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Home My WebLink About09-6164IN THE COURT OF COMMON PLEAS CUMBERLAND, PENNSYLVANIA No. Q - ?p G 20' Civil Action - (X) Law ( ) Equity PHYLLIS D. MICHITSCH, and KENNETH W. MICHITSCH, her husband, vs. Plaintiff(s) & Addresses GABRIEL BROTHERS GATEWAY SQUARE MALL 75 GATEWAY DRIVE MECHANICSBURG, PA 17050 to be served at GABRIEL BROTHERS 3851 UNION DEPOSIT ROAD HARRISBURG, PA 17109-5920 LESTER ASSOCIATES 111 PRESIDENTIAL BOULEVARD SUITE 140 BALA CYNWYD, PA 19004 COMPULSORY ARBITRATION Defendant(s) & Addresses PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. X Writ of Summons shall be issued and forwarded to ( )Attorney (X)Sheriff _ JOSEPH J. DIXON ESQUIRE, _ 126 STATE STREET _ -HARRISBURG, PA 17101 _ (717) 236-8515 _ Names/Address/Telephone No. Of Attorney ign of Attorney Supreme Court ID No.28290 Date: ?2-//- j WRIT OF SUMMONS TO THE ABOVE-NAMED DEFENDANT(S): GABRIEL BROTHERS AND LESTER ASSOCIATES YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S AS AV CO ENCED AN ACTION AGAINST YOU. P thonotary Date: Se?ete_^i -c r, // l?Dy by-- Deputy ( ) Check here if reverse is issued for additional information. IARY 2009 SEP I I AM I I: 3 JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky, Esquire I. D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone: (717) 761-4540 E-mail: jrn@jdsw.com PHYLLIS D. MICHITSCH and KENNETH W. MICHITSCH, her husband, Plaintiffs Attorney for Defendant, Lester Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-6164 v. GABRIEL BROTHERS and LESTER ASSOCIATES, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned on behalf of Defendant Lester Associates in the above-captioned matter. FILED-t"77iCE OF 1-IF t:_7NRY OF ,s±" 3 ! AM ll: 43 N18'.l PENNSYLVANIA Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER 9 By: C XAL? John R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: August 27, 2010 Counsel for Defendant Lester Associates 410844 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe for Entry of Appearance has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on August 27, 2010: Joseph J. Dixon, Esquire 126 State Street Harrisburg, PA 17101 JOHNSON, DUFFLE, STEWART & WEIDNER 11 By: L&dj Joh R. NinoAy JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone: (717) 761-4540 E-mail: jrn@jdsw.com PHYLLIS D. MICHITSCH and KENNETH W. MICHITSCH, her husband, Plaintiffs 10Au)G CUMSE"_ =JUV1Y PENNSYLVANIA Attorney for Defendant, Lester Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-6164 V. GABRIEL BROTHERS and LESTER ASSOCIATES, Defendants PRAECIPE TO THE PROTHONOTARY: CIVIL ACTION - LAW JURY TRIAL DEMANDED PLEASE enter a Rule upon the Plaintiffs to file a Complaint within twenty (20) days of the date of service thereof or suffer judgment of non pros. JOHNSON, DUFFIE, STEWART & WEIDNER Y Date: August 27, 2010 ohn R. inosky, Esquire RULE TO: Plaintiffs Phyllis D. and Kenneth W. Michitsch c/o Joseph J. Dixon, Esquire You are hereby directed to file a Complaint in the above-captioned matter within 20 days or judgment non pros will be entered against yo Date: 8 f 3i loo otary 410849 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe for Rule to File Complaint has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on August 27, 2010: Joseph J. Dixon, Esquire 126 State Street Harrisburg, PA 17101 JOHNSON, DUFFIE, STEWART & WEIDNER By: Jiz zizyza? Joh R. Ninosky J PHYLLIS D. MICHITSCH, and KENNETH W. MICHITSCH, her husband, Plaintiff vs. GABRIEL BROTHERS GATEWAY SQUARE MALL 75 GATEWAY DRIVE MECHANICSBURG, PA 17050 LESTER ASSOCIATES 111 PRESIDENTIAL BOULEVARD SUITE 140 BALA CYNWYD, PA 19004 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-6164 '""7 e~ a ~':'~ ` • ~-:~ ~~ CIVIL ACTION -LAW "-' ~-~ ~ :~ z -, _r, JURY TRIAL DEMANDED ~ ~=' `'' ~~ ... ~~~ t ) ~.: i ~ _... ~, ~-. NOTICE TO DEFEND 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 AN 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 JUDGEMENT 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 OR CANNOT AFFORD ONE, TELEPHONE THE NUMBER LISTED BELOW OR GO TO THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 PHYLLIS D. MICHITSCH, and KENNETH W. MICHITSCH, her husband, Plaintiff vs. GABRIEL BROTHERS GATEWAY SQUARE MALL 75 GATEWAY DRIVE MECHANICSBURG, PA 17050 LESTER ASSOCIATES 111 PRESIDENTIAL BOULEVARD SUITE 140 BALA CYNWYD, PA 19004 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-6164 CIVII. ACTION-LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, this day of _, 2010, comes the Plaintiff, Phyllis D. Michitsch and Kenneth W. Michitsch (her husband), by and through their attorney Joseph J. Dixon, Esquire, who respectfully avers as follows: L The Plaintiffs are Phyllis D. Michitsch and Kenneth W. Michitsch (her husband, adult individuals who reside at 1022 Topview Drive, Harrisburg, Dauphin County, Pennsylvania 17112. 2. The Defendant, Gabriel Brothers, is a Pennsylvania business entity who operated a retail store at Gateway Square Mall, 75 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. The Defendant, Lester Associates, is a business organization who own the Gateway Square Mall located at 6250 Carlisle Pike, Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 4. The principle place of business of Lester Associates is 111 Presidential Boulevard, Suite 104, Bala Lynwood, Montgomery County, Pennsylvania 19004. On or about September 14, 2007, between 10:30 AM and 11:00 AM, the Plaintiff traveled to the Gateway Square Mall in Mechanicsburg, Pennsylvania to go shopping at Gabriel Brothers retail store. 6. At said time and place, the Plaintiff was walking from the parking area towards the store. As the Plaintiff walked across the parking lot towards the store, she stepped into a hole in the parking lot area causing severe personal injuries to herself. 7. Said hole or depression in the parking lot area was at least six or seven inches deep. 8. As a result of the incident described herein, the Plaintiff suffered severe personal injuries. These injuries include, but are not limited to lumbar facet syndrome, lumbar spinal joint dysfunction, segmental dysfunction of the knee, lumbar radiculalgia, segmental dysfunction, ankle/foot, aggravation of lumbar spondylosis (most significant at L2-3 level), disc bulges and herniations seen at additional lumbar levels as well, left lower extremity pain with musculotendinous strain/sprain to lateral aspect of the left hip, lateral aspect of the left knee and lateral ligament complex sprain to left ankle, left leg piriformis syndrome with trochanter bursitis, iliotibial band syndrome, sprain of left ankle. 9. The injuries sustained by the Plaintiff was due to the negligence and carelessness of both Defendants, most particularly described later in this Complaint. 10. The injuries sustained by the Plaintiff was not in any way due to her own actions or conduct. 11. As a result of the injuries sustained by the Plaintiff, she has had to undergo medical treatment and incur medical expenses. The medical treatment is still continuing and the expenses will continue to accumulate. The total amount of which is unascertained at this time. 12. As a result of said injuries, the Plaintiff has undergone in the past and will undergo in the future, great mental and physical pain and suffering. 13. The Plaintiff believes and therefore avers that as a result of the injuries sustained in the fall, she will have permanent residual physical problems. 14. As a result of the injuries sustained in the fall, the Plaintiff has had to limit her daily activities. 15. As a result of the injuries sustained in the fall, the Plaintiff has suffered a loss of her ability to enjoy life and life's pleasures. COUNTI PHYLLIS D. MICHITSCH and KENNETH W. MICHITSCH, her husband V. GABRIEL BROTHERS 16. Paragraphs 1 through 15 of the within Complaint are incorporated herein by reference and made a part hereof. 17. The Defendant, Gabriel Brothers, has a duty to its customers to make sure that ingress and egress to the store was safe. 18. The negligence of the Defendant, Gabriel Brothers, consists of the following: a) Failure to properly maintain the parking lot area; b) Failure to use reasonable care to discover a dangerous condition in the parking lot area; c) Failure to use reasonable care to realize there was an unreasonable risk of harm in the parking lot area in front of their store; d) Failure to use reasonable care to protect business visitors from a dangerous condition on the property; e) Failure to properly notify the owner of the shopping center of the hazardous condition on the parking lot area immediately in front of the store; f) Failure to properly warn pedestrians of a hazardous condition in the parking lot by posting signs and/or cones alerting them to the hazardous condition; WHEREFORE, the Plaintiff prays this Honorable Court enter judgment against the Defendant in an amount less than Fifty Thousand Dollars ($50,000.00), an amount requiring compulsory arbitration. COUNT II PHYLLIS D. MICHITSCH and KENNETH W. MICHITSCH, her husband V LESTER ASSOCIATES 19. Paragraphs 1 through 15 of the within Complaint are incorporated herein by reference and made a part hereof. 20. The Defendant, Lester Associates, has a duty to customers of its shopping plaza to make sure that ingress and egress from the parking area to the stores is safe. 21. The negligence of the Defendant, Lester Associates, consists of the following: a) Failure to properly maintain the parking lot area; b) Failure to use reasonable care to discover a dangerous condition in the parking lot area; c) Failure to use reasonable care to realize there was an unreasonable risk of harm in the parking lot of the Gateway Square Mall and Shopping Plaza; d) Failure to use reasonable care to protect business visitors from a dangerous condition on the property; e) Failure to properly supervise any contractors that may have been in charge of repairing the parking lot area; f) Failure to properly warn pedestrians of a hazardous condition in the parking lot by posting signs and/or cones alerting them to the hazardous condition; WHEREFORE, the Plaintiff prays this Honorable Court enter judgment against the Defendant in an amount less than Fifty Thousand Dollars ($50,000.00), an amount requiring compulsory arbitration. COUNT III PHYLLIS D. MICHITSCH and KENNETH W. MICHITSCH, her husband V GABRIEL BROTHERS and LESTER ASSOCIATES 22. Paragraphs 1 through 15 of the within Complaint are incorporated herein by reference and made a part hereof; 23. As a result of said injuries sustained by his wife, Phyllis D. Michitsch, the Plaintiff, Kenneth W. Michitsch, has been and will be deprived of assistance, companionship, consortium and society of his wife, all of which have been and will be to the great loss and detriment; 24. As a result of said injuries sustained by his wife, the Plaintiff, Kenneth W. Michitsch, has suffered a permanent diminution of his ability to enjoy life and life's pleasures. WHEREFORE, the Plaintiff prays this Honorable Court enter judgment against the Defendant in an amount of less than Fifty Thousand Dollars ($50,000.00), an amount requiring compulsory arbitration. Respectfully submitted, Joseph J. Dixon, Esquire Attorney ID 28290 126 State Street Harrisburg, PA 17101 (717) 236-8515 Attorney for the Plaintiffs Dated: ' ~ / ~ ; ' VERIFICATION I verify that the statements made in this ~ d ~`'~ ~L,J-i~T ,are trnie and correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: ~~ ~~ ~~ ,~ _~,~ CERTIFICATE OF SERVICE AND NOW, this 21st day of September, 2010, I, Joseph J. Dixon, Esquire, hereby certify that I have served a true and correct copy of the foregoing Plaintiff's COMPLAINT this day by depositing the same in the United States Mail, first class, postage prepaid, in the Post Office at Harrisburg, Pennsylvania, addressed to: GABRIEL BROTHERS 3851 UNION DEPOSIT ROAD HARRISBURG, PA 17111 MONICA N. TURNER CASUALTY CLAIMS ADJUSTER CHUBB GROUP OF INSURANCE COMPANIES CLAIMS SERVICE CENTER 600 INDEPENDENCE PARKWAY P.O. BOX 4700 CHESAPEAKE, VA 23327-4700 r , _ A~ ~ ~I q' ~ If Date. f., y%~ , JyJ ~~ ~ i. f , JOHN R. NINOSKY, ESQUIRE JOHNSON, DUFFIE, STEWART & WEIDNER 301 MARKET STREET P.O. BOX 109 LEMOYNE, PA 17043-0109 The Law Office of Joseph J. Dixon, Esquire '`~ / JOSEPH J. DIXON, ESQUIRE ATTORNEY ID 28290 126 STATE STREET HARRISBURG, PA 17101 (717) 233-8757 ATTORNEY FOR PLAINTIFFS FILED-OFFICE OF THE PROTH0i40TArz, 2010 OCT 12 AM 10, 10 CUMBERLAND COUNT%' PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PHYLLIS D. MICHITSCH and KENNETH W. MICHITSCH, her husband, CIVIL DIVISION No. 09-6164 Plaintiffs, V. GABRIEL BROTHERS and LESTER ASSOCIATES, Defendants. JURY TRL4L DEMANDED PRAECIPE FOR APPEARANCE Filed on behalf of Gabriel Brothers, one of the Defendants Counsel of Record for This Party: Kristin L. Pieseski, Esquire Pa. I.D. #76246 Jason M. Logue, Esquire Pa. I.D. #89415 DAVIES, MCFARLAND & CARROLL, P. C. Firm #281 One Gateway Center, I Wh Floor Pittsburgh, PA 15222-1416 (412) 281-0737 {D0407267:1 } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PHYLLIS D. MICHITSCH and KENNETH W. MICHITSCH, her husband, Plaintiffs, V. GABRIEL BROTHERS and LESTER ASSOCIATES, Defendants. No. 09-6164 PRAECIPE FOR APPEARANCE Kindly enter the appearance of Kristin L. Pieseski, Esquire, Jason M. Logue, Esquire and Davies McFarland & Carroll, P.C. on behalf of Defendant, Gabriel Brothers in the above matter. DAVIES, McFA A & CARROLL, P.C. By: /Aeys ieseski, Esquire gu e, Esquire r Gabriel Brothers, one of nts (D0407267:1 ) CERTIFICATE OF SERVICE I, the undersigned, hereby certify that IIsserved the foregoing document to all counsel of record in the following manner on the [ day of V G'`?0? 52010: Via Facsimile X Via Hand Delivery Via First Class U.S. Mail X Via Overnight Mail Via Certified Mail/ Return Receipt Request Joseph J. Dixon, Esquire John R. Ninosky, Esquire 126 State Street Johnson Duffle Stewart & Weidner Harrisburg, PA 17101 301 Market Street (717) 236-8515 P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Plaintiffs (717) 761-4540 Attorney for Lester Associates DAVIES, MCFA.' By: Kristi Jason Att Pi jpr A & CARROLL, P.C. eseski, Esquire . ogue, Esquire s for Carnegie Library of gh Foundation t/d/b/a Carnegie {D0407267:11 t i.1i` t ~ iC ~l~r~ 1 i~Ji"~V it~i~~~ t~i~l ~~~' ~'~ P~~ 3~ 27 f',G~1~J~~~4~~ti~~~~ JOHNSON, DU FIE, STEWART 8e WEIDNER By: John R. inosky, Esquire I.D. No. 780 301 Market ~, reet P. O. Box 10 Lemoyne, PA 17043-0109 Telephone: (, 17) 761-4540 E-mail: jrn~j sw.com PHYLLIS D. MICHITSCH and KENNETH . MICHITSCH, her husband, Plaintiffs Attorney for Defendant, Lester Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-6164 v. CIVIL ACTION -LAW GABRIEL B OTHERS and LESTER AS OCIATES, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Phylli D. and Kenneth W. Michitsch, c/o J seph J. Dixon, Esquire YOU ~4RE REQUIRED to plead to the within Answer with New Matter within 20 days of service here f or a default judgment may be entered against you. Date: JOHNSON, DUFFIE, STEWART &WEIDNER By: J n . Ninosky, Esquire orney I.D. No. 78000 19, 2010 Counsel for Defendant Lester Associates r JOHNSON, DU FIE, STEWART & WEIDNER By: John R. N nosky, Esquire i.D. No. 7800 301 Market S reet P. O. Box 10 Lemoyne, PA 17043-0109 Telephone: (17) 761-4540 E-mail: irnCdli' sw.com Attorney for Defendant, Lester Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.09-6164 CIVIL ACTION -LAW PHYLUS D., ICHITSCH and KENNETH . MICHITSCH, her husband, Plaintiffs v. GABRIEL LESTER~ AND Johnson, Duh stating the fa 1. sufficient knc therefore der 2. Lester Assoc 3. business eni Associates a ,OTHERS and ~OCIATES, Defendants JURY TRIAL DEMANDED DEFENDANT LESTER ASSOCIATES' ANSWER WITH NEW MATTER TO PLAINTIFFS'_COMPLAINT NOW, comes the Defendant, Lester Associates, by and through its counsel, 'fie, Stewart & Weidner, P.C., who files this Answer with New Matter by respectfully Denied. After reasonable investigation, answering Defendant is without ledge or information to form a belief as to the truth of this averment. The same is ~d, and strict proof demanded at the time of trial. The allegations contained in this paragraph are directed at party. other than rtes. Therefore, no response by Lester Associates is required. Admitted in part; denied in part. It is admitted that Lester Associates is a /. The remainder of the allegation is denied. By way of further answer, Lester o does business as Gateway Square Associates. 4. Denied. Lester Associates is located at 111 Presidential Boulevard, Suite 140, Bala Cynwd, PA. 5.-15 Denied. The averments contained in this paragraph are denied pursuant to Pa.R.C.P. 1 COUNT I v. GABRIEL BROTHERS 16. Answering Defendant incorporates herein by reference its answers to paragraphs 1 through 15 above as if fully set forth at length. 17.-1 The allegations contained in these paragraphs are directed at party other than Lester Assoc ates. Therefore, no response by Lester Associates is required. WHE EFORE, Defendant Lester Associates respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in its favor. COUNT II 19. ~ Answering Defendant incorporates herein by reference its answers to paragraphs 1 through 18' Bove as if fully set forth at length. 20.-21. Denied. The averments contained in these paragraphs contain conclusions of law and fact th which no response is required. If a response is deemed required, the averments contained hen~in are denied. WHE EFORE, Defendant Lester Associates respectfully requests that Plaintiffs' Complaint be! ismissed with prejudice and that judgment be entered in its favor. 2 COUNT III 22. Answering Defendant incorporates herein by reference its answers to paragraphs 1 through 21' above as if fully set forth at length. 23.-2' . Denied. The averments contained in these paragraphs contain conclusions of law and fact o which no response is required. If a response is deemed cequired, the averments contained he ein are denied. Complaint 25. 26. responsibility 27. negligence. 28. 29. was open an~ 30. tEFORE, Defendant Lester Associates respectfully requests that Plaintiffs' dismissed with prejudice and that judgment be entered in its favor. NEW MATTER Plaintiffs' Complaint fails to state a claim upon which relief may be granted. Plaintiffs may have failed to mitigate their damages, if any, with any liability or the part of Lester Associates being expressly denied. Plaintiffs' claims and/or alleged losses may be barred by their comparative There was no dangerous condition present at the time of the alleged incident. If there was a dangerous condition, which is expressly denied, such condition obvious and Plaintiff assumed the risk of encountering that dangerous condition. Lester Associates was not on either constructive or actual notice of any alleged dangerous cm dition. 31. Plaintiffs' injuries and alleged damages were not caused by any acts, omissions, or breaches of ~ ty of the Defendants. 3 32. Plaintiffs' claims and/or alleged losses may be barred by the applicable statute of limitations. Defendant Lester Associates respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in its favor. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: ~ J hn R. Ninosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Lester Associates Date 19, 2010 4 ATION VERIFIC I, atricia M. Smith of Lester Associates, have read the foregoing Answer with New Mater and hereby affirm that it is true and correct to the best of my personal knowledge, or information and belief. This Verification and statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities; I verify that all tl~e statements made in the foregoing are true and correct and that false may subject me to the penalties of 18 Pa. C.S. §4904. .~- Patrici M. Smith 417787 CERTIFICATE OF SERVICE certify that a copy of the foregoing Answer with New Matter has been duly served upon~~the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on October 19, 2010: Jose h J. Dixon, Esquire 126 ate Street Harri burg, PA 17101 Coun el for Plaintiffs Jaso; M. Logue, Esquire David ,McFarland 8 Carroll, P.C. One ateway Center, 10th Floor Pittsq rgh, PA 15222-1416 Court el for Gabriel Brothers JOHNSON, DUFFIE, STEWART 8 WEIDNER ~:...... By: John R. Ninos y E ~ i 4 7 ; A ..Rw r ~~ ~tl,. r~ '} ! rs ~ ~~ ~ ~ ~?I~~~~'OURT OF COMMON PLEAS PHYLLIS D. MICHITSCH, and KENNETH W. MICAITSCH, her husband, CUMBERLAND COUNTY, Plaintiff vs. - PENNSYLVANIA GABRIEL BROTHERS NO. 09-6164 GATEWAY SQUARE MALL 75 GATEWAY DRIVE CIVIL ACTION-LAW MECHANICSBURG, PA 17050 NRY TRIAL DEMANDED LESTER ASSOCIATES 111 PRESIDENTIAL BOULEVARD SUITE 140 BALA CYNWYD, PA 19004 Defendants RE~/P''LY TO NEW MATTER And now this ~~ day of ~~ ! , 2010 comes the Plaintiffs Phyllis D. Michitsch and Kenneth W. Michitech, her husband, by and through their attorney, Joseph J. Dixon, Esquire, who respectfully replies to New Matter as follows: 25. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required, the Plaintiff s complaint sets forth a negligence claim which release can be granted. 26. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required, the Plaintiff took all reasonable steps to mitigate damages. 27. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required, the negligence in this case, is 100% with both defendants. 28. Denied. To the contrary, there was an extremely hazardous condition on the defendants property which caused injury to the plaintiff. 29. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required, the Plaintiff did not see the dangerous condition until after the incident occurred. 30. Denied. Said averment is a conclusion of iaw which requires no response. To the extent however that a response is required, the hazardous condition was there for a significant period of time with the defendant having actual or constructive notice of it. 31. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required, the harm and damages to the plaintiff were caused by the acts, omission, and breaches of the defendants. 32. Denied. Said averment is a conclusion of law which requires no response. To the extent however that a response is required, all statutes of limitations were followed. WHEREFORE, the Plaintiff prays this Honorable Court enter judgment against the Defendant in an amount less than Fifty Thousand Dollars ($50,000.00), an amount requiring compulsory arbitration. Respectfully Submitted gy; . Joseph J. Dixon, Esquire Attorney No. 28290 126 State Street Harrisburg, PA 17101 (717) 236-8515 Attorney for the Plaintiff VERIFICATION I verify that the statements made in this ,are true and correct. I understand that false statements herein are made su ject to the penalty of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: C ~ ~ ~ ; l d ~n'~~-,~ CERTIFICATE OF SERVICE AND NOW, this 21st day of October, 2010, I, Joseph J. Dixon, Esquire, hereby certify that a copy of the foregoing Reply to New Matter has been duly served upon the following counsel of record, by depositing the same in the United States Mail, first class, postage prepaid, in the Post Office at Harrisburg, Pennsylvania, addressed to: JASON M. LOGUE, ESQUIRE DAVIES, MCFARLAND & CARROLL, PC ONE GATEWAY CENTER, 10TH FLOOR PITTSBURGH, PA 15222-1416 ~1 Date: JOHN R. NINOSKY, ESQUIRE JOHNSON, DUFFIE, STEWART & WEIDNER 301 MARKET STREET P.O. BOX 109 LEMOYNE, PA 17043-0109 The Law Office of Joseph J. Dixon, Esquire By: -- JOSEPH J. DIXON, ESQUIRE ATTORNEY ID 28290 126 STATE STREET HARRISBURG, PA 17101 (717) 233-8757 ATTORNEY FOR PLAINTIFFS PHYLLIS D. MICHTTSCH, and KENNETH W. MICHITSCH, her husband, Plaintiff vs. GABRIEL BROTHERS GATEWAY SQUARE MALL 75 GATEWAY DRIVE MECHANICSBURG, PA 17050 LESTER ASSOCIATES 111 PRESIDENTIAL BOULEVARD SUITE 140 BALA CYN~~-'I'D, PA 19004 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-61b4 CIVIL ACTION-LAW JURY TRIAL DEMANDED ANSWERS TO INTERROGATORIES AND NOW this 22nd day of October, 2010, comes the Plaintiff Phyllis D. Michitsch and Kenneth W. Michitsch, her husband, by and through her Attorney, Joseph J. Dixon, Esquire, who respectfully answers Interrogatories as follows: 1. a. Phyllis D. Michitsch b. Phillis D. Savarese Phillis D. Sheridan c, Kenneth W. Michitsch March 14, 1970 New York City, City Hall Center Street d. 1022 Topview Drive ~ ~ z~ Harrisburg, PA r-~ ca 'Y ~ ~- ~F .tt~ f r.,.~ e'`r' e. 713/1938 ~~ rv = f. 521-46-6948 ~° ~ ~ ~-? ~ _ ~ -, ~`~ _ ~ g' None ~~~ ~ ~~ ~ ., . 2. 1943 P.S. 77, Seneca Avenue, Ridgewood NY 1952 -1957 Grover Cleavland High School, Hemirod St., NY 1958 -1959 Jamica Queens Avenue, NY, Computer School . 3. None, I am retired 4. See averments in the Complaint. By way of further additional answer at approximately 11 a.m. on the date in question, I was walking in the parking lot after parking my car. I was at The Gateway Shopping Center going to shop at Gabriels. As I approached the store, my left leg went out from under me, twisting my ankle, knee, leg and hip. My foot had stepped into a large pothole just before the entrance of the Gabriel Brothers store in the parking lot. I fell against the front of the store stopping me from hitting the ground. After leaning against the building for awhile, I notified an employee of what had happened. 5. See answer to number 4 and averments in the Complaint. Byway of further answer, the defendants were conducting the business of a shopping plaza and retail store without properly maintaining the pazking azea leading to the retail store. I fell in a hazardous condition on the pazking lot and after I fell, I realized how severe the condition was. 6. None 7. None 8. Unascertained at this time. 9. See photos attached to Answers to Request for Production of Documents filed contemporaneously with these documents. 10. No expert at this time. 11. Phyllis D. Michitsch and Kenneth W. Michitsch. Other witnesses are unascertained at this time. 12. Unascertained at this time. 13. Unascertained at this time. 14. None 15. None CERTIFICATE OF SERVICE AND NOW, this 22nd day of October, 2010, I, Joseph J. Dixon, Esquire, hereby certify that a copy of the foregoing Answers to .interrogatories has been duly served upon the following counsel of record, by depositing the same in the United States Mail, first class, postage prepaid, in the Post Office at Harrisburg, Pennsylvania, addressed to: JASON M. LOGUE, ESQUIRE DAMES, MCFARLAND & CARROLL, PC ONE GATEWAY CENTER, 10TH FLOOR PITTSBURGH, PA 15222-1416 JOHN R. NINOSKY, ESQUIRE JOHNSON, DUFFIE, STEWART & WEIDNER 301 MARKET STREET P.O. BOX 109 LEMOYNE, PA 17043-0109 The Law Office of Joseph J. Dixon, Esquire By: _---~ JOSEpH J. DIXON, ESQUIRE ATTORNEY ID 28290 126 STATE STREET HARRISBURG, PA 17101 (717) 233-8757 ATTORNEY FOR PLAINTIFFS Date: ~ ~ ~ s/C y VERIFICATION 1 verify that the statements made in this ~,~i~ ~ w ,are true and correct. 1 understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated:~j PHYLLIS D. MICHITSCH, and KENNETH W. MICHITSCH, her husband,• Plaintiff vs. GABRIEL BROTHERS GATEWAY SQUARE MALL 75 GATEWAY DRIVE MECHANICSBURG, PA 17050 LESTER ASSOCIATES 111 PRESIDENTIAL BOULEVARD SUITE 140 BALA CYNWYD, PA 19004 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-6164 CIVIL ACTION-LAW JURY TRIAL DEMANDED ANSWER TO REQUEST FOR PRODUCTION OF DOCUMENTS AND• NOW, this 22nd day of October, 2010, comes the Plaintiff, Phyllis Michitsch and Kenneth W. Michitsch, her husband, through her Attorney, Joseph J. Dixon, who respectfully responds to Answer to Request for Production and Documents as follows: 1. None available. 2. None available. 3. None available. 4. None available. ~~ ~~ 5. See attached medical records and attached medical bills. `~ ~ a `'-+ ~~ ~~ ~ '~~ ; 6. See attached photos. ~;~ -~ ~~~ fl cn ~~., ~..a , 7 None available :.. f . :~ ~ `~ ~ _k ~~~~~,, .-. ~...~ ~`; ' c . . -°~C i ~ 8. None available. _ ~ ~'' ' ~,-~ None available. 10. None available at this time. By: Joseph J. Dixon, Esquire Attorney I.D. No. 28290 126 State Street Harrisburg, PA 17101 (717) 236-8515 Attorney for the Plaintiff Date: x ~ l/~ CERTIFICATE OF SERVICE AND NOW, this 22nd day of October, 2010, I, Joseph J. Dixon, Esquire, hereby certify that a copy of the foregoing Answer to Request for Production of Documents has been duly served upon the following counsel of record, by depositing the same in the United States Mail, first class, postage prepaid, in the Post Office at Harrisburg, Pennsylvania, addressed to: JASON M. LOGUE, ESQUIRE JOHN R. NINOSKY, ESQUIRE DAVIES, MCFARLAND & CARROLL, PC JOHNSON, DUFFIE, STEWART ONE GATEWAY CENTER, 10~ FLOOR & WEIDNER PITTSBURGH, PA 15222-1416 301 MARI{ET STREET P.O. BOX 109 LEMOYNE, PA 17043-0109 The Law Office of Joseph J. Dixon, Esquire By: /~ JOSEPH J~IXON, ESQUIRE ATTORNEY ID 28290 126 STATE STREET HARRISBURG, PA 17101 (717) 233-8757 ATTORNEY FOR PLAINTIFFS Date: ~ ~ ~ VERIFICATION I verify that the statements made in this ~i~ S ~ ~ ~ ,are true and correct. I understand that false statements herein are made subject to the penalty of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: G ~19;~`lV~r fk-f-~.G~ WHITE AND WILLIAMS LLP BY: William D. Kennedy Identification No(s). 53023 One Westlakes 1235 Westlakes Drive, Suite 310 Berwyn, PA 19312-2416 610.240.4703 kennedyw@whiteandwilliams.com PHYLLIS D. MICHITSCH and KENNETH W MICHITSCH, her husband Plaintiffs, V. GABRIEL BROTHERS and LESTER ASSOCIATES Defendants. Attorneys for Defendant, Gabriel Brothers CUMBERLAND COUNTY COURT O=OMMON PLEAS _ a NO. 09-6164 71 • 77 f .,.rte F.. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Gabriel Brothers, ONLY, in the within matter. WHITE AND WILLIAMS LLP BY: s? William D. Kennedy Attorneys for Defendant, Gabriel Brothers 6935744v.1 rILED-OFF{CEOF T'HE PRQTNO?'?3`'F,RY 2011 APR 12 AM 10: 35 CUMBERLAND COUNTY PENNSYLVANIA PHILLIS D. MICHITSCH and IN THE COURT OF COMMON PLEAS KENNETH W. MICHITSCH, her husband CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 09-6164 GABRIEL BROTHERS CIVIL ACTION - LAW and LESTER ASSOCIATES COMPULSORY ARBITRATION Defendants , PRAECIPE TO SETTLE DISCONTINUE AND END Please mark the above-captioned Writ settled, discontinued and ended. Respectfully submitted, By: (Joseph J. Dixon, Esquire 7 Attorney No. 28290 126 State Street Harrisburg, PA. 17101 (717) 236-8515 Attorney for the Plaintiffs Date: I/ //