or employee when said customer was visibly intoxicated. 9. Defendant files the within Preliminary Objections on multiple grounds: First, that liability against a licensed server of alcoholic beverages only attaches when a patron is served alcoholic beverages while visibly intoxicated. 47 P.S. §4-497 1Q. In plaintiffs' Complaint, specifically in paragraph 35, the plaintiffs make the following objectionable counts: 2 35. The occurrence of the aforementioned incident and resulting fatal injuries to plaintiff's decedent, Annette Wheeler, were caused directly and proximately by the negligence of defendant American Legion, by its agents, servants, workmen or employees, acting in the scope of their authority, generally and more specifically as set forth below: ...b. In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor andlor brewed beverages to patrons who are visibly intoxicated;... ...d. In being negligent per se and/or strictly liable for violations of the Pennsylvania Crimes Code, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or furnishing of alcoholic beverages to minors andlor persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants and/or employees; e. In failing to perform an adequate and necessary investigation to determine whether or not alcohol. was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when defendant knew or should have known that Kris Gamble was visibly intoxicated;... 11. As noted by our Superior Court: Section 4=497 is clearly a limiting provision designed to specifically shield licensees for liability for third parties except in those instances where a patron was served while visibly intoxicated. Detweiler v. Brumbaugh, 441 Pa. Super. 110; 65b A.2d 944 (1995}. 12. Defendant also files these Preliminary Objections to plaintiffs' claim for punitive damages. 13. Allegations in support of punitive damages must be specifically pled in the Complaint. 14. In this matter, there is insufficient evidence to establish a claim for punitive damages. Rizzo v. Haines, 555 A.2d 58 (Pa. 1989). 3 15. In addition, pursuant to the limiting nature of 47 P.S. §4-497, there is no provision within the Dram Shop Statute for an allegation or a claim for punitive damages against a licensed server of alcoholic beverages. WHEREFORE, for all of the foregoing reasons, defendant American Legion Post 751, respectfully requests this Honorable Court enter the attached Order dismissing plaintiffs' improper negligence counts and, with the exception of violations to 47 P.S. §4-497, dismissing any and all allegations in support of punitive damages. COOPER LEV~ENSQN APRIL By: DATED: September 10, 2007 J an S. Tafflid, Esquire orneys for Defendant, erican Legion Post 751 4 COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Jordan S. Tafflin, Esquire Identification No; 92399 141 S Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Cherry Hill, New Jersey 08034 (856) 795-9110 THOMAS WHEELER, Administrator of the Estate of : COURT OF COMMON PLEAS ANNETTE WHEELER, Deceased, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff,: v• NO. 07-4985 -Civil Tenn KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, Defendants.: CIVIL ACTION -LAW BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF DEFENDANT AMERICAN LEGION POST 751 STATEMENT OF FACTS: Plaintiffs commenced this action on or about August 21, 2007 by filing a Complaint. (A true and correct copy of plaintiffs' Complaint is attached hereto and made a part as Exhibit "A".) This is a claim for dram shop liability against multiple defendants, including American Legion Post 751 (hereinafter referred to as "American Legion"). It is alleged in the plaintiffs' Complaint that co-defendant, Kris Gamble, was served while visibly intoxicated in various licensed establishments, including American Legion. It is alleged that due to this service that Gamble was driving a motorcycle in which the decedent, Annette Wheeler, was a passenger and died as a result of the accident. 5 Plaintiffs' claims against American Legion are limited to the unlawful service of alcoholic beverages. The Preliminary Objections in this case are limited to specific issues. First, the plaintiffs make numerous general negligence allegations that are specifically not permitted pursuant to the Dram Shop Statute and its limiting nature. 47 P.S. §4-497 Second, plaintiffs make a claim for punitive damages without supporting evidence or allegations within the Complaint. II. MEMORANDUM OF LAW: A. PURSUANT TO THE DRAM SHOP STATUTE, PLAINTIFFS CAN ONLY PREVAIL IF THEY CAN ESTABLISH THAT THE DEFENDANT SERVED THE ALLEGED INTOXICATED PATRON ALCOHOLIC BEVERAGES WHILE HE WAS VISIBLY INTOXICATED. AS SUCH, THE ALLEGATIONS CONTAINED IN PARAGRAPH 35(b), (d), and (e) AND PARAGRAPH 41(b), (d), and (e) SHOULD BE DISMISSED. According to plaintiffs' Complaint, after drinking at various licensed establishments, co- defendant Gamble was operating his motor vehicle wherein decedent Wheeler was a passenger. She was involved in an accident in which the Estate of Wheeler claims Annette Wheeler lost her life. Liability for the service of alcoholic beverages on behalf of a licensed server is controlled by 47 P.S. 4-497. Pursuant to 47 P.S. 4-497: No licensee shall be liable to third persons on account of damages inflicted upon them off the licensed premises by the customer of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by said licensee or his agent, servant or employee when said customer was visibly intoxicated. Clearly, the wording in 47 P.S. 4-49? is meant to protect the licensed servers of alcoholic beverages and limits liability for service of alcohol. The plaintiffs can only prevail in this litigation if they can prove that the defendant Gamble while visibly intoxicated. Id. In plaintiffs' Complaint, paragraphs 35 and 41 make various allegations which are simply not 6 permitted pursuant to the Dram Shop Statute. (Note that paragraphs 35 and 41 state the same allegations.) Specifically, in paragraphs 35 and 41 of the Complaint, the plaintiffs' claim there is liability on the defendant for: 35. The occurrence of the aforementioned incident and resulting fatal injuries to plaintiff's decedent, Annette Wheeler, were caused directly and proximately by the negligence of defendant American Legion, by its agents, servants, workmen or employees, acting in the scope of their authority, generally and more specifically as set forth below: b. In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated;... d. In being negligent per se and/or strictly liable for violations of the Pennsylvania Crimes Code, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or furnishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants and/or employees; e. In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when defendant knew or should have known that Kris Gamble was visibly intoxicated;... Clearly, 47 P.S. 4-497 limits the cause of actions a plaintiff can bring against a licensed server of alcoholic beverages. According to the Superior Court in the matter of Detweiler v. Brumbaugh, 441 Pa. Super. 110; 656 A.2d 944 (1995), "Section 4-493 is clearly a limiting provision designed to specifically shield licensees from third parties, except in those incidences where the patrons are served while visibly intoxicated." The limiting nature of 47 P.S. 4-497 was first recognized in Reber v. Commonwealth of Pennsylvania Liquor Control Board, 101 Pa. Cmwlth. 397, 516 A.2d 440 (1986). As noted in 7 Reber, Section 4-497 "...does not create a cause of action against a licensee, but in fact, limits the extent of a licensees' liability." The limiting nature of Section 4-497 was further discussed in Detweiler v. Brumbaugh, 441 Pa. Super. 110; 656 A.2d 944 (1995). Pursuant to the Superior Court in Detweiler, "it is clear that Section 4-497 acts as a shield restricting liability instead of a provision defining where it is to apply." There is no provision for 4-497, for the imposition of liability other than service to a visibly intoxicated patron. Consequently, all allegations other than those surrounding service to the visibly intoxicated co-defendant Gamble should be stricken. Recently, this identical issue was addressed in the case of Dimming; v. Mozelesky, et al., Court of Common Pleas of Northampton County, Civil Action No. 00048CV2003001498 (2003) (attached hereto as Exhibit "B"). In the Dimming case, the plaintiff made the following objectionable counts in his Complaint: 14. Defendants' carelessness, negligence, and recklessness consisted of the following: (c) negligently and carelessly failing to warn Brenda K. Mozelesky that she was intoxicated and should not drive.. . (d) failing to take steps to prevent Brenda K. Mozelesky from operating her motor vehicle when she was under the influence of liquor and/or brewed alcoholic beverages served to Brenda K. Mozelesky by defendant to the extent that she was incapable of safe driving. (See Exhibit "B".) The licensee defendant filed preliminary objections on those two counts. The Court of Common Pleas in Northampton County, in granting defendant's preliminary objections held, "Clearly, a licensee is not privileged to use force against or to impose confinement upon another for purposes of preventing a violation of statute or the commission of a crime. Thus, a licensee has no legal authority to prevent a patron from operating his or her automobile even if the patron is intoxicated. 8 Theoretically, a licensee may expose himself to liability if force would be applied or confinement imposed in order to prevent a patron from operating his or her own automobile." Id. In sustaining the preliminary objections, the court in Dimming held, "the plaintiffs have cited no cases nor can we find any that extend liability to a licensee for a failure to warn patrons of the effect and/or dangers of alcohol ingestion combined with driving." Id. at page 4. In the matter at hand, the preliminary objections filed by the licensee defendants seek to prevent the plaintiffs from making claims against a licensed server for strict liability for violations of the Pennsylvania Crime Code and Pennsylvania Liquor Code and violation of all statutes concerning the service of alcoholic beverages giving rise to civil liability. It is clear from review of the statute, the case in Pennsylvania,, the only viable cause of action that the plaintiffs have against a licensed defendant is violation of 47 P.S. 4-493.. All other allegations should be stricken. B. THE ALLEGATIONS IN SUPPORT OF CLAIMS FOR "PUNITIVE DAMAGES" SHOULD BE STRICKEN. There is no support in this matter for claims of punitive damages on behalf of the defendant. In plaintiffs' Complaint, plaintiffs allege that defendant American Legion's conduct was: "Outrageous, done in a willful and wanton fashion, with a conscious indifference andJor reckless disregard for the safety of the public generally, the patrons of American Legion No. 751, and Annette Wheeler specifically, and was malicious andlor intentional, and so egregious as to be beyond the bounds of decency in a civilized society..." There is simply no evidence in plaintiffs' Complaint in support of these allegations. 9 It is well established that allegations of reckless, grossly negligent, willful wanton conduct of plaintiffs' punitive damages must be specifically pled. Rizzo v. Haines, 555 A.2d 58 (Pa. 1989); Feld v. Merrian, 485 A.2d 742 (1984). In this matter, there is no specific allegation in the plaintiffs' Complaint to support any of these claims. According to Pennsylvania law, Preliminary Objections must he filed by a party to any pleading and are limited to legal insufficiency of a pleading. (demurrer}. Pa. R.C.P. 1028(a)(4). In the matter at hand, the plaintiffs make a claim against defendant American Legion for "outrageous", "willful and wanton", "conscious indifference andlor reckless disregard", and for "malicious andlor intentional" in an attempt to prove punitive damages. Yet insufficient evidence or allegations listed in the Complaint justify such a claim. In addition, 47 P.S. 4-497 is specifically a limiting provision in the liquor code for the awarding of punitive damages. See Detweiler v. Brumbaugh, 441 Pa. Super. 110; 656 A.2d 944 (1995). Consequently, any and all allegations supporting a claim for punitive damages should be stricken. C. PRELIMINARY OBJECTIONS SHOULD BE GRANTED IN THAT THEY ARE LEGALLY INSUFFICIENT. These defendants filed these Preliminary Objections pursuant to Pa. R.C.P. 10-28{a}(4). According to that Rule: (a) Preliminary objections maybe filed by any party for any pleading under the following grounds: .. , (4) legal insufficiency of a pleading (de murrer).. . In all the foregoing allegations and issues raised by these defendants, there is simply legal insufficiency demonstrated by the plaintiffs. There is no evidence supporting any of the claims in their Complaint that these defendants have objected to. Defendants file these preliminary objections pursuant to Pa. R.C.P. 1028(a)(4) and ask that these allegations be stricken. 10 III. CONCLUSIONS: The plaintiffs are making a claim against defendant American Legion, a licensed server of alcoholic beverages. The Estate of Annette Wheeler is making a claim for an accident as the result of the alleged negligent service of alcoholic beverages to an alleged intoxicated party, Kris Gamble. Defendant files these preliminary objections limited to two issues. First, the only way plaintiffs can establish liability in this case is pursuant to 47 P.S. 4- 497 service to a visibly intoxicated Gamble. All of the general allegations in plaintiffs' Complaint are specifically objected to and should be stricken. Second, plaintiffs have claims for punitive damages. There is insufficient evidence to establish claims for punitive damages and those counts should be stricken. WHEREFORE, for the foregoing reasons, defendants respectfully request this Honorable Court enter the attached Order dismissing plaintiffs' general allegations of negligence. COOPER E/D~ EN ON APRIL NIEDEl~t~! &~A~ENHEIM By: ~ordan S. Taff>~+h, Esquire Attorneys for Defendant, American Legion Post 751 DATED: September 10, 2007 11 COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Jordan S. Tafflin, Esquire Identification Na: 92399 1415 Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Chevy Hill, New Jersey 08034 (856) 795-9110 THOMAS WHEELER, Administrator of the Estate of : COURT OF COMMON PLEAS ANNETTE WHEELER, Deceased, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff,: v NO. 07-4985 -Civil Tenn KRIS GAMBLE, ~~AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, ~' Defendants. CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, Jordan~.S. Tafflin, Esquire, hereby certify that a true and correct copy of the within Preliminary Objections and Memorandum of Law in support thereof was forwarded to counsel indicated below via Fast Class United States Mail forwarded on September 11, 2007: W. Scott Henning, Esquire Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 ., `' John Reed Evans, Esquire Bolan Jahnsen Reardon 31 South Eagle Road Suite 202 Havertown, PA 19083 COOPER LEVENSON APRIL NIEDEL & AGENHEIM By: ordan in, Esquire Attorney for Defendant, American Legion Post 751 r r ~ ~. Ct~~lr Flh1 REG~RC ~ ~` Ctttut ~ C~tIbM, !~. d4~.7 W. Scot# Henning, Esquire I.D.S32298 HANDLER, HENNING b ROSENBERG, LLP 1300 L.inElestown Road Hamsburg, Pa 17110 Tdephane: (717) 238-2000 < Attorney for Plaintiff Fax : (717) Z33-3029 E-mail: Henning@HHRLaw.cam THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. KRIS GAMBLE, AMERICAN LEGION .POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, De#endants : 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - X485 l.:t Yi l IP.t'Wt CIVIL ACTION -LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the daims 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 daims set fiorth against you. You are gamed that if you fiad•t4:~do, so :the case may proceed without you. and a judgment maybe entered a~ainstyou by the Court without further notice for any 'money claimed in tfie Cornptaint orfor any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE- IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW, THIS OFFICE CAN PROVIDE YOU- WITH tNFOR1UlAT10N ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE ~fOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. 5zl10 3J'dd dnoae 'SNI a~~ BbbSZLtiEL6 ~a •cr ioa~ ~» ~~~ Lawyer tt.e&rral Scrnice 4th Floor, Cumberland County Courthouse Carlisle, PA I7013. (717) 2d4-6,200 AVTSO USTED HA SIDO DEMANDADOlA EN CORTE. Si usted desea defenderse de las demandas que se presentan mss adeiante en las siguierdes paginas, debe tomar action dentro de fos proximos veirute (20) digs despues de la not~icacion de esta Demands y Aviso radicando personaimbnte o por medio~de un abogado una companacencia escrita y radicando ®n fa Corte por escrito sus defensas de, y objecciones a, las demandas pre~errtadas aqui en contra suya. Se le advierte de que si usted falls de tourer action Como se desciib~e anteriormente, el caso puede proceder sin usted y un fa{1o por cuatquer sums de dinero redamada en la demands o cualquier otra redannaoion o remedio soliaitado por el demandante puede ser dictado en contra suya por is Corte sin mks aviso adicional. Usted puede perder dinero o propiedad u otros derechos mportantes pars usted. USTED DEBE LLEVAR ESTE DOCUMENTO A $U ABOGADO tN~ItED1ATAMENTE. S! USTED fN0 TtENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTt; 4FICtNA. ESTA OFICINA PUEDE PR4VEERLE INFt?RMACI'ON ACERCADE C41M0 CONSEGUIR UN ABOCAt~o. St USTED NO PUEDE PAGAR POR L4S SERV1CtOS DE UN ABOGADO, ES POStBI..E QUE ESTA OFiClNA LE PUEDA PROYEER iNF4RMACtON SOBRE AGENClAS QUE OFREZCAN SERViCtOS LEGALES SIN CARGO O BA3tJ COSTO A PERSONAS QUE CUALIFICAN. Lawyec Refen~tl Service 4tb Floor, Cumberland Coupatty Courthouse Carlisle, PA 17013 {117) 240-6200 HANDLER, HENN{NG ~& ROSENBERG, LLP By: SZ/Z0 3~Jbd df10aJ 'SNI a~2! BbbSZLbELE~ ~~"~T t°°' ""~~ F:tWP pirectorieslTFClCornpfaintslDrari Sfli~il~/i~+~`iler-U1/rangful Death,wpd THOMAS VIIMEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. KRIS 6AlklEBLE, AMERICAN I.EG10N POST T51, and ENOiA SPORTSMEN'S ASSOCIATION, Defendants IN THE COURT OF COMMON PLEAS GUM6ERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW COMPLAINT AND NOW comes the Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, by and through his attorneys, HANDLER, HENNiNG & RQSENBERG, ALP, by W. Scott Henning, Esq., and makes the within Complaint againsttfie Defendants, Kris Gamble, Am®rican Legion Post 751, and Enola Sportsmen's Association, and avers as follows: 1. Plaintiff, Thomas Wheeler, is an adult individual currently residing at 8 Black Pine Drive, Mechan~cstiurg, Cumberland County; Pennsylvania 171~~50. 2. Annette Wheeler, (hereinafter "Plaintiff s Decedent") formerly resided at $ Black Pine Drive, Mechanicsburg, Cumberiand County, Pennsylvania 17050. SZ/£0 39tid drlOLl~ 'SNI d~2! 8bb5~LbEL6 6E~5t L00ZILZIRp «~ , 3. Defendant, Kris Gamble, is' an bdult individual currently residing at 105 Hollowview Drive, Enoia, Cumberland County, Pennsylvania 17025. 4. Defendant, American Legion Post 751, anon-profit entity, organized and exis~ng under the laws of Pennsylvania and having its registered address at 295 Shady Lane, Enoia, Cumberland County, Pennsylvania 17025. 5. Defendant, Enoia Sportsmen's Association, anon-profit ~ corporation, organized and existing under the laws of Pennsylvania and having a principle place of business located at 25 N. Errola Drive, Enoia, Cumberland County, Pennsylvania 17025. 6. At all times material hereto, Defendants American Legion and Enoia Sportsmen's Association acted or failed to act through its agents, servants and/or employees, acting for Defendant's benefit, under Defendant's control, and within the course and scope of their authority and/or ®mployment. 7. At all times material hereto, DefendantAmerican legion owned and operated a bar and res#aurant {orated at 295 Shady Lane, Enoia, Pennsylvania 17025. 8. At all times material hereto, Defendant Enoia Sportsmen's Association owned and operated a bar and restaurant looted at 290 Pine Hill Road Extension, Enoia, Pennsyivania 17025. 9. At ail times material her®to, Defendant American Legion, was a licensee of the Pennsylvania Liquor Control. Board, engaged in the sale and service of alcoholic beverages to patrons of their facility. ..... 10. At all times material hereto, Defendant Enoia Sportsmen's Association was ~~~ a licensee of the Pennsylvania Liquor Control Board, engaged in the safe and service of alcoholic beverages to patrons of their facility. 2. 9Z/b0 3Jtid df1D2~ 'SNI tl~d BbbSZLbEL6 68~ST L00Z/~~iaa 11. On or about Ma 13, 2~4~, t~ y 1efendant Gamble entered and was served and consumed alcoholic beverages at Defendant American Legion's establishment. After consuming alcoholic beverages at aforementioned location, Defendant Gamble traveled to Defendant Enoia Sportsmen's Association and consumed more alcoholic beverages. 12. While Defendant Gamble was on Defendant American Legion's premises, Defendant American Legion wrongfully and unlawfully sold or furnished liquor and/or brewed beverages to. Defendant Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. Stat. §4-493 {1 ~. 13. While DefendanYGamble was on Defendant Enoia Sportsmen's premises, Defendant Enoia Sportsmen's Association wrongfully and unlawfully sold or famished liquor and/or brewed beverages to Defendant Gamble when he was visibly intoxicated, in violation of the Pennsylvania Liquor Control Code, 4T Pa. Stat. § 4-493(1 }. 14. After consuming alcohol on Defendant- Enoia Sportsmen's Associate©n's premises, Defendant Gamble left the, premises together with Plaintiffs Decedent. Both individuals boarded- Defendant Gamble's motorcycle. A short distance from Defendant Enola's premises, Defendant Gamble's motorcycle struck an embankment along , Orrs Bridge Road near the intersection with Kite Road. Plaintiff's Decedent suffered fatal injuries. 15. ?he aforementioned incident occurred directly after Defendant Gamble left Defendant Enoia Sportsmen's Association's premises and while he was still intoxicated as a result of the alcoholic beverages he consumed on both Defendant Enoia Sportsmen's Associations' and Defendant American Legion's premises. 3 5ZlS0 ~cjad df10~l9 'SNI ~d BbbSZLbEL6 6E ~St L90ZlLZl80 16. The aforementioned inciden# occurred. because of Defendant Gamble's impairment due to intoxication and was directly and proximately caused by both Defendant American Legion's and Defendant Enola Sportsmen's Assoaation's negligence in selling alcoholic beverages to Defendant Gamble. 17. The occurrence of the aforementioned inadent and the resulting injuries to PlainfifPs Decedent, Annette Wheeler, .were caused directly and proximately by the negligence of Defendants Enola Sportsmen's .Association, American Legion, and Kris Gamble, by their agents, servants, workmen or employees, acting in the scope of their authority, generally and more specifically as set forth below. C NT I• WR N F T G 1 Thomas Wheeler, as dministrator of the Estate of Ann®tte heater artd Thomas IKhe®ier in his own right v. Kris 6ambte 18. Paragraphs 1 through 17 are. incorporated herein as if set forth at length. 19. Plaintiff, Thomas Wheeler, is the duly appointed, qualified, and currently acting Administrator of the Estate of Annette Wheeler. 20. This civil action is brought pursuant.to the Pennsylvania Wrongful Death Act, 42 Pa. C.S.A. § 8301 et seq. and Rule 2201 of the Pennsylvania Rules of Civil Procedure. 21. Plaintiff s Decedent, Annette Wheeler, did not bring any other action during her lifetime and no other action for the death of said Decedent has been commenced against Defendant herein or any other person besides the aforementioned. ry. g 9 .. - 22: ~~ This~civil-action is~bein brow htto~recover, on-behalf of all statuto beneficiaries of the Plaintiff's Decedent, all damages lega{ly available under the Wrongful Death AcL 4 SZ~90 add df10~J 'SNI ti~c'1 BbbSZLbEL6 6E ~St L00L/LZ186 23. The ocwrrence of the aforesaid indent and the fatal injuries resulting therefrom were caused directly and proximately by the negligence of the Defendant, Kris Gamble, generally and more specifically as set forth below: (a) In failing to be reasonably vigilant to observe the roadway. (b) In driving his vehicle with a careless disregard for the safety of others, in violation afi 7b Pa.C.S:A. § 3714; (c) In failing to be continuously alert, in failing to perceive any roaming of danger that was reasonably likely to exist; (d) 1n failing to operate, said vehicle under proper and adequate control in order that he could avoid causing the fatal accident; (e) In driving Defiendant's vehicle in .willful andlor wanton disregard for the safety of persons or property, in violation of 75 Pa.C.S.A. §3736; (f) In driving in a careless manner, in violation of 75 Pa. C.S.A. § 3714; (g) In driving while intoxicated.,. in violation of 75 Pa. C.S.A. § 3802; (h) In driving Defendant's motor vehicle at a time when he was unfit to do so, due to his consumption of alcohol and/or drugs; and (!) In otherwise driving Defendant's vehicle upon a roadway in a manner endangering persons and property and in a manner with careless disregard to the rights and safety of others in violation of the Motor Vehicle Code. of-the. Commonwealth of Pennsylvania. 24. As a direct and proximate result of the negligence of the Defendant, Kris 5 5Z/L0 3~J'dd dilO~J '5NI ~~I BbbSZLtrEL6 6£ -Si L00~ILZ180 Gamble, Plaintiffs Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to head trauma, which resulted in her death on May 21, 2007. 25. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuniary foss and also have been deprived of the decedent's valuable support, comfork, society, counsel, services and companionship, and a claim is made therefor. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own righ#, seeks damages from the Defendant, Kris Gamble, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. CO NT ft - UR1(IV T! N/ N Thomzs Wheeler, as dministrator of a Estate of net6e Wheeler and Thomas Wheeler in his own right v. Kris Gamble 26. Paragraphs 1 through 26 are incorporated herein as if fully set forth below. 27. Plaintiff, Thomas Wheeler, as the .duly. appointed, and currently acting Administrator of the Estate of Annette Wheeler, Deceased, inoorporate Paragraphs 1 through 25 herein as if set forth at length. 28. In his capacity of personal representative of the Estate of Annette Wheeler, Plaintiff, Thomas Wheeler, brings this action pursuant to the P®nnsylvania Act, 42 Pa. C.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373, et seq. 29. The occurrence of the aforesaid incident and the resultant fatal injuries to Plaintiff s Decedent were caused directly and proximately by the negligence of Kris Gamble, general{y and more specifically set forth below: 6 SZ/86 3~dd dt10bJ 'SNI dad BbbSZLbEL6 6E~51 L08z/LZ/80 (a) in failing to be reasonably vigilant to observe the roadway. (b} in driving his vehicle with a careless disregard for the safety of others, in violation of 75 Pa.C.S.A. § 3714; (c) In failing to be continuously alert, in failing to perceive any warning ofi danger that was reasonably likely to exis#; (d} In failing to operate said vehic{e under proper and adequate control in order that he could avoid causing the fatal accident; (e) in driving Defendant's vehicle in willful and/or wanton disnegard for the safety of persons or property, in violation of 75 Pa.C.S.A. §3736; (fl !n driving in a careless manner;- in violation of 75 Pa. C.S.A. § 379 4; (g} In driving while intoxicated, in violation of 75 Pa. C.S.A. §3802, (h} !n driving Defendant's motor vehicle at a time when he was unfit to do so, due to his consumption of alcohol and/or drugs; and (i) In othervvise driving Defendant's vehicle upon a roadway in a manner endangering persons a~rtd property and in a manner with careless disregard to the rights'and safety of others in violatron of the Motor Vehicle Code ofi the Commonwealth of Pennsyhrania. 30. As a direct and proximate result of the negligence of the Defendant, Kris. Gamble, Plaintiffs Decedents Annette Wheeler, sustained fatal injuries including, but not limited to head trauma, which resulted in her death on May 21, 2007. 31. As a result of the negligence and carelessness of the Defendant, Kris Gamble, Plaintiff s Decedent, Annette Wheeler, suffered physical and mental pain and anguish and, thus, a claim is made therefore. 32. As a result of the negligence of Defendant, .Kris Gamble, Plaintrff's 7 SZ/60 3~dd di10~lJ 'SNI 'd~2! QbbSZLb£L6 6£ ~ST L08Z/LZ180 ~. . Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a claim is made for lost future wages and/or retirement benefits. 33. By reason of the death of Plaintiffs Deceden#, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been comps{led to expend funds for funeral and burial services, and said relative has also been deprived of Annette Wheeler's comfort, counsel, companionship and society, and a claim is made therefore. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, Kris Gamble in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. C U T111- N U T Thomas Wheeler, as A miinistrator of the fists of Annette Wheeler and Thomas Wheeler in his.own right v. American Legion Post T5`1 34. Paragraphs 1-33 are incorporated herein as if fully set forth below. 35. The occurrence of the aforementioned inadent and the resulting fatal injuries to Plaintiffs Decedent. Annette Wheeler, were caused directly and proximately by the negligence of Defendant American Legion, by its agents, servants, workmen or employees, acting in the scope of their authority, generally and more specifically as set forth below: (a) In negligently and carelessly selling or furnishing liquor and/or brewed beverages to~, Kris Gamble when. he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493(1); 8 SZ/0t 3J'dd dn0~19 'SNI kJ~2i 8~b5ZLbEL6 6E ~St L00ZlLZ/80 •• ~ ?~ (b) In failing to properly train ~~d supervise its employees so as to prevent them from selling, fumishing or giving liquor and/or brewed beverages to patrons who are visib{y intoxicated; (c} 1n failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d) in being negligent per se and/or strictly liable for violafions of the Pennsylvania -Crime Codes, Pennsylvania liquor Code, including provisions relating to the safe, supply and/or fumishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants and/or emp{ogees; (e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated.. and/or who was a frequent drinker and/or to a patron with welt established drinking habits, when Defendant knew or 9 SZlit 3Jbd df10~19 'SNI ti~a 8bti9ZLtiEL6 6E ~6t L80Z/LZ/80 should have known that Kris Gamble was visibly intoxicated. 36. As a direct and proximate result of the `Defendant's negligence, Piaint~ff's Decedent has sustained fatal injuries including, but not limited to head trauma, which caused her death on May 21, 2007. 37. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiffs Decedent, Annette Wheeler's surviving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedents valuable support.: comfort, society, counsel, services and companionship, and a claim is made therefor. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Esta#e of Annette Wheeler, deceased and Thomas Wheeler, in his own right, seeks damages from the Defendant American Legion Post 751, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interests and costs. Th©mas Wheeler as Administrafbr of the late o netts and Thomas Wheeler, in his own right v. American legion Post 781 38. Paragraphs 1-37 are incorporated here in as ff fully set forth below. 39. Plaintiff, Thomas Wheeler, as the duly appointed, and currently acting Administrator of the Estate ofi Annette Wheeler, Deceased, incorporates Paragraphs '1 .through 37 fiereiri as' set' or~~at'length: .. .. . 40. In his capacity of personal representative of the Estate of Annette 10 SZ/ZZ 39dd dri0~l9 'SNI d~21 8bb9ZLbEL6 6E~ST L00Z/LZ/B0 M r Wheeler, Plaintiff, Thomas Wheeler, brings this.adion pursuant to the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302, et seq. and, 20 Pa. C.S.A. § 3373, et seq. 41. The occurrence of the aforementoned~coNision and the resultant injuries to Plaintiff s Decedent, Annette Wheeler, were caused directly and proximately by the negligence andlor carelessness of Defendant, American Legion, by its agents, servants, workmen or employees, acting in the scope of their authority generally and more specifically as set forth below: (a} In negligently and carelessly selling or furnishing liquor and/or brewed beverages to Kris Gamble when he was visibly intoxicated. in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493(1); (b} In failing to property train and supervise its employees so as to preyertt them.from selling, furnishing or giving liquor and%r brewed beverages to patrons who are visibly intoxicated; (c) in tailing to inform to the requirements of the Pennsylvania Dram Shop Act; (d) in being negligent per se andlor strictjy liable for violations of the Pennsylvania Crime Godes, Pennsylvania Liquor Code, including provisions re{sting to the sale. suppty and/or furnishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known ~z SZ/Et 3J'dd df10219 'SNI did 8bb5ZLbEL6 6E ~SZ L00Z/LZ180 intemperate habits by liquor licensees, their agents, servants and/or employees; (e) In flailing ~ be responsible via respondent superior artid/or vicarious liability for acts and omissions of its employees,. agents, servants, independent contractors, shareholders, partners and/or property owners; and (f) In failing to perform an`adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when Defendant knew or should have known thatKris Gamble was visibly intoxicated. 42. As a direct and proximate result of the negligence of Defendant, American Legion, Plaintiffs Decedent, Annette Wheeler, sustained fatal injuries including, but not limited too head trauma, which resulted in her death on May 21, 2007.. 43. As a din:ct and proximate result of the negligence of Defendant, American Legion, Plaintiffs Decedent, suffered physical and mental pain and anguish and, thus a claim is made therefore. 44. As a result of the negligence of Defendant, American Legion, Plaintiffs Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a claim is a made for lost future wages and/or retirement benefits. 12 SZ/bT 39t/d dnoa~ 'SNI tea BbbSZLb6L6 6E~Si L00Z/LZl80 45. By reason of the death of PlaintiFf's Decedent, Annette Wheeler, Piaint~Ff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedent's valuable support, comfort, society, counsel, services and companionship, and a claim is made therefor. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Whee{er, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, American Legion Post 751, in an amount in excess of the compulsory arbitration limits of Cumbertand County, exclusive of interest and costs. liuul~l ~ v ~• SiV~7 f L - fir r Thomas VYheeler, as Administrator of the o eler and Thomas Wheeler, in his awn right v. Enola Sportsman's Association . 46. Paragraphs 1-45 are incorporated herein as if set forth rat length. 47. The occurrenog of the aforementioned incident and the resulting death to Plaintiffs Decedent, Annette Wheeler, were caused directly and proximately by the negligence of Defendant, Enola Sportsmen's Assoaation, by its agents. servants, workmen or employees, aging in the scope of-their employment andlor their authority, generally and more spec'rEicaily as set forth~below: (a) In negligently and carelessly selling or furnishing liquor and/or brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Coritm{ ~~~ Code, 47 Pa. C.S.A. § 4-493(1); 13 5Z/St 3~Jtid d(lOd9 'SNI did 9bb5~LbEL6 6E :5t L90Z/LZIBO (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated; (cy In failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d~ In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or fumishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants and/or employees; (e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when Defendant knew or should have known that Kris Gamble was visibly IntoXiCated. _ ... .. 48. As a direct and proximate result of the Defendant's, Enola Sportsmen's Association, negligence Plaintiff s Decedent, Annette Wheeler, suffered fatal injuries, including but not limited to head trauma, which. resulted in het death on May .21, 2007. 14 SZJ9t 3~dd dn0a9 'SNI ti~b BbbSZLbEL6 6E~St L96Z/LZt80 49. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiff s Decedent, Annette Wheeler's suniiving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedent's valuable support, comfort, society, counsel, services and companionship, and a claim is made therefor: WHEREFQRE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, Enola Sportsmen's Association, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. C N - RVIVAL A G ENCE Thomas Whe®ler as Administra r of the tat~e of Annette Wheeler and Thomas Wheeler, in his own right v. Eaola sportsmen's Association 50. Paragraphs 1-49 are incorporated here in as if fully set forth below. 51. Plaintiff, Thomas Wheeler, as the duly appointed, and currently acting Administrator of the Estate of Annette Wheeler, Deceased, incorporates Paragraphs 1 through 49 herein as if .set for at length. 52. In his capacityr of personal representative of the Estate of Annette Wheeler, Plaintiff, Thomas Wheeler, brings this action pursuant to~the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373, et seq. 53. The occx~rrence of the aforementioned collision and the resultant injuries to PlaintifYs Decedent, Annette Wheeler, were caused directly and proximately by the negligence and/or carelessness of Defendant, Enola Sportsmen's Association, by its 15 5Z/Lt 3~Jdd ~I02l~J 'SNI 'd~2i 8bb9ZLbEL6 6E ~Si L09Z/LZl80 ti agents, servarrts, workmen or empioyee~, etng iii the scope of their authority generally and more specifically as set forth below: (a) in negligently and carelessly selling or furnishing liquor andJar brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493(1 }; (b) In failing to properly train and supeniise its employees so as to prevent them from salting, furnishing or giving liquor andlor brewed beverages to patrons who are visibly intoxicated; (c) In failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d) In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply andloc furnishing of alcoholic beverages to minors andlor .persons visibly intoxicated, aid/or known to be habitual drunkard andior,a person of known intemperate habits by liquor licensees, their agents, servants andlor employees; 16 SZ/8t 3J'dd dll0?~9 'SNI b"J~'I BbbSZLDEL6 6E ~ST L88Z/LZ/80 (e~ In failing to perfc~r~m are a~~e+quat~ and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly- intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when Defendant knew or should have known that Kris Gamble was visibly intoxicated. {. 54. As a direct and proximate result of the negligence of Defendant, Enola Sportsmen's Association, Plaintiffs Decedent, Annette Wheeler, sustained fats{ injuries including, but not limited too head trauma, which resulted in her death on May 21, 2007. S5. As a direct and proximate result of the negligence of Defendant, Enola Sportsmen's Association, Plaintiff s Decedent, Annette Wheeler, suffered physical and mental pain and anguish and, thus a claim is made therefore. 56. As a resin of the negligence of Defendant, Enola Sportsmen's Assoaation, Plaintiffs Decedent, Annette Wheeler, is now unable to continue to be a productive member ofi the work force and thus a claim is a made for lost future wages and/or retirement benefits. 57. By reason of the death of Plaintiffs Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives. have also been deprived of Annette Wheelers comfort, counsel, companionship and society, and a claim is made therefore. 17 SZl6t 3J~dd dno~ 'SNI did BbbSZLbEL6 66~St L09Z/LZ/88 w WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, Enola Sportsmen's Association, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT VII - P NITI ` G Thomas Wheeler as A rr-nistrator of the Estat~- .of Annette WVheeler, Deceased, and Thomas Wheeler, in his own right v. Kris Gamble 58. Paragraphs 1-57 are incorporated herein as 'rf set forth at length. 59. The liability-producing conduct of Defendant, Kris Gamble, as set forth.. herein, was outrageous, done in a willful and wanton fashion. with a conscious indifference and/or reckless disregard for the safety of the public generally and was malicious and/or intenfional, and so egregious as to be beyond the bounds of decency iiti a civilized society, and was in direct violation of specific ordinances, laws, statutes and regulations regulating the consumption of alcoholic beverages in the Commonwealth of Pennsylvania. 60. .The very nature, quantity acid type of violations of statutory provisions, which resulted in the severe injury to Plaintiffs Decedent, Annette Wheeler, evidences outrageous, malicious and intolerable conduct warranting the imposition of exemplary and/or punitive damages. 61. As a direct and proximate result of the grossly negligent and outrageous acts of Defendant, Kris Gamble, Plaintiffs Decedent, Annette Wheeler, sustained fatal injuries including, but. not Limited„to, head trauma, which. resulted in her death on May 21, 2007, Plaintiff s Decedent suffered physical and mental pain and anguish from the moments commencing with the happening of the incident unfit her premature demise on May 21, 2007. SZiOZ 3~J~dd 18 dnaa~ 'SNI d~~ Rbb~7./ bF'1 f, F.~ :CT 1 G1W7. l I7 tRG1 62. As a direct and. proximate result of the grossly negligent and outrageous acts of Defendant, Kris Gamble, Plaintiffs Decedent, Annette Wheeler, is now unable to continue to be a productive member of the -work force and thus a claim is made for lost future wages and/or retirement benefits. 63. By reason of the death of Plaintiffs Decedent, Annette Wheeler, Plaintiff's Decedent, Annette Wheelers surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society. WHEREFORE, Plaintiff, Thomas Wheeler, as Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seek damages, including punitive damages, from Defendant, Kris Gamble, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial by jury. CD ~ V I - PU TIV D Thomas Wheeler as Administrator of the Esta of Annel~e Wheeler, Deceased, and Thomas Wheeler, in his own right v. American Legion No. 751.x. 64. Paragraphs 1-63 are incorporated herein as if set forth at length. 65. The liability-producing conduct of Defendant, American Legion No. Tg1, by and through its agents, servants and/or employees, asset forth herein, was outrageous, done in a willful and wanton fashion, with a conscious indifference and/or reckless disregard for the safety of the public generally, the patrons American Legion No. 751, and Annette Wheeler specifically, and was maliaous and/or intentional, and so egregious as to be beyond the bounds of decency in a civilized society, and was in direct violation of specific ordinances, laws, statutes and regulations' regulating the sale of alcoholic beverages in the Commonwealth of Penns}rlvania. 66. The very nature, quantity and type of violations of statutory provisions, which resulted in the severe injury to Plaintiff's Decedent, Annette Wheeler, ~ evidences 19 SZ/LZ 3JtJd drIOZIJ 'SNI did BbbS7./ bf.l E; FR :C2 / pAT. //7. JRG1 f outrageous, malicious and intolerable conduct warranting the imposition of exemplary andlor punitive damages. 67. As a direct and proximate result of .the negligent and outrageous acts of Defendant, American Legion No. 751, Plaintiffs Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to, head trauma, which resulted in her death on May 21, 2007. Plaintiff's Decedent suffered physical and mental pain and anguish from the moments commencing with the happening of the incident until her premature demise on May 21, 2007. 68. As a direct and proximate result of the negligent and outrageous acts of Defendant, American Legion No. 751, Plaintiffs Decedent, Annette Wheeler, is now unable to continue to be a productive member of the~work force and thus a claim is made for lost future wages andlor retirement benefits. 69. By reason of the death of Plaintiff s Decedent, Annette Wheeler, Plaintiffis Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counse{, companionship and society. VIIHEREt=ORE, Plaintiff, Thomas Wheeler, as AdministratoroftheEstate ofAnnette Wheeler, deceased, and Thomas Wheeler, in his own right, seek damages, including punitive damages, from Defendant, American Legion Post 751, in an amount in excess of the crompulsory arbitration limits of Cumberland County, and demands a trial by jury. ANT lX • PUN1TtYE. OANW„_,GES Thomas Wheeler as Administrator of tho Estate of Annette Wheeler, Deceased, and Thomas Wheeler, in his own right v. Enola Sportsmen's Association 70. Paragraphs 1-fi9 are incorporated herein as if set forth at length. 71. -The liability-producing conductof Defendant, Enola Sportsmen's Associa~on, by and through its agents, servants and/or employees, as set forth herein, was outrageous, 24 SZ/ZZ 3~JtJd df10~I~J 'SNI d~2! BbbSZLbEL6 6E ~SZ L00Z/LZ/B0 f ~ done in a willful and wanton fashion, with a conscious indifference and/or reddess disregard fore safetyofthe publicgenerally,the patrons Enola Sportsmen's Association, and Annette W heeler specifically, and was malicious and/or intentional, and so egregious as to be beyond the bounds of decency in a civilized society, and was in direct violation of specific ordinances, laws, statutes and regulations regulating the sale of alcoholic beverages in the Commonwealth of Pennsylvania. 72. The very nature, quantity and type of violations of statutory provisions, which resulted in the severe injury to Plaintiffs Decedent, Annette Wheeler, evidences outrageous, malicious and intolerable conduct warranting the imposition of exemplary and/or punitive damages. 73. As a direct and proximate result of the negligent and outrageous acts of Defendant, Enota Sportsmen's Association, Plaintiff's Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to, head trauma, which resulted in her death on May 31, 2007. Plaintiffs Decedent suffered physical and mental pain and anguish from the moments commencing with the :happening of the incident until her premature demise on May 21, 2007. 74. As a direct and proximate rresult of the negligent and outrageous ads of defendant, Enola Sportsmen's Association, Plaintiffs Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a daim is made for lost future wages and/or retirement benefits. 75. By reason of the death of Plaintiff s Decedent, Annette Wheeler. Plaintiff's Decedent, Annette Wheelers surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society_ WHEREFOIFtE, Plaintiff, Thomas Wheeler, as Administratorof the Estate ofAnnette Wheeler, deceased, and Thomas Wheeler, in his own right, seek damages, induding 21 SZ/6Z 3~Jtld dnO~J 'SNI ddb @bbSZLbEL6 66~5t L00Z/LZ/@0 •« .. ' punitive damages, from Defendant, Eno1a Sportsmen's Association, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial by 1u rY• Respectfully submitted, o.,a7 HANDLER, HE1~NG & R~USENBERG, U.P 6y: W. sq~ 1.0. # 32 98 . 1300 Lin le Road Harrisbu A 1 110 (717j 238-2000 Attorney for Plaintiff 22 S7/bZ ~~7t/ra ~-IIVI?~1h '~",NT HrL11 AbbC7lbC-C C,C ACT iGf.~7 117 ~Gd ~, '~I~RIFICATIQN_ The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparafion of this lawsuit. The language of the document is of counsel and not my own. t have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and betief. To the extent that the contents of the document are that of counsel, i have relied upon my counsel in making this Verif+cation. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom fialsification to authorities. Thomas Wheeler 5zlSZ 39t1d dr10219 'SMI ~~a BbbSZLbEG6 6B ~SZ L80Z/Ll/80 '~^~ - ~ 1 'f ~.~ Northampton County EARL NDIlViMINGN AND ESTELLE NDIMMINGM, CO-ADMINISTRATORS OF THE ESTATE OF BRENDA MOZELESKY and ROBERT K. MOZELESKY,CO-ADMINISTRATOR OF THE ESTATE OF BRENDA MOZELESKY vs. BROWN & LYNCH AMERICAN LEGION POST #9 Preliminary Objections IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PA., CIVIL ACTION -LAW., No. 00048CV2003001498. Order of Court entered sustaining the Preliminary Objections of the Defendant, Brown & Lynch American Legion Post #9. William W. Spalding for Plaintiff Robert M. Motta for Plaintiff M. Scott Gamberling for Defendant Order of Court entered on August 29, 2003 by Stephen G. Baratta, Judge. DESCRIPTION OF DECISION The Court sustained the Preliminary Objections filed on behalf of the Defendant, Brown & Lynch American Legion Post #9. The Court found that a licensee has no legal authority to prevent a patron from operating his or her automobile even if the patron is intoxicated, therefore Defendant had no duty to warn Plaintiff's Decedent of the effects of alcohol, nor to prevent Plaintiff's Decedent from driving her automobile. Accordingly, the Preliminary Objections were sustained. IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL ACTION -LAW EARL --DIMIVIINGN AND ESTELLE NDIlVINIINGN, ) NO. 00048CV2003001498 CO-ADMIrTISTRATORS OF THE ESTATE OF ) http://library.nccpa.org/cgi-bin/om_isapi.dll?clientID=442&advquery=dimming&headings... 5/21 /2007 r~ i ' r i BRENDA MOZELESKY and ROBERT K MOZELESKY, CO-ADMIIVISTRATOR OF THE ESTATE OF BRENDA MOZELESKY, Plaintiffs, vs. ) BROWN & LYNCH AMERICAN LEGION POST #9, Defendant. ORDER OF COURT Page 2 of 4 AND NOW, this day of August, 2003, the Preliminary Objections filed on behalf of the Defendant, Brown & Lynch American Legion Post #9, are hereby SUSTAINED. TATEMENT OF REASpIYS Presently before the Court are the Preliminary Objections to Plaintiffs' Complaint, filed on behalf of the Defendant, and Plaintiffs' Answer to the Preliminary Objections. Specifically, Defendant contends that paragraphs 14(c) and (d} z of Plaintiffs' Complaint aze legally insufficient. Plaintiffs' Complaint paragraphs 14(c) and (d) allege that: 14. Defendant's cazelessness, negligence, and recklessness consisted of the following: ~~** (c) Negligently and carelessly failing to warn Brenda K. Mozelesky that she was intoxicated and should not drive; (d) Failing to take steps to prevent Brenda K. Mozelesky from operating her motor vehicle when she was under the influence of liquor and/or brewed alcoholic beverages served to Brenda K. Mozelesky by defendant to the extent that she was incapable of safe driving. See Plaintiffs' Complaint, ¶ 14. The instant matter arises from a motor vehicle accident that occurred on March 27, 2002. Plaintiffs' decedent, Ms. Mozelesky, was allegedly served alcoholic beverages by the Defendant; thereafter, she drove her automobile while intoxicated and struck a vehicle driven by Gilbert John Davis. Ms. Mozelesky died as a result of this collision. The present action was initiated by a Praecipe and Writ of Summons filed by the Plaintiffs on March 14, 2003. Defendant filed a Praecipe for Rule to File Complaint on Apri17, 2003. Plaintiffs filed a Complaint on April 25, 2003. On May 19, 2003, Defendant filed Preliminary Objections in the nature of a demurrer to certain pazagraphs of Plaintiffs' Complaint. Plaintiffs filed an Answer to the Preliminary Objections on June 16, 2003. I. Legal Standard The legal sufficiency of averments contained in a complaint is controlled by Pa.R.C.P. Rule 1019 http://library.nccpa.org/cgi-bin/om_isapi.dll?clientID =442&advquery=dimming&headings... 5/21/2007 Page 3 of 4 :, ,~ r f (a), which states that, in a pleading, "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." See Pa.I~.t~.P. Rule 1019(a). When assessing whether a complaint provides a defendant with sufficient information to formulate a defense, the court must examine the complaint as a whole. Maleski v. DP Realty Trust, 653 A.2d 54, 65-66 (Pa. Cmwlth. 1994). In ruling upon a demurrer, we must accept as true all well pleaded allegations and material facts averred in the complaint as well as all reasonable inferences deducible therefrom. Wurth v. City of Philadelphia, 584 A.2d 403 (Pa. Cmwlth. 1990). This court's analysis is confined to the complaint itself. Pawlowski v. Smorto, 588 A.2d 36 (Pa. Super. 1991). In the face of a demurrer, a complaint only should be dismissed incases that are free and clear from doubt. If any theory of law will support a claim, preliminary objections are not be sustained as any doubt should be resolved against the objecting parties. Foster v. Peat Marwick Main & Co., 587 A.2d 382 (Pa. Cmwlth. 1991); Ambrose v. Cross Creek Condominiums, 602 A.2d 864 (Pa. Super. 1992). A preliminary objection in the nature of a demurrer will be sustained only when it appears with certainty that the law permits no recovery under the allegations pleaded. City of Philadelphia v. Buck, 587 A.2d 875 (Pa. Cmwlth. 1991). However, when ruling on preliminary objections, although a court must accept as true all clearly plead facts, there is no such requirement as to a pleader's legal conclusions or mere averments of law. Santiago v Pennsylvania National Mutual Casualty Insurance Co , 613 A.2d 1235 (Pa. Super. 1992). II. Discussion The restricted acts and other duties and responsibilities of licensees who serve alcoholic beverages in Pennsylvania aze set out in 47 P.S. §§ 4-492 and 4-493. Under § 4-493, serving intoxicants to visibly intoxicated persons is a violation of the statute and constitutes negligence per se. Thus, any bar that furnishes or sells alcoholic beverages to visibly intoxicated patrons can be held liable for injuries that occur as a proximate result of such action. See Smith v. Clark, 190 A.2d 441 (Pa. 1963); Fandozzi v. Kelly Hotel, Inc„ 711 A.2d 524 (Pa, Super 1998). However, under the above-recited statutes, there is no duty to warn a patron of the effects of intoxication or to prevent inebriated patrons from entering their own automobiles and driving away. The Plaintiffs have cited no cases nor can we find any that extend liability to a licensee for failing to prevent an intoxicated automobile owner from operating his or her own automobile. While we can find no case law directly on point, we can refer to Congini v. Portersville, 470 A.2d 515 (Pa. 1983). In Conger, the Supreme Court held that a social host has no duty to prevent an intoxicated guest from entering and driving his or her vehicle. See also Klein v. Raysinger, 448 A.2d 620, 623 (Pa. Super. 1982). Clearly, a licensee is not privileged to use force against or to impose confinement upon another for purposes of preventing a violation of statute or the commission of a crime. Thus, a licensee has no legal authority to prevent a patron from operating his or her automobile even if the patron is intoxicated. Theoretically, a licensee may expose himself to liability if force would be applied or confinement imposed in order to prevent a patron from operating his or her own automobile Further, the Plaintiffs have cited no cases nor can we find any that extend liability to a licensee for a failure to warn patrons of the effect and/or dangers of alcohol ingestion combined with driving. In Dauphin Deposit Bank and Trust v Toyota, 596 A.2d 845 (Pa. Super. 1991), the Superior Court addressed a similar issue when a cause of action was brought against a manufacturer of alcoholic beverages, alleging a duty to warn potential users of alcoholic beverages of the dangers of drinking and driving. The Dauphin Deposit court held that the manufacturer of alcoholic beverages was under no duty to warn consumers of risk inherent in drinking and driving since the risks are obvious and that the general public is well aware of the dangers of alcohol consumption and driving without the necessity of providing warnings. Id. at pp. 850-51. We fmd that the rationale in Dauphin Deposit can be extended to insulate a bar owner from a cause of action for his or her failure to warn patrons of the dangerous effects of consuming alcohol and driving. http ://library.nccpa.org/cgi-bin/om_isapi.dll?clientID=442&advquery=dimmingBeheadings... 5/21 /2007 ,. -. ~~ i The Plaintiffs have cited the Restatement (Second) of Torts §§ 321-22 in support of their contentions that Defendant was required to warn the Plaintiffs' decedent about the dangers of drinking and driving and to prevent her from operating her motor vehicle. We find that the aforementioned sections of the Restatement (Second) of Torts are inapplicable in this case and do not place a duty on licensees to warn patrons of the dangers of drinking and driving or to prevent or detain an owner of an automobile from operating his or her automobile while under the influence of alcohol. III. Conclusion For the forgoing reasons, Defendant's Preliminary Objections are SUSTAINED in their entirety, and paragraphs 14(c) and (d) shall be stricken from the Plaintiffs' Complaint. BY THE COURT: STEPHEN G. BARATTA, J. http://library.nccpa.org/cgi-bin/om isapi.dll?clientID=442&advquery=dimming&headings... 5/21/2007 '", ~i c!~ ~. ~ ~ ~ ~ N K~~3 -t7 ~- ~-; 1' .-~ ~3 ~ ~~ ~ ~ THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0.07-4985 CIVIL TERM CIVIL ACTION -LAW v. KRIS GAMBLE, AMERICAN LEGION POST 751 and ENOLA SPORTSMEN'S ASSOCIATION Defendants JURY TRIAL DEMANDED EIyiTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearances of the undersigned as Counsel on behalf of Defendant, Kris Gamble, with respect to the above-referenced matter. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: Z BY: TIMO J. ,ESQUIRE LD. No. 2918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Kris Gamble OS/348207.v1 ti r: THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0.07-4985 CIVII, TERM CIVIL ACTION -LAW v. KRIS GAMBLE, AMERICAN LEGION POST 751 and ENOLA SPORTSMENS ASSOCIATION Defendants NRY TRIAL DEMANDED CE$tTIFICATE OF SERVICE I, Timothy J. McMahon, Es41uire, do hereby certify that on this ~~aay of September, 2007, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 (Counsel for PlAintiff) OS/348207.v1 .. ~ ~, -v t r v's r+ t'n , ~ ~ ~~ ..~ ~'. .- ~ ~ ro COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Joseph D. Deal, Esquire Identification No: 46768 1415 Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Cherry Hill, New Jersey 08034 (856) 795-9110 THOMAS WHEELER, Administrator of the Estate of : COURT OF COMMON PLEAS ANivTT'TTE WHEELER, Deceased, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff,: v. NO. 07-4985 -Civil Term KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, Defendants. CNIL ACTION -LAW ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant American Legion Post 751 in the above-captioned matter. M f~_ COGrER LLVErvSON A T NIEDELMAN & WA EN Joseph Dal, Esquire Attorneys for Defendant, American Legion Post 751 DATED: September 24, 2007 r~ rv ....,J ' ~~ ~.~ 1 i~_ ~' --~ -~- l ~ rn -~- - ~ _ .,.,.. 4--. ~ [.fj _r - fem.? - ';'yt''' - •• . r r`'~? _ZJ Vr..+~ ~~ A THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW PLAINTIFF'S REPLY TO DEFENDANT ENOLA SPORTSMEN'S ASSOCIATION'S REQUEST FOR ADMISSIONS 1. Denied. First and foremost, it is premature to forward a Request for Admission to the Plaintiff seeking an admission of the type set forth in Request for Admission Number 1, at a point in time when the suit has only recently been filed, service has just been effectuated and the parties have only recently commenced Discovery. Plaintiff's Decedent is obviously not available in order to provide information as to what transpired at the Defendant, Enola Sportsmen's Association just prior to her departure and her untimely demise. Absent the Defendant, Kris Gamble, being subject to a deposition by this point in time and absent the Plaintiff's receipt of Answers to initial written Discovery requests in the process of being submitted to the Defendant, Enola Sportsmen's Association to determine, inter alia, the names of the bartenders on duty on the day and time in question, the names of other patrons in the Bar on the day and time in question and information concerning the length of time that Defendant Gamble was present at the Defendant's premises, the Plaintiff is not in a position to fully and properly respond to the Request for Admission Number 1, a fact of which the Defendant and Defendant's counsel should be well aware. t r Based upon information and belief, including the blood alcohol level of Defendant Gamble, and the fact that the motor vehicle incident occurred within moments of Defendant Gamble leaving the Defendant's premises, coupled with information obtained from Plaintiff s investigator, the Plaintiff believes and therefore avers that Defendant Gamble was served alcohol at Enola Sportsmen's Association at the day and time in question and was visibly intoxicated at the time of service of the alcoholic beverages. Plaintiff reserves the right to supplement this response as further information becomes available through Discovery. Respectfully submitted, HANDLER, HENJ~IING 81.FiQSENBERG, LLP Date: ~0 '` ~- C~~ By W. Scott , Es ui I.D. #32298 1300 Linglestown Road Harrisburg, PA 171 10 (717) 238-2000 Attorneys for Plaintiff THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW CERTIFICATE OF SERVICE On the 3rd day of October 2007, I hereby certify that a true and correct copy of Plaintiff s Reply to Defendant, Enola Sportsmen's Association's Request for Admissions was served upon the following by depositing in U.S. Mail; John Evans, Esq. Bolan Jahnsen Reardon 31 South Eagle Road Havertown, PA 19083 Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Joseph D. Deal, Esq. Cooper Levenson 1415 Marlton Pike (Route 70) East Cherry Hill Plaza, Suite 600 Cherry Hili, NJ 08034 Respectfully submitted, HANDLER, HENNING & F~OSEI~BERG, LLP Date: ~~ , ~~ ~~~ ,E' By v W. Scott g, q re I.D. #32298 1300 Linglestown ad ~ Harrisburg, PA 171 10 (717) 238-2000 Attorneys for Plaintiff r.~ ~__ c: ~ T l R ` `1 '• ` -~ ._ I "~'4 ~ J ~ - ~. t ~: ~ -ri _ {*.~ '_ -~ ~~ John Reed Evans, Esquire jevans(c~bolanjahnsen.com BOLAN JAHNSEN REARDON 830 Broad Street Shrewsbury, NJ 07702 (732) 212-1200 Attorney for Defendants, Enola Sportsmen's Association THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER Deceased COURT OF COMMON PLEAS CIVIL ACTION -LAW CUMBERLAND COUNTY Plaintiff v. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION DOCKET NO.07-4985 CIVIL TERM JURY TRIAL Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Enola Sportsmen's Association, in the above-captioned matter. Respectfully submitted, BOLAN JAHNSEN REARDON Reed Evans, Esquire Date: September 20, 2007 C'7 ~a t~ ~ ~.x t'-., ~ ~ , ~ ~~ -f ~t ~,. ~" Mme. ~ John Reed Evans, Esquire j evans(c~ bolanj ahnsen. com BOLAN JAHNSEN REARDON 31 South Eagle Road, Suite 202 Havertown, PA 19083 (610) 449-0489 Attorney for Defendants, Enola Sportsmen's Association THOMAS WHEELER, COURT OF COMMON PLEAS Administrator of the Estate of CIVIL ACTION -LAW ANNETTE WHEELER CUMBERLAND COUNTY Deceased Plaintiff v. DOCKET NO. 07-4985 CIVIL TERM KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION JURY TRIAL Defendants PRELIMINARY OBJECTIONS ON BEHALF OF ENOLA SPORTSMENS ASSOCIATION TO PLAINTIFF'S COMPLAINT 1. Plaintiff commenced this action on or around August 14, 2007 by filing a complaint. (A true and correct copy of the plaintiff s complaint is attached hereto and marked as Exhibit "A") 2. Plaintiff properly perfected service on the Defendant, Enola Sportsmens Association, on August 23, 2007. 3. The Defendant, Enola Sportsmens Association, files these Preliminary Objections limited to three issues. 4. First and foremost, the Plaintiff makes a claim for putative damages against Enola Sportsmens Association. In this matter there is insufficient evidence to establish a claim for "reckless" conduct or justify the imposition of putative damages. Rizzo v. Haines, 555 A.2d 580 69 (Pa. 1989). 6. In addition, pursuant to the limiting nature of 47 PS 4-497 there is no provision within the Dram Shop Statute for an allegation or claim for putative damages against a licensed server for alcoholic beverages. 7. The second aspect of these Preliminary Objections is the Plaintiff is making a claim for "strict liability" against the Enola Sportsmens Association, a licensed server of alcoholic beverages. 8. There is no provision in the Dram Shop code to allow fora "strict liability" against a licensed server of alcoholic beverages. Pennsylvania State Police Bureau of Liquor Control Enforcement v. JEK Enterprises, Inc., 680 A.2d 53 (Pa.Cmwlth. 1996). 9. Finally, the Plaintiff s Complaint makes various allegations against Enola Sportsmens Association, a licensed server of alcoholic beverages, which are not permitted pursuant to Dram Shop Statute. 10. Plaintiff has made claim against Enola Sportmens Association, a licensed server of alcoholic beverages, due to alleged unlawful service of alcohol. 11. Liability to the licensed server of alcoholic beverages is under control by 47 PS Section 4-497, commonly referred to as the Dram Shop Statute. 12. Pursuant to 47 PS 4-497, no licensee shall be liable to third persons account of damages afflicted upon them of the licensed premises by customer of the licensee unless the customer who inflicts the damage was sold or furnished malt or brewed beverages by said licensee or its agents, servants or employees when said customer was visibly intoxicated. 13. The Plaintiff s Complaint in paragraphs 47(b); 47(e) 53(b); and 53(e), Plaintiff makes the following objectionable counts: 47 The occurrence of the aforementioned incident and the resulting death to Plaintiff's decedent, Annette Wheeler, was caused directly and proximately by the negligence of Defendant, Enola Sportsmens Association, by its agents, servants, workmen or employees acting in the scope of their employment and/or their authority generally more specifically as set forth below... ... (b) In failing to properly train and supervise employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to persons who are visibly intoxicated; ... ... (e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person who was visibly intoxicated and/or the frequent drinker and/or to a patron with well-established drinking habits when Defendant knew or should have known that Chris Gamble was visibly intoxicated. 14. In Paragraph 53 the Plaintiff makes the following objectionable counts: 53 The occurrence of the aforementioned collision and the resultant injuries to the plaintiff's decedent, Annette Wheeler, were caused directly and proximately by the negligence and/or carelessness of Defendant, Enola Sportsmens Association, by its agents, servants, workmen or employees, acting in the scope of their authority generally and more specifically as set forth below:... ... (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated; ... ... (e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who is a minor or a person who is visibly intoxicated and/or was a frequent drinker and/or to a patron with well- established drinking habits when Defendant knew or should have known that Chris Gamble was visibly intoxicated. 15. These allegations are improper pursuant to the language of the Dram Shop Statute 47 PS 4-497. 16. Defendant files these Preliminary Objections pursuant to Rule 1028(a)(3) in that the allegations made by the Plaintiff lack specific specificity and pursuant to (4) that the allegation made by Plaintiff are insufficient. WHEREFORE, the foregoing reasons Defendant, Enola Sportsmens Association respectfully request this Honorable Court enter the attached Order dismissing Plaintiff's improper counts dismissing all claims that Defendant is "strictly liable" and dismissing any allegations for putative damages. Respectfully submitted: BOLAN JAHNSEN REARDON BY: J Reed Evans, Esquire Attorney for Defendants, Dated: ~ -ll' Enola Sportsmens Association John Reed Evans, Esquire jevans a,bolanjahnsen.com BOLAN JAHNSEN REARDON 31 South Eagle Road, Suite 202 Havertown, PA 19083 (610) 449-0489 Attorney far Defendants, Enola Sportsmen's Association THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER Deceased COURT OF COMMON PLEAS CIVIL ACTION -LAW CUMBERLAND COUNTY Plaintiff v. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION DOCKET NO. 07-4985 CIVIL TERM JURY TRIAL Defendants DEFENDANT, ENOLA SPORTSMENS ASSOCIATIONS, MEMORDANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT I. STATEMENT OF FACTS Plaintiff commenced this action on or about August 21, 2007 by filing a Complaint. (A true and correct copy is attached hereto and marked as Exhibit "A"). This is a wrongful death suit on behalf of the Estate of Annette Wheeler (hereinafter Wheeler) against various defendants due to a motorcycle accident which is alleged to have occurred on May 13, 2007. (Please see Exhibit "A") Plaintiff alleges that the co-defendant, Chris Gamble (hereinafter Gamble), was served alcoholic beverages while visibly intoxicated at the American Legion Post 751 (hereinafter American Legion) and Enola Sportsmens Association (hereinafter Enola} in violation of the Pennsylvania Dram Shop Statute. Plaintiff alleges that Gamble then gave the decedent Wheeler a ride on his motorcycle and was involved in a motor vehicle accident causing Wheeler's death. The Plaintiff has made a negligence claim against Gamble and filed Dram Shop claims against the American Legion and Enola. Enola files these Preliminary Objections limited to three issues. First and foremost, the Plaintiff makes a claim for putative damages without insufficient supporting allegations against Enola Sportsmens Association. The second aspect of these Preliminary Objections is the Plaintiff is making a claim for "strict liability" without any support legal authority against the Enola Sportsmens Association, a licensed server of alcoholic beverages. Finally, the Plaintiff s Complaint makes various allegations against Enola Sportsmens Association, a licensed server of alcoholic beverages, which are not permitted pursuant to Dram Shop Statute. II. MEMORANDUM OF LAW A) The Plaintiffls claims for putative damages are improper against Enola Sportsmens Association should be dismissed. There is no supporting evidence of claims for putative damages against the Defendant, Enola. In Plaintiff s complaint the plaintiff alleges that Enola was responsible for putative damages without any supporting allegations. There is simply no evidence in Plaintiff s Complaint in support of these allegations. It is well established that allegations of reckless, grossly negligent, willful wanton conduct or Plaintiff s punitive damages must be specifically pled. Rizzo v. Haines, 555 A.2d 58 (Pa. 1989); Feld v. Merriam, 485 A.2d 742 (1984). In this matter, there is no specific allegation in the Plaintiff s Complaint to support any of these claims. According to Pennsylvania law Preliminary Objections may be filed by a party to any pleading and are limited to legal insufficiency of a pleading (demurrer). Pa. R.C.P. 1028(a)(4). In the matter at hand, the Plaintiff makes a claim against Defendant Enola for "reckless", "wilful and wanton", "grossly negligent conduct" and for "punitive damages". Yet insufficient evidence or allegations listed in the Complaint justify such a claim. In addition, 47 P.S. 4-497 which is specifically a limiting provision in the liquor code, for the awarding of punitive damages. See Detwiler v. Brumbaugh, 441 Pa. Super. 110; 656 A.2d 944 (1995). Consequently, any and all allegations supporting a claim for punitive damages should be stricken. B) The Plaintiff makes a claim than Enola is strictly liable. This is improper pursuant to Pennsylvania Law and allegations as the Defendant, Enola being "strictly liable" should be stricken. The limiting nature of 47 P.S. 4-497 was first recognized in Reber v. Commonwealth of Pennsylvania Liquor Control Board, 101 Pa. Cmwlth. 397, 516 A.2d 440 (19$6). As noted in Reber, § 4-497, "...does not create a cause of action against a licensee, but in fact, limits the extent of a licensee's liability." The limiting nature of § 4-497 was further discussed in Detwiler v. Brumbaugh, 441 Pa. Super. 110, 656 A.2d 944 (1995). Pursuant to the Superior Court in Detwiler, "It is clear that Section 4-497 acts as a shield restricting liability instead of a provision defining where it is to apply." Under Pennsylvania law, if the Plaintiff is able to establish a violation of 47 P.S. 4-497, Defendant Enola would be negligent per se due to violation of the statute. See Pennsylvania Standard Jury Instructions 3.07. However, there is a big difference between negligence per se and strict liability. The strict liability standard for licensed server of alcoholic beverages was specifically held not to apply in liquor liability claims. In Pennsylvania State Police, Bureau of Liquor Control Enforcement v. J.E.K Enterprises, Inc., 680 A.2d 53 (Pa. Cmwlth. 1996); the Liquor Control Board, in attempting to uphold a fine of a licensee, argued that there is strict liability on the licensee far violating the liquor control statutes. In the J.E.K. case, a Liquor Control Officer observed a male patron get cut off from consuming any more alcoholic beverages after showing signs of intoxication. Some period of time later, the Officer observed an unknown patron purchase alcohol from the bar and provide it to the patron who was earlier cut off. According to the opinion, the Liquor Control Board argued before the Commonwealth Court, "...the Liquor Code imposes a strict liability on the licensee, and all that has to be shown is that alcohol was consumed on the licensee's premises by one who is statutorily prohibited from doing so. The Bureau contends that such liability attaches, regardless of whether or not the licensee took affirmative steps to provide the patron with alcohol". The Commonwealth Court ruled that it was not unlawful for a visibly intoxicated patron to be within a licensed liquor establishment. Rather, it was unlawful for that establishment to serve the patron. A violation of the Liquor Code only occurs, "...when the licensee `permits' the consumption of alcohol by taking or failing to take actions to prevent it from occurring". In specifically rejecting the Liquor Control Board's argument that a strict liability standard should be imposed on a licensed server, the Commonwealth Court held in a footnote: If strict liability was truly the standard, where a visibly intoxicated person entered a bar unbeknownst to the licensee, stole a drink from another patron, and drank it while that patron wasn't looking, the licensee would violate § 4-493. We do not believe that the Bureau is actually arguing for that standard. J.E.K., 680 A.2d at 55 (FN2). Counsel for Plaintiff is correct that it is proper to plead negligence per se for violation of the dram shop statute, 47 P.S. 4-497, in his Complaint. However, it is improper fora "strict liability" standard to be imposed where there is no statutory authority for imposing a strict liability standard and there is no caselaw supporting imposition of a strict liability standard on a licensed server of alcoholic beverages. The only case remotely on point, is the J.E.K. case, 680 A.2d 53, which specifically states that a strict liability standard violation of the liquor code is not proper. C) Pursuant to the Dram Shop Statute, Plaintiff Can Only Prevail If He Can Establish That the Defendant Served the Alleged Intoxicated Patron Alcoholic Beverages While Robert Farrell Was Visibly Intoxicated. As Such, the Allegations Contained in 47(b), 47(e), 53(b), 53(e) Should Be Dismissed. Plaintiff alleges that Enola is liable to Plaintiff for injuries he sustained as a result of the alleged negligent service of alcohol to Defendant, Gamble. Liability for the service of alcoholic beverages on behalf of a licensed server is controlled by 47 P.S. 4-497. Pursuant to 497: No licensee shall be liable to third persons on account of damages inflicted upon them off the licensed premises by the customer of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by said licensee or his agent, servant or employee when said customer was visibly intoxicated. Clearly, the wording of 47 P.S. 4-497 is meant to protect the licensed servers of alcoholic beverages and limits liability for service of alcohol. The Plaintiff can only prevail in this litigation if he can prove that Defendant Enola served Gamble while visibly intoxicated. Id. In Plaintiff's Complaint, Paragraphs 53(b) and 53(e) makes various allegations which are simply not permitted pursuant to the dram shop statute. Specifically, in Paragraph 53 of the Complaint (Exhibit "A"), the Plaintiff claims there is liability on the Defendant for: 53 The occurrence of the aforementioned collision and the resultant injuries to the plaintiff's decedent, Annette Wheeler, were caused directly and proximately by the negligence and/or carelessness of Defendant, Enola Sportsmens Association, by its agents, servants, workmen or employees, acting in the scope of their authority generally and more specifically as set forth below:.. . ... (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated; ... ... (e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who is a minor or a person who is visibly intoxicated and/or was a frequent drinker and/or to a patron with well- established drinking habits when Defendant knew or should have known that Chris Gamble was visibly intoxicated. Clearly, 47 P.S. 4-4971imits the cause of actions a plaintiff can bring against a licensed server of alcoholic beverages. According to the Superior Court in the matter of Detwiler v. Brumbaugh, 441 Pa.Super. 110; 656 A.2d 944 (1995), "Section 4-497 is clearly a limiting provision designed to specifically shield licensees from third parties, except in those incidents where the patrons are served while visibly intoxicated." The limiting nature of 47 P.S. 4-497 was first recognized in Reber v. Commonwealth of Pennsylvania Liquor Control Board, 101 Pa. Cmwlth. 397, 516 A.2d 440 (1986). As noted in Reber, Section 4-497, "...does not create a cause of action against a licensee, but in fact, limits the extent of a licensee's liability." The limiting nature of Section 4-497 was further discussed in Detwiler v. Brumbaugh, 441 Pa.Super. 110; 656 A.2d 944 (1995). Pursuant to the Superior Court in Detwiler, "It is clear that Section 4-497 acts as a shield restricting liability instead of a provision defining where it is to apply." There is no provision in 4-497, for the imposition of liability other than service to a visibly intoxicated patron. Consequently, all allegations other than those surrounding service to the allegedly visibly intoxicated Stephen Engle should be stricken. Recently, this identical issue was addressed in other courts within the commonwealth. Attached to this Memorandum are two separate court Opinions which support these Preliminary Objections. In the matter of Meyers v. Red Lion Cafe, Inc., et al., Court of Common Pleas of Schuylkill County, Civil Action No. 5-632-2004 (attached hereto as Exhibit "B"), the Red Lion Cafe filed Preliminary Objections stating a licensee has no duty to prevent an intoxicated patron from driving. The court granted defendant's preliminary objections on this issue. Pursuant to the Meyers Opinion, "Section 4-497 shields liquor licensees from liability to third persons, unless the customer invoking the injury exhibits signs of visible intoxication at the time he/she is served". Meyers at p. 6 citing Hiles v. Brandywine Club, 662 A.2d 16, 18 (Pa.Super. 1995). In the case of Dimming v. Mozelesky, et al., Court of Common Pleas of Northampton County, Civil Action No. C0048CV2003001498 (2003), the Plaintiff made the following objectionable counts in his Complaint: 14. Defendant's carelessness, negligence, and recklessness consisted of the following: (c) Negligently and carelessly failing to warn Brenda K. Mozelesky that she was intoxicated and should not drive... (d) Failing to take steps to prevent Brenda K. Mozelesky from operating her motor vehicle when she was under the influence of liquor and/or brewed alcoholic beverages served to Brenda K. Mozelesky by defendant to the extent that she was incapable of safe driving. (See Exhibit "C", pp. 1-2). The licensee defendant filed Preliminary Objections on those two counts. The Court of Common Pleas of Northampton County, in granting defendant's preliminary objections held, "Clearly, a licensee is not privileged to use force against or to impose confinement upon another for purposes of preventing a violation of statute or the commission of a crime. Thus, a licensee has no legal authority to prevent a patron from operating his or her automobile even if the patron is intoxicated. Theoretically, a licensee may expose himself to liability if force would be applied or confinement imposed in order to prevent a patron from operating his or her own automobile". In sustaining the Preliminary Objections, the court in Dimming held, "the Plaintiffs have cited no cases nor can we find any that extend liability to a licensee for a failure to warn patrons of the effect and/or dangers of alcohol ingestion combined with driving". Id. at p. 4 In the matter at hand, the Preliminary Objections filed by the licensee Defendant seeks to prevent the Plaintiff from making claims against a licensed server for failure to prevent others not in the employ of the licensed Defendant from providing alleged patron, Stephen Engle, with intoxicating beverages, strict liability for violations of the Pennsylvania Crime Code and Pennsylvania Liquor Code, violation of all statutes concerning the service of alcoholic beverages giving rise to civil liability, and for respondent superior. It is clear from review of the statute the case law in Pennsylvania, the only viable cause of action that the Plaintiff has against a licensed Defendant is violation of 47 P.S. 4-493. All other allegations should be stricken. III. CONCLUSION Plaintiff is making a claim against various Defendants including Enola Sportmens Association due to a motor vehicle accident. The Plaintiff alleges Enola is liable to the Plaintiff due to the alleged negligent service of alcoholic beverages to the co-defendant, Gamble. In Plaintiff's Complaint there are three objectionable aspects. First, the Plaintiff makes a claim for putative damages which are unsupported by the allegations in the complaint and should be stricken. Second, the Plaintiff makes a claim that the Defendant, Enola is "strictly liable" there is insufficient legal authority to hold Enola strictly liable in this case and the allegation should be stricken. Finally, the Plaintiff makes an allegation specifically precluded by the Dram Shop Statute. These allegations should be stricken. WHEREFORE, for the foregoing reasons it is respectfully requested that this honorable court enter the attached Order dismissing Plaintiff's claims for putative damages, Plaintiff's claims that Defendant is "strictly liable" and the Plaintiff's allegations specifically pursuant to the Dram Shop Act with prejudice. Respectfully submitted, BOLAN JAHN~-~G REARDON By: d Evans, Esquire for Defendants Date: September 20, 2007 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 iQ:47AM; Page 2 W. Scott Henning, Esquire LD.#32295 HAN©LER, HEN.NING & ROSENt3ERC3, LOP 1300 Lin9lestown Rosd Harrisbltr~, PA 77110 Telephone: (717) 238-2004 Attorney for PlaintifF Fax : (717) 233.3029 E-ma1i: Henning~WHRI..aw.com THOMAS WHEELER, IN THE COUI~tT OF COMMON RLI=~1S Atlrrrinistratar of the Estate of :CUMBERLAND COUNTY, PENNS1fLVAN1A ANNETTE WHEELER, Deceased, Ptalr~t~ff v. NO. 0'7 - x{485 i' v ~ l I erm KRIS GAMBLE, AMERICAN LEG10N : ' POST T~9, -any! ENOLA . SPOR7SMtN`S ASSOCIATION, Defendants :CIVIL ACTION -LAW TICS YQU HAVE BEEN SUED IN COURT.. 4f you wish to defend against the claims set forth in the following pages, you must take action within twenty ~2Q) days.a~ter this Complaint and Notice are seared, by entering a written appearance persarf~Ny or by attorney and filing m writing with the Court your defenses or objections to the '~l~aims set forth against you. You are warned that if you fail to do so the case ma~r.proceet~:without you. ar~d a jud~Fnent may be entered against yvu by the Court_without further notice for any money claimed tt"n th® Complaint or for any other claim yr relief request®d 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`~f0 NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SIT FORTH BELC1i'~'V'. TH.lS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWY'fR. !F YOU CANNOT .AFFORD. TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORIVIATION ABOUT AGEhIGi.ES THAT IIAA'Y OFFER':LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:48AM; Page 3 Lawyer Referral Service 4fli )~loar, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 AVISO USTED HA S1D0 DEMANDADO/A EN CORTE, Sl usted desea defer~derse'de las demandas que se presentan mks adelan#e en las siguientes pfiginas, debt toma~`accfon dentro de los prbximos veinte (20) dtas despu~s de la na#ificacidn de esta Demands y Aviso radicando personalmente o por medio de un abogado una comparecendia:,escrita y radicando en la Corte por escrity sus de#ensas de, y objecciones a, las de~ri~~ndas presentadas-.squ.f en contra soya. Se le advierte de que si us#ed fails de #omaraccibn comp se describe anteriormente, el caso puede proceder sin usted y un faklo por. +r.~alquier sums de dinero reclamada art la demands a cualquier otra reciamacibn o::;remedly solicitado por el demendante puede ser dic#ado en contra soya por Ia Corte sirr rtes aviso adicfonai. Us#ed puede perd®r dinero o prvpiedad u otros derechos impartas~t~es pars usted. UST1E~D DEBE LL:EVAR .ESTE QOGUMENTO A SU ASOGADO tN~IlrEtfir~-YAIWE~TE. Sl USTED'NO "i:lEN.E tJN.ABOCADO, ll.AME O VAYAA LA Sli'aU1ENTE O~tCEN~4 ES7A OFtCINA PUEDE PROVEERtE tNFORMACION A CERCA DE COIN~V CONSEG~}iR UN ABOGADO. S1 U.STfD N©PUEDE pAGAR POR LOS SERViC10S DE UN:AB©CADO, ES PUS{BLE QUE ESfiA OF~CiMA Li" PEJEDA PROYEER INFORMAC1dN SOBRE AC~ENG.~#S 4UE ` 01=REZCAN SERViCIOS LEGA,L.ES S1N CARGO O BAJO COSTO A PERSONI~S 4UE CUALfFiCAN. Lawyer Referral Service 4t3a Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 HAN BY= Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10;48AM; F:1WP Directories\TFC1ComplafnkslDram ShoplWheeler-Wrongful Death.wpd THOMAS WHEELER, Adminfstratar of the Estate of ANNETT.E WHEELER, Deceased, Plaintiff v. KRIS GAMBLE, AM1RICAN LEGfON POST ~'S'l, and ENOLA SPORTSMEN'S ASSOClAT1ON, Defendants Page 4 1N THE COURT OF CC3MNiON PLEAS : CUMBERLAND COUNTY, PENN3YLVANfA __ NO. CIVIL ACTION - f~-1N COMPI_AlNT AND NOW comes the Plaintiff, Thomas Wheeler, Administra#or of the Estate of Annette Wheeler, by and through his attorneys, HANDLER, HENN1'NG & RO5'l=~ilaERG, LLP, by W . SEOtt Henning, Esq., and makes the within Complaint against the Defendants, Kris Gamble, American Legion Post 751, and Enola Sportsmen's Association, ~irzd avers as follows: 1. Plaintiff, Thomas Wheeler, is an adult individual currently residing:a3 8 Black .._ Pine Drive, Mechanicsburg, Cumberland County; Pennsylvania 17050. 2. Annette Wheeler, (hereinafter "Plaintiff's Decedent°) formerly resided at $ Black Pirxe Drive, Mechanicsburg, Cumberland County, Pennsylvania 97050. Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:46ARA; Page 5 3. Defendant, Kris Gamble, is an adult individual currently residing at 105 Hoilowviaw Drive, Enola, Cumberland County, P®nnsylvania 1725. 4. Defendant, Am®rican Legion Post 751, anon-profit entity, organised and existing under the laws of Pennsylvania and having its registered address at 295 Shady Lane, Eno{a, Cumberland County, Pennsylvania 17025. 5. Defendant, ~nvla Sportsmen's Association, a non-profit corporation, organized and existing under the laws of Pennsylvania and having a principle place of business located at 25 N. Enola Drive, Enola, Cumberland County, Pennsytvartiia 17025. 6, At aH times material hereto, Defendants American Legion ar;d Enola Sportsmen's Association acted or failed to act through its agents, servants: and/or ®rr~ployees, acting for Defendant's benefit, under Defendant's control, and within the course and scope of their authority and/or .employment. 7. At all times material hereto, DefendantAmericanLeglon owned and eperated a bar and restaurant located at 295 Shady Lane, Enola, Pennsylvania 17025. ' 8. At all times material hereto, Defendant Enola Sportsmen's Association owned and operated a bar and restaurant located at 290 Pine Hill Road Extens'io~; Enola, Pennsylvania 17p25. 9. At all times material hereto, Defendant American Legion, was a licensee of the Pennsylvania Liquor Control Board, engaged in the .sale and service of alcoholic beverages to patrons of their facility. .. ~__ __ 10. At ail times material hereto, Defendant Enota Sportsmen's Association was a licensee of the Pennsylvania Liquor Control Board, engaged in the sale and service of alcoholic beverages to patrons of their facility. 2 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:48AM; Page 6 11. On or about M.ay 13, 2007, Defendant Gamble entered and was served and consumed alcoholic beverages St Defendant American Legion's establishmert~: After consuming alcoholic beverages at aforementioned location, Def®ndant Gam:bie gaveled to Defendant Enola Sportsmen's Association and consumed more alcoholic beverages. 12. White Defendant Gamble was on Defiendant American Legion.'s premises, Defendant American Legion wrongfully and unlawfully sold or furnished liquor and/or brewed beverages to Defendant Gamble when he was visibly intoxicated, in vioii~tion of ` Pennsylvania Liquor Control Code, 47 Pa, Stat. § 4-493 (1). 13, While Defendant Gamble was on Defendant Enofa Sportsmen's premises, Defendant Enola Sportsmen's Association wrongfully and uniawi~ly. sold or furr+ished liquor and/or brewed beverages to Defendant Gambia when he was visibly intoxf~ated, in violation of the Pennsylvania Liquor Control Code, 47 Pa. Stat. § 4-493(1). 14, After consuming alcohol on Defendant Enola Sportsmen's Association's '. premises, Defendant Gambls left the premises together with Plaintiffs Decedent. Both individuals boarded Defendant Gamble's motorcycle. A short .distance from Defendant ': Enola's premises, Defendan# Gamble's motorcycle s#ruck an embankment along Orrs Bridge Road near the intersection with Kile Road. Plaintiff's Decedent suffered fatal injuries. 15. The aforementioned incident occurred directly after Defendant Gembfe left '' Defendant Enola Sportsmen's Association's premises and white he was still intox('oated as ..,... a result of the alcoholic beverages he consumed on both Defendant Enola Sparfsmen's Associations' and Defendant American Legion's premises. 3 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 1O:49AM; Page 7 16, The aforementioned incident occurred because of Defendant Getnble's impairment due to intoxication and was directly and proximately caused by both Defendant American Legion's and .Defendant Enola Sportsmen's Association's negligen.ce:lr sailing alcoholic beverages to Defendant Gamble. 17. The occurrence of the aforementioned incident and the resulting .injuries to Plaintiffls Decedent, Annette Wheeler, were caus®d directly and proximately; by the n®gligence of Defendants Enola Sportsmen's Association, American Legion, aid Kris Gamble, ay their agents, servants, workmen or employees, acting in the scope of their authority, generally and more specifically as set forth below. COIJN~' 1- WRgALGFUII- DE,F~THlNEGLlGEN f Thomas Whea.ter, ass Adminstrator o the Estate of AnrJet#e Wheeler ~tryd Thomas. Wheeler in hrs own right v. I~rls GamEste 18. Paragraphs 1 through 17 are incorporated herein as if set forth at length. 19. Plaintiff, Thomas Wheeler, is the duly appointed, quai'ified, and cuiTently acting Administrator of the Estate of Annette Wheeler. 20. This civil action is brought pursuant to the Pennsylvartia Wrongfu{,::,Death Act, 42 Pa. C.S.A. § 8301 et seg. and Rule 2201 of the Pennsylvania Rules of`~ivll Procedure. 21. Plaintiff's Deceden#, Annette Wheeler, did not bring any other actia:n during her lifetime and no other action for the death of said ©ecedent has b®en% commenced against Defendant herein or any other person besides the aforementioned. - 22: -This civil action is -being brought to recover, on behalf of ail-statutory beneficiaries of the Plaintiff's Decedent, all damages legally available under this : - Vlfrvngful Death Act. 4 Sent By: THE UPS STORE; 717 728 3257; Aug-24-Q7 10:49AM; Page 8 23. The occurrence of the aforesaid incident and the fatal injuries resulting they®from were caused directly and proximately by the negl#gence of the Defenctarrt, Kris Gamble, generally and mare specifically as set forth below: (a) In failing to be reasonably vigilant to observe the roadway. (b) in driving his vehicle with a careless disregard for the safety~of others, in violation of 75 Pa.C.S.A. § 37'{4; (c) in failing to be continuously alert, in failing to perceive any ~vaming of danger that was reasonably likely to exist; (d) In failing to operate said vehicle under proper and adequate control in order that he could avoid causing the fatal accident; (e} In driving Defendant's vehicle in willful and/or wanton disregard for the Safety of persons yr prop®rty, in violation of 75 Pa.C.SrA. §3736; (f) In driving in a careless manner, in violation of 75 Pa. C.S.A:".§ 3714; (g) In driving while intoxicated, in violation of 75 Pa. C.S.A. § X802; (h) In driving .Defendant's motor vehicle at a tim® when he was :unfit to do so, due to his consumption of alcohol andlar drugs; and (I) In otherwise driving Defendant's vehicle upon a roadway in.s manner endangering persons and property and in a manner with . ... . careless disregard to the rights and safety ofi others to violation of the IVlotor Vehicle Code of the Commonwealth of Pennsylvania. 24. As a direct and proximate result of the negligence of th9 Defenddttt, Kris 5 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:49AM; Page 9 Gamble, Plaintiffs Decedent, Annette Wheeler, sustained fatal injuries including'but not limited to head trauma, which resulted in her death on May 21; 20Q7. 25. $y reason of the death of Plaintiff s Decedent, Annette .Wheeler, I~l~intiff s Decedent, Annette Wheele-'s surviving relat'Nes have been compelled to expedti~~-'fund forfuneral and burial expenses, and have sustained pecuniary loss and also ha~v~ been deprived of th® decedent's valuable support, comfort, society, counsel, services 8~nd companionship, and a claim is made therefor. - YVHERI=FORE, Plaintiff, Thomas Wheeler, Administrator of the estate ofAtinette Wheeier, deceased, and Thomas Wheeler, in his own right, seeks darrrages frarr~ the Defendant, Kris Gamble, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. CQUNT'!! -.SURVIVAL ACTIOhI/NEt~I.IG~NC~ Thomas 'VIIMeeiar, as Adrrtlnlstirator o1P the Estate of Annette YlRheeler and '~'tiomas Wh®eler in his own right v. Kris Gamble 26. Paragraphs 1 through 25 are incorporated herein as l#' fully set fob below. 27. Plaintiff, Thomas Whe®ler, as the duly appointed, and Currently ac~ing Administrator of the Estate of Annette Wheeler, Deceased, incorporate Paragraphs 1 through 25 l,ereln as If set fflrth at length. 28. In his capacity of personal representativ® of the Estat® of Annette Wheeler, Plain#iff, Thomas 'Wheeler, brings this action pursuant to the Pennsyl~ran:ia Act, 42 Pa, C.S.A. § 83012, et seq, and 20 Pa. G,S.A. § 3373, et seq. 29. The occurrence of the a#oresald incident and the resultant fatal inl~tries to Plaintiffs Decedent were caused directly and proximately by the negligence of'tCris Gamble, generally and more specifically set forth below: 6 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:50AM; Page 10 (a) !n failing to be reasonably vigilant to observe .the roadway. . (b) In driving his vehicle wi#h a careless disregard for the sa~fety.of others, in violation of 75 Pa.C.S.A. § 3714; (c) In failing to be continuously alert, in failing to perceive any vwaming of danger that was reasonably likely to exist; (d) In failing to operate said vehicl® under proper and adequate .eon.trol in order that he could avoid causing the. fatal acciden#; (e) In driving defendant's vehicle in witfful and/orwanton disregard for the safety of persons or property, in violation of 75 Pa.C.S:A;. §3736; (f) In driving in a careless mann®r, in violation of 75 Pa. C.S.A::.§ 3714; (g) In driving while intoxicated, in violation of 75 Pa. C.S,A. § 31302; (h) In driving Defendant's motor vehicle at a tim®when he was unfit to do so, due to his consumption of alcohol andlor drugs; cad (i) !n othen+vise driving Def®ndant's vehicle upon a roadway in a manner ®ndangering persons and property and in a manner ~ri#h careless disregard to the rights and safety of others in violation of the Motor Vehicle Code of the Commonwealth of Pennsyhra~ia. 30. As a direct and proximate result of the negligence of the D®fendarrt Kris Gamble, Plaintiff s Deceden#., Annette Wheeler, sustained fatal injuries including; .but not limited to head trauma, which resulted in her death on May 21, 2007. 31, As a result of the negligence and carelessness of the Defendant, iris Gamble, Plaintiffs ©eceden#, Annette Wheeler, suffered physical and mental paih and anguish and, thus, a claim is made therefore. 32, As a result of the negligence of Defendant, Kris ~Garnble, Plairztlff s: Sent By: THE UPS STOPE; 717 728 3257; Aug-24-07 10:50AM; Page 11 Decedent, Annette Wheeler, is now unable to continue to be a productirte member of the work force and thus a claim is made for lost future wages and/or retirement benefits. 33. ay reason of the dea#h of Plaintiff s Decedent, Annette Wheeler, Pf~intiff's Decedent, Annette Wheeler's surviving relatives have been compelled to expend:funds #or funeral and burial services, and said relative has also been deprived of. Anndtte Wheeler's comfort, counsel, companionship and society, and a claim is made therefore. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of ~tnnette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Defendant, Kris Gamble in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT tll ~ VIfRON(~FUL QE. ATHId,~GLIGE~NCE Thomas Whe®l~r, as Adminiatrator of the Es~arte of Annette Wheeler and Thomas Wheeler in his own right v. ,d-merican lRegion Post 751 34. Paragraphs 1-33 are incorporated herein as if fully set €orth below.: ` 35, The occurrence of the aforementioned incident and the resulting fuel injuries to Plaintiffs Deceden#, Annette Wheeler, were caused directly and proxi-ttately by the negligence of Defendant American Legion, by its agents, servants, workn~.en or employees, acting in the scope of their authority, generally and more spec~caily ds set forth below. (a) In negligently and carelessly selling or furnishing liquor and/or brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Cade, 47 Pa. C.S.A. § 4-493(1); 8 I Sent By: THE UPS STORE; (b} tc) ~d) (e) 717 728 3257; Aug-24-07 10:50AM; In failing to. properly train and supervise its employees so as to prevent them from selling, fumishing or giving liquor and/or brewed beverages to patrons who are visibly intoxicated; 1n failing to conform to the requirements of the Pennsylvania Dram Shop Act; In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/ar fumishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, sen+ants and/or employees; In failing to perfom~ an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person white visibly intoxicat®d and/or who was a frequent drinker and/or tv a patron with well established drinking habits, when Defendant knew or 9 ige 12 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 1O:5OAM; Page 13 shoultl have known that Kris Gamble was visibly intoxicated. 36, As a direct and .proximate result of the Defendant's negi.~ence, Pta€n#iffs Decedent has sustained fatal injuries including, but not limited #o head trauma, which ceased her death on May 21, 2007. 37. By reason of th® death of Plaintiffs Decedent, Annette Wheeler, PiaintlfFs Decedent, Annette Wheeler s surv'nring relatives have been compelled to expend;fiund for funeral and burial exp®nses, and have sustained pecuniary loss and also haws been deprived of the decedent's valuable support, comfort, society, counsel, serv#c~s `and companionship, and a claim is made therefor. WHE~EfC)Rf, Plaintiff, Thomas Wheeler, Administrator of the Estate of Annette Wheeler, deceased and Thomas Wheeler, In his own right, seeps damages frorr~ the Defendant American Legion Post 75'!, in an amount in excess of the compulsory arbitration #im#ts of Cumberland County, exclusive of interests and costs. Cpl T lV,-;~tf~V#1~~L AC'i'101~1/N~GiaCEhi~E Thotxras 1Nhee#er-as Administrator of tht Estate of Annet#s Witeeier and Thomas Wheeler, in his own right v, American :Legion Past 751 38. Paragrarphs 1-37 are incorporat®d here in as if fully set forth be#ow, 39. Plaintiff, Thomas Wheeler, as the duly appointed, and. currently acting Administrator ofi the Estate of Annette Wheeler, Deceased, incorporates Paragt'aphs 1 ,, through 37 t,erein as if set for.at leng#h: . 40. Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:50AM; P2ge 14 Wheeler, Plaintiff, Thomas Wheeler, brings this action pursuant to the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373, et seq. 41. The occurrence of the aforementioned collision and the rrusultant injuries to Plaintiff s Decedent, Annette Wheeler, were caused directly and proximately by the negligence and/or carelessness of Defendant, American Legion, by its agents, servants, workmen or employees, acting in the scope of their authority gen®rall~.and more specifically as set forth below: (a) In negligently and carelessly selling or furnishing liquor andlor brewed beverages to Kris Gamble when he was visibly intoxicated, in violation o€ Pennsylvania Liquor Control Coda, 47 Pa. C.S.A. § 4-493(1); (b) in failing to properly train and supervise its employees so as to prevent them from selling, fumishing or giving liquor and/or brewed beverages to patrons who are visibly intvxica#ed; (c} In failing to conform to the requirements of the - Pennsylvania Dram Shop Act; (d) In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to th® sale, supply andlor furnishing of alcoholic beverages to minors and/or persons visibly intoxicated, andlor known to be habitual drunkard and/or a person of known 11 Sent By: THE LIPS STORE; (e) to failing to be responsible via respondent superior andlor vicarious liability for acts and omissions of. its employees, agents, servants, independent contractors, shareholders, partners andlor property owners; and (f) 4n failing to perform an adequate and necessary €nvestigat€on to determine whether or not alcohol was being served to a person who was a minor or a person whine visibly intoxicated andlor who was a frequent drinker and/or to a patron with well established drinking habits, when Qefendant knew or should have known that itris Gamb€e was visibly intoxicated. 42. As a direct and proximate r®sult of the neg€igence of Defendant, aer'scan Legion, Plaintiff's becedent, Annette Whee{er, sustained #atal injuries includingbut not limited too head trauma, which r®sulted in her death on May 21, 2007, 43. As a direct and proximate result of the negligence of .Defendant, arnerican Legion, Plaint€ffs Deceden#, suffered physical and mental pain and anguish arid, thus a claim is-made then®fore. 44. As a result ofi the negligence of Defendant, American. Legion, PFair~tiffs Decedent, Annette Wh®eler, is now unable to continua to be a productive rhember of the work force and thus a ciairn is a made for lost future wages andlor retirement benefits, 717 728 3257; Aug-24-07 10:51 AM; intemperate habits by liquor licensees, their agents, servants and/or employees; sa Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:51 AM; Page 16/26 45. By reason of the death of Plaintiff's Decedent, Annette Wheeler, pt~intiff s Cecedent, Annette Wheeler's surviving relatives have been compelled to expend fund for funeral and burial expenses, and have sustained pecuni®ry loss and also have been deprived of the decedent's valuable support, comfort, society, counsel, services and companionship, and a claim is made therefor. WHEREFORE, Plaintiff,?homas Wheeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas VlFheeler, in his own right, seeks damages frorr# the De#endant, American Legion Post 751, in an amoun# in excess of the compulsory. arbitration limits of Cumberland County, exclusive of interest and casts. CAUNT V - WR4MGFUL ULATHfNEGLIGEN.GE Thomas 1Nhe~efer, as Administrator of the Estate o Annette- VVhe~rter antl'Y`h~mas . Wheeler, In his own right v. Enola Sportsmen's Association , 46, Paragraphs 1-45 ar® incorporated herein as if set forth at length. - 47. The occurrence of the aforementioned incident and the resultlr-g death to Plaintiff's Decedent, Annette Wheeler, were caused directly and proxirr~ately by'ttie negligence of ©efendan#, Enola Sportsmen's Association, by its agents, servants, workmen or employees, acting in the scope of their employment andlor their authority, generally and more specifically as set forth below: (a) In negligently and carelessly selling or furnishing liquor andlor brewed t~everages to Kris Gamble when he was _.. visibly intoxicated, in violation of Pennsylvania Liquor Cohtrol Code, 47 Pa. C,S.A, § A~-493(1); 13 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:51 AM; (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor andlor brewed beverages to patrons who are visibly intoxicated; (c) In failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d) In being negligent per se and/or strictly liable for violations of ---~. the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply andlor fumishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants andlor employees; ( In failing to perform an adequate and necessary investigation tv determine whether or not alcohgl was being ' served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/or to a patron with well established drinking habits, when Defendant Page 17/26 knew or should have known that Kris Gamble was visibly intoxicated. ........ ............................ ~8. As a direct and proximate result of the Defendant's, Enola Sportsmen's Association, negligence Plaintiff's Decedent, Annette Wheeler, suffered fatal injuries, including but not limited to head trauma, which resulted in her death on May 2~.; :2007. 14 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 1O:51AM; Page 18!26 49. By reason of the death of Plaintiff's Decedent, Annette .Wheeler, Plaintiff s Decedent, Annette Wheeler's surviving relatives have been compelled to experi~~:#und for~funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedents valuable support, comfort, society, counsel, servicesand companionship, and a claim is made therefor. 1NHE.REFQRE, Plaintiff, Thomas W heeler, Administrator of the Estate of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages #rotri the Defendant, Enola Sportsmen's .Association, in an amount in excess of thy: compulsory arbitration limits of Cumberland County., exclusive of interest and costs. 0~ 41NT . SU$~(LVAI_ ACTIOhIlN~4Lt~EN~C~ Thomas Wheeler as Admin strator of ttt® fEsta~ of Annette Vlffreetgr, and Th~amas Whoeler, In hls own right v. Enola Sportsm®n's Assoclation 50. Paragraphs 1-49 are incorporated here in as if fully set forth belov~: 51, Plain#iff, Thomas Wheeler, as the du{y appointed, and currently acting Administrator of the Estate of Annette Wheeler, Deceased, incorporates Paragr~.phs 1 through 49 h®rein as if sat for at length. 52. In his capacity of personal representative of the Estate of Annette', Wheeler, Plaintiff, Thomas Whe®l®r, brings this ackion pursuant to the Pertnsylvi~nla Survival Act, 42 Pa. G.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373, et seq. 53. The occurrenc® of the aforementioned collision and the resultant rr~juries td PlaintifFs Decedent, Annett®Wheeler, were caused directly and proximately by the negligence and/or carelessness of Defendant, Enola Sportsmen's Association, by its S5 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:52AM; Page 19/26 agents, servants, workmen or employees, acting in the scope of their authority generally and mor® specifically as set #orth below: (a) In negligently and carelessly selling or famishing liquor andlor brewed beverages to Krls Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493(1); In failing to properly train and supervise its - employees so as to prevent them from selling, furnishing or giving liquor andlor brewed beverages to patrons who are visibly intoxicated; {c) In failing to con#orm to the requirements of the Pennsylvania Dram Shop Act; (d) In being negligent per se andlor strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply andlor furnishing of alcoholic beverages to minors andlor persons visibly intoxicated, andlor known to be ._ _ _.. habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants andlor employees; 16 Sent By: THE UPS STOPE; 717 728 3257; Aug-24-07 10:52AM; Page 20/26 e) In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated andlor who was a frequent drinker andlor to a patron with well established drinking habits, when Defendant knew or should have known that Kris Gamble was visibly intoxicated. 5ci. As a direct and proximate result of the negligence of Defendant, Enoia Sportsmen's Association, Plaintiffs Decedent, Annette Wheeler, sustained €atat Injuries including, but not limited too head trauma, which resulted in her death on May 21, 2007. 55. As a direct and proxima#e result of the negligence ofi Defendant, Eiola Sportsmen's Association, Plaintiff's Decedent, Annette Wheeler, suffered physical and mental pain and anguish and, thus a claim is made therefore. 56. As a result of the negligence of Defendant, Enola Sportsmen's Association, Plaintiff s Decedent, Annette Wheeler, is now unable to continue to be a productive member of the work force and thus a claim is a made for lost fiu#ure vyr~ges andlor retirement benefits. 57. By reason of the death of Plaintiff's Decedent, Annette Wheeler, F~laintiff s Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society, and a claim is made therefore. 17 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:52AM; Page 21/26 _ ;, WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate cr€ Annette 1Nheeler, deceased, and Thomas Wheeler, in his own right, seeks damages frort~ the Defendant, ~nola Sportsmen's Association, in an arnount in excess of th® compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT ~'!l - PU~VITIV~ DAMAGES Tharnas Wheeler as Adminlstrator of the Estate of Annette Whdeler, Deceased, and Thomas Wheeler, in his own right v. Kris Gamble 58. Paragraphs 1-57 are incorpora#ed herein as if set forth. at length. 59. The Nability,producing conduct of Defendant, Kri$ Gamble, as se# forth herein, was outrageous, done in a willful and wanton fashion, with a conscious indifference andlor reckless disregard for the safety of the public generally and.was malicious and~or intentional, and so egregious as to be beyond the bounds of ifeeency in a civilized society, and was in direct violation of speci€c ordinances, laws, st€tes and regula#ions regulating the consumption of alcoholic beverages In the Commonwealth of Pennsylvania. 60. The very nature, quantity and type of violations of statutory provisro:~s, which resulted in th® severe injury to Plaintiff s Decedent, Annette Wheeler, ®vidences outrageous, malicious and intolerable conduct warranting the imposition of exern~iary at~d/or punitive damages. 61. As a direct and proximate result of the grossly negligent and outrageous acts of Defendant, Kris Gamble, Plaintiff's Decedent, Annette Wheeier, sustained fatal i,rtjuries including, but clot limited to, head trauma, which ,resulted in her death a~~tiray . 21, 2007. Plaintiff's Deced®nt suffered physical and men#al pa.in and anguish from the moments commencing with the happening of the .incident until her prems~ture demise on May 21, 2007. 16 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:52AM; Page 22/26 62. As a direct and proximate result of the grossly negligent anal ou#rageous acts of Defendant, Kris Gamble, Plaintiff's Decedent, Annette Wheeler, is now. table to continue to be a productive member of the work force and thus a claim is madefor lost future wages and/or retirement benefits. 63. ay reason of the death of Plaintiff's Decedent, Annette Wheeler, I~laintiff's Decedent, Annette Wheeler's surviving relatives have been compelled #o experac :funds for funeral and burial services, and said relatives have also been d~:prived of Aryt3ett® Wheeler's comfort, counsel, companionship and society. Wi•IEREFORE, Plaintiff, Thomas Wheeler, as Administrator of the Es#ate:.of Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seek damages, including punitive damag®s, from Defendant, Kris Gamble, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial by jury. CQU.NT Viil -PUNITIVE DA14~iACE3 Thomas VM1FhBe~ler as Admini$trator of the Estate of Annette VYheeier, ©eceased, and Thomas'Whesier, in his own right v. American Legion No. 75~:r': 64. Paragraphs 1-63 are incorporated herein as if set forEh at length. 65. The liability-producing conduct of Defendant, American Legion ~Io:;75'1, by and through. its agents, servants and/or employees, as set forth herein, was outrageous, done in a willful and wanton fashion, wi#h a conscious indifferehce andlor i~ckless disregard for the safety of the public generally, the patrons American Legion Na, 7:5'1, and Annette Wheeler specifically, and was malicious andfor intentional,.:and so egreigious as tv be beyond the bounds of decency in a civilized society, and was indirect violation of specific ordinances, laws, statutes and regulations regulating the sale of 'alcoholic beverages in the Commonwealth of Pennsylvania. 66. The very nature, quantity and type of violations of statutory provision, which resulted in th® severe in)ury to Plaintiffs Decedent, Annette 'W'heeler, ~ evidences 19 ._ Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:53AM; Page outrageous, malicious and intolerable conduct warranting the imposition of exgrnplary and/or punitive damages. 67. As a direct and proximate result of the negtigerrt and outrageous ;acts of Defendant, American Legion No. 751, -Plaintiff's Decedent, Annette Wheeler, sustained fatal injuries including, but not limited to, head trauma, which resulted in her daath'on May 21, 2007. Plaintiffs Decedent suffer®d physical and men#al pain and anguish From. the moments commencing with the happening of the incident until her premature demise on May 21, 2007. fib. As a direct and proximate resul# of the negl{gent and outrageouta',acts of Defendant, American legion No. 751, Plaintiffs Decedent, Annette Wheeler, is nov unable to continue to be a productive member of the work force and thus a claim is made for lost future wages and/or retirement benefits. 69. By reason of the death of Plaintiff's Decedent, Annette Wheeler, Plaintiffs Decedent, Annette Wheeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society. WHEREFORE, Plaintiff, Thomas Wheeler, asAdministratorofthe EstateofAnnette Wheeler, deceas®d, and Thomas Wheeler, in his own right, seek damages, including punitive damages, from Defendant, American Legion Post 751, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial by Wry. N1TiVE ~~MAfsFS Thotrras Wheeler as Admifnistra#or of the Estate of.Anneite Wh~eFeir, Oeceas~ed, $r~d Thomas Wheeler., .in his ow.n right v. Enola Sportsmen's Associatlo~. 70. Paragraphs 169 are incorporated herein as if set forth at length. 71. The liability,producing conduct of Defendant, Enola Si3ortsmen's Ass~cia4ion, by and through its agents, servants and/or employees, as setforth herein, was outrageous, 23/26 20 Sent By: THF_ UPS STORE; 717 728 3257; Aug-24-07 10:53AM; Page 24/26 done in a willful and wanton fashion, with a conscious indif#®rence and/or reckless disregard for the safety of the public generally, the patrons Enola Sportsmen's As~ciation, and Annette Wheeler specifically, and was malicious andlor intentional., and so s~gr"eglous as to be beyond the bounds of decency in a civilized society, and was in direct vlo#~tion of specific ordinances, laws, s#atutes and regulations regulating the sale of i~~coholic beverages in the Commonwealth of Pennsylvania. 72. The very nature, quantity and type of violations of statutveyprovision~, which resulted in the severe injury to Plaintiff's Deced®nt, Annette Wheeler, evidences outrageous, malicious and intolerable conduct warranting the imposition ofi exemplary and/or puni#ive damages. 73. As a direct and proximate resul# of the negligent and outrageous ec#s of Defendant, .Enola S.portsmen's Association, Plaintiff's Decedent, Armette VtiFhe®ler, sustained fatal injuries including, but not limited to, head #rauma, which resulted' in her death on May 31, 2007.. Plaintiffs Decedent suffered physical and mental.p~ln and anguish from the moments commencing with the happening of the incident ~intil 'her premature demise on May 21, 2007. 74. As a direct and proximate result of the negligent and outrageous edts of Defendant, Enola Sportsmen's Association, Plaintiff's Decedent, Annet#®Wheeler;: is now '` unable to continue to be a productive member of the work force and thus a claim>is made for lost future wages and/or retirement ben®fits. 75. By reason of the death of Plaintiff s Decedent, Annette Wheeler, f~Ci3intiff's Decedent, Annette W heeler's surviving relatives have been compelled to expend funds for funeral and burial services, and said relatives have also been deprived ref ~-nnette Wheeler's comfort, counsel, companionship and society. WHEREFORE, Plain#iff, Thomas Wheeler, as Administratorofth®Estate ofAnnette V1lheeler, deceased, and Thomas Wheeler, in his own right, seek damages,: including 2 ~, Sent 6y: THE UPS STORE; 717 728 3257; Aug-2A-07 10:53AM; Page 25/26 punitive damages, from Def®ndant, Enola Sportsmen's Association; in an :artt+~un~ in excess of the compulsory arbitration liml#s of Cumberland County, and demands: a #rial by 1~rY• Respectfully submitted, HANDLER, HENNING & ROSi`MBERC`LLP .~ Date• ~ DY~ W. $COtt I ES i~ir® l.D. # 32298 1300 k.inglesto ad Harrisburg, PA 1 10 (x'17) 238-2000 Attorney for Plaintiff 22 Sent By: THE UPS STORE; VERI~tCATi~N The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to course! by me and informs#ion which has been gathered by counsel in the preparation of this lawsuit. The language `~f the document is of counsel and not my own. I have read the docum®nt and to the extent that it is based upon information which I have given to counsel, it is true and Correct to ttZe best of my knowledge, information and belief. To the ext®nt that the contents of the do~rment are that of counsel, I have relied upon my counsel in making this Verifrcation: The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to author€tles. ,~.._..~ v. ~ Thomas Wheeler Date: '~^^~ 1~ , ~. ~ 7 r , , ' jJ. ' i ~ COURT OF COMMON PLEAS OF SCHUYLKILI.. COUN1""'--Ct~'I L ACTION-I.AW HARRY MEYERS, Individually, a,nd as , the Executor of the Estate of .Max Meyers, Plaintiff ; vs. Red Lion Cafe, Inc., d/b/a! Red .Lion Cafe, and Red -Lion Cafe, and Estate of Eric J. Keifer, by and through Administratrix, Melissa Keifer, Defendants Na. S •~-• 632 ~•• 2004 Stephen 7. Carpenito, Esq. -- for Plairiltff Timothy J. McMahan, Esq. ~ for Defendant R~;i~~ L.lon ~af~ Melissa Keifer--pro se OPINION OF COURT' pOMALAKES, J. ~~; ::s " i:ti .' 4 r ~ .; .., ~ ~ C'~ ~ s'.1, ,. ~'L "4 ~~ \. I N'• The matter before the Court concerns Preliminary Objc:;c:#lons ~;~nd Memorandum of I.aw in support thereof which were filed by Defendant Red I.. ors Cs ~~f~ on April 21,: 2004. Plaintiff filed a Brief in Opposition on May 13, 2004. Th~.~ rn;~tt~ r is ripe for disposition. Plaintiff, Harry Meyers. is an individual residing at '! 9 S , 2451 ~ ;reet, Pottsville, Schuylkill County, Pennsylvania.. Plaintiff is the Executor of th~;~ ~s,tat ~,~ of Max Meyers. Defendant, the Estate of Eric Keifer, was established in th4 S~;sl~u;ylkiil Gounty Register of Wills Office on or ahout,February 28, 2003. Administratrix cr"the E'.. fate of Eric Keifer is Melissa Keifer, residing at 157.5 Fair Road, .Schuylkill Have r1, ~-chi ayikill County, Pennsylvania. Defendant, Red l,lon Cafe, is a company incur :7 arate~a under the laws of Pennsylvania and having a registered place of business. at~ R, I:~. ;3, F ~:~ute 443, Pine Grove, Schuylkill County, Pennsylvania. Defendant Red Lion i:;ai'~ i, licensed to sell alcoholic beverages a# its premises. Qn March 31, 2004, plaintiff filed a Complaint alleging ~:`~ai; p~~lsndant Red Lion Cafe was negligent, Inter.alla, In serving or fumishing liquor a~~i~i/car a.::ohoiic brewed beverages on November 10, 2002 to Defendant Eric Keifer wl'i~;n he ,vas visibly intoxicated. Plaintiff' alleged that such action violated tha Penn;: yi~ian ~~ Liquor Code, specifically, Chapter 47, ~SeGtion 4-493 (1) and Section 497. ~; ; ~n No+ ~~:mber 10, 2002, Mr. Keifer was driving an automobile that was involved in an a -.~ cfcien :with an automobile driven by Mr. Robert R. Geese. Mr. Max Meyers w~::s ~~ p~.iisenger in the vehicle operated by Mr. Reese. MT. Keifer, Mr. Geese, and Mr. I ~A~~yet i?. were fatally injured as a result of the accident. Defendant Red Lion Cafe filed its Preliminary 4bJectiom;. ailegl i'ig that Certain paragraphs in Plaintiff`s Complaint should be stricken for failun-:~ to ply ~,ad a cognizable cause of action under Pennsylvania law and'for being seandalc:~ls any: impertinent,. Plaintiff asserts that the allegations, if proven to be true, would ,: uGipo 'l a cause of action for negligence under the aforementioned statute, and also sup.~;a~rl its ;;allegation of wanton disregard for the safety of Plaintiff supporting its claim 1`-: r faun ~~ive damages. Any party. may file preliminary Objections to any pleadin ~;~ bases ,l on the legal insufficiency of a pleading (demurrer). Pa.R.C.p. 1028{a~(.4y. A I: reliml nary 2 objection in the nature of a demurrer admits .every wep-pleadn~~i fact rind all inferences reasonably drawn therefrom: Cre_eger~ Brick & Bldg. Supely In,l:, viM..;i-State Bank & Trust Co.: S60 A.2d 151 tpa. Super, .19691. When ruling on a ~: ernur: ~:r, this Gourt may consider only such matters as arise out of the complaint itself :inci ca !snot supply a missing fact, thus the question presented by a demurrer is whu~ther, ;in the facts averred in the complaint, the law says with certainty that no recoveni 1.~, p~~ssl kyle. David v. . Commonwgalth of Pennsvlva in a. Secretary of Department of I;? utdtc ' ;;~elfar~, and Fayette County Boprd of Commissioners. 598 A.2d 642 fPa. t;;;~~ma ~, 1991 . Any doubts as to whether a demurrer should bs sustained must b~;~ re;;oh ~,~d against the moving party. ld. Defendant Red Lion Cafe's first Preliminary Objection ~: ;s~srts ghat Paragraph 8 of Plaintiff s Comp{aint should be stricken because the aliegatic: n€~ an;~ scandalous and impertinent. tt argues that said Paragraph avers that Defendarrl Red „ion Cafs had control over Mr. Keifer's actions white on the premises but fail:! to ails Ike the business he was conducting on the premises: plaintiff argues #ha# Deferiaiaint F,~:d Lion Cafe is misinterpreting the allegations of the Paragraph and, asserts tFu t i~t on I'~ applies to Red Lion Cafe and any other fictitious names under which it was Ct; riductii'.g business. Paragraph 8 of Plaintiffs Complaint states that "Defend ~;~ ~t~:', F ;i;d Lion Cafe, inc. & Red Lion Cafe'. had complete controt over the manner.in wh I~:h ear ~~ Defendants conducted its business at the premises located. at R.p. #3, Ro~,iie 443, Pine Grove, Schuylkill County, Pennsylvania, 179~~," See Compy, para. 8. ~'Gl1nS i~lvania Rule of Civil Procedure 1028 (a)(2) prohtbtts the "inclusion of scandafo .a s or it ~~ pertinent matter." 3 For allegations to be scandalous or "impertinent" -and thus su I;,. ec:t tc being stricken. the allegations must be Immaterial and inappropriate to the proof i:fi the :pause of action. See Common Cause/Pennsylvania v. Com., 710 P~,2d 'lab fP;~_C;orr,lnw. 1998 , Although it is the right of a Court to strike-impertinent matter, 'ii' at rig •;t should be used "sparingly'-and only when a party can affirmatively show pre); ;{ice. ~~~~~e Comg],onweaith v. Hartford Accident and Indemnity Company, 396 A.2d 8g5. ~;i;38 P•l,. Commw. 19791. . Because Defendant Red Lion Cafe has not shown prejudice iii; the it ;:ctant matter, Paragraph 8 will not be stricken from Plaintiffs Complaint. Altl~u~ugh ~~'aragraph 8 does not assErt only that the allegations mentioned in the Complairif: apply to "Red Lion Cafe and any other fictitious names under which it was conducting I;~usine,;~s" as Plaintiff argues, the Court concludes that it is not scandalous or Imperl lent, the second Preliminary Objection asserted by Def~end~; r;t I~eG Lion Cafe' concerns an allegation that Paragraph 29 should be strtckat~ tu~c~ius~, Ft is scandalous and impertinent. Defendant Red Lion Cafe argues that tnform~~~>lion at.naut Mr. Ketfefs BAC (blood alcohol content) is immaterial to Plaintiff's cau~e.c,l~ at;tiot~~ against it. Plaintiff argues that said paragraph assets that Mr. Keifer's RAC was 'twice • lie legal limit as existed at the -time of the accident" and such evidence is .nece,~; ra:ry to ~~ support (ts cause of action sy showing that Mr. Keifer was visibly intoxicated whr: ~ i s;erv ~.Ad alcohol by Defendant Red Lion CafB. See PL's Memorandum in Opp'n~ta,i.;~r~-Iim,I~aN Objections ~• Paragraph 29 asserts that "Keifer died iri the accident al;r~n~xir •iately five (5) minutes after leaving Defendants' bar and his body tested at ar•~ alcoh~,~i level of a# least 4 .20." See ~omoJ~,~para. 2A. Pennsylvania Rule of Civil Pr~ocec. ~Irc~ 10;'8 {a7{2) prohibits the °inclusion of scandalous or impertinent matter." For allegaJ f ors t~ - be scandalous or "impertinent" and thus subJectto belrig stricken, the allegatior-; rr-us1 ~e immaterial and inappropriate to the proof of the cause of action. See Commal;; C•~u9, ~:/Pennsylvania v. Com.. 7'J0 A.2d 108 (~a. Commw. 1998), Although it is the. rlc,;'~t ~~f a ~~ourt to strike impertinent matter, that right. should be used "sparingly" and c~i ~ (y wh ;-n a party can afftmtatively show prejudice. See Commonwealth v, Hartford ,!!;~c[d~;,t a~c~ndemnlty Company, 39~ A.2d 885, 888 fPe. Commw. 1879). Because [;I-;f~tnd;~;nt Red Lion Cafe has not shown.pcejudico in the Instant matter, Paragraph Z9 ~n~ill not l; 3 stricken from Plaintiffs Complaint. Finally, Defendant Red Llort Cafe avers that several sec; ~ao•ns a rF Paragraph 35 of Platntifl"s Complain# should be stricken because they fail to pl~;~~ld a c °~gnizable cause of action under Pennsylvania law. Specifically, sections (c), {ci),.~! ;;d (g) ..are alleged to be insufficient. tefendant Red Lion Cafe alleges that since the er~ ~;ctme.';t of the Liquor Code in 1951, only Sections 4493(1) end 4-497 have. been u.-~~ d to i~ ~~ypose or limit civic . liability on licensees.. See Def.'s Rad Lion Cafe, P~eliminarv Cl;ije :to ~I} a a 6. More specifically, Defendant Red Lion Cafe asserts that Section 4-4;:? 7 I~as Keen the sole basis for licensee Ifabtlity for injuries to third parties by acts of i.;;~tron~ and Seaton 4- 493(1) applies to licensee liability for inJuries to patrons. See C7,-;f,~'-~ R,;i~i Lion Cafe. Pre~j~inary0 iections~para. 7z. Defendant Red Lion Cafa' an,;; aes #h ~.rt Plaintiff, in Paragraph 35 (c), (d), and (g), is attempting t0 impose an addii,l.m;~I d,,ay where~none exists. 5 Plaintiff argues that"[a]lthough there may be no duty tt; ~r~we pit driving of an intoxicated patron by the Defendant ....the same cannot be €n: id for ~.~ctlons of employees." See PL's Brief in Onu'n to Prefiminary Obiection~i.;p;~. ~~'laintiff asserts that it has alleged facts sufficient to "amount to wanton disregard f r,. • the t i3fety of the Plaintiff which supports the claim for punitive damages." See I;?,_s Bn ~;sf in Opp'n to Prelim~arv ObiectionsL,pL2. The "modern" Liquor Code, enacted in 1951, replaced ~.~it ~~ct ~ ~~at made it a misdemeanor to furnish intoxicating drinks to an intoxicated pE:~, sa n, ~ u~d also provided a "civil remedy for injuries to persons resulting from the fumishir~s~ ofi ah;~~holic beverages in violation of any existing law." See Hiles v, Brandywine CJub,,,;i3B;2 A.,;~d 1fi (Pa. Super. . 995 . The evo{ution ofi licensee liability continued wrth the adrl; tlon o•' 47 P.S. 4-497 in 1965, reenacted in 1987, which "specifically limits the liability c." lic,en~ ~~3es to third parties injured by a licensee's customer." See Hiles y, Brandyr~~~~; Cl ,fib. fi62 A.2d 16. ~ 8 (Pa. Surer. X9951. With the exception of cases involving ml •ivrs, S asction 4-497 "shields liquor licensees from liability to third persons, unla: s tl~ii3 c,ust ;c mer invoking the inJury exhibf#s signs of visible intoxication at the time helshe is !:.erred." See Hiles v. Brandywine Club 662 A.2d 16. 18 (Pa. Super. 19951. Section ~~I• ~•la7 c ~I'the Liquor Cade states: • [n]o licensee shall be liable to third persons on ac. ~; o~mt i ;~f damages inflicted upon them off of the licensed premises b~,~ ctistc rners of the licensee unless the customer who inflicts the dan•~:ig~:s ~.'as sold, famished or given liquor or malt or brewed beverages by th•:~ s;~id ~ansee or his agent, servantor employee when the said custon~uar •~ra~~. visibly in#oxicated:" 47 P.S. 4-497. C Traditionally, liability is established after a finding that s;: duty E~~~~fsted, a breach of that duty occurred and the resulting harm was proximately cai.i;;e~~ b; ~ the breach. See Fennell v. Nationwide Mutual Fire insurance Company. 603 A,, d 101i;~ (Pa. Super. 1992 . Section 4-497 of the Liquor Cede imposes a-duty upon ~~ Ilcer i~ee to refrain from selling, furnishing, yr giving liquor to any customer when that ~;;ais1'.orri.?~r was'visibly intoxicated. Therefore, Section 4-4.97 imposes liability on the li;_ er~sei ~ if it has breached that duty. It does not impose. a duty to prevent driving of an lnt~:7xit:ate ~;i patron, or a duty to not create an image of a place where patrons could drink e~~:;s~~siv:!~ amounts of alcohol, or a duty to not condone excessive drinking by its eml;; loy~ees ~, Plaintiff has not established that the allegations in Paragraph 35 (c), (d), and (4;i,; si.~pp r;rt any legally cognizable cause of action under Section 4-497 of the Liquor c.; ~~de. Accordingly, the Court enters the following: 7 COURT OF COMMON PLEAS OF SCHUYLKILL COUNT'-'--t~IV I_ ACTION-LAW HARRY MEYERS, individually, and as :. NO. S ~~•~ 6;12 -~ 2004 the Executor of the Estate of Max Meyers, PlaintrfF vs. Red Lion Cafe, Inc., d!b!a! Red Llon Cafe, -and Red Lion Cafe, ~ ~ F-; and w;~ ~; Estate of Eric J. Keifer,. by and through --' ~;;"~~ ~'~~ Administratrix, Melissa Keifer, 17 ~"~' ~ ~ ~~' defendan#s~ : •~ .~ •- Stephen T. Carpenito, Esq, -for Plain •:f Timothy J. McMahon, Esq. -for pefendant Ike+;I Li~an i;;afe Melissa Keifer -pro se ORDER OF COU>ZT DoMALAKES, J. AND NOW, this ,_ day of June, at /:fd ~m., up~,~~~ t;ona~ ~deration of Defendant's. Red Lion Cafe, Preliminary Objeckions to Plaintiff';; C~oml:-faint, it is HEREBY ordered as follows; 1. Defendant's Preliminary Objection to Paragraph 8 is +~:~ VE=RF - ULED; 2. Defendant's Preliminary Objection to Paragraph 29 i9 -~ti-EF'~ULED; 3. pefendant's Preliminary Objection to Paragraph 3S (c,;~ is SL;;~TAINEd and said Paragraph is STRICKEN; 4. Defendant's Preliminary Objection to Paragraph 35 ~;i) i;s S ,•~STAINED and said Paragraph is STRICKEN; 5. Defendant's Preliminary Objection to Paragraph 35 (;i) i,~ Si„STAINED and said Paragraph is STRICKEN.. BY THE COUI~~:T, 2 ~T T.BE COURT OF CUMMON PLEAS OF NOR'I'O:A,N~PTON COUNTX, PENNSXLY,,~NIA C~VIIr ACTION -LAW EARL DTNIlVIING AND RSTRLLE DA~NG, ): CO-ADM~N[STRATORS OF THE ESTATE Off' ) BRTNDA 1~07.EDESxY ) and ) ROBERT R. MOZELL+"SKY, ) CO~ADMIlrTYSTRATOR 0~' 'P~3E ESTATE OF ) BRENDA MO~E~SKY, ) ) Plaintiffs, ) vs. ) BROwI+i & 1GXNCI~I AMERICAN LEGjoly j POST #9, ) ) Defendant. ) NO. C0048C'V200300x498 ~ ; ~~ ••j - ~ .~ ~ , ' s ~~~' AND NO'W, this ~.`~~day of August, 2003, the Preliminary Objections filed on behalf of tho Defendant, Brown 8~ ly~.ch American Legion Post #9, are hereby SiTST'AIN~D. STATE1Vi~N'~' OF REASONS Presently before the CourE axe the Preliminary Objections to Plaintiffs' Complaint, filed on behalf of the Defendant, amd Plaintiffs' ,t~nswor to the Preliminary Objections. SpeczfiealJy, Defevdar~t cotate~nds that paragraphs l~{c) and {d)~ of Plaintiffs' Complaint are legally insufficient. Plaintiffs' Complaint paragraphs 14(c) and (d) allege that: 14. Defendant's carelessness, negligence, and recklessness consisted of the following: **** 'Defendant erroneously referred to paragraphs 12(c) a0,d (d} iua the Preliumiinary Objections to Plaintiffs' Complaint; however, upon. fbather review, it is clear that Defendant meaxit to rafar to paragraphs 14(c) and {d}. . . (c) NegligEaatly and carelessly failing to warn Brenda K. Mozelesl~y that she was intoxicated and should not drive; (d) Failing to take steps to prevent Brenda I~. Mozelesky from operatixtg her motor vehicle when she was under the izziluezace of liquor anrJ/ox brewed alcoholic beverages served to Brenda K. Mozeleskyby defendant to the extent that she was incapable of safe driving. ee Plaittti.ff$' Cornplaizat, ¶ 14. The instant matter arises from a aa~vtor vehicle accident that occurred an March 27, 2002. Plaintiffs' decedent, Ms. lYiozelesky, was allegedly served alcoholic beverages by the Defendant; thereafter, she drove her automobile wee intoxicated and struck a vehicle driven by f3ilbert John Davis. Ms. Mozelesky died as a result of dais collision, 'The present action was initiated by a Praccipe and Writ of Summons filed by the Plaintiffs on March 14, 2003. befendant filed a Praccipe for Rule to File Cox~aplaizxt on Aprl17, 2003. Plaintiffs bled a Coaa~plaint.on A,pril125, 2003. On May 19, 2003, Defendant filed Preliminary Objections in the nature of a dezxxurre~c to certain paragraphs of Plaintiffs' Complaint. Plaintiffs filed an Answer to the Preliminary Objections on June 16, 2003. 11. Legal Standard The legal su~'iiciency of averments contained in a complaint is controlled by Pa.R.C.P. Rule 1019(x), which states that, in a pleading, "~tjhe material facts on which a cause of actioo oz defense is based shall be stated. in a concise and summary fozm.." Sig Pa.1Z.C.1'. Rule 1019(x). Wheaa assessing whether a complaint provides a defendant witb, sufficient information to formulate a defense, the court. must examine the complaint as a wk~ole. Maleski v. bP RealtY Trust 653 ,A..2d S4, 65-66 (Pa. Cmwlth. 1994). 2 lzr. ruling upon a denauzre~r, we zmus~t accept as true all v~rell pleaded allegations and material facts averred in the complaint as well as all reasonable inferences deducible t]iere~om. Wurth v. City of Pliladelp is 584 ,A.2d 403 (.Pa. Cmwlth. 1990). This court's analysis is cozt;6uced to the complaint itself. Pawlowski v. Smorto, 588 A.2d 35 (Ya. Super. 1991). In the face of a demurrer, a complaint only should be dismissed in cases tbat are free and clear firm doubt. If any theory of law will support a claim, preliminary objxtions azc not be sustained as any doubt should be resolved against the objecting parties. Foster v. Peat 1Vlarwick Main ~ Co,. 587, A.2d 382 (Pa. Cnawlth. 1991); Ambrose v. Cross Greek Condominiums; 602 A.2d 8b4 (Pa Super. 1992}. A preliminary objection iri the nature of a demurrer will be sustained only when it appears with certainty that the law pez~.ts no ~necovezy under the allegations pleaded. Cily of 1'hilade~ghia y. Bucl~ 5.87 A.2d 875 (Pa Cmwlth. 1991). However,. when zul.ing on preliminary objections, although a count must accept as true all clearlyglead facts, there is no such requirement as to a pleader's legal cox~ciusiorzs or mere averments of law. is o Pennsylvania Natigna] Iy_,[utual _Casualty_Insurance Co., 613 A.2d 1235 (Pa. Super. 1992). IY~ discussion The restricted eats and other duties and resgoz~sibilitics of licensees who serve alcoholic beverages in Pennsylvania aro set out in 47 P:S. §§ 4-492 and 4493. Under §4,493, serving intoxicants to visibly intoxicated persons is a violation of the statute and constitutes negligence per se. Thus, any bar tl~t fuanishes or sells alcoholic beverages to visibly intoxicated patrons can be held liable foz~ in~jurics that occur as a proximate result of such action. deg Smith y. C1ark,190 A.2d 441 (Pa. ] 963); Fandozzi v. welly Hotel, Inc.. 711 A.2d 524 (Pa. Super 1998). 3 However, undor the above-recited statutes, there is no duty to warn a patran of the effects of intoxication onto prevent inebz>iated patrons firm enuring thew own automobiles and driving away. The Plafntit~'s have cited no cases nor can wE find any that extend liability to a licensee for failing to prevent an intoxicated antoa~aobile owner from operating his or her own automobile. While we can find no ,case law directly on point; we can refer to Conaini v. Portersvilla. 470 A.2d 515 (Pa. 1983). In Congi~'._ the Supreme Count held tli~at a sooial Bost has no duty to prevent an intoxicated guest from entering and dtiviztg bas or her vehicle? ee o e' v ' acr. 448 A.2d 620,, 623 (Pa. Super. 19$2). Clearly, a licensee is not pr~vilcged to use force against ox to iampose coxzfuaemetat upon another for purposes of preven#zng a violation of statute ox the cozaaimissioza of a crime. Thus, a licensee has no Legal authority to prevent a patron from operating his or Iner automobile even if the patron is iiutoxa~cated. Theoretically, a licensee naay expose laixx~self to liability if force would be applied or confinercaezat ithposed inn order to p~+event a patron from operating laic or her oum autommobile Further, the Plaintiffs have cited no cases nor eau we fend any that extend liability to a licensee for a failure to warn patrons of the effect aud/oz dangers of alcohol ingestion comibined with driving. Zia Aaunhin benosll Bank and Trust v. Toyota. 596 A.2d 845 (Pa. Super. 1991), the Superior Court addressed a similar issue when a cause of actioaa was brought against a 2 l'za support of its decision, the Co~'ni court also arefenred to Mills v. Continental ~arkin~ Corn. 86 Nevada 724,475 P.2d 673 (1970},where tlae Nevada court held that a parking lot attendant was mot liable for surire~adcsing car to an owner who was intoxicated. 4 manufacturer of alcoholic beverages, alleging a duty to warn potential users o;f alcoholic beverages of the dazxgers o£drinking and driving. Tlxe pauphinDe~nosil court held that the nianufaoturer of alcoholio beverages was under no duty to warn consumers of risk inherent in drinlcuig ,and driving since the. risks are obvious a~ad that the general public is well awato of the dangers of alcohol consumption and driving without ttte necessity of providing warnings. jd,, at pp.850~51. We find that tho rationale. in Daurhin bcposit can be extended to iu~sulate a bar ow~aet from a cause of action far his or her failure to warn patrons of the dangerous effects of consuming alcohol and driving. The Ftaixitiffs knave cited tk~e Restatement (Second) of Torts §§ 321-22 in support of their contentions that Defendant was required to warn the Plaintiffs' decedent about the dangers of dnuoldng and driving and to prevent lien $om operating hcrmotor vehicle. We 5nd that the aforementioned sections of the'Restatement (Second) of Torts are inapplicable in this case aad do not place a duty on licensees to wazn patrons of the dangers of drinking anal driviztg or to prevent or detain, an owner of an automobile from operating his ox hex automobile while under the influence of alcohol. III. Conclusion For the £argoing xeasons, Defendant's Preliminary Obj~ctxons are SU5TAIl~TED iti tb~eix entirety, and paragraphs I4(c) attd (d) shall be stricken from the Plaintiffs' Complaint. BX 'I'II COURT: S'T~PIIEN G. BA,R,A,TTA, J. 5 VERIFICATION JOHN REED EVANS, deposes and says that he is the attorney for the Defendants, Enola Sportsmens Association, in this action, and hereby verifies that the statements made in the foregoing Preliminary Objections are based upon the facts as explained by the Defendants, which are true and correct, and understands that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. EVANS, ESQUIRE John Reed Evans, Esquire jevans(a~bolanjahnsen.com BOLAN JAHNSEN REARDON 31 South Eagle Road, Suite 202 Havertown, PA 19083 (610) 449-0489 Attorney for Defendants, Enola Sportsmen's Association THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER Deceased COURT OF COMMON PLEAS CIVIL ACTION -LAW CUMBERLAND COUNTY Plaintiff v. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION DOCKET NO. 07-4985 CIVIL TERM Defendants JURY TRIAL CERTIFICATE OF SERVICE I, John Reed Evans, Esquire, do hereby certify that a true and correct copy of Defendants Enolas Sportsmens Association's Preliminary Objections was served upon each of the following individuals via First Class U.S. Mail on the date indicated below: W. Scott Henning, Esquire HANDLER, HENNING, ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Jordan Tafflin, Esquire Cooper & Levenson 1415 Marlton Pike, Route 70 East Cherry Hill, NJ 08034 By: John Re vans, Esquire Atto for Defendant Date: September 20, 2007 n '"' C~ ~. ? _~ ~ _~..~ _r ,•.. ?:; . ' ~, i.. N~ ~F F _ `~ t ~~ +~ ti .^w • ~ _.~ ^~ r y PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff,: v KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, Defendants.: NO. 07-4985 -Civil Term 1. State matter to be argued (i.e. plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendant American Legion Post 751's Preliminary Objections 2. Identify counsel who will argue cases: (a) for plaintiff: W. Scott Henning, Esquire; Handler Henning & Rosenberg, LLP; 1300 Lin~lestown Road; Harrisburg, PA 17110 (b) for defendant: Joseph D. Deal, Esquire; Cooper Levenson; 1415 Route 70 East; Suite 600; Cherry Hill, NJ 08034 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Jorc~n S. Tafflin,~~ire Attorney for Defend t, American Legion Post 751 Attorney I.D.# 92399 Date: October 19, 2007 ~ ~ c~ r C ~? ` ' ~t ~ i ~:s ~,~. ~ : ~.~y t~ '~ ~ y ~J"; -` . ~ ~'ra i. ~. ~ 1~.,~CT1 ~ --.:. {„~3 '...~1 `".i 4~ •.C N a ~• THOMAS WHEELER, Administrator IN THE COURT OF COMMON PLEAS OF of the Estate of ANNETTE WHEELER, :CUMBERLAND COUNTY, PENNSYLVANIA Deceased, PLAINTIFF : V. KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, DEFENDANTS 07-4985 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS AMERICAN LEGION POST 751 AND ENOLA SPORTSMEN'S ASSOCIATION TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this ~~~ day of December, 2007, IT IS ORDERED: (1) With respect to the complaint against American Legion Post 751, subparagraphs (b) and (e) of paragraph 35, ARE STRICKEN. (2) With respect to defendant Enola Sportsmen's Association, subparagraphs (b) and (e) of paragraph 47 and subparagraphs (b) and (e) of paragraph 53, ARE STRICKEN. (3) All other preliminary objections of defendant American Legion Post 751, ARE DISMISSED. (4) All other preliminary objections of defendant Enola Sportsmen's Association, ARE DISMISSED. w W. Scott Henning, Esquire For Plaintiff ordan S. Tafflin, Esquire 415 Route 70 East Suite 600 Cherry Hill, NJ 08034 For American Legion Post 751 ~ohn Reed Evans, Esquire ~ 31 South Eagle Road, Suite 202 Havertown, PA 19083 For Enola Sportsmen's Association sal By the Cou Edgar B. Bayley, J. ~-; -. ,,u~. .-.. ~.. r-; ~. ~- - Y f ~~ .~--a _ ~-.. ~~; d C ; --W: - r-~ C =v t~; COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Joseph D. Deal, Esquire Identification No: 46768 1415 Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Cherry Hill, New Jersey 08034 (856) 795-9110 THOMAS WHEELER, Administrator of the Estate of : COURT OF COMMON PLEAS ANNETTE WHEELER, Deceased, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff,: v. NO. 07-4985 -Civil Term KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, Defendants. CIVIL ACTION -LAW ANSWER OF DEFENDANT AMERICAN LEGION POST 751 TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM PURSUANT TO PA. R.C.P. 1031.1 Defendant, American Legion Post 751, by way of its attorneys, Cooper Levenson April Niedelman & Wagenheim, does hereby Answer plaintiff's Complaint/Civil Action as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part. Denied in part. It is admitted that American Legion Post 751 is a non profit entity located at 295 Shady Lane, Enola, Carbon County, Pennsylvania 17025. It is denied that American Legion Post 751 is organized under the laws of the Commonwealth of Pennsylvania. 5. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 6. Denied. The allegations contained in this paragraph of the plaintiff's Complaint are conclusions of law to which no responsive pleading is required. 7. Denied. The allegations contained in this paragraph of the plaintiff's Complaint are conclusions of law to which no responsive pleading is required. 8. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 9. Admitted. 10. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 11. Admitted. 12. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. Byway of further answer, it is specifically denied that defendant Kamble was sold or furnished liquor and/or brewed beverages by this answering defendant when he was visibly intoxicated. 2 13. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 14. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff's Complaint and strict proof thereof is demanded. 15. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 16. Denied. The allegations contained in this paragraph of the plaintiff s Complaint are conclusions of law to which no responsive pleading is required. 17. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. COUNT ONE 18. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 17 above as though same were set forth at length herein. 19. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 20. Denied. The allegations contained in this paragraph of the plaintiff's Complaint are conclusions of law to which no responsive pleading is required. 3 21. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 22. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 23. The allegations contained in this paragraph of the plaintiff's Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 24. The allegations contained in this paragraph of the plaintiffs Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 25. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. COUNT TWO 26. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 25 above as though same were set forth at length herein. 27. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 28. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 29. The allegations contained in this paragraph of the plaintiffs Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 30. The allegations contained in this paragraph of the plaintiff s Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 4 31. The allegations contained in this paragraph of the plaintiff's Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 32. The allegations contained in this paragraph of the plaintiff's Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 33. Denied. The allegations contained in this paragraph of the plaintiff's Complaint are conclusions of law to which no responsive pleading is required. COUNT THREE 34. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 33 above as though same were set forth at length herein. 35. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 36. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 37. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. COUNT FOUR 38. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 37 above as though same were set forth at length herein. 39. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 40. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 5 41. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 42. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 43. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 44. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 45. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. COUNT FIVE 46. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 45 above as though same were set forth at length herein. 47. The allegations contained in this paragraph of the plaintiffs Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 48. The allegations contained in this paragraph of the plaintiffs Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 49. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. COUNT FOUR 50. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 49 above as though same were set forth at length herein. 6 51. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of the plaintiff s Complaint and strict proof thereof is demanded. 52. Denied. The allegations contained in this paragraph of the plaintiff's Complaint are conclusions of law to which no responsive pleading is required. 53. The allegations contained in this paragraph of the plaintiff s Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 54. The allegations contained in this paragraph of the plaintiff's Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 55. The allegations contained in this paragraph of the plaintiff s Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 56. The allegations contained in this paragraph of the plaintiff s Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 57. Denied. The allegations contained in this paragraph of the plaintiff s Complaint are conclusions of law to which no responsive pleading is required. COUNT SEVEN 58. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 57 above as though same were set forth at length herein. 59. The allegations contained in this paragraph of the plaintiff s Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 60. Denied. The allegations contained in this paragraph of the plaintiff s Complaint are conclusions of law to which no responsive pleading is required. 7 61. The allegations contained in this paragraph of the plaintiff s Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 62. The allegations contained in this paragraph of the plaintiff's Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 63. Denied. The allegations contained in this paragraph of the plaintiff's Complaint are conclusions of law to which no responsive pleading is required. COUNT EIGHT 64. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 63 above as though same were set forth at length herein. 65. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 66. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 67. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 68. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 69. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. COUNT NINE 70. Answering defendant repeats and incorporates herein all of its answers to paragraphs 1 through 69 above as though same were set forth at length herein. 8 71. The allegations contained in this paragraph of the plaintiff's Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 72. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. 73. The allegations contained in this paragraph of the plaintiffs Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 74. The allegations contained in this paragraph of the plaintiffs Complaint are not directed towards this answering defendant and thus no responsive pleading is required. 75. Denied. The allegations contained in this paragraph of the plaintiffs Complaint are conclusions of law to which no responsive pleading is required. NEW MATTER 1. Plaintiff s Complaint fails to state a claim upon which relief can be granted. 2. Defendant in no way beached any duty owed to the plaintiff. 3. The damages allegedly sustained by the plaintiff was not proximately caused by answering defendant. 4. Plaintiffs claims are barred by the applicable statute of limitations, whose applicable provisions are incorporated herein by reference. 5. Plaintiffs claims are barred by the Doctrine of Estoppel and the Statute of Frauds. 6. Plaintiff s claims are barred by the Doctrine of Assumption of the Risk. 9 7. Plaintiff s claims are barred by the Pennsylvania Workers Compensation Act as plaintiff was engaged in the course and scope of his employment for defendant at the time of the incident alleged in his Complaint. 8. All or some of the plaintiff s claims or causes of action are barred and are to be reduced by virtue of the terms and provisions of the Pennsylvania Comparative Negligence Act, the terms and provisions of which are incorporated herein by reference. 9. The accident, injuries and damages, if any, resulting therefrom were caused by and through the sole and/or contributory negligence of the plaintiff. 10. Answering defendant specifically denies that it was in any way negligent. 11. Answering defendant performed each and every duty owed to the plaintiff. 12. The accident referred to in the plaintiff s Complaint was due to the negligence, recklessness and/or carelessness of other persons or entities, agents, servants and/or employees who are not parties to this suit herein. 13. In the event that it should be provided that the defendant was negligent then the defendant contends that the plaintiff was contributorily negligent and as such negligence is a complete bar to recovery of any amount in this action. 14. The accident referred to in the plaintiff s Complaint involved the negligence, recklessness, carelessness and/or intentional criminal acts of other persons or entities who are not agents, servants and/or employees of answering defendant and over whom answering defendant had no authority and/or control. 15. Plaintiff s Complaint is barred by Release. 16. Plaintiff s claims for punitive damages against a non profit organization are improper and illegal. 10 WHEREFORE, defendant prays that judgment be entered in its favor. NEW MATTER CROSS CLAIM UNDER Pa. R.C.P. 1031.1 AGAINST CO-DEFENDANTS This answering defendant, by denying the allegations of the plaintiff, alleges that if it is liable to plaintiff then co-defendants Kris Gamble and Enola Sportsmen's Association are jointly and severally liable to the plaintiff and hereby demands contribution, damages, interest and cost of suit. 2. This answering defendant asserts crossclaims for contractual and common law indemnity as against co-defendants Kris Gamble and Enola Sportsmen's Association. 3. This answering defendant demands that co-defendants Kris Gamble and Enola Sportsmen's Association hold this answering defendant harmless from any and all liability asserted against it. 4. This answering defendant alleges that co-defendants Kris Gamble and Enola Sportsmen's Association are responsible to the plaintiff and hereby demand judgment in the form of a crossclaim against co-defendants. WHEREFORE, answering defendant prays that judgment be entered in its favor. COOPER LEVENSON APRIL NIEDELMAN & WAG,.EAII-~1~' ,-'` By: seph D. squire Attorneys for Defendant, American Legion Post 751 DATED: January 8, 2008 11 VERIFICATION I, Joseph D. Deal, Esquire, hereby certify that I am attorney for defendant, American Legion Post 751 and the foregoing statements made by me are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. COOPER LEVENSON APRIL NIEDELMAN & NHEIM By: seph eal, Esquire Attorneys for Defendant, American Legion Post 751 DATED: January 8, 2008 CPCH; 224928.1 12 N t._ G--, _ O *7 ~ --a ~ ~ ~: j T f 7 ~~ _ ...,~ T i l ~ r ... ~J ; ~ ~3? }~ \ ~ ,3 `.~ THOMAS WHEELER, IN THE COURT OF COMMON PLEAS Administrator of the Estate CUMBERLAND COUNTY, PENNSYLVANIA of ANNETTE WHEELER, Deceased NO. 07-4985 CIVIL TERM Plaintiffs CIVIL ACTION -LAW v. : NRY TRIAL DEMANDED KRIS GAMBLE, AMERICAN ' LEGION POST 751 and ENOLA SPORTSMEN'S ASSOCIATION . Defendants : ANSWER OF KRIS GAMBLE TO THE NEW MATTER CROSSCLAIM OF DEFENDANT AMERICAN LEGION POST 751 ', 1. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. By way of further answer, all allegations of liabilit}~ on the part of Defendant Gamble to Plaintiffs are denied, as are all allegations of alleged joint ilit to Plaintiff alon with one or more of the other Defendants in this action. and/or several hab y g 2. Denied. The allegations set forth in this paragraph constitute conclusions of lawl! within the meaning of Pa.R.C.P. 1029, and accordingly these allegations are denied and proof ' thereof is demanded, to the extent relevant. By way of further answer, all allegations of liabilitj on the part of Defendant Gamble to Plaintiffs are denied, as are all allegations of alleged joint I,I and/or several liability to Plaintiff, along with one or more of the other Defendants in this actio~ Additionally, it is denied that Defendant Gamble owes contractual and/or common law II indemnity to Defendant American Legion Post 751 as alleged. 3. Denied. The allegations set forth in this paragraph constitute conclusions of within the meaning of Pa.R.C.P. 1029, and accordingly these allegations are denied and proof r thereof is demanded, to the extent relevant. By way of further answer, all allegations of liability. on the part of Defendant Gamble to Plaintiffs are denied, as are all allegations of alleged joint and/or several liability to Plaintiff, along with one or more of the other Defendants in this action. Also, it is specifically denied that Defendant Gamble has any legal duty or obligation to Defendant American Legion Post 751 to hold that entity harmless from any and all liability asserted against it by Plaintiff in this action as a matter of law. 4. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029, and accordingly these allegations are denied and proof thereof is demanded, to the extent relevant. By way of further answer, all allegations of liability on the part of Defendant Gamble to Plaintiffs are denied, as are all allegations of alleged joint and/or several liability to Plaintiff, along with one or more of the other Defendants in this action. WHEREFORE, Defendant Kris Gamble demands that judgment be entered in his favor' and against Defendant American Legion Post 751 with respect to the Crossclaim asserted against him by Defendant American Legion Post 751, together with such other relief as this Court shall deem appropriate. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGG,iN DATE: ~~t;Y~ ~ ~ C~ ~~ BY: ~~ ~^' ~ TIMC~TI~Y J. N~M~iON, ESQUIRE I.D. No. 52918 VV 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Kris Gamble OS/370906.v i i VERIFICATION Timothy J. McMahon, Esquire, Attorney for Defendant, Kris Gamble, verifies that the facts set forth in the Answer to New Matter Crossclaim of Defendant, American Legion Post 75'1 are true to the best of his knowledge, information and belief. If the above statements are nbt true, the deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. TIM DATE: 05/370909.v1 '~ THOMAS WHEELER, IN THE COURT OF COMMON PLEAS Administrator of the Estate CUMBERLAND COUNTY, PENNSYLVANIA of ANNETTE WHEELER, Deceased NO. 07-4985 CIVIL TERM Plaintiffs CIVIL ACTION -LAW v. JURY TRIAL DEMANDED KRIS GAMBLE, AMERICAN LEGION POST 751 and ENOLA SPORTSMEN'S ASSOCIATION Defendants CERTIFICATE OF SERVICE I, Diane E. Black, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~ day of January, 2008, I served a copy of the foregoing Answer of Kris Gamble to New Matter Crossclaim of Defendant American Legion Post 751 via First Class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 John Reed Evans, Esquire Boland Jahnsen Reardon 31 South Eagle Road Suite 202 Havertown, PA 19083 Joseph D. Deal, Esquire Cooper Levenson April Niedelman & Wagenheim, P.A. 1415 Marlton Pike (Route 70) East Cherry Hill Plaza, Suite 600 Cherry Hill, NJ 08034 1~ i ~~ ane E. Black OS/370910.v 1 ~~:~ _ .'i. ~ ~ ---i ~' ~'~ : r . --z-s .. ~ ~~ John Reed Evans, Esquire jevans c(~,bolanjahnsen.com BOLAN JAHNSEN REARDON 31 South Eagle Road, Suite 202 Havertown, PA 19083 (610) 449-0489 Attorney for Defendants, Enola Sportsmen's Association THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER Deceased Plaintiff v. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION COURT OF COMMON PLEAS CIVIL ACTION -LAW CUMBERLAND COUNTY DOCKET NO. 07-4985 CIVIL JURY TRIAL Defendants DEFENDANT, ENOLA SPORTSMEN ASSOCIATION'S NEW MATTER IN THE NATURE OF CROSSCLAIM AGAINST DEFENDANTS, KRIS GAMBLE AND AMERICAN LEGION POST 751 Plaintiff filed a Complaint under the following court term 07-4985. The terms and provisions of this Complaint are incorporated herein and made a part hereof by this reference with any and all averments of liability directed to Defendant, Enola Sportsmen's Association, being strictly denied. (A true and correct copy of Plaintiffs Complaint is attached hereto and made a part hereof as Exhibit "A"). 2. Defendant filed an Answer and New Matter, to Plaintiffs Complaint. The terms and provisions of which are incorporated herein and made a part hereof. (A true and correct copy of Defendant's Answer and New Matter is attached hereto and made a part hereof as Exhibit "B") 3. If the averments of Plaintiffs Complaint or certain of them are proven tnie and correct at the time of trial in this matter, the plaintiffs damages were caused by the recklessness, carelessness, negligence or other culpable conduct of Defendants, Kris Gamble and American Legion Post 751. Defendant, Kris Gamble and American Legion Post 751, is alone liable to Plaintiff, jointly and severally liable to Plaintiff, jointly and severally liable with answering Defendant, or liable over to answering Defendant, on the cause of action declared upon the Plaintiffs Complaint, the existence of any liability on the part of the Defendant, Enola Sportsmen's Association, hereby being expressly denied. WHEREFORE, Defendant, Enola Sportsmen's Association, demands a judgment be entered in its favor. Further it demands that Defendants, Kris Gamble and American Legion Post 751, be found solely liable for any and all damages sustained by Plaintiff. Alternatively, Defendant, Enola Sportsmen's Association, prays that this Honorable Court enter judgment against Defendants, Kris Gamble and American Legion Post 751, as jointly and severally liable with Defendant, Enola Sportsmen's Association, for any and all liability, any such liability on the part of the Defendant, Enola Sportsmen's Association, being specifically denied, in which case Defendant, Kris Gamble and American Legion Post 751, is liable over to Defendant, Enola Sportsmen's Association, for full indemnity and/or contribution, including reimbursement of the damages, costs, legal expenses and fees. Respectfully submitted: BY: ohn Reed Evans Attorney For Defendant, Enola Sportsmen Se"± Ey: THE UPS STORE; 717 728 3257; Aug-24-07 10:47AM; Page 2 ~ ter... ~iO~A~:.~~::~Q .n Ti~lno~ry~tb#. l~fien ~i~~Y han. ~r~d t~ l~tt. ~ s~ f~urt~:z; ~rtt~:;: f~. fir....., ~~ ~ ...:. ~T W. Scott Henning, Esquire LD.#32298 HANDLER, MEN.NING & ROSENBERC3, LLP 1300 Linglestown Road Harrisburg, PA 17910 1•etephona: (747) 238 200 Attorney for Plaintiff Fax : (T1T) 233.3029 E-mail: HennlnQ~WH.Ri.aw.com TN©MAS WHEELER, IN THE COURT OF COMIUtt~N~~PLEi4.5 Administrator of the Estate of :CUMBERLAND COUNTY, PE1~tNSlt!:~:YANIA ANNfTTE WHEELER, Deceased, Plaintiff v. ~, NO. 0'1- ~q85 Ci v ~ t i eri~n KRIS GAMBLE, AMERICAN LEGION : "~ POST 7sa~1, ;and :ENOLA . SPORTSMEN'S ASSOCIATION, Defendants :CIVIL ACTION - LAV1i T1CE YOU NAVE BEEN SUED IN COURT.. if you wish to defend against tl^re crams set forth in the #oilowing page, you must take action within twenty f2Q) days.~after this Gomplaant and Notice are served, by entering a written appearance persorr~ly or by attorney and filing in writing with the Court your defenses or objections to the 'dl~ims set forth against you. You are warned that if you fail to do so the case tna~r.proceet~:without you. and a judgment may be entered against ~rou by the Court without further notice for arty money claimed in the Compiairtt or for any other claim or relief requested'by ttiefi'laantiff. You may lose money or property or other rights important to you. YOU SFIOUi:D TAKE THIS :PAPER TO YOUR LAWYER AT ON~G~: ; tkF YOU:';~O NQT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFIi: E SET.FORTM~BEL{7i~M11: THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HtfttNG ~l LAW~`ER. iF YQU CANNOT AFFQRD TO HIRE A LAWYER, THIS OFFICE MAY .BE:ABLE TO PRCIVID.E YfJU WITH INFORMATION ABOUT AGENCIES Tt-IAT:MA'Y Oi'FE~~~~l.EGAL i SER'1fiGES TO ELIGIBLE .PERSONS AT A REDUCED FEE ~O~R NO FEE. . ,..:::. ..~... , Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:48AM; Page 3 Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 AVIS~ USTED HA SIDO DEMANDADO/A EN CORTE, S} listed desea c}efende~e; `de las demandas que se presentan mks adelante en !as siguientes p~ginas, debt tom~t`accivn dentro de los prbximos veirtte (20) dlas despu~s de fa notificaoibn de esta Dei'r~nda y Aviso radicando persona}mente o por medio de un abogado una comparecencia:~escrita y radicando en }a Corte pvr escrito sus defensas de, y objecciortes a, las d~~end8s presentadas._aqul en contra soya. Se le advierts de que s's listed fa}la de tomar:accion Como se describe antsrionnente, e} caso puede proceder sin listed y.un.failo por..cetquier sums de dinero rec}amada en la demands o cuafqu}er otra reciamacibn o;:remedio soi}citado por el demendante puede ser dic#ado en contra suya por }a Corte s}n trii~i3 av}so adic}ona}. Usted puede perd®r dinero o propiedad u otros derechos impariari~+es Para listed. USTEb DEBE LLEVAR .ESTE QOCUMENTO A SU ASOGApO~ tNIUIEDrATANt~~'TE. Si USTED'NO 71ENE UN.~IBOCADO., LLAME O VAYAA LASIfiUtENTE~:OFEGtt;ESTA OFICINA Pt1EDE PROVEERtE tNt/ORMACION A~CERCA DE ~OMO~CONSEltR UN ABOGADO. Si U.STED:NO PUEDE PAGAR POR SOS SERVICIOS DE UN:A~OGADO,~ES~P~QSIB~:E QUE ESTA O'FlC![~tA LE Pi3EDA PROVEER INFORMACION S08f~E Af3ENC:G~ 'QUE OFREZCAN SERVICl4S LEOALES S!N CARGO O BAJO COSTO A PERSON~k5 QUE CUALIFICAN. Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 HANDLER, I~ENNiI~lC By: w. Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10;4BAM; F:\WP Dlrecto~leslTFC\Complalnts\Dram ShoplWheeler-Wrongful Death.wpd THOMAS WHEELI=R, Adminlstratar of the Estate of ANNETTE V4tHfELER, Deceased, Plaintiff v. Page 4 1N THE COURT OF CO1Mi11.1110T1 PLEAS CUMBERLAND COUNTY, PENNSY'lVANiA NO. KITS GAMBLE, AMERICAN LEGION : POST 751., and ENOLA . SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW COMP AND NOW comes the Plaintiff, Thomas Wheeler, Administra#or of the~Estate of Annette Wheeler, by and #hrough his attorneys, HANDLER, HE~NING.&~~R05E~B~ERG, ': LLP, byW. Scott Henning, Esq., and makes the within Complaint against the Deft~~ndants, Kris Gan7ble, American Legion Post 751, and Enola Sportsmen's Association, ~;ri~d avers as follows: 1. Plaintiff, Thomas Wheeler, !s an adult individual currently residing:a~8 Black Pine Drive, Mechanicsburg, Cumberland County; Petlnsylvartia17050: 2. Annette Wheeler, (hereinafter "Plaintiff s Decedent'}'formerly resided at 8 Black Pine Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. Sent By: TyE L'PS STORE; 717 728 3257; Aug-24-07 10:48AM; Page 5 3. Defendant, Kris Gamble, is an adult individual currently residing~.at 105 Hotlowview Drive, Enoia, Cumberland County, Pennsylvania 17025. 4. Defendant, Am®rican Legion Post 759 ,anon-profit entity, orgarii~ed and existing under the laws of Pennsylvania and having its registered address at 295 Shady Lane, Enoia, CumbeHand County, Pennsylvania 17025. 5. [3efendant, Envla Sportsmen's Association, a non-profit corporation, organized and existing under the laws of Pennsylvania antl having .a principie~~:place of business located at 25 N. Enoia Drive, Enoia, Cumberland County, Pennsyivari'ia 17025. 6, At all times material hereto, Defendants Americar- Legion atiid Enoia Sportsmen's Association acted or failed to act through its agents, servants: " andlor employees, acting for Defendant's benefit, under Defendant's control, and within the course and scope of their authority and/or "employment. 7. At all times material hereto, DefendantAmeriranLeglon owned and~~erated a bar and restaurant located at 295 Shady Lane, Enoia, Pennsylvania 17025. . ' 8. At all times material hereto, Defendant Enoia Sportsmen's.Associatici'n owned and operated a bar and restaurant located at 290 Pine Hill Road Ex#ens'iot~; Enoia, Pennsylvania 17025. 9. At alt times material hereto, Defendant American Legion, was a licensee of the Pennsylvania Liquor Control Board, engaged in the sate and service.of alcoholic beverages to patrons of their facility. .... :... 14. At all times material hereto, Defendant Enoia Sportsmen's Associ.~tton was a licensee of the Pennsylvania Liquor Control Board, engaged in the sale and""eervice of alcoholic beverages to "patrons of their facility. 2 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:48AM; Page 6 11. On or about May 13, 2007, Defendant Gamble entered and was sensed end consumed alcoholic beverages at Defendant American Legion's establishmeti~;. After consuming aieohol[c bsve.rages at aforementioned location, Defendant Gam.ble`;#raveled to Defendant Enola Sportsmen's Association and consumed more alcoholic bev+~rages. 12. White Defendant Gamble was on Defendant American Legion's premises, Defendant Amer{can Legion wrongfully and unlawfully sold or furnished liquor°andlor brewed beverages to Defendant Gamble when he was visibly intoxicated, in viofo'tion of Pennsylvania Liquor Control Code, 47 Pa. Stat. §4-493 (1). 13. White Defendant Gamble was on defendant Enola Spottsrnen's pi`i~rt~ises, Defendant Enola Sportsmen's Association wrongfully and uniawf~rlly. sold or ~furiiished liquor andlor brewed beverages to Defendant Gamble when he was visibly intoxted, in violation of the Pennsylvania Liquor Control Code, 47 Pa. Stat. § 4-49~~(~l ). 14. After consuming alcohol on Defendant Enola Sportsmen's Association's premises, Defendant Gamble left the premises together with PlaintifF's Dscedeiit.. Both individuals boarded Defendant Gamble's motorcycle. A short .distance from ~ l~:efiendant Enola's premises, Defendant Gamble's motorcyde struck an embankment alat~g Orrs Bridge Road near the intersection with Kile Road, Plaintiffs decedent suffsr~d €atal injuries. 15. The aforementioned incident occurred direc#ly after Defendant Gafir-ble left Defendant Enola Sportsmen's Association's premises and while he was still intoxcated as a result of the alcoholic beverages he consumed on both Defendant Enola Spar men's associations' and Defendant American Legion's premises. 3 Sent gy: TyE UpS STORE; 717 728 3257; Aug-24-07 10:49AM; Page 7 16. The aforementioned incident occurred because of Defendant G~~m~bie's irrrpairment due to intoxication and was directly and proximately caused. by both D~'l'endant American Legion's and .Defendant 1=nola Sportsmen's Associationrs negtigencelfiseNing afaohoiic beverages to Defendant Gamble. 17. The occurrence of the aforementioned incident and the resulting .injuries to Plaintiffs Decedent, Annette Wheeler, were taus®d' directly and proximatei3r :by the negligence of Defendants Enola Sportsmen's Association, American Legion, atld Kris Gamble, by their agents, servants, workmen or employees, act{ng in the scop~~;,~f their authority, generally and more spec~caliy as set forth below. COlJh1T 1- WRQ{~. E' E U ~. Thomas Wheeler, as Admiin strator aft ®.state of Annette Wheeler and 'F~omas '1Nheeier in his own right v. iris Gamttfe 18. Paragraphs 1 through 17 are incorporated herein as if set forth ai~length. 19. Plaintiff, Thomas Wheeler, is the duly appointed, qualified, anti crsntly acting Administrator of the Estate of Annette Wheeler. 20. This civil action is brought pursuant to the Pennsylvania Wrongfttl~:~.tie~ath Act, 42 Pa. C.S.A. § 8301 et seq. and Ruie 2201 of the Pennsyfvar}is Rules of~ :Civil Procedure, 21. Plaintiffs Deceden#, Annette Wheeler, did not bring any other acfan during her lifetime and no other action for the death of said Decedent has b®eri commenced against Def®ndant herein or any other person besides the aforeni~tltioned. ., .. 22; This civil action isbeing brought to recover, on~-beh~aif of aii~~statutory - beneficiaries of the Plaintiffs Decedent, all damages legally available ~utlcter the:;: V1/rongful Death Act. 4 .<... . ~; ;, Sent Bv: THE UPS STORE: 717 728 3257; Aug-24-07 10:49AM; Page 8 23. The occurrence of the aforesaid incident gnd the fatal injuries resulting therefrom were caused directly and proximately by the negligence of the ~Defenr~gnt, Kris Gamble, gene rally and more specifically as set forth below: (a) In failing to be reasonably vigilant to observe the roadway.. (b} In driving his vehicle with a careless disregard for the safetjt.~o# others, in violation of 75 Pe.C.S.A. § 3714; (c) in failing to be continuously alert, in failing to perceive any~w~ming of danger that was reasonably likely to exist; (d) In failing to operate said vehicle under proper and adequa~Ce':control in order that he could avoid causing the fatal accident; (e) In driving Defendant's vehicie in willful and/or wanton disregard for the safety of persons or property, in violation of 75 Pa.C.5.,A. §373s; (f} In driving in a careless manner, in violation of 7S Pa. C.S.A'.§ 3714; (g) In driving while intoxicated, in violation of 75 Pa. C.S.A. §:802; (h) to driving Defendant's motor vehicie a# a tlm® when he wa~`bnfit to do so, due to his consumption of alcohol and/or drugs;. artd (I) In otherwise driving Defendant's vehicie upon a roadway in;a manner endangering persons and property and in a rnanti~r with .. ;. careless disregard to the rights and safety of others in violation of the Motar Vehicle Code of thv Commonwealth of Pennsylvania. 24. As a direct and proximate result of the negiigence of the Defend~ttt, Kris 5 Sect By: THE L'PS STORE; 717 72L 3257; Aug-24-07 1O:49AM; Pege 9 Gamble, Plaintiff s Decedent, Annette Wheeler, sustained fataE injuries includin~:;but not limited to head trauma, which resulted in her death on May 21; 2007. 25. 8y reason of the death of Plaintiff s Decedent, Annette.Wheeler, ~i~intiffs Decedent, Annette W heeler's surviving relatives have been eompeiled to axper~='fund fior funeral and burial expenses, and have sustained pecuniary floss and also h~v~ been deprived of the decedent's valuable support, comfort, society, counshl; aervices?~ind companionship, and a ciatrn is made therefor. WHEREF~GRf, P#a[ntiff, Thomas Wheeler, Administrator of the Estate of>:Ar~nette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks darrieges frarr~ the Defendant, Kris Gamble, in an amount in excess of the compulsory arbitration ~ltiritts of Cumberland County, exclusive of interest and costs. ~QUN'.~,~i ~~.3URVIVAI ACTiOiV/NEf3LlC~~N~E.~.. '; Thomas 'll~lheelsr, as Administrator of the Estate of Annette YlRheeier and;~'~omas Wh®eler in his own right v. Kris Gambia 26. Paragraphs 1 through 25 are incorporated herein as ff frilly set fc~ below. 27. Plaintiff, Thomas Wheeler, as the duly appointed, and currently aging Administrator of the Estate of Annette Wheeler, Deceased, incorporate Paragraphs 1 through 25 herein as if set forth at length. 28. In his capacity of personal representative of the Estate~of AnnetCa Wheeler, Plaintiff, Thomas'Vl/heeler, brings this action pursuar-t to the PennsylCania Act, 42 Pa. C:S.A. § 83+E32, et seq, and 20 Pa. C.S.A. § 3373, ~et seq.. . 29. The occurrence of the aforesaid incident and the resuttart fatal"irj~iries to Plaintiffs Decedent were caused directly and proximately by the negiig~nce of~i<ris Gambia, generally end more specifically set forth below: 6 Sert 3y: THE UPS STORE; 717 728 3257; Aug-24-07 10:50AM; Page 10 (a) In failing to be reasonably vigilant to observe .the r+vadway; : ~.:: (b) In driving his vehicle with a careless disregard #orthe safe#y~:~f others, in violation of 75 Pa.C.S.A. § 3714; (c} in failing to be continuously alert, in failing to perceive any :Vaaming of danger that was reasonably likely to exist; (d) !n failing to operate said vehicle under proper and~adequate:..~ontroi in order that he could avoid causing the. fatal .accident; (e) In driving Defendant's vehicle in willful and/orwarrton disregard for the safety of persons or property, in violation of 75 Pa.C.S:A;:: §3736; (f) In driving in a careless mann®r, in violation of 75 Pa. C.S.~i 3714; (g) In driving white intoxicated, in violation of 75 Pa. C.S.A. § 3,~~2; (h} In driving Defendant's motor vehicle at a #tme when he was~:urtfit to do so, due to his consumption of alcohol and/or~drugs;. aid (I) In otherwise driving Def®ndant's vehicle upon a roadway in a. manner ®ndangering persons and property and in a manrier.~;~vith careless disregard to the rights and safety of others in violation of the Motor Vehicle Code of the Commonwealth of Pennsylv~Ria. 30. As a direct and proximafie result of the negligence of the .D®fertdarrt Kris Gamble, Plaintiffs Decedent, Annette Wheeler, sustained fatal injuries including; but not limited to head trauma, wh.sch resulted in. her death on May 29, 2007. . 31. As a result of the negligence and carelessness of the Defendant,. Kris Gamble, Plaintiffs Decedent, Annette Wheeler, suffered physical and.rnental pa~~n and anguish and, thus, a claim is made therefore. Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:50AM; Page 11 Decedent, Annette Wheeler, is now unable to continue #o be a producti~te memi~:er of the work fvree and thus a claim is made for lost future wages andlor retirement~~. benefits. 33. By reason of the death of Plaintiff s Decedent, Annette Wheeler, Rl~intiff s Decedent, Annette Wheeler's surviving relatives have been compelled to expen~~funds far funeral and burial services, and said relative has also been deprived of. Anrtc~#te Wheeler's comfort, counsel, companionship and society, and a claim is made th+rrefore. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of J~~nnette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages from the Def®ndant, Kris Gamble in art amount in excess of the compulsory arbitration lim%ts of Cumberland County, exclusive of interest and costs. COUNT 1:11- OHGP ~ATH~~GLlf~~,E Thomas Whe®ler, as Administrator o the Estate of Annette Wf~e+~ter and ~"#~omas Wheeler 1n hls own right v. American 1"egion Post 757 34. Paragraphs 1-33 are incorporated herein as if fully set ~forth~ below;: '` 35. The occurrence of the aforementioned incident and the resui#ing fatal injuries to Plaintiff's Decedent, Annette Wheeler, were caused directly and proxir»ately by the negligence of Defendant American Legion, by i#s agents, servants, workn~er3 or employees, acting in the scope of their authority, generally and more speclficaHy as set forth below: (a) In negligently and carelessly selling or famishing liquor and/or brewed beverages to ......: ris Gamble when he was visibly intoxicated, •~ in violation of Pennsylvania Liquor Control Code. 47 Pa. C.S.A. § 4-493(1 }; 8 Sent 8y: THE UPS STORE; 717 728 3257; Aug-24-07 10:50A6h; (b} In failing to. properly train and superviserts employees so as to prevent them from seising, fumishing or giving liquor and/or brsw~d beverages to pa#rons who are visibly intoxicated; (c) In failing to eonfornn to the requirements of the Pennsylvania Dram Shop pct; (d) in being negNgent per se and/or strictly liable fior violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or fumishing of alcoholic beverages to minors and/ar persons visibly intoxicated, and/or known'to tie habitual drunkard and/or a person of known intemperate habits by liquor licensees, their agents, servants and/or employees; (e} In failing to perform an adequate and necessary investigation to determine whether or nat alcohol was being served to a person who wes a minor or a person while visibly intoxicated and/or who Was a frequent drinker and/or to a patron with west established drinking habits, when Defendant knew:or Page 12 9 Sent ,By THE UPS STORE; 717 728 3257; Aug-24-07 10:50AM'; Page 13 should have known that Kris Garnbie was visibly intoxic$ted, 36. As a direct and .proximate result of the Defendant's negiige~tce, P#a~ntrffs Decedent has sustained fatal iriiuries including, but not limited #o head trat~ma~, ~w#~tih caused her death on May 21, 2007. 37. By reason of the death of Plaintiff s Decedent, Annette Wheeler, Plaintiffs Decedent, Annette Wheeler s surviving relatly®s have been compelled to expent}:~fiund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedent's valuable support, comfort, society, counsel, services `and companionship, and a claim is made therefor. WI~IEFtEfORE, Piaintiff, Thomas Wheeler, Administrator of the Estate of~4nnette Wheeier, deceased and Thomas Wheeler, In his own right, seeks damages fror~~:~he Defendant American Legion Post 751, in an amount in excess of the computsory;:: arbitration limits of Gumberisnd County, exclusive of interests and costs. ;: V = VI L A 1 iW .. ,. Thatttas~ Wheef+e~r ~as Adminlatrstor of the Estate o ~ Annntte~~W#•tsel~ and ~T~orrnas Wheeler, In his own right v. AmeNcan :Legion Past 751 38. Paragraphs 1-37 are incorporated here in as if fully set' forth below 38. Plaintiff, Thomas Wheeler, as the duly appointed, and. currertitly wing Administrator of .the Estate of Annette Wheeier, Deceased, incorporates.Paragri~i~hs 1 ,:. through 37 ~h~erein as if set for~~at~length: 40. in his capacity of personal representative of the Estate of Annette : . i0 ;' ;., . ;, . <.:. <;. Sent By: THE U°S STORE; 717 728 3257; Aug-24-07 10:50AM; Page i4 Wheeler, Plaintiff, Thomas Wheeler, brings this action pursuant to the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373, et Seq. 41. The occurrence of the aforementioned collision and the resultant injuries to Plaintiff's Decedent, Annet#e Wheeler, were caused directly and proximatel~~tjy the negligence and/or carelessness of Defendant, American Legion, by its agents,'.:. servants, workmen or employees, acting in the scope of their authority generally:.and mare specifically as set forth below: (a) In negligently and carelessly selling or furnishing liquor andlor brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Contra! Code, 47 Pa. C.S.A. § 4-493(7); (b) in failing to properly train and supervise its employees so as to prevent them from selling, fumishing or giving liquor and/or brewed beverages to patrons who are visibly intoxica#ed; (c) In failing to conform to the requirements of the Pennsylvania Dram Shop Act; (d) in being negligent per se andlor strictly liab{e for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply andlor ...._. .. furnishing of alcoholic beverages to minors and/or persons visibly Intoxicated, and/or known to be habitual drunkard and/or a person of known 11 Seat By: THE UPS STORE; 717 728 3257; Aug-24-07 1O:51A~d; Page 15/26 intemperate habits by liquor licensees, their agents, servants and/or employees; (ej !n falling to be responsible via respondeat superior andlor vicarious liability for acts and omissions of. its employees, agents, servants, independent contractors, shareholders, partn®rs andlor property owners; and (f) In falling to perform an adequate and necessary investiga#ion to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated andEar who was. a frequent drinker and/or to a patron with well established drinking habits, when Defendant icr~ew or should have known that Kris Gamble was visibly intoxicated. 42. As a direct and proximate r®sult of the negligence of Defendant, ierlcan Legion, Plaintiff s lecedent, Annette Wheeler, sustained fate! injuries including~buf not limited too head traurraa, which r®sulted in her death on May 21, 2007, 43. Rs a d'srect and proximate result of the negligence of.Defendant; ~ktx:~erican Legion, Plain#ifPs Deceden#, suffered physical and mental pain and anguish and;th.us a claim is-made therefore. 44. As a result of.the negligence of Defendant, American. Legion, piai~~tiff's Decedent, Annette Wh®eler; is now unable to continue to be a productive rneml~ir of the work force and thus 8 claim is a made for lost future wages and/of.retireme~t: benefits, 12 Se"t Ey: THE U°S STORE; 717 728 3257; Aug-24-07 10:51 AM; Page 45. ey reason of the death of Plaintiff 5 Deced®nt, Annette Wheeler; t~`~~intiff's Decedent, Annette Wheeler's surviving relatives have been compel~d to expend fund for funeral and burial expenses, and have sustained pecuniary loss and also have been deprived of the decedent's vaidable support, comfort, society, counsel, services and companionship, acid a claim is made therefor. WIyIEREF+C.RE, Plaintiff,?homes Wheeler, Administrator of the Estate o#~Annette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages frorr~:the Defendant, American Legion Post 751, in an amount in excess of the compuisoc3i arbitration limits of Cumberland County, exclusive of interest and costs. C U. T - GFU TH G Thomas Vvhsefer, as i4dmtn strator of the Est~tte~ o Annette Wheeler and ~~rnaa • Wheeler, In his own rigfi# v. Enola SporEsmen's As~oclatlon . 46. Paragraphs 1-45 ar® in+corporated herein as if set forth at length. 47. The occunence of the aforementioned incident and the resulting~d~a~h to Plaintifias Decedent, Annette Wheeler, were caused d'srectly and proximately ~by:iv~:e negligence of Defendant, Enola Sportsmen's Association, by its agents, servan4s. workmen or employees, acting in the scope of their employment and/or their autYiority, generally and more specifically as set forth below: (a) 1n negligently and carelessly selling or furnishing liquor and/or brewed beverages to Kris Gamble when he was visibly intoxicated, in violation of Pennsylvania Liquor Cvntnol ~ ~ `.: + 16126 Gent, By: THE U°S STORE; 717 728 3257; Aug-24-07 1O:51AM; Page 17/26 (b) In failing to properly train and supervise its employees so as to prevent them from selling, furnishing or giving liquor and/or brewed beverages to pa#rons who are visibly intoxicated; (c) In failing to conform to the requirements of the Pennsylvania 17ram Shop Act; (d) In being negligent per se and/or strictly liable for violations of the Pennsylvania Crime Codes, Pennsylvania Liquor Code, including provisions relating to the sale, supply and/or famishing of alcoholic beverages to minors and/or persons visibly intoxicated, and/or known to be habitual drunkard andlor a person of known intemperate habi#s by liquor licensees, their agents, servants andlor employees; ( In failing to perform an adequate and necessary investigation to determine whether or not alcohgl was being served to a person who was a minor or a person while'visibly intoxicated and/or who was a frequent drinker andlor to a patron with .well established drinking habits, when Defendant knew or should have known that Kris Gamble was visibly intoxicated. .. .. .._. 48. As a direct and proximate result of the Defendant's, Enola Sportsmen's Association, negligence Plaintif~Ps Decedent, Annette Wheeler, suffered fat$I injuries, including but not limited to head trauma, which resulted in her death on Allay 2~:;.:~007. 14 Sent, By: THE UPS STORE; 717 728 3257; Aug-24-07 10:51 AM; Page 49. By reason of the death of Plaintiff s Decedent, Annette .Wh~eeter, Pt~intiff s Decedent, Annette Wheeler's surviving relatives have been compelled to expet~~t~~;fund forfunerai and burial expenses, and have sustained pecuniary ions and also have been deprived of the decedent's valuable support, comfort, society, counsel, services'~nd companionship, and a claim is made therefor. WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the Estate of ~innette Wheeler, deceased, and Thomas Wheeler, in his own right, seeks damages frotiti~:the Defendant, Enola Sportsmen's .Association, in an amount in excess of the comp~isory arbitration limits of Cumberland County, exclusive of interest artd costs. ~OliltdT IV ~ SURYIVA~ ACTtON~N~,I~L~GEt+tCE Thomas Wheeter as Adrininistrator of the Estate of Annette Y1Fheete~r snd ~'lx~omas Wheeler, in hts own right v. Enola Sportsm®n's Assoctatton 54. Paragraphs 1-49 are incorporated here in as if fusty set forfh betov~: 54 , Plaintiff, Thomas Wheeler, as the duly appointed, and currently a~tting Administrator of the Estate of Annette Wheeler, Deceased, incorporates Paragr~~phs 'i through 49 h®rein as if set for at length. 52. In his capacity of personal represen#atnre of the Estate of.Anne#te.',: 1Nheeler, Plaintiff, Thomas Wheeler, brings this action pursuant to 'the Pennsyl~~nia Survival Act, 42 Pa. C.S.A. § 8302, et seq. and 20 Pa. C.S.A. § 3373; et seq, .: ~ :: 53. The occurrence of the aforementioned collision and the resultant~:i~~~uries to Plaintiffs Decedent, Annette Wheeler, were caused direcdy and pnaxiniately~~~~y the negligence and/or carelessness of Defendant, Eno1a Sportsmen's Association; h~ its 15 18/26 Sent Ey: THE I,1PS STORE; 717 728 3257; Aug-24-07 iQ:52AM; agents, servants, workmen or employees, acting in the scope of their authority ~ ..': generally and mor® specii••cally as set forth below; (a) In negligently and care}essly se}}ing or fumishing liquor andlor brewed beverages to Kr}s Gambia when he was visibly intoxicated, in violation of Pennsylvania Liquor Control Code, 47 Pa. C.S.A. § 4-493('i ); In failing to properly train and supervise its amp}oye~es so as to prevent them from ge}ling, fumishing or giving liquor and/or brewed beverages't0 patrons who are visibly intoxica#ed; (c) in failing to con#orm to the requirements of the Pennsylvania Dram Shop Act; (d) In being negligent per se and/or strictr ly liable for violations o€ the Pennsylvania Crime Codes, Pennsylvania liquor Code, including provisions relating to the safe, supply andlor Page 19/26 furnishing of alcoholic beverages to minors andlor persons visibly intoxicated, and/or known to be habitual dninkard andlor a person of known intemperate habits by liquor licensees, their agents, servants andlor employees; 16 Se~~t By: THE UPS STORE; 717 728 3257; Aug-24-07 10:52AM; Page 20/26 r e} In failing to perform an adequate and necessary investigation to determine whether or not alcohol was being served to a person who was a minor or a person while visibly intoxicated and/or who was a frequent drinker and/orto a patron with weH established drinking habits, when Defendant knew or should have known that Kris Gamble was visibly intoxicated. 5~, As a direct and proximate result of the negligence of Defendant, Eiti~ola Sportsmen's Association, Pfaintiflas Decedent, Annette Wheeler, sustained fat~l~:l~juries including, but not limited too head trauma, which resulted in her death on May 21', 2007. 55. As a direct and proximate result of the negligence of Defendant, Viola Sportsmen's Association, Plaintiffs Decedent, Annette Wheeler, suffered physical and mental pain and anguish and, thus a claim is made therefore. 56. As a result of the negligence of Defendant, Enola Sportsmen's Association, Piaintlff s Decedent, Annette Wheeler, is now unable to continue to.~be a productive member of the work farce and thus a claim is a made for lost future~.wages and/or retlrernent benefits. S7. By reason of the death of Plaintiffs pecedent, Annette Wheeler, Plaintiff's pecedent, Annette Wheeler's surviving relatives have been compelled to expeiui funds for funeral and burial services, and said relatives have also been deprived of Annette Wheeler's comfort, counsel, companionship and society, and a claim, is made t~a~efore. 17 Sent 8y: THE UPS STORE; 717 728 3257; Aug-24-07 10:52AM; Page WHEREFORE, Plaintiff, Thomas Wheeler, Administrator of the ~Estate~ ~af~-Annette `AJheeler, deceased, and Thomas Wheeler, in his own right, seeks damages frri~i<~the Defendant; Enola Sportsmen's Association, in an amount in excess of~the conip~ftsory arbitration limits of Cumberland County, exclusive of interest and costs. coUlvT ~!! - PU>~ilTIV~ DANIaOES Thomas Wheeler as Adrn~mistratvr of the Estate of Annette Vlfhee#er, l~ece~sed, and Thomas Wheeler, in his own right v. Kris Gamble 58. Paragraphs 1-57 ere incorpora#ed herein as If set forth. at length, :' 59. The ilability,producing conduct of Defendant, Kris Gamble, as sef~~~€drtfi herein, was outrageous, done in a willful and wanton fashion, with aconscious.-~;" indifference and/or reckless disregard for the safety of the public generally and':~-.~s malicious and/'or intentional, grid so egregious as to be beyond the bounds of tteeerrcy in a civ1ll~ed society, and was in direct violation of specific ordinances;' Laws, sta3~ste~s and regulations regulating the consumption of alcoholic beverages #h'the Conunonwealtfi of Pennsylvania, $0. The very nature, quantity and type of v'solations of ~sta~tu{ory pruvisro~s, which resulted in the severe. injury to Plaintiff's Decedent, Annette Wfiester, ®iiid~nces outrageous, malicious and intolerable conduct warranting the imposition of exen'~lary ahd/or punitive damages. 61. As a direct and proximate result of the grossly negligen# and outrag:~ous acts of Defendant, Kris Gamble, Plaintiffs Decedent, Annette Wheeler, sustairk~l fatal ...injuries including, but not limited to, head trauma, which resulted in her death a~:::~ilay 21, 2007. Plaintiff's Decedent suffered physical and mental pain ar*d ~artguish ~#tr~it'n the moments commencing with 'the happening of the .inciden# until her prematu,~e:d~mwse on May 21, 20D7. 18 21/26 Sent By: THE UPS STORE; 717 72B 3257; Aug-24-07 10:52AM; Page 22/28 62. As & direct artd proximate result of the grossly negligent acd out~ag~ous acts of Defendant, Kris Gamble, Plaintiffs Decedent, Annette Wheeler; is now. ~t~eble to continue to be a productive member of the work force and thus a~~claim is made for lost future wages and/or retirement benefits. 63. ay reason of the death of Plaintifl"s Decedent, Annette Wheeler, P(~intiff s Decedent, Annette Wheeler's surviving relatives have been compelied'to experiirtfunds for funeral and burial services, and said relatives have also~been deprived ofi Ar}ftette W'theeler's comfort, counsel, companionship and society. WHEREFORE, Plaintiff, Thomas Wheeler, as Administrator of the Es#at+s`~of Annette Wheeler, deceased, and Thomas Wheeler, in his own right; seek damages, including punitive damag®s, from Defendant, Kris Gamble, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial bar fury. ~:OUA1T Vill - PU~JTIVE DAiVIAG.E3 Thomas IIIFheeier as Admiinietratvr of the Estate ot.Anttette Yfiheeter, Deceased, and Thomas Wheeler, in his own right v. American Legion No. 754,z~.~; 64. Paragraphs 1-63 are incorporated herein as if set #orth at length. ~.;..,>: , 65. The liability-producing conduct of Defendant, American Legion M~.~`759, by and through its agen#s, servants and/or employees, as set forth herein; was ~out~ageous, done in .a willful and wanton fashion, with a conscious indiff"erehce andtor ~cidess disregard far the safety of the public generally, the patrons American Legion Na,~~5'l, and Annette Wheeler specifically, and was malicious and/or intentional,.:and so egrj~ous 8~s tv be beyond the bounds of decency in a civilized society, and was indirect Violation of specific ordinances, caws, statutes and regulations regulating the safe of : ~aicoholic ~; beverages in the Commonwealth of Pennsylvania. 66. The very nature, quantity and type of violations of statutory provisioi'ta~ which resulted in the severe injury to Plaintiffs Decedent, Annette Vlrheeler, ~ er;rl~ences .. ~' 19 ~,.... ...... ,: Sent By: THE UPS STORE; 717 72B 3257; Aug-24-07 10:53AM; Page outrageous, malicious and intolerable conduct warranting the imposition of exemplary and/or punitive damages. . 67. As a direct and proximate result of the negligen# and outrageoi~a,scts of Defendant, American legion No. 751,.Plaintiff's Decedent, Annette Wheeler, susta'sned fatal injuries including, but not limited to, head trauma, which resulted in h®r death on May 21, 2007. Plaintiffs Decedent suffer®d physical and mental pain and anguish from. the moments corr~mencing with the happening of the incident until her premature detiise on May 21, 2007, 68. As a direct artd proximate result of the negligent and outrageou&`.acts of Defendant, American Legion No. 751, P-aintiff s Decedent, Annette Wheeler, is novu;Unable to continue to be a productive member of the work force and thus a claim Is mad~.~~for lost #uture wages and/or retirement benefits. 69. By reason o€ the death of Plaintiffs Decedent, Annette Wheeler, !'~aintifPs Decedent, Annette Wheeler's surviving relatives have been compelled to expend~`f~-nds for funeral and burial services, and said relatives have also been deprived of ~lnraette Wheeler's comfort, counsel, companionship and society. WHEREFORE, i'laintlff, Thomas Wheeler, as Administratorofthe EstateolAnnette Wheeler, deceas®d, and Thomas Wheeler, in his own right, seek damages, .including punitive damages, from Defendant, American legion Post 751, in an amount in excess of the compulsory arbitration limits of Cumberland County, and demands a trial by~j~ry, w X UNITIVE !A, ~ArF~ Thomas V1{heeler as Admiinistrator of the Esta#e of Annette Whs-elsf; i~~eas~ed, and Thomas Wheel®r., in his ow.n right v. Enola 5portsrnen's Association. 70. Paragraphs 169 are incorporated herein as if.set forth at.ler!gth. `;.: . 71. The ltabilii}--producing conduct of Defendan#, Enola Sportsmen'sAssi~ciation, by and through its agents, servants and/or employees, as setforth herein, was outrageous, 20 23/26 Sent By: THE UPS STORE; 717 728 3257; Aug-24-07 10:53AM; Page 24/2fi ;;. done in a willful and wanton fashion, with a conscious indiff®rence and/or :reckless disregard for the safety of the public generally, the patrons Enofa Sportsmen's Association, and Annette'Wheeler specifically, and was malicious and/or intentional, and so egi~eglous as to be beyond the bounds of decency in a civilized society, and was in ~tirect virflation of sp®cific ordinances, laws, s#attites and regulations regulating the sale of ~icoholic beverages in the Commonwealth of Pennsylvania. 72. The very nature, quantity and type of violations of statutory provision;. which resulted in the severe in}ury to Plaintiffs Deced®nt, Annette Whreeter, ~evl~hances '' outrageous, malicious and intolerable conduct warranting the imposition of exemplary end/or punitive damages. 73. As a direct and proximate result of the negligent and outrageous pacts of " . Defendant, Enota Sportsmen's Association, Plaintiffs Decedent, Annette 1~lhe®ler, sustained fatal in)uries including, but not limited to, head trauma, which resulted in her deati~ on May 31, 2007. Plaintiffs Decedent suffered physical .and mental.p~tn and anguish from the moments commencing with the happening of the inciden#:~~~itil her premature demise on May 21, 2007. 74. As a direct and proximate result of the negligent and outrageous ~~a~Cts of Defendant, Enola Sportsmen's Association, Plaintiff's Decedent, Annei#e Wheela~ic; is now unable to continue to be a productive member of the work force and thus~a cla"rm~~is made for lost future wages andlor retirement benefits. 75. By reason of the death of Plaintiff's Decedent, Annette Wheeler, ~?Caintiffs Decedent, Annette Wheeler's surviving relatives have been competled~taexpend:l'tddsfvr fun®ral and burial services, and said relatives have also been deprived of ~-nnette . . 1Nheeler's comfort, counsel, companionship and society. . WHEREE4ftE, Plaintiff, Thomas Wheeler, as Administratorofthe Estate ofi~tinette v1lheeler, deceased, and Thomas Wheeler, in his own right, seek. damages; including 2 ~. . Send By: THE UPS STORE; 717 72B 3257; Aug-24-07 10:53AM; Page 25l2S Sent By: THE UPS STORE; 717 72B 3257; Aug-24-07 10:53AM; Page 26/28 VER{~{CAT{t~N The undersigned hereby verifies that the statements in the foregoing document~are based upon information which has been furnished to counsel by me and informs#ioriwhich has been gathared by counsel in the preparation of this lawsuit. The language of the document is of counse! and not my own. I have read the docum®nt and to the exte~it that it is based upon information which l have given to counsel, it is true and correct to tFs~ best of my knowledge, information and belief. To the extent that the contents of the do~~ment are that of counsel, 't have relied upon my counsel in makin8 this Verification:' The undersigned also understands that the statements made therein are made subject~to the penalties of 't8 Pa. C.S. Section 4904, relating to unsworn falsification to author#ta$. Thomas Wheeler John Reed Evans, Esquire j evans(a~bolaniahnsen.com BOLAN JAHNSEN REARDON 31 South Eagle Road, Suite 202 Havertown, PA 19083 (610) 449-0489 Attorney for Defendants, Enola Sportsmen's Association THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER Deceased COURT OF COMMON PLEAS CIVIL ACTION -LAW CUMBERLAND COUNT~c' Plaintiff v. DOCKET NO. 07-4985 CIVIL KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION JURY TRIAL Defendants DEFENDANT ENOLA SPORTSMEN'S ASSOCIATION ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER 1. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraphs 1 through 1 of Plaintiffs Complaint; therefore, strict proof is thereof demanded at time of trial. 2. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraphs 1 through 2 of Plaintiffs Complaint; therefore, strict proof is thereof demanded at time of trial. 3. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen Association; therefore, no response is required. 4. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen Association; therefore, no response is required. 5. Admitted. 6. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 7. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen Association; therefore, no response is required. 8. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 9. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen Association; therefore, no response is required. 10. Admitted. 1 1. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 11 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 11 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 12. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 13. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 13 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 13 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 14. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 14 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 14 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 15. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 15 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 15 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 16. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 16 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 16 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 17. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 17 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 17 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. COUNT ONE -Wrongful Death/Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Kris Gamble 1$. Defendant, Enola Sportsmen's Association, incorporates herein and make a part hereof by this reference its answers to Paragraphs 1 through 18 of Plaintiff s Complaint. 19. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 20. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 21. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 22. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 23. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 24. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 25. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT TWO -Survival Action/Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Kris Gamble 26. Defendant, Enola Sportsmen's Association, incorporates herein and make a part hereof by this reference its answers to Paragraphs 1 through 26 of Plaintiffs Complaint. 27. Denied. The averments contained herein constitute conclusions of law to which no response is required. Byway of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 28. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 29. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 30. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 31. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 32. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 33. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiff s Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT THREE -Wrongful DealthlNeglience Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. American Legion Post 751 34. Defendant, Enola Sportsmen's Association, incorporates herein and make a part hereof by this reference its answers to Paragraphs 1 through 34 of Plaintiff s Complaint. 35. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 36. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 37. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT FOUR -Survival Action/Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. American Legion Post 751 38. Defendant, Enola Sportsmen's Association, incorporates herein and make apart hereof by this reference its answers to Paragraphs 1 through 38 of Plaintiffs Complaint. 39. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 40. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 41. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 42. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 43. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 44. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiff s Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 45. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT FIVE -Wrongful Death/Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Enola Sportsmen's Association 46. Defendant, Enola Sportsmen's Association, incorporates herein and make a part hereof by this reference its answers to Paragraphs 1 through 46 of Plaintiffs Complaint. 47. Denied. Each and every one of the averments and subaverments of the Paragraph are denied as wholly untrue and lacking any foundation either in law or in fact. By way of further response, the averments in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. Finally, some or all of the averments contained herein constitute conclusions of law to which no response is required. Strict proof is demanded at time of trial. In addition, pursuant to Court Order, paragraphs 47(b) and (e) are stricken and no response is required. 48. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 49. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT SIX -Survival Action//Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Enola Sportsmen 50. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 51. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 52. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 53. Denied. Each and every one of the averments and subaverments of the Paragraph are denied as wholly untrue and lacking any foundation either in law or in fact. By way of further response, the averments in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. Finally, some or all of the averments contained herein constitute conclusions of law to which no response is required. Strict proof is demanded at time of trial. In addition, paragraph (b) and (e) are stricken from Plaintiff's Complaint thus no response is required. (See Court Order attached as Exhibit "A") 54. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiff s Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 55. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 56. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiff s Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 57. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiff s Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT SEVEN -Punitive Damages Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Kris Gamble 58. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 59. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 60. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 61. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 62. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 63. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT EIGHT -Punitive Damages Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. American Legion Number 751 64. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 65. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 66. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 67. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 68. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 69. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enolas Sportsmen's Association; therefore, no response is required WHEREFORE, Defendant, Enola Sportmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT NINE -Punitive Damages Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Enola Sportsmen's Association 70. Defendant, Enola Sportsmen's Association, incorporates herein and make a part hereof by this reference its answers to Paragraphs 1 through 70 of Plaintiff s Complaint. 71. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 71 of Plaintiffs Complaint. Strict proof is demanded at time of trial. Byway of further response, Defendant believes and avers that the allegations contained in Paragraph 71 of Plaintiffs Complaint constitute conclusions of law to which no response is required. Byway of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 72. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 72 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 72 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 73. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 73 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 74 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 74. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 75 of Plaintiffs Complaint. Strict proof is demanded at time of trial. Byway of further response, Defendant believes and avers that the allegations contained in Paragraph 76 of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. NEW MATTER THE EVIDENCE IN THIS CASE IS INSUFFICIENT TO JUSTISFY AN AWARD OF PUNITIVE DAMAGES 1. Some or all of the injuries alleged in Plaintiffs Complaint were the result of Plaintiffs own contributory and/or comparative negligence and/or assumption of the risk. 2. Plaintiffs claims asserted herein lack reasonable foundation or supportive law and, therefore, answering Defendant is entitled to attorney's fees and costs associated with the defense of this matter. Plaintiff is barred from recovery by the applicable Statute of Limitations and/or Doctrine of Laches. 4. Plaintiffs claims are barred by the Doctrines of Res Judicata, Collateral Estoppel and/or Waiver. 5. If the accident alleged in Plaintiffs Complaint is proven true and correct at the trial in this matter, then Plaintiffs injuries were caused by individuals or entities over whom answering Defendant had no control or duty to control and, therefore, no cause of action exists against answering Defendant. 6. To the extent Plaintiff requests delay damages pursuant to Rule 238 or any similar Rule, answering Defendant avers that said Rule is unconstitutional under state and federal constitutions as drafted and/or supplied and amounts to a denial of answering Defendant's right without due process of law. 7. Plaintiffs claims are barred by the Doctrine of Accord and Satisfaction and/or Release. Respectfully submitted: BOLAN JAHNSEN REARDON BY: J eed Evans torney For Defendant, Enola Sportsmen's Association VERIFICATION JOHN REED EVANS, deposes and says that he is the attorney for the Defendants, Enola Sportsmens Association, in this action, and hereby verifies that the statements made in the foregoing New Matter in the Nature of a Crossclaim are based upon the facts as explained by the Defendants, which are true and correct, and understands that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to~thorities. JOHN RE~b EVANS, ESQUIRE John Reed Evans, Esquire ;evt anscr,bolanjahnsen.com BOLAN JAHNSEN REARDON 31 South Eagle Road, Suite 202 Havertown, PA 19083 (610) 449-0489 Attorney for Defendants, Enola Sportsmen's Association THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER Deceased Plaintiff v. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION COURT OF COMMON PLEAS CIVIL ACTION -LAW CUMBERLAND COUNTY DOCKET NO. 07-4985 CIVIL JURY TRIAL Defendants DEFENDANT ENOLA SPORTSMEN'S ASSOCIATION ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER 1. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraphs 1 through 1 of Plaintiffs Complaint; therefore, strict proof is thereof demanded at time of trial. 2. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraphs 1 through 2 of Plaintiffs Complaint; therefore, strict proof is thereof demanded at time of trial. i s 3. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen Association; therefore, no response is required. 4. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen Association; therefore, no response is required. 5. Admitted. 6. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 7. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen Association; therefore, no response is required. 8. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 9. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen Association; therefore, no response is required. 10. Admitted. 11. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 11 of Plaintiff s Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 11 of Plaintiff s Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 12. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 13. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 13 of Plaintiff s Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 13 of Plaintiffs Complaint constitute conclusions of law to which na response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 14. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 14 of Plaintiff s Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 14 of Plaintiff s Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 15. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 15 of Plaintiff s Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 15 of Plaintiff s Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 16. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 16 of Plaintiff s Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 16 of Plaintiff s Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 17. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 17 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 17 of Plaintiff s Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. COUNT ONE -Wrongful Death/Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Kris Gamble 18. Defendant, Enola Sportsmen's Association, incorporates herein and make a part hereof by this reference its answers to Paragraphs 1 through 18 of Plaintiffs Complaint. 19. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 20. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 21. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 22. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 23. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 24. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 25. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiff s Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT TWO -Survival Action/Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Kris Gamble 26. Defendant, Enola Sportsmen's Association, incorporates herein and make apart hereof by this reference its answers to Paragraphs 1 through 26 of Plaintiffs Complaint. 27. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 28. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 29. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 30. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 31. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 32. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 33. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT THREE -Wrongful Dealth/Neglience Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. American Legion Post 751 34. Defendant, Enola Sportsmen's Association, incorporates herein and make a part hereof by this reference its answers to Paragraphs 1 through 34 of Plaintiffs Complaint. 35. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 36. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 37. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiff s Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT FOUR -Survival ActionlNegligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. American Legion Post 751 38. Defendant, Enola Sportsmen's Association, incorporates herein and make apart hereof by this reference its answers to Paragraphs 1 through 38 of Plaintiffs Complaint. 39. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 40. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 41. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 42. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 43. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 44. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 45. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT FIVE -Wrongful Death/Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Enola Sportsmen's Association 46. Defendant, Enola Sportsmen's Association, incorporates herein and make apart hereof by this reference its answers to Paragraphs 1 through 46 of Plaintiff s Complaint. 47. Denied. Each and every one of the averments and subaverments of the Paragraph are denied as wholly untrue and lacking any foundation either in law or in fact. By way of further response, the averments in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. Finally, some or all of the averments contained herein constitute conclusions of law to which no response is required. Strict proof is demanded at time of trial. In addition, pursuant to Court Order, paragraphs 4?(b) and (e) are stricken and no response is required. 48. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 49. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT SIX -Survival Action//Negligence Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Enola Sportsmen 50. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 51. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 52. Denied. The averments contained herein constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 53. Denied. Each and every one of the averments and subaverments of the Paragraph are denied as wholly untrue and lacking any foundation either in law or in fact. By way of further response, the averments in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. Finally, some or all of the averments contained herein constitute conclusions of law to which no response is required. Strict proof is demanded at time of trial. In addition, paragraph (b) and (e) are stricken from Plaintiff's Complaint thus no response is required. (See Court Order attached as Exhibit "A") 54. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 55. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiff s Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 56. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. 57. Answering Defendants have no independent knowledge as to what, if any, injuries or damages the Plaintiff sustained. Further, it is denied that the alleged injuries, if truthful, are serious, permanent or causally related to the incident set forth in Plaintiffs Complaint. Furthermore, all averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT SEVEN -Punitive Damages Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Kris Gamble 58. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 59. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 60. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 61. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 62. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 63. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT EIGHT -Punitive Damages Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. American Legion Number 751 64. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 65. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 66. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 67. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; therefore, no response is required. 68. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enola Sportsmen's Association; .therefore, no response is required. 69. Denied. The averments contained herein are addressed to a Defendant other than Defendant, Enolas Sportsmen's Association; therefore, no response is required WHEREFORE, Defendant, Enola Sportmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. COUNT NINE -Punitive Damages Thomas Wheeler as Administrator of the Estate of Annette Wheeler and Thomas Wheeler's own right v. Enola Sportsmen's Association 70. Defendant, Enola Sportsmen's Association, incorporates herein and make a part hereof by this reference its answers to Paragraphs lthrough 70 of Plaintiffs Complaint. 71. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 71 of Plaintiffs Complaint. Strict proof is demanded at time of trial. Byway of further response, Defendant believes and avers that the allegations contained in Paragraph 71 of Plaintiff s Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 72. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 72 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 72 of Plaintiff s Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiffs Complaint are incorporated herein and made a part hereof by this reference. 73. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 73 of Plaintiffs Complaint. Strict proof is demanded at time of trial. Byway of further response, Defendant believes and avers that the allegations contained in Paragraph 74 of Plaintiff s Complaint constitute conclusions of law to which no response is required. By way of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. 74. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information upon which to form a belief as to the truth of the averments contained in Paragraph 75 of Plaintiffs Complaint. Strict proof is demanded at time of trial. By way of further response, Defendant believes and avers that the allegations contained in Paragraph 76 of Plaintiff s Complaint constitute conclusions of law to which no response is required. Byway of further response, the averments contained in Defendant's New Matter to Plaintiff s Complaint are incorporated herein and made a part hereof by this reference. WHEREFORE, Defendant, Enola Sportsmen's Association, demands judgment be entered in its favor and against Plaintiff with an award of attorney's fees and costs associated with the defense of this matter. NEW MATTER The evidence in this case is insufficient to justify an award of punitive damages. 2. Some or all of the injuries alleged in Plaintiffs Complaint were the result of Plaintiffs own contributory and/or comparative negligence and/or assumption of the risk. Plaintiffs claims asserted herein lack reasonable foundation or supportive law and, therefore, answering Defendant is entitled to attorney's fees and costs associated with the defense of this matter. 4. Plaintiff is barred from recovery by the applicable Statute of Limitations and/or Doctrine of Laches. 5. Plaintiff s claims are barred by the Doctrines of Res Judicata, Collateral Estoppel and/or Waiver. 6. If the accident alleged in Plaintiff s Complaint is proven true and correct at the trial in this matter, then Plaintiffs injuries were caused by individuals or entities over whom answering Defendant had no control or duty to control and, therefore, no cause of action exists against answering Defendant. 7. To the extent Plaintiff requests delay damages pursuant to Rule 238 or any similar Rule, answering Defendant avers that said Rule is unconstitutional under state and federal constitutions as drafted and/or supplied and amounts to a denial of answering Defendant's right without due process of law. 8. Plaintiffs claims are barred by the Doctrine of Accord and Satisfaction and/or Release. Respectfully submitted: BOLAN JAHNSEN REARDON BY: ohn Reed Evans Attorney For Defendant, Enola Sportsmen's Association -~ THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, PLAINTIFF v. f ------ AMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S:ASSOCIATION, DEFENDANTS 07-4985 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ~~~',' IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS AMERICAN LEGION POST 751 AND ENOLA SPORTSMEN'S ASSOCIATION TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this ~~~ day of December, 2007, IT IS ORDERED: (1) With respect to the complaint against American Legion Post 751, subparagraphs (b) and (e) of paragraph 35, ARE STRICKEN. (2) With respect to defendant Enola Sportsmen's Association, subparagraphs (b) and (e) of paragraph 47 and subparagraphs (b) and (e) of paragraph 53, ARE STRICKEN. (3) All other preliminary objections of defendant American Legion Post 751, ARE DISMISSED. (4) All other preliminary objections of defendant Enola Sportsmen's Association, ARE DISMISSED. W. Scott Henning, Esquire For Plaintiff Jordan S. Tafflin, Esquire 1415 Route 70 East Suite 600 Cherry Hill, NJ 08034 For American Legion Post 751 John Reed Evans, Esquire 31 South Eagle Road, Suite 202 Havertown, PA 19083 For Enola Sportsmen's Association :sal By the Cou r~ r Edgar B. Bayley, J. ~' VERIFICATION JOHN REED EVANS, deposes and says that he is the attorney for the Defendants, Enola Sportsmens Association, in this action, and hereby verifies that the statements made in the foregoing Answer to Plaintiff's Complaint with New Matter Preliminary Objections are based upon the facts as explained by the Defendants, which are true and correct, and understands that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. JO ED EVANS, ESQUIRE t~A :.. i i { :;l -__' c_ -r-~ i 1 _ ~, _. .,.. , --:-, THOMAS WHEELER, IN THE COURT OF COMMON PLEAS Administrator of the Estate CUMBERLAND COUNTY, PENNSYLVANIA of ANNETTE WHEELER, Deceased NO. 07-4985 CIVIL TERM Plaintiffs CIVIL ACTION -LAW v. 3URY TRIAL DEMANDED KRIS GAMBLE, AMERICAN LEGION POST 751 and ENOLA SPORTSMEN'S ASSOCIATION Defendants ANSWER OF DEFENDANT, KRIS GAMBLE, TO THE NEW MATTER CROSSCLAIM OF DEFENDANT, ENOLA SPORTSMEN'S ASSOCIATION 1. Admitted in part; denied in part. It is admitted only that Plaintiffs Complaint has been filed in this action as alleged. All remaining allegations set forth in this Paragraph are denied on the basis that Plaintiff s Complaint is a writing which in its entirety speaks for itself. 2. Admitted in part; denied in part. It is admitted only that an Answer with New Matter by Defendant, Enola Sportsmen's Association, has been filed in response to Plaintiffs Complaint. All remaining allegations set forth in this Paragraph are denied on the basis that Defendant, Enola Sportsmen's Association's, Answer with New Matter to Plaintiff s Complaint is a writing which in its entirety speaks for itself. 3. Denied. The allegations set forth in this Paragraph are denied on the basis that these allegations constitute conclusions of law within the meaning of PA R.C.P. 1029 and, accordingly, no further responsive pleading is required and proof thereof is demanded, to the extent relevant. WHEREFORE, Defendant, Kris Gamble, demands judgment in his favor and against Defendant, Enola Sportsmen's Association, with respect to the Crossclaim filed by Enola Sportsmen's Association. Respectfully submitted, DATE: ~ 3t ~ OS/373960.v1 MARSHALL, DENNEHEY, WARNER, COLEM/AN & GOGGIN ( ,~- BY: TIM J. N, ESQUIRE I.D. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Kris Gamble r THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased Plaintiffs v. KRIS GAMBLE, AMERICAN LEGION POST 751 and ENOLA SPORTSMEN'S ASSOCIATION Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.07-4985 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Diane E. Black, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this day of January, 2008, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 John Reed Evans, Esquire Boland Jahnsen Reardon 31 South Eagle Road Suite 202 Havertown, PA 19083 Joseph D. Deal, Esquire Cooper Levenson April Niedelman & Wagenheim, P.A. 1415 Marlton Pike (Route 70) East Cherry Hill Plaza, Suite 600 Cherry Hill, NJ 08034 r ~ C~.IVt~ ~_ iane E. Black OS/370910.v1 C n ~j c ! C's ? ~ 'ry'1 E~~t~ _ , ~~ ' ~.,.,.. ' ^+. i` r ~+y V ~,j ? ~ ~"' !art . ++~ ...IN. M . ~ , fl +I . Y ~~' e e iii 1 j y COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Joseph D. Deal, Esquire Identification No: 46768 1415 Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Cherry Hill, New Jersey 08034 (856) 795-9110 THOMAS WHEELER, Administrator of the Estate of : COURT OF COMMON PLEAS ANNETTE WHEELER, Deceased, CUMBERLAND COUNTY, Plaintiff,: PENNSYLVANIA v. NO. 07-4985 -Civil Term KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, Defendants.: CIVIL ACTION -LAW ANSWER OF DEFENDANT AMERICAN LEGION POST 751 TO NEW MATTER CROSSCLAIM OF DEFENDANT ENOLA'S SPORTSMEN'S ASSOCIATION 1. Answering defendant repeats and incorporates herein all of the information contained within its Answer to Plaintiffs' Complaint including its New Matter and New Matter Crossclaim which was filed with the court on January 14, 2008. 2. The allegations contained in this paragraph of defendant's Crossclaim do not require a responsive pleading. 3. Denied. The allegations contained in this paragraph of defendant's New Matter are conclusions of law to which no responsive pleading is required. COOPER LEVENSON NIEDELMAN & W9~ By: ~ose~. Deal, Esquire Attorneys for Defendant, American Legion Post 751 DATED: January 30, 2008 P VERIFICATION I, Joseph D. Deal, Esquire, hereby certify that I am attorney for defendant, American Legion Post 751 and the foregoing statements made by me are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. COOPER LEVENSON NIEDELMAN & I~~B By: ~Sseph D. Deal, Esquire Attorneys for Defendant, American Legion Post 751 DATED: January 30, 2008 CPCH; 228109.1 2 r COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Joseph D. Deal, Esquire Identification No: 46768 1415 Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Cherry Hill, New Jersey 08034 (856) 795-9110 THOMAS WHEELER, Administrator of the Estate of : COURT OF COMMON PLEAS ANNETTE WHEELER, Deceased, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff,: v• NO. 07-4985 -Civil Term KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA SPORTSMEN'S ASSOCIATION, Defendants. CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, Joseph D. Deal, Esquire, hereby certify that a true and correct copy of the within Answer to New Matter was forwarded to counsel indicated below via First Class United States Mail forwarded on W. Scott Henning, Esquire Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 John Reed Evans, Esquire Bolan Jahnsen Reardon 31 South Eagle Road Suite 202 Havertown, PA 19083 Timothy J. McMahon, Esquire Marshall Dennehey 4200 Crums Mill Road Suite B Harrisburg, PA 17112 COOPER LEVENS0~1 APRIL NIEDELMAN & WAGENHEIM By: CPCH; 228114.1 Jose~h~ .Deal, Esquire ~ Attorirey for Defendant, American Legion Post 751 2 «.,,~ T t -~ _r~ ~ 'ALL yw. - ~ , --.~t_; . ,. C~ +_. ~ . i... ••~y <'~ rri :..1 `y. t ~ ~ Y-A ' ' W. Scott Henning, Esquire I.D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: Henning@hhrlaw.com THOMAS WHEELER, IN THE COURT OF COMMON PLEAS Administrator of the Estate of :CUMBERLAND COUNTY, PENNSYLVANIA ANNETTE WHEELER, Deceased, Plaintiff v. NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, AMERICAN LEGION POST 751 Now, comes the Plaintiff, Thomas Wheeler, by and through his counsel, HANDLER, HENNING & ROSENBERG, LLP, W. Scott Henning, Esq., replies to Defendant's New Matter as follows: 1. Denied. The allegation set forth in Paragraph 1 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff's .Complaint fails to state a claim upon which relief can be granted, and proof to the contrary is demanded at the trial in this matter. 2. Denied. It is expressly denied that the Defendant did not breach a duty owed to the Plaintiff, and proof to the contrary is demanded at the trial in this matter. 3. Denied. The allegation set forth in Paragraph 3 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the damages sustained by the Plaintiff were not proximately caused by the Answering Defendant, and proof to the contrary is demanded at the trial in this matter. 4. Denied. The allegation set forth in Paragraph 4 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff's claims are bared by the Statute of Limitations, and proof to the contrary is demanded at the trial in this matter. 5. Denied. The allegation set forth in Paragraph 5 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff s claims are barred by the Doctrine of Estoppel or the Statute of Frauds, and proof to the contrary is demanded at the trial in this matter. 6. Denied. The allegation set forth in Paragraph 6 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff's claims are barred by the Doctrine of Assumption of the Risk, and proof to the contrary is demanded at the trial in this matter. By way of further answer, the Plaintiff specifically denies that the 2 Plaintiffs Decedent knowingly and voluntarily assumed the risk of injury. 7. Denied. The allegation set forth in Paragraph 7 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiffs claims are barred by the Pennsylvania Workers' Compensation Act. 8. Denied. The allegation set forth in Paragraph 8 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff's claims or causes of actions are barred or limited by the terms of the Pennsylvania Comparative Negligence Act, and proof to the contrary is demanded at the trial in this matter. 9. Denied. It is denied that the subject motorcycle incident, and the injuries sustained by the Plaintiffs Decedent and the damages sustained by the Plaintiff's Decedent and the Plaintiff's Estate were caused by the sole and/or contributory negligence of the Plaintiffs Decedent, and proof to the contrary is demanded at the trial in this matter. 10. Denied. For the reason set forth in the Complaint, it is denied that the Answering Defendant was not negligent. 11. Denied. It is denied that the Answering Defendant performed and properly performed each and every duty owing to the Plaintiff, and proof to the contrary is demanded at the trial in this matter. 12. Denied. It is denied that the subject motor vehicle incident referenced in the Plaintiffs Complaint was solely due to the negligence, recklessness and/or carelessness of other persons or entities who are not parties to the suit, and proof to the contrary is demanded at the trial in this matter. 13. Denied. The allegation set forth in Paragraph 13 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff was contributorily negligent and to the extent that the Plaintiff's Decedent is deemed partially contributorily negligent, it is denied that her contributory/comparative negligence would rise to the level of a complete bar to any recovery under the terms of the Pennsylvania Comparative Negligence Act. 14. Denied. It is denied that the subject motor vehicle incident involved the sole negligence, recklessness, carelessness and/or intentional acts of other persons or entities who are not agents, servants and/or employees of Answering Defendant and over whom Answering Defendant had no authority and/or control, and proof to the contrary is demanded at the trial in this matter. 15. Denied. The allegation set forth in Paragraph 15 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiffs cause of action is barred by Release, and proof to the contrary is demanded at the trial in this matter. 16. Denied. The allegation set forth in Paragraph 16 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff's claims for punitive damages are improper and illegal, and proof to the contrary is demanded at the trial in this matter. 4 WHEREFORE, Plaintiff demands judgment against the Answering Defendant, American Legion Post #751, for the relief set forth in the Complaint. Respectfully submitted, HANDLER, HENNING Date: ~ ~~~ By v yr W. Scott Henning, I.D. #32298 1300 Linglestown Ro Harrisburg, PA 171 1 (717) 238-2000 Attorneys for Plaintiff 5 NBERG, LLP VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his 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 to authorities. Date: ~~~ ~ ~d%~/l~ SCOTT HENN THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW CERTIFICATE OF SERVICE On the 4th day of February, 2008, I hereby certify that a true and correct copy of Plaintiffs Reply To New Matter of Defendant, American Legion Post #751 was served upon the following by depositing in U.S. Mail; John Evans, Esq Bolan Jahnsen Reardon 31 South Eagle Road Havertown, PA 19083 Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road -Suite B Harrisburg, PA 17112 Date: ~ ~ ~ ~~~"~ Joseph D. Deal, Esq. Cooper Levenson 1415 Marlton Pike (Route 70) East Cherry Hill Plaza, Suite 600 Cherry Hill, NJ 08034 Respectfully submitted, HANDLER, HENNING By v W. Scott Henni , E qui I.D. #32298 1300 Linglesto n oa Harrisburg, PA 1 110 (717) 238-2000 Attorneys for Plaintiff BERG, LLP w.., .-.~,Y ~ -rti ~.,~-~ (°51 .-~ t ':1 t,_3 ~ - , ~ .. -'t3 ,~: W W. Scott Henning, Esquire I.D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: Henning _hhrlaw.com _ THOMAS WHEELER, IN THE COURT OF COMMON PLEAS Administrator of the Estate of :CUMBERLAND COUNTY, PENNSYLVANIA ANNETTE WHEELER, Deceased, . Plaintiff v. NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIViL ACTION -LAW PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, ENOLA SPORTSMEN'S ASSOCIATION Now, comes the Plaintiff, Thomas Wheeler, by and through his counsel, HANDLER, HENNING & ROSENBERG, LLP, W. Scott Henning, Esq., replies to Defendant's New Matter as follows: Denied. The allegation set forth in Paragraph 1 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, the Plaintiff denies that there is insufficient evidence in the case to justify an award of punitive damages. By way of further answer, the Plaintiff asserts that Discovery is in progress and only the conclusion of Discovery may determine whether there is adequate evidence to justify an award of punitive damages. 2. Denied. The allegation set forth in Paragraph 2 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the injury sustained by the Plaintiff s Decedent was the result of contributory or comparative negligence on the part of the Plaintiff's Decedent andlor the Assumption of the Risk on the part of the Plaintiff's Decedent, and proof to the contrary is demanded at the trial in this matter. 3. Denied. The allegation set forth in Paragraph 3 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff's claims lack a reasonable foundation or support in the law and it is further denied that the Defendant is entitled to attorney fees associated with the cost of the defense of this matter, and proof to the contrary is demanded at the trial in this matter. 4. Denied. The allegation set forth in Paragraph 4 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff's claims are barred by the Statute of Limitations, and proof to the contrary is demanded at the trial in this matter. 5. Denied. The allegation set forth in Paragraph 5 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that the Plaintiff's claims are barred by the Doctrine of Res Judicata, Collateral Estoppel andlor Waiver, and proof to the contrary is demanded at the trial in this matter. 6. Denied. It is denied that the Plaintiff's injuries were solely caused by 2 individuals or entities over whom Answering Defendant had no control or duty to control, and therefore it is denied that no cause of action exists against the Answering Defendant 7. Denied. The allegation set forth in Paragraph 7 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable court deems a response necessary, it is denied that Rule 238 is unconstitutional, and proof to the contrary is demanded at the trial in this matter. 8. Denied. The allegation set forth in Paragraph 8 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff's claims are barred by the Doctrine of Accord and Satisfaction andlor Release, and proof to the contrary is demanded at the trial in this matter. WHEREFORE, Plaintiff demands judgment against the Answering Defendant, Enola Sportsmen's Association, for the relief set forth in the Complaint. Respectfully submitted, Date: ~ .~ ~`~ ~~~ HANDLER, HENNING ~ ROSENBERG, LLP By v ~J W. Scott Hennin I . D. #32298 1300 Linglesto n Ro Harrisburg, PA 1711( (717) 238-2000 Attorneys for Plaintiff 3 THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW CERTIFICATE OF SERVICE On the 7'h day of February, 2008, I hereby certify that a true and correct copy of Plaintiff s Reply To New Matter of Defendant, Enola Sportsmen's Association was served upon the following by depositing in U.S. Mail; John Evans, Esq Bolan Jahnsen Reardon 31 South Eagle Road Havertown, PA 19083 Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road -Suite B Harrisburg, PA 17112 Date: ~- ~.-~G~/ Joseph D. Deal, Esq. Cooper Levenson 1415 Marlton Pike (Route 70) East Cherry Hill Plaza, Suite 600 Cherry Hill, NJ 08034 Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP B ~ ~. Y W. Scott Henning, s uir I.D. #32298 1300 Linglestown Ro Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff VERIFICATION PURSUANT TO PA R.C.P NO 1024 (cl W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his 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 to authorities. Date: ~- ~° ~~~ t-j r`' C~. C_J CJ CJ TJ i ~': i 'Tl ~ ~, ... f~Tl "7"1 ~y rr~ ~.~ ~, r~~"` ~' -r, _, 2~ ` ~x~ ter ~ - N ~ .... ~ :~ ~ r~ C.J -C: •~,. THOMAS WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased Plaintiffs v. KRIS GAMBLE, AMERICAN LEGION POST 751 and ENOLA SPORTSMEN'S ASSOCIATION Defendants OBJECTION TO NOTICE OF INTENT TO SERVE SUBPOENA PURSUANT TO PA RC.P. 4009.21 Defendant, Kris Gamble, hereby objects to the Notice of Intent to Serve Subpoena directed to the Cumberland County District Attorney to the extent that the Subpoena seeks information which is protected by the Criminal Records Information Act 18 Pa. C.S. § 9101, et seq. A true and correct copy of the Notice of Intent to Serve Subpoena with the proposed Subpoena attached as received by Counsel for Defendant Gamble on March 17, 2008 is attached IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.07-4985 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED hereto as Exhibit "A." Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMADI-& GOGGIN DATE: ~(.Q O~ BY: ~ ~ ~'IMOTHY J. MCMAHON, ESQUIRE I.D. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Kris Gamble OS/386019.v 1 THOMAS WHEELER, IN THE COURT OF COMMON PLEAS Administrator of the Estate CUMBERLAND COUNTY, PENNSYLVANIA of ANNETTE WHEELER, Deceased N0.07-4985 CIVIL TERM Plaintiffs CIVIL ACTION -LAW v. JURY TRIAL DEMANDED KRIS GAMBLE, AMERICAN LEGION POST 751 and . ENOLA SPORTSMEN'S ASSOCIATION . Defendants CERTIFICATE OF SERVICE I, Diane E. Black, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~ day of March, 2008, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 John Reed Evans, Esquire Boland Jahnsen Reardon 31 South Eagle Road Suite 202 Havertown, PA 19083 Joseph D. Deal, Esquire Cooper Levenson April Niedelman & Wagenheim, P.A. 1415 Marlton Pike (Route 70) East Cherry Hill Plaza, Suite 600 Cherry Hill, NJ 08034 Diane E. Black OS/370910.v1 ~r ~. COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM A Professional Association By: Joseph D. Deal, Esquire Identification No: 46768 1415 Route 70 East ATTORNEYS FOR Defendant, Suite 600 American Legion Post 751 Cherry Hill, New Jersey 08034 (856) 795-9110 THOMAS WHEELER, Administrator of the Estate of : COURT OF COMMON PLEAS ANNETTE WHEELER, Deceased, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff,: v. NO. 07-4985 -Civil Term KRIS GAMBLE, AMERICAN LEGION POST 751, AND ENOLA $PORTSMEN'$ ASSOCIATION, Defendants. CIVIL ACTION -LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO PA. R.C.P. N0.4009.21 Defendants intend to serve subpoenas identical to that attached to this notice on: Cumberland County District Attorney's Office You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned counsel any objection to the subpoenas. If no objection is made the subpoenas may be served. COOPER LEVENSON APRIL NIEDELMAN AG NHEIM By: Joseph eal, Esquire Attorney for Defendant, American Legion Post 751 DATED: March 12, 2008 . CPCH; 231573.1 COMMONWEALTH OF PENNSYLVANIA COUN'T'Y OF CUMBERLAND THOMAS WHEELER, Administrator of the Estate of ANNETTE File No. 07-498 WHEELER, Deceased • v. AMERICAN LEGION POST 751, et al. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 CUMBERLAND COUNTY DISTRICT ATTORNEY 'T'p; 1 Courthouse Square; Suite 202; Carlisle, PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Your entire file regarding the matter of Commonwealth v. Kris Gamble stemming from a motor vehicle accident which occurred on May 13, 2007 resulting, in the death of Annette Wheeler. at law offices of Cooper Levenson April Niedelman & Wagenheim (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Joseph D. Deal, Esquire ADDRESS: 1415 Route 70 East - Suite 500 TELEPHONE: (856} 795-9110 ' SUPREME COURT ID# 4 6 7 6 8 ATTORNEY.FOR: ilPfa.n~ant BY THE COURT: .Prothonotary; Civil Division Date: 'Seal of the Court Deputy s°^-~ ~ ~ ~ r ~5`1 TT,". ~ xrt~ ~ j 1 ~! q' t -~s :~ ,. ~~~~ ~, ~. CT'3 W. Scott Henning, Esquire I.D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: {717) 238-2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: Henning@hhrlaw.com ____- THOMAS V. WHEELER, IN THE COURT OF COMMON PLEAS Administrator of the Estate of :CUMBERLAND COUNTY, PENNSYLVANIA ANNETTE WHEELER, Deceased, Plaintiff v. NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW PETITION TO SETTLE WRONGFUL DEATH AND SURVIVAL ACTIONS TO THE HONORABLE JUDGES OF THE COURT: The Petition of Thomas V. Wheeler, Administrator of the Estate of Annette Marie Wheeler, deceased by and through his attorneys, Handler, Henning & Rosenberg, LLP, by W. Scott Henning, Esquire, petitions this Honorable Court to enter an order permitting settlement of this action, in support thereof avers: 1. The Petitioner, Thomas V. Wheeler, is an adult individual who resides at 405 Center Street, Enola, Cumberland County, Pennsylvania. 2. On May 13, 2007, Annette Marie Wheeler, Deceased, resided at 5 Black Pine Drive, Mechanicsburg, Pennsylvania. On the date of May 13, 2007, Petitioner Thomas V. Wheeler and Annette Marie Wheeler, Deceased, were lawfully married as husband and wife. 3. On May 13, 2007, Annette Marie Wheeler, Deceased, was riding as a passenger on a motorcycle being operated by Defendant, Kris Gamble. At or about 7:00 p.m. on May 13, 2007, the motorcycle being operated by Defendant Kris Gamble was involved in a one vehicle incident, which resulted in Annette Marie Wheeler, Deceased, sustaining fatal injuries. A copy of the Police Report is attached as Exhibit «A„ 4. As a result of the collision, Annette Marie Wheeler, Deceased, was transported to the Trauma Center at Hershey Medical Center, however, on May 21, 2007, she succumbed from the injuries sustained in the motorcycle incident. Annette Marie Wheeler, Deceased, was age 41. 5. Petitioner and Decedent had two daughters, Naomi L. Wheeler and Amber E. Wheeler. 6. Petitioner, Thomas V. Wheeler, was appointed Administrator of the Estate of Annette Marie Wheeler, Deceased, on June 4, 2007, by the Register of Wills, Cumberland County. A copy of the Grant of Letters is attached hereto as Exhibit "B". 7. Decedent did not have a Last Will and Testament. 8. There are no unpaid or outstanding claims or liens against the Decedent's Estate, except as otherwise set forth herein. 9. Petitioner has initiated a lawsuit against Defendant, Kris Gamble, Enola Sportsmen's Association and American Legion Post No. 751. A settlement with Defendant Kris Gamble has been proposed in the amount of $100,000.00, which sum represents the policy limits available under Defendant Gamble's motor vehicle insurance policy issued by Foremost Insurance Company. A copy of the proposed 2 release is attached hereto as Exhibit "C". A copy of a Tortfeasor Affidavit signed by Defendant Kris Gamble verifying that there are no excess or umbrellas policies is attached hereto as Exhibit "D". 10. A settlement in the sum of $100,000.00 has been proposed by Enola Sportsmen's Association, which represents the policy limit available under the Defendant Enola Sportsmen's Association's liability insurance policy. A copy of the proposed Release is attached hereto as Exhibit "E". 11. At the time of the subject motor vehicle incident, the Petitioner and Decedent maintained a motor vehicle insurance policy with Peerless Insurance Company. This motor vehicle insurance policy did not provide for Underinsured Motorist coverage. 12. At the time of the subject motor vehicle incident, the Petitioner and Decedent's daughter, Naomi L. Wheeler, maintained a motor vehicle insurance policy with Erie Insurance Group that provides for Underinsured Motorist coverage in the amount of $15,000.00. Erie Insurance Company has proposed to tender the $15,000.00 Underinsured Motorist coverage policy limit to resolve the Underinsured Motorist coverage claim that has been asserted by the Petitioner against the Erie Insurance Company. A copy of the Declaration Page from the Erie Insurance Company policy maintained by Naomi L. Wheeler is attached hereto as Exhibit "F". 13. Defendant, American Legion Post No. 751 has denied liability and after embarking upon certain depositions and other Discovery, it is the consensus of the Petitioner and Petitioner's counsel that the ability to establish a claim against Defendant, American Legion Post No. 751 on a Dram Shop theory is limited. In any event, after various discussions between Plaintiff's counsel and counsel for Defendant, 3 American Legion Post No. 751, Defendant American Legion has made an offer of settlement in the amount of $25,000.00. 14. Petitioner is of the opinion that the aforesaid settlements in the amount of $100,000.00 (Gamble policy limit), $100,000.00 (Enola Sportsmen's Association policy limit) and $15,000.00 (Naomi Wheeler UIM policy limit) are the total policy limits available to compensate for the untimely demise of Annette Marie Wheeler, Decedent. These proposed settlements, coupled with the $25,000.00 offer of settlement in the amount of $25,000.00, total the sum of $240,000.00. Petitioner is of the opinion these proposed settlements are reasonable and appropriate given all the facts involved in the proceedings. 15. Petitioner has been represented by the law offices of Handler, Henning & Rosenberg, LLP, by W. Scott Henning, Esquire. Petitioners's counsel seeks fees in the amount of $80,000.00. A copy of the Contingent Fee Agreement between the law offices of Handler, Henning & Rosenberg, LLP and the Petitioner is attached hereto as Exhibit "G". 16. Socrates, Inc., has asserted a medical lien on behalf of the Decedent's health insurance carrier in the gross amount of $13,608.29. Petitioner proposes to reduce that lien for a pro rata share of attorney fees and tender the sum of $9,072.19 to Socrates, Inc., in full satisfaction of the lien. 17. The sum of $789.93 is due and owing to West Shore EMS-BLS. Petitioner proposes to pay that sum to West Shore EMS to pay this outstanding bill. 18. Petitioner's counsel has incurred litigation expenses totaling $1,571.88 for which reimbursement is sought. A copy of the litigation costs is attached hereto as Exhibit "H". 19. Petitioner requests allocation of the net proceeds of the settlement, after 4 payment of attorney fees and expenses, as follows: (a) for the survival action, 10% of the net settlement proceeds to the Estate of Annette Marie Wheeler; (b) for the wrongful death action, 90% of the net settlement proceeds to Petitioner, Thomas V. Wheeler and Decedent's two daughters, Naomi L. Wheeler and Amber E. Wheeler, in accordance with the provisions of the Pennsylvania Intestate Statute; 20. Written approval of the aforesaid allocation obtained from the Department of Revenue is attached as Exhibit "I". (Will be supplied at the time of the Hearing). WHEREFORE, Petitioner requests the Honorable Court to (a) approve the settlement as set forth above; (b) authorize the payment of attorney fees and litigation expenses as stated above; (c) direct distribution of the net funds as set forth above to the Intestate Heirs of the Decedent, Thomas V. Wheeler (husband); Naomi L. Wheeler, (daughter) and Amber E. Wheeler (daughter). Respectfully submitted, HANDLER, HENNING 8~ ROSENBERG, LLP Date: ` ~~ By W. Scott Hen ~ g, uir I . D. #32298 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff 5 THOMAS V. WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . NO. 07-4985 Defendants CIVIL ACTION -LAW CERTIFICATE OF SERVICE On the 3`d day of April, 2009, I hereby certify that a true and correct copy of Plaintiffs Petition to Settle Wrongful Death and Survival Actions was served upon the following by depositing in U.S. Mail; John Evans, Esq Bolan Jahnsen Reardon 31 South Eagle Road Havertown, PA 19083 Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road -Suite B Harrisburg, PA 17112 Date: ~3 - ~~ Joseph D. Deal, Esq. Cooper Levenson 1415 Marlton Pike (Route 70) East Cherry Hill Plaza, Suite 600 Cherry Hill, NJ 08034 Respectfully submitted, HANDLER, HENNING 8~ ROSENBERG, LLP By - ~~ W. Sc enning, Esq~ I . D. #32298 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ,~.-~. ~ j Thomas Wheeler Date: --5 ~~ y~~~ ~~ Print CRS W~~57379 f COWiPROR11~lEALTH OF PEi~iNSYLH~1~, --.! ~o~~cE cRAS~o ~~~o~ni~ ~oRwi Case nosed Reportable Gash '~ 50~ ~ Q Yes Q No Q Yes Q No Page 1 of 9 iinuo~i~iiiuuu ~..r ~ Incident Plumber Police A enry Patrol Zone HAM20070500389 21103 ~~ ~ ~ncY ~~ Precinct Investigation Date (MM-DO-YYYY) Hampden "Cownship OS ~ 13 ~ 2007 Dispatch Time !miU Arrival Tune (mU) investigator Badge Plumber 1902 ~ 1910 CPL. K. SHAUGHNESSY 1416 ® Revr Badge Number Date (MM-DD-YYYY) ~ _ _~~ OQ County County Name RNunicipality Munidpality Flame - 21 Cmberland 103 Iam den Townshi ~~ ~. of Week O sun Q Thu A p p g Gash Date (MIv1-DD-YYYY) Gash Time (mil) Plo of Units ~'t~ ~(il~a elf ~ 00 to ~ OS - 13 e 2007 1902 1 2 ~ O MOn O Fri O Tue Q sat ~ F 1 O Wed Q Unk Worlaone ff Yes, Complete O Yes O ~ School Bus Yes School Zone Notify PENN O Yes O No M O O No ~~ ~) OOT O N O Y , Related Related AAau-tenance es o i^t`~~`O1 T"~ O 4 Way Intersection O 'Y' 4ntersectbn O Int (~ Off R O R il ~ t l t 'S amp a road Crossing er se Uon a - i7es Y 3 O Midbkxlc O •T' Intersection O Traffic Circle/ O On Ram Round About P O Gossover O Other ' San Oven Route Plumber Segment (optional) Travel Lanes Speed limit O North House Number (if applicable) l~~ 02 35 a O south 1716 S Street Ending ~ O East Far Mid-block crashes «+h. Use a O west I Fbuse Number and make sure ORBS BRIDGE ~ ~ O Unknown Pn"O~i Roadway Street Name is ' d ~ filled in rf using this option $S O Interstate O Turnpike O Turnpike O State County Local Road Private Other/ {Not Turnpike) {EastANest) S O Hi O h O O pur g w Road or Street Road Unknown = Route Aiumber Se m t (O ti T l ,~ ~ ee p onan rave Lanes Speed Umk O North " ~~ ~ ~ ~ O South Street Flame Str ~ c O East v O West - ~ ~ O Unknown s _ ~ '~~ O (Noet~Tumpike) O { uEasUwest) O Spur~ke O H gtttway O Road ~ O or Street O Road e O ~nk~nown '~ Intersecting Rt Plum Or AAile Post Or Segment Mariner _ '. ° O North t ^ ~ ~~ O ~ d v Or Mtersecting Street Pla • O South Please ing -yr Enter Information '° far BOTH 9 ~ fi O West ~ Or Mifes ~ Y a landmarks ~ if Using This Optron httersecting Rt Num Or Mile Post Or Segment Marker _ ~ -----t ~ ^ ° I O O North ~ . Distance From Crash S ~ . -___I a O South cene to landmark t ® j ~ Or Irttersecdng Street Name St Ending ~ O East (For Crash between ~ O West Landmark 1 and Landmark 2) m ~ Degrees Minutes Seconds Degrees Minutes Seconds Latitude: 40 16 ; 53 .000 longitude: - 76 58 : 06 000 Traffic Control Devirw Q Yield Sign ~] Polke Officer or Ll~-ErazGt O Not Applicable O Traffic Signal O A~ a SR Crossing O ~~ ~ TCD O No Controls O lmp ep~ ~Ot11~ O preem~ p~tive Flashing Traffic Signal O s' al O Stop Sign Passive RR Oevice Not Dzvice Functionin ~' O Crossing Controls O Unknown O Functioning O Properly g O Unknown La~~d (-f 'Not Applkable', skip rest of the Cane Unsure sectron O East ) L O North O North and South Q A{I O Not Appligble O Partial) Y O Fusty Q Unknovm O South O West (~ East and West (N,S,E,W) IIBf~C Yes (~ No O t Unknown Q ~TC12» ~ O < 30 Min. Q 30-t;o Min. O 1-3 his O 3-s his O 6-9 his O > 1 e 9 ~EIVNDOT COpY http://www.dot6.state.pa.us/icons/Printlmages/XmlFiles/20070533461 GUTSHALL 1 Pri-~t CRS ~~'~057379' .- f~~~@.9K~ ~H R~1rINCa ~Rfl ~~ A,A 500 2 ~~~ ~ °n~' _ ~~ Page 2 of 9 aauiiii~n ~.._.. ~ wnns~~~9 o e C~ Motor Vehicle in O Hit & Run Vehicle O III all Parked O Le 1 Parked Tune Transport e9 Y 9a N O Non -Motorized CommercJai Vehicle io a, Unit C~ Pf~destrian O Pedestrian on Skates, O Disabled From O Train O Phantom Vehicle in Wheekhair, etc Previous Crash O Yes O No (Pf 'Pedestrian' or 'Pedestrian on Skates, in Wheelchair, etc', Com lete Form M, Section 28) (If Yes, Complete Form C) Un~_ First Flame MI Date of Berth (MM-DD-Y11'Y) O1 I KRIS D~ 07 ~ 1970 Delete? Vast Narne Tele hone Number O GAMBLE 7177329097 0 Address 1 G /State Zi ;, 105 HOLLOWVIEW DRIVE ENOLA PA 17025 Driver license Number State Class 22143180 pA~ e ~-~--~ .4leoleoLDruas 5usaected Driver ov Pedestrfan Phvsica/ Condition O No O Igegal Drugs O Medication O ~ r ~ntly O U~al Drug O Fatigue O Medication e. ` O Akoha O Akoha and Dnsgs O Unknoum Had Been O Drink• O Sick O Asleep O Unknown > Akohof Test Tune d p O Test Not Given O Breath O Other ~~ Vehrde rode Violation Charged? v O Bkrod O Urine Q T ~n ~rf DUI O Yes O No G Alcohol Test Rewh~ [~ Test Refused O Resu~ Driver Presence 1=Driver Operated 3=Driver Fled Scene ~~ ~ O Test Given, Contaminated Resutis ~ Vehicle 4=Hit and Run Z=No Driver 9=Unknown Owner/Driver UO--Not Applicable 02~rivate Vehicle Not 04=State Police Vehicle 07=Municipal Poice Veh 09~ederal Gov Veh O1 01=Pnvate Vehicle Owned! Owned/Leased by Driver 05=PENNDOT Vehicle 08=Other Municipal 98.-ether Leased by Driver 03=Rented Vehicle 06=Other State Gov Veh Government Vehicle 99=Unknown Sarre ~ ~~ First Name Owner last Name or Business Name (If Pedestrian, skip this Section) D"~~ OKRIS GAMBLE Address / Gty 1 State / 25p Vehicle Make •Make Code 105 HOLLOVWIEW DRIVE ENOLA PA 170257025 Harley-Davids 72 VIN Model Year Vehicle Model (see overlay) 1HD1PG8187Y951353 2007 FLHRSE3 SCREA ~~ Plate Reg. State Es4. Speed Vehicle Towed Towed By RVKO1 PA 045 Q Yes O No ~OADSIDE RESCUE Insurance insurance Company Policy No ~ a O Yes O ~ O knno~m FOREMOST INS CO 2760071037810 eq C t ~ ~ T Cling IYP? 1=Towing Pass. Veh 4=Ma>de/Modular Home 7=Semi-Trailer Tag No Sag Year Tag 5t Unit No. of C~ tlnR ~ 2=Towing Truck 5~amper B=Other ~ o V ~ ~ a 3=Towing Utility Trailer 6=Full Trailer g=Unknown Un is g L Direction of ~~ •Yehicle PosiGOn O1 *ARovement raT~7e - 17 *See ~ Usage Overlay Vehicle Cola Vehicle Tune 05=Large Truck 20=Unicycle, Bicycle 00 12=Commerdal 02 O~S~er~ , 02 01=Automobile Ofr=SUV Tricycle 07=Van 21 02=Mot r l Oth i d 00=Not A Passenger Pplrcable Carrier ~ ~ o cyc e = er Pe a cyde Ot Fl V h _ 01=Blue 09=Brown 03=Bus 10=Snowmobile 2Z=Horse & Buggy 04=5nwq Truk 11=Farm Equip 23=Horse & Rider = re e 13=Taxi 02=Ambulance 21=Tractor Trailer 02=Red 10=Orange 03=White i i=Purple pf U2', Complete form 12={onstruction Equip 24=Train M, Section 16) 13=ATV 25=Trolley 03=Pdice 22=Twin Trailer 08=Other Emergency 23=Triple Trailer 04--Green 12=other 05=Black 99=Unknown (!{ -20' or 21 ;Com lete 18=Other Type Spec Veh 98=Other form M, Section 217 P 19=Unk. Type Spec Veh 99=Unknown Vehicle 31=Modified Veh 11=Pupil Transport 99=Unknown initial Impact Point Damage Indicator Gradient 3=Downhill Road Alignment 12 00=Non-Collision 14=Undercarriage 01-12=Clock Pants 15=Towed Unit ' 2 O=None 2=Functional ~ i=Minor 3=Disabling 4=8ottom of Hilt ~ 1=~~ S=Top of Hill 1=Straght ~ 2=Curved 13= Top 99=Unknown 9=Unknown 2=Uphill g=Unknown 9=Unknown r~nnvur wrT ___ _ _ _ . http:/1www.dot6.state.pa.us/icons/PrintImagesiXmlFilesJ20070533461 GUTSHALL 19502... 5/29/2007 Print CRS WC-057379 __..I GOAiiRAOPd~fUEALTH OF PEMN45YL1l~iPN1A P~~UCE CQtASFt REPOR76PlG FORflfi ~~-~ AA 500 3 ~ "~ °r~ r V~ I - I Page 3 of 9 it Crash Number 1 W0057379 ?. r >~: Q 1=Dryer 2=Pass .~aL.2r ~ 00=Not A Passenger(Occupant 01 D i lt h" ~~as~%ome~r ore: E 00=None Used /Not Applicable ~j pliable enger 7=Pedestrian 8 -0th = r ver -A Ve ides 02~rorrt Seat Middle Position 0 ~ 01=Shoulder Belt Used 1 ~fot Ejected 02=tap Belt Used 2=Totally Ejected - er 4=Unknovm 3 ron[ Seat Right Side 04=Second Row -Left Side Or 03=lap And Shoulder Belt Used 3=Partially Ejected 04..-Chikl Safety Seat Used 9=Unknown Motortyde Passenggeer 05=Motorcycle Helmet Used 05=Second Row -Middle Position 06=B~ Helmet Used ~..I Election ~~: Of~S d R Ri h Sid ~: B F =~~ econ ow - g t e 02=Th"ad Row Or Greater - 70=Safely Belt Used Improperly O=Not E' /Not 11{hil Safety Seat Used Improperly !acted Applicable o v M=Male U =Unknown ~ Side 0~8=Third Row Or Greater - 12=Helmet Used Improperly 1=Through Side Door Opening 90=Restraint Used, Type Unknown 2=T~~9h Side Window a Middle Position 09=Third Row Or Greater - 99=Unkraam 3=T~~ ~+~ 4=rnrovgh Bads Doa s tnjyyy Severity: Right Side 10=Sleeper Section of Trudkab ~f ty Eaurar~ent Two: ~~~9h Rai for Tai~?te Opening F OO~lone Used /Not Applicable ~ Pe ~ (sunroof/ ® ~ O=Not Injured 1=Killed 11=ln Other Enclosed Passenger Or Cargo Area Ot~ront Air Convertible Top Down) Bag Depkryed (For This Seat) 02=Side Air Bag Deployed (For This Seat) ~=Through Roof Opening (Convertible ~ 2~rlajor Injury 3=Moderate 12dn Open Area (Bade Of Pickup, Etc.) 03--Other Type Air Bag Deployed T~ UP) 04=Multiple Air gags Deployed 9=Unknown Iryury 4=Minor Injury B=Injury Unk 13=Trailing Unk 14=Riding On Vehicle Exterior 1 S--Bus Passenger 05=Motorcycle Eye Protection 06=Bicyclist Wearing Eltaw/Knee/Pads tO Ai N B t D b d , Seventy 98--OUrer = r o ag ep ye , Switch On O=Not liable 11=Air Bag Not Deplored Switch Off x 9=Unknown 'rf Injury 9~Unkrwvm , t=Not E tricated 72=Asf Bag Not Depbyed, 2=Extriated B Mechanical Means Unk Switch Setti y t3.Al Bag Removed~Prior To Crash) 3=Freed By Non -Mechanical Means 8=Otlrer 19=Unknown If Air Bag Deployed 99=Unknown 9=Unknown Elves Agengr:: ~HAMPDEN TWP AMB 71/E PAedicai fadlity: HERSHEY MEDICAL CENTER Unit No Person No OI Ol Date of Birth (MM-DD-YYYY) A B C D E F G ~H I p ~ 07 - ~ - 1970 la M^ 3~ O 1 ~ ~ ~ Name /Address, Phone LJ ^ Same ~ GAMBLE, KRIS D 105 HOLLOWVIEW DRIVE ENOLA PA 17025 71773 EMS Transport Operator Q Yes (~ No Unk No Person No O1 02 ~~~ Date of Birth (MM-DD-YYYY) A B C D E F G H I p OS - 22 - 1966 2~~~~~~~~a Narne ,Address , Phane ^ o~ t~or ANNETTE M WHEELER 8 BLACK PINE DRIVE MECHANICSBURG PA 17 ERRS Transport (~ Yes ~ No Unit Flo Person No o~ Delete'- Date of Birth (MM-DD-YYYY) A B C D E F G H I ~ c~-c~-~oooc~oc~ooa Flame /Address , Phane Same ~ fNRS Transport Operator O Yes ~ No Unit No Person No Date of Birth (MM-DD-YYYY) A 8 C D E F G H I Flame /Address /Phone Same as EMS Transport Operator (~ Yes ~ No Unit Na Person No Dekte7 Date of Birtfi (MM-DD-YYYY) A B C D E f G H Inn 0 ~_~_~~^^~~~^^ Name /Address !Phone LJ ~~ EPAS Transport [~ Yes Q No Unit No Person Pb Q ~ Date of Birth (MM-DD-YYW) A 8 C D E F G H I Q 7 ~-~-~^~^~~~~^~ Name /Address /Phone Same ~ EMS Transport Operator O Yes O No FORY a ~~.SM n e..... PENNDOT COPY http://www.dot6.state.pa.us/icons/Printimages/XmlFiles/20070533461 GUTSHALL 19502... 5!29/2007 Print CRS W0057379 COAAAflOPdFR/E~l~ OF PENRlSYL1lAMI~. POLICE CR,~549 REPORI'IP~G FOR~Ii ~ AA 500 4 ~~ use ony . iuimmuni W0057379 Page 4 of 9 Crash Number Crash Descriudion Relation to Roadaav ~ glumination weatfier Cwrdidiortt _~ = Road Surface Condib'ares o=rbn-caasian zed on 1~iear End 3=Rear to Rear (Backing) tin Travel Carnes 3~viedian 2=Shoulder 4~ioadside t~ o Street Lights 4~usk I^ tdVo~erse 3=Sleet (Radio 2=Rah ~ 4~raw ~pny 2-~ ,Mud, Did, i=1Net 3=Snow Covered ~ 22 ~ p Unit No O1 zCti~~p Please Put Events in 3 ~ p ~ Sequential Order 4 ~ ^ p a o 1 Harm Evmrt L/R Most? IJb'lity Pole idumber ~ ~ p Unit No c Please Put Events in 3 ~ ~ O Segrxrtia/ ---- Order 4 ( ~ ~ p ~~( Unit No Harm Event ~atmfu) Unk IVo Harm Event O1 22 vet O1 50 Do rot repot 1Ms infonnatim m miAtyle pages Emirannrernal/Jtoadway ' ~ 2 ~ 3 i'~bterrtial Factors {F!R} 00/iilone 11=Slippery Road Conditions (kel5now) o1=Windy Conditions 12=Substance On Roadway 02=Sudden Weather Conditions 13-Potho4es 03--Other Weather Conditions 14=Broken Or Cracked Pavement 04 h Roadway 15=TCD Obstnrcted OS~bstade On Roadway 1 Cr=Soft Shoulder Or Shoulder Drop OH 06=Odier Animal In Roadway 28-Other Roadway Factor 07=Glare 29-Other Environments factor c 06=Work Zone Related 99=Unknown Poasebk Vehicle Failures (V) 12=Wipets 0~-,bne Of>=Exha<rst 13=Driver SeatirxyContrd .°. 01=Tires 07=Headlights t4=Body, Doors, Hood, Etc 02~rdke System 08-~5'gnal lights 15-Trailer Hitch ~ 03=Steering System 09 then Lights t6=Wt+eels a 04=Suspension 10=Horn 17=Airbags a' OS~ower Train 11=Minors 18=Trailer Overbaded 19=Unsewrel5hifted Trailer toad v ~ O 1 ~ QO 2 ~ 20=Improper Towing 21=0tstructed Windshield ~ ~ I ~ 2 ~ 99=Unknown )ndi[atad Prime Factor 00 nd repeat tlis :>F«mau«~ «~ E/R V D P ~ ~ C) O Unit No Factor Cotk O1 92 d E/R h the Prime factor Type, leave Unit No blank 4=Angle vripe B--Hit PedesM~ H ~ ) Same irectian) 7= i[ Object 9-OthedlJnknorvn 5~utside Traffirway pore (Ramp Intersection) Cron Parking Lane 9=Urtlatown yawn B-OUier --- -_ -- -- 5=Fog 7=Sleet & Fog 9=1.Inkrtown fi~iain 3 Fog B=Other l~lce Patches ~ 7=W~~_ ~ B-Other Harmful Events (Harm Events Ot=Hit Unit 1 02=Hit Urtit 2 03=Hd Unit 3 oa--Hit una a OS=HR Unit 5 06=Hit Otlier Traffic Unit 07=Hit Deer 0a3=Hit Other Animal 09=Cdtision Wrth Other Non fixed Object 1 t=Stnx:k By Unit 1 12=StrtXk By Unit 2 13=StrtXk By Unit 3 14=Struck By Unit 4 15=Sinxk By Unit 5 1 C~Strttck By Other TrafftC Unit 21=Hit Tree Or Shrubbery 22=Ni[ Embankment 23=Hit UU'tRY Pde 24=HR Tr Sign 25=Hd Guard Rail 26=Hi[ Guard Rail End 27=Hit Curb 26=Hit Concrete Or tsxgitudinal Barrier 29=Hit Ditch 00=No Contributing Action 01=Driver Was Distracted 02=Driving Us~g Hand Held Pfwne 004.M k^~ INeg I Handsn nee Phone 05=1mproperKareless Tumirxl OC~Tttming From Wrong lane 07=Proceeding W/O Clearance After Stop 08=Ruining RtopUS.g~g 09~tu ed M 1 O~atluo Respond To Other Tmrgaffic Control Device 11=Tat ga n Siowi t n 12=5 13=111egaly stopped o Road i4_{areless Passing Or Lane Charge 15=Passing In No Passing Zone iC~Driving The Wrong Way On 1 •Way Street 36--Hit Fence Or Wa6 31=H'd Builridirrg 32=Hk CuhRrt 33=Hit Bridge Pier Or Abutment 34=Hit Parapet End 35=Hit Ratl 3fi=Hit Bou er Or Obstacle On Roadway 37=Hft Impact Attenuator 38-Hk Fire Hydrant 39=Hit Roadway Equipment 4Wih Mail Box 41~1it Traffic Island 42=Hft Snow Bank 43=8rt~Temporary Construction 48~1it Other faed Ob~'ect 49=Hit Unkravsm Fixed Object 50=0rerturNRoN Over 51=5~ By Thrown Or faNing 52=Pot Holes Or Otter Pavement Inegularities 53=Jadcnde 54=Fine In Vehicle 58=Other Non{ollision 99=Unknown Harmful Event 17=Careless Qr IBegat Backing On Roadway 18=Driving On The Wrong Side Of Road 19=Making Improper Entrance To Highway 20=Making improper Exrt from Highway 21=Careless ParkincyUnparking 22=OvetNrder Compensation At Curve 23=Speeding Z4=Driving Too Fast For Conddions 2S~ailure 7o Maintain Proper Speed 26~rnrer fleeing Police (POl Chase) 27~river inexperienced 28=Fathrre To Use Specialaed Equip 92=Affected By Physical Condition 98--Other improper Driving Actions 99 =Unknown ~'~ O1 t 22 z 92 3 ~ . e 9 ~ 2 ~ 3 ~ 6 Pedestrian Action (P) OO~Jone 01=Entering Or Crossing At Specified location 02=Walking, Running, Jogging, Or Playing Unit No Q i QQ 03=Working 04=Pushing Vehicle 05=Approaching Or Leaving Vehicle Oft=Working On Vehicle 07=Standing 98.-Other 99=Unknown Unit Plo r....,...,,.•~ ~.~...~, PEWPIDOT COPY http://www.dot6.state.pa.us/icons/PrintImages/XmlFiles/20070533461 GUTSHALL19502... 5/29!2007 Print CRS W0057379 1 COPJIMONIMEALTH OF PEtdNSYLVANIA POLICE CRASIH REPORTING FORM page AA 500 5 ~'"~ "~ Only Page 5 of 9 BI~IIIIIIIIII ~~.... ~ W0057379 .. ............_......_ _ .. ... _... _. .. _. _. ..._ ... .. ... o O ... ... ... ... ._ _ ... ... ... ... _... _ ... ... __. ~ Witness Name Address Phone ~ PATTY KOLTRIDER 424 D DUKE STREET ENOLA PA 17025 7177283030 a 1702517025 Narrative and additional witr~esses: Acadent Investigation Notification issued? O Property Damage O On Sunday 05-13-07 at 1902hrs was dispatched to motor vehicle accident in the 1700 block of Orrs Bridge Road involving a motorcycle. l?ispatch advised they were receiving report of one person laying on the highway. Upon arrival observed a red and black Harley davidson motorcycle leaning on left sideyingtfacing west on the shoulder and partially on the highway in the south bound lane. There was a female laying on the highway behind the motorcycle who was being treated by EMS personnel. She appeared to have suffered a severe injury to her head. Standing beside the motorcycle was a male who had "road rash" type abrasions to his hands, elbows and forehead. He identified himself as the operator and that no other vehicles were involved. He advised that the female was his passenger but he didn't know her name. He stated that he was giving her a p ride and had come from Enola. He stated he lost it in the stones on the side of the road and ~ dumped it. He indicated to me that he ha d been traveling north bound. I detected a strong odor of alcoholic beverage emminating from his breath and request ed he get his license, registration and insurance cards out while 1 further secured the scene. I had the road dosed off and did a quick canvas for witnesses. Officer Higgins arrived on scene and (had him get witness ~ information. I reviewed the physical evidence that indicated motorcycle ha d been traveling south bound and failed to negotiate left curve, traveling up hill and off highway and onto embankment where it overturn, ejecting passengers and rolled ov er to final point of rest.The passenger was transported and flown via Life Lion helicopter to Hershey Medical Center. I re#umed to operator#1 and again asked him what had happened. He again indicated to me that he was coming from Enola on Pine Hilt Road giving this girt a ride.l asked from her house or from a business and he stated the Enola Sportsmans Club. He indicated that he was traveling north bound, down hill and lost it in the stones on the side of the road. I tried to clarify his statement by repeating his version and pointing the direction and he indicated he remembered seeing a car coming in southbound lane and he got into some stones, indicating some on the northbound shoulder, and lost it.He indicated that he was just scratched up and a little shook PENNDOT COPY http://www.dot6.state.pa.us/iconslPrintImages/XrnlFiles/20070533461 GUTSHALL 19502... 5/29(2007 Print CRS W0057379 z Page 6 of 9 J ~, ~~ ~ ~~ Pa~ o ,~ ~l~illlllll~ll~l~ ~,~~.,~. ~ ~ 500 N rye „x a,y ~ O ~~ W0057379 Continuation iNarrative and additional witnesses: ~ up but not injured. I had EMS personnel come over to check him out. While speaking with him I again detected a strong odor of alcohol on his breath and observed his eyes to be blood shot and glassy .and very dialated. His speech was slightly slurred and his responses were slo~wand deliberate. He was wobbly and swayed as he stood 8nd kep t using vehicles to lean on. EMS personnel wrapped up his brush bums and he wanted to sign off on being transported for treatment.He knew the day and date but didn't know the passengers name or the direction he had been traveling.0 Aerator #1 then breifly fainted and it was decided by EMS personnel to transport him to Hershey Medical Center for treatment. I spoke with Officer Higgins who advised that witness Koftrider stated she was north bound and observed motorcycle, traveling south bound, round the curve too wide and went off side of highway and onto embankment and then lost control and crashed. I had Officer Higgins take photographs of the scene. I left the scene and repanded over to Hershey Medico! Center E.R. arriving at approximately 2030hrs. I advised ER personnel that I suspected that Operator#1 was DUI and requested his blood be screen for BAC a nd drugs. The motorcycle was towed to the Police Dept garage by Roadside Rescue where a Loser inspection of damage and photos could be taken. Measurements from scene: (MC Final Rest marked org paint left side op foot rest) 1)From PPL Pole #21790/S34629 south to final rest of motor cycle....24' 2)From MC Final Rest to victim FR (head) 4' north, 5'east/ T west of center line 3)Striations/siide marks; North from MC FR to two major gouges on edge of south bound paved shoulder...24' 4)Paint where MC left south bound highway to two major gouges on south bound shoulder...76' S)DirtGouge in embankment to two gouges on endg a of paved shoulder...12' 6)southbound lane..12' ~ r s a e s « _ ~ ' 4 m 9 .,Y.. n»ww. a•~v PENNDOT COPY http://www.dot6.state.pa.uslicons/PrintImages/XmlFiles/20070533461 GUTSHALL 19502... 5/29/2007 Prnt CRS ~Wu057379 u z x Page 7 of 9 -..1 °~ P~ o N~, ~1f111111fII~IIfM~ ~r~ ~r ~I AA 500 F "~ "~ °t~' ~ ~ W0057379 O CorrtinuaHon .--Road Surface Tvare O Brick or Block O Dirt Spedal lurisdretian Mil' O ~Y O Other Federal Sites O Concrete O S~Gravel or O Other O u°.~~!al O Indian Reservation O Other O mop O Unknown O National Park O ~~~ nnre~' O unknown Please complete Unk Information for eaKtr unk invdved in a fats! sash. Do not repeat the information in the fields above on muhiple pages. lkdt N0 01 Prinade Impact Point ONon-Collision O O 12 d l] Ol O R i i 10 02 O estr ct ons O Complied V~th Not a Pen ants O Driver ~ O Top No Restrictions) O O ~ ~P~ O Unk^Oti"^~ C li O Urulercarriage O 09 0 03 O 4 N~ Appr~b~ O omp ance O Towed Unk O O 07 0 6 05 ~~[trdorsera~rt O ~ Penraylvania O O Unknown O O O npfied With a Drrver ~ ~~ -Non At A id ' O ~~ Unknown O Compliance vo arce anewe- ~ O Narz Requ ved O ~ No Avoidance O Maneuver ~~ O Cnher Avoidance ~ O E id e Unkno wn v er xe Maneuver Dnverliceres@ No[ Required for O Unk'rf CDL or O O p ~~ Evident O Sor Driver Stated~e O Incond~ive Vehrde Class CDL Required ~ No Valid License for Vasa O Nat a Pennsylvania Driver Braking - No Skid a Driver O M Steeri and Braki d O Unknown O n O Not Licerued O valid License for O unknown a s Evide ce or State t]ass under Rrde lrrdKatar Osrg Test Tvpe O Blood O ~~- O No Underride or Override, Other O Compartmert O O None O Urare O Unknownrf Test Override Intrusion Vehicle limn Ur>derride UnkrwWmd Und rrid Dmo Test Results - Alp m four Rewfts/ ~ ^ , O Compartment Intrusion e e, O Compartment O Underride os kmtsion Unknown Override 0 = No Test Given 5 =Amphetamine 1 = No Drug Reported 6 =PCP D Z = ~ 3 = ~~ 8 =Other 9 = Unknovun Test ~ ~' ~ Not in Emergency O Lights Flashing O soth tights and Siren 4 =Opiates Results ~ (Ise O Siren Sounding O Unknown Unit No Prirrdpk Impact Point O Non{dlision O O ~ 12 1 0 O Restrictions N 1 02 O D~ ~ Complied WRh ot a Penmylvania O Driver ~ Top O No Restriction;/ O C R O ~m ~e O Undercarriage O 09 03 O Not Applicable O Co ~ w ~ O Towed Unit O 08 04 O s Un k ia r 07 0 05 o D~ Er~orsement Required - O Not a Pen hrenia O ~ O Unknown 6 O O O --- Complied With Driver O Required -Non O Unknown Avoidance AQaneuwer e O None Required Complrarxe Compliance No Avoidance O B ki O ~~ - Maneuver ra ng -Other O Other Avoidance O = Compfrance Unknow n Evidence Maneuver ~ Driver /xense Not ~~~ for O O Unk if CDL or Braking Skid O Marks Eviderrt Steering -Evidence lnco~usive O or priyer Stated O canoe Vehide Class CDL Required No Valid licerue O for Claa Not a Penn Ivania O ~ Braking ' No Skid O Marks Driver O Steering and Braking O Unknown O Not Licensed Valid License for O ~ Driver O Unknown , Stated Evidence or Stated t Unaler Ride ~ Drug Test Type O Blood O Other aide or O Underside, No ~ Other O Compartment O ~ d O ~e O Urkre O Unknown 'rf Test Oven de V i e Intnuion Given Undertide Underride Unknown'rf Dnr4 Tess Results - fllD tb four Results) ^ ^ , O Compartment Intrusion , O Compartment O Underride or Intrtss~on Unknown Override 0 = No lest Ghren 5 =Amphetamines 1 - No Drug Reported 6 -PCP 2 = [Wari~uana 8 -Other 3 = Cowme 9 =Unknown Test ^ ^ Emeroeruv Use Both Lights and O Lights Flashing O Siren 4 =Opiates Rewhs Not in Emergerxy O Use O Siren Sounding O Unknown - - - - • --- PENA1i?OT COPY http:(lwww.dot6.state.pa.usficons(PrintImages/XmlFiles/20070533461 GUTSHALL 19502.. 5(29(2007 Print CRS VV~~057379 z z r Page 8 of 9 O Never AA 500 M `~ "~ Or1" ~ O ~Corrt~ lion WQQ57379 Unit No For Answers to the below (except for Engine Sire and Helmet Type) use tfte following codes: Y =Yes N = No U =Unknown 01 Engine S' IZ~Q CC Driver Protection ] Helmet Tvoe passenger Protection 7 Helm t T ° BAotorcvde Flan? The Drhrer Has] ~ Eye Protection ~ 0 = No Helmet t = FuN Helmet e ,q~ a 0 = No Helmet N Eye Protection ~ 1 =Full Helmet Passenger ~ MC Education 2 = 3/4 Style 3 H lf H l 2 = 3/4 Style o Saddle Ba and/ rj ~ Long Sleeves = a e met Style 9 =Unknown 3 = Half Helmet ~ Long Sleeves Style 9 U k g ~ T~* ~ Long Pants a Helmet St On? ay = n nown ~ ~ Long Parrts a Helmet Stay On Trai{eer . Helmet has Over Ankle Boots ~ DOT or Snell Helmet has ~ Over Ankte Boots ~ DOT or SneN Designation Designation ~ ~ Unit No y~g~~ ^ P~ ^ Helmet? Y = Yes N = No Unit No Use Codes ^ ^ ~ Y = Yes Passenger? Heknet? N ~ ° d U = Unknown FdEad Rear tightsl ~ Refle<tas? - U =Unknown ^ Head ^ Rear ~~? Reflectors Unit No ppn ~~ ~ Ot =Marked tro sw N t krt ti ~ P- Location s a ts a ersec on Ot =Marked Crosswalks at Intersection 02 = At Intersection - No Crosswalks 02 = At fntersectron - No Crosswalks 03 = NorHntersection Crosswalks Pedesb+an Tuna 03 = Non-Intersection Crosswalks 05 = In RoadwaY~ O Yes ~ _ ~ tees ~ ~ e O No 06 = Not in Roadvray O No 06 = Not in Roadway e O Not at Yrtersec[ion O7 =Median O Not at 4rtersection 07 = Median Oothin ~ _ ~~ a 09 = Shoulder Pedestrian fdotirina 08 = bland 09 = Shoulder ~ t 10 = Sidewalk O light 0 e O D aric 11 = < 10 Feet Off Road 12 = > 10 Feet Off Road O Dark 11 = < 10 F et Off Road 12 = > 10 Feet Off Road O Reflective 13 =Outside Trafficway O Reffectiw 13 =Outside T O Unknown ~ _ ~~ Paths/frails O Udcnown 14 = Sha-ed Pathh 99 = UnknoNm lYadr Zone Tvae d~ in Wav* Zone 7 Work Zone ~ ^ Lane Ckrswe~ O (Ldg O Warmgl Sgn Zone law Enfant ~ Road Cbsed with D ° o Maintenance O (Short Term) ~ O Advance Wam' Area ~ tNfker Presenf etour? (Mark aN that ^ Work on Shoulder w ~ O Transition Area Waders lrresent O ~ Company O Yes O N0 apps. tf not or Median? inwowed or Intermittent or unkn L ^ 3 O Amity Area O Yes ow, eave Mov+ng Work? blank) O other O Ten~wtion Area O No O Unknown ~ Flogger Control? Lht of Wamino O Other O Unkrw~nm ~ frt Marratirwe ^ Other A ddrtional iN-Page rtforrnation Aonfr s a68mesi.~ P£NN1D0'T COPY http:/1www.dot6.state.pa.usliconsJl'rintImages/XmlFiles/20070533461 GUTSHALL 19502... 5/29/2007 Print CR5 W0057379 Page 9 of 9 Crash Number: W0057379 Incident Number: HAM20070500389 ''} ,; ~;;', GRAVEL ''; ,~ ~,, ,~ ,, ~ Up Fiitl 1716 Orrs 1 l ~ t / to PPL 17tility Paleil'2179a / 5346?9 ~\ EMBAN IO~AENT I Uti(~ Pole ..--'~~~ .~'~ .. ~~ ~' _.__ __ - -- --- __ _--- __ _- __ http://www.dot6.state.pa.us/icons/PrintImages/XmlFiles/20070533461 GUTSHALL 19502.. 5/29/2007 Page 1 of Z Print Close Window Synapsis d Quality Assurance Synopsis ~ Report Crash Synopsis created 05/29/2007 for Crash Number W0057379 Web Group: QA. Police Agency Data: The crash report was recorded by police agency 21103-Hampden Township, patrol zone - NE, under incident number HAM20070500389. The dispatch date was 05/13/2007, the dispatch time was 1902 hours, the investgation date was 05113!2007, the arrival time was 1910 hours. The investgator was CPL. K. SHAUGHNESSY, badge number 1916. The report has not been approved. Crash Data: This hit fixed object crash occurred in Cumberland county, in the munidpal'ity of Hampden Township, on Sunday, 05113!2007 at 1902 hours. The illumination at the time of the crash was daylight. The 1-unit crash involved 2 people w+th 1 injury. There was 1 fatality as a resuk of this crash. This is a reportable crash. Highway maintenance was not notified. The crash was not school bus related. The crash was not school zone related. There was no PennDOT property damaged. Tfie crash did not occur in a work zone. The Blacktop roadway surface was dry. Weather conditions included No adverse conditions. A not cation of an accident investigation was nat issued. Other environmental I roadway potentia{ fadors included None. The indicated prime factor for this crash was a driver's action (affected by physical condition) for unit 01. The first harmful event for this crash was that unit 1 hit an embankment and the most harmful event for this crash was that unit 1 overturned /rolled over. Type Location: This was amid-block (non intersection) crash, which occurred at no special location. Principal Roadway: Cumberland County, 1716 ORRS BRIDGE Road, the orientation of the roadway was South, there were 02 travel lane(s), the speed limit was 35 Mph, with Local road or street route signing. GPS: The police-entered Latitude was 4016:53.000 and the police-entered Longitude was 76 58:06.000 TCD: Traffic Control Device: no traffic control device, No controls. Work zone: Type of Work Zone: not a work zone. Lane Closure: Fully dosed. Lane cbsure direction North and South. Traffic detoured yes. Estimated hours closed 30 - 60 minutes. UNIT INFORMATION: 1 Unit Number 1 was a motor vehicle in transport. The unit was owned by KRIS GAMBLE. Address: 105 HOLLOWVIEW DRIVE, ENOLA, PA 170257025. This 2007 Harley-Davidson identified by VIN: 1HD1PG8187Y951353 was registered in PA with License RVK01. Travel speed: 045. Unit insured: vehicle has insurance, Insurance Company: FOREMOST INS CO, Policy number: 2760071037810. The Unit was towed by ROADSIDE RESCUE. This Unit is a motorcycle with saddle bags. The size of the engine is 01200 CC.The driver received a motorcycle driver education.The driver did not wear a helmet.. For protection, the driver wore The driver did not wear a helmet.. long pants, ,over-the-ankle boots.The passenger did not wear a helmet.. For protection, the passenger wore The passenger did not wear a helmet.. {ong pants. This was not a commercial vehicle. This Unit was a motorcycle, Vehicle color: Red, Special Usage: Not applicable. The initial impact point was at 12 o'dock, Damage Indicator: Functional (mod. -may be undriveable), Vehicle role: Striking, Vehicle position: in the curb lane right. Direction of travel: South, Movement: Negotiating curve -left, Gradient: uphill, Alignment: Curve. Driver Information: The driver of this unit was KRIS D GAMBLE. Address: 105 HOLLOWVIEW DRIVE ENOLA PA 17025. Telephone: 717-732-9097, Height: 0 Ft 0 In. Drivers License #: 22143180, State: PA. DOB: 07/04/1970, Age: 36, Sex: Male. Seating position: dnver's seat. Primary safety equipment: None used /Not applicable. Secondary safety equipment: Unknown. Injury severity: Moderate injury. Ejection: Not applicable. Extrication: Not applicable. EMS Transport: Yes. AlcohoUDrugs Suspected: Alcohol, Alcohol Test Type: a blood, Alcohol Test Resutts: the alcohol test was performed, results unknown. Driver's action(s), 1 over /under compensation at curve, 2 affected by physical condition. The individual's condition was had been drinking. Vehide code DUI was violated. http:J/www.dot6.state.pa.us/crash.nsf/Synopsis?OpenForm&Seq=1 5!29/2007 Passenger Information: Page 2 of 2 A passenger (1): ANNETTE M WHEELER, Address: 8 BLACK PINE DRIVE MECHANICSBURG PA 17055. Telephone: 717-999-9999. DOB: 05/22/1966, Age: 40, Sex: Female. Seating position: Second row -left side or motorcycle passenger. Primary safety equipment: None used / Not applicable. Secondary safety equipment: None used /Not applicable. Injury severity: Killed. Ejection: Not applicable. Extrication: Not applicable. EMS Transport: Yes. Print Close Window _ ._ _. http://www.dot6.state.pa.us/crash.nsf/Synopsis?OpenForm&Seq=1 5/29/2007 STATE OF PENNSYLVANIA SHORT CERTIFICATE COUNTY OF CUMBERLAND I, GLENDA EARNER STRASBAUGH Register for the Probate of Wills and Granting Letters of Administration in and for CUMBERLAND County, do hereby certify that on the 4th day of June, Two Thousand and Seven, Letters of ADMINISTRATION in common form were granted by the Register of said County, on the estate of ANNETTE MAR/E WHEELER late of EAST PENNSBORO TOWNSH/P (First, Midd/e, Last) in said coon t;r, deceased, to THOMAS V WHEELER (First, Mrddle, Lastl and that same has not since been revoked. IN TEST~~MONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 4th day of June Two Thousand and Seven. File No. PA File No. Date of Death S.S. ## 2007- 00545 21- 07- 0545 5/21/2007 176-50-3424 S Deputy NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED S Claim No.: 7907293 GENERAL RELEASE FOR AND IN CONSIDERATION OF the payment to me of the sum of ONE HUNDRED THOUSAND ($100,000.00) Dollars, I, THOMAS WHEELER AS ADMINISTRATOR OF THE ESTATE OF ANNETTE WHEELER being of lawful age, for myself and my heirs, executors, administrators, and assigns hereby release, acquit and forever discharge KRIS DARWIN GAMBLE and any and all other persons, firms and corporations of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation and all other damage of any kind on account of, or in any way growing out of any and all injuries to include death and property damage now known or unknown and all consequences of both or either resulting or to result in the future from an accident that occurred on or about the 13TH day of MAY, 2007 at or near HAMPDEN TWP, PENNSYLVANIA. I hereby declare that I have not been influenced to any extent whatever in making this release by any representations or statements regarding t:he injuries or property damage or any other matters made by the persons, firms or corporations who are hereby released or by any person or persons representing him or them or by any physician or surgeon by him or them employed. I understand that this release will be a complete bar to all claims or suits for injuries or damages of whatever nature resulting or to result in the future from the accident. I further understand that this settlement is a compromise of a doubtful and disputed claim and that the payment is not to be construed as an admission of liability on the part of the persons, firms and corporations hereby released by whom liability is expressly denied. No other person or entity has any interest in my/our claim for damages arising out of the accident. I/We have the sole right to exclusive authority to execute this General Release and to receive all sums specified above. I/We have not sold, assigned, transferred, or conveyed any of mylour rights to any damages of any kind arising out of the accident. I/We will defend, indemnify, and hold harmless each of the persons, firms and corporations released hereunder with regard to any and all claims or suits for damages, compensation, indemnity or contribution made at any time by any person, firm, or corporation arising out of the accident and my/our injuries resulting therefrom. Signed and sealed this day of by; Witness Releasor; Address Witness Releasor: Address PLEASE SEE THE ENCLOSED FOR ADDITIONAL INFORMATION. ~ `~" ... ~rrllc Nrlrnber 27b -0071.f}~?810 _-1:103 ~. RENEWAL ~li,~y I*er~od t2:0t ,~,M. iNS~ E co~'T DECLARATIONS #rtt ~ ~8 7 > To €14 standard ...<: AdminisYalive OlfiCe ~ " ;; ~~ ;' ' P.O. Box 2450 Grand Rapids, Michigan 49501 RENEWAL DECLARATIONS EFFECTIVE 04/28/2007 SUPERSEDES ANY PREVIOUS DECLARATIONS BEARING THE SAME POLICY NUMBER FOR THIS POLICY PERIOD. YOU A$ MAIrtEP IIIi~tSEfREp ANR YOUR AOE~E55 ~RYIC~ Rfi0l/ll~ BY; KRIS DARWIN GAMBLE 105 HOLLOWVIEW DR ENOLA PA 17025-1949 FOREMOST INSURANCE SERVICE CENTER PO BOX 3357 GRAND RAPIDS MI 49501-3357 Telephone: 1-800-237-2060 Agency Code: 21 - 4011- 258 P~EMIUI'if[! SII~AR'Y We will insure you for the coverage for which a premium is shown. Detailed coverage descriptions and any limitations will be found in your policy. TOTAL PREMIUM Vehicle Insurance $ 386 TOTAL At+]iN11AL ~A ~ 386 - _,_,_ ~~ ~.: Y Operator Name i\ ,~L}C~e se M} r i ~~ ( State Birth Date DE ~~1 KRIS DARWIN GAMBLE `~--2~2~1~43~0 ~ ~ PA 07J04/1970 00 ~`E~11CLE N+ISURARtCE MOTORCYCLE DESCRIPTION gait 2007 HARLEY DAVIDSON FLHRSE3 SCREAMIN EAGLE VIN: 1HD1PG8187Y951353 CC: 1800 Territory: 001 *i Type Of USe:PLEASURE Class:E Estimated Annual Mileage: 3, 400Rated Operator: ~~1 Garaging Location: 105 HOLLOWVIEW DR County: CUMBERLAND ENOLA PA 17025-1949 VEHICLE INSURANCE COVERAGES LIMITS OF LIABILITY PREMIUM ur}t '' #t_; PART A - LIABILITY BODILY INJURY $100,000 EA PERS/ $300,000 EA ACCIDENT $ 59 PASSENGER LIABILITY INCLUDED PED BASIC FIRST PARTY BEN $5,000 EA ACCIDENT INCLUDED PROPERTY DAMAGE $50,000 EA ACCIDENT $ g PART C -UNINSURED MOTORIST UNINSURED MOTORIST BI-UNSTACK $100,000 EA PERS/ $300,000 EA ACCIDENT $ 59 UNDERINSD MTRST BI-UNSTACRED $100,000 EA PERS/ $300,000 EA ACCIDENT $ $8 PART D-DAMAGE TO YOUR VEHICLE COLLISION ACV LESS $250 DEDUCTIBLE $ 122 OTHER THAN COLLISION ACV LESS $250 DEDUCTIBLE $ 41 ADDITIONAL COVERAGES OPTIONAL EQUIPMENT ACV NOT TO EXCEED $3,500 INCLUDED TOWING/ROADSIDE ASSISTANCE REASONABLE EXPENSE EACH DISABLEMENT $ 8 276-0071037810 -003 INSURED COPY Form 081000 06 ~~~ /94 P +weo+ 278-007+0378+0 DISCOUNTS AND SURCHARGES The following have been applied to your premium AFFINITY GROUP DISCOUNT RENEWAL PREMIUM DISCOUNT PREFERRED OPERATOR DISCOUNT ANTI LOCR BRAKES ANTI-THEFT DISCOUNT Total Discounts $ 16 $ 45 $ 31 $ 14 $ 109 $ 386 tt~i., PI~I~I MINIMUM EARNED PREMIUM $ 50 I"{,~MS ~kND E#~OOF~S~MEN'1"$ AIIUnIts~ PP0417 08/06 UNDERINSURED MOTORIST COVERAGE-NON STACKED ~, PP0421 08/06 UNINSURED MOTORIST COVERAGE-NON STACKED PP0563 06/94 PEDESTRIAN BASIC FIRST PARTY BENEFITS 005116 09/00 OPTIONAL EQUIPMENT COVERAGE 005474 O1/O1 MOTORCYCLE POLICY 005758 08/05 REPLACEMENT COST TOTAL LOSS SETTLEMENT 005772 03/06 AMENDMENT OF POLICY PROVISIONS-PA 005932 01/06 TOWING/ROADSIDE ASSIS AND TRIP INTERRUPTION COV SPECIAL INFORMATIONAL FORMS 737025 05/90 IMPORTANT NOTICE 740064 PRIVACY NOTICE -----^ ^~ --~, 740112 08/01 PENNSYLVANIA NOTICE (~~~ ~~~ ~~ ~} ~~~~' 740113 08/01 NOTICE OF PREMIUM DISC'0~~~' ~ /~ > ~"~ 740122 03/05 PENNSYLVANIA DISCLOSURE~PLAN\`'--~~ ~ 740123 02/05 MINIMUM COVERAGE PREMIUM 740437 11/01 PENNSYLVANIA ID CARD STATE'REOEIED t1+lE~SAOE~~j IMPORTANT NOTICE - YOUR POLICY DOES NOT PROVIDE COLLISION COVERAGE ON RENTAL VEHICLES. PROCESSED: March 26, 2007 Annual Premium By Vehicle ;, t~r1i~ . ~~ so 276-0071037810 -003 INSURED COPY Form 08100006/94 PAGE 2 BLGRoA Erie ,,T Insurance Group • 100 Erie Ins. PI. Erie. PA 16530 NEW DECLARATIONS ERIF INSURANCE EXCHANGE PIONEE. ?AMILY AUTO POLICY J~ (!~~c~.t ~ ::::.::.::...:: .. r: .: .~ ........... ... .... ... .. .~:.'Y`::: .: ':::..: .... --::~-i:::::.. _.::.;; ..: ~•.:;:;: ::::..~:~~ ~. ';::'.:;~ ::, .., .:ir.~~ :; p:: ii': :: i`':ii'.:'<:'i:i :,i:?: is i; `: is •::[~..+~:'.:.~r :'J~:~p _..'' AA70844 GIESELER & JOYCE INS. 03/27/07 TO 03/27/08 Q03 2710768 H NAOMI WHEELER 8 BLACK PINE DR MECHANICSBURG PA 17050-9186. AS LISTED BELOW AGENT - GIESELER & JOYCE INS. 125 NORTH ENOLA DR., STE. 102 AGENT PHONE - (717) 728-9777 ENOLA PA 17025 2500 ITEM 4. AUTOS COVERED AUTO YR MAKE VIN ST TER SYM RATING CLASS DDP 1 07 HOND CIVIC LX 2HGFG12657H519534 PA 4D H Ei0 ITEM 5. INSURANCE IS PROVIDED WHERE A PREMIUM OR INCL, IS SHOWN FOR THE COVERAGE. COVERAGES, LIMITS AND ANNUAL PREMIUMS ARE AS FOLLOWS- M EQUALS THOUSAND $ #1 *****GOOD DRIVER RATES APPLY***** - THE LIMITED TORT OPTION APPLIES TO ALL PRIVATE PASSENGER VEHICLES. - LIABILITY PROTECTION- -- BODILY INJURY $25MLPERSON $50M/ACC 3$g PROPERTY DAMAGE fit M/ACC FIRST PARTY BENEFI'T'S- MEDICAL EXPENSE $5M 81 INCOME LOSS ~1M/MONTH $5M MAXIMUM 15 UNINSURED MOTO ISIS COVER GE- BOD INJ 15M PERSON $30M/ACC-UNSTACKED 5 UNDERINSURED MOTORISTS CO RAGE- BOD INJ $15M/PERSON ~30M~/ACC-UNSTACKED 13 PHYSICAL DAMAGE COVERA ES- COMPREHENSIVE - $500 DED 204 COLLISION 500 DED 1028 OPTIONAL COVER~GES- ROAD SERVICE TRANSP EXPENSES - COLL ~30%DAY; 1;350%LOSS 18 TOTAL ANNUAL PREMIUM FOR EACH AUTO 1935 TOTAL ANNUAL POLICY PREMIUM $ 1,935 ALLMAUTOSPPLFAPB03/007*ICU~2E06005/O1*TS~,FPF01P03/07*TOAFPA03 03/0N*,IUF2345 10/06*. AUTO 1 - AFPU01 03/07*. ANTI-THEFT DISCOUNT APPLIES-PASSIVE NON-DISAB AUTO 1 PASSIVE RESTRAINT DISCOUNT APPLIES - MULTIPLE AIRBAGS AUTO 1 ANTI-LOCK BRAKE DISCOUNT APPLIED AUTO 1 EXPLANATION OF ADULT &/OR YOUTHFUL DRIVER RATING CLASS ~~~r~ , AUTO 1-OWNER/PRINCIPAL DRIVER AGE 20 WITHOUT DRIVER TRAINING ~ .,. MISCELLANEOUS INFORMATION ITEM 7, EACH AUTO WE INSURE WILL BE PRINCIPALLY GARAGED AT THE ADDRESS SHOWN IN ITEM 1, UNLESS ANOTHER ADDRESS IS SHOWN BELOW. ITEM 9. UNLESS A CO-OWNER OR LIENHOLDER IS LISTED BELOW, THE NAMED INSURED IS THE SOLE OWNER OF EACH AUTO WE INSURE. LIENHOLDER FOR AUTO 1 AMERICAN HONDA FINANCE PO BOX 997527 SACRAMENTO CA 95899-7527 DRIVER* 1 NAOMI WHEELER ST PA *IF A DRIVER IS NOT A RESIDENT RELATIVE AS DEFINED IN YOUR POLICY COVERAGES BENEFITS AND RIGHTS MAY BE LIMITED. REFER TO YOUR POLICY AND ITS ENDORSEMENTS FOR TERMS, DEFINITIONS, LIMITATIONS, REDUCTIONS, EXCLUSIONS AND CONDITIONS. YOUR COLLISION COVERAGE AND DEDUCTIBLE APPLY TO PRIVATE PASSENGER AUTOS YOU OR A RESIDENT RELATIVE RENT FOR 45 DAYS OR LESS. THIS I SUBJECT TO LIMITS, TERMS AND CONDITIONS IN THE POLICY. THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA AS ENACTED BY THE GENERAL ASSEMBLY ONLY RE~UIRE THAT YOU PURCHASE LIABILITY AND FIRST-PARTY MEDICAL ~ENEFIT C VERAGE5. ANY ADDITIONAL COVERAGES OR COVERAGES IN EXCESS OF THE LIMITS RE~UIRED BY LAW ARE PROVIDED ONLY AT YOUR REQUEST AS ENHANCEMENTS TO THE ASIC COVERAGES. BELOW ARE ANNUAL PREMIUMS FOR THE MINIMUM REQUIRED COVERAGES AND LIMITS FOR LIMITED TORT. PLEASE NOTE THAT THE LIMITED TORT OPTION MAY NOT BE AVAILABLE ON CERTAIN VEHICLES. ., _ BODILY INJURY $15M~PERSON $30M/ACC 148 PROPERTY DAMAGE ~5 /ACC 349 FIRST PARTY BENE ITS - MEDICAL EXPENSE $5M 81 Q03 2710768 CONTINGENT FEE AGREEMENT I, THOMAS WHEELER, Administrator of the Estate of ANNETTE M. WHEELER, do hereby retain HANDLER, HENNING & ROSENBERG, LLP, of Harrisburg, Pennsylvania, as my attorneys in this matter to represent me and to process, negotiate, arbitrate a settlement or to institute in my name, any legal proceedings or actions that, in their judgment are necessary, against Kris Campbell and Foremost Insurance or against anyone else as a result of injuries and damages I sustained in an incident that occurred on May 13, 2007, I agree not to settle, negotiate or adjust the above claim or any proceedings based thereon without the written consent of my said attorneys. Inconsideration of the services so to be rendered by Handler, Henning & Rosenberg, LLP I hereby covenant, promise and agree to pay them for their professional services rendered, THIRTY-THREE AND ONE-THIRD PERCENT (33 ~/3°I°) of whatever sum is recovered as a result of settlement without lawsuit; or FORTY PERCENT (40%) of whatever sum is recovered after lawsuit is filed or in the event of arbitration or mediation. I will reimburse Handler, Henning & Rosenberg for any necessary expenses advanced on my behaf in pursuing my claim. Examples of typical expenses include Court filing fees, investigation, auto mileage, photocopies, court reporters, medical records, expert witness fees, etc. If no money is obtained, client will not owe a legal fee or expenses. I also agree to take possession of my medics{ files at the conclusion of this case. My failure to take possession of these files within 60 days after the conclusion of the case will authorize my lawyers to destroy said files. I agree that HANDLER, HENNING & ROSENBERG, LLP may associate additional lawyers to assist with this case and I agree to the sharing of fees between lawyers. I understand the terms herein apply to other lawyers associated on this case. I understand that the association of other lawyers does not increase the amount of the attorney fees at the conclusion of the case. Counsel reserves the right to withdraw if they desire to do so,~for any reason(s) they deem proper. I acknowledge that I have read, approved and understood the above Contingent Fee Agreement and I acknowledge having received a copy of the same. The terms set forth herein are accepted. ~ N WITNESS WHEREOF, I have hereunto set my hand and seal this~day of ,2007. ` ~ v (SEAL) THOMAS WHEELER, Administrator of the Estate of ANNETTE M. WHEELER ~T~ iEX "' 1 andlar, Qnning~ ~ osanbarg,u~ ATTORNEYS AT LAW 1300 Linglestown Road, Harrisburg, PA 17110 Thomas Wheeler 5 Black Pine Drive Mechanicsburg, PA 17050 Client No: 212325 Matter: 00000 Attorney: WSH MV Pre-Bill No: 29153 Bill Date: March 30, 2009 INVOICE PAYMENT DUE UPON RECEIPT EXPENSES 07/11/2007 Vendor IOD Incorporated; General Case Expense CAS,~~ ~',; ~ ~0~7/11 /2007 ~ , ~. ,r~ ~ $205.62 '~ ~ .. 08/16/2001 Vendor PROTH OF CUMBERLAND CO; General Case Expense CASE; ~s~. ~ -08/16/2007 ~ ., ~~~' $7850 08!16!2007 Vendor SHERIFF OF CUMBERLAND C0; General Case Expense CASE 0 811 612 0 0 7 ~~: $125.00 09/05/2007 General Case Expense -REFUND SHERIFF OF CUMBERLAND COUNTY CASE 09/45/2007 ,~ ~ " '-$21::39 01/29/2008 CD formating/copying/burning .. GD ~'~ ~'~~, ' ~01/29f~0~08 ~ _ $x.00 = _ 10/08/2008 Vendor PROTH OF CUMBERLAND CO, Case Expense CASE -.;~~,E ;'1 010 812 0 0 8 ~' '$3,00' 10/29/2008 Vendor ZANARAS REPORTING & VIDEO Case Expense .CASE ':,,: i;~.;10(29I2008 $583.55, 01/20/2009 Vendor PROTH OF CUMBERLAND CO; Case Expense GASE. s,~~ 01/20/2009 ~ ~ r,, .,: ~ . ;-$3.00 ~. 03/31/2009 Document Reproduction COPY ` : 03131/Q009 - $11.80 03/31/2009 Fax Charges FAX .~t,~;'` .-03I31120Q9 '"'~.,. .~ ,: $3x:00 ;.~ 03/31/2009 Document Reproduction ISl F ~~~' ;~ .0313112~DOg ~~ $437:80,. ~• _ 03/31/2009 Postage Costs POS, ~, '~ ~° ,03/3~1/~00,9 ,,' "$59:58` 03/31/2009 Postage Costs ~POST~ ",`;;" 2,.'03I31/2009.~ .: : $51.39: ,. ~~ 03/31/2009 Long Distance Telephone Charges TELE 03/31/009 $1.03 TOTAL EXPENSES Total due this invoice 205.62 78.50 125.00 -21.39 9.00 3.00 583.55 -3.00 11.80 30.00 437.80 59.58 51.39 1.03 $1,571.88 $1,571.88 ~. 212325 Wheeler, Thomas Pre-Bill # 29153 page 2 TOTAL BALANCE DUE $1,571.88 ~JY' ~}Ir- .r~R^1,'t~T~','~ _„ ~, . ;. 1 ', ~ .~ W. Scott Henning, Esquire I. D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: Henninq&ti?hhrlaw.com Attorney for Plaintiff THOMAS V. WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. IN THE COURT OF COMMO~1 PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA . SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW AMENDED PETITION TO SETTLE WRONGFUL DEATH AND SURVIVAL ACTIONS TO THE HONORABLE JUDGES OF THE COURT: The Petition of Thomas V. Wheeler, Administrator of the Estate of Annette Marie Wheeler, deceased by and through his attorneys, Handler, Henning & Rosenberg, LLP, by W. Scott Henning, Esquire, petitions this Honorable Court to enter an order permitting settlement of this action, in support thereof avers: 1. The Petitioner, Thomas V. Wheeler, is an adult individual who resides at 405 Center Street, Enola, Cumberland County, Pennsylvania. 2. On May 13, 2007, Annette Marie Wheeler, Deceased, resided at 5 Black Pine Drive, Mechanicsburg, Pennsylvania. On the date of May 13, 2007, Petitioner Thomas V. Wheeler and Annette Marie Wheeler, Deceased, were lawfully married as husband and wife. 3. On May 13, 2007, Annette Marie Wheeler, Deceased, was riding as a passenger on a motorcycle being operated by Defendant, Kris Gamble. At or about 7:00 p.m. on May 13, 2007, the motorcycle being operated by Defendant Kris Gamble was involved in a one vehicle incident, which resulted in Annette Marie Wheeler, Deceased, sustaining fatal injuries. A copy of the Police Report is attached as Exhibit "A". 4. As a result of the collision, Annette Marie Wheeler, Deceased, was transported to the Trauma Center at Hershey Medical Center, however, on May 21, 2007, she succumbed from the injuries sustained in the motorcycle incident. Annette Marie Wheeler, Deceased, was age 41. 5. Petitioner and Decedent had two daughters, Naomi L. Wheeler and Amber E. Wheeler. 6. Petitioner, Thomas V. Wheeler, was appointed Administrator of the Estate of Annette Marie Wheeler, Deceased, on June 4, 2007, by the Register of Wills, Cumberland County. A copy of the Grant of Letters is attached hereto as Exhibit "B". 7. Decedent did not have a Last Will and Testament. 8. There are no unpaid or outstanding claims or liens against the Decedent's Estate, except as otherwise set forth herein. 9. Petitioner has initiated a lawsuit against Defendant, Kris Gamble, Enola Sportsmen's Association and American Legion Post No. 751. A settlement with Defendant Kris Gamble has been proposed in the amount of $100,000.00, which sum represents the policy limits available under Defendant Gamble's motor vehicle insurance policy issued by Foremost Insurance Company. A copy of the proposed release is attached hereto as Exhibit "C". A copy of a Tortfeasor Affidavit signed by Defendant Kris Gamble verifying that there are no excess or umbrellas policies is attached hereto as Exhibit "D". 2 10. A settlement in the sum of $100,000.00 has been proposed by Enola Sportsmen's Association, which represents the policy limit available under the Defendant Enola Sportsmen's Association's liability insurance policy. A copy of the proposed Release is attached hereto as Exhibit "E". 11. At the time of the subject motor vehicle incident, the Petitioner and Decedent maintained a motor vehicle insurance policy with Peerless Insurance Company. This motor vehicle insurance policy did not provide for Underinsured Motorist coverage. 12. At the time of the subject motor vehicle incident, the Petitioner and Decedent's daughter, Naomi L. Wheeler, maintained a motor vehicle insurance policy with Erie Insurance Group that provides for Underinsured Motorist coverage in the amount of $15,000.00. Erie Insurance Company has proposed to tender the $15,000.00 Underinsured Motorist coverage policy limit to resolve the Underinsured Motorist coverage claim that has been asserted by the Petitioner against the Erie Insurance Company. A copy of the Declaration Page from the Erie Insurance Company policy maintained by Naomi L. Wheeler is attached hereto as Exhibit "F". 13. Defendant, American Legion Post No. 751 has denied liability and after embarking upon certain depositions and other Discovery, it is the consensus of the Petitioner and Petitioner's counsel that the ability to establish a claim against Defendant, American Legion Post No. 751 on a Dram Shop theory is limited. In any event, after various discussions between Plaintiffs counsel and counsel for Defendant, American Legion Post No. 751, Defendant American Legion has made an offer of settlement in the amount of $25,000.00. 14. Petitioner is of the opinion that the aforesaid settlements in the amount of $100,000.00 (Gamble policy limit), $100,000.00 (Enola Sportsmen's Association policy 3 limit) and $15,000.00 (Naomi Wheeler UIM policy limit) are the total policy limits available to compensate for the untimely demise of Annette Marie Wheeler, Decedent. These proposed settlements, coupled with the $25,000.00 offer of settlement in the amount of $25,000.00, total the sum of $240,000.00. Petitioner is of the opinion these proposed settlements are reasonable and appropriate given all the facts involved in the proceedings. 15. Petitioner has been represented by the law offices of Handler, Henning & Rosenberg, LLP, by W. Scott Henning, Esquire. Petitioners's counsel seeks fees in the amount of $80,000.00. A copy of the Contingent Fee Agreement between the law offices of Handler, Henning & Rosenberg, LLP and the Petitioner is attached hereto as Exhibit "G". 16. Socrates, Inc., has asserted a medical lien on behalf of the Decedent's health insurance carrier in the gross amount of $13,608.29. Petitioner proposes to reduce that lien for a pro rata share of attorney fees and tender the sum of $9,072.19 to Socrates, Inc., in full satisfaction of the lien. 17. The sum of $789.93 is due and owing to West Shore EMS-BLS. Petitioner proposes to pay that sum to West Shore EMS to pay this outstanding bill. 18. Petitioner's counsel has incurred litigation expenses totaling $1,571.88 for which reimbursement is sought. A copy of the litigation costs is attached hereto as Exhibit "H". 19. Petitioner requests allocation of the net proceeds of the settlement, after payment of attorney fees and expenses, as follows: (a) for the survival action, 10% of the net settlement proceeds to the Estate of Annette Marie Wheeler; (b) for the wrongful death action, 90% of the net settlement proceeds to 4 Petitioner, Thomas V. Wheeler and Decedent's two daughters, Naomi L. Wheeler and Amber E. Wheeler, in accordance with the provisions of the Pennsylvania Intestate Statute; 20. Written approval of the aforesaid allocation obtained from the Department of Revenue is attached as Exhibit "I". (Will be supplied at the time of the Hearing). 21. There had been prior proceedings in this matter in the form of Argument Court pertaining to Preliminary Objections filed by certain of the Defendants. Judge Bayley issued an Order dated December 11, 2009, addressing the Preliminary Objections. 22. This Petition involves an amicable resolution of this Wrongful Death and Survival Action by virtue of negotiated settlements, and hence, all counsel of record have concurred and are aware of the filing of this Petition. WHEREFORE, Petitioner requests the Honorable Court to (a) approve the settlement as set forth above; (b) authorize the payment of attorney fees and litigation expenses as stated above; (c) direct distribution of the net funds as set forth above to the Intestate Heirs of the Decedent, Thomas V. Wheeler (husband); Naomi L. Wheeler, (daughter) and Amber E. Wheeler (daughter). Respectfully submitted, HANDLER, HENI~ING 8~ ROSENBERG, LLP Date S -- ~~ ~~ gy W. Scott He n , E ~ I . D. #32298 1300 Linglestown Rod Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff THOMAS V. WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, D®fendants CIVIL ACTION -LAW ORDER OF COURT AND NOW, this day of , 2009, upon consideration of the foregoing Petition, IT IS HEREBY ORDERED that: 1. The above parties may compromise the action set forth in the Petition to Approve Settlement of Wrongful Death and Survival Actions for the principal sum of $240,000.00. 2. Thomas V. Wheeler, Administrator of the Estate of Annette Marie Wheeler, Deceased, is authorized to distribute the monies in this action as follows: (a) Authorize the payment of counsel fees in the amount of $80,000.00 and costs in the amount of $1,571.88 to Handler, Henning 8~ Rosenberg, LLP from the funds due; (b) Authorize payment of Health Insurance Subrogation lien to Socrates, Inc., in the amount of ($9,072.19 less apro-rata share of attorney fees); (c) Approve Allocation of the net settlement proceeds ($149,357.89) as approved by the Department of Revenue as follows: I. $134,422.03 (90%) to the Wrongful Death Action; and ii. $14,935.78 (10%) to the Survival Action. (d) Direct distribution of the remaining net proceeds of the settlement as follows: 6 I. To Decedent's surviving spouse, Thomas V. Wheeler: $89,677.97; To the Decedent's daughter, Naomi L. Wheeler: $29,838.98; iii. To Decedent's daughter, Amber E. Wheeler: $29,838.98. BY THE COURT: J. 7 ~ ~`' ~ ;., "1F ~ I YC ~ ,~, ~~~Y 2~~9 ~1~~~ -~ ~~~ i i ~ ~ ~: ,~ ~ , t' C~ _ x ~ ~ ~`~. THOMAS V. WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, PLAINTIFF V. KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-4985 CIVIL TERM ORDER OF COURT AND NOW, this ~~ day of June, 2009, a hearing shall be held on the within amended petition to settle a wrongful death and survival action in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania on Wednesday, July 8, 2009, at 8:45 a.m. '' W. Scott Henning, Esquire For Plaintiff ~ John Evans, Esquire ~mothy J. McMahon, Esquire Joseph D. Deal, Esquire :sal ~/~o~a9 .~r~ ~fLED°r: F i ,~~ 4F P; ;~T-'{~P,±~TARY zoa~ ~~~ ~ a ~ ~ s = s ~ ~~~ '~'~:~'~w, rf, n r;,~d `d~;1 i ~~Ptt L~I~ 1 THOMAS V. WHEELER, Administrator of the Estate of ANNETTE WHEELER, Deceased, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW ORDER OF COURT AND NOW, this ~_ day of ~ , 2009, upon consideration of the foregoing Petition, IT IS HEREBY ORDERED that: 1. The above parties may compromise the action set forth in the Petition to Approve Settlement of Wrongful Death and Survival Actions for the principal sum of $240,000.00. 2. Thomas V. Wheeler, Administrator of the Estate of Annette Marie Wheeler, Deceased, is authorized to distribute the monies in this action as follows: (a) Authorize the payment of counsel fees in the amount of $80,000.00 and costs in the amount of $1,571.88 to Handler, Henning & Rosenberg, LLP from the funds due; (b) Authorize payment of Health Insurance Subrogation lien to Socrates, Inc., in the amount of $9,072.19 less ($13,608.29, apro-rata share of attorney fees); (c) Approve Allocation of the net settlement proceeds ($149,355.93) as approved by the Department of Revenue as follows: $104,549.15 (70%) to the Wrongful Death Action; and ii. $44,8076.79 (30%) to the Survival Action. 6 t ` ~ (d) Direct distribution of the remaining net proceeds of the settlement, after payment of the sum of $789.93 to West Shore EMS-BLS, as follows:: 1. To Decedent's surviving spouse, Thomas V. Wheeler: $89,283.00; ii. To the Decedent's daughter, Naomi L. Wheeler: $29,541.50; iii. To Decedent's daughter, Amber E. Wheeler: $29,641.50. ~~ 2Cti9!ti~ E~ ~~~ U~~t -. ,,., , . _ , ~~ W. Scott Henning, Esquire 1. D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: Henning@hhrlaw.com THOMAS V. WHEELER, IN THE COURT OF COMMON PLEAS Administrator of the Estate of :CUMBERLAND COUNTY, PENNSYLVANIA ANNETTE WHEELER, Deceased, Plaintiff v. NO. 07-4985 KRIS GAMBLE, AMERICAN LEGION POST 751, and ENOLA SPORTSMEN'S ASSOCIATION, Defendants CIVIL ACTION -LAW SECOND AMENDED PETITION TO SETTLE WRONGFUL DEATH AND SURVIVAL ACTIONS TO THE HONORABLE JUDGES OF THE COURT: The Petition of Thomas V. Wheeler, Administrator of the Estate of Annette Marie Wheeler, deceased by and through his attorneys, Handler, Henning & Rosenberg, LLP, by W. Scott Henning, Esquire, petitions this Honorable Court to enter an order permitting settlement of this action, in support thereof avers: The Petitioner, Thomas V. Wheeler, is an adult individual who resides at 405 Center Street, Enola, Cumberland County, Pennsylvania. 2. On May 13, 2007, Annette Marie Wheeler, Deceased, resided at 5 Black Pine Drive, Mechanicsburg, Pennsylvania. On the date of May 13, 2007, Petitioner Thomas V. Wheeler and Annette Marie Wheeler, Deceased, were lawfully married as husband and wife. 3. On May 13, 2007, Annette Marie Wheeler, Deceased, was riding as a passenger on a motorcycle being operated by Defendant, Kris Gamble. At or about 7:00 p.m. on May 13, 2007, the motorcycle being operated by Defendant Kris Gamble was involved in a one vehicle incident, which resulted in Annette Marie Wheeler, Deceased, sustaining fatal injuries. A copy of the Police Report is attached as Exhibit "A". 4. As a result of the collision, Annette Marie Wheeler, Deceased, was transported to the Trauma Center at Hershey Medical Center, however, on May 21, 2007, she succumbed from the injuries sustained in the motorcycle incident. Annette Marie Wheeler, Deceased, was age 41. 5. Petitioner and Decedent had two daughters, Naomi L. Wheeler and Amber E. Wheeler. 6. Petitioner, Thomas V. Wheeler, was appointed Administrator of the Estate of Annette Marie Wheeler, Deceased, on June 4, 2007, by the Register of Wills, Cumberland County. A copy of the Grant of Letters is attached hereto as Exhibit "B". 7. Decedent did not have a Last Will and Testament. 8. There are no unpaid or outstanding claims or liens against the Decedent's Estate, except as otherwise set forth herein. 9. Petitioner has initiated a lawsuit against Defendant, Kris Gamble, Enola Sportsmen's Association and American Legion Post No. 751. A settlement with Defendant Kris Gamble has been proposed in the amount of $100,000.00, which sum represents the policy limits available under Defendant Gamble's motor vehicle insurance policy issued by Foremost Insurance Company. A copy of the proposed release is attached hereto as Exhibit "C". A copy of a Tortfeasor Affidavit signed by Defendant Kris Gamble verifying that there are no excess or umbrellas policies is attached hereto as Exhibit "D". 2 10. A settlement in the sum of $100,000.00 has been proposed by Enola Sportsmen's Association, which represents the policy limit available under the Defendant Enola Sportsmen's Association's liability insurance policy. A copy of the proposed Release is attached hereto as Exhibit "E". 11. At the time of the subject motor vehicle incident, the Petitioner and Decedent maintained a motor vehicle insurance policy with Peerless Insurance Company. This motor vehicle insurance policy did not provide for Underinsured Motorist coverage. 12. At the time of the subject motor vehicle incident, the Petitioner and Decedent's daughter, Naomi L. Wheeler, maintained a motor vehicle insurance policy with Erie Insurance Group that provides for Underinsured Motorist coverage in the amount of $15,000.00. Erie Insurance Company has proposed to tender the $15,000.00 Underinsured Motorist coverage policy limit to resolve the Underinsured Motorist coverage claim that has been asserted by the Petitioner against the Erie Insurance Company. A copy of the Declaration Page from the Erie Insurance Company policy maintained by Naomi L. Wheeler is attached hereto as Exhibit "F" 13. Defendant, American Legion Post No. 751 has denied liability and after embarking upon certain depositions and other Discovery, it is the consensus of the Petitioner and Petitioner's counsel that the ability to establish a claim against Defendant, American Legion Post No. 751 on a Dram Shop theory is limited. In any event, after various discussions between Plaintiff's counsel and counsel for Defendant, American Legion Post No. 751, Defendant American Legion has made an offer of settlement in the amount of $25,000.00. 14. Petitioner is of the opinion that the aforesaid settlements in the amount of $100,000.00 (Gamble policy limit), $100,000.00 (Enola Sportsmen's Association policy 3 limit) and $15,000.00 (Naomi Wheeler UIM policy limit) are the total policy limits available to compensate for the untimely demise of Annette Marie Wheeler, Decedent. These proposed settlements, coupled with the $25,000.00 offer of settlement in the amount of $25,000.00, total the sum of $240,000.00. Petitioner is of the opinion these proposed settlements are reasonable and appropriate given all the facts involved in the proceedings. 15. Petitioner has been represented by the law offices of Handler, Henning & Rosenberg, LLP, by W. Scott Henning, Esquire. Petitioners's counsel seeks fees in the amount of $80,000.00. A copy of the Contingent Fee Agreement between the law offices of Handler, Henning & Rosenberg, LLP and the Petitioner is attached hereto as Exhibit "G". 16. Socrates, Inc., has asserted a medical lien on behalf of the Decedent's health insurance carrier in the gross amount of $13,608.29. Petitioner proposes to reduce that lien for a pro rata share of attorney fees and tender the sum of $9,072.19 to Socrates, Inc., in full satisfaction of the lien. 17. The sum of $789.93 is due and owing to West Shore EMS-BLS. Petitioner proposes to pay that sum to West Shore EMS to pay this outstanding bill. 18. Petitioner's counsel has incurred litigation expenses totaling $1,571.88 for which reimbursement is sought. A copy of the litigation costs is attached hereto as Exhibit "H". 19. Petitioner requests allocation of the net proceeds of the settlement, after payment of attorney fees and expenses, as follows: (a) for the survival action, 30% of the net settlement proceeds to the Estate of Annette Marie Wheeler; (b) for the wrongful death action, 70% of the net settlement proceeds to 4 Petitioner, Thomas V. Wheeler and Decedent's two daughters, Naomi L. Wheeler and Amber E. Wheeler, in accordance with the provisions of the Pennsylvania Intestate Statute; 20. Written approval of the aforesaid allocation obtained from the Department of Revenue is attached as Exhibit "I". (Will be supplied at the time of the Hearing). 21. There had been prior proceedings in this matter in the form of Argument Court pertaining to Preliminary Objections filed by certain of the Defendants. Judge Bayley issued an Order dated December 11, 2009, addressing the Preliminary Objections. 22. This Petition involves an amicable resolution of this Wrongful Death and Survival Action by virtue of negotiated settlements, and hence, all counsel of record have concurred and are aware of the filing of this Petition. WHEREFORE, Petitioner requests the Honorable Court to (a) approve the settlement as set forth above; (b) authorize the payment of attorney fees and litigation expenses as stated above; (c) direct distribution of the net funds as set forth above to the Intestate Heirs of the Decedent, Thomas V. Wheeler (husband}; Naomi L. Wheeler, (daughter) and Amber E. Wheeler (daughter). Respectfully submitted, HANDLER, HENNiNG 8~ ROSENBERG, LLP Date: '- r/~ '"o2C~ By W. Sco ennin -quire I.D. #32298 1300 Linglestown Road / Harrisburg, PA 17110 / (717) 238-2000 Attorneys for Plaintiff 5 .Print CR-S W0057379 I CORfliINOtii(lAI~ALTH OF PEt~WSYLNAAIIA J ~OLDC~ C6tA5Di 9tD:PORTINQs FOPiRfl Case Closed Reportable Crash Page /~' ~~~ 1 Q Yes O No (O Yes Q No Page 1 of y 'IININIWIINIIIYINI ..e~.., , Incident Plumber Police Agency Patrol Zone HAM20070500389 21103 NE e Agency Pdame Precinct Investigation Date (MM-DD-YYYY) ~' Hampden Township ~r -~ OS ~ 13 = 2007 g ~ ~ Dispatch 7ittte (mil) Arrival Time (mil) Investigator Badge Plumber V 1902 ~ 1910 CPL. K. SHAUGHNESSY 1916 ~ Reviewer Badge Number Approval Date (MM-DD-YYYY) ~_~~ 00 - County County Name Municipality AAunicipality Name ~ Qav of NNee& s 21 Cumberland 103 ampden Township O sun O Thu s ® Crash Date {MM-DD-YYYY) Crash Time (mill No of Units People Injured ICilled° ¢If > 00 O Mon O Fri w complete O Tue O Sat OS 13 m 2007 1902 ~ ~ ~ ~ Form F Owed O Unk If Yes, Complete School Bus School Zone Notify PENNDOT Worlczone ~,,,,,, ,tr ~;,,,, ~4t O Yes O No ooi~*oa Q Yes O No rad~~ O Yes O No nn~s...s..~...e O Yes O No Intersection Tune O 4 Way Intersection O 'Y' Intersection O Multi-Lei O ~ Ramp Intersection O Midbkxk rr O Railroad Crossing L°[-~~~a4on ~ j O •T• Intersection O Round A bout O On Ramp O Crossover O Other e $02 Ovevim Route Number Segment (Optional) Travet lanes Speed Limit O North House Number (if applicable) V ~ 02 35 ~ O south 1716 SVeet Name SVeet Ending ~ d O East For Mid-block washes only. use ostal Ho N be d k ORRS BRIDGE ~ p O West O Unknown use um r an e sure ma P Pnnapal RO~y street Name is b filled in if using this option Interstate Turnpike Tumpike State ~ISOJt1S O (Not Tumpike) O (East/4Vest) O Spur O Highway County O Road Local Road O or Street Private Other/ O Road O Unknown ~ N Route Number Segment (Optionaq Travel Lanes Speed Limit O North ~ u L~ ~~ ~ ~ c ~ O South g ° Street Name SVeet Ending ~ O East ~ s; ~ d O West °..° O O Unknown c `` 5igalna O Interstate O Turnpike O Tumpike O State O County O Local Road O Private O Other( h (Not Tumpike) (East/West) Spur Highway Road or Street Road Unknown intersecting Rt Num Or ANiie Post 'a ~ ~ Or Segment Madcer ^~ ! p ONorth Ot r . „ O South g b Please ~ Or Intersecting Street Name St Ending a O East ~ ~ o ' Enter Information ~ ~ ~ O West Or Miles ~ s ® O for BOTH ' ~ °v 'o 'g o Landmarks if Using This 0 tron P~ ~ Irrtersecting R4 Num Or Piiile Post ~~ ~ Or Segment Marker ^ 0 O North Distance From Crash S n d t L k 1 ~ . O South ce e o an mar ~ ~ ~ Or Inrtersecting Street Name N St Ending ~ O East {for Crash between ® ~ ~ ~ ~ O West Landmark 1 and Landmark Z) m ~ Degrees Latitude: 40 ~ Minutes Seconds Degrees 16 53 000 longitude: - 76 ~°~ • ~ ~ Minutes Seconds 58 06 000 O °~ ° 7rafific Control Dev ice O Yield Sign Police Officer or O TtD Functiortina ® y O Not Applicable O Traffic Signal Active RR Crossing 0 C t l Hagman O Other Type TCD Emer O No Controls Q Device Functioning ~ preemetrve P Improperly O Flashing Traffic Signal on s ro ~ Sto Sin Passive RR P g O Crossing Controls O Unknown Signal Device Not Device Functionin ~ Functioning ~ Propedy g O Unknown s Late Closed !f 'Not ~ { .~oplimbie', skip rest of the Lane Closure sedionJ r?.ne lTnglm O North O East O North and South O All ® O Not Applicable O Partially O Fully Q Unknown ~L1;4$9II O South O West O East and West (N,S,E,W) s ~ g Tra+~c Yes O No O ~~ ~ Aetoured Unknown O dosed O < 30 Min. O 30-60 Min. O 1-3 his O 3-b his O 6-9 hrs O > 9 hours O Unknown wriw ~ moo t„'~' PENNDOT COF>Y _--_--'--_ _ .- PLAINTI'FF'S EXH BIT http:l/www.dot6.state.pa.us/icons/Printlmages/XmlFiles/20070533461 GUTSHALL 19 rrlnt C;K~ W UUJ /J /y it r r. ~~Rhl®~1~ft9~IL4~0 ®(F I~R9R1S~t7~lf~aR99~ P®@.9~~ ~~9 R~~®~dFBNG ~®R~ Page: AA 500 2 P°''~ "~ °nh 2 rage z of y WRIIIIIIN1161 Gash Number W00573 79 c Motor Vehicle in Type O Transport O Hit & Run Vehide O Illegally Parked O Legally Parked ONon -Motorized Commercial Velficfe d Unit Pedestrian on Skates, Disabled From - O Pedestrian O ~ train O Phantom Vehicle O O Yes O No s 9 in Wheelchair, etc Previous Crash (If Yes, Complete form C) (If "Pedestrian' or 'Pedestrian on Skates, in Wheelchair, etc', Com lete Farm M, Section 28) Unit No Frst Name Wll Date of Birth (MM-DD-YYYY) O1 KRIS D^ 07 ~ 1970 Delete? ~~ Name Tele hone Plumber p GAMBLE 7177329097 Address / Ci /State Zi a Q 105 HOLLOWVIEW DRIVE ENOLA PA 17025 Driver License Number State Class c 22143180 PA r,..~ J 6 a AlcohoUDrugs Suspected Driver or Pedestrian Physiwl Condition O No O Illegal Drugs O Medication O ~~IntiY O lU~al Drug O Fatigue O Medication ~ O Alcohol O Alcohol and Drugs O Unknown O Had Been O Sick Aslee O P O Unknown ` Drinkin ~ Alcohol Test Tvpe ® O Test Not Given O Breath O Other primary Vehide Code Violation Charged? Unknown if O Blood O Urine O DUI O Yes O No s Test Given y Alcohol Test Results Test Refused O Resuh~s n O Driver Presence 1=Driver Operated 3=Driver Fled Scene Q' ~ O Test Given, Contamin ted Re ult a Vehicle 4=Hit and Run a s s 2=No Driver 9=Unknown Ovvner/Drrver 00=Not Applicable 02=Private Vehicle Not 04=State Police Vehide 07=Municipal Police Veh 09=federal Gov Veh 01=Private Vehicle OvmecU OwnedlLeased by Driver OS=PENNDOT Vehicle 08=Other Municipal 98=Other O1 Leased by Driver 03=Rented Vehide 06=Other State Gov Veh Government Vehicle 99=Unknown Same as ~~ ~~ ~~ ~~ Last ~~ or Business Name (If Pedestrian, skip this Section) Driver O KRIS GAMBLE Address ! Crty (State !Zip Vehicle RAake °Make Code 105 HOLLOWVIEW DRIVE ENOLA PA 170257025 Harley-Davids 72 YIN Pliodel Year Vehicle Wlodel (~ overlay) 1HD1PG8187Y951353 2007 FLHRSE3 SCREA-~ License Plate Reg. State Est. Speed Vehide Towed Towed ey RVKO1 PA 045 O Yes O No ROADSIDE RESCUE Insurance Insurance Company Policy No o _ p Yes O No p k ~ FOREMOST INS CO 2760071037810 ~. w e c ~ Trailin4 Tv~ 1=Towing Pass. Veh 4=Mobile/Modular Home 7=Semi-Trailer Tag No Tag Year Tag St Unrt No., of ~ Unit ~ 2=Towing Truck S=Camper B=Other 0 li T e ~~ ~~ a ng rai 3=Towing Utility Trailer 6=full Trailer 9=Unknown U it v n s: Direc4ion of ~ *Vehide Poshion O1 *NYovement rayl'~- 17 "See O l Special Usage ver ay Vehide Color Vehide Type 05=Large Truck 20=Unicycle, Bicycle, 00 12=Commercial 06=Yellow 02 07=Silver 01=Automobile 06=5UV Tricycle 02 02=Motorcycle 07=Van 21=Other Pedaltyde Passenger 00=Not Applicable Carrier 08=Gold 01=Blue 09=Brown 03=Bus 10=Snowmobile 22=Horse & Buggy 04=Small Truck 11=farm Equip 23=Horse & Rider 01=Fire Veh 13=Taxi 02=Ambulance 21=Tractor Trailer 02=Red 10=Orange 03=White 11=Purple (If "02", Comp/ete farm 12=Construction Equip 24=Train M, Secion 26) 13=ATV 25=Trolley 03=Police 22=Twin Trailer OB=Other Emergency 23=Triple Trailer 04=Green 12=Other 05=Black 99=Unknown 18=Other T e S Veh 98=Other (If "20° or 21 ", Complete 19=Unk T ye S e Veh 99=U kn Vehicle 31=Modified Veh 11=Pupil Transport 99=Unknown . n own Form M, Section 27) YP P Initial Impact Point Damage Indicator Gradient 3=Downhill Aoad Alignment 12 00=Non-Collision 14=Undercarriage 01-12=Clock Points 15=Towed Unit O=None 2=Functional ~ 1=Minor 3=Disabling 4=Bottom of Hill ~ 1=Level 5 To of Hill 1=Straight ~ 2 C d 13=Top 99=Unknown 9=Unknown - 2=Uphill g=Unknown = urve 9=Unknown FgFIM J AA-SW (12/D2) PENNDOT COPY http://www.dot6.state.pa.us/icons/PrintImages/XrnlFiles/20070533461 GUTSHALL19502... 5/29/2007 Print CKS 'WUU57379 CO~tiAAOWlNlE~,LTH OF PENi~SVLVAY~IA POLICE CR~,SH REPOdtT~RlG FOR4Ui AA 500 3 '°"Ce "~ °n~ Page 3 of 9 a~iiiiiii~i Crash Number Page W0057379 A 1=Driver•V ~ ~ 00=Not A PassengerlOccupant 2=Passenger 01=Driver -All Vehicles 7=Pedestrian 02=Front Seat Middle Position 8=0ther 03=Front Seat Right Side 9=Unknown 04=Second Row -Lett Side Or Motorcycle Passenger 05=Second Row -Middle Position ~: 06=Second Row -Right Side B F =Female 07=Third Row Or Greater - M =Male Left Side U =Unknown ~=Third Row Or Greater - Middle Position 09=Third Row Or Greater - Right Side In~rry Severitv.• 10=Sleeper Section of Trudccab O=Not Injured 11=1n Other Enclosed 1=Kilted Passenger Or Caryo Area 2=Major Injury 12=in Open Area 3=Moderate t6 Of Pickup, Etc.) Injury 13=Trailing Unit 4=Minor Injury 14=Riding On Vehicle Exterior 8=Injury, Unk 15=8us Passenger Seventy 98=Other 9=Unknown'rf 99=Unknown Injury E 02=Lap Belt Used 03=Lap And Shoulder Belt Used 04=Child Safety Seat Used 05=Motorcycle Helmet Used D6=Bicycle Helmet Used 10=Safety Belt Used Improperly 11=Child Safety Seat Used Improperly 12=Helmet Used Improperly 90=Restraint Used, Type Unknown 99=Unknown Sa/e_ty EoujRment Two: F 00=None Used /Not Applicable 01=front Air Bag Deployed (For This Seat) 02=Side Air Bag Deployed (For This Seat) 03=Other Type Air Bag Deployed 04.Multiple Air Bags Deployed 05=Motorcycle Eye Protection 06=Bicyclist Wearing Elf~ow/Knee/Pads 10=Air Bag Not Depoyed, Switch On 11=Air Bag Not Deployed, Switch Off 12=Air Bag Not Deployed, Unk Switch Setting 13=Air Bag Removed (Prior To Crash) 19=Unknown If Air Bag Deployed 99=Unknown w«.,~,,. ~,] O=Not Applicable 1=Not Elected 2=Totally Ejected 3=Partially Ejected 9=Unknown H Faection Path: O=Not Ejected /Not Applicable 1=Through Side Door Opening 2=Through Side Window 3=Through Windshield 4=Through Bade Door S=Through Back Door Tailgate Opening 6=Through Roof Opening (Sunroof/ Cornertible lop Down) 7=Through Roof Opening (Convertible 9=Unknown ` Extrication: O=Not Applicable 1=Not Extricated 2=Extricated By Mechanical Means 3=Freed By Non -Mechanical Means 8=Other 4=Unknown Elves Agency: HAMPDEN TWP AMB 71/E~ PAedical Fadlity: HERSHEY MEDICAL CENTER Unit No Person No Delete? Date of Birth (MM-DD-YYYY) A B C D E F G H I 01 O1 O 07 - 04 - 1970 1~ M^ 3~ O1 00 99 0~ 0~ 0^ Name /Address /Phone EWIS Transport ^ ~~ or GAMBLE, KRIS D 105 HOLLOWVIEW DRIVE ENOLA PA 17025 71773 O Yes O No Unit No Person No Deiete~ Date of Birth (MM-DD-YYYY) A B C D E F G H I 01 02 O OS - 22 - 1966 2~ F~ 1~ ~ 00 00 0~ ~ 0~ Name /Address /Phone same as EMS Transport ^ operator ANNETTE M WHEELER 8 BLACK PINE DRIVE MECHANICSBURG PA 17 O Yes O No Unit No Person No Date of Birth (MM-DD-YYYY) A B C D E F G H I DeOe' ~-~-~^~^~~~^^~ Name !Address /Phone ^ Same as EAfls Transport Operator O Yes O No Unit No Person No coca ~~~~ Date of Birth (MM-DD-YYYY) A B C D E F G H T Q c~-o-oooooooao^ Name /Address /Phone ^ Same as EMS Transport Operator O Yes O No Unk No Person No Rate of Birt ao Delete? ~ o- Name /Address !Phone ^ Same as Operator Unit No Person No Date of Bin ~~ Delete? O Name /Address /Phone ^ same as Operator ^^~ EPflS Transport I O Yes O No ~', ^C~0 ~~ EPAS Transport O Yes O No ~~A ~ "~'~"' °~`r PENNDOT COPY ~~^^~ oc~ooa http://www.dot6.state.pa.us/iconslPrintImages/XmlFiles/20070533461 GUTSHA.LL 19502... 5/29/2007 Print CRS W0057379 _._.{ P®~ ~®~SF9 ~ P®6{YIN(Ca iFO~tBNI~IIA Page ~I~lal~lalll~I~~ ~J00 4 Pdice Use Only ~ ~ u r ,° W0057379 Page 4 of y Crash Number Crash DescriAtion n Rlumination ~~ V n =weather Conditions m„ e - m _ ~ E Road Surface Conditions O=Non•Collision 2=kfead On 4=Angle C>=.Sideswipe B=Hit Pedestrian 1=Rear End 3=Raar to Rear 5=Sideswippee, (Oppostle Direction) (Badung) (Same Dtrec6on) 7=Hk Fixed Object t1~NterNnkctown 1=0n Travel Lanes 3=Median 5~utside Trafflcway 7=Gore (Ramp lntersecflori) 2=Shoulder 4=Roadside 6=1n Parking Lane 9=Unkno~m 1=Daylight 3=Dark -Street S=Dawn B=Other ^ 1~ 2=Dark - No .lights t>=Dark -Unknown Street Lights 4-0usk Roadway Lighting ___ ]~ 1=No Adverse Cond'dcons Meet (Hall) S=Fog ___ 7=Sleet & Fog 9=Unknovm 2=Rain - 4=Snow 6=Rain 8 Fog B=Other __ _ 4 O=Dry 2=Sand, Mud, Dirt, q~i~ -- 6=Ice Patches 6=Other 1=Wet 3=Snow Covered 5=1ce 7=W t~r -Standing or ovtng Unit No 1 22 R~ O O1 2 50 ~ O Please Put 3 ~ ~ O Events in Sequential ~ Order 4 ~ ^ O ~~ o 16 ~ E Harm Event UR PliostT Utility Pole Aiumber c 1 ~ ~ O v Unit No ~ ~2 ~ ~ O c Please Put 3 Eventr in O Sequential Omer 4 ~ ^ O First Unit Nto Harm Event IWost Unk No Hann Event went in O1 22 vet O1 50 ~ rash ~ ~ t e Crash Ua rert repeat tNs'aswmwtion m rraltip{e cages Environmental /Roadway ' 00 2 ~ 3 Potential Factors {ERtJ 00=None 11=Slippery Road Conditions (kel5now) 01=Windy Conditions 12=Substance On Roadway 02=Sudden Weather Conditions 13=Potholes 03--Other Weather Conditions 14=Broken Or Cracked Pavement 04--Deer In Roadway 15=TCD Obstructed 05~bstade On Roadway 16=Soft Shoulder Or Shoulder Drop Off 06=Other Animal kr Roadway 28=Other Roadway Factor 07=Glare 29=Other Environmental Factor ~ 08=Work Zone Related 99=Unknown 0 ~ Possible Vehide Failures (!1) 12=Wipers E ~,~e 06=Exhaust 13=Driver SeatincyControl o` 14=B Doors, Hood, Etc 01=Tires 07=Headlights 15=Trai er Hitch 02=Brake System 08=Signal lights ~ 03=Steering System 09=Other Lights 16=Wheels ~ 04=Suspension 10=Horn 17=Airbags .c' 05=Power Train 11=Mirrors 18=Trailer Ovedoaded 19=Urtsecure/5hifted c Unit ~ ~ ~ Trailer Load g ~ O1 1 00 2 20=Improper Towing 21=Obstructed Windshield No ~ 1 ~ 2 ~ 99=Unknown Indicated Prime factor Do nol repeal this inrorrnation on sswltiple P~ E/R V D P O O O O Unit AM Factor Code O1 92 ff E/R is the Prime Factor Type, leave Unit No blank Harmful Events (Hann Event) 01=Hit Unit 1 02=Hit Unft 2 03=Hit Unit 3 04=Hit Unit 4 05=Hft Unit 5 06=Hit Other Traffk Unit 07=Hit Deer 08=Hit Other Animal 09=Collision Wiih Other Non Faced Object 11=5trtx:k By Umt 1 12=Stnx:k 8y Unit 2 13=5tnrck By Unit 3 14=Struck By Unit 4 15=Struck By Unit 5 16=StnX1k By Qther Traffic Unit 21=Hi1 Tree Or Shrubbery 22=Hit Embankment 23=Hit U61ity Pde 24=HR Traffic Sign 25=Hit Guard Rail 26=Hit Guard Rail End 27=Hit Curb 28=Hit Concrete Or Longitudinal Barrier 29=kilt Ditch 00=No Contn'buting Action 01=Driver Was Distracted 02=Driving Usmg Hand Held Phone 03=Driving Using Hands Free Phone 04=Making IBegal U•Turn 05=lmproperKareless Taming 06=Tumrng from Wrong Lane 07=Proceeding W/0 Clearance After Stop 11= 12= 30=Hit Fence Or Wall 31=Hit Building 32=Hit Culvert 33=Hit Bridge Pier Or Abutment 34=Hit Parapet End 35=HR Bri Rail 36=Hit Bou der Or Obstacle On Roadway 37=Hk Impact Attenuator 38=Hit Fre Hydrant 39=Hit Rcadway Equipment 40=Hit Mail Box 41=Hit Traffic Island 42=Hit Snow Bank 43=Hit Temporary Construction Barrier 48=Hit Other Fixed Ob' 49=HR Unknown Fixed Object SO--OverturnlRdl Over 51=Struck By Thrown Or Falling ObjeR 52=Pot Holes Or Other Pavement irregularities 53=Jacknde 54=Fire 1n Vehicle 58=Other Non-Collbion 99=Unknown Harmful Event 17=Careless Or Itlegal Backing On Roadway 18=Driving On The Wrong Side OF Road 19=Making Improper Entrarxe To Highway 20=Making kitproper Exrt From Highway Z1=Careless ParkingNnparking 22=OverNnder Compensation At Curve 23=Speeding Z4=Driving 70o Fast For Conditions 25=Failure To Maintain Proper Speed 26~river Fleeing Pdice (Poi Chase) 27=Driver Inexperienced 14=Careless Passing Or lane 28=Failure To Use Specialized Equip Change 92=Affected By Physical Conc~tion t S=Passing In No Passing Zone 98=Other Improper Drnnng Actions 16=Driving The Wrong Way On 99=Unknown 1•Way Street ~a't 41 1 22 2 92 3 ~ 4 ~ 'i PJort ~ 1 ~ 2 ~ 3 ~ @ Pedestrian Action fP) 00=None 01=Entering Or Crossing At Specfied Location 02=Walking, Running, logging, Or Plarng 03=Working 04=Pushing Vehide 05=Approaching Or Leaving Vehide 06=Working On Vehicle 07=Standing 98=Other 99=Unknown Unit No O1 00 lhut No wRU r an-soo ttamz> PEWPIDOT COPY http://vwvw.dot6.state.pa.us/icons/PrintImageslXmlFilesl20070533461 GUTSHALL 19502 5/29/2007 Print C:K~ WUU5737y COMMOh1UNEALTH OF PENNSYLVANIA A ~ POLICE CRASFI REPORTING FORM page 1'1/1 rJ00 5 Police Use Only Page 5 of y Illlllllllllpll m.~_„ ~ W0057379 ..........,._.._..........._;......._......_ .........................~..........~..........~................ ... ... ... ... ... ... ... ... ... ... ... ... _. ... A a ` ` ~ _ o i ..........1.~........i....-..-.1.-......~1..-~.....i-....-...1-...-.--I..-._...!-...~.~. 1. -.. _ ~.. ... ~ _. ... ~ _.~~ _ .. .~ ~ ... ~... ... _ ... ... ... ... ... .. ... J. . .... F ... ...:.... ....~.... ....:..........i.... , ~......M~.~ .- ....:.... .. S ..:.«. .... Witness Name Address Phone ~ ~ PATTY KOLTRIDER 424 D DUKE STREET ENOLA PA 17025 7177283030 2 1702517025 Narrative and additional witnesses: Acddent Investigation Notification Issued? O Property Damage O On Sunday 05-13-07 at 1902hrs was dispatched to motor vehicle accident in the 1700 block of Orrs Bridge Road involving a motorcycle. Dispatch advised they were receiving report of one person laying on the highway. Upon arrival observed a red and black Harley davidson motorcycle leaning on left sideyingffacing west on the shoulder and partially on the highway in the south bound lane. There was a female laying on the highway behind the motorcycle who was being treated by EMS personnel. She appeared to have suffered a severe injury to her head. Standing beside the motorcycle was a male who had "road rash" type abrasions to his hands, elbows and forehead. He identified himself as the operator and that no other vehicles were involved. He advised that the female was his passenger but he didn't know her name. He stated that he was giving her a ~ ride and had come from Enola. He stated he lost it in the stones on the side of the road and ~ dumped it. He indicated to me that he ha d been traveling north bound. I detected a strong odor 4 of alcoholic beverage emminating from his breath and request ed he get his license, registration h N and insurance cards out while I further secured the scene. I had the road closed off and did a e quick canvas for witnesses. Officer Higgins arrived on scene and f had him get witness information. {reviewed the physical evidence that indicated motorcycle ha d been traveling south bound and failed to negotiate left curve, traveling up hill and off highway and onto embankment where it overturn, ejecting passengers and rolled ov er to final point of rest.The passenger was transported and flown via Life Lion helicopter to Hershey Medical Center. I returned to operator#1 and again asked him what had happened. He again indicated to me that he was coming from Enola on Pine Hill Road giving this girl a ride.l asked from her house or from a business and he stated the Enola Sportsmans Club. He indicated that he was traveling north bound, down hill and lost it in the stones on the side of the road. I tried to clarify his statement by repeating his version and pointing the direction and he indicated he remembered seeing a car coming in southbound lane and he got into some stones, indicating some on the northbound shoulder, and lost it.He indicated that he was just scratched up and a little shook FORK I M-500 (1/02) PENNDOT COPY http://www.dot6.state.pa.us/icons/PrintImages/XmlFilesl20070533461 GUTSHALL 19502... 5/29/2007 Ynnt CKS WUU5737y J ~~° ~ ~$~~~°~ iINNINIifNl~liulfi fP~~~ ~@$ (!$U81~1~ tF~~619 Page O Flew W0057379 AA 500 N Pdice use ony ~ O Change/ Continuation z Yage 6 of y ~N ~ Naerative and additional vuitnesses: up but not injured. I had EMS personnel come over to check him out. While speaking with him I again detected a strong odor of alcohol on his breath and observed his eyes to be blood shot and glassy and very diafated. His speech was slightly slurred and his responses were slovwand deliberate. He was wobbly and swayed as he stood and kep t using vehicles to lean on. EMS personnel wrapped up his brush bums and he wanted to sign off on being transported for treatment.He knew the day and date but didn't know the passengers name or the direction he had been traveling.0 Aerator #1 then breifly fainted and it was decided by EMS personnel to transport him to Hershey Medical Center for treatment. I spoke with Officer Higgins who advised that witness Koltrider stated she was north bound and observed motorcycle, traveling south bound, round the curve too wide and went off side of highway and onto embankment and then lost control and crashed. I had Officer Higgins take photographs of the scene. I left the scene and reponded over to Hershey Medical Center E.R. arriving at approximately 2030hrs. 1 advised ER personnel that I suspected that Operator#1 was DUI and requested his blood be screen for BAC a nd drugs. The motorcycle was towed to the Police Dept garage by Roadside Rescue where a closer inspection of damage and photos could be taken. Measurements from scene: (MC Final Rest marked org paint left side op foot rest) 1)From PPL Pole #21790/S34629 south to final rest of motor cycfe....24' 2)From MC FinaE Rest to victim FR (head) 4' north, 5'east/ 7' west of center line 3)Striationslslide marks; North from MC FR to two major gouges on edge of south bound paved shoulder...24' 4)Point where MC left > south bound highway to two major gouges on south bound shoulder...76' S}DirtGouge in embankment to two gouges on endg a of paved shoulder...12' 6)southbound lane..12' ® z r s m a a a s ~ ' tt ...nW .....wu.. a~i PENNDDT CDPY http://www.dot6.state.pa.us/iconslPrintImageslXmlFiles/20070533461 GUTSHALL 19502... 5/29/2007 rent C:KJ W UU5 /:i !y (~~luE ~~ L83~F~40~ G'®~ ~81,~ p~ O New ~II~~~~~~II~~IIIt~~ W0057379 AA 540 F r°b0e ux k>,dy ~ ~ change( ContinuaYlon Page 7 of 9 Crash Numb$r Road Surface Tvpe Q Brick or Block O Dirt SpeBal Jurisdiction 0 Military O Other Federal Sties O Corrcrete O Slag, Gravel or 0 Other O No Special Jurisdiction O Indian Reservation ~ Other O Blacktop Stogy 0 Unknown O National Park CollegeNniversity Unknown O Campus O Please complete Unit Information for easdr unk involved in a fa4al wash. Do no t repeat the information in the fields above on multiple pages. Unit Rto Prindple Impact Point O O ] ONon-Collision Oli 12 0 0 O 10 OZ O R ma ResVidiorrs O Complied With Not a Pennsylvania 0 Driver O Top 0 09 03 O Co ia No Restrictioru/ Restrictions Not O Complied With Unknown O Compliance O Undercarriage 0 04 O Not Applicable l- O U~p ~ e c O Towed Unit 0 0 07 0 6 05 vn n kno v O O ~ o, orsernrnt Errd Required - O C lied Wrth Not a Pennsyivania O Driver 0 Unknown 0 ~ ~ omp Required -Non O Unknown O Avoidance A9aneuver e `~ O None Required Compliance Required - O Compliance No Avoidance 0 Maneuver O Braking -Other O Other Avoidance Evidence M Compliance Unknow n -Skid ki B aneuver St in Evid nce Driver Licence O Not Required for O Unk if CDL or ng ra O Marks Evident eer g • e O or Driver Stated O lncondusive Compliarree Vehide Class O No Valid License CDL Required O Not a Pennsylvania O MarksgDriverSkid O Steering and Braking O Unknown O Not Licensed for lass Valid License for Driver Stated Evidence or Stated O O Unknown Class Under Aide indicator U id d N Drug Test Ttlpe O Blood Other O ' No Underride or O Override err n e, o Override, Other Com artment O Irrtrtuion O Vehicle O None O Urine if Test Unknown O Given Underride, Underride, Unknown'rf Drug Test Results - (Ilp to four Results) ~ ~ O Compartment Intrusion O Compartment O Underride or Intrusion Unknown Override Te s Given N 0 t i 5 A h s nes = o am = mp e 1 ° No Dnsg Reported 5 =PCP 2 =Marijuana e =Other 3 = Cowsrce 9 =Unknown Test ~^ EmeroencY Use Li tits Flashi Both Lights and 0 9 n9 O Siren Not in Emergency 4 =Opiates Results ~ Use O Siren Sounding O Unknown Unit Poo Prindple Impact Point O Non{ollision 0 12 O 0 Ol ll 0 O c8otrs ~ O Pennsylvania O O Top 1 02 rar~ Comp tact Wrth Driver O 09 03 O ~ ~ ionsd O i bl Restrictioru Not O Complied With Unknown O Compliance O Undercarri e ~ 08 O 04 0 e Not l a O Una l~ e O Towed Unit 07 05 e 0 6 0 O Driver E-rdorserrrerrt O Regwred - lied With Com O Not a Pennsylvania Driver O Unknown O o p ram p e ~ O Required -Non ~ Unknown Avoidance A9aneuver ,,, ~ a O None Required Compliance Required - O Compliance too Avoidance O Maneuver O Braking -Other O Other Avoidance [ompliance Unknown Evidence Maneuver ~ Brakin -Skid ri -Evidence St Driver license Not Required for O Unk if CDL or O g O Marks Evident ee ng Inconclusive 0 or Driver Stated O om rance Vefiide Class No Valid license O CDL Required Not a Pennsylvania O Braking - No Skid Driver O Marks Steering and Braking 0 Unknown 0 for Class Driver , Stated Evidence or Stated O Not Licensed Valid License for O Class 0 Unknown di ctor Under Ride In Drug TestTl[Fe O Blood Other O No Underride or O Underride, No Override, Other O Compartment 0 Vehicle None O 0 Urine Unknown if Test O Given Override intrusion ' Underride, rf Underride, Unknown Dora 7esi Rewlfs - (Up eo four Resides) ^ ^ O Compartment Intrusion O Compartment O Underride or InVusion Unknown Override 0 = No Test Given 5 =Amphetamines 1 = No Drug Reported 6 =PCP 2 =Marijuana 8 =Other 3 =Cocaine 9 =Unknown Test IV) ^ ^ Both Lighu and Emergency Use ~ Lights Flashing O Siren Not in Emergency 4 =Opiates Results 0 Use O Siren Sounding O Unknown U Forte a t~ PEh[A3II0T COPY http://www.dot6.state.pa.us/icons/Printlmages/XmlFiles/20070533461 GUTSHALL 19502... 5/29/2007 Print CRS W0057379 zs z; z z Page 8 of 9 ~~8~ Ufl ~ G ~~~ 6~e Page p New ~I ~I~~I~I~{~~~~I~~ Crash Numtsxr ~' 500 ~ ~ ~ ~ p Change! W0057379 Continuation Unit No For Answers to the bebw (except for Engine Size and Helmet Type) use the following codes: Y =Yes N = No U =Unknown O1 Engine Size 1200 CC Driver Protection 7 yelmet Tvoe Passenger Protection t Helmet Tye Moto de Has? The Driver Has? ^ Eye Protection 0 = No Helmet ~ 1 =Full Helmet 0 = No Helmet ~ Eye Protection ~ 1 =Full Helmet 1' Passenger ~ MC Education 2 = 3!4 Style 3 =Half Helmet 2 = 314 Style 3 =Half Helmet i `o Q long Sleeves Style ~ Long Sleeves Style a o ~ Saddle ~ Bag and/ 9 =Unknown 9 =Unknown or Trunk Y^ Long Pants N^ Helmet Stay On? ^ Long Pants N^ Helmet Stay Onl Trai{er Helmet has Q Over Ankle Boots ~ DOT or Snell Helmet has ~ Over Ankle Boots ~ DOT or Snell Designation Designation w Unit No ^ Passenger? Helmet? UnFt No Use s Y _- Y~ ^ Passenger? ^ Helmet? ~ ~ N = No ~ N = No a U =Unknown ^ lights? ^ Reflectors? U =Unknown ^ Ugahdul ^ Refl cto ? e rs Un Pedestrian Loation ~ Uni Pedestrian taation ~ ~ Ot =Marked Crosswalks at Intersection 01 =Marked Crosswalks at Intersection 02 = At Intersection - No Crosswalks 02 = At Intersection - Na Crosswalks ~destrian Signals 03 =Non-lntersection Crosswalks Pedestrian Signah 03 = Non-Intersection Crosswalks Q Yes 04 = Dm~eway Access O Yes 04 = Drrreway Access M O No OS = Irt Roadway 06 = Not im Roadway Q No OS = In Roadway 06 = Not in Roadway o ~ Q Not at Irrtersectjan U7 =Median Q Not at Intersection 07 = Median $ 08 = Island 08 = Island d Aedestrian Qofhina Og = Sf~Mer ~edestdan Uoffiing Og =Shoulder Q lJght 10 = Sidewalk O Ught 10 = Sidewalk O Dark 11 = < 10 Feet Off Road 12 = > 10 Feet Off Road Q Dark 11 = < 10 Feet Off Road 12 = > i 0 Feet Off Road O Reflective 13 = Outside Trafficway Q Reflective 13 = Outside Trafficway O Unknown 14 = Shared Paths/irails p Unknov~m 14 =Shared Paths/TraiVs 99 = Unknown 99 = Unknown Work Zone Tune 1~re in Work Zone 7 ortr Zone Sneed a ^ tarts Cbwre? Construction O Advisory Limit Before 1st Work Zone O W i Si t E f Speria/ Worn Zone Road Cbsed with Characteristics ^ C<~9 7~) arn ng gn aw n orcement Detourl • O Maintenance O Advance Wami Area n9 Officer Present (Mark aU that Work on Shoulder ^ ( Term) O Transition Area Workers Present O Yes O N w Median? aPP1 y. H not involved or Intermittent or ^ p Utility Company O ~~, Area O Yes o unknow, leave Moving Work? 6fank) O Other Q Termination Area O No O Unknown ^ Flagger Control? O Other O Unknown ^ Other moist ap Warning Signs m Narrative Add-rtiionaf NMage Intortnation ~~'~~<.,~,r~ PENNDOT COPY http:/lwww.dot6.state.pa.usiiconsiPrintImages/Xn~ik'iles/20070533461 GUTSHALL 19502... 5/29/2007 Prim: CRS tiV0057379 Crash Number: W0057379 Incident Numt~er: HAM20070500389 ~,. ~i ~;: ,, G R~.VEL ' N Up .Wili 8Ui3faN 4QdIENT ..~~~ fi ~. ~ Util~ P4ie Yag f http://www.dot6.state.pa.us/iconsiPrintImages/XmlFiles/20070533461 GUTSHALL 19502. ~PPL Utility :Pole~31?90 ,~^ 534829 5/29/2007 Page 1 of 2 Print Close Window Syt1~E?StS Quality Assurance Synopsis ~~ Report Crash Synopsis created 05/29/2007 for Crash Number W0057379 Web Group: QA Police Agency Data: The crash report was recorded by police agency 21103-Hampden Township, patrol zone - NE, under incident number HAM20070500389. The dispatch date was 05/13/2007, the dispatch time was 1902 hours, the investigation date was 05/13/2007, the arrival time was 1910 hours. The investigator was CPL. K. SHAUGHNESSY, badge number 1916. The report has not been approved. Crash Data: This hit fixed object crash occurred in Cumberland county, in the municipality of Hampden Township, on Sunday, 05/13/2007 at 1902 hours. The illumination at the time of the crash was daylight. The 1-unft crash involved 2 people wfth 1 injury. There was 1. fatality as a result of this crash. This is a reportable crash. Highway maintenance was not notified. The crash was not school bus related. The crash was not school zone related. There was no PennDOT property damaged. The crash did not occur in a work zone. The Blacktop roadway surface was dry, Weather conditions included No adverse conditions. A notification of an accident investigation was not issued. Other environmental !roadway potential factors included None. The indicated prime factor for this crash was a driver's action (affected by physical condition) for unit 01. The first harmful event for this crash was that unit 1 hit an embankment and the most harmful event for this crash was that unft 1 overturned /roiled over. Type Location: This was amid-block (non intersection) crash, which occurred at no special location. Principal Roadway: Cumberland County, 1716 ORRS BRIDGE Road, the orientation of the roadway was South, there were 02 travel lane(s), the speed limit was 35 Mph, with Local road or street route signing. GPS: The police-entered Latitude was 40 16:53.000 and the police-entered Longitude was 76 58:06.000 TCD: Traffic Control Device: no traffic control device, No controls. Work zone: Type of Work Zone: not a work zone. Lane Closure: Fully closed. Lane closure direction North and South. Traffic detoured yes. Estimated hours closed 30 - 60 minutes. UNIT INFORMATION: 1 Unit Number 1 was a motor vehicle in transport. The unit was owned by KRIS GAMBLE. Address: 105 HOLLOWVIEW DRIVE, ENOtA, PA 170257025. This 2007 Harley-Davidson identified by VIN: 1HD1PG8187Y951353 was registered in PA with License RVK01. Travel speed: 045. Unit insured: vehicle has insurance, Insurance Company: FOREMOST INS CO, Policy number: 2760071037810. The Unit was towed by ROADSIDE RESCUE. This Unit is a motorcycle with saddle bags. The size of the engine is 01200 CC.The driver received a motorcycle driver education.The driver did not wear a helmet.. For protection, the driver wore The driver did not wear a helmet.. Fong pants, ,over-the-ankle boots.The passenger did not wear a helmet.. For protection, the passenger wore The passenger did not wear a helmet.. long pants. This was not a commercial vehicle. This Unit was a motorcycle, Vehicle color: Red, Special Usage: Not applicable. The initial impact point was at 12 o'clock, Damage Indicator: Functional (mod. -may be undriveable), Vehicle role: Striking, Vehicle position: in the curb lane right. Direction of travel: South, Movement: Negotiating curve -left, Gradient: uphill, Alignment: Curve. Driver Information: The driver of this un"st was KRIS D GAMBLE. Address: 105 HOLLOWVIEW DRIVE ENOLA PA 17025. Telephone: 717-732-9097, Height: 0 Ft 0 In. Drivers License #: 22143180, State: PA. DOB: 07/04/1970, Age: 36, Sex: Male. Seating position: drivers seat. Primary safety equipment: None used 1 Not applicable. Secondary safety equipment: Unknown. Injury severity: Moderate injury. Ejection: Not applicable. Extrication: Not applicable. EMS Transport: Yes. AlcohollDrugs Suspected: Alcohol, A{coho{ Test Type: a blood, Alcohol Test Results: the alcohol test was performed, results unknown. Driver's action(s), 1 over /under compensation at curve, 2 affected by physical condition. Th'e individual's condition was had been drinking. Vehicle code DUI was violated. http:/Iwww.dot6.state.pa.us/crash.nsf/Synopsis?OpenForm&Seq=1 5/29/2007 Page 2 of 2 Passenger Information: A passenger (1): ANNEITE M WHEELER, Address: B BLACK PINE DRIVE MECHANICSBURG PA 17055. Telephone: 717-999-9999. DOB: 05/22/1966, Age: 40, Sex: Female. Seating position: Second row -left side or motorcycle passenger. Primary safety equipment: None used / Not applicable. Secondary safety equipment: None used /Not applicable. Injury severity: Killed. Ejection: Not applicable. Extrication: Not applicable. EMS Transport: Yes. -Print Close Window http://www.dot6.state.pa.us/crash.nsf/Synopsis?OpenForm&Seq=1 S/29/2007 STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SHORT CERTIFICATE I , GL ENDA EARNER STRA SBA UGH Register for the Probate of Wills and Granting Letters of Administration in and for CUMBERLAND County, do hereby certify that on the 4th day of June, Two Thousand and Seven, Letters of ADMINISTRATION in common form were granted by the Register of said County, on the estate of ANNETTE MAR/E WHEELER late of EAST PENNSBORO TOWNSHIP (First, Middle, Lasti in said county, deceased, to THOMAS V WHEELER (First, Middle, Lastl and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office a t CARLISLE, PENNSYLVANIA, this 4th day of June Two Thousand and Seven. File No. 2007-00545 PA Fi I e No . 21- 07- 0545 Date of Death 5/21/2007 S . S . # 176-50-3424 ~~ J ~y'' Deputy PLAINTIFF'S EX BIT NDT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEA Claim No.: 7907293 GENERAL RELEASE FOR AND IN CONSIDERATION OF the payment to me of the sum of ONE HUNDRED THOUSAND ($100,000.00) Dollars, I, THOMAS WHEELER AS ADMINISTRATOR OF THE ESTATE OF ANNETTE WHEELER being of lawful age, for myself and my heirs, executors, administrators, and assigns hereby release, acquit and forever discharge KRIS DARWIN GAMBLE and any and all other persons, firms and corporations of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation and all other damage of any kind on account of, or in any way growing out of any and all injuries to include death and properly damage now known or unknown and all consequences of both or either resulting or to result in the future from an accident that occurred on or about the 13TI' day of MAY, 2007 at or near HAMPDEN TWP, PENNSYLVANIA. I hereby declare that I have not been influenced to any extent whatever in making this release by any representations or statements regarding the injuries or property damage or any othermatters made by the persons, firms or corporations who are hereby released or by any person or persons representing him or them or by any physician or surgeon by him or them employed. I understand that this release will be a complete bar to all claims or suits for injuries or damages of whatever nature resulting or to result in the future from the accident. I further understand that this settlement is a compromise of a doubtful and disputed claim and that the payment is not to be construed as an admission of liability on the part of the persons, firms and corporations hereby released by whom liability is expressly denied. No other person oi• entity has any interest in my/our claim for damages arising out of the accident. I/We have the sole right to exclusive authority to execute this General Release and to receive all sums specified above. I/We have not sold, assigned, transferred, or conveyed any of my/our rights to any damages of any kind arising out of the accident. I/We will defend, indemnify, and hold harmless each of the persons, firms and corporations released hereunder with regard to any and all claims or suits for damages, compensation, indemnity or contribution made at any time by any person, firm, or corporation arising out of the accident and my/our injuries resulting therefrom. Signed and sealed this day of Witness Address by: Releasor: Witness Releasor: Address PLEASE SEE THE ENCLOSED FOR ADDITIONAL INFORMATION. PLAINTIFF'S EX . IBIT ®FORENIOST ® RENEWAL INSURANCE COMPANY DECLARATIONS AdminiSYalive Office P.O. Box 2450 Grand Rapids, Michigan 49501 RENEWAL DECLARATIONS EFFECTIVE 04/28/2007 SUPERSEDES ANY PREVIOUS DECLARATIONS BEARING THE SAME POLICY NUMBER FOR THIS POLICY PERIOD. KRIS DARWIN GAMBLE 105 HOLLOWVIEW DR ENOLA PA 17025-1949 FOREMOST INSURANCE SERVICE CENTER PO BOX 3357 GRAND RAPIDS MI 49501-3357 Operator Name ~~1 KRIS DARWIN GAMBLE VENICE<'<~+1S~11l~NCE VEHICLE INSURANCE COVERAGES LIMITS OF LIABILITY PREMIUM unit u~<; . PART A - LIABILITY BODILY INJURY $100,000 EA PERS/ $300,000 EA ACCIDENT $ 59 PASSENGER LIABILITY INCLUDED PED BASIC FIRST PARTY BEN $5,000 EA ACCIDENT INCLUDED PROPERTY DAMAGE $50,000 EA ACCIDENT $ 9 PART C - UNINSURED MOTORIST UNINSURED MOTORIST BI-UNSTACK $100,000 EA PERS/ $300,000 EA ACCIDENT $ 59 UNDERINSD MTRST BI-UNSTACRED $100,000 EA PERS/ $300,000 EA ACCIDENT $ 88 PART D-DAMAGE TO YOUR VEHICLE COLLISION ACV LESS $250 DEDUCTIBLE $ 122 OTHER THAN COLLISION ACV LESS $250 DEDUCTIBLE $ 41 ADDITIONAL COVERAGES OPTIONAL EQUIPMENT ACV NOT TO EXCEED $3,500 INCLUDED TOWING/ROADSIDE ASSISTANCE REASONABLE EXPENSE EACH DISABLEMENT $ 8 pLA1NTIFF'S ~~ 276-0071037810 -003 INSURED COPY Form 081000 06/94 P :k EXH181T 104504 276-0071037810 ~~ -~ Annual Premium By Vehicle $ 386 DISCOUNTS AND SURCHARGES tii~~~'<:';` Thy following have been applied to your premium AFFINITY GROUP DISCOUNT $ 16 RENEWAL PREMIUM DISCOUNT $ 45 PREFERRED OPERATOR DISCOUNT $ 31 ANTI LOCK BRAKES $ 14 ANTI-THEFT DISCOUNT $ 3 Total Discounts $ 109 ,..:~I~~~M~E ir#+i~~1~,1~1~CE >; :::>::>::111±~3~K~.:R~#E~I~SI~.:< ..::::::.:::..:::.:.::.::;:.;:.;:.;:.:::::::>:.::<;.;;;::;r<.;::>;: MINIMUM EARNED PREMIUM $ 50 '~`' ' ~ PP0417 08/06 UNDERINSURED MOTORIST COVERAGE-NON STACKED 'f[(~>t)iiYtfi` PPO421 08/06 UNINSURED MOTORIST COVERAGE-NON STACKED PP0563 06/94 PEDESTRIAN BASIC FIRST PARTY BENEFITS 005116 09/00 OPTIONAL EQUIPMENT COVERAGE 005474 O1/O1 MOTORCYCLE POLICY 005758 08/05 REPLACEMENT COST TOTAL LOSS SETTLEMENT 005772 03/06 AMENDMENT OF POLICY PROVISIONS-PA 005932 01/06 TOWING/ROADSIDE ASSIS AND TRIP INTERRUPTION COV SPECIAL INFORMATIONAL FORMS 737025 05/90 IMPORTANT NOTICE 740064 PRIVACY NOTICE ;-^ ~ ,^~ ---., ~--, 740112 08/01 PENNSYLVANIA NOTICE ~~ ~ ~ ((~1 ~~~ Cj ~~~~~~~ 740113 08/01 NOTICE OF PREMIUM DISC'OU~,S~~~, `_ J ~ ~ ~ 740122 03/05 PENNSYLVANIA DISCLOSURE~PL7N~~~ ~~ ~--J 740123 02/05 MINIMUM COVERAGE PREMIUM 740437 11/O1 PENNSYLVANIA ID CARD ....:..:::.. :::.:<::::::<> E If~L~U~RED 1~lE~SA~~...~~ ..:::::....... IMPORTANT NOTICE -YOUR POLICY DOES NOT PROVIDE COLLISION COVERAGE ON RENTAL VEHICLES. PROCESSED: March 26, 2007 ~o 276-0071037810 -003 INSURED COPY Form 081000 06/94 PAGE 2 BLGR°A ERIE INSURANCE EXCHANGE iT Erie PI ONEE. ~ AMI LY AUTO POLICY Insurance Groin ~~ NEW DECLARATIONS 100 Erie Ins. PI. Erie, PA 16530 :~:::::.:::::::;:: :`;::~:::::isx.::;:~::::::::;::::::;::::::f:i:::::::::.::::::: ~ ~~::~ AA70844 GIESELER & JOYCE INS. 03/27/07 TO 03/27/08 Q03 2710768 H NAOMI WHEELER 8 BLACK PINE DR MECHANICSBURG PA 17050-9186. AGENT - GIESELER & JOYCE INS. AS LISTED BELOW 125 NORTH ENOLA DR,, STE. 102 AGENT PHONE - {717) 728-9777 ENOLA PA 17025 2500 ITEM 4. AUTOS COVERED AUTO YR MAKE VIN ST TER SYM RATING CLASS DDP 1 07 HOND CIVIC LX 2HGFG12657H519534 PA 4D H E10 ITEM 5. INSURANCE IS PROVIDED WHERE A PREMIUM OR INCL, IS SHOWN FOR THE COVERAGE. COVERAGES, LIMITS AND ANNU~iL PREMIUMS ARE AS FOLLOWS- M EQUALS THOUSAND $ #1 *****GOOD DRIVER RATES APPLY***** - THE LIMITED TORT OPTION APPLIES TO ALL PRIVATE PASSENGER VEHICLES. --- LIABILITY PROTECTION- BODILY INJURY $25MLPERSON $50M/ACC 181 PROPERTY DAMAGE, ~2 M/ACC 379 FIRST PARTY BENEFIT'S- MEDICAL EXPENSE $5M 81 INCOME LOSS 1M/MONTH $5M MAXIMUM 15 UNINSURED MOTO ISTS COV~R GE- BOD INJ ~15M PERSON $30M/ACC-UNSTACKED 5 UNDERINSUR D MOTORISTS COVVEERAGE- BOD INJ $15M/PERSON ~30M/ACC-UNSTACKED 13 PHYSICAL DAMAGE COVERA ES- COMPREHENSIVE - $500 DED 204 COLLISION $$500 DED 1028 OPTIONAL COVERAGES- ROAD SERVICE 4 TRANSP EXPENSES - LOLL ~30%DAY, 1,350%LOSS 18 TOTAL ANNUAL PREMIUM FOR EACH AUTO 1935 TOTAL ANNUAL POLICY PREMIUM $ 1,935 ALLMAUTOSPPLFAPB03/0~*ICU~2E06O05/Ol*TS~FPFO1P03/07*TOADFPA03R03/ON*,IUF2345 10/06*. AUTO 1 - AFPU01 03/07*, ANTI-THEFT DISCOUNT APPLIES-PASSIVE NON-DI5AB AUTO 1 PASSIVE RESTRAINT DISCOUNT APPLIES - MULTIPLE AIRBAGS AUTO 1 ANTI-LOCK BRAKE DISCOUNT APPLIED AUTO 1 EXPLANATION OF ADULT &/OR YOUTHFUL DRIVER RATING CLASS PLAINTIFF'S EXHIBIT AUTO 1-OWNER/PRINCIPAL DRIVER AGE 20 WITHOUT DRIVER TRAINING a MISCELLANEOUS INFORMATION ITEM 7. EACH AUTO WE INSURE WILL BE PRINCIPALLY GARAGED AT THE ADDRESS SHOWN IN ITEM 1, UNLESS ANOTHER ADDRESS IS SHOWN BELOW. CONTINGENT FEE AGREEMENT I, THOMAS WHEELER, Administrator of the Estate of ANNETTE M. WHEELER, do hereby retain HANDLER, HENNING & ROSENBERG, LLP, of Harrisburg, Pennsylvania, as my attorneys in this matter to represent me and to process, negotiate, arbitrate a settlement or to institute in my name, any legal proceedings or actions that, in their judgment are necessary, against Kris Campbell and Foremost Insurance or against anyone else as a result of injuries and damages I sustained in an incident that occurred on May 13, 2007. I agree not to settle, negotiate or adjust the above claim or any proceedings based thereon without the written consent of my said attorneys. Inconsideration of the services so to be rendered by Handler, Henning & Rosenberg, LLP I hereby covenant, promise and agree to pay them for their professional services rendered, THIRTY-THREE AND ONE-THIRD PERCENT (33 ~/s%) of whatever sum is recovered as a result of settlement without lawsuit; or FORTY PERCENT (40%) of whatever sum is recovered after lawsuit is filed or in the event of arbitration or mediation. I will reimburse Handler, Henning & Rosenberg for any necessary expenses advanced on my behaf in pursuing my claim. Examples of typical expenses include Court filing fees, investigation, auto mileage, photocopies, court reporters, medical records, expert witness fees, etc. /f no money is obtained, client will not owe a legal fee or expenses. I also agree to take possession of my medical files at the conclusion of this case. My failure to take possession of these files within 60 days after the conclusion of the case will authorize my lawyers to destroy said files. I agree that HANDLER, HENNING & ROSENBERG, LLP may associate additional lawyers to assist with this case and I agree to the sharing of fees between lawyers. I understand the terms herein apply to other lawyers associated on this case. I understand that the association of other lawyers does not increase the amount of the attorney fees at the conclusion of the case. Counsel reserves the right to withdraw if they desire to do so,~ for any reason(s) they deem proper. I acknowledge that I have read, approved and understood the above Contingent Fee Agreement and I acknowledge having received a copy of the same. The terms set forth herein are accepted. ~ N WITNESS WHEREOF, I have hereunto set my hand and seal this~day of ,2007. ~i (SEAL) THOMAS WHEELER Administrator of the Estate of ANNETTE M. WHEELER PLAWTIFF'S EXHIBIT andlar, anning~ ~ osanbarg,«~ ATTORNEYS AT LAW 1300 Linglestown Road, Harrisburg, PA 17110 Thomas Wheeler 5 Black Pine Drive Mechanicsburg, PA 17050 INVOICE PAYMENT DUE UPON RECEIPT EXPENSES Client No: 212325 Matter: 00000 Attorney: WSH MV Pre-Bill No: 29153 Bill Date: March 30, 2009 07/11/2007 Vendor IOD Incorporated; General Case Expense 205.62 CASE.,..; 07/11/2007 $205.62 08/16/2007 Vendor PROTH OF CUMBERLAND CO; General Case Expense 78.50 CASE ' 08/16/2007 _. $78.50 08/16/2007 Vendor SHERIFF OF CUMBERLAND CO; General Case Expense 125.00 CASE 08/16/2007 ,$125.00 09/05/2007 General Case Expense -REFUND SHERIFF OF CUMBERLAND COUNTY -21.39 CASE ' 09/05/2007 -$21'.39 01/29/2008 CD formating/copying/burning 9.00 CD -01/29/2008 $9:00 10/0 8/2008 Vendor PROTH OF CUMBERLAND CO; Case Expense 3.00 CASE 10/08/2008 $3:00 10/29/2008 Vendor ZANARAS REPORTING & VIDEO; Case Expense 583.55 CASE _- 10/29/2008 $583:55 . , 01 /20/20 09 Vendor PROTH OF CUMBERLAND CO; Case Expense -3.00 CASE - 01/20/2009 '-$3.00 03/31/2009 Document Reproduction 11.80 COPY 03/31/2009 $11:80 03/31/2009 Fax Charges 30.00 FAX 03/31/2009 _ $30:00 03/31/2009 Document Reproduction 437.80 ISI 03/31/2009 $437.80 - 03/31/2009 Postage Costs 59.58 POS ., 03/31/2009 $59;58 03/31/2009 Postage Costs 51.39 POST ,. 03/31 /2009 $51.39 _. 03/31/2009 Long Distance Telephone Charges 1.03 TEL'E 03/31/2009 _$1:03 PLAIN~~FF'S' ~ TOTAL EXPENSES $1,571.88 E $IT Total due this invoice $1,571.88 212325 Wheeler, Thomas Pre-Bill # 29153 page 2 TOTAL BALANCE DUE $1,571.88 andlQr. anning~ osanbarg,up ATTORNEYS AT LAW July 13, 2009 Honorable Edgar B. Bayley S. Hanover St. Carlisle, PA 17013-0000 Re: Thomas Wheeler, vs Kris Gamble et al Docket No.: 07-4985 Dear Judge Bayley: W. Scott Henning Henning@hhrlaw.com Enclosed for filing please find the Second Amended Petition to Settle Wrongful Death and Survival Actions. If you have any questions, feel free to contact me. Very truly yours, HENyHaX' & ROSENBERG, LLP By: WSH/tgd cc: Thomas Wheeler Prothonotary of Cumberland County John Evans, Esq. ~- Joseph D. Deal, Esq. Enclosure W. scoff Handler, Henning S Rosenberg, LLP 1300 Linglestown Road, Harrisburg, PA 17110 Phone: 717-238-2000 * Fax: 717-233-3029 * Toll free 1-800-422-2224 www. hhrlaw.com Carlisle Office 717-241-2244 * Lancaster Office 717-431-4000 * York Office 717-845-7800 * Hanover Office 717-630-8200