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HomeMy WebLinkAbout08-4085Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiffs Fax: (717) 233-3029 E-mail: HELD(a0hrlaw.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. q N'5- 2008 CIt Civil Action - (XX) Law ( ) Equity JURY TRIAL DEMANDED RUTH TRIMBLE, in her own right, MARION MATTESKY and as Administratrix of the ESTATE 317 North College Street OF MARK TRIMBLE, Deceased Carlisle, PA 17013 264 Henderson Street Carlisle, PA 17013 MICHAEL MATTESKY 403 North Bedford Street Carlisle, PA 17013 JOHN E. MOLISON versus 403 North Bedford Street Carlisle, PA 17013 Plaintiff(s) & Defendant(s) & Address(es) Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue A Writ of Summons in the above-captioned action. X Writ of Summons Shall be issued and forwarded to ( ) or ey (XX)Sheriff Stephen G. Held 1300 Linglestown Road Harrisburg, PA 17110 Signat a of Attorney (717) 238-2000 Supreme Court I No. 72663 Name/Address/Telephone No. Date of Attorney WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN /S/ a A ON)??A71'0?IY?OU. Prothonotary U ?y Date: /U? ,2G0 by 6L Deputy ( ) Check here if reverse is used for additional information PROTHON. - 55 C r ?o x o co"Ar C 33b ?o c? ?5 C?O?? CASE NO: 2008-04085 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TRIMBLE RUTH ET AL VS MATTESKY MARION ET AL MICHELLE GUTSHALL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon MATTESKY MARION the DEFENDANT , at 2102:00 HOURS, on the 21st day of July , 2008 at 317 NORTH COLLEGE STREET CARLISLE, PA 17013 MARION MATTESKY by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 5.00 Affidavit .00 Surcharge 10.00 .00 -/.0/ bp 3 3 . 0 0 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 07/23/2008 HANDLER HENNING ROSENBERG By: Deputy Sheriff of A. D. t CASE NO: 2008-04085 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TRIMBLE RUTH ET AL VS MATTESKY MARION ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon MATTESKY MICHAEL the DEFENDANT , at 2022:00 HOURS, on the 15th day of July 2008 at 403 NORTH BEDFORD STREET CARLISLE, PA 17013 MICHAEL MATTESKY by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 5.00 00 10.00 R. Thomas Kline 00 21.00 07/23/2008 HANDLER HENNING ROSENBERG Sworn and Subscibed to before me this of By. day AO-Utt Sher , A. D. SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-04085 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND TRIMBLE RUTH ET AL VS MATTESKY MARION ET AL R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT MOLISON JOHN E but was unable to locate Him in his bailiwick. He therefore returns the WRIT OF SUMMONS the within named DEFENDANT , MOLISON JOHN E 403 NORTH BEDFORD STREET CARLISLE, PA 17013 NOT FOUND , as to DEFENDANT NO LONGER LIVES AT GIVEN ADDRESS. NO FORWARDING ON FILE AT POST OFFICE. Sheriff's Costs: So answer;.. Docketing 6.00 Service .00 Not Found 5.00 R. Thomas,'Kline Surcharge 10.00 Sheriff of Cumberland County .00 A ? 21.00 HANDLER HENNING ROSENBERG 07/23/2008 Sworn and Subscribed to before me this day of A. D. s w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RUTH TRIMBLE, in her own right, and as Administratrix of the ESTATE OF MARK TRIMBLE, deceased, Plaintiff, CIVIL DIVISION NO. 4085 - 2008 PRAECIPE FOR APPEARANCE V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN MOLISON, Defendants. (Jury Trial Demanded) Filed on Behalf of the Defendant, Marion Mattesky Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #16470 r . • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RUTH TRIMBLE, in her own right, and as CIVIL DIVISION Administratrix of the ESTATE OF MARK TRIMBLE, deceased, Plaintiff, NO. 4085 - 2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN MOLISON, Defendants. (Jury Trial Demanded) PRAECIPE FOR APPEARANCE TO: THE PROTHONOTARY Kindly enter the Appearance of the undersigned, Kevin D. Rauch, Esquire, of the law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., on behalf of the Defendant, Marion Mattesky, in the above case. JURY TRIAL DEMANDED Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: KgvirTD. Mauch, Esquire C unsel for Defendant, Marion Mattesky 0- 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE FOR APPEARANCE has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 4T" day of August, 2008. Stephen G. Held, Esquire Handler, Henning & Rosenberg, L.L.P. 1300 Linglestown Road Harrisburg, PA 17110 Michael Mattesky 403 North Bedford Street Carlisle, PA 17103 John E. Molison 403 North Bedford Street Carlisle, PA 17013 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: Ket?rD. Ruch, Esquire Counsel for Defendant, Marion Mattesky `-?'?" t-T ?TY ` I C C.r°t -ra IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RUTH TRIMBLE, in her own right, and as Administratrix of the ESTATE OF MARK TRIMBLE, deceased, Plaintiff, V. CIVIL DIVISION NO. 4085 - 2008 PRAECIPE FOR RULE TO FILE COMPLAINT MARION MATTESKY, MICHAEL MATTESKY, and JOHN MOLISON, Defendants. (Jury Trial Demanded) Filed on Behalf of the Defendant, Marion Mattesky Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #16470 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RUTH TRIMBLE, in her own right, and as CIVIL DIVISION Administratrix of the ESTATE OF MARK TRIMBLE, deceased, Plaintiff, NO. 4085 - 2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN MOLISON, Defendants. (Jury Trial Demanded) PRAECIPE FOR RILE TO FILE COMPLAINT TO: The Prothonotary Kindly rule the Plaintiff, Ruth Trimble, in her own right, and as Administratrix of the Estate of Mark Trimble, deceased, to file a Complaint in Civil Action within twenty (20) days. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: KetinlTRaut.h, Esquire Co nsel for Defendant, Marion Mattesky CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE FOR RULE TO FILE COMPLAINT has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 4T" day of August, 2008. Stephen G. Held, Esquire Handler, Henning & Rosenberg, L.L.P. 1300 Linglestown Road Harrisburg, PA 17110 Michael Mattesky 403 North Bedford Street Carlisle, PA 17103 John E. Molison 403 North Bedford Street Carlisle, PA 17013 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: a K in D. Ra ch, Esquire C unsel for Defendant, Marion Mattesky IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RUTH TRIMBLE, in her own right, and as Administratrix of the ESTATE OF MARK TRIMBLE, deceased, Plaintiff, CIVIL DIVISION NO. 4085 - 2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN MOLISON, Defendants. (Jury Trial Demanded) RULE AND NOW, this -, day of 2008, upon consideration of Defendant, Marion Mattesky's Praecipe for Rule to File a Complaint, a Rule is hereby granted upon Plaintiff to file a Complaint within twenty (20) days of service, or suffer judgment Non Pros. Rule issued this day of A-aoU2J , 2008. s L?P. Prothonot nt,g Distribution to: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 Stephen G. Held, Esquire Handler, Henning & Rosenberg, L.L.P. 1300 Linglestown Road Harrisburg, PA 17110 Michael Mattesky 403 North Bedford Street Carlisle, PA 17103 John E. Molison 403 North Bedford Street Carlisle, PA 17013 ? ,.,.?. " `E i -'Y" '_ ??j i ?? ` ? ri?? Stephen G. Held, Esquire I . D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: HELD aahhrlaw.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 4085-2008 Civil Action - (XX) Law ( ) Equity JURY TRIAL DEMANDED RUTH TRIMBLE, in her own right, and as Administratrix of the ESTATE OF MARK TRIMBLE, Deceased 264 Henderson Street Carlisle, PA 17013 Plaintiff(s) & Address(es) MARION MATTESKY 317 North College Street Carlisle, PA 17013 MICHAEL MATTESKY 403 North Bedford Street Carlisle, PA 17013 Attorney for Plaintiffs JOHN E. MOLISON versus 24 South Hanover Street #3 Carlisle, PA 17013 Defendant(s) & Address(es) PRAECIPETO REISSUE WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Please reinstate the Writ of Summons in the above-captioned action in order that Defendant JOHN E. MOLISON, can be served at 24 South Hanover Street, #3, Carlisle, PA 17013, pursuant to Pennsylvania Rule of Civil Procedure 401(2). ///,-I t?(oQ Date: HANDLER, HENNING & ROSENBERG, LLP By: St hen G. a d, Esquire 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff -!h P ? o c? -T, IRA SHERIFF'S RETURN - REGULAR CASE NO: 2008-04085 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TRIMBLE RUTH ET AL VS MATTESKY MARION ET AL MICHELLE GUTSHALL Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon MOLISON JOHN E the DEFENDANT , at 0009:20 HOURS, on the 16th day of August , 2008 at 24 SOUTH HANOVER STREET, APT 3 CARLISLE, PA 17013 by handing to JOHN MOLISON DEFENDANT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 5.00 Affidavit _„Ipg Surcharge 9) .00 10.00 R."Thomas Kline ,, ,, 33.00 08/19/2008 HANDLER HENNING & ROSENBERG Sworn and Subscibed to By: before me this day Deputy Sheriff of A.D. Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held@HHRLaw.com RUTH TRIMBLE, in her own right, : IN THE COURT OF COMMON PLEAS and as Administratrix of the ESTATE : CUMBERLAND COUNTY, PENNSYLVANIA OF MARK TRIMBLE, deceased, Plaintiffs D8 - 4085 : No. -4958.2eee- V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN E. MOLISON : Defendants : 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 ustdd desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas debe tomar accion dentro de los proximos veinte (20) digs despues de la notificacion de esta Deanda 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 VAYAA 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: qko S p n Id, Esquire Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held@HHRLaw.com RUTH TRIMBLE, in her own right, : IN THE COURT OF COMMON PLEAS and as Administratrix of the ESTATE : CUMBERLAND COUNTY, PENNSYLVANIA OF MARK TRIMBLE, deceased, Plaintiffs No. 4058-2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN E. MOLISON Defendants : CIVIL ACTION - LAW COMPLAINT AND NOW, comes the Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, Deceased, by and through her attorneys, HANDLER, HENNING & ROSENBERG, by Steven G. Held, Esquire, and makes the within Complaint against Defendants, Marion Mattesky, Michael Mattesky and John E. Molison, and in support thereof, avers as follows: 1. Plaintiff, Ruth Trimble, is an adult individual currently residing at 264 Henderson Street, Carlisle, Cumberland County, Pennsylvania 17013. 2. Mark Trimble (hereinafter "Plaintiff's Decedent") formerly resided at 264 Henderson Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. Plaintiff, Ruth Trimble, is the mother of Plaintiff's Decedent, Mark Trimble. 4. Plaintiff's Decedent, Mark Trimble, was born on April 14, 1971, and was 35 years of age on July 18, 2006. 5. Defendant, Marion Mattesky, is an individual currently residing at 317 North College Street, Carlisle, Cumberland County, Pennsylvania 17013. 6. Defendant, Michael Mattesky, is an adult individual currently residing at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 7. Defendant, John E. Molison, is an adult individual currently residing at 24 South Hanover Street, #3, Carlisle, Cumberland County, Pennsylvania 17013. 8. At all times material hereto, Defendant, Marion Mattesky, was in ownership and control of the premises located at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. (hereinafter referred to as the "Premises"). 9. At all times material hereto, Defendants, Michael Mattesky and John E. Molison, resided at and were in possession of said Premises located at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 10. On or about July 18, 2006, at approximately 11:00 p.m., Plaintiff's Decedent, Mark Trimble, was an invitee and lawfully on said Premises. 11. At approximately the same time and place, Plaintiffs Decedent was grilling at an outdoor grill located on a porch attached to the rear of the residence of said Premises when he stumbled and/or fell off the edge of the porch falling approximately twelve inches to the ground and becoming impaled on a broken ax handle that was carelessly and/or negligently left laying upon the ground. Plaintiff's Decedent died instantly. 12. As a direct and proximate result of the negligence of the Defendants, Marion Mattesky, Michael Mattesky and John E. Molison, Plaintiff's Decedent, Mark Trimble, suffered a severe perforation to the chest, which eventually caused his death by 2 Exsanguination, at the age of thirty-five, as set forth in full hereinafter. 13. Plaintiff's Decedent, Mark Trimble, left the following persons surviving him, entitled to recover damages for his death under the laws of the Commonwealth of Pennsylvania: (a) Caleb Trimble - Son (b) Alexis Raines - Daughter 14. Plaintiff, Ruth Trimble, is the duly appointed, qualified, and acting Administratrix of the Estate of Mark Trimble and this action is brought by Plaintiff on behalf of the Estate and the aforementioned survivors. COUNT I - WRONGFUL DEATH - NEGLIGENCE Ruth Trimble. Administratrix of the Estate of Mark Trimble v. Marion Mattesky 15. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 14 above, as if the same were set forth fully below. 16. 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. 17. Plaintiff's Decedent, Mark Trimble, did not bring any other action during his lifetime and no other action for the death of said Decedent has been commenced against Defendant herein or any other person. 3 18. 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. 19. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, Marion Mattesky, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger she knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure her invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and 4 (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 20. As a direct and proximate result of the negligence of the Defendant, Marion Mattesky, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 21. By reason of the death of Plaintiff's decedent, Mark Trimble, the aforementioned survivors have incurred funeral and burial expenses, medical expenses, expenses of administration, and have sustained severe pecuniary loss. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, deceased, seeks damages from the Defendant, Marion Mattesky, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT II - SURVIVAL ACTION - NEGLIGENCE Ruth Trimble, as Administratrix of the Estate of Mark Trimble v. Marion Mattesky 22. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, 5 incorporates and makes part of this Count paragraphs 1 through 21 above, as if the same were set forth fully below. 23. In her capacity of personal representative of the Estate of Mark Trimble, Plaintiff, Ruth Trimble 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. 24. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, Marion Mattesky, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger she knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure her invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable 6 danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 25. As a direct and proximate result of the negligence of the Defendant, Marion Mattesky, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 26. As a direct and proximate result of the negligence of the Defendant, Michael Mattesky, Plaintiffs Decedent consciously suffered physical pain, mental pain, and anguish and a claim is made therefore. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, Marion Mattesky, in an amount in excess of the compulsory arbitration limits of Cumberland County. 7 COUNT III - WRONGFUL DEATH - NEGLIGENCE Ruth Trimble. Administratrix of the Estate of Mark Trimble v. Michael Matteskv 27. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 26 above, as if the same were set forth fully below. 28. 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. 29. Plaintiff's Decedent, Mark Trimble, did not bring any other action during his lifetime and no other action for the death of said Decedent has been commenced against Defendant herein or any other person. 30. 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. 31. Defendant, Michael Mattesky, resided at and was in joint possession of the Premises located at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 32. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, Michael Mattesky, generally and more specifically as set forth below: 8 (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger he knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure his invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 9 33. As a direct and proximate result of the negligence of the Defendant, Michael Mattesky, Plaintiffs Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 34. By reason of the death of Plaintiffs decedent, Mark Trimble, the aforementioned survivors have incurred funeral and burial expenses, medical expenses, expenses of administration, and have sustained severe pecuniary loss. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, Michael Mattesky, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT IV - SURVIVAL ACTION - NEGLIGENCE Ruth Trimble, Administratrix of the Estate of Mark Trimble v. Michael Mafteskv 35. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 34 above, as if the same were set forth fully below. 36. In her capacity of personal representative of the Estate of Mark Trimble, Plaintiff, Ruth Trimble 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. 10 37. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, Michael Mattesky, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger he knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure his invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, 11 would traverse said Premises unaware of any potential dangerous conditions. 38. As a direct and proximate result of the negligence of the Defendant, Michael Mattesky, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 39. As a direct and proximate result of the negligence of the Defendant, Michael Mattesky, Plaintiffs Decedent consciously suffered physical pain, mental pain, and anguish and a claim is made therefore. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, Michael Mattesky, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT V - WRONGFUL DEATH - NEGLIGENCE Ruth Trimble, as Administratrix of the Estate of Mark Trimble v. John E. Molison 40. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 39 above, as if the same were set forth fully below. 41. 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. 12 42. Plaintiff's Decedent, Mark Trimble, did not bring any other action during his lifetime and no other action for the death of said Decedent has been commenced against Defendant herein or any other person. 43. 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. 44. Defendant, John E. Molison, resided at and was in joint possession of the Premises located at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 45. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, John E. Molison, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger he knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it 13 could kill and/or injure his invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 46. As a direct and proximate result of the negligence of the Defendant,John E. Molison, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 47. By reason of the death of Plaintiffs decedent, Mark Trimble, the aforementioned survivors have incurred funeral and burial expenses, medical expenses, expenses of administration, and have sustained severe pecuniary loss. 14 n WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, John E. Molison, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT VI - SURVIVAL ACTION - NEGLIGENCE Ruth Trimble. Administratrix of the Estate of Mark Trimble v. John E. Molison 48. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 47 above, as if the same were set forth fully below. 49. In her capacity of personal representative of the Estate of Mark Trimble, Plaintiff, Ruth Trimble 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. 50. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, John E. Molison, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger he knew or should have known existed on said Premises; 15 (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure his invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 51. As a direct and proximate result of the negligence of the Defendant, John E. Molison, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 16 r 52. As a direct and proximate result of the negligence of the Defendant, John E. Molison, Plaintiff's Decedent consciously suffered physical pain, mental pain, and anguish and a claim is made therefore. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, John E. Molison, in an amount in excess of the compulsory arbitration limits of Cumberland County. Respectfully submitted, Date: t6 W IL t HANDLER, HENNING & ROSENBERG, LLP By: %70 Steve G. Held, Esquire I.D. No. 72663 1300 Linglestown Road Harrisburg, PA 17108 (717) 238-2000 Attorneys for Plaintiffs 17 L U 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. Ruth Trimble, in her own right and as Administratrix of the Estate of Mark Trimble Date: 9- Z 3- 6 67" Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held@HHRLaw.com RUTH TRIMBLE, in her own right, : IN THE COURT OF COMMON PLEAS and as Administratrix of the ESTATE : CUMBERLAND COUNTY, PENNSYLVANIA OF MARK TRIMBLE, deceased, Plaintiffs No. 4058-2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN E. MOLISON : Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE On 10/6/08, 1 hereby certify that a true and correct copy of Plaintiffs' Complaint was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Kevin D. Rauch, Esquire SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL 1017 Mumma Road/Suite 300 Lemoyne, PA 17043 HANDLER, HENNING & ROSENBERG, LLP Dated: 10/6/08 Q-Inl? Stephen A$V I.D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff(s) q co ? J0 I, Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held -HHRLaw.com RUTH TRIMBLE, in her own right, : IN THE COURT OF COMMON PLEAS and as Administratrix of the ESTATE : CUMBERLAND COUNTY, PENNSYLVANIA OF MARK TRIMBLE, deceased, Plaintiffs qo' No. A098-7008 V. : MARION MATTESKY, MICHAEL MATTESKY, and JOHN E. MOLISON : Defendants : CIVIL ACTION - LAW PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT, MARION MATTESKY 53. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extend this averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff's decedent was not negligent. 54. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. By way of amplification, Plaintiff's decedent did not assume the risk of his injuries. 55. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. By way of amplification, Defendant Marion MATTESKY did not act prudently and with the degree of care necessary under the circumstances. 56. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. By way of amplification as stated above, Plaintiff's decedent was not negligent. 57. This averment is an improper attempt to circumvent the Rules of Pennsylvania Civil Procedure. As such this is not an appropriate subject of new matter and no response is required. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in her favor and against the Defendant. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP Dated: 11/26/08 Stephen "e&( I. D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff(s) Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held HHRLaw.com RUTH TRIMBLE, in her own right, IN THE COURT OF COMMON PLEAS and as Administratrix of the ESTATE CUMBERLAND COUNTY, PENNSYLVANIA OF MARK TRIMBLE, deceased, Plaintiffs : No. 4058-2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN E. MOLISON Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE On 12/1/08, 1 hereby certify that a true and correct copy of Plaintiffs' Reply to Defendant, Marion Mattesky's New Matter was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Kevin D. Rauch, Esquire SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL 1017 Mumma Road/Suite 300 Lemoyne, PA 17043 Michael Mattesky 403 North Bedford Street, Carlisle, PA 17013. John E. Molison 24 South Hanover Street, #3, Carlisle, PA 17013. HANDLER, HENNING & ROSENBERG, LLP Dated: 12/1/08 -AX Stephen G. Hel I . D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff(s) f^ -l OF TF!? 20 It h;?'f ? I S-h 1` r l Ct;IJ; u!`l' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RUTH TRIMBLE, in her own right, and as Administratrix of the ESTATE OF MARK TRIMBLE, deceased, Plaintiff, CIVIL DIVISION NO. 4085 - 2008 MOTION FOR SUMMARY JUDGMENT V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN MOLISON, Defendants. (Jury Trial Demanded) Filed on Behalf of the Defendant, Marion Mattesky Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #16470 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RUTH TRIMBLE, in her own right, and as CIVIL DIVISION Administratrix of the ESTATE OF MARK TRIMBLE, deceased, Plaintiff, NO. 4085 - 2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN MOLISON, Defendants. (Jury Trial Demanded) MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Defendant, Marion Mattesky, by and through her counsel, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and Kevin D. Rauch, Esquire, and files the following Motion for Summary Judgment and in support thereof avers as follows: 1. BACKGROUND FACTS 1. This matter arises out of an accident that occurred on July 18, 2006, at 11 p.m. at a home located at 403 North Bedford St, Carlisle, Cumberland County Pennsylvania. 2. The home was owned by Marion Mattesky and had been rented by her since its purchase to her son, Michael Mattesky. 3. Mr. Mattesky also rented the property from its previous owner. 4. Michael Mattesky subleased a room to John Molison just prior to the time of the accident. 5. Mr. Molison left immediately following the accident and has not been located since that time. 6. On October 8, 2008, the Plaintiff filed a Complaint in wrongful death and survival alleging negligence against Lessor, Marion Mattesky, and Lessees, Michael Mattesky and John Molison. 7. Counts 1 and 2 of the Complaint specifically allege that Ms. Mattesky was negligent by failing to warn Mr. Trimble of an alleged dangerous condition, a pick ax with a broken handle standing on it head. A true and correct copy of the Complaint is attached hereto as Exhibit "A." 8. Ms. Mattesky now brings this Motion for Summary Judgment in response to these counts. II. ARGUMENT 9. In Pennsylvania, a Motion for Summary Judgment may be properly granted when the pleadings, depositions, Answers to Interrogatories, admissions, affidavits, and expert reports show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Hopewell Estates. Inc.. v. Kent, 646 A.2d 1192 (Pa. Super. Ct. 1994); Pa. R.C.P. 1035.2. 10. Summary Judgment serves to eliminate a waste of judicial time and resources in cases where a trial would be a useless formality. Lies v. Balmer, 547 A.2d 691 (Pa. Super. Ct. 1989). a. Marion Mattesky is not subject to liability as the alleged dangerous condition came into existence after her lessee took possession of the property. 11. The Restatement Second of Torts, the recognized law in Pennsylvania, provides that "a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession." Restatement (Second) of Torts § 355. Bleam v. Gateway Professional Ctr. Assocs., 636 A.2d 172, 173 (Pa. Super. Ct. 1993). 12. In this matter, the dangerous condition alleged by the Plaintiff is a broken pick ax. 13. The pick ax was placed in its alleged dangerous position less than one month prior to the occurrence of the accident. See Deposition Transcript of Michael Mattesky attached hereto as Exhibit "B" at page 32, line 20. 14. As the alleged dangerous condition came into existence after Michael Mattesky took possession of the property, Marion Mattesky is not subject to liability for the injuries suffered by Mr. Trimble who was present upon the land due to the consent of Mr. Mattesky. 15. Therefore, Counts 1 and 2 of the Plaintiffs Complaint should be dismissed with prejudice. WHEREFORE, the Defendant, Marion Mattesky, respectfully requests that this Honorable Grant the Motion for Summary Judgment and dismiss Counts 1 and 2 of the Plaintiffs Complaint with prejudice. b. In the alternative, should the Court find that the existence of the alleged dangerous condition occurred before the property was leased an owner or possessor of land is not liable for injuries if the alleged dangerous condition is obvious. 16. The Defendant repeats and reiterates paragraphs one through fifteen as if fully set forth at length herein. 17. A licensee is person who is privileged to enter or remain on land only by virtue of the possessor's consent. Restatement (Second) Torts § 330. 18. In this matter, the decedent was a good friend of Mr. Mattesky and was given consent to be on the property by Mr. Mattesky. 19. A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if: (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and; (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and; (c) the licensees do not know or have reason to know of the condition and the risk involved. Restatement (Second) Torts § 342. 20. A danger is deemed to be "obvious" when both the condition and the risk are apparent to and would be recognized by a reasonable man exercising normal perception, intelligence, and judgment. Carrender v. Fitterer, 469 A.2d 120, 124 (Pa. 1983). 21. Here the broken pick ax was 30 inches from the porch where Mr. Trimble had been the entire afternoon. See Photographs attached hereto as Exhibit "C" as well as the testimony contained in Exhibit "B" beginning at page 32, line 8. 22. A reasonable man exercising normal perception, intelligence, and judgment would recognize the risk posed by a broken pick ax. 23. Accordingly, Marion Mattesky did not have any duty to warn Mr. Trimble of the alleged dangerous condition. 24. Therefore, Counts 1 and 2 of the Plaintiffs Complaint should be dismissed with prejudice. WHEREFORE, the Defendant, Marion Mattesky, respectfully requests that this Honorable Grant the Motion for Summary Judgment and dismiss Counts 1 and 2 of the Plaintiffs Complaint with prejudice. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: /,/ -- Kevin D. Rauch, Esquire Counsel for Defendant, Marion Mattesky Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held@HHRLaw.com RUTH TRIMBLE, in her own right, IN THE COURT OF COMMON PLEAS and as Administratrix of the ESTATE CUMBERLAND COUNTY, PENNSYLVANIA OF MARK TRIMBLE, deceased, Plaintiffs : No. 4058-2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN E. MOLISON : Defendants : 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 mas adelante en las siguientes paginas,.debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n 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 acci6n eomo se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n 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 pars usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYAA LASIGUIENTE OFICINA. ESTAOFICINA 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: St p n Id, Esquire Stephen G, Held, Esquire I . D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held@HHRLaw.com RUTH TRIMBLE, in her own right, IN THE COURT OF COMMON PLEAS and as Administratrix of-the ESTATE CUMBERLAND COUNTY, PENNSYLVANIA OF MARK TRIMBLE, deceased, Plaintiffs No. 4058-2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN E. MOLISON Defendants : CIVIL ACTION - LAW rOMPI LINT AND NOW, comes the Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, Deceased, byand through herattorneys, HANDLER, HENNING & ROSENBERG, by Steven G. Held, Esquire, and makes the within Complaint against Defendants, Marion Mattesky, Michael Mattesky and John E. Molison, and in support thereof, avers as follows: Plaintiff, Ruth Trimble, is an adult individual currently residing at 264 Henderson Street, Carlisle, Cumberland County, Pennsylvania 17013. 2. Mark Trimble (hereinafter "Plaintiff's Decedent") formerly resided at 264 Henderson Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. Plaintiff, Ruth Trimble, is the mother of Plaintiff's Decedent, Mark Trimble. 4. Plaintiff's Decedent, Mark Trimble, was born on April 14, 1971, and was 35 years of age on July 18, 2006. 5. Defendant, Marion Mattesky, is an individual currently residing at 317 North College Street, Carlisle, Cumberland County, Pennsylvania 17013. 6. Defendant, Michael Mattesky, is an adult individual currently residing at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 7. Defendant, John E. Molison, is an adult individual currently residing at 24 South Hanover Street, #3, Carlisle, Cumberland County, Pennsylvania 17013. 8. At all times material hereto, Defendant, Marion Mattesky, was in ownership and control of the premises located at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. (hereinafter referred to as the "Premises"). 9. At all times material hereto, Defendants, Michael Mattesky and John E. Molison, resided at and were in possession of said Premises located at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 10. On or about July 18, 2006, at approximately 11:00 p.m., Plaintiff's Decedent, Mark Trimble, was an invitee and lawfully on said Premises. 11. At approximately the same time and place, Plaintiff's Decedent was grilling at an outdoor grill located on a porch attached to the rear of the residence of said Premises when he stumbled and/or fell off the edge of the porch falling approximately twelve inches to the ground and becoming impaled on a broken ax handle that was carelessly and/or negligently left laying upon the ground. Plaintiff's Decedent died instantly. 12. As a direct and proximate result of the negligence of the Defendants, Marion Mattesky, Michael Mattesky and John E. Molison, Plaintiff's Decedent, Mark Trimble, suffered a severe perforation to the chest, which eventually caused his death by 2 Exsanguination, at the age of thirty-five, as set forth in full hereinafter. 13. Plaintiff's Decedent, Mark Trimble, left the following persons surviving him, entitled to recover damages for his death under the laws of the Commonwealth of Pennsylvania: (a) Caleb Trimble - Son (b) Alexis Raines - Daughter 14. Plaintiff, Ruth Trimble, is the duly appointed, qualified, and acting Administratrix of the Estate of Mark Trimble and this action is brought by Plaintiff on behalf of the Estate and the aforementioned survivors. COUNT I - WRONGFUL DEATH - NEGLIGENCE Ruth Trimble, Administratrix of the Estate of Mark Trimble v. Marion Mattesky 15. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 14 above, as if the same were set forth fully below. 16. This civil action is brought pursuantto the Pennsylvania Wrongful Death Act, 42 Pa. C.S.A. § 8301 et seq. and Rule 2201 of the Pennsylvania Rules of Civil Procedure. 17. Plaintiff's Decedent, Mark Trimble, did not bring any other action during his lifetime and no other action for the death of said Decedent has been commenced against Defendant herein or any other person. 3 18. 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. 19. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, Marion Mattesky, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger she knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure her invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and 4 (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 20. As a direct and proximate result of the negligence of the Defendant, Marion Mattesky, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 21. By reason of the death of Plaintiff's decedent, Mark Trimble, the aforementioned survivors have incurred funeral and burial expenses, medical expenses, expenses of administration, and have sustained severe pecuniary loss. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, deceased, seeks damages from the Defendant, Marion Mattesky, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT II - SURVIVAL ACTION - NEGLIGENCE Ruth Trimble, as Administratrix of the Estate of Mark Trimble v. Marion Mattesky 22. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, 5 incorporates and makes part of this Count paragraphs 1 through 21 above, as if the same were set forth fully below. 23. In her capacity of personal representative of the Estate of Mark Trimble, Plaintiff, Ruth Trimble 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. 24. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, Marion Mattesky, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger she knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure her invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable 6 danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew orshould have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 25. As a direct and proximate result of the negligence of the Defendant, Marion Mattesky, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 26. As a direct and proximate result of the negligence of the Defendant, Michael Mattesky, Plaintiff's Decedent consciously suffered physical pain, mental pain, and anguish and a claim is made therefore. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, Marion Mattesky, in an amount in excess of the compulsory arbitration limits of Cumberland County. 7 COUNT III - WRONGFUL DEATH - NEGLIGENCE Ruth Trimble Administratrix of the Estate of Mark Trimble v. Michael Mattesky 27. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 26 above, as if the same were set forth fully below. 28. 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. 29. Plaintiff's Decedent, Mark Trimble, did not bring any other action during his lifetime and no other action for the death of said Decedent has been commenced against Defendant herein or any other person. 30. 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. 31. Defendant, Michael Mattesky, resided at and was in joint possession of the Premises located at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 32. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, Michael Mattesky, generally and more specifically as set forth below: 8 (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger he knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure his invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 9 33. As a direct and proximate result of the negligence of the Defendant, Michael Mattesky, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and leftlungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 34. By reason of the death of Plaintiff's decedent, Mark Trimble, the aforementioned survivors have incurred funeral and burial expenses, medical expenses, expenses of administration, and have sustained severe pecuniary loss. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, Michael Mattesky, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT IV - SURVIVAL ACTION - NEGLIGENCE Ruth Trimble, Administratrix of the Estate of Mark Trimble v. Michael Mattesky { 35. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 34 above, as if the same were set forth fully below. 36. In her capacity of personal representative of the Estate of Mark Trimble, Plaintiff, Ruth Trimble 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. 10 37. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, Michael Mattesky, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger he knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure his invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, 11 would traverse said Premises unaware of any potential dangerous conditions. 38. As a direct and proximate result of the negligence of the Defendant, Michael Mattesky, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 39. As a direct and proximate result of the negligence of the Defendant, Michael Mattesky, Plaintiff's Decedent consciously suffered physical pain, mental pain, and anguish and a claim is made therefore. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from.the Defendant, Michael Mattesky, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT V - WRONGFUL DEATH - NEGLIGENCE Ruth Trimble, as Administratrix of the Estate of Mark Trimble v. John E. Molison 40. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 39 above, as if the same were set forth fully below. 41. 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. 12 42. Plaintiff's Decedent, Mark Trimble, did not bring any other action during his lifetime and no other action for the death of said Decedent has been commenced against Defendant herein or any other person. 43. 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. 44. Defendant, John E. Molison, resided at and was in joint possession of the Premises located at 403 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 45. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, John E. Molison, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger he knew or should have known existed on said Premises; (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it 13 could kill, and/or injure his invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 46. As a direct and proximate result of the negligence of the Defendant,lohn E. Molison, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 47. By reason of the death of Plaintiff's decedent, Mark Trimble, the aforementioned survivors have incurred funeral and burial expenses, medical expenses, expenses of administration, and have sustained severe pecuniary loss. 14 WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, John E. Molison, in an amount in excess of the compulsory arbitration limits of Cumberland County. COUNT VI - SURVIVAL ACTION - NEGLIGENCE Ruth Trimble Administratrix of the Estate of Mark Trimble v. John E. Molison 48. Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, incorporates and makes part of this Count paragraphs 1 through 47 above, as if the same were set forth fully below. 49. In her capacity of personal representative of the Estate of Mark Trimble, Plaintiff, Ruth Trimble 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. 50. The occurrence of the aforesaid incident and the fatal injury resulting therefrom were caused directly and proximately by the negligence of the Defendant, John E. Molison, generally and more specifically as set forth below: (a) In failing to protect invitees, in particular, Plaintiffs' Decedent, Mark Trimble, from the dangerous conditions existing on Premises; (b) In failing to warn of the latent and/or hidden danger he knew or should have known existed on said Premises; 15 (c) In failing to reasonably inspect the rear of said Premises, so as to discover the dangerous conditions therein; (d) In failing to discover the dangerous instrumentality which existed in allowing a broken pick ax handle to lay around the premises where it could kill and/or injure his invitees, and, in particular, Plaintiffs' Decedent, Mark Trimble; (e) In failing to take reasonable precautions to protect invitees and, in particular, Plaintiffs' Decedent, Mark Trimble, from the foreseeable danger existing from the broken pick ax left laying on said Premises; and (f) In allowing the pick ax to remain in a dangerous condition when Defendant knew or should have known that said condition existed and that invitees, and in particular Plaintiffs' Decedent, Mark Trimble, would traverse said Premises unaware of any potential dangerous conditions. 51. As a direct and proximate result of the negligence of the Defendant, John E. Molison, Plaintiff's Decedent sustained mortal injuries including, but not limited to, a perforating chest wall injury, lacerations through the right and left lungs, lacerations through the right pulmonary artery and the main pulmonary artery and rib fractures, which subsequently resulted in his instant death on July 18, 2006. 16 52. As a direct and proximate result of the negligence of the Defendant, John E. Molison, Plaintiff's Decedent consciously suffered physical pain, mental pain; and anguish and a claim is made therefore. WHEREFORE, Plaintiff, Ruth Trimble, Administratrix of the Estate of Mark Trimble, seeks damages from the Defendant, John E. Molison, in an amount in excess of the compulsory arbitration limits of Cumberland County. Date: Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP By: Steve G. Held, Esquire I.D. No. 72663 1300 Linglestown Road Harrisburg, PA 17108 (717) 238-2000 Attorneys for Plaintiffs 17 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. Ruth Trimble, in her own right and as Administratrix of the Estate of Mark Trimble Date: ? - Z 3 ,- o ?' Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 1711Q Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3029 E-mail: Held@HHRLaw.com RUTH TRIMBLE, in her own right, IN THE COURT OF COMMON PLEAS and as Administratrix of the ESTATE CUMBERLAND COUNTY, PENNSYLVANIA OF MARK TRIMBLE, deceased, Plaintiffs : No. 4058-2008 V. MARION MATTESKY, MICHAEL MATTESKY, and JOHN E. MOLISON Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE On 10/6/08, 1 hereby certify that a true and correct copy of Plaintiffs' Complaint was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Kevin D. Rauch, Esquire SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL 1017 Mumma Road/Suite 300 Lemoyne, PA 17043 HANDLER, HENNING & ROSENBERG, LLP Dated: 10/6/08 Q-1th /? Stephenn e I.D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff(s) I { NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 Mot 'R'AL i d III IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RUTH TRIMBLE, in her own right, . and as Administratrix of the ESTATE of MARK TRIMBLE, Deceased, Plaintiffs vs Marion Mattesky, Michael Mattesky and John Molison, Defendants CIVIL DIVISION No. 4085-2008 TRANSCRIPT OF PROCEEDINGS OF DEPOSITION DEPOSITION OF: MICHAEL MATTESKY TAKEN BY: Defendants DATE: February 19, 2010 at 10:00 a.m. PLACE: Summers, McDonnell, Hudock, Guthrie & Skeel 100 Sterling Parkway Suite 306 Mechanicsburg, PA BY: Jodi L. Lambert, Court Reporter johnstoWn - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 2 1 2 APPEARANCES: 3 HANDLER, HENNING & ROSENBERG 4 BY: STEPHEN G. HELD, ESQUIRE 5 For - Plaintiffs 6 7 SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL BY: SETH T. BLACK, ESQUIRE 8 For - Defendants 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 3 1 INDEX 2 3 DEPONENT: PAGE: 4 Michael Mattesky 5 Examination by Attorney Black . . . . . . . 4 6 Examination by Attorney Held . . . . . . . 46 Re-Examination by Attorney Black . . . . . 55 7 8 9 10 11 EXHIBITS 12 13 Mattesky Exhibit Number 14 15 1 Copy of Photograph 24 16 2 Copy of Photograph 29 17 3 Copy of Photograph 34 18 4 Copy of Photograph 34 19 20 21 22 23 24 25 Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 27 1 horseshoes, just talk. Just guys hanging out in 2 the summertime having fun. 3 Q. Do you know how much beer Mark had to 4 drink? 5 A. No. I couldn't tell you. 6 Q. Do you recall? 7 A. We drank all day. 8 Q. All day from when you got -- 9 A. Whenever he got to my house we started 10 drinking, whether it was 11:00 o'clock in the 11 morning, 12:00 o'clock when he got there. I know 12 we were drinking before we went to get the mower. 13 So, you know, I don't know. We were drinking from 14 at least 12:00 o'clock on. 15 Q. And would that be the same for the 16 smoking marijuana? 17 A. Not as much as we were drinking. We 18 smoked a few joints over the day. 19 Q. Was anyone else with you while you were 20 smoking the joints and drinking the beer? I 21 A. John smoked one of them with us. I know 22 the one we smoked John smoked with us. I don't 23 know if anybody else was there when we smoked or 24 not. 25 Q. So you don't think Andy or Keith or Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 28 1 anybody was there at that point? 2 A. Andy didn't get there until after the 3 fact. I was already standing over top of him 4 yelling at him when Andy came in the gate. 5 Q. So you guys were grilling some salmon. 6 Where did you get the salmon? Did you have to go 7 to the store? 8 A. I guess Giant. 9 Q. I mean did you get it that day? Sorry, 10 it was a poor question. 11 A. Oh, I think I had it thawed out. 12 Q. So you put it on and I guess do you see 13 Mark fall? 14 A. No. I didn't even see him fall. 15 Q. Do you know if anybody saw him fall? 16 A. At that point it was only me and John. 17 We were off to the side. We were over here talking 18 at each other, and like I said, I had looked over 19 and saw him standing there at the grill doing 20 something and turned back around, and it couldn't 21 have been 30 seconds then he wasn't there. 22 (Pointing.) 23 Q. I got a couple more photos here. If you 24 could take a look at these and see if any of them 25 show where you were at when this happened? Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 32 1 that he was moving or tripped or anything of that 2 nature? 3 A. Well, I don't think he was just standing 4 there and just decided to fall over. I mean, so he 5 was either turning to walk to do something. He 6 would have had to be in motion. I mean, my opinion 7 he would have had to have been in motion. 8 Q. I want to talk about the pick axe for a 9 little bit. 10 A. Okay. 11 Q. At the time this occurred, is it depicted 12 here in Mattesky 1 or 2 sort of where the pick axe 13 was at? 14 A. Yeah. It was leaning right about where 15 that stick's at. (Pointing.) 16 Q. You're pointing to Mattesky 1; is that 17 right? 18 A. Yes. 19 Q. How long was it in that position? 20 A. I don't know. I had used it to do 21 something out front with the sidewalks. I think I 22 was busting up the sidewalk putting new sidewalk in 23 and I broke it, the broken the handle. I think I 24 had it leaning out front for a while then I brought 25 it back and had it leaning somewhere else in the Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg - 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 33 1 back, and then I moved it over to here. 2 Eventually it was supposed to go down 3 here to the shed is where it was headed. I was 4 getting it there in baby steps. Unfortunately if I 5 just took it down and put the damn thing away, I 6 wouldn't be sitting here. 7 Q. How long was the handle broken? 8 A. Oh, I don't know. Maybe a month, month 9 and a half until I moved it a couple times where it 10 was at. 11 Q. Whose pick axe is it? 12 A. It used to be my father's. It was mine. 13 The cops never gave it back. I guess it's theirs 14 now. 15 Q. I guess just so we're clear -- 16 A. I don't want it back. 17 Q. --when we say the pick axe was sitting, 18 well, it's depicted as the handle? 19 A. Well, the handle broke off. You know, 20 you have the steel part which is one part's pointy 21 and one part's-- You know, there was about this 22 much handle sticking up from that. 23 (Demonstrating.) That was leaning against here as 24 well and then the handle itself which was split I 25 had leaning there also. I guess I was going to try Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ocean City. Q. He helped you frame it? A. Yeah. Q. Did anybody else help you? A. I think I laid all the board myself. Well, my daughter helped a little bit. I have a picture of her holding a level, hammer, tool belt on. Q. Did Mark help you at all? A. No, he didn't help me build the deck at all. Q. Before this accident happened, how often would you and he be out on your deck? A. We were together every day. ATTORNEY HELD: If this helps any, we're not alleging anything's wrong with the deck. ATTORNEY BLACK: That will speed this up. ATTORNEY HELD: That's why I said that. No, no negligent condition of the deck. A. When I build stuff, I make it to last no matter what it is. I have a closet I built in my house and I guarantee the house will fall down before the closet comes down. This was actually designed to put a hot tub on. When we were Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 42 1 building it, we said this is for gold members. If 2 you weigh 350 or more pounds, it will still hold 3 you. 4 BY ATTORNEY BLACK: 5 Q. You had said that you guys were drinking 6 and using marijuana. Did you know if Mark had any 7 kind of drug or alcohol problem? 8 A. I know he took a lot of pills. 9 Q. Do you know if those pills were 10 prescription? 11 A. As far as drug and alcohol problem, I 12 don't think anybody that smokes pot has a drug 13 problem to be honest with you. 14 Q. Do you know if he was ever in any alcohol 15 or drug rehab program? 16 A. Not that I'm aware of. 17 Q. Do you know if he took any pills that 18 day, whether they be prescription or non 19 prescription? 20 A. He had prescription pills because if I 21 see, I don't know if it was this day or not either, 22 but I know he slept on the lawn chair for a couple 23 hours then got back up. I don't know if that was 24 that day or the day before. He took pills every 25 day. Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 . I , . NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 48 1 A. No, I really don't. 2 Q. Was he having any difficulty walking 3 before th e actual fall? 4 A. He's always a little lopsided. I mean, 5 like his equilibrium is kind of messed up. You 6 know what I mean? Not retarded like but -- 7 Q. He's a klutz? 8 A. Yeah, kind of. 9 Q. I'm the same way. Do you know how many 10 beers he had had before? 11 A. I don't know. 12 Q. Wasn't counting? 13 A. I don't know, yeah. 14 Q. Do you know how much alcohol the three of 15 you went through that day? 16 A. Oh -- 17 Q. Like a case? 18 A. Well, it was probably more than that. I 19 guarantee it was more than that. I don't know, on 20 a typical summer day from noon to midnight we could 21 go through a quarter keg. Like I said, we were 22 doing other stuff, you know, and there was breaks. 23 We just didn't sit there and do nothing but drink 24 and smoke for ten hours. You know, so you're 25 moving around. You're throwing shoes. You're i Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 . 1 I . NETWORK DEPOSITION SERVICES Transcript of Michael Mattesky 49 1 burning some of that off you. 2 You know, you go to a bar and you sit 3 there for two hours you can get a lot more drunk a 4 lot quicker than drinking for five hours when 5 you're moving around and being active. So I don't 6 really think anybody was intoxicated to the point 7 of, you know, to that point. 8 Q. And then when you first saw that Mark had 9 fallen, had he gone completely off the deck? 10 A. Yeah. He was completely off the deck. 11 Not far. I mean, if you're looking here, I mean, 12 it was probably a foot distance between his feet 13 and the step. It's probably about, you know, that 14 far. (Demonstrating.) And that's where the body 15 laid, lane. I'm trying to use proper English here. 16 Q. And then Mattesky 2, where was the grill 17 that night? Was it where it's located now in this 18 photo? 19 A. Well, you know, I don't think that that 20 chair-- See, I said earlier that, in this picture 21 I said earlier that the grill was down this way 22 further but now I'm not so sure. It might have 23 been where it sits right there. 24 Q. All right, and then you understand that 25 he fell and landed on the end of the pick axe; 1' 1' ¦+ Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 DEFENDANT'S ? EXHIBIT a a r . EXHIBIT Pq -- SLR.:.- Y • 0 1 ? lla? Y7 ?r j U1 i R? M I • • 0 6 f 1 • CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing MOTION FOR SUMMARY JUDGMENT has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 20th day of May, 2010. Stephen G. Held, Esquire Handler, Henning & Rosenberg, L.L.P. 1300 Linglestown Road Harrisburg, PA 17110 Michael Mattesky 403 North Bedford Street Carlisle, PA 17103 John E. Molison 403 North Bedford Street Carlisle, PA 17013 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: Kevin D. Rauch, Esquire Counsel for Defendant, Marion Mattesky E ? CA/f, L PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) -- ----------------------------------------------- CAPTION OF CASE n (entire caption must be stated in full) c' `= p" Ruth Trimble, in her own right, and as Administrix of the Estate of Mark Trimble, deceaso `,. N) vs. v, z? Marion Mattesky, Michael Mattesky, and John Molison No 4085 2008 _-- r -- .J 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Stephen G. Held, Esquire, 1300 Linglestown Road, Harrisburg, PA 17110 (Name and Address) (b) for defendants: Seth T. Black, Esq., 100 Sterling Parkway, Suite 306, Mechanicsburg, PA 17050 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: July 7, 2010 Signature Seth Hta Esq. Print your name Marion Mattesky Date: May 24, 2010 Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. RUTH TRIMBLE, in her own right, and IN THE COURT OF COMMON PLEAS OF as Administratrix of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA Mark Trimble, deceased, PLAINTIFF V. MARION MATTESKY, MICHAEL MATTESKY, AND JOHN MOLISON, DEFENDANTS 08-4085 CIVIL TERM BEFORE HESS, P.J. AND MASLAND, J. ORDER OF COURT AND NOW, this day of July, 2010, upon consideration of the motion for summary judgment filed by defendant, Marion Mattesky, being unopposed by the plaintiff, the motion, IS HEREBY GRANTED. Counts 1 and 2 of plaintiffs complaint, ARE HEREBY DISMISSED WITH PREJUDICE. By the Court, Albert H. Maslan , J. tephen G. Held, Esquire For Plaintiff Seth T. Black, Esquire For Marion Mattesky sal CS rria`tl l?C?. C rt ?Y? r aF cu David D. Buell �fe Renee 7 Simpson Prothonotary 1st Deputy Prothonotary 2! ILL Irene E. 9Ytorrow �irkS. Sohonage, ESQ = Solicitor 1750 2nd Deputy Prothonotary Office of the Prothonotary Cum6er[and County, cPennsylvania Qg -Logs CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 291H DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • Fa.,(717)240-6573