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LAPPAS, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorney number 25745 ATTORNEY FOR THE PLAINTIFF * * * * * * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY GREGORY C. BRYAN, 1312 Zimmerman Road Carlisle, P A 17013, Plain tiff NO: 04 - .J.JC>9 CIVIL ACTION -- LAW C,~L '-r€lUj v. JACK N, W AULK, JR., State Correctional Institute Camp Hill 2500 Lisburn Road Camp Hill, P A 17001 Defendants JURY TRIAL DEMANDED PRAECIPE FOR THE ISSUANCE OF WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons on behalf ofthe above named plaintiff and against the above named defendant. Please give the writ to the sheriff for service as follows: JACK N, WAULK, JR" SCI-Camp Hill, 2500 Lisbum Rd., Camp Hill, PA 17001 LL Y SUBMITTED, Date: May 6, 2004 o .tq 1n;~ ~. <rt ......... ~ 0 ~ ~ ;r) '8 ...() p:: -0 ~ --L:- ~; ~ ;. ;::' f(;j -< "f1'1 ~-- ::~j c;.,' -- <:.::; I!) ~~:~ ~~ >~:rn r::) .::::~ .!=- ~.;.z (n Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS GREGORY C. BRYAN 1312 ZIMMERMAN ROAD CARLISLE, PAl 7013 Plaintiff Court of Common Pleas Vs. No. 04-2109 CIVIL TERM In CivilAction-Law JACK N. W AULK, JR. STATE CORRECTIONAL CAMP HILL 2500 LlSBURN ROAD CAMP HILL, P A 17001 Defendant , To JACK N. W AULK, JR. You are hereby notified that GREGORY C, BRYAN, the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date MAY 11, 2004 CURTIS R. LONG Prothonotary <-Bv an_,,~P,~ Deputy , (' Attorney: Name: SPERO T. LAPPAS, ESQUIRE Address: 2080 LlNGLESTOWN ROAD HARRISBURG, PA 17110 Attorney for: Plaintiff Telephone: 71 7-540-91 70 Supreme Court ill No. 25745 .---. . 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F!: -;; ~ ~ ~ <.) -I-~~ --e-- --------1-1 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-02109 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BRYAN GREGORY C VS WAULK JACK N JR R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: WAULK JACK N JR but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of CENTRE County, Pennsylvania, to serve the within WRIT OF SUMMONS On June 18th , 2004 , this office was in receipt of the attached return from CENTRE Sheriff's Costs: Docketing Out of County Surcharge Dep Centre County 18.00 9.00 10.00 28.00 .00 65.00 06/18/2004 SERRATELLI s~ans s: /'~? ~-")/:;::---' ,..,/ -- - , ~-- , ~,. R. Thomas Kline ~ Sheriff of Cumbirland County SCHIFFMAN BROWN CAL Sworn and subscribed to before me this .2;:>.......t. day of 9-'<-< . .;l~o'l A.D. (}...... Q 7'Yc..iJJ'~I~' , I" r Prothonotary In The Court of Common Pleas of Cumberland County, Pennsylvania Gregory C. Bryan VS. Jack N. Waulk Jr. SERVE: same No. 04-2109 civil Now, 24 MAY 2004 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Centre County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .r~~<,~~ Sheriff of Cumberland County, PA Affidavit of Service Now, J'f..lt1.(.' 31 within to",t- O.Q SU""l.Mo/M.5 upon :S~ N-Wa.u.lk, JIt at SC-12 ~..JtVl~WI lSel\e~..L, G;1-h-~ G~l PenrtSVJ \ v~ni't1f by handing to :.) ~r ~ f1). wau \ k, :}f ,20_, at It). 0)) o'clock A: M. served the a 5i1'u/~ and made known to:)~ N. tr )~M I k I copy of the original UJ", (II ~.... ~ 1>15' 'SrL the contents thereof. So answers, /!~ I!jJ.l.<~"" Sworn and subscribed before nthiS4dayo~ ,200t/' (t / ~M:.~8ti1--eA~ Corinne Peters, Notary Public Bellefonte Bora, Centre County My Commission Expirea Sept. 5, 2005 Member, PennsyIYsniaAssocrallonof Notaries COSTS SERVICE /" ,.J7J MILEAGE 6? 0'0 AFFIDAVIT o?,rl) $ $;;l'i500 SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Sui te 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, Plaintiff : : 04-2109 : v. : JURY TRIAL DEMANDED : JACK WAULK, Defendant : : GREG BRYAN, : Plaintiff : v. : CARLISLE INVESTORS, INC., : MECHANICSBURG GF INVESTORS L. p, , : MECHANICSBURG GF INVESTORS CO., : CENTRAL PENNSYLVANIA HOSPITALITY, INC. : KENNETH KOCHENOUR, : Defendants : NO: 04-2693 JURY TRIAL DEMANDED NOTICE You have been sued in court, If you wish to defend the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 petition 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 LA\VYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 717-240-6200 NOTlCIA USTED LE HAS SIDO DEMANDADO EN EL TRIBUNAL, Si desea a1egar defensa a1guna alas reclamaciones expuestas en las paginas siguientes, usted debe ir a la audienca, Advertencia: de no comparecer ante dicho tribunal, su caso s{~ra decidido en su ausencia y, sin mas notificacion, el tribunal puede dictaminar un Decreto contra usted por cualquiera reclamacion o compensacion a1egada en lIa Peticion. Usted puede perder dinero 0 propiedad u otros derechos importantes a usted, LLEVE ESTOS DOCUMENTOS A SU ABOGADO EN SEGUlDA. SI NO TIENE UN ABOGADO 0 NO TIENE CON QUE PAGAR TAL SERVICIO, VISTE 0 LLAME A LA SIGUEINTE DIRECCION, COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 717-240-6200 SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Suite 201 Harrisburg, pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, Plaintiff 04-2109 v. JURY TRIAL DEMANDED JACK WAULK, Defendant GREG BRYAN, : Plaintiff : v. : CARLISLE INVESTORS, INC., : MECHANICSBURG GF INVESTORS L. P. , : MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY, INC. KENNETH KOCHENOUR, Defendants NO: 04-2693 JURY TRIAL DEMANDED COMPLAINT By: P.C. Esquire Ct. ID no. 25745 estown Road 17110-9670 SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 1 COMPLAINT AND NOW, comes the Plaintiff GREGORY BRYAN. by and through his attorney, SPERO T. LAPPAS, Esquire, and makes this Complaint against the above captioned Defendants, re,spectfully representing as follows: 1. The plaintiff is an adult indivicmal. 2. The Defendant Kenneth Kochenour is an adult individual, and the defendants CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P. , MECHANICSBURG GF INVESTORS CO. , CENTRAL PENNSYLVANIA HOSPITALITY, INC., are business entities existing and organized under the laws of this Commonwealth. These Defendants will be hereinafter collectively referred to as the "Holiday Inn Defendants." These defendants had (individually, jointly, severally, and/or in combination one with the others) ownership, maintenance, supervision, operational, and other control of business enterprises, restaurants, taverns. hotels, and public eating and drinking places known inter alig as the Mechanicsburg Holiday Inn, the Holiday Inn, Wanda's Bar and beach Club, Wanda's Deck and Beach Club, located at or around 5401 Carlisle Pike, Mechanicsburg, Pa. 17055, at all times relevant to the causes of action and facts stated in this Complaint. 3. These places of business offer lodging, food, drink, and entertainment to members of the general public. and did so at all SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 2 times relevant to the causes of action and facts stated in this Complaint. 4. At all times material to this caUE;e of action and for all acts, conduct and omissions described in this Complaint or otherwise material and relevant to the cause of action stated herein, the Defendants acted through agents and servants for whose acts, conduct and omissions Defendant is responsible and liable. 5. All such agents and servants of Defendants acted within the course and scope of their employment with respect to all acts, conduct and omissions described or referred to in this Complaint or otherwise relevant to this cause of action. 6. The Defendant Jack Waulk is an adult individual. 7. On or about June 27, 2002, the Plaintiff was a business invitees of the Holiday Inn Defendants at their place of business at 5401 carlisle Pike, Mechanicsburg, Pa. 8. At that time, date and place, the defendant Jack Waulk conunitted an assault and battery upon the Plaintiff while both Jack Waulk and the plaintiff were patrons and invitees of the Holiday Inn Defendants' place of business at 5401 Carlisle Pike, Mechanicsburg, Pa. and while both were pres;ent at and within those premises. 9. The aforementioned assault and battery was unlawful and unprivileged. It was the result of the negligence and/or recklessness and/or intentional misconduct of the Defendant Jack SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 3 Waulk. 10. As the direct, legal and proximate result of the aforementioned assault and battery the Plaintiff suffered and continues to suffer damages and injuries including the following, some or all of which are or may be continuing or permanent in nature: a. He sustained physical injuries, damages, and losses, including physica.l and mental pain and suffering; b. He incurred medical expenses and other expenses related to the incident; c. He has lost earnings and/or earning capacity; d. He was required to undergo medical care; e. He was required to incur costs and/or to expend money on medical care, health care, and incidental expenses; f. He was for a time partially disabled; g. He has suffered grave and SE~vere physical injuries including without limitation injuries to the face, head, eye, and other portions of his body; h. He has suffered great and severe physical and emotional pain, suffering and upset; i. He has been prevented from taking part in and performing the activities of employment, home life, SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 4 personal life and social and recreational activities; j . He has been forced to underg-o great and substantial inconvenience, aggravation" and loss of life I s pleasures; k. He was required to undergo medical and health care and treatment and incur expenses therefore from inter alia the following providers of medical and health care: Hershey Medical Center; 1. He lost the sight and use of his right eye; m. He has suffered the permanent disability associated with the loss of sight and use of one eye; n. He has become increasingly vulnerable to the risk of total blindness. 11. This incident is the direct, legal and proximate result of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn Defendants, whose negligence, carelessness, lack of due care, recklessness, and other wrongful conduct were substantial contributing factors and proximate causes of the assault upon the Plaintiff. 12. The Plaintiff I s damages, inj uries and losses as described elsewhere in this Complaint, are the direct, legal and proximate results of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 5 Defendants, whose negligence, carelessness, lack of due care, recklessness, and other wrongful conduct were substantial contributing factors and proximate causes of those damages, injuries and losses. 13. The negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn Defendants include inter alia the following: a. Those Defendants failed to have their premises under proper maintenance and control. b. Those Defendants failed to make necessary observations and inspections and failed to correct dangerous conditions within their business premises. c. Those Defendants failed to maintain their business premises in such a condition as to keep those premises free from dangerous conditions. d. Those Defendants failed to take reasonable, adequate and sufficient care! to prevent assaultive behavior by patrons within their premises. e. Those Defendants failed to take reasonable, adequate and sufficient care to prevent assaults upon their patrons and invitees. f. Those Defendants failed to take reasonable, adequate and sufficient care to provide of proper SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 6 security within their premises. g. Those Defendants failed to take reasonable, adequate and sufficient can! to respond to breaches of the peace within their premises. h. Those Defendants failed to take reasonable, adequate and sufficient care to provide proper and sufficient staff to re:spond adequately and appropriately to breaches of the peace within their premises. i. Those Defendants failed to provide their customers and invitees with a safe place in which to obtain the food, drink, and entertainment which the Holiday Inn Defendants offlered to members of the general public and to this Plaintiff in particular. j . Those Defendants violated the law of this Commonwealth by serving a visibly intoxicated patron. 14. All items of damages, injuries and losses described elsewhere in this complaint are the direct, legal, and proximate result of the negligence, carelessness, recklessness and other wrongful acts of the defendants named in the captions of this Complaint. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 7 COUNT 1 GREG BRYAN v. JACK WAULK 15. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 16. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requir;[ng arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 8 COUNT 2 GREG BRYAN v. CARLISLE INVES:rORS. INC. 17. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 18. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the deJ:endant in an amount in excess of the jurisdictional amount requir:[ng arbi tration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 9 COUNT 3 GREG BRYAN v. MECHANICSBURG GF I.NVESTORS L. P. 19. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 20. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiri.ng arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 10 COUNT 4 GREG BRYAN v. MECHANICSBURG GF I'NVESTORS CO. 21. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 22. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 11 COUNT 5 GREG BRYAN v. CENTRAL PENNSYLVANIA HOSPITALITY, INC. 23. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 24. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbi tration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 12 COUNT 6 GREG BRYAN v. KENNETH KOCHENOUR 25. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 26. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the det'endant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 13 COUNT 7 GREG BRYAN v. ALL DEFENL~ 27. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 28. The Plaintiff's injuries, losses, and damages as stated elsewhere in this complaint are the joint and several responsibility of the defendants named in the captions of this Complaint. 29. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against all defendants jointly and severally in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 14 RESPECTFULLY SUBMITTED, By: FFMAN, BROWN AND CALHOON, P.C. 17110-9670 August 9, 2004 SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 15 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Sui te 201 Harrisburg, pennsylvania 17110-9670 Telephone (717) 540-9170 Fax (717) 540-5481 By: SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 slappas@ssbc-law.com VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL 1. I verify that the averments in the foregoing COMPLAINT are based upon the information which has been gathered by my counsel in preparation of this lawsuit. 2. The language of this COMPLAINT is that of counsel and is not mine. 3. I have read the COMPLAINT and, to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information, and belief. 4. To the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this verification. 5. I understand that intentional falEle statements herein are made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsifications made to authorities. ~~ . t ~ /p I J CERTIFICATE fF SErVICE I hereby certify that on 20 (7 l at- _ I served a true copy of the attached document upon the person(s) named below by mailing a copy addressed as follows, postage pre-paid, deposited into the U. S. Mail at Harrisburg, Pa. JACK WAULK JR INSTITUTIONAL NUMBER FH5~64 SCI-ROCKVIEW BELLEFONT, PA.~6823 BROOKS FOLAND, ESQUIRE 305 NORTH FRONT STREET PO BOX 999 HARRISBURG, PA. ~7~08-0999 RESPECTFULLY SUBMITTED, P.C. 17110-9670 "....... ~ o -'n ::;:' h"i :TI ~,()t'n i~J ~j!: :::;~ ':-~5 "":'rn ~;,~ ,)::r>o ~J :.< o S'? SPERO T, LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P.C. 2080 Linglestown Road Sui te 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, Plaintiff : : 04-2109 : v. : JURY TRIAL DEMANDED : JACK WAULK, Defendant : : GREG BRYAN, Plaintiff : v. CARLISLE INVESTORS, INC., : MECHANICSBURG GF INVESTORS L. P, , : MECHANICSBURG GF INVESTORS CO., : CENTRAL PENNSYLVANIA HOSPITALITY, INC. : KENNETH KOCHENOUR, : Defendants NO: 04-2693 JURY TRIAL DEMANDED NOTICE You have been sued in court, If you wish to defend the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 petition 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 TillS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 71 7-240-6200 NOTlCIA USTED LE HAS SIDO DEMANDADO EN EL TRIBUJ\fAL, Si desea alegar defensa alguna a las reclamaciones expuestas en las paginas siguientes, usted debe ir a la audienca, Advertencia: de no comparecer ante dicho tribunal, su caso sera decidido en su ausencia y, sin mas notificacion, el tribunal puede dictaminar un Decreto contra 'LIsted por cualquiera reclamacion o compensacion alegada en lla Peticion. Usted puede perder dimlro 0 propiedad u otros derechos importantes a usted, LLEVE ESTOS DOCUMENTOS A SU ABOGADO EN SEGUIDA. SI NO TIENE UN ABOGADO 0 NO TIENE CON QUE P AGAR TAL SERVlCIO, VlSTE 0 LLAME A LA SIGUEINTE DIRECCION, COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 717-240-6200 SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Suite 201 Harrisburg, pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLE'AS OF CUMBERLAND COUNTY, PENNSYL,VANIA GREG BRYAN, Plaintiff 04-2109 v. JURY TRIAL DEMANDED JACK WAULK, Defendant GREG BRYAN, Plaintiff v. CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P., MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY, INC. KENNETH KOCHENOUR, Defendants NO: 04-2693 JURY TRIAL DEMANDED COMPLAINT SE ROWN AND CALHOON, P. C. By: 're . Sup eme Ct. I'D no. 25745 2 0 nglestown Road Sui te 201 Harrisburg, PA 17110-9670 (717) 540-9170 ATTORNEYS FOR THE PLAINTIFF SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 1 COMPLAINT AND NOW, comes the Plaintiff GREGORY BRYAN, by and through his at torney, SPERO T. LAPPAS, Esquire, and makes this Complaint against the above captioned Defendants, respectfully representing as follows: 1. The Plaintiff is an adult individu.al. 2. The Defendant Kenneth Kochenour is an adult individual, and the defendants CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P. , MECHANICSBURG GF INVESTORS CO. , CENTRAL PENNSYLVANIA HOSPITALITY, INC., are business entities existing and organized under the laws of this Commonwea.lth. These Defendants will be hereinafter collectively referred to as the "Holiday Inn Defendants." These defendants had ( individually, jointly, severally, and/or in combination one with the others) ownership, maintenance, supervision, operational, and other control of business enterprises, restaurants, taverns, hotels, and public eating and drinking places known inter al:~ as the Mechanicsburg Holiday Inn, the Holiday Inn, Wanda's Bar and beach Club, Wanda's Deck and Beach Club, located at or around 5401 Carlisle Pike, Mechanicsburg, Pa. 17055, at all times relevant to the causes of action and facts stated in this Complaint. 3. These places of business offer lodging, food, drink, and entertainment to members of the general pu.blic, and did so at all SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 2 times relevant to the causes of action and facts stated in this Complaint. 4. At all times material to this CaUSE! of action and for all acts, conduct and omissions described in this Complaint or otherwise material and relevant to the cause of action stated herein, the Defendants acted through agents and servants for whose acts, conduct and omissions Defendant is responsible and liable. 5. All such agents and servants of Defendants acted within the course and scope of their employment wi'th respect to all acts, conduct and omissions described or referred to in this Complaint or otherwise relevant to this cause of action" 6. The Defendant Jack Waulk is an adult individual. 7. On or about June 27, 2002, the Plaintiff was a business invitees of the Holiday Inn Defendants at their place of business at 5401 carlisle Pike, Mechanicsburg, Pa. 8. At that time, date and place, the defendant Jack Waulk committed an assault and battery upon the Plaintiff while both Jack waulk and the plaintiff were patrons and invitees of the Holiday Inn Defendants' place of business at 5401 Carlisle pike, Mechanicsburg, Pa. and while both were present at and within those premises. 9. The aforementioned assault and battery was unlawful and unprivileged. It was the result of the negligence and/or recklessness and/or intentional misconduct of the Defendant Jack SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 3 waulk. 10. AS the direct, legal and proximate result of the aforementioned assault and battery the Plaintiff suffered and continues to suffer damages and injuries including the following, some or all of which are or may be continuing or permanent in nature: a. He sustained physical injuries, damages, and losses, including physical and mental pain and suffering; b. He incurred medical expenses and other expenses related to the incident; c. He has lost earnings and/or earning capacity; d. He was required to undergo medical care; e. He was required to incur costs and/or to expend money on medical care, heal'th care, and incidental expenses; f. He was for a time partially disabled; g. He has suffered grave and severe physical injuries including without limitation injuries to the face, head, eye, and other portions of his body; h. He has suffered great and severe physical and emotional pain, suffering and upset; i. He has been prevented from taking part in and performing the activities o:E employment, home life, SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 4 personal life and socia.l and recreational activities; j . He has been forced to undergo great and substantial inconvenience, aggravation, and loss of life's pleasures; k. He was required to undergo medical and health care and treatment and incur expenses therefore from inter alia the following providers of medical and health care: Hershey Medical Center; 1. He lost the sight and use of' his right eye; m. He has suffered the permanen1t disability associated with the loss of sight and llse of one eye; n. He has become increasingly vulnerable to the risk of total blindness. 11. This incident is the direct, legal and proximate result of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn Defendants, whose negligence, carelessness, lack of due care, recklessness, and other wrongful conduct were substantial cont:ributing factors and proximate causes of the assault upon the Plaintiff. 12. The Plaintiff's damages, injuries and losses as described elsewhere in this Complaint, are the direct, legal and proximate results of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 5 Defendants, whose negligence, carelessnesEl, lack of due care, recklessness, and other wrongful conduct were substantial contributing factors and proximate causes of those damages, injuries and losses. 13. The negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn Defendants include inter alia the following': a. Those Defendants failed to have their premises under proper maintenance and control. b. Those Defendants failed to make necessary observations and inspectiom; and failed to correct dangerous conditions wit:hin their business premises. c. Those Defendants failed to maintain their business premises in such a condition as to keep those premises free from dangerous conditions. d. Those Defendants failed to take reasonable, adequate and sufficient CarE! to prevent assaultive behavior by patrons within their premises. e. Those Defendants failed to take reasonable, adequate and sufficient care to prevent assaults upon their patrons and invitees. f. Those Defendants failed to take reasonable, adequate and sufficient care to provide of proper SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 6 security within their premises. g. Those Defendants failed 'to take reasonable, adequate and sufficient care to respond to breaches of the peace within their pr'3mises. h. Those Defendants failed to take reasonable, adequate and sufficient care to provide proper and sufficient staff to respond adequately and appropriately to breaches of the peace within their premises. i. Those Defendants failed to provide their customers and invitees with a safe pLace in which to obtain the food, drink, and ent~ertainment which the Holiday Inn Defendants offe,red to members of the general public and to this plaintiff in particular. j . Those Defendants violated the law of this Commonwealth by serving a visibly intoxicated patron. 14. All items of damages, injuries and losses described elsewhere in this complaint are the direct, legal, and proximate result of the negligence, carelessness, recklessness and other wrongful acts of the defendants named in the captions of this Complaint. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 7 COUNT 1 GREG BRYAN v. JACK WAULK 15. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 16. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the def,endant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 8 COUNT 2 GREG BRYAN v. C'.ARLISLE INVESTORS. INC. 17. All previous paragraphs of this complaint are hereby incorporated into this count by reference thereto. 18. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 9 COUNT 3 GREG BRYAN v. MECHANICSBURG GF INVESTORS L.P. 19. All previous paragraphs of this Complaint are hereby incorporated into this count by reference tl1ereto. 20. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 10 COUNT 4 GREG BRYAN v. MECHANICSB[JRG GF INVESTORS CO. 21. All previous paragraphs of this Complaint are hereby incorporated into this count by reference tl1ereto. 22. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 11 COUNT 5 GREG BRYAN v. CENTRAL PENNSYLVANIA HOSPITALITY. INC. 23. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 24. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 12 COUNT 6 GREG BRYAN v. KENNETH KOCHENOUR 25. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 26. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 13 COUNT 7 GREG BRYAN v. ALL DEFENDA~ 27. All previous paragraphs of this Complaint are hereby incorporated into this count by reference tl1ereto. 28. The plaintiff's injuries, losses, and damages as stated elsewhere in this Complaint are the joint and several responsibility of the defendants named in the captions of this Complaint. 29. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against all defendants jointly and severally in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 14 Y SUBMITTED, SCHIFFMAN, BROWN AND CALHOON, P. C. By: 'AS, Esquire reme III no. 25745 nglestown Road S' 201 Harrisburg, PA 17110-9670 (717) 540-9170 ATTORNEYS FOR THE PLAINTIFF August 9, 2004 SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 15 SERRATELLI. SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Suite 201 Harrisburg, pennsylvania 17110-9670 Telephone (717) 540-9170 Fax (717) 540-5481 By: SPERO T. LAPPAS, Esquire pa. Supreme court IV no. 25745 slappas@ssbc-law.com VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL 1. I verify that the averments in the foregoing COMPLAINT are based upon the information which has been ga-thered by my counsel in preparation of this lawsuit. 2. The language of this COMPLAINT is that of counsel and is not mine. 3. I have read the COMPLAINT and, to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information, and belief. 4. To the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this verification. 5. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsifications made to authorities. ~ . . I hereby CERTIFICATE certify that on 8 I served a true copy of the attached document upon the person(s) named below by mailing a copy addressed as follows, postage pre-paid, deposited into the U. S. Mail at Harrisburg, Pa. JACK WAULK JR INSTITUTIONAL NUMBER FH5164 SCI-ROCKVIEW BELLEFONT, PA.16823 BROOKS FOLAND, ESQUIRE 305 NORTH FRONT STREET PO BOX 999 HARRISBURG, PA. 17108--0999 SUBMITTED, SHIFFMAN, BROWN AND CALHOON, P. C. By: \0 17110--9670 ~ ..., C:',) C,) ~' C 'T; :-:;j C) Fil':.g '-'lnl t~~;' .-L.--l' I ;~ ') -'n ,), ':j -." -< <:'? U:I SPERO T. LAPPAS, Esquire Serratelli, Schiffman, Brown and Calhoon, P, C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania 171 10 (717) 540-9170 ATTORNEY FOR THE PLAINTIFF IN THE COURT OF COMMON }'LEAS OF CUMBERLAND COUNTY GREGORY C, BRYAN, Plaintiff v. NO: 04-2109 CIVIL ACTION -- LAW JACK N. WAULK, JR., JURY TRIAL DEMANDED Defendant MOTION FOR SANCTIONS AND TO ENFORCE DISCOVERY I. On June 10, 2004, the Plaintiff served upon Carlisle Investors, lnc" Mechanicsburg G,F. Investors, and Central Pennsylvania Hospitality, Inc" a Records Deposition Notice and Subpoena requiring them to produce certain records. A true and correct copy of the Records Deposition Subpoena and Notice are attached hereto as Exhibit I, 2, After the service of the subpoena, Plaintiff instituted a civil action against the witnesses based upon negligence and other wrongdoing, A true and correct copy of the Complaint against Jack N. Waulk and the Carlisle Investors Group is attached hereto as Exhibit 2, 3. To date, the witnesses have failed and refused to comply with their subpoena. SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P,c. SPERO T LAPPAS, Esquire Page 1 4, Plaintiffs Counsel has communicated with counsel for the witnesses concerning this failure, but the matter has not been resolved, Copies of correspondence are attached collectively as Exhibit 3. 5, The information sought by the Subpoena is relevant and discoverable, WHEREFORE, the Defendant requests that this Court issue an Order requiring the witnesses to comply with the Subpoena and granting attorneys fees to the Plaintiff for the litigation of this Motion. RESPECTFULLY SUBMITTED, DMC12Vlor PERO 1. r AS, ESQUIRE 080 Lin .stown Road H ' urg,PA 17110 (717) 540-9170 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P,c. SPERO T LAPPAS, Esquire Page 2 SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRA TELLI , SCHIFFMAN, BROWN AND CALHOON, P.C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PI~EAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, Plaintiff 04-2109 v. JURY TRIAL DEMANDED JACK WAULK, Defendant NOTICE TO TAKE RECORDS DEPOSITION TO: All parties and their counsel and Custodian of Records PLEASE TAKE NOTICE that pursuant to the Rules of Civil Procedure the following depositions upon oral exami.nation will be taken by the parties named below, for the purposes of discovery and/or use at trial, ' before a Notary Public or other person authorized to administer oaths, on all matters not privileged which are relevant and material to the issues and subject matt:er involved in the above action; and the witnesses are directed to appear at the designed time and place and submit to examination under oath. WITNESS: Custodian of Records CENTRAL PENNSYLVANIA HOSPITALITY, INC PLACE OF DEPOSITION: 2080 LINGLESTOWN ROAD Suite 201 Harrisburg, Pa. 17110 DATE OF DEPOSITION: JUNE 17, 2004 TIME OF DEPOSITIONS: 10:00 AM PARTY TAKING DEPOSITION: plaintiff The witness is hereby directed to brinsr to the deposition the following things: SERRA TELLI , SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 1 a. copies of all liquor licenses held by the witness for all periods of time from January ~, 2002 through the present date. b. Copies of all investigative reports, records or other documents relating to the assault of Jack waulk upon Greg Bryan, on or about June 2002, at or around Wanda's, 540~ CarlislE3 pike, MechanicSburg, Pa. c. Copies of records identifyin(j the employees witness who worked at !540~ Carlisle Mechanicsburg, Pa. on June 2'7, 2002. of the Pike, d. Copies of personnel files and records for all employees of the witness who had security responsibilities for the premises located at 540~ Carlisle pike, Mechanicsburg, during June 2002. e. Copies of all records, reports or documents in your possession or available to you which mention Jack Waulk. f. copies of all records, reports or documents in your possession or available to you which mention Greg Bryan. In lieu of personal appearance at the time, date, and place stated above, the witness may comply with this subpoena by sending or delivering to the office of Spero T. Lappas" Esquire all requested material along with the executed original of the attached Affidavit of Records Custodian. However, if production of the documents is to be made in lieu of personal appearance, l:hese documents must be received prior to the date scheduled for the deposition. SE P.C. By: PPAS, Bsquire upr e Ct. ID no. 25745 208 'glestown Road Harrisburg, PA 17110-9670 (717) 540-9170 ATTORNEYS FOR THE PLAINTIFF SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 2 COMMONWEALTH OF PENNSYLvANIA COUNTY OF CUMBERLAND Gregory Bryan, Plaintiff FileNo. 04-2109 v. Civil Action - Law Jack N, Wau~k, Jr., Defendant Jury Trial Demanded SUBPOENA TO PRODUCE RECORDS TO: Central PennsvlVAn;R Hn~p;~~l;rYJ Tnr 5401 Carlisle Pike Mechanicsburg, PA . 1, You are ordered by the court to come to 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (Specify courtroom or other place) , Dauphin County,Pennsylvania,onJune 17.2004 o'clock, A M., to testify on behalf of Ph in H ff at Harrisbur~ at 10:00 in the above case, and to remain until excused. 2. And bring with you the following: A 11 r h i n g" Ii p" r d h p Ii .." 0.... ~ r he Ii Not i ~ Q of Records Deposition. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject ti the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but nc limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa. R. C. P. No. 234.2(a): Name: SPPT" 'I' T ~rp"'E, Esq Address: 2080 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 540-9170 Supreme Court 10 # 25745 Prothonotary/Clerk, Civil Do si ~n~p-e 77z~/JA~ G Date: (Yl';:}1 :2L/ ~{)c>tj I Seal of the Court ~ Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings connection vlith depositions and belore arbitrators, masters, commissioners, etc, in compliance with Pa, R p. No, 234, ',If a subpoena for a production of documents, records or things is desired, complete par2,grc 2, (Eli. 7, SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRA TELL I, SCHIFFMAN, BROWN AND CALHOON, P. C, 2080 Linglestown Road Sui te 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSY'LVANIA GREG BRYAN, Plaintiff : : 04-2109 : v. : JURY TRIAL DEMANDED : JACK WAULK, Defendant : : GREG BRYAN, : Plaintiff : v. : CARLISLE INVESTORS, INC., : MECHANICSBURG GF INVESTORS L, P. , : MECHANICSBURG GF INVESTORS CO., : CENTRAL PENNSYLVANIA HOSPITALITY, INC, : KENNETH KOCHENOUR, : Defendants : NO: 04-2693 JURY TRIAL DEMANDED NOTICE You have been sued in court, If you wish to defend the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 petition 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 HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 717-240-6200 NOTICIA USTED LE HAS SIDO DEMANDADO EN EL TRIBUNAL, Si desea a1egar defensa a1guna alas reclamaciones expuestas en las paginas siguientes, usted debe ir a la audienca. Advertencia: de no comparecer ante dicho tribunal, su caso sera decidido en su ausencia y, sin mas notificacion, el tribunal puede dictaminar un Decreto contra usted por cualquiera reclamacion o compensacion a1egada en lla Peticion. Usted puede perder dinero 0 propiedad u otros derechos importantes a usted, LLEVE ESTOS DOCUMENTOS A SU ABOGADO EN SEGUIDA. SI NO TlENE UN ABOGADO 0 NO TlENE CON QUE PAGAR TAL SERVICIO, VISTE 0 LLAME ALA SIGUEINTE DIRECCION. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 717-240-6200 SPERO T. LAPPAS, Esquire Pa. supreme Court ID no, 25745 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, f'. C. 2080 Linglestown Road Suite 201 Harrisburg, pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLNANIA GREG BRYAN, Plaintiff : 04-2109 v. JURY TRIAL DEMANDED JACK WAULK, Defendant : : GREG BRYAN, : Plaintiff v. : CARLISLE INVESTORS, INC., : MECHANICSBURG GF INVESTORS L.P., MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY, INC. KENNETH KOCHENOUR, : Defendants : NO: 04-2693 JURY TRIAL DEMANDED COMPLAINT BROWN AND CALHOON, P. C. By: Bsquire Ct. III no. 25745 estown Road 1n10-9670 SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 1 COMPLAINT AND NOW, comes the Plaintiff GREGORY BRYAN, by and through his attorney, SPERO T. LAPPAS, Esquire, and makes this Complaint against the above captioned Defendants, respectfully representing as follows: 1. The Plaintiff is an adult individ~al. 2. The Defendant Kenneth Kochenour is an adult individual, and the defendants CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P. , MECHANICSBURG GF INVESTORS CO. , CENTRAL PENNSYLVANIA HOSPITALITY, INC., are business entities existing and organized under the laws of this Commonwealth. These Defendants will be hereinafter collectively referred to as the "Holiday Inn Defendants." These defendants had ( individual! y , jointly, severally, and/or in combination one with the others) ownership, maintenance, supervision, operational, and other control of business enterprises, restaurants, taverns, hotels, and public eating and drinking places known inter alia as the Mechanicsburg Holiday Inn, the Holiday Inn, Wanda's Bar and beach Club, wanda's Deck and Beach Club, located at or around 5401 Carlisle pike, Mechanicsburg, Pa. 17055, at all times rE!levant to the causes of action and facts stated in this Complaint. 3. These places of business offer lodging, food, drink, and entertainment to members of the general public, and did so at all SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 2 times relevant to the causes of action and facts stated in this Complaint. 4. At all times material to this cause of action and for all acts, conduct and omissions described in this Complaint or otherwise material and relevant to the cause of action stated herein, the Defendants acted through agents and servants for whose acts, conduct and omissions Defendant is re!sponsible and liable. 5. All such agents and servants of Defendants acted within the course and scope of their employment with respect to all acts, conduct and omissions deSlcribed or referred to in this Complaint or otherwise relevant to this cause of action. 6. The Defendant Jack Waulk is an arnllt individual. 7. On or about June 27, 2002, the Plaintiff was a business invitees of the Holiday Inn Defendants at 'their place of business at 5401 carlisle pike, Mechanicsburg, Pa. 8. At that time, date and place, the defendant Jack Waulk committed an assault and battery upon the Plaintiff while both Jack waulk and the plaintiff were patrons and invitees of the Holiday Inn Defendants' place of business at 5401 Carlisle pike, Mechanicsburg, Pa. and while both were preElent at and within those premises. 9. The aforementioned assault and battery was unlawful and unprivileged. It was the result of the negligence and/or recklessness and/or intentional misconducl: of the Defendant Jack SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 3 Waulk. 10. As the direct, legal and proximate result of the aforementioned assault and battery the plaintiff suffered and continues to suffer damages and injuries including the following, some or all of which are or may be continuing or permanent in nature: a. He sustained physical injuries, damages, and losses, including physical and mental pain and. suffering; b. He incurred medical expenses and other expenses related to the incident; c. He has lost earnings and/or earning capacity; d. He was required to undergo medical care; e. He was required to incur costs and/or to expend money on medical care, health care, and incidental expenses; f. He was for a time partially disabled; g. He has suffered grave and severe physical injuries including without limitation injuries to the face, head, eye, and other portions of his body; h. He has suffered great and severe physical and emotional pain, suffering and upset; i. He has been prevented from taking part in and performing the activities of employment, home life, SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 4 personal life and social and recreational activities; j . He has been forced to undergo great and substantial inconvenience, aggravation, and loss of life's pleasures; k. He was required to undergo medical and health care and treatment and incur expenses therefore from inter alia the following providers of medical and health care: Hershey Medical Center; 1. He lost the sight and use o:E his right eye; m. He has suffered the permanent disability associated with the loss of sight and use of one eye; n. He has become increasingly vulnerable to the risk of total blindness. 11. This incident is the direct, legal and proximate result of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn Defendants, whose negligence, carelessness, lack of due care, recklessness, and other wrongful conduct were substantial contributing factors and proximate causes of the assault upon the Plaintiff. 12. The Plaintiff I s damages, injuries and losses as described elsewhere in this Complaint, are the direct, legal and proximate results of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 5 Defendants, whose negligence, carelessness, lack of due care, recklessness, and other wrongful cond~ct were substantial contributing factors and proximate causes of those damages, injuries and losses. 13. The negligence, carelessness" lack of due care, recklessness, and other wrongful conducl: of the Holiday Inn Defendants include inter alia the followin~:J: a. Those Defendants failed to have their premises under proper maintenance and control. b. Those Defendants failed to make necessary observations and inspections and failed to correct dangerous conditions within their business premises. c. Those Defendants failed to maintain their business premises in such a condit:ion as to keep those premises free from dangerous conditions. d. Those Defendants failed to take reasonable, adequate and sufficient care to prevent assaultive behavior by patrons within their premises. e. Those Defendants failed to take reasonable, adequate and sufficient care to prevent assaults upon their patrons and invitees. f. Those Defendants failed to take reasonable, adequate and sufficient care to provide of proper SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 6 security within their premises. g. Those Defendants failed to take reasonable, adequate and sufficient care to respond to breaches of the peace within their premises. h. Those Defendants failed to take reasonable, adequate and sufficient carE~ to provide proper and sufficient staff to reslpond adequately and appropriately to breaches of the peace within their premises. i. Those Defendants failed to provide their customers and invitees with a safe place in which to obtain the food, drink, and en'tertainment which the Holiday Inn Defendants offE~red to members of the general public and to this Plaintiff in particular. j . Those Defendants violated the law of this commonwealth by serving a visibly intoxicated patron. 14. All items of damages, injuries and losses described elsewhere in this complaint are the direcl:, legal, and proximate result of the negligence, carelessness, recklessness and other wrongful acts of the defendants named in the captions of this Complaint. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 7 COUNT 1 GREG BRYAN v. JACK WAULK 15. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 16. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the def'endant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 8 COUNT 2 GREG BRYAN v. CARLISLE INVESTORS. INC. 17. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 18. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbi tration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 9 COUNT 3 GREG BRYAN v. MECHANICSBURG GF INVESTORS L.P. 19. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 20. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the def'endant in an amount in excess of the jurisdictional amount requiri,ng arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 10 COUNT 4 GREG BRYAN v. MECHANICSBURG GF I~NVESTORS CO. 21. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 22. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbi tration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 11 COUNT 5 GREG BRYAN v. CENTRAL PENNSYLVANIA HOSPITALITY. INC. 23. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 24. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbi tration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Es:quire Page 12 COUNT 6 GREG BRYAN v. KENNETH KOCHENOUR 25. All previous paragraphs of this complaint are hereby incorporated into this count by reference thereto. 26. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the det'endant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 13 COUNT 7 GREG BRYAN v. ALL DEFENDANTS 27. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 28. The Plaintiff's injuries, losses, and damages as stated elsewhere in this Complaint are the joint and several responsibility of the defendants named in the captions of this Complaint. 29. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against all defendants jointly and severally in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 14 RESPECTFULLY SUBMITTED, SE FFMAN, BROWN AND CALHOON, P. C. By: 17110-9670 August 9, 2004 SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 15 SERRA TELLI , SCHIFFMAN, BROWN AND CALHOON, P.C. 2080 Linglestown Road Suite 201 Harrisburg, pennsylvania 17110-9670 Telephone (717) 540-9170 Fax (717) 540-5481 By: SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 slappas@ssbc-Iaw.com VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL 1. I verify that the averments in the foregoing COMPLAINT are based upon the information which has been gathered by my counsel in preparation of this lawsuit. 2. The language of this COMPLAINT is that of counsel and is not mine. 3. I have read the COMPLAINT and, to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information, and belief. 4. To the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this verification. 5. I understand that intentional falBe statements herein are made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsifications made to authorities:. .~I~ .~: I hereby certify that on I served a true copy of the attached document upon the person(s) named below by mailing a copy addressed as follows, postage pre-paid, deposited into the U. S. Mail at Harrisburg, Pa. JACK WAULK JR INSTITUTIONAL NUMBER FH5164 SCI-ROCKVIEW BELLE FONT , PA.16823 BROOKS FOLAND, ESQUIRE 305 NORTH FRONT STREET PO BOX 999 HARRISBURG, PA. 17108-0999 RESPECTFULLY SUBMITTED, P.C. 17110-9670 ATTORNEYS AT LAW ~ THOMAS, THOMAS & HAFER~ LLP www.tthlaw.com 305 North Front Street, PD. Box 999, Harrisburg, PA 17108 Phone: (717) 237-7100 Fax: (717) 237-7105 Brooks R. Foland (717) 255-7626 bfoland@tthlaw.com September 8, 2004 Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 Re: Bryan v. Carlisle Investors, Inc. c/o Holiday Inn" et al. Our File 735-41031 Dear Spero: I am in receipt of your letter dated September 3, 2004 in the above matter. Please be advised that the Holiday Inn Defendants would gladly respond to your discovery provided that it is submitted to them in the appropriate manner-i.e. written interrogatories or request for production of documents as is required for parties under the Pennsylvania Rules of Civil Procedure. I do not believe that attempting at this juncture to enforce a previously issued subpoena on entities which are now parties to the civil litigation is appropriate and is certainly not the most effective means by which to obtain answers to your questions or documents you wish to see. Again, I recommend and urge you to submit your discovery requests in a proper form and we will gladly respond to them in kind. I am hopeful that we can avoid motion practice, as that is absolutely avoidable here. Very truly yours, ~TU~~~ 8'00:' R. ;td BRFjcmp299815.4 Bethlehem Office . 3400 Bath Pike, Suite 30 Pittsburgh Office . 301 Grant Street, Suite 1 . Phone: (610) 868-1675' Fax: (610) 868-1702 . Phone: (412) 697-7403 . Fax: (412) 697-7407 ":.-".-' ,.",-, """'." -',> L'A. \V' O"FF }'C -t-S SERRATELLI SCHIFFMAN BROWN & CALHOON, P.C SPEW T, lAPP!\S ." : 71 :-;-1-,j,.q I :::-rl !:::\'!. 11 '-) : "I)U,1...'(T,,':bc_I,~\,,;.!. om L' :,';;,:-'1 September 3, 2004 Brooks R. Foland, Esquire Thomas, Thomas & Hafer 305 North Front Street PO Box 999 Harrisburg, P A 17108 Re: Gregory C. Bryan v. Carlisle Investors, Inc. Dear Mr. Foland: As we discussed about two weeks ago, your clients never responded to the subpoena issued to them on June 10, 2004 requesting various documents in the case of Bryan v. Waulk. I anticipated that you would promptly comply upon being informed of this delinquency. However, so far I have not received anything. I will wait another ten days before filing a motion to compel and for sanctions. STLlmeg V0 I hereby certify that on ,2004, I served a true copy of the attached document upon the person(s) name below by mailing a copy addressed as follows, United States First Class Mail, Certified/Return Receipt Requested, deposited into the U.S. Mail at Harrisburg, PA. Brooks R. Foland, Esquire Thomas, Thomas & Hafer 305 North Front Street PO Box 999 Harrisburg, P A 17108 Jack N. Waulk, Jr. ID# FH5164 SCI-Rockview Box A Bellefonte, P A 16823 RESPECTFULLY SUBMITTED, SERRATELLI, SC FMAN, BROWN AND CALHOO By: SPE 0 T. L P f\S, Esquire Pa. S Ct. lD no. 25745 2080 Linglestown Road, Suite 201 Harrisburg, PAl 711 0-9670 (717) 540-9 I 70 n c- ....., c;,:..;;:) ~~ (/' f";"l --;;:; o .." .--l :r.:.-n iTl?::;; -pm ::(.,9 (J.{~ ~~~~ ()I :~-1 ~~ .< r-.' C.J --::, :.~~ (,,) f') CoO GREGORY C. BRYAN, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA JACK N. W AULK, JR., Defendant CIVIL ACTION - LA W 04-2109 CIVIL JURY TRIAL DEMANDED IN RE: MOTION FOR SANCTIONS AND TO ENFORCE DISCOVERY ORDER AND NOW, this 4/~ day of October, 2004, a brief argument on the plaintiff s motion for sanctions and to enforce discovery is set for Thursday, December 2, 2004, at 3 :00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. BY THE COURT, vS]:,ero Lappas, Esquire For the Plaintiff : /./~ Kev' A. Hess, J." ..Brooks Foland, Esquire For the Defendant :rlm J \r1NV/I7ASNi\9d 1 I A fr'lr.;'i fit j, ,__, ""1_ "W\/ i,._ '.' - ",' :'-(-"';~-<I!."nO -"c__fll'l 1 S :cl tld 7- 1JO MOl l\dVl0\Dfil0b'd :JulJ. .Jr; ~.'-'I i ~ ...li7. -1./ J~)'"',)CJ--(r17!:l 4 In \he. Cou..~~ ~ c.~om(,,(\o<<l V\e.a '0 ~~ Gu.'<'C\.\;>e.(" \o.~ Ccu..~\..'f G'\e.gp''I C:'O~fa"(\, \>\t.\t\~ ~\ v. JI\c.~ ~. 'WAU.\v.., '"S"'\., \)~~~a.n\:. 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''vJhe..'(e..:o.~ ~\\\.~ d.~\.e..~-a'('\\ (e.ie.cl::.s dVlY. c:.latm oS; W\o~?do\"(\~ 0\ . '(\e~t~~~{\.c..e.) 0'(' Ca'("-e.\~:"'S,=>"(\-e.~'J:> 0'("' \e..<:..~'t'e:.'5S'(\e.5S 0'("" ?s<\ty o-\:.,,^~ W~O'flp,~u.\ c.cJ" O'{\ ~\d=.""'?\~\{\\;SI;. <:!.. c... ~ Pi l e. C ~'~S\<:'Q.~e. 6~ 5~v\c...e. I c~x~S~1 ~~~~ D~ oc.-6pe...'\:1-., 2004, d. -\:,u.~ c..o"r'/ I~ ~e.. a~a<:h~ d~c.uM-~~(~' W'O.5 ~:;~~.\;, 'oi ~,^-e.. U.:5~. .leD .le~ ~ -V '..."I'\l,;"W S AH..,,\"(to/ 0\ ~~~~, 0.5 \\0'1/1/5 : 'Sre.-m T '-~~~~~, ~5cJu\,e 2...0$50 L~'i\~ \e..'SJCb,^,~~~. Su.ife. LO \-\ 'Q'('('\.~::}~urg ;\' A. \ 7l \ 0 - 9 C:, 70 M()~ cA, - zL 0 Of ~-es1'-ed\-u. \\'11 o rdLPl. UlJ,Jz. c1Bo>, A rl-f6Z'~ ~-e...~t~~'^~0'Y\ . "952.3 l"--,.' C:;l () ~if2 -1"] (~,~") GREG BRYAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERL.AND COUNTY, PENNSYLVANIA vs. NO. 04-2109 CIVIL ACTION - LAW JACK N. W AULK, JR., Defendant Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, vs. CARLISLE INVESTORS, INC. NO. 04-2693 CIO HOLIDAY INN, CIVIL ACTION - LAW MECHANICSBURG GF INVESTORS LP,; MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY INC., and KENNETH KOCHENOUR, Defendants vs. JACK N. W AULK, JR., Additional Defendant JURY TRIAL DEMANDED DEFENDANTS CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P., MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYL VANIA HOSPITALITY, INC. AND KENNETH KOCHENOUR'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS AND TO ENFORCE DISCOVERY AND NOW, comes Defendants Carlisle Investors, Inc., Mechanicsburg GF Investors L.P., Mechanicsburg GF Investors Co., Central Pennsylvania Hospitality, Inc. and Kenneth Kochenhour, by and through their attorneys, Thomas, Thomas & Hafer LLP, and hereby files the following response to Plaintiffs Motion for Sanctions and to Enforce Discovery: I. Admitted, with clarification. Responding-Defendants submit that a review of the procedural history in this case is necessary. On June 10, 2004, Plaintiff served responding-Defendants with a Records Deposition Notice. It should be noted that prior to that date, no notice of Ihe filing of a subpoena was provided to the Defendants or their counsel as would be required under the Rules. See 4009.21(a). Plaintiff utilized the caption Brvan v. Waulk, docketed at number 04-2109. (A true and correct copy of Plaintiff s subpoena is attached hereto as Exhibit A). Regardless, on June 14, 2004 Plaintiff filed a praecipe for writ of summons against responding-Defendants based on the exact same transaction a:[\d occurrence as the action noted above. (A true and correct copy of the writ of summons issued upon responding-Defendants is attached hereto as Exhibit B). This action was docketed at number 04-2693. Responding-Defendants ruled Plaintiff to file a Complaint on or about June 23, 2004 and Plaintiff was granted an extension to do so. Plaintiff filed his. Complaint on or about August 10, 2004. (Plaintiffs Complaint is attached to his Motion as Exhibit 2). Without consolidating actions, Plaintiff filed his Complaint under both actions docketed at numbers 04-2109 and 04- 2693. (See Plaintiffs Exhibit 2). Responding-Defendants have been a party to this action since June, 2004 rather than witnesses as referred to by Plaintiff s counsel. 2. Admitted, in part. It is admitted that Plaintiff filed an action against responding- Defendants. However, Plaintiff characterizes responding-Dl:fendants as "witnesses" which does not coincide with his Complaint in this action. 3. Denied. As noted above, responding-Defendants have been a party to this action since the subpoena for documents was served upon them, albeit improperly. Shortly after this 2 date, several telephone calls occurred between counsel wherein counsel for responding- Defendants noted that the proper way to request documents against a party under the Rules of Civil Procedure was througlI use of requests for production of documents. See Pa.R.C.P. 4009.11. Two weeks following the last telephone conversation, on September 3, 2004, Plaintiffs counsel requested that responding-Defendants answer the subpoena issued June 10, 2004. (A copy ofthis correspondence is attached to Plaintiffs Motion as Exhibit 3). On September 8, 2004, counsel for responding-Defendants notified Plaintiffs counsel that he would be more than willing to answer Plaintiff counsel's request for documents should they be submitted properly under the Rules of Civil Procedure. (A copy of this correspondence is attached to Plaintiffs Motion as Exhibit 3). Counsel noted that this was not only because the responding-Defendants were a party to the action, but also because it was the most effective and efficient method of seeking the answers to his requests. (Plaintiffs Exhibit 3). Finally, responding-Defendants' counsel noted that this was an issue that could easily avoid motions practice if Plaintiff s counsel would simply submit his requests as provided by the Rules of Civil Procedure. (Plaintiffs Exhibit 3). Plaintiff filed this Motion on September 20, 2004. 4. Admitted, subject to the clarifications noted in Paragraph 3. 5. Admitted. 6. Responding-Defendants submit the following as argument in opposition to Plaintiff s requests. First, althouglI Plaintiff has failed to properly consolidate the actions docketed at numbers 04-2109 and 04-2693 even though the same Complaint was filed at the same time for both actions, Plaintiff seeks to subpoena records from responding-Defendants. This is improper 3 under the Rules of Civil Procedure. See Pa.R.C.P. 4009.11. No notice of service ofthe subpoena was sent to responding-Defendants, which is likewise improper. See Pa.R.C.P. 4009.21(a). Regardless, counsel for responding-Defendants noted this to Plaintiffs counsel and gladly agreed to answer such requests if they were properly made. In fact, on September 27, 2004 Plaintiffs counsel sent responding-Defendants requests for production of documents. (A true and correct copy of Plaintiffs Request for Production of Documents is attached hereto as Exhibit C). Interestingly, these requests ask for the exact same documents as were requested in the subpoena Plaintiff complains of in this Motion. (Compare Exhibit A and Exhibit C). As such, by the time this Motion is heard by this Honorable Court, the requested motion to compel would be moot as answers will be provided with the time required under the Rules. Second, Plaintiffs requested relief is improper. Under Pennsylvania Rule of Civil Procedure 4019(g) regarding the granting of attorneys fees as sanctions, there is a two step process. Commercial Trading Co.. Inc. v. Milsan Mills Corp" 476 A.2d 16, 20 (Pa.Super. 1984) (quoting, Goodrich-Amram2d, S 4019(g):5). The first step is a motion to compel compliance. Id. If, after a hearing, the motion is granted and discovery is ordered and the party thereafter complies, there can be no award of attorneys fees and expenses. Id. If the order to compel or comply is not obeyed, the aggrieved party may file a motion to impose sanctions. Id. The court, at this "second step" of the proceedings, may award expenses and counsel fees for either or both steps depending upon how the court views the conduct of the defaulting party and his counsel. Id. This is the procedure which must be followed before a party can obtain from the court an award of counsel feels "incurred in obtaining the order of compliance and the order for sanctions." Id. at 415; Wolfv. Old Guard Mut. Ins. Co., 47 D&C3d 218,222-223 (Cumb. Co. 4 1987). Thus, without the violation of a court order compelling discovery, Plaintiff cannot obtain sanctions and he currently attempts to seek. Id. As Judge Hess has clearly stated, without a violation of an order compelling discovery, "we are clearly without authority to order counsel fees." Wolf, 47 D&C3d at 223. As such, responding-Defendants submit that Plaintiffs entire Motion is moot. In the alternative, the relief requested should be denied. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP p . --:> ro s.. llHl!, ESquire LD. No. 70102 Shawn E. Smith, Esquire LD.No. 305 North Front Street POB 999 Harrisburg, P A 17108-0999 (717) 255-7626 By: Attomeys for Carlisle Investors, Inc. c/o Holiday Inn, Mechanicsburg GF Investors LP, Mechanicsburg GF Investors Co., Central Pennsylvania Hospitality Inc., and Kenneth Kochenour 318149.1 5 tx~,b1+ A '. . i tU~"-, ". 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LAPPi!.S, l~sq".z.i2:'e 1i>::,Sii'i .t '. JUN. 16. 2004:;!12:31 PM""'" TH; 'OD1S-GROUP ...,..... NO. 182'" P. 5/14 \r.) .' t- x xc. r"';) i? ,~ 'h ~~ \~ 11 r.1.. )Z e. x.. -->( f. rll/\ 1\1,,1, b. Cop:l...S oJ: all 1:l.quor ~.:l.(lenses he~d by the witness fo:,: a,1J. Pll];:l.~ of Ullle :f:%:om January .1, 200;a t:hl:"Ol.;g'l1 I:li~ "P;J;'eu!lGnt dal~$. Copies of aJ.l iIlVGlSl;igative l:'epc:rt:s, :l:'E!Clo:;cis Qr Qt;hsr c.lQQ1.\\llents r~lati.ng tc l:l:le assault: of Jaek Wemlk UpOJ:l Greg sryan, on or about: June 2002, at o:c.- arouncl Walld~ IS, 540.1 Celrl:l.sJ.e !>iJ\:e, MC!chahic:sbuzg, Ita, . Oopi,$S t)f raoQrds i~l1.l::i.f)"il:l.Sf the <anlPlcyeCls of the w:l.t.nesQ who wo:rked at S<lo;!. Carlisle !;>:Lke, l'I'$ChEW.:l.C:1l1.IUrg-, Pa. on "una 27, 2002 " CQ.lifl~ of Pllll:S01:lne:l fil*s and :t'eoords fol:' all elltp].oyeel'l Qf the tl~,tUQss Wl\o hol.4 SGlCU1:-ity responr.ibilit~~s for t:l:l~ prem!ses located at: 5401 OarJ.:l.slrll P:l.klll, WeClhaniclsblu;g, du.ring.:l'lnl.e 2002. Copies of. !'ill records, :J:'eports or doC!ulllents in your pc~~~ssion or ava11able to ~ou which ~tion Jack Wll Lillc , Clop;i.es of <Ill records, repo:rt:.$ or dOCUll!.enta :in y01.l.1." p"ss~ssian or available to you wh:i.ch mention GJ:'''lg n.\.'YM. :t J.i'l:l(L of perSOl1-'l-l ~ppear.<lnce at: tM l::LlMl, elate, and plaoe stat.~ci it 0'11'('\, !;ha witltElsa may CO\nply Wi1.:h. this li'nibpceJ;Ja ~ Sl!nQing or "1 !l:i.VOri"-g to I:.he office of Sparo '1'. I.aJ;lpas, RSljIUi.re all requested l~ i!.l:~r.'J.o!l.J, alCl1.g wil::l:l t.l\e; QXI!!Cl!uted, orig'inal of the attached J\.fUcl.aVit ~1 R.llIcoms CtISl I:ot.li an. :!toIl'CllVQr, if Product.ion of the documents :l.$ !: 'J br.l mncle in 1 im;l of pe:r;-SotlaJ. appearanc!El, these documents must: .be }: ~.O.g.y;r-.c! prior CO tho elate scl1.edulGld for the deposition. ~ ~1!:'9.P~,y y BE~:rRLT,I, S' - 1'. C_ By" "FF. 7-s CALHOON, SP.'ik :P.Ll~. , .E:G~ll.lJ:.re l'il. Su,pr e Ct, ID nO_:2574S 308 r1leBt;o~1rl Roalf H=risblJJ:'g,.RII. :1.7;UO-9$'70 (7:).7) $40-81.'10 A2'~ FOR 2'1:11iI p.t~m'.('IBP .',1;. .... .~. ",;:,..,::..:';"I'~~':-;;---"':r'''''I''''':o...__. -~:';="_ao:--~'-":r-.:..._.....:::;= SJ.l'!l:R.I\!Z'l'.'r.r,.t, SCHX1i'>>!JI..N BJ<O~,u'O CALHOON, :P.C. By.: SPJ.'RO T. LAPPAS, Esquire " . " , I . r I ~ ., t. ~ "'~ . -_--.;;0 page 2 .,. " . '. " .., .... .--- I ..._~.".,__.._.....,..__._...._._..._.... .._..., . . 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I). .1,1 I b l ,{)ut.' r. f / \ If" '" (c"" ,1 !,y" ilt:1'Clldl<'lf 'fa q."\.Hl.l!-;LI~ !;i\'~~I"'l'(lR$, TNC., ~1l',CI('\;'-!irCSjrUJRC (T!-' 1l\'VrcSTORlS I,l', r,a.:(;Ul".1'\iC,'iiIn.iRG fW IN\'ltSl'ORS CO" Cli:N'rt(Al. 'l>1':i:NNS;YL V J\1\'lA nOSI'lTAU['ViNC" f<ltNNWf'1r ImCHI~NOtm. 'Y 'l6l.l ~rc IW.N$Y ,~oliiied tl1-'~ CRF.<; BRY,Ml' 1110 Pl~llltirn;;:s I haY~ eOlOllW"\K"",,1 ~n :1r.:lli'll1 1\1 CivH AcUo1l..1..,1'! liJi1~ill.t)/U" which you are required to d~f=nd ';.l' 11 "lcfm'\l j qJ~'t\l:nllll:\Y be el1i cl\,d ll~.llll\!it YOll. . . EXn\b\t G SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRA TELLI , SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, Plaintiff NO: 04-2693 v. CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L. P. , MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY, INC. KENNETH KOCHENOUR, Defendants : JURY TRIAL DEMANDED : PLAINTIFF'S REQUEST FOR THE PRODUCTION OF DOCUMENTS September 27, 2004 TO: CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P. MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY, INC. KENNETH KOCHENOUR, Defendants and Defense Counsel AND NOW September 27, 2004, pursuant to the Pennsylvania Rules of Civil Procedure, you are hereby directed to produce for inspection and copying the following documents and other matters within your possession, custody or control, or within the possession, custody, or control of any servant, agent, employee, board, commission, agency, insurer, attorney, or other authorized SERRA TELLI , SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 1 representati ve of Defendant. Producti.on shall be made at the offices of Spero T. Lappas, Esquire, 2080 Li.nglestown Road, HarriSburg, Pennsylvania within thirty (30) days of today's date. RESPE , H FFMA! ' BROWN AND CALHOON, P. C. By: SP Pa 17110-9670 SERRA TELLI , SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 2 DEFINITIONS AND INSTRUCTIONS I. The term "Defendant", unless otherwise indicated by the context of a request for production means INDIVIDUALLY each named defendant and all insurers, attorneys, se:cvants, agents, employees, and authorized representatives of said Defendant. In the case of a corporate Defendant, the term "Defendant" also means any predecessor corporation thereof. Each Defendant shall answer these requests separately. 2. The term "incident in question" or "incident" means all events, happenings, and transactions mentioned or referred to in the plaintiff's Complaint or most recent Amended Complaint. 3. The term "document" unless otherwise indicated by the context of a request for production means, without limitation, the following items, whether printed or recorded or reproduced by mechanical, electromechanical, electronic, or similar processes or written or produced by hand: agreements; communications; correspondence; bills; invoices; telegrams:; memoranda; summaries or records of telephone conversations; summaries or records of interviews; diaries; graphs; reports; notebooks; notecharts; summaries or records of meetings or conferences; accountings or books of account; statistical compilations; any and all applications, report s , or other submissions made to any governmental or regulatory body; any technical reports prepared or SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P.C. By: SPERO T. LAPPAS, Esquire Page 3 compiled by Defendant; any marginal comments appearing upon any document; any and all catalogues, brochures, or books; all investigative reports; and any and all other writings and papers. 4. These requests for productions are addressed to Defendant as a party to this action, and its answers shall be based upon the information known to Defendant, or to Defendant's attorneys, insurers, servants, agents, employees, or representatives. 5. This request shall cover and call for all described documents in the possession, control or custody of the Defendant or the Defendant's attorneys, insurers, agents, servants, employees or representatives, and those documents available to the Defendant or to the Defendant I s attorneys, insurers, a~Jents, servants, employees or representatives. 6. This is a continuing request. If new or additional documents of the type and kind requested become available between now and the conclusion of litigation of this case, those new or additional documents must be promptly produced upon their discovery or availability. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Bsquire Page 4 THE DOCUMENTS INCLUDED IN THIS REQUEST ARE AS FOLLOWS: 1. Any and all statements regarding the incident in question. 2. Any and all memoranda, writings, correspondence, reports, files, or other documents prepared by, for, or on behalf of Defendant or its insurers, concerning the incident in question. 3. If not previously supplied, the Defendant's entire investigative file and all incident reports, accident reports, witness statements, interview reports or notes, or investigative memoranda concerning the incident in question. 4. Any and all correspondence with any person whom the Defendant intends to offer as a witness or an expert witness at the trial of this case. 5. All expert reports received by the Defendant from each witness. 6. Current resumes or curricula vitae for each witness. 7. Copies of all documents received! from each witness. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 5 8. Copies of all documents referred to in any report of any witness. 9. Copies of any book, article, journal entry, or professional publication authored by any witness. 10. All documents which you intend to offer as exhibits at the trial of this case, or at any deposition. 11. All documents in the Defendant's possession which depict or mention any Plaintiff, which include the appearance or name of any Plaintiff, which describe or discuss any Plaintiff or which depict, describe or discuss the incident in question. 12. All documents which contain the results of interviews, conversations or conferences with witnesses concerning the incident in question. 13. All documents identified, referred to or mentioned in your answer to any Interrogatory. 14. All documents to which you referred or which you used answering any Interrogatory. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 6 15. All documents received pursuant: to any records deposition notices or subpoenas issued in this case., unless previously supplied. 16. Copies of all insurance agreements or contracts under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy the judgment. 17. Copies of all liquor licenses held by any defendant for all periods of time from January 1, 2002 through the present date. 18. Copies of all investigative reports, records or other documents relating to the assault of Jack Waulk upon Greg Bryan, on or about June 2002, at or around Wanda's, 5401 Carlisle Pike, Mechanicsburg, Pa. 19. Copies of all records identifying the employees of the wi tness who worked at 5401 Carlisle Pik,:, Mechanicsburg, Pa. on June 27, 2002. 20. Copies of personnel files and records for all employees of all defendants who were working at 5401 Carlisle Pike, SERRA TELLI , SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 7 Mechanicsburg, on June 27, 2002. of all defendants who were working had security responsibilities 21. Copies of personnel files and records for all employees during June 2002. for the premises located at 5401 Carlisle Pike, Mechanicsburg, possession or available to you which mention Jack Waulk. 22. Copies of all records, reports or documents in your Pleas. COMMONWEALTH v JACK WAULK in the Cumberland County Court of Common possession or available to you which relate to the prosecution of 23. Copies of all records, reports or documents in your possession or available to you which mention Greg Bryan. 24. Copies of all records, reports or documents in your S BROWN AND CALHOON, P. C. SERRATELLI, SCHIFFMAN BROWN AND CA.LHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 8 CERTIFICATE OF SERVICE AND NOW, this q -I1Iday of (J r~ , 200jr, CoIeen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Spero T. Lappas, Esquire Serratelli, Schiffinan, Brown & Calhoon, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PAl 711 0 (!In; ~ Coleen M. Polek SPERO T. LAPPAS, Esquire Serratelli, Schiffman, Brown and Calhoon, P. C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania J 7 J 10 (717) 540-9170 ATTORNEY FOR THE PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY GREGORY C. BRYAN, Plaintiff v. NO: 04-2109 CIVIL ACTION -- LAW JACKN. WAULK,JR., JURY TRIAL DEMANDED Defendant PRAECIPE TO THE PROTHONOTARY: Please withdraw Plaintiffs Motion for Sanctions and to Enforce Discovery filed on September 28, 2004. Date: SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P.e. SPERO T LAPPAS, Esquire Page J I hereby certify that on ,2004, I served a true copy of the attached document upon the person(s) name belo by mailing a copy addressed as follows, United States First Class Mail, Certified/Return eceipt Requested, deposited into the U.S. Mail at Harrisburg, PA. Brooks R. Foland, Esquire Thomas, Thomas & Hafer 305 North Front Street PO Box 999 Harrisburg, P A 17] 08 Jack N. Waulk, Jr. 1D# FH5164 SC1-Rockview BoxA Bellefonte, P A 16823 RESPECTFULLY SUBMITTED, SERRA TELL!, SCHIF C By: N, BROWN AND (') ~~? a:~ Fe_; ~~"f. (/? ;", l~~~" f . ~~ '~. ):;: l"~: , ~f~ 2': ?:1 -{. ,...,;) <:::) <:::) .r- Z o ...:::: o ." =1n- -n 1- r -om -.:)0 -~) .L l:~~~ ~r: -n 00 ;;::rn :::\ ~ .....::... N u:> -0 T-: w C> o Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN v. NO. 04-2693 CARLISLE INVESTORS, INC. c/o CIVIL ACTION LAW HOLIDAY INN, MECHANICSBURG GF INVESTORS LP; MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY INC., and KENNETH KOCHENOUR, Defendants GREG BRYAN Plaintiff NO. 04-2109 v. JACK N. W AULK, JR., Defendant JURY TRIAL DEMANDED MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CARLISLE INVESTORS. INCORPORATED AND NOW, comes Defendant Carlisle Investors, Inc., by and through its attorneys, Thomas, Thomas & Hafer, LLP, and hereby files this Motion for Summary Judgment and in support thereof avers as follows: Facts And Procedural History 1. On or about August 10, 2004, Plaintiff filed a Complaint against several defendants based upon an alleged assault which occurred at the Holiday Inn West in Mechanicsburg, Pennsylvania (hereinafter "the property"). (A copy of Plaintiffs Complaint is attached hereto as Exhibit "A"). 2. Plaintiff sued Carlisle Investors, Inc., Mechanicsburg GF Investors, L.P., Mechanicsburg GF Investors Co., and Central Pennsylvania Hospitality, Inc. as the entities which "owned, maintained and controlled" the premises at the time ofthe alleged incident. (Exhibit A, para. 2). 3. However, at no time has the moving-Defendant owned, controlled or possessed the property in question. 4. There are no facts or evidence presented to the contrary. (A copy of the Affidavit of Kenneth Kochenour attesting to this fact is attached to moving-Defendant's Motion for Summary Judgment as Exhibit "B"). As such, moving-Defendlmt respectfully submits that it is entitled to judgment as a matter oflaw. Movin1!;-Defendant Did Not Possess Or Control The Land III Question I . 5. Paragraphs 1 through 4 are incorporated herein as if set forth in full. 6. At no time did moving-Defendant own, control or maintain the premises in question. 7. A proper grant of summary judgment depends upon an evidentiary record that either (1) shows that the material facts are undisputed, or (2) contains insufficient evidence and facts to make out a prima facie cause of action or defense, and therefore, there is no issue to be submitted to ajury. Pa.R.C.P. 1032.2; McCarthy v. Dan Lepore & Sons. Inc., 724 A.2d 938,940 (Pa.Super 1998). 8. When a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve their cause of action. Id. 9. If a nonmoving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law. Id. 2 10. The nonmoving party must adduce sufficient evidence on the issues essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the nonmoving party. Id. 11. In other words, once a motion for summary judgment is made and properly supported, the nonmoving party may not simply rest upon the mere allegations in her pleadings. Samarin v. GAF, 391 Pa.Super. 340, 346-7, 571 A.2d 398, 402 (1989). 12. In such a case, Rule 1035(d) requires that by evidence outside of the pleadings, the nonmovant must set forth specific facts showing that there is a genuine issue for trial. Id. 13. The purpose of Rule 1035(d) "is to assure the motion for summary judgment may . pierc~ the pleading and to require opposing party to disc1o.se the facts of his defense." Id. (citing, Rowland v. Kravco. Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986)). 14. Thus, once the motion for summary judgment has been properly supported, the burden is upon the nonmovant to disclose evidence that is the basis for his or her argument resisting summary judgment. Samarin, 391 Pa.Super. at 347,571 A.2d. at 402. 15. Bold unsupported assertions of conclusory accusations, however, cannot generate issues of material fact. McCain v. Penn Bank, 379 Pa.Super. 313, 318-19, 549 A.2d 1311,1313- 14 (1988). 16. In order for a party to be liable for injuries caused on real property, that party must first be a "possessor of land." Blackman v. Federal Realty Invest. Trust, 444 Pa.Super. 411,416,664 A.2d 139, 142 (1995). 17. Whether a party is a "possessor of land" within the definition set forth in the Restatement (Second) of Torts ~328E is a determination to be made by the trier of fact. Walinskv v. Saint Nicholas Ukrainian Cath. Church, 740 A.2d 318, 320 n.4 (Pa.Cmwlth. 1999). 3 18. However, where the alleged "possessor of land'" has filed a motion for summary judgment and asserted that the non-moving party has not produced evidence to establish that the moving party is a "possessor of land," the non-moving party must identify evidence establishing that fact in its response to the motion. rd.; (relying on, Pa.R.C.P. I035.3(a)(2)). 19. In order for a party to be a "possessor ofland," it must fit one of the following descriptions: (1) it must be in occupation of the land with the intent to control it; (2) it must have been in occupation of the land with intent to control it ifno othl~r party has done so subsequently; or (3) it is entitled to immediate occupation if neither of the other alternatives apply. Blackman v. Federal Realty Invest. Trust, 444 Pa.Super. 411, 416, 664 A.2d 139, 142 (1995); see also Restatement (2d) of Torts, ~328E. 20. In the present case, Moving Defendant fits none of these descriptions. 21. Carlisle Investors, Inc. is a paper company with no assets. (Exhibit B). 22. It owns no real estate. (Exhibit B). 23. In fact, Carlisle Investors is simply a .5% owner in Mechanicsburg GF Investors, L.P. which is the actual owner and manager of the property. (Exhibit B). 24. Moreover, Carlisle Investors specifically did not have, nor currently has, any part in the maintenance or supervision ofthe property in question. (Exhibit B). 25. Given these facts, and the total lack of interest in the property in question, moving-Defendant does not fit the Restatement's definition of a. "possessor of land." 26. Further, as there is no supervisory role over the property, there is no basis for respondeat superior liability. 4 27. Most importantly, Plaintiff has not, and cannot, produce facts or evidence which would make it even arguable that moving-Defendant possessed the premises in question, which is essential to their claims. 28. Other than the general averments contained in paragraph 2 of the Complaint, Plaintiff cannot create any link between moving-Defendant and "possession" of the property in question. 29. Since the question of whether moving-Defendant is a "possessor of land" is the preliminary inquiry in this matter, and there is no question ofrnaterial fact, moving-Defendant is entitled to judgment as a matter of law. WHEREFORE, for the reaSODsset forth.at length abov,e, Carlisie Investors, Inc.js not a possessor ofthe land in question as required for Plaintiffs cause of action and as such, summary judgment is proper. Respectfully submitted, THOMAS, THOl\tlAS & HAFER, LLP By:Q~> ~1oland, Esquire J.D. No. 70102 Shawn E. Smith, Esquire J.D. No. 86121 305 North Front Street POB 999 Harrisburg, P A 17108-0999 (717) 255-7626 Attorneys for Carlisle Investors, Inc. c/o Holiday Inn, Mechanicsburg GF Investors LP, Mechanicsburg GF Investors Co., Central Pennsylvania Hospitality Inc., and Kenneth Kochenour 5 Exh ,6,:j- 4- ~ \/ ---.;..' SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRA TEL LI , SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Sui te 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, Plaintiff : 04-2109 v. : JURY TRIAL DEMANDED : JACK WAULK, Defendant : : GREG BRYAN, : Plaintiff v. CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L. P. , MECHANICSBURG GF INVESTORS CO., : CENTRAL PENNSYLVANIA HOSPITALITY, INC. : KENNETH KOCHENOUR, : Defendants NO: 04-2693 JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend the daims set forth in the fonowing pages, you must take action within twenty (20) days after this Complaint is 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 tbat 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 petition 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 TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 717-240-6200 t' :~ NOTICIA USTED LE HAS SIDO DEMANDADO EN EL TRIBUNAL. Si desea alegar defensa alguna alas reclamaciones expuestas en las paginas siguientes, usted debe ir a la audienca. Advertencia: de no comparecer ante dicho tribunal, su caso sera decidido en su ausencia y, sin mas notificacion, el tribunal puede dictaminar un Decreto contra usted pOT cualquiera reclamacion o compensacion alegada en Ila Peticion. Usted puede perder dinero 0 propiedad u otros derechos importantes a usted. LLEVE ESTOS DOCUMENTOS A SU ABOGADO EN SEGUIDA. SI NO TIENE UN ABOGADO 0 NO TIENE CON QUE PAGAR TAL SERVIClO, VISTE 0 ~LAME A LA SIGUEINTE DIRECCION. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURT'HOUSE CARLISLE, PA. 17013 717-240-6200 SPERO T. LAPPAS, Esquire Pa. supreme Court ID no. 25745 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEA.S OF CUMBERLAND COUNTY, PENNSY~LVANIA GREG BRYAN, Plaintiff 04-2109 v. JURY TRIAL DEMANDED JACK WAULK, Defendant GREG BRYAN, Plaintiff v. CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P., MECHANICSBURG GF INVESTORS CO. I CENTRAL PENNSYLVANIA HOSPITALITY, INC. KENNETH KOCHENOUR, Defendants NO: 04-2693 JURY TRIAL DEMANDED COMPLAINT By: BROWN AND CALHOON, P. C. Esquire Ct. ID no. 25745 estown Road 171.10-9670 SERRATELLI, SCHIFFMAN BROWN .AND CA.LHOON, P. C. By: SPERO T. LAPPAS, Esquire page 1 COMPLAINT AND NOW, comes the Plaintiff GREGORY BRYAN, by and through his attorney, SPERO T. LAPPAS, Esquire, and makes this Complaint against the above captioned Defendants, respectfully representing as follows: 1. The Plaintiff is an adult indivi&~al. 2. The Defendant Kenneth Kochenour is an adult individual, and the defendants CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P. , MECHANICSBURG GF INVESTORS co. , CENTRAL PENNSYLVANIA HOSPITALITY, INC., are business entities existing and organized under the laws of this Commonwea.lth. These Defendants will be hereinafter collectively referred to as the "Holiday Inn Defendants." These defendants had (individually, jointly, severally, and/or in combination one with the others) ownership, maintenance, supervision, operational, and other control of business enterprises, restaurants, taverns, hotels, and public eating and drinking places known inter alia as the Mechanicsburg Holiday Inn, the Holiday Inn, Wanda's Bar and beach Club, Wanda's Deck and Beach Club, located at or around 5401 Carlisle pike, Mechanicsburg, Pa. 17055, at all times relevant to the causes of action and facts stated in this Complaint. 3. These places of business offer lodging, food, drink, and entertainment to members of the general public, and did so at all SERRATELLI, SCHIFFMAN BROWN AND Cl4.LHOON, P. C. By: SPERO T. LAPP AS , Esquire Page 2 times relevant to the causes of action and facts stated in this Complaint. 4. At all times material to this cause of action and for all acts, conduct and omissions described in this Complaint or otherwise material and relevant to the cause of action stated herein, the Defendants acted through agents and servants for whose acts, conduct and omissions Defendant is responsible and liable. 5. All such agents and servants of Defendants acted within the course and scope of their employment wi.th respect to all acts, conduct and omissions described or referred to in this Complaint or , otherwise relevant to this cause of action. 6. The Defendant Jack Waulk is an adult individual. 7. On or about June 27, 2002, the Plaintiff was a business invitees of the Holiday Inn Defendants at their place of business at 5401 carlisle Pike, Mechanicsburg, Pa. 8. At that time, date and place, the defendant Jack Waulk conunitted an assault and battery'upon the Plaintiff while both Jack Waulk and the plaintiff were patrons and invitees of the Holiday Inn Defendants' place of business at 5401 Carlisle Pike, Mechanicsburg, Pa. and while both were present at and within those premises. 9. The aforementioned assault and battery was unlawful and unprivileged. It was the result of 1:he negligence and/or recklessness and/or intentional misconduct of the Defendant Jack SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 3 Waulk. 10. As the direct, legal and proximate result of the aforementioned assault and battery the Plaintiff suffered and continues to suffer damages and injuries including the following, some or all of which are or may be cont inuing or permanent in nature: a. He sustained physical injuries, damages, and losses, including physical and mental pain and suffering; b. He incurred medical expenses and other expenses related to the incident; c. He has lost earnings and/or earning capacity; d. He was required to undergo medical care; e. He was required to incur costs and/or to expend money on medical care, health care, and incidental expenses; f. He was for a time partially disabled; g. He has suffered grave and severe physical injuries including without limitation injuries to the face, head, eye, and other portions of his body; h. He has suffered great and severe physical and emotional pain, suffering and upset; i. Ee has been prevented from taking part in and performing the activities of employment, home life, SERRATELLI, SCHIFFMAN BROWN AND Cl4LHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 4 personal life and social and recreational activities; j. He has been forced to undergo great and substantial inconvenience, aggravation, and loss of life's pleasures; k. He was required to undergo medical and health care and treatment and incur e>::penses therefore from inter alia the following providers of medical and health care: Hershey Medical Center; 1. He lost the sight and use of his right eye; m. Rehas suffered the permanent disability associated with the loss of sight and use of one eye; n. He has become increasingly vulnerable to the risk of total blindness. 11. This incident is the direct, legal and proximate result of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn Defendants, whose negligence, carelessness, lack of due care, recklessness, and other wrongful conduct were substantial contributing factors and proximate causes of the assault upon the Plaintiff. 12. The Plaintiff I s damages, injuries Stnd losses as described elsewhere in this Complaint, are the direct, legal and proximate results of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn SERRATELLI, SCHIFFMAN BROWN AND Cl1LHOON, P. C. By: SPERO T. LAPPAB, Esquire Page 5 Defendants, whose negligence, carelessneE;s, lack of due care, recklessness, and other wrongful conduct were substantial contributing factors and proximate causes of those damages, injuries and losses. ~3. The negligence, carelessness,. lack of due care, recklessness, and other wrongful conduct: of the Holiday Inn Defendants include inter alia the followin9: a. Those Defendants failed to have their premises under proper maintenance and control. b. Those Defendants failed to make necessary obse.rv:ations and inspections and failed to correct dangerous conditions within their business premises. c. Those Defendants failed to maintain their business premises in such a condition as to keep those premises free from dangerous conditions. d. Those Defendants failed to take reasonable, adequate and sufficient care to prevent assaultive behavior by patrons within their premises. e. Those Defendants failed to take reasonable, adequate and sufficient carE:!! to prevent assaults upon their patrons and invi tE:!!es . f. Those Defendants failed to take reasonable, adequate and sufficient care to provide of proper SERRATELLI, SCHIFFMAN BROWN AND ~lLHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 6 security within their premises. g. Those Defendants failed to take reasonable, adequate and sufficient care to respond to breaches of the peace within their premises. h. Those Defendants failed to take reasonable, adequate and sufficient car~~ to provide proper and sufficient staff to re~~pond adequately and appropriately to breaches of the peace within their premises. i. Those Defendants failed to provide their customers I and~invitees with a safe place in which to obtain the food, drink, and entertainment which the Holiday Inn Defendants offered to members of the general public and to this Plaintiff in particular. j. Those Defendants violated the law of this Commonwealth by serving a. visibly intoxicated patron. 14. All items of damages, injuries and losses described elsewhere in this complaint are the direct, legal, and proximate result of the negligence, carelessness, recklessness and other wrongful acts of the defendants named in the captions of this Complaint. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. c. By: SPERO T. LAPPAS, Esquire Page 7 COUNT 1 GREG BRYAN v. JACK WAULK 15. All previous paragraphs of thi~r Complaint are hereby incorporated into this count by reference thereto. 16. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defEmdant in an amount in excess of the jurisdictional amount requirilJg arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND ClJ.LHOON, P. C. By: SPERO T. LAPPAS, Esq-r.lire Page 8 COUNT 2 GREG BRYAN v. CARLISLE INVESTORS, INC. 27. A~l previous paragraphs of this complaint are hereby incorporated into this count by reference thereto. 28. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the dei'endant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 9 COUNT 3 GREG BRYAN v. MECHANICSBURG G.F INVESTORS L.P. 19. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 20. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus a~lowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire page 10 COUNT 4 GREG BRYAN v. MECHANICSBURG GF INVESTORS CO. 21.. All previous paragraphs of this Complaint: are hereby incorporated into t:his count by reference l:hereto. 22. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defc;mdant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 11 COUNT 5 GREG BRYAN v. CENTRAL PENNSYLVANIA HOSPITALITY, INC. 23. All previous paragraphs of this: Complaint are hereby incorporated into this count by reference thereto. 24. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defemdant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPP AS , Esquire Page 12 COUNT 6 GREG BRYAN v. KENNETH KOCHENOUR 25. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 26. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. c. By: SPERO T. LAPPAS, Esquire Page 13 COUNT 7 GREG BRYAN v. ALL DEFENDAN:I..S. 27. All previous paragraphs of this Complaint are hereby incorporated into this count by reference chereto. 28. Tbe Plaintiff's injuries, losses" and damages as stated el sewbere in this Complain tare the joint and several responsibility of the defendants named in tbe captions of this Complaint. 29. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against all defendants jointly and severally in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 14 RESPECTFULLY SUBMITTED, S FFMAN, BROWN AND CALHOON, P. c. By: 1 nlO-9670 AUgust 9, 2004 SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 15 SERRA TELL I , SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Suite 201 Harrisburg, pennsylvania 17110-9670 Te~ephone (717) 540-9170 Fax (717) 540-5481 By: SPERO T. LAPPAS, Esquire Fa. Supreme Court ID no. 25745 slappas@ssbc-law.com VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL 1. I verify that the averments in the :Eoregoing COMPLAINT are based upon the information which has been gathered by my counsel in preparation of this lawsuit. 2. The language of this COMPLAINT is that of 'counsel and is not mine. 3. I have read the COMPLAINT and, to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information, and belief. 4. To the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this Verification. 5. I understand that intentional falsE~ statements herein are made subject to the penalties of 18 Pa.C.S.A. !1l4904 relating to unsworn falsifications made to authorities. '~4f(b~ ,p I CERTIFI~ ("~Si:VI;E I hereby certify that on . . 0 . =- I served a true copy of the attached document upon the person{s) named below by mailing a copy addressed as follows, postage pre-paid, deposited into the U. S. Mail at Harrisburg, Pa. JACK WAULK JR INSTITUTIONAL NUMBER FH5164 SCI-ROCKVIEW BELLEFONT, PA.16823 BROOKS FOLAND, ESQUIRE 305 NORTH FRONT STREET PO BOX 999 HARRISBURG, PA. 17108-0999 RESPECTFULLY SUBMITTED, P.c. 17110-9670 LY'A ,'bl'!- B ... GREG BRYAN Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-2693 CARLISLE INVESTORS, INC. c/o CIVIL ACTION LAW HOLIDAY INN, MECHANICSBURG GF INVESTORS LP, MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY INC., and KENNETH KOCHENOUR, Defendants GREG BRYAN Plaintiff NO. 04-2109 v. JACK N. W AULK, JR., Defendant JURY TRIAL DEMANDED AFFIDAVIT OF KENNETH KOCHI:NOUR I, Kenneth Kochenour, do hereby state that the following facts are true and correct: 1. I am the owner of Mechanics burg GF Investors L.P and have held that position for 15 years. 2. Given my position, I am privy to information surrounding the ownership, possession, maintenance and control of properties owned by Mec.hanicsburg GF Investors L.P. 3. Mechanicsburg GF Investors L.P. is the limited partnership which owns, possesses, manages and maintains the Holiday Inn West, Mechanicsburg which is the subject of this suit. 4. Mechanicsburg GF Investors L.P. is made up of three entities, one of which is Carlisle Investors, Inc. which holds only a 0.5 percent interest in Mechanicsburg GF Investors L.P. 5. Carlisle Investors, Inc. is a paper corporation with no assets of its own, including a lack of ownership in real estate. 6. At no time has Carlisle Investors, Inc. had any part in the maintenance or supervision of the Holiday Inn West, Mechanicsburg which is the subject of this lawsuit. I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsifications to authorities. /dP-- CERTIFICATE OF SERVICE AND NOW, this {; tn. day of if"wAni-v1 , :wo't I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PAl 711 0 , Jack N. Waulk, Jr. SCI at Rockview Bellevonte, P A 16823 Inmate No. FH5164 ~ ..' ". f f ~ ~, ~ ~ ~ r (}J ~ 'J ~ l' t ?i .TaMF.~ r()~'T'OPOTTT.O~ ][n the Court of Common Pleas or Cumberland County, Pennsylvania VS. No. 2004-2227 CiVil.. JANET L. BELL SATISFY JUDGMENT To Prothonotary DECEMBER 4, 2004 . +AA~ ~ " No. Term, 19 _ VS. PRAECIPE Filed 19 , Ally. 0 r-...) C:::'~ c r.~ = -n .J:"> l 0 ---{ r-;"l :-C --::1 ~ CJ rn I 1 U C,:\ ;-~.:~: " , ;) t'..) :r~ , -,""" ) _.\. C~'~ c...) , Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA NO. 04-2693 / GREG BRYAN v. CARLISLE INVESTORS, INC. c/o CIVIL ACTION LAW HOLIDAY INN, MECHANICSBURG GF INVESTORS LP, MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY INC., and KENNETH KOCHENOUR, Defendants GREG BRYAN Plaintiff NO. 04-2109 v. JACK N. W AULK, JR., Defendant JURY TRIAL DEMANDED ORDER AND NOW, this _ day of ,2004, upon consideration of Defendant Carlisle Investors, Inc.'s Motion for Summary Judgment and the briefs of the parties with regard thereto, the Motion is granted and it is hereby ORDERED and DIRECTED that judgment be entered in favor of Defendant Carlisle Investors, Inc. and against Plaintiff. BY THE COURT: 1. . Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA GREG BRYAN v. NO. 04-2693 CARLISLE INVESTORS, INC. c/o CIVIL ACTION LAW HOLIDAY INN, MECHANICSBURG GF INVESTORS LP, MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY INC., and KENNETH KOCHENOUR, Defendants GREG BRYAN Plaintiff NO. 04-2109 v. JACK N. W AULK, JR., Defendant JURY TRIAL DEMANDED MOTION FOR SUMMARY JUDGl\1ENT OF DEFENDANT CARLISLE INVESTORS. INCORPORATED AND NOW, comes Defendant Carlisle Investors, Inc., by and through its attorneys, Thomas, Thomas & Hafer, LLP, and hereby files this Motion fi)r Summary Judgment and in support thereof avers as follows: Facts And Procedural Historv 1. On or about August 10, 2004, Plaintiff filed a Complaint against several defendants based upon an alleged assault which occurred at the Holiday Inn West in Mechanicsburg, Pennsylvania (hereinafter "the property"). (A copy of Plaintiffs Complaint is attached hereto as Exhibit "A"). 2. Plaintiff sued Carlisle Investors, Inc., Mechanicsburg GF Investors, L.P., Mechanicsburg GF Investors Co., and Central Pennsylvania Hospitality, Inc. as the entities which "owned, maintained and controlled" the premises at the time of the alleged incident. (Exhibit A, para. 2). 3. However, at no time has the moving-Defendant owned, controlled or possessed the property in question. 4. There are no facts or evidence presented to the c:ontrary. (A copy of the Affidavit of Kenneth Kochenour attesting to this fact is attached to moving-Defendant's Motion for Summary Judgment as Exhibit "B"). As such, moving-Defendant respectfully submits that it is entitled to judgment as a matter oflaw. Movine-Defendant Did Not Possess Or Control The Land In Ouestion 5. Paragraphs 1 through 4 are incorporated herein as if set forth in full. 6. At no time did moving-Defendant own, control or maintain the premises III question. 7. A proper grant of summary judgment depends upon an evidentiary record that either (1) shows that the material facts are undisputed, or (2) contains insufficient evidence and facts to make out a prima facie cause of action or defense, and therefore, there is no issue to be submitted to a jury. Pa.R.C.P. 1032.2; McCarthy v. Dan Lepore & Sons. Inc., 724 A.2d 938, 940 (Pa.Super 1998). 8. When a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve their cause of action. Id. 9. If a nonmoving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law. Id. 2 10. The nonmoving party must adduce sufficient evidence on the issues essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the nonmoving party. Id. 11. In other words, once a motion for summary judgment is made and properly supported, the nonmoving party may not simply rest upon the mere allegations in her pleadings. Samarin v. GAP, 391 Pa.Super. 340, 346-7, 571 A.2d 398, 402 (1989). 12. In such a case, Rule 1035(d) requires that by evidence outside of the pleadings, the nonmovant must set forth specific facts showing that there is a genuine issue for trial. Id. 13. The purpose of Rule 1035(d) "is to assure the motion for summary judgment may pierce the pleading and to require opposing party to disclose th(: facts of his defense." Id. (citing, Rowland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986)). 14. Thus, once the motion for summary judgment has been properly supported, the burden is upon the nonmovant to disclose evidence that is the basis for his or her argument resisting summary judgment. Samarin, 391 Pa.Super. at 347,571 A.2d. at 402. 15. Bold unsupported assertions of conclusory accusations, however, cannot generate issues of material fact. McCain v. Penn Bank, 379 Pa.Super. 313,318-19,549 A.2d 1311, 1313- 14 (1988). 16. In order for a party to be liable for injuries caused on real property, that party must first be a "possessor of land." Blackman v. Federal Realty Invest. Trust, 444 Pa.Super. 411,416,664 A.2d 139, 142 (1995). 17. Whether a party is a "possessor of land" within the definition set forth in the Restatement (Second) of Torts S328E is a determination to be made by the trier of fact. Walinsky v. Saint Nicholas Ukrainian Cath. Church, 740 A.2d 318, 320 n.4 (pa.Cmwlth. 1999). 3 18. However, where the alleged "possessor of land" has filed a motion for summary judgment and asserted that the non-moving party has not produced evidence to establish that the moving party is a "possessor of land," the non-moving party must identify evidence establishing that fact in its response to the motion. Id.; (relying on, Pa.R.C.P. 1035.3(a)(2)). 19. In order for a party to be a "possessor of land," it must fit one of the following descriptions: (1) it must be in occupation of the land with the intent to control it; (2) it must have been in occupation of the land with intent to control it ifno other party has done so subsequently; or (3) it is entitled to immediate occupation if neither of the other alternatives apply. Blackman v. Federal Realty Invest. Trust, 444 Pa.Super. 411, 416, 664 A.2d 139, 142 (1995); see also Restatement (2d) of Torts, 9328B. 20. In the present case, Moving Defendant fits none of these descriptions. 21. Carlisle Investors, Inc. is a paper company with no assets. (Exhibit B). 22. It owns no real estate. (Exhibit B). 23. In fact, Carlisle Investors is simply a .5% owner in Mechanicsburg GF Investors, L.P. which is the actual owner and manager ofthe property. (Exhibit B). 24. Moreover, Carlisle Investors specifically did not have, nor currently has, any part in the maintenance or supervision of the property in question. (Exhibit B). 25. Given these facts, and the total lack of interest in the property in question, moving-Defendant does not fit the Restatement's definition of a "possessor ofland." 26. Further, as there is no supervisory role over the property, there is no basis for respondeat superior liability. 4 . \ 27. Most importantly, Plaintiff has not, and cannot, produce facts or evidence which would make it even arguable that moving-Defendant possessed the premises in question, which is essential to their claims. 28. Other than the general averments contained in paragraph 2 of the Complaint, Plaintiff cannot create any link between moving-Defendant and "possession" of the property in question. 29. Since the question of whether moving-Defendant is a "possessor of land" is the preliminary inquiry in this matter, and there is no question of material fact, moving-Defendant is entitled to judgment as a matter oflaw. WHEREFORE, for the reasons set forth at length above, Carlisle Investors, Inc. is not a possessor of the land in question as required for Plaintiffs cause of action and as such, summary judgment is proper. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ~ By: ro s R:Foland, Esquire I.D. No. 70102 Shawn E. Smith, Esquire I.D. No. 86121 305 North Front Street POB 999 Harrisburg, P A 17108-0999 (717) 255-7626 Attorneys for Carlisle Investors, Inc. c/o Holiday Inn, Mechanicsburg GF Investors LP, Mechanicsburg GF Investors Co., Central Pennsylvania Hospitality Inc., and Kenneth Kochenour 5 Exhibit A ./ ~...;. SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P.C. 2080 Linglestown Road Sui te 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, Plaintiff 04-2109 v. : JURY TRIAL DEMANDED : JACK WAULK, Defendant : : GREG BRYAN, : Plaintiff v. CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P., MECHANICSBURG GF INVESTORS CO., : CENTRAL PENNSYLVANIA HOSPITALITY, INC. KENNETH KOCHENOUR, : Defendants NO: 04-2693 JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 petition 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 HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 717-240-6200 t' ..J' NOTICIA USTED LE HAS SIDO DEMANDADO EN EL TRIBUNAL. Si desea ategar defensa alguna alas reclamaciones expuestas en las paginas siguientes, usted debe ir a la audienca. Advertencia: de no comparecer ante dicho tribunal, su easo sera decidido en su auseneia y, sin mas notificacion, el tribunal puede dictaminar un Decreto contra usted por cualquiera reclamacion o compensacion alegada en Ita Peticion. Usted puede perder dinero 0 propiedad u otros derechos importantes a usted. LLEVE ESTOS DOCUMENTOS A SU ABOGADO EN SEGUIDA. SI NO TlENE UN ABOGADO 0 NO TIENE CON QUE P AGAR TAL SER VICIO, VISTE 0 ~LAME A LA SIGUEINTE DIRECCION. COURT ADMINISTRATOR FOURTH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 717-240-6200 SPERO T. LAPPAS, Esquire Pa. supreme Court ID no. 25745 SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Suite 201 Harrisburg, Pennsylvania 17110-9670 Telephone (717) 540-9170 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GREG BRYAN, Plaintiff : 04-2109 v. JURY TRIAL DEMANDED JACK WAULK, Defendant GREG BRYAN, Plaintiff v. : CARLISLE INVESTORS, INC., : MECHANICSBURG GF INVESTORS L. P. , MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY, INC. KENNETH KOCHENOUR, Defendants NO: 04-2693 JURY TRIAL DEMANDED COMPLAINT By: P.C. Esquire Ct. ID no. 25745 estown Road 17110-9670 SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire page 1 COMPLAINT AND NOW, comes the Plaintiff GREGORY BRYAN, by and through his attorney, SPERO T. LAPPAS, Esquire, and makes this Complaint against the above captioned Defendants, respectfully representing as follows: 1. The Plaintiff is an adult individual. 2. The Defendant Kenneth Kochenour is an adult individual, and the defendants CARLISLE INVESTORS, INC., MECHANICSBURG GF INVESTORS L.P. , ME CHANI CSBURG GF INVESTORS CO. I CENTRAL PENNSYLVANIA HOSPITALITY, INC., are business entities existing and organized under the laws of this Commonwealth. These Defendants will be hereinafter collectively referred to as the "Holiday Inn Defendants." These defendants had (individually, jointly, severally, and/or in combination one with the others) ownership, maintenance, supervision, operational, and other control of business enterprises, restaurants, taverns, hotels, and public eating and drinking places known inter alia as the Mechanicsburg Holiday Inn, the Holiday Inn, Wanda's Bar and beach Club, Wanda's Deck and Beach Club, located at or around 5401 Carlisle pike, Mechanicsburg, Pa. 17055, at all times relevant to the causes of action and facts stated in this Complaint. 3. These places of business offer lodging, food, drink, and entertainment to members of the general public, and did so at all SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. c. By: SPERO T. LAPPAS, Esquire Page 2 times relevant to the causes of action and facts stated in this Complaint. 4. At all times material to this cause of action and for all acts, conduct and omissions described in this Complaint or otherwise material and relevant to the cause of action stated herein, the Defendants acted through agents and servants for whose acts, conduct and omissions Defendant is responsible and liable. 5. All such agents and servants of Defendants acted within the course and scope of their employment with respect to all acts, conduct and omissions described or referred to in this Complaint or otherwise relevant to this cause of action. 6. The Defendant Jack Waulk is an adult individual. 7. On or about June 27, 2002, the Plaintiff was a business invitees of the Holiday Inn Defendants at their place of business at 5401 carlisle pike, Mechanicsburg, Pa. 8. At that time, date and place, the defendant Jack Waulk committed an assault and battery'upon the Plaintiff while both Jack Waulk and the plaintiff were patrons and invitees of the Holiday Inn Defendants' place of business at 5401 Carlisle Pike, Mechanicsburg, Pa. and while both were present at and within those premises. 9. The aforementioned assault and battery was unlawful and unprivileged. It was the result of the negligence and/or recklessness and/or intentional misconduct of the Defendant Jack SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire page 3 Waulk. 10. As the direct, legal and proximate result of the aforementioned assault and battery the Plaintiff suffered and continues to suffer damages and injuries including the following, some or all of which are or may be continuing or permanent in nature: a. He sustained physical injuries, damages, and losses, including physical and mental pain and suffering; b. He incurred medical expenses and other expenses related to the incident; c. He has lost earnings and/or earning capacity; d. He was required to undergo medical care; e . He was required to incur costs and/or to expend money on medical care, health care, and incidental expenses; f. He was for a time partially disabled; g. He has suffered grave and severe physical injuries including without limitation injuries to the face, head, eye, and other portions of his body; h. He has suffered great and severe physical and emotional pain, suffering and upset; i . Re has been prevented from taking part in and performing the activities of employment, home life, SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. c. By: SPERO T. LAPP AS , Esquire page 4 personal life and social and recreational activities; j. He has been forced to undergo great and substantial inconvenience, aggravation, and loss of life's pleasures; k. He was required to undergo medical and health care and treatment and incur expenses therefore from inter alia the following providers of medical and health care: Hershey Medical Center; l. He lost the sight and use of his right eye; m. He has suffered the permanent disability associated with the loss of sight and use of one eye; n. He has become increasingly vulnerable to the risk of total blindness. 11. This incident is the direct, legal and proximate result of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn Defendants, whose negligence, carelessness, lack of due care, recklessness, and other wrongful conduct were substantial contributing factors and proximate causes of the assault upon the Plaintiff. 12. The plaintiff I S damages, injuries and losses as described elsewhere in this Complaint, are the direct, legal and proximate results of the negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPP AS , Esquire Page 5 Defendants, whose negligence, carelessness, lack of due care, recklessness, and other wrongful conduct were substantial contributing factors and proximate causes of those damages, injuries and losses. 13. The negligence, carelessness, lack of due care, recklessness, and other wrongful conduct of the Holiday Inn Defendants include inter alia the following: a. Those Defendants failed to have their premises under proper maintenance and control. b. Those Defendants failed to make necessary observations and inspections and failed to correct dangerous conditions wit.hin their business premises. c. Those Defendants failed to maintain their business premises in such a condition as to keep those premises free from dangerous conditions. d. Those Defendants failed to take reasonable, adequate and sufficient care to prevent assaultive behavior by patrons within their premises. e. Those Defendants failed to take reasonable, adequate and sufficient care to prevent assaults upon their patrons and invitees. f. Those Defendants failed to take reasonable, adequate and sufficient care to provide of proper SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 6 security within their premises. g. Those Defendants failed to take reasonable, adequate and sufficient care to respond to breaches of the peace within their premises. h. Those Defendants failed to take reasonable, adequate and sufficient care to provide proper and sufficient staff to respond adequately and appropriately to breaches of the peace within their premises. i. Those Defendants failed to provide their customers and invitees with a safe place in which to obtain the food, drink, and entertainment which the Holiday Inn Defendants offered to members of the general public and to this Plaintiff in particular. j . Those Defendants violated the law of this Commonwealth by serving a visibly intoxicated patron. 14. All items of damages, injuries and losses described elsewhere in this complaint are the direct, legal, and proximate result of the negligence, carelessness, recklessness and other wrongful acts of the defendants named in the captions of this Complaint. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 7 COUNT 1 GREG BRYAN v. JACK WAULK 15. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 16. WHEREFORE, this Plaintiff requests that this court enter judgment in bis favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 8 COUNT 2 G~EG BRYAN v. CARLISLE INVESTORS. INC. 17. All previous paragrapbs of this Complaint are hereby incorporated into this count by reference thereto. 18. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 9 COUNT 3 GREG BRYAN v. MECHANICSBURG GF INVESTORS L.P. 19. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 20. WHEREFORE, this plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRA TELL I , SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 10 . ' COUNT 4 GREG BRY,AW v. MECHANICSljURG GF INVESTORS CO. 21. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 22. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 11 COUNT 5 GREG BRYAN v. CENTRAL PENNSYLVANIA HOSPITALITY. INC. 23. All previous paragraphs of this Complaint are bereby incorporated into this count by reference thereto. 24. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rulesl plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 12 COUNT 6 GREG BRYAN v. KENNETH KOCHENOUR 25. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 26. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against the defendant in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 13 , ' COUNT 7 GREG BRYAN v. ALL DEFENDANTS 27. All previous paragraphs of this Complaint are hereby incorporated into this count by reference thereto. 28. The Plaintiff's injuries, losses, and damages as stated elsewhere in this Complain t are the joint and several responsibility of the defendants named in the captions of this Complaint. 29. WHEREFORE, this Plaintiff requests that this court enter judgment in his favor and against all defendants jointly and severally in an amount in excess of the jurisdictional amount requiring arbitration referral by local rules, plus allowable interest and costs. SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 14 " RESPECTFULLY SUBMITTED, S FFMAN, BROWN AND CALHOON, P. C. By: 17110-9670 AUgust 9, 2004 SERRATELLI, SCHIFFMAN BROWN AND CALHOON, P. C. By: SPERO T. LAPPAS, Esquire Page 15 . . ,. SERRATELLI, SCHIFFMAN, BROWN AND CALHOON, P. C. 2080 Linglestown Road Suite 201 Harrisburg, pennsylvania 17110-9670 Telephone (717) 540-9170 Fax (717) 540-5481 By: SPERO T. LAPPAS, Esquire Pa. Supreme Court ID no. 25745 slappas@ssbc-law.com VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL 1. I verify that the averments in the foregoing COMPLAINT are based upon the information which has been gathered by my counsel in preparation of this lawsuit. 2. The language of this COMPLAINT is that of counsel and is not mine. 3. I have read the COMPLAINT and, to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information, and belief. 4. To the extent that the contents of the COMPLAINT are that of counsel, I have relied upon counsel in making this Verification. 5. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsifications made to authorities. '~~(b~ 'P I I hereby certify that on ( I served a true copy of the attached document upon the person{s) named below by mailing a copy addressed as follows, postage pre-paid, deposited into the U. S. Mail at Harrisburg, Pa. JACK WAULK JR INSTITUTIONAL NUMBER FH5164 SCI-ROCKVIEW BELLEFONT, PA.16823 BROOKS FOLAND, ESQUIRE 305 NORTH FRONT STREET PO BOX 999 HARRISBURG, PA. 17108-0999 RESPECTFULLY SUBMITTED, P.c. 17110-9670 Exhibit B . .. GREG BRYAN Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-2693 CARLISLE INVESTORS, INC. c/o CIVIL ACTION LA W HOLIDAY INN, MECHANICSBURG GF INVESTORS LP, MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYL VANIA HOSPITALITY INC., and KENNETH KOCHENOUR, Defendants GREG BRYAN Plaintiff NO. 04-2109 v. JACK N. W AULK, JR., Defendant JURY TRIAL DEMANDED AFFIDAVIT OF KENNETH KOCHENOUR I, Kenneth Kochenour, do hereby state that the following facts are true and correct: 1. I am the owner of Mechanics burg GF Investors L.P and have held that position for 15 years. 2. Given my position, I am privy to information surrounding the ownership, possession, maintenance and control of properties owned by Mechanicsburg GF Investors L.P. 3. Mechanicsburg GF Investors L.P. is the limited partnership which owns, possesses, manages and maintains the Holiday Inn West, Mechanicsburg which is the subject of this suit. 4. Mechanicsburg GF Investors L.P. is made up of three entities, one of which is Carlisle Investors, Inc. which holds only a 0.5 percent interest in Mechanicsburg GF Investors L.P. ... 5. Carlisle Investors, Inc. is a paper corporation with no assets of its own, including a lack of ownership in real estate. 6. At no time has Carlisle Investors, Inc. had any part in the maintenance or supervision of the Holiday Inn West, Mechanicsburg which is the subject of this lawsuit. I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsifications to authorities. .' .- < .- CERTIFICATE OF SERVICE AND NOW, this (ptn day of [j'~ , 200'j,I, Co1eenM. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Spero T. Lappas, Esquire Serratelli, Schiffman, Brown & Calhoon, P.e. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 Jack N. Waulk, Jr. SCI at Rockview Bellevonte, P A 16823 Inmate No. FH5164 ~ e'~ ,- q --\ .....~ '.. -, ...." 1._.:) ,;' } -' r:--"':1 r' : (-',i C) -n :~.~ 11\ :"] I C.''\ '<) ""'"fi , ) , " (.) -, ~,., \ .. -~ " 1 ::z " PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten aud submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court ------------------------.----------------------.----------------~-----~---------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) GREG BRYAN ptain'iff tN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA O. 04-2693 .CIVILACTJON LAW v. CARLISLE INVESTORS. INC. c/o HOLlDA Y INN. MECHANICSBURG GF INVESTORS LP, MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY INC., and KENNETH KOCHENOUR, De endants GREG BRYAN Plaintiff Defendant -I v. JACK N. WAULK, JR., URY TRIAL DEMANDED I. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant Carlisle Investors. Inc.' s Motion for Surrnnarv Judllment. 2. Identify counsel who will argue cases: (a) for plaintiff: Spero T. Lappas, Esquire, Serratelli. Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Suite 201 Harrisburg. PA 17110540-9170 (Name and Address) (b) for defendant: Brooks P",_Foland. Esquire, Thomas, Thomas & Hafer. LLP, POB 999, Harrisburg. PA 17108 717-255-7626 (Name and Address) 3, I will notify all parties in writing within two days that this case has bee ment. 4. Argument Court Date: lune 1,2005 Signature Brooks R Foland Print your name Date: May 4, 2005 Attorney for Defendant Carlisle Investors, Inc. . . CERTIFICATE OF SERVICE UP'1 7/J;'. AND NOW, this L day of kl~;/ ,200..), I, Coleen M. Polek, U of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy ofthe foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Spero T. Lappas, E,quire Serratelli, Schiffman, Brown & Calhoon, P.c. 2080 Linglestown Road Suite 20 I Harrisburg, P A 17110 Jack N. Waulk, Jr. SeI at Rockview Bellefonte, P A 16823 Inmate No. FH5164 (lfwrlL-, Coleen M. Polek n l:-."" .--' ,;:::.::::> ;7. -c. :;,; C) -Tl :-:1 _L-r.~ r-,l\,;;.:c -J\S ,,-\ -)C) '~ ~ ')-; ,-\"! ,~ ;:.''') ,ir. '\ -D :-~ I U1 r:-? f".) o -------- - 1 , GREG BRYAN : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. JACK N. WAULK, JR. : NO. 2004-2109 CIVIL TERM GREG BRYAN : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. CARLISLE INVESTORS, INC. : NO. 2004-2693 CIVIL TERM C/O HOLIDAY INN, MECHANICfBURG GF INVESTORS LP, MECHANICSBURG GF INVESTORS CO., CENTRAL PENNSYLVANIA HOSPITALITY INC., & KENNETH KOCHENOUR : IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CARLISLE INVESTORS, INC. BEFORE BAYLEY, GUIDO, 11. ORDER OF COURT AND NOW, this 6TH day of JUNE, 2005, upon review of the Motion for Summary Judgment filed by Defendant Carlisle Investors, Inc., and the brief in support thereof, and no party having filed a pleading or brief in opposition thereto, the motion is GRANTED. ~t; oVO Edward E. Guido, J. ~ V'lN\I^lASNN3d AlNnO~) C's{",':F1q\~ro I 2 :2 Hd 9- Nor sooz Al:l\flONOH10i;ld 3H! .:10 3:J!:!.:J.o-G3ll:l - " . ,. Spero T. Lappas, Esquire 2080 Linglestown Road Suite 201 Harrisburg, Pa. 17110 Jack N. Waulk, Jr. No. FH5164 SCI at Rockview Bellefonte, Pennsylvania 16823 Brooks R. Foland, Esquire 305 North Front Street, 6TH Floor P.O. Box 999 Harrisburg, Pa. 17108-0999 :sld