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Home My WebLink About04-2277ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 'O y-~ 02 a.7 ~ CIVIL ACTION NRY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Cazlisle, PA 17013 1-800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de a notification de esta Demands y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Code por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falls de tomar accion Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reciamada en la demands o cualquier otra reclamation o remedio solicitado por el dexnandante puede ser dictado en contra suya por la Code sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes pars usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADQ ES POSIBLE DUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS CUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS DUE CUALIFICAN. Cumberland County Baz Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 ROCCO A. ORTENZIO and IN THE COURT OF COMMON PLEAS NANCY M. ORTENZIO, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO.: p y,. r>Z .2.7'1 PYRAMID CONSTRUCTION :CIVIL ACTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, :JURY TRIAL DEMANDED Defendants COMPLAINT 1. Plaintiffs are adult individuals, husband and wife, residing at 7 West Wind Drive, Lemoyne, Cumberland County, Pennsylvania, 17089, (hereinafter the "Ortenzio Property"). At all times relevant hereto the Plaintiffs were the owners of the Ortenzio Property. 2. Defendant, Pyramid Construction Services, Inc. (hereinafter referred to as "Pyramid"), is a Pennsylvania corporation with its principal place of business at 1 South Market Square, 12`h Floor, Harrisburg, Dauphin County, Pennsylvania, 17101. Pyramid is a general construction contractor who regularly does business in Cumberland County. 3. Defendants, Lee C. Turner and M. Shazon Turner (hereinafter referred to collectively as the "Turners"), are adult individuals, husband and wife, residing at 19 Beech Farm Road, Wormleysburg, Cumberland County, Pennsylvania. At all times relevant hereto they were the owners of real estate known as 711 Indiana Avenue, Lemoyne, Cumberland County, Pennsylvania, 17089 (hereinafter the "Turner Property"). 4. Pyramid and the Turners entered into a construction contract pursuant to which Pyramid was to make renovations and additions to the Turner Property. 5. The Turner Property and the Ortenzio Property are adjacent and share a common boundary line. 6. At all times material hereto, there were twelve (12) white pine trees on the Ortenzio Property. The trees were at the rear of the Ortenzio Property and abutted the Turner Property. Two (2) of the white pine trees had matured to between twenty-five (25) and thirty (30) feet high and existed on the Ortenzio Property before it was purchased by the Plaintiffs. The other ten (10) trees were planted by the Plaintiffs in 1994 and had matured to between fifteen (15) and twenty (20) feet. The aforesaid white pine trees provided the Plaintiffs' property with privacy, a sight line screen, noise abatement and general aesthetic appeal. 9. Sometime in the late summer of 2003, the aforesaid white pine trees were cut down and removed by Pyramid without notice to or consultation with the Plaintiffs. 10. After the trees had been removed, Plaintiff Rocco Ortenzio and John Ortenzio, his son, met with Defendant, Lee C. Turner and Michael Klinepeter, an employee and officer of Pyramid to discuss what actions they planned to take to remedy the damage that had been done to the Ortenzio Property. 11. At the aforementioned meeting, Turner and Klinepeter offered to construct a four (4) foot berm where the trees had been removed and to plant four (4) white pine trees having a height of sixteen (16) to eighteen (18) feet. 12. Ortenzio accepted the proposal made by Turner and Klinepeter on the following express conditions: a. Any and all work on the Ortenzio Property was to be supervised by Mike Holjes, Plaintiffs' landscape contractor; b. That the trees to be planted would have an extended warranty on their survival; c. No work would be started and no entry would be permitted onto the Ortenzio Property until there was a written agreement between the Turners and the Ortenzios with respect to the corrective work to be performed by Pyramid; d. That the four (4) foot berm would be constructed with topsoil; and e. That the Plaintiff sengineering/surveying costs would be reimbursed. 13. Turner and Klinepeter were specifically told that no one was to reenter onto the Ortenzio Property without the aforementioned agreement being signed. 14. Subsequently, John Ortenzio again told Klinepeter that he could not proceed with any work on the Ortenzio Property until a letter agreement had been signed. 15. In January, 2004, without penmission and despite express directives to the contrazy, Pyramid entered onto the Ortenzio Property with men and equipment. While on the Ortenzio Property Pyramid constructed a four (4) foot berm made almost entirely of construction debris from the Turner Property and planted four (4) white pine trees on the berm each of which are ten (10) to twelve (12) feet high. COUNTI Trespass Plaintiffs v. Pyramid Construction 16. Plaintiffs incorporate herein paragraphs 1 through 15 herein above as if set forth fully herein. 17. Pyramid cut down and removed the white pine trees located on the Ortenzio Property without the knowledge and permission of the Plaintiffs. 18. Subsequent to the cutting and removal of the trees, and despite having been specifically directed not to reenter the Ortenzio Property except in accordance with the terms and conditions hereinabove set forth, Pyramid entered onto the Ortenzio Property causing additional damage and alterations to the Ortenzio Property without the permission or consent of the Plaintiff. 19. While on the Ortenzio Property, Pyramid constructed the berm and planted the four (4) white pine trees referenced above. It also removed all of the stumps evidencing the location of the twelve (12) trees that had been removed by Pyramid from the Ortenzio property thus destroying evidence of their location. 20. The actions of Pyramid evidence outrageous conduct, were done with a bad motive, i.e. to remove the evidence of Pyramid's initial trespass, and demonstrated a reckless indifference to the rights of the Plaintiffs. 21. As a result of the actions of Pyramid, Plaintiffs have suffered the following damages: (a) removal of berm and construction debris and replacement of berm with clean, appropriate topsoil: $8,900.00; (b) installation of twelve (12) sixteen foot white pine trees, including trucking and equipment: $48,000; (c) repairing and restoring site: $2,500; and (d) surveying costs: $1,100.83. WHEREFORE, Plaintiffs, Rocco A. Ortenzio and Nancy M. Ortenzio, respectfully demand that judgment be entered under Count I against Pyramid Construction Services, Inc. in the amount of $60,500.83 plus lawful interest, costs and punitive damages. COUNT II Respoudeat Superior Plaintiffs v. The Turners 22. Plaintiffs hereby incorporate paragraphs 1 through 21 herein above as if set forth fully herein. 23. At all times relevant hereto, Pyramid was the agent of the Turners for the purpose of constructing the additions and renovations to the Turner Property. 24. All actions taken by Pyramid were for or to the benefit of the Turners. 25. To the extent that the actions of Pyramid, both negligent and intentional, were performed within the scope of their duties as the Turners' general construction contractor, the Turners are liable therefor. 26. As principal, the Turners are liable for the actions of their agent, Defendant Pyramid, committed within the scope of Pyramid's employment even though the Turners may not have authorized, justified or participated in or known of such conduct. WHEREFORE, Plaintiffs, Rocco A. Ortenzio and Nancy M. Ortenzio demand that judgment be entered under Count II against Lee C. Turner and M. Sharon Turner in the amount of $60,500.83, plus lawful interest, costs and punitive damages. Respect Ily REAG & Date: May 20, 2004 Theonore A. Adler, Esquire Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiffs 05/19/2004 18:97 FA% 717 790 7586 REAGER & ADLER ~ O10 VERIFiCA1'ION I, Rocco A. Ortenzio, verify the averments of the forgoing document are true and coaec9 to my personal knowledge, inforznaiion and belief. I understand that false statements herein am made subject to the penalties of 18 Pa. C.S. §4904, elating to unsworn falsification to authori- ties. Date: v`/%3/~~`f B . ~2co ~{ Y' oc"R co A, Ortenzio ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 04-2277 CIVIL ACTION NRY TRIAL DEMANDED PRAECIPE Please reinstate the above-captioned Complaint. P.C. Date: June 18, 2004 Theodore A. Adler, Esquire Attorney ]:.D. No. 16267 2331 Market Street Camp Hill, PA 17011-4642 Telephone: (717) 763-1383 Attorneys; for Plaintiffs ~' ~ o c o -„ z,~ ~ ~ - - r- _ ; . -nm u> ~ n r-, ~ ~~; .~:~: >~r ~: ` ; °^ ~ =< +l SHERIFF'S RETURN - REGULAR CASE N0: 2004-02277 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ORTENZIO ROCCO A ET AL VS PYRAMID CONSTRUCTION ET AL BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon TURNER LEE C the DEFENDANT at 1910:00 HOURS, on the 26th day of May 2004 at 19 BEECH FARM ROAD WORMLEYSBURG, PA 17043 LEE TURNER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 38.35 06/16/2004 REAGER & ADLER Sworn and Subscribed to before By: L ~~~/// me this ,Z~.M~ day of Deputy Sheriff „1 . 02~ Y A.D. Q ~.U~... r thonotary ~~ SHE:RIFF'S RETURN - REGULAR CASE NO: 2004-02277 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ORTENZIO ROCCO A ET AL VS PYRAMID CONSTRUCTION ET AL BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon TURNER M SHARON the DEFENDANT at 1910:00 HOURS, on the 26th day of May 2004 at 19 BEECH FARM ROAD WORMLEYSBURG, PA 17043 by handing to LEE TURNER, HUSBAND a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this d2..~-0l day of ~Ltu. _ 01 vp4nJ ~,,~ ~~A. D~. r thonotar/~ So Answers: ,d `.,,~-,mac ~~=="'~,~ R. Thomas Kline 06/16/2004 REAGER & P,DLER By: /~~z Deputy Sheriff SHERIE~F'S RETURN - OUT OF COUNTY CASE NO: 2004-02277 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ORTENZIO ROCCO A ET AL VS PYRAMID CONSTRUCTION ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: PYRAMID CONSTRUCTION SERVICES INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On June 16th 2004 this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin Co 25.50 .00 50.50 06/16/2004 REAGER & ADLER Sworn and subscribed to before me this .2a •'~-~( day of C~J~A~„ . ,2u/j~f A.D. ~~o ~~ Prothonotafy So answers : _~ ~l~_._,.r R. Thomas Kline Sheriff of Cumberland County ~~ '~`i~e ~ou~-lr ~~ ~t~mna®n Pies ~f ~a~»be~~ai~ad C~aaa~~y, Pennsyivan~a Rocco A. Ortenzio et al VS. Pyranid Construction Services Inc et al SERVE: sane No 04-2277 civil Now, May 21 ~ 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of ~~'-r' County to execute this Writ, this deputation being made at the request and risk of the Plaintiff: .-y ~~' ~~~ ~ ~ Sheriff of Cumberland County, PA Affidavit of Service Now, within 20`, at o'clock M. served the upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this day of , 20! COSTS SERVICE $ MILEAGE AFFIDAVIT ~ ~~~cQ ~~ ~ o l~exr' f f Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth Of Pennsylvania oRTENZIO Rocco A vs COUnty Of DaUphln pyRAMID CONSTRUCTION SERVICES INC Sheriff's Return No. 4823-T - - -2004 OTHER COUNTY NO. 04-2277 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for PYRAMID CONSTRUCTION SERVICES INC the DEFENDANT named in the within COMPLAINT and that i am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, May 26, 2004 DEFT IS NOT AT THIS LOCATION. Sworn and subscribed to before me this 27TH day of MAY, 2004 ~~~~~' NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept 1, 2006 So Answers,.~i~ ~~°i~~"" Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs: $25.50 PD 05/27/2004 RCPT NO 195099 ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs vs. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants IN THE COURT OF COMMON PLEAS OF CUMI3ERLAND COUNTY, PENNSYLVANIA NO. 2004-2277 CIVIL CIVIL AC'.TION NRY TR]AL DEMANDED NO'CICE YOU ARE HEREBY NOTIFIED TO RESPOND TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HERIiOF OR A DEFAULT JUDGMENT MAY ~E ENTERED AGAIN',iT YDU. /) MICHAEL L. BANGS (ID j/~1 63) Attorney for Defendant U 429 South ISth Street, Camp Hill, PA 17011 (717) 730-7310 ANSWER WITH NEW MATTER OF DEFENDANTS LEE C. TURNER and M SHARON TURNER I. Denied. Defendants Lee C. Turner and M. Shazon Turner ("Defendants Turner") are without knowledge sufficient to form a belief as to the truth of t]'Zis averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 2. Denied. Defendant Turner is without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. Defendants Turner admit that the Turner Property and the Ortenzio Property are adjacent but deny that they share a common boundary line to the extent that the averment in the Complaint has any legal significance as to what constitutes a common boundary line from a legal perspective. 6. Denied. Defendants Turner, after reasonable investigation, are without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. It is averred that to Defendants Turner's knowledge, there did not exist 12 white pine trees on the Ortenaio Property. 7. Denied. After reasonable investigation, Defendants 'Turner aze without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 8. Denied as stated. Defendants Turner, after reasonable investigation, are without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. To the extent that Defendants Turner have any knowledge concerning any trees that were removed, all trees that were removed by Defendant Pyramid, on behalf of Defendants Turner, were trees that were on the Turner Property and to the extent that these are the trees that provided "privacy, a sight line screen, noise abatement and general aesthetic appeal" to Plaintiffs, they were not Plaintiffs' property and Plaintiff had no vested interest in any privacy, sight line screen, noise abatement or general aesthetic appeal derived from those trees that were not owned by them. 9. Denied. It is specifically denied that in the late summer of 2003 that Defendant Pyramid cut down white pine trees owned by Plaintiffs. It is averred that Defendant Pyramid, in doing site prepazation work for Defendants Turner, had certain trees removed that were on Defendants Turner's property. Those trees were not white pins nor did they belong to Plaintiffs. 10. Admitted in part and denied in part. It is admitted that Plaintiff Rocco Ortenzio and his son John Ortenzio met with Defendant Lee C. Turner and AQichael Klinepeter to discuss the removal of trees that belonged to Defendants Turner and which were adjacent to the Ortenzio Property. There was no discussion at that time that Defendants Turner or Defendant Pyramid acknowledged that those trees belonged to Plaintiffs and that those trees were mistakenly taken down. On the contrary, Defendant Lee C. Turner, solely as an accommodation and in an attempt to be a good neighbor, told Plaintiff Rocco Ortenzio that Defendants Turner would install, at their own cost, new trees at or near the location of the old trees so as to provide a buffer of sorts for the Ortenzio Property. Defendants Turner were under no lel;al obligation to do so and merely did this as an accommodation and in hopes to be a good neighbor to Plaintiffs. 11. Denied as stated. Defendant Lee C. Turner, during the course of the meeting, suggested that he and his wife were willing to install four new trees in the area near where the old trees had been removed. Defendant Lee C. Turner's willingness to do so was solely to be a good neighbor and not under any legal compulsion or any legal obligation to do so. He did not make an "offer" to Plaintiffs in exchange for anything to be received for the Plaintiffs since the trees that were removed were on the Turner Property and belonged to Defendants Turner. 12. Denied. It is specifically denied that Plaintiff accepted a proposal made by Defendant Lee C. Turner and Michael Klinepeter on any express conditions contained therein, specifically conditions (a), (b), (c), (d) and (e). There was no proposal nor acceptance of a proposal made at the meeting referenced in this averment. Neither Defendants Turner nor Klinepeter on behalf of Defendant Pyramid made any agreement with Ortenzio to plant trees in accordance with the conditions outlined in this averment and this averment is specifically denied and strict proof thereof is demanded at the trial of this case. 13. Denied. It is specifically denied that Defendant Lee C. Turner or Klinepeter were told by Ortenzio that no one was to reenter onto the Ortenzio Property without an agreement being signed. It is averred that after the meeting at which time Defendant Lee C. Turner, as an accommodation and in an attempt to be a good neighbor indical:ed his willingness to install four trees near where the others were removed. 14. Denied. Defendants Turner are without knowledge sufficient to form a belief as to the truth of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this case. 15. Admitted in part and denied in part. It is admitted tltat around January, 2004, four trees were planted on the Ortenzio Property and a berm was also constructed for those trees. It is denied that Defendant Pyramid entered onto the Ortenzio Property with men or equipment without permission or that they needed permission if they did proceed on the Ortenzio Property. Furthermore, it is denied that Defendants Turner had any express directives from Plaintiffs that they were not permitted to plant the trees in accordance with the understanding that Defendant Lee C. Turner had from the meeting with Plaintiff. 4 COUNTI TRESSPASS PLAINTIFFS vs. PYRAMID CONSTRUCTION 16. Defendants Turner incorporate answers to Pazagraphs 1 through 15 herein by reference as if more fully set forth. 17. Denied. This averment is directed to Defendant Pyramid Construction and Defendants Turner are not required to respond hereto. To the extent that they aze required to respond, the averment is denied. After reasonable investigation, Defendants Turner are without knowledge sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at the trial of this case. 18. Denied. This averment is directed to Defendant Pyramid Construction and Defendants Tumer are not required to respond hereto. To the extent that they are required to respond, the averment is denied. After reasonable investigation„ Defendants Turner are without knowledge sufficient to form a belief as to the truth of the avernent and strict proof thereof is demanded at the trial of this case. 19. Denied. This averment is directed to Defendant Pynunid Construction and Defendants Turner are not required to respond hereto. To the extent that they aze required to respond, the averment is denied. After reasonable investigation, Defendants Turner are without knowledge sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at the trial of this case. 20. Denied. This averment is directed to Defendant Pyraunid Construction and Defendants Turner aze not required to respond hereto. To the exl:ent that they are required to respond, the averment is denied. After reasonable investigation, Defendants Turner aze without knowledge sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at the trial of this case. 21. Denied. This averment is directed to Defendant Pyramid Construction and Defendants Turner are not required to respond hereto. To the extent that they are required to respond, the averment is denied. After reasonable investigation, Defendants Turner are without knowledge sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at the trial of this case. COUNT II RESPONDEAT SUPERIOF: PLAINTIFFS vs DEFENDANTS TIURNER 22. Defendants Turner incorporate answers to Paragraphs 1 through 21 herein by reference as if more fully set forth. 23. Denied. Paragraph 23 is a legal conclusion to which Defendants Turner deny. Defendant Pyramid was the general contractor for Defendants Turner for purposes of constructing and overseeing the renovations to the Turner Property. 24. Denied as stated. All actions taken by Defendant Pyramid were not for or to the benefit of Defendants Turner to the extent that Pyramid acted in a manner outside the scope of any general contracting agreement between the parties. 25. Denied. Paragraph 25 is a legal conclusion to which no answer is required. To the extent an answer is required, it is specifically denied that any actions of Defendant Pyramid that were negligent or intentional were completed within the confines of the general contracting agreement between Defendants Turner and Pyramid. To the extent that Pyrarnid did any actions 6 that are negligent or intentional, it is averred that those actions occurred outside the contract between the parties. 26. Denied as stated. Paragraph 26 is a legal conclusion to which no answer is required. To the extent an answer is required, Defendants Turner are not liable for all actions of Defendant Pyramid, to the extent that those actions were not contemplatedf or within the confines of any general contracting agreement between the parties. WHEREFORE, Defendants Turner demand judgment against Plaintiffs together with costs of suit. NEW MATTER 27. Answers to Paragraphs through 26 aze incorporated herein by reference as if more fully set forth. 28. Defendants Turner hired Defendant Pyramid to construct a residence on their property at 711 Indiana Avenue, Lemoyne (Turner Property). 29. During the course of the renovation and construction of the premises on the Turner Property, there were certain trees on the Turner Property that needed to be removed. 30. During the course of the renovation and construction., either at the commencement or after it was begun, Defendant Pyramid engaged the services of a qualified surveyor to demarcate the property lines of the Turner Property. 31. After the property lines were formulated and in accordance with the construction of the premises, Defendant Pyramid removed several trees on the side of the Turner Property that abuts the Plaintiffs' property. 32. After the removal of the trees, Defendant Pyramid and/or Defendant Turner received a contact from Plaintiff Rocco Ortenzio or his employees or designees, complaining that one or more of the trees removed were on his property. 33. Defendant Lee Turner along with a designee of Defendant Pyramid, with Plaintiff Rocco Ortenzio and his son, had a meeting at which time Defendant Lee Turner indicated his willingness to put up four trees on the Ortenzio Property. Defendant Lee Turner did this as an accommodation to Plaintiffs and as goodwill gesture and not because he had any legal obligation to do so. 34. During the course of the meeting, neither Defendant[ Turner nor Defendant Pyramid acknowledged that any of the trees that were removed were on the Plaintiffl s property, nor did they agree to any of the supposed agreements set out in Averment 12 of Plaintiffs' Complaint. 35. After the meeting was conducted, Defendant Pyramiid caused the installation of four trees on the Ortenzio Property in accordance with Defendant Lee Turner's willingness to put the four trees on the Ortenzio Property in order to be a good neighbor to Plaintiffs. 36. Defendants Turner at no time indicated that they would provide any warranty for the trees that Defendants Turner installed on the Ortenzio Property. 37. Defendants Turner installed trees on the Ortenzio Property solely because they wanted to be good neighbors to Plaintiffs and for no other reason. 38. Defendants Turner had no legal obligation to install any trees on the Ortenzio Property and had the legal right to remove any and all trees on the Turner Property during the construction process. 39. The Complaint filed in this action fails to state a claim against Defendants Turner upon which relief can be granted. 40. The Complaint filed against Defendants Turner fails to state a claim for punitive damages. 41. Plaintiffs' action against answering Defendants Turner is barred by the Doctrine of waiver. WHEREFORE, Defendants Turner respectfully requests that this Honorable Court dismiss Plaintiffs' Complaint with prejudice and enter judgment in their favor and against Plaintiffs, together with awazd of such costs, interest and other relief as the Court deems just and reasonable. NEW MATTER PURSUANT TO PA RCP SECTION 2252(d) 42. The averments of Paragraphs 1 through 26 are incorporated herein by reference as if more fully set forth and asserted against Defendants Turner. 43. The averments of Pazagraphs 1 through 41 of this Answer with New Matter of answering Defendants Turner is reaffirmed and reasserted as if fuully set forth herein. 44. If the answering Defendants Turner aze found liable, which eventually is specifically denied, Defendant Pyramid is alone liable to the Plaintiffs, or lialble over to answering Defendants Turner, or jointly or severally liable to the Plaintiffs or liable to answering Defendants Turner directly by way of contribution and/or indemnity. WHEREFORE, answering Defendants Turner demand judgment in their favor and against Defendant Pyramid and prays that Defendant Pyramid be held alone liable to Plaintiffs, jointly and severally liable with answering Defendants Turner, or liable over to answering Defendants Turner directly by way of contribution and/or indemnity. Respectfully submitted, MIC AEL L. B ANGS Attorney for Defendants Z 429 South 18th Street Camp Hill, PA 1','011 (717) 730-7310 Supreme Court ID #41263 10 VERIFICATION We hereby verify that the statements made in the foregoing Answer with New Matter are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~Z~P~~O~ L` ~i(~/(~~_ LEE . T RNER~`~~ M.. HARON TURNEUR~ ~ 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served the foregoing ANSWER WITH NEW MATTER by depositing a copy of same in the United States mail, postage prepaid, at Camp Hill, Pennsylvania, addressed to the following: Theodore A. Adler, Esquire Reager & Adler 2331 Market Street Camp Hill, PA 17011 Pyramid Construction Services, Inc. 4225 Valley Road Enola, PA 17025 DATE: ~ ~-~ 12 /-' rr~ O '11 r ' 'T _~ T i_J - ~ I i , -;tl r` ...i ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 04-2277 CIVIL ACTION JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF _______... .,.,..n,r enr~Rl1NT 27. This is an incorporation by reference pazagraph to which no response is required. 28, Admitted that Turner and Pyramid entered into a construction contract as alleged in pazagraph 4 of the Complaint and as admitted in pazagraph 4 of Turners' Answer to the Complaint. 29. Denied. After reasonable investigation, Plaintiffs are without sufficient information to form a belief as to the truth of the averments of paragraph 29 of the New Matter filed by Defendants Turner. Said averments are, therefore, denied and proof is demanded at trial. 30. Denied. After reasonable investigation, Plaintiffs are without sufficient information to form a belief as to the truth of the averments of paragraph 30 of the New Matter filed by Defendants Turner. Said averments are, therefore, denied and proof is demanded at trial. 31. Denied. After reasonable investigation, Plaintiffs aze without sufficient information to form a belief as to the truth of the averments o1'pazagraph 31 of the New Matter filed by Defendants Turner. Said averments are, therefore, denied and proof is demanded at trial. 32. Admitted with clarification. It is admitted that. there were contacts between representatives of the Plaintiffs and representatives of the Defendants. In further response, Plaintiffs incorporate the averments of paragraphs 9, 10 and 11 of their Complaint as if fully set forth herein. 33. Denied. The characterizations of the actions taken at the referenced meeting are denied. To the contrary, at the meeting Defendants were advised that they had removed trees located on the Plaintiffs' property. To remedy the damage causF;d by their actions, Defendants offered to construct a four (4) foot berm where the trees had bee:n removed and plant four (4) white pine trees as more fully set forth in paragraph 11 of Plaintiffs' Complaint. 34. Denied. Plaintiffs restate herein the averments of paragraph 12 of Plaintiffs' Complaint. 35. Denied. Plaintiffs restate herein the averments of paragraphs 12 through 15 of Plaintiffs' Complaint. 36. Admitted with clarification. Plaintiffs advised the Defendants that they could not reenter onto Plaintiffs' property unless and until the letter agreement referenced in pazagraph 12(c) of the Complaint had been signed by the Defendants. Despite the fact that the agreement was never reduced to writing and signed by the Defendants, Defendant Pyramid reentered onto Plaintiffs' property as alleged in paragraph 15 of Plaintiffs' Complaint, the averments of which aze incorporated herein by reference. 37. Denied. Defendants Turner never advised the Plaintiffs that they were willing to install new trees and remedy the damage caused to the Plaintiffs' property because they wanted to be good neighbors. Rather, Defendants Turner agreed to dc. so because their agent, Defendant Pyramid, had entered onto the Plaintiffs' property without authorization and had damaged the Plaintiffs' property as a result. 38. Admitted in part; denied in part. It is admitted that Defendants Turner had the right to remove trees located on the Turner property. To the extent that the averments of pazagraph 38 of Defendants Turner New Matter implies or infers that the trees referred to in paragraphs 6 and 7 of Plaintiffs' Complaint were located on the Turner property, said implications or inferences are expressly denied. 39. Denied. The averments of paragraph 39 are a legal conclusion to which no responsive pleading is required. 40. Denied. The averments of paragraph 40 are a legal conclusion to which no responsive pleading is required. 41. Denied. The averments of paragraph 41 are a legal conclusion to which no responsive pleading is required. WHEREFORE, Plaintiffs, Rocco A. Ortenzio and Nancy M. Ortenzio, demand that judgment be entered against Defendants, Lee C. Turner and M. Sharon Turner under Count II of the Complaint in the amount of $60,500.83, plus lawful interest, costs and punitive damages. .C./ / ~ (~ Date: July 14, 2004 Theoddre A. Adler, Esquire Attorney I.D. No. 16267 2331 Ma~~ket Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiffs VERIFICATION I, Rocco A. Ortenzio, verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to imsworn falsification to authori- ties. Date: ~,7 ds~BS~ d ~~/' Rocco A. Ortenzio CERTIFICATE OF SERVICE AND NOW, this 14th day of July 2004, I hereby verify tlhat I have caused a true and correct copy of the foregoing Plaintiffs' Reply to New Matter of Defendants, Lee C. Turner and M. Sharon Turner to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Michael L. Bangs, Esquire Bangs Law Office 302 South 18`h Street Camp Hill, PA 17011 Pyramid Construction Services, Inc. 4425 Valley Road Enola, PA 17025 Christine M. Ciccocioppo, Pazalegal ~., n ~_. c_ _ ~~ - ~_~ ~` -n :-i°; =<_ cn T ~Q `?o (_~ L7 ~j m .~ -.; SH:ERIFF'S RETURN - REGULAR CASE NO: 2004-02277 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ORTENZIO ROCCO A ET AL VS PYRAMID CONSTRUCTION ET AL CPL. TIMOTHY REITZ Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PYRAMID CONSTRUCTION SERVICES INC the DEFENDANT at 1531:00 HOURS, on the 21st day of June 2004 at 4425 VALLEY ROAD ENOLA, PA 17025 by handing to TAMMY HOUCHAR, SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 10.35 Affidavit ,Op Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this ~ day of `/ any A.D. / Prothonotary So Answers: ~~~.~~ R. Thomas Kline 06/22/2004 REALER & ADLER By: _ ` G~~ Dep y heriff THOMAS, THOMAS &HAFER, LLP C. Ken[ Price, Esquire I.D. No. 06776 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717)255-7632 ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Attorney for Defendant Pyramid Construction Services, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAT~ID COUNTY, PENNSYLVANIA NO. 04-2277 CIVIL ACTICIN JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appeazance of THOMAS, THOMAS &HAFER, LLP as counsel on behalf of Defendant Pyramid Construction Services, Inc. in the above-captioned matter. All papers maybe served upon the undersigned at P.O. Box 999, Harrisburg, PA ].7108-0999. THOMA:i, THOMAS &HAFER, LLP C. Kent P1dce, Esquire 305 North Front Street P.O. Box 999 Hamsburg, PA 17108 (717)255-7632 LD. No. 06776 CERTIFICATE OF SERVICE AND NOW, this1 ~d~ of August, 2004, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant Pyramid Construction Services, Inc., hereby certify that I have this day served the within Praecipe for Entry of Appearance by depositing a copy of the same in the United States Maul, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Theodore A. Adler, Esquire Thomas O. Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Michael L. Bangs, Esquire 429 South 18`h Street Camp Hill, PA 17011 THOMA;>, THOMAS & HAFER, LLP ~~ C. Kent Price, Esquire ~, is ~.a c~ O "rl C.' r .~_~ " ~. n l: . T (Yl -- ',] `r ~(_ , ,_~ , 1. ~I Cf;-1 r -~. G THOMAS, THOMAS &HAFER, LLP C. Kent Price, Esquire I.D. No. 06776 305 North From Street P. O. Box 999 Harrisburg, PA 17108 (717)255-7632 ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants TO: Plaintiffs and counsel Attorney for Defendant Pyramid Construction Services, Inc. IN THE COUNT OF COMMON PLEAS CUMBERLA]VD COUNTY, PENNSYLVANIA NO. 04-2277 CNIL ACTICIN JTJRY TRIAL DEMANDED NOTICE Defendants Lee C. Turner and M. Shazon Turner and counsel YOU ARE HEREBY notified to plead to the enclosed New Matter and Crossclaims within twenty (20) days of service hereof or a default judgment may bt; entered against you. THOMAS, THOMAS &HAFER, LLP C. Kent Price, Esquire 305 North Front :itreet P.O. Box 999 Harrisburg, PA 17108 (717)255-7632 DATED: 8I 13 1 b 7 THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire I.D. No. 06776 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717)255-7632 ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants Attorney for Defendant Pyramid Construction Services, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAPdD COUNTY, PENNSYLVANIA NO. 04-2277 CNIL ACTION JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT PYRAMID CONSTRUCTION SERVICES, INC. Admitted on infonnation and belief. 2. Admitted in part, denied in part. It is specifically denied that Defendant Pyramid has a principal place of business at 1 South Mazket Square, 12th Floor, Harrisburg, Dauphin County, Pennsylvania. To the contrary, Defendant Pyramid has its principal place of business at 4425 Valley Road, Enola, Cumberland County, Pennsylvania. The remaining allegations are admitted. Admitted. 4. Admitted. in part, denied in part. Admitted in part, denied in part. The allegation that tht; Turner and Ortenzio properties shaze a common boundary line is a conclusion of law and/or fact to which no answer is required. It is admitted that the Turner and Ortenzio properties aze adjact;nt to each other. 6. Denied. After reasonable investigation, Defendant Pyramid is without knowledge or information sufficient to form a belief as to the truth of the alle;;ation. 7. Denied. After reasonable investigation, Defendant Pyramid is without knowledge or information sufficient to form a belief as to the truth of the allegation. 8. Denied. After reasonable investigation, Defendant Pyramid is without knowledge or information sufficient to form a belief as to the truth of the alllegation. 9. Denied. It is specifically denied that Defendant Pyramid cut down and removed any trees on the Ortenzio property in the summer of 2003. By way of further answer, the allegations aze denied in accordance with Pa.R.C.P. 1029(e). 10. Admitted in part, denied in part. It is admitted that a meeting took place involving Rocco Ortenzio, John Ortenzio, Lee C. Turner and Michael Klinepeter to discuss the removal of trees from the Turner property adjacent to the Ortenzio property. I4 is specifically denied that the trees which were removed were located on the Ortenzio property, and it is further specifically denied that the removal of the trees from the Turner property had caused damage to the Ortenzio property. 11. Denied as stated. It is admitted, however, that during such meeting Defendant Lee C. Turner suggested that he and his wife, Defendant M. Sharon Turner, were willing to plant four (4) new trees in the azea where the trees had been removed, which suggestion was merely a neighborly gesture of good will and not an admission that the trees which had been removed were, in fact, on the Ortenzio property, which they were not. 12. Denied. It is specifically denied that a "proposal" was made by either Defendant Lee C. Turner or Michael Klinepeter regazding the replacement of trees and, therefore, it is specifically denied that any such "proposal" was accepted by Ortenzio. By way of further answer, the allegations aze denied in accordance with Pa.R.C.P. 1029(e). 13. Denied. It is specifically denied that an "agreement" ~Nas made by or among the parties regarding the replacement of trees. Byway of further answer, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 14. Denied. It is specifically denied that an "agreement" was made by or among the parties regarding the replacement of trees. By way of further answer, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 15. Admitted in part, denied in part. It is admitted that in January 2004 four (4) trees were planted on the Ortenzio property adjacent to the Turner property and that a berm was constructed within which the trees were planted. The remaining allegations are denied in accordance with Pa.R.C.P.1029(e) COUNTI Trespass Plaintiffs v. Pyramid Construiction 16. The answers set forth above in pazagraphs 1 through 15 are incorporated herein by reference. 17. Denied. It is specifically denied that Defendant Pyraniid cut down any trees on the Plaintiffs' property. To the contrary, any trees cut down by Defendant Pyramid were located on the Turner property. By way of further answer, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 18. Admitted in part, denied in part. It is admitted that subsequent to the cutting of the trees on the Turner property, Defendant Pyramid entered the Ortenzio property and constructed a berm within which four (4) trees were planted. It is specifically denied that Defendant Pyramid had been instructed not to reenter the Ortenzio property except in accordance with the terms and conditions set forth in the Complaint. To the contrary, Defendant Pyramid reentered the Ortenzio property in accordance with the understanding that such reentry was permitted for the purpose of constructing a berm and planting trees therein. It is further specifically denied that such reentry caused damage to the Ortenzio property. To the contrary, such reentry effected an improvement of the Ortenzio property through the construction of a berm and the planting of trees therein. Byway of further answer, all allegations not specifically admitted herein are denied in accordance with Pa.R.C.P. 1029(e). 19. Admitted in part, denied in part. It is admitted that Defendant Pyramid, through a subcontractor, constructed a berm and planted four (4) trees therein on the Ortenzio property. The remaining allegations are denied. To the contrary, the stumps from the trees which had been removed from the Turner property were not removed but rather were covered with backfill. 20. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer maybe required, it is specifically denied that the conduct of Defendant Pyramid was outrageous, was done with a bad motive, or demonstrated a reckless indifference to the rights of the Plaintiffs. Byway of further answer, the allegations aze denied in accordance with Pa.R.C.P. 1029(e). 21. Denied. After reasonable investigation, Defendant P;aamid is without knowledge or information sufficient to form a belief as to the truth of the allegations. WHEREFORE, Defendant Pyramid Construction Services, Inc. demands judgment in its favor and against Plaintiffs Rocco A. Ortenzio and Nancy M. Ortenzio. COUNT II Respondeat Superior Plaintiffs v. Lee C. Turner and M. Sharon Turner 22. The answers set forth above in pazagraphs 1 through 21 are incorporated herein by reference. 23.-26. The allegations contained within paragraphs 23 through 26 of the Complaint aze directed to a party other than Defendant Pyramid and, therefore, no answer is required. To the extent that an answer maybe required, the allegations contained within paragraphs 23 through 26 are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant Pyramid Construction Services, Inc. demands judgment in its favor and against Plaintiffs Rocco A. Ortenzio and Nancy M. Ortenzio. NEW MATTER 27. The Complaint fails to state a cause of action against Defendant Pyramid upon which relief maybe granted. 28. Defendant Pyramid did not trespass upon the propert}+ of the Plaintiffs at any time relevant hereto. 29. The trees which Defendant Pyramid removed while performing construction work on the Turner property were located on the Turner property. 30. Defendant Pyramid did not remove any trees that were located on the Ortenzio property. 31. Before removing any trees, Defendant Pyramid retained the services of a qualified surveyor to determine the location of the property line between the Turner and Ortenzio properties, as a result of which it was determined that the tree:s which were subsequently removed were located on the Turner property. 32. At all times relevant to Plaintiffs' claims, Defendant Pyramid conducted itself in a reasonable, lawful and prudent manner. 33. At no time relevant to Plaintiffs' claims did Defendant. Pyramid act in an outrageous manner or with a bad motive, nor did it demonstrate an indifference, reckless or otherwise, to the rights of the Plaintiffs. 34. Plaintiffs' Complaint fails to state a cause of action upon which punitive damages maybe justified or awarded. 35. Plaintiffs' claims maybe barred by the doctrine of waiver. 36. Plaintiffs may have failed to mitigate their damages. WHEREFORE, Defendant Pyramid Construction Services, Inc. demands judgment in its favor and against Plaintiffs Rocco A. Ortenzio and Nancy M. Ortenzio. NEW MATTER IN THE NATURE OF A CROSSCLAIM AGAINST DEFENDANTS LEE C. TURNER AND M. SHARON TURNER 37. If Defendant Pyramid is found to be liable to the Plaintiffs, the existence of any liability on the part of Defendant Pyramid being specifically denied, then Defendants Turner are jointly and/or severally liable with Defendant Pyramid, and/or Defendants Turner are liable over to Defendant Pyramid for contribution and/or indemnity. 38. Defendant Pyramid asserts this crossclaim against Defendants Tumer in order to preserve its right of contribution and indemnity. WHEREFORE, Defendant Pyramid Construction Services, Inc. demands judgment in its favor and against Plaintiffs. In the alternative, Defendant Pyramid Construction Services, Inc. demands that in the event judgment is entered against it, any liability on its part being specifically denied, that said judgment be entered jointly and/or severally against Defendants Lee C. Turner and M. Sharon Turner together with Defendant Pyramid, or that Defendants Lee C. Turner and M. Sharon Turner be held liable over to Defendant Pyramid Construction Services, Inc. for contribution and/or indemnity. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA. 17108 (717)255-7632 307692.1 VERIFICATION I, Michael Klinepeter, Project Manager for Pyramid Construction Services, Inc., do verify that the statements made in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. I understand Uhat false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. `6~ I3~ OBI Michael Klinepe er CERTIFICATE OF SERVK'E AND NOW, this 13th day of August, 2004, I, C. KENT PRICE, ESQUII2E, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant Pyramid Construction Services, Inc., hereby certify that I have this day served the within Answer with New Matter by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Theodore A. Adler, Esquire Thomas O. Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Michael L. Bangs, Esquire 429 South 18th Street Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP ~---~_ - C. Kent :Price, Esquire ROCCO A. ORTENZIO and ~ NANCY M. ORTENZPO>intiffs ~ vs. ) pyRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and j M. SHARON TURNEDefendants ) ANSWER OF DEFENDA~nANT PYI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, pENNSYLV ANIA N0. 2004-22:77 CIVIL TERM CIVIL ACTON -LAW JURY TRIAL DEMANDED TURNER AND M_ SHARD FRVi~('. SR. TO Cxuaa.-Ln=•° --- y liability to 37. Denied. It is specificall denied that Defendants Turneraha d i held liable that Defendant Pyramid in the matter or in the event that Defendant Py Defendants Turner aze jointly or severally liable with Defendant Pyramid or liable over to Defendant Pyramid for contribution and/or indemnity. 3g, paragraph 38 is a legal conclusion to which no answer is required. To the extent an answer is required it is specifically denied. WHEREFORE, Defendants Turner request that if liability is found against Defendant pyramid that Defendant Pyramid's request in its crossclaim be d tt dd• --'~ Camp Hill, PA 17011 (717)730-7310 Supreme Corot ID #41263 Respectfully submi e , ~~ MICI-IAE LL BANGS / Attorney for Defendants "~ 429 South 18th Street CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served the foregoing ANSWER T of same in the United States mail, postage prepaid, at CROSSCLAIM by depositing a copy Camp Hill, Pennsylvania, addressed to the following: C. Kent Price, Esquire Thomas Thomas & Hafer Post Office Box 999 Harrisburg, PA 17108 Theodore A. Adler, Esquire Reager & Adler 2331 Mazket Street Carnp Hill, PA 17011 DATE: ,~ DY S. HESBRO Legal Assis nt ~_ can c: o (_ J y C,4 I ,.. ~.._ ^O ~.) ~.. '.... _ ~ . ~ C.1 :) ~.., r:.) r~i Y7 •• ~_i cn ^r $,. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esqutre I.D. No. 06776 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717)255-7632 Attorney for Defendant Pyramid Construction Services, Inc. ROCCO A. ORTENZIO and IN THE COURT ~OF COMMON PLEAS NANCY M. ORTENZIO, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO.04-2277 v. CIVIL ACTION PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, NRY TRIAL DEMANDED Defendants REPLY OF DEFENDANT PYRAMID CONSTRUCTION SERVICES, INC. TO CROSSCLAIM OF DEFENDANTS LEE AND SHARON TURNER 42. The averments set forth in pazagraphs 1 through 26 of Defendant Pyramid's Answer with New Matter and Crossclaim are incorporated herein by reference. 43. The averments set forth in pazagraphs 1 through 36 of Defendant Pyramid's Answer with New Matter and Crossclaim aze incorporated herein by reference. 44. Denied. The allegations aze conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, it is specifically detued that Defendant Pyramid is liable to the Plaintiffs, is liable over to Defendants Turner, is jointly and/or severally liable to the Plaintiffs, or is liable to Defendants Turner for contribution and/or indemnity. WHEREFORE, Defendant Pyramid Construction Services, Inc. demands judgment in its favor and against all other parties hereto. THOMAS, THOMAS & HAFER, LLP ~ ~~`~~ C. Kent Price, Esquiire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717)255-7632 I.D. No. 06776 309738.1 VERIFICATION I, C. Kent Price, state that I am attorney for Defendant Pyramid Construction Services, Inc. that I make this Verification on behalf of Defendant Pyramid Construction Services, Inc. and that I am familiar with the facts and allegations set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my knowledge, information and belief. This verification and statement is made pursuant to 18 Pa.C.S. § 4904 relating to unswom falsification to authorities. C. Kent Price, Esquire DATE: 8 jai ~ O~ CERTIFICATE OF SERVICE AND NOW, this 23rd day of August, 2004, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant Pyramid Construction Services, Inc., hereby certify that I have this day served the within Reply of Defendant Pyramid Construction Services, Inc. to Crossclaim of Defendants Lee and Sharon Turner by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Theodore A. Adler, Esquire Thomas O. Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Michael L. Bangs, Esquire 429 South 18th Street Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire ~^'~ l~J l ~) ~I .,..-0 ~'.) it J Theodore A. Adler, Esquire REAGER & ADLER, P.C. Attorney LD. No. 16267 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiffs ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs IN THE COURT' OF COMMON PLEAS CLIMBERLANI> COUNTY, PENNSYLVANIA v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants NO.: 04-2277 CTVIL ACTION JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, PYRAMID CONSTRUCTION SERP[CES, INC. 27. Denied as a legal conclusion. 28. Denied as a legal conclusion. To the extent that. the averments of paragraph 28 of Defendant Pyramid's New Matter are deemed to be averments of fact, Plaintiffs' incorporate herein by reference paragraphs 9 and 15 of their Complaint as if fully set forth herein. 29. Denied. The trees that were removed were located on the Ortenzio property. In further response, Plaintiffs' incorporate herein by reference paragraphs 9 and 15 of their Complaint as if fully set forth herein. 30. Denied. Plaintiffs' incorporate herein by reference the averments of paragraph 29 of this Reply to New Matter. 31. Denied. After reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the truth of the averments of paragraph 31 of Defendant Pyramid's New Matter. Said averments are, therefore, denied and proof is demanded at trial. 32. Denied as a legal conclusion. 33. Denied as a legal conclusion. To the extent that the averments of paragraph 33 are deemed to be averments of fact, it is averred that the actions of Defendant Pyramid in entering onto the Ortenzio property after being expressly directed not to constitute outrageous conduct. 34. Denied as a legal conclusion. 35. Denied as a legal conclusion. 36. Denied as a legal conclusion. To the extent that the averments of paragraph 36 of Defendant Pyramid's New Matter are deemed to be averments of fact it is averred that Plaintiffs took all actions within their control to mitigate the damages they have suffered. WHEREFORE, Plaintiffs Rocco A. Ortenzio and Nancy M. Ortenzio respectfully request that judgment be entered against Pyramid Construction Services, Inc., in the amount of $60,583 plus lawful interest, costs and punitive damages. REPLY TO NEW MATTER IN THE NATURE OF A CROSS-CLAIM AGAINST DEFENDANTS LEE C. TURNER AND M. SIHARON TURNER 37-38. The averments of paragraphs 37-38 of Defendant Pyramid Construction's New Matter in the nature of a cross-claim are directed to a party other than the Plaintiffs, and therefore, no answer is required. Date: August 25, 2004 Telephone: (717) 763-1383 Attorneys for Plaintiffs 2331 Market Street Camp Hill, PA 17011 VERIFICATION I, Rocco A. Ortenzio, verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authori- ties. Date: ~~1`~f' By: ~c ~~ ~ occo A. Ortenzio CERTIFICATE OF SERVICF,_ AND NOW, this 25th day of August 2004, I hereby verify that I have caused a true and correct copy of the foregoing Plaintiffs' Reply to New Matter of Defendant, Pyramid Constructron Services, Inc. to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Michael L. Bangs, Esquire Bangs Law Office 302 South 18"' Street Camp Hill, PA 17011 C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA Christine M. Ciccocioppo, Paralegal PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ^x for JURY trial at the next term of civil court. ^ for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ROCCO A. ORTENZIO AtiH NANCY M. ORTENZIO, ® Civil Action -Law ^ Appeal from arbitration (other) (Plaintiff vs. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and SHARON TURNER, vs. (Defendant) The trial list will be called on OctohPr ~ n, 2006 and Trials commence on November 6. 2006 Pretrials will be held on October 1 9,~0~6 (Briefs are due S days before pretrials No.04-2277 Term Indicate the attorney who will try case for the party who files this praecipe: Theodore ~. Adler, Esquire, Reager & Adler, P.C., 2331 Market St., Camp Hill, PA ~ndicate trial counsel for other parties if known: Kent Price, Esquire, Thomas, Thomas & Hafer Michael C. Bangs, Esquire, Banas Law Office (c counsel for Pyramid Construction. Svc nsel,/,~or/~urners) , This case is ready for trial. Signed: rTT-- Print Name: Theodore A. Adler, Esquire ~ ntiffs Rocco A. Ortenzio and Date: August 31, 2006 Attorney for:NanayyPl=-t8atenaio ~ `~ 4 ~ _. " `t_ -° ' rj r . ,~ _ Y ' E ~ ; .. ..._ : ~ ,. ~,,.> > ;J ;-~ t.~.; i~ ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs V. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW N0. 04-2277 CIVIL TERM ORDER OF COURT AND NOW, this 19th day of October, 2006, by agreement of the parties, this matter is scheduled for a nonjury trial in Courtroom Number 3 of the Cumberland County Courthouse on Monday, January $th, 2007, commencing at 8:45 a.m. The parties are directed to pre-mark all exhibits and exchange them with opposing counsel by December 15, 2006. Any objections, other than relevance, to the admissibility of exhibits shall be made by motion in limine. All motions in limine with supporting authority shall be filed by December 29, 2006. Any responses with supporting authority shall be filed by January 5, 2007. Edward E. Guido, J. ~~ ~ 4~ ~~~ ~~~~ Theodore A. Adler, Esquire For the Plaintiffs C. Kent Price, Esquire ~-~p ~'~''~'`~`''~ ~~'.7a' bG For Defendant Pyramid Construction Services, Inc. Michael L. Bangs, Esquire For Defendants Lee C. Turner and M. Sharon Turner Court Administrator :lfh ROCCO A. ORTENZIO and IN THE COURT OF COMMON PLEAS OF NANCY M. ORTENZIO, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs PYRAMID CONSTRUCTION N0. 2004 - 2277 CIVIL TERM SERVICES, INC., LEE C. TURNER : And M. SHARON TURNER, Defendants : CIVIL ACTION -LAW ORDER OF COURT AND NOW, this 4T" day of JANUARY, 2007, the civil nonjury trial scheduled for Monday, January 8, 2007, is continued to MONDAY, MARCH 12, 2007, at 9:00 a.m. in Courtroom # 3. Edward E. Guido, J. ~eodore A. Adler, Esquire 2331 Market Street Camp Hill, Pa. 17011 Kent Price, Esquire l P.O. Box 999 Harrisburg, Pa. 17108 is ael L. Bangs, Esquire 429 South 18~' Street Camp Hill, Pa. 17011 :sld Q~ ~~ ~~ ~1"' ~~~ ~~~~ A~J.v~i..~`~d ~~.i. ~? ~~~~~ REAGER & ADLER, P.C. By: Theodore A. Adler, Esquire Attorney I.D. No. 16267 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Email: Tadler@ReagerAdlerPC.com Attorney for Plaintiffs ROCCO A. ORTENZIO and NANCY N[. ORTENZIO, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO.: 04-2277 PYRAMID CONSTRUCTION :CIVIL ACTION SERVICES, INC., LEE C. TURNER and M. SHARC)N TURNER, :JURY TRIAL DEMANDED Defendants PLAINTIFFS' MOTION IN LIMINE Plaintiffs, Rocco A. and Nancy M. Ortenzio, hereby file this Motion in Limine and in support thereof make the following averments: 1. By Order dated January 4, 2007, trial in this matter has been scheduled to commence on March 12, 2007. 2. ~On October 19, 2006, a pre•-trial conference was conducted by the Honorable Edward E. Guido. 3. .qt the pre-trial conference, counsel for Defendants Lee C. and M. Sharon Turner provided to Plaintiffs' counsel ten (10) photographs purporting to show the stumps of five (5) of the twelve (12) trees at issue in this lawsuit. 4. On February 16, 2007, pursuant to this Court's Pre-Trial Order, counsel for Defendants Turners identified twelve (12) photographs that the Turners intend to introduce into evidence at trial. These photographs have been identified by counsel for the Turners as Turner Exhibits 1 -12. A set of these photographs is attached hereto as Exhibit 1. 5. At the pre-trial conference counsel for the Turners identified and only provided to Plaintiffs' counsel copies of Turner Exhibits 2-9. 6. According to the Turners' counsel, Exhibits 2-9 are photographs taken in the Fall of 2006 by Pyramid Construction. Since the only Pyramid witness identified in the Turners' pre-trial memorandum is Michael Klinepeter (Klinepeter), it is assumed that these exhibits will be introduced into evidence through Klinepeter. 7. Klinepeter was deposed in connection with. this case. In his deposition, Klinepeter made the following statements under oath: (a) That Defendant Pyramid hired Susquehanna Valley Tree (Susquehanna) to remove the trees at issue in this lawsuit (see Exhibit 2 attached hereto); (b) The trees at issue were removed in the Summer of 2003. (See Exhibit 3 attached hereto); and (c) That Klinepeter was present for "maybe ahalf-hour" when the trees were being removed and that he did not know how long it took Susquehanna to remove the trees but that "it was less than a day." (See Exhibit 4 attached hereto). 8. Klinepeter also testified in deposition that a number of trees other than those at issue in the lawsuit were removed from. the Turner property. (See Exhibit 5 attached hereto). 2 9. Defendants Turner contend that Turner Exhibits 2-9 are relevant as being an accurate representation of the locations of five (5) of the twelve (12) trees at issue in this lawsuit prior to their being cut down by Susquehanna. 10. According to counsel for the Turners. Turner Exhibits 2-9 depict stumps on the Turner property that were uncovered by Pyramid in the Fall of 2006, more than three years after the trees at issue were removed. 11. Upon information and belief, Klinepeter will testify that Pyramid used an auger or similar device to locate and uncover the stumps. Plaintiffs were not notified that Pyramid intended to try and locate the stumps of trees on the Turner property and, therefore, no representatives of the Plaintiffs were present when Pyramid uncovered the stumps depicted in Turner Exhibits 2-9. 12. Klinepeter has testified in deposition that Susquehanna removed many trees from the Turner property as part of the site work for the construction of the Turners new home not just the trees at issue in this lawsuit. 13. For the photographs to be admitted into evidence, Klinepeter must be able to testify that the photographs accurately represent the condition of the site as it existed at the time the trees were removed by Susquehanna in August, 2003. Aiello v. SEPTA, 687 A.2d 399 (Pa. Cmwlth., 1996). Given Klinepeter's deposition testimony, he cannot so testify. 14. Exhibits 1, and 10-12 should be excluded because they were not identified as exhibits in the Turners' pre-trial memorandum as required by CCRP 212-4. 3 WHEREFORE, Plaintiffs respectfully request This Honorable Court GRANT their Motion in Limine and preclude Defendants Turner and Pyramid from introducing Turner Exhibits 1-12 into evidence. Date: March 1, 2007 Respect ully~/ bmitted, REAG R ~ DLFe~ P. % ~,'° v T eodore A. 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V~ ~~~+~, _ i ~; ,A t.v y~ [Turner Exhibit 12] ~~ I Y _ 1 IN TIDE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 2 ROCCO A. ORTENZIO AND 3 NANCY M. ORTENZIO, PLAINTIFFS - 4 VS N0. 04-2277 5 PYRAMID CONSTRUCTION . 6 SERVICES, INC., LEE C. TURNER AND M. SHARON TURNER, 7 DEFENDANTS 8 9 DEPOSITION OF: MICHAEL KLINEPETER 10 TAKEN BY: PLAINTIFFS 11 BEFORE: ANTHONY J. BALSITY, REPORTER. 12 NOTARY PUBLIC 13 DATE: AUGUST 16, 2005, 2:00 P.M. 14 PLACE: REALER & ADLER 2331 MARKET STREET 15 CAMP HILL, PENNSYLVANlA 16 17 APPEARANCES: 18 REALER & ADLER PC 19 BY: THEODORE A. ADLER, ESQUIRE 20 FOR - PLAINTIFFS 21 THOMAS, THOMAS & HAFER, LLP BY: C. KEI~IT PRICE, ESQUIRE 22 FOR - DEFENDANT PYRAMID CONSTRUCTION 23 MICHAEL L. BANGS, ESQUIRE 24 FOR - DEFENDANTS TURNER 25 GEIGER & LORI=A REPORTING SERVICE 1-800-222-4577 1 2 J 4 5 6 7 8 9 10 11 12 I3 i4 15 16 17 18 19 20 21 22 23 24 25 I5 Q But nowhere else? A No. MR. PRICE: When you say lire, I am assuming you mean a physical line, Pope line, string line? MR. ADLER: Some kind of ropy line, string line. BY MR. ADLER.: Q What was the scope of the site work what was involved? A Clearing the existing site from any vegetation. Initially we took down several trees in the front of the property, some regrading across the backyard to extend the depth of the backyard from the existing house, and excavation for the swimming pool in preparation for the driveway, new driveway. Q And so you say there were trees removed as part of the site work? A That's rictht. It was not under the site contract. We had a separate contract through Pyramid with Susquehanna Valley Tree. Q So they are the ones -- A Who did ail of our tree removal. Q They are the ones that did the GEIGER & LORI:A REPORTING SERVICE 1-800-222-457`7 3 20 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Facing the house? A Facing the house, I believe there was one tree taken down there. It wasn't of any size. It was a small tree planted up against the existing house that was taken clown when we built the addition. There was two trees on the right-hand side of the house up where their new garage sits now, if I recall, and there were 12 trees taken out across tale back of the property. Q Now, the 12 trees along the back. of the property, when -- and I am not asking for a specific date, but when during the project was a decision made to remove those trees? A I believe it was the end of that. summer of '03. Would have been in August. Q So the summer of '03 and who decided to remove those trees? A Lee Turner. Q Did he tell you why? A For the view. Q Did you have a project superintendent for the project who was there every day? GEIGER & LORIA. REPORTING SERVICE 1-800-222-4577 24 I 1 2 3 4 5 6 7 8~ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 removed those trees? A Yes. Q Were you there when they removeci them? A I was there for maybe a half hour while they were working. Q How long did it take them to remove the 12 trees? A I don't know. It was less than a day. Q You had marked the trees before they were to be removed? A Yes. Q And you did it with tree tape, same way you did the others? A I don`t recall on those trees how we marked them, but they were marked. Q How did you satisfy yourself that they were on the Turner property? A We after marking the property corners had gone down and looked where the~,~ were marked. Clearly appeared that the trees were well up on the Turner property. Lee and Sharon Turner also made it clear to me that it was their understanding that those trees were GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 Q But nowhere else? A No. MR. PRICE: When you say lime, I am assuming you mean a physical line, rope line, string line? MR. ADLER: Some kind of rope line, string line. BY MR. ADLER: Q What was the scope of the site work what was involved? A Clearing the existing site from any vegetation. Initially we took down several trees in the front of the property, some regrading across the backyard to extend the. depth of the backyard from the existing house, and excavation for the swimming pool in preparation for the driveway, new driveway. Q And so you say there were trees removed as part of the site work? A That's right. It was not under the site contract. We had a separate contract through Pyramid with Susquehanna Valley Tree. Q So they are the ones -- A Who did all of our tree removal. Q They are the ones that did the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 CERTIFICATE OF SERVICE AND NOW, this 1st day of March, 2007, I hereby verify that I have caused a true and correct copy of the foregoing Plaintiffs' Motion in Limine to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Michael L. Bangs, Esquire Bar-gs Law Office 429 South 18th Street Camp Hill, PA 17011 C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA Theodore A. Adler, Esquire MICHAEL L. BANGS, ESQUIRE ATTORNEY FOR DEFENDANTS I.D. NO. 41265 LEE C. AND M. SHARON TURNER 429 South 18~' Street, Camp Hill, PA 17011 (717) 730-7310 ROCCO A. ORTENZIO and ) IN THE COURT OF COMMON PLEAS NANCY M. ORTENZIO, ) OF CUMBERLAND COUNTY, Plaintiffs ) PENNSYLVANIA vs. ) N0.04-2277 PYRAMID CONSTRUCTION SERVICES) CIVIL ACTION INC., LEE G TURNER and M. SHARON ) TURNER, ) JURY TRIAL DEMANDED Defendants ) DEFENDANT TURNER'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE WITH NEW MATTER 1. Admitted. 2. Admitted. 3. Denied. Defendant Turner provided Plaintiff s counsel with ten (10) photographs showing stumps of trees that were removed which Defendants believe are at issue in this case under cover letter dated October 16, 2006. 4. Admitted. 5. Denied. In Defendant Turner's Pre-Trial Memorandum, it specifically indicates that the Defendant Turner would be using pictures of trees that were placed on site. These are Exhibits 11 and 12. Defendant Turner also identified that they would be using pictures showing the property line which are Turner Exhibits 1-10. Defendant Turner would note that Plaintiffs, prior to February 19, 2007, never provided Defendant Turner with Exhibits 5(a), 5(b), 5(c), 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j), 2(k), 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(h), 3(i), 3(j), 3(k), and 4. 6. Admitted in part and denied in part. It is admitted that Exhibits 2 through 9 are photographs that were taken in the fall of 2006 by Defendant Pyramid Construction. The rest of the averment is denied. Michael Klinepeter will authenticate the pictures for use at trial. Both Michael Klinepeter and Lee Turner will testify that the pictures accurately represent the stumps that remained after the trees were removed and show the location of the trees prior to their removal. 7. Admitted in part and denied in part. It is admitted that Mr. Klinepeter said the statements as indicated in Paragraphs (a), (b) and (c). It is denied that this is a complete and accurate representation of Mr. Klinepeter's deposition. Mr. Klinepeter testified at the deposition and will testify at the trial that the trees removed in the Turner's back yard were removed after staking the property line; after he and Mr. Turner and his wife Sharon Turner specifically identified the trees to be taken down; and after making a determination that those trees were on the Turner property. Moreover, Mr. Klinepeter will testify that no stumps were ever removed; the only thing that ever occurred as part of the regrading of the back yard was that they were in some instances covered as a result of the regrading process. In addition, the two largest tree stumps were covered by the four-foot berm which was constructed in this case. 8. Admitted in part and denied in part. It is admitted that Mr. Klinepeter testified at his deposition, and will testify at the trial of this case, that other trees were taken down. Plaintiffs' Exhibit 5 is only referencing trees that were taken down in the front yard of the project and Mr. Klinepeter will testify at length as to what steps he undertook to identify the trees to be taken down in the back yard. 2 9. Admitted in part and denied in part. Turner Exhibits 2-9 are relevant in that they are not only an accurate representation of the locations of some of the trees that were removed in this case but are actual pictures of the remaining stumps that were left and covered over by the regrading process. The pictures also clearly show that the trees that were removed were located entirely on the Turner property. 10. Admitted. 11. Admitted in part and denied in part. Mr. Klinepeter will testify that Pyramid primarily used a shovel to locate and uncover the stumps because Michael Klinepeter knew generally where the stumps were located. Defendants had no legal duty to notify Plaintiffs of the work performed by Pyramid on Turner's property. However, following the pre-trial conference, Turner's counsel offered Plaintiffs' counsel the opportunity for he and Rocco Ortenzio to meet on site at the Turner property to review the stumps that were depicted in the pictures. The meeting occurred on October 24, 2006 at which time Plaintiff Rocco Ortenzio, his counsel, and Turner's counsel (as well as Michael Holjes, Ortenzio's landscaper and witness in the case who was present but not permitted on the Turner property), met on site. Turner's counsel identified the stumps depicted in the pictures and ran a line to show the boundary line between the Turner and Ortenzio property. It should be noted that despite repeated requests throughout this litigation, Plaintiffs have yet to take any steps to uncover any stumps or alleged trees that were removed from their property even though the essence of their claim is that trees were removed from the Ortenzio property. 12. Admitted in part. It is admitted that Mr. Klinepeter testified in his deposition that other trees besides the ones at issue were removed as part of the site planning of the Turner property. However, Mr. Klinepeter has specific recollection and knowledge as to the trees at issue; how they were identified and marked for cutting; and that the trees were clearly owned by the Turners and removed from their property. 13. Denied as stated. This paragraph misstates the purpose of Mr. Klinepeter's testimony and the legal authority cited therein does not provide this Court with any authority to exclude the photographs. The condition of the Turner residence at the time the trees were removed is not at issue in this case. Rather, what is at issue is whether any trees that were removed were on the Ortenzio property. Mr. Klinepeter and Turner will both testify that the pictures are of the stumps that remained after the trees were removed and that the pictures show that the stumps are located on the Turner's property. Moreover, the pictures and testimony will be used as evidence to rebut Plaintiffs' contention that stumps were removed. 14. Denied. Both in Defendant Turner's Pre-Trial Memorandum and in Defendant Pyramid's Pre-Trial Memorandum, the exhibits were identified as required by CCRP 212-4 (see Defendant Turner's Pre-Trial Memorandum as well as Defendant Pyramid.) Respectfully submitted, ~ "~ MICHAEL L. BANGS (I. o. 41263) Attorney for Defendants er 429 South 18th Street, Camp Hill, PA 17011 (717) 730-7310 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served the foregoing DEFENDANT TURNER'S REPLY TO PLAINTIFF'S MOTION IN LIMINE WITH NEW MATTER, by depositing a copy of the same in the United States mail, postage prepaid, at Camp Hill, Pennsylvania, addressed to the following: Theodore A. Adler, Esquire Reager & Adler 2331 Market Street Camp Hill, PA 17011 C. Kent Price, Esquire Thomas Thomas & Hafer Post Office Box 999 Harrisburg, PA 17108 r ~ DATE: ~ ~'} O~ NL' ENDY K~ Paralegal ~"'} ~ L~ ~.J .~.~~ „a' ~ "!'t I~7 r= S f t" i ~yl } C;_ K~ _. ,e 'ti , ~,`f'i ,~ - r~ . _~_~ ; . ~. ;.rs ~ ~ ROCCO A. ORTENZIO and NANCY M. ORTENZIO, ~ o s 2oo~,~y~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants NO.: 04-2277 CIVIL ACTION JURY TRIAL DEMANDED ORDER AND NOW, this / day of March, 2007, Plaintiffs' Motion in Limine seeking to exclude the introduction into evidence Turner Exhibits 1-12 is hereby. ~~iE~ ~ V ~' -"` ~~ ~ .d/Y s Edward E. uido, Judge rtS- f`~ ~'D o6 l~~~~ ~_ ~~~~~~ 100Z -,~., , ~;-;-~~la~?1-1 ROCCO A. ORTENZIO and NANCY M. ORTENZIO, Plaintiffs v. PYRAMID CONSTRUCTION SERVICES, INC., LEE C. TURNER and M. SHARON TURNER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0. 2004-2277 CIVIL TERM ORDER OF COURT AND NOW, this 12th day of March, 2007, hearing in this matter is continued to Friday, April 20, 2007, and Monday, April 30, 2007, at 1:00 p.m. on each date. odore A. Adler, Esquire Kent Price, Esquire ~chael L. Bangs, Esquire srs 1 ~~ By the Court;, "= - t r'' Edward E. Guido, J. ~~P,~dit~1,~N!`~d L E ~ ! Wd S I ~~~11(~0~ A~1G~vr~i.C;~d ~tl. 3~i~~QwC~1~f ROCCO A. ORTENZIO and IN THE COURT OF COMMON PLEAS OF NANCY M. ORTENZIO, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs PYRAMID CONSTRUCTION N0. 2004 - 2277 CIVIL TERM SERVICES, INC., LEE C. TURNER And M. SHARON TURNER, Defendants :CIVIL ACTION -LAW ORDER OF COURT AND NOW, this 24T" day of APRIL, 2007, after hearing the evidence and having reviewed the exhibits we are not persuaded that any trespass occurred.i Therefore, we find in favor of the Defendants, Lee C. Turner, M. Sharon Turner and Pyramid Construction Services, Inc. ~eodore A. Adler, Esquire 2331 Market Street Camp Hill, Pa. 17011 f~ Kent Price, Esquire " P..O. Box 999 Harrisburg, Pa. 17108 ,,,Michael L. Bangs, Esquire 429 South 18"' Street Camp Hill, Pa. 17011 :sld By the Cou Edward E. Guido, J. t The trees appear to have been located on the Turner property. Any incursion on to Plaintiffs' property thereafter was with the knowledge of and authorized by Plaintiffs or their agents. ~1 ~~~ ~ ~~ ~~ ~.~~~ ~'t~lUttiC~~-1 ~ s.~d ~H1. ~0 ~~~;~.:;~.~-t`l~ lid