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HomeMy WebLinkAbout09-8279V/ vr? W. Scott Henning, Esquire I.D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiffs Fax : (717) 233-3029 E-mail: Henning@HHRLaw.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2009 EPq Civil Action (XX) Law ( ) Equity JURY TRIAL DEMANDED JEAN K. BIFFART, and ROBERT BIFFART, her husband 8 Umberto St. New Cumberland, PA 17070 versus Plaintiff(s) & Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue A Writ of Summons in the above-captioned action. X Writ of Summons Shall be issued and forwarded to ( )Attorne W. Scott Henning, Esquire Handler, Henning & Rosenbe[g LLP 1300 Linglestown Road Harrisburg. PA 17110 Si ture of A r (717) 238-2000 Supreme Cou ID Name/Address/Telephone No. of Attorney Date: November 3 FLOYD MORROW JR. 221 Chester Rd. Enola, PA 17025, and WEST SHORE REGIONAL POLICE DEPT. 510 Herman St. Lemoyne, PA 17043 Defendant(s) & Address(es) Q :` 1 ARY i,t', 209 NO 30 FT 0: I # f7/7/ h et 9 70 oC 4t? ??3t1a97 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION A[.AINRT Y01 I Date: L2 14k P_ L149 Prothonotary by M cl jf L iwd Deputy ( ) Check here if reverse is used for additional information PROTHON. - 55 NOTICE TO PLEAD TO: All Parties YOU ARE HEREBY NOTIFIED TO PLE TO THE ENCLOSED NEW MATTER TWENTY (20) DAYS FROM THE SER'W HEREOF OR A DEFA JUDGMENT" MAY BE ENTfy~j~INST YOU. WILLIAM J. FERREN & ASSOCIATES By: Christine E. Munion, Esquire Attorney I.D. #72724 Ten Sentry Parkway, Suite 301 Blue Bell, PA 19422 (2151274-1713 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jean K. Biffart and Robert Biffart, h/w v. Floyd Morrow, Jr. and West Shore Regional Police Dept. No.: 2009-8279 Civil Action -Law Jury Trial Demanded DEFENDANTS' FLOYD MORROW Jr. and WEST SHORE REGIONAL POLICE DEPARTMI ~~r..r. m~ nr s r~TTrL`L`~C !`l1Mpi Ai1V'T W7TA NF,V~ AND NOW, Defendants West Shore Regional Police Department and and through their attorneys William J. Ferren & Associates, and in support of its to plaintiff's complaint states as follows: 1. Denied. After reasonable investigation, answering Defendants knowledge or information sufficient to form a belief as to the truth of the said paragraph, and they are therefore deemed denied. 2. Denied. After reasonable investigation, answering Defendants knowledge ar information sufficient to form a belief as to the truth of the said paragraph, and they are therefore deemed denied. ~_ ~ . _., ;. - t ~' s`-'- ~~ f .._- ~_- ~'a .~ N ca ~. r~'~ v~ -,-, ~..~ ~.: ~: ~~/ -Y1 ..~ ~~ -~, r= Y, .'_~ -,:a Morrow, Jr. by and new matter without contained in without contained in 3. Admitted. 4. Admitted. 5. Denied. Answering Defendants are advised by counsel that the c averments constitute conclusions of law to which no response is necessary and t are denied. 6. Denied. Answering Defendants are advised by counsel that the c averments constitute conclusions of law to which no response is necessary and t are denied. ~, 7. Denied. Answering Defendants are advised by counsel that the c averments constitute conclusions of law to which no response is necessary and t are denied. 8. Denied. After reasonable investigation, answering Defendants ar knowledge or information sufficient to form a belief as to the truth of the averm said paragraph, and they are therefore deemed denied. 9. Denied. Answering Defendants are advised by counsel that the c~ averments constitute conclusions of law to which no response is necessary and are denied. 10. Denied. Answering Defendants are advised by counsel that the c averments constitute conclusions of law to which no response is necessary and are denied. 11. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and are denied. 12. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and are denied. the same the same the same without is contained in sponding ;fore the same the same same same COUNT I-NEGLIGENCE JEAN K. BIFFART v. OFFICER FLOYD MORROW 13. Answering defendants incorporate by reference its answers to paragraphs 1 through 12 of Plaintiffs' complaint as though the same were set forth herein at length. 14. (a. through k.) Denied. After reasonable investigation, answerin~ Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in said paragraph, and they are therefore deemed denied. By way of iiurther reply, answering Defendants deny each and every allegation of negligence and carelessness contained in Paragraphs 14(a) through 14(k). Answering Defendants at all times acted with ~`easonable and due care. 15. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and ~herefore the same are denied. After reasonable investigation, answering Defendants are without knnowledge or information sufficient to form a belief as to the truth of the averments contained in said paragraph, and they are therefore deemed denied. 16. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and ~herefore the same are denied. After reasonable investigation, answering Defendants are without l~nowledge or information sufficient to form a belief as to the truth of the averments contained in said paragraph, and they are therefore deemed denied. 17. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and ~herefore the same are denied. After reasonable investigation, answering Defendants are without l~nowledge or information sufficient to form a belief as to the truth of the averments contained in said paragraph, and they are therefore deemed denied. 18. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and are denied. After reasonable investigation, answering Defendants are without 1 information sufficient to form a belief as to the truth of the averments contained and they are therefore deemed denied. 19. Denied. Answering Defendants are advised by counsel that the c averments constitute conclusions of law to which no response is necessary and are denied. After reasonable investigation, answering Defendants are without l information sufficient to form a belief as to the truth of the averments and they are therefore deemed denied. 20. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and the same or in said paragraph, the same or in said paragraph, the same are denied. After reasonable investigation, answering Defendants are without owledge or information sufficient to form a belief as to the truth of the averments containe in said paragraph, and they are therefore deemed denied. WHEREFORE, answering Defendants demand judgment in their favor together with interest and costs and such other relief as this Honorable Court appropriate. COUNT II-VICARIOUS LIABILITY JEAN K. BIFFART v. WEST SHORE REGIONAL POLICE 21. Answering defendants incorporate by reference its answers to 20 of Plaintiffs' complaint as though the same were set forth herein at length. 22. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and against plaintiff just and TMENT 1 through the same are denied. 23 Denied. Answering Defendants are advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 24. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 25. Denied. Answering Defendants are advised by counsel that the c rresponding averments constitute conclusions of law to which no response is necessary and erefore the same are denied. 26. Denied. Answering Defendants are advised by counsel that the c rresponding averments constitute conclusions of law to which no response is necessary and herefore the same are denied. 27. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and herefore the same are denied. 28. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 29. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and herefore the same are denied. 30. Denied. Answering Defendants are advised by counsel that the rresponding averments constitute conclusions of law to which no response is necessary and herefore the same are denied. WHEREFORE, answering Defendants demand judgment in their favor aid against plaintiff together with interest and costs and such other relief as this Honorable Court deems just and appropriate. COUNT III-LOSS OF CONSORTIUM ROBERT BIFFART v. OFFICER FLOYD MORROW 31. Answering defendants incorporate by reference its answers to paragraphs 1 through 30 of Plaintiffs' complaint as though the same were set forth herein at length. 32. Denied. After reasonable investigation, answering Defendants ar without knowledge or information sufficient to form a belief as to the truth of the said paragraph, and they are therefore deemed denied. 33. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and are denied. 34. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and are denied. WHEREFORE, answering Defendants demand judgment in their favor together with interest and costs and such other relief as this Honorable Court appropriate. COUNT IV -LOSS OF CONSORTIUM ROBERT BIFFART v. WEST SHORE REGIONAL POLICE D 35. Answering defendants incorporate by reference its answers to 34 of Plaintiffs' complaint as though the same were set forth herein at length. contained in the same the same against plaintiff just and ARTMENT 1 through 36. Denied. After reasonable investigation, answering Defendants a~e without knowledge or information sufficient to form a belief as to the truth of the averrr~ents contained in said paragraph, and they are therefore deemed denied. 37. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and are denied. 38. Denied. Answering Defendants are advised by counsel that the averments constitute conclusions of law to which no response is necessary and are denied. WHEREFORE, answering Defendants demand judgment in their favor together with interest and costs and such other relief as this Honorable Court appropriate. NEW MATTER 39. All defendants are political subdivisions whose liability for statutorily prescribed by the Pennsylvania Political Subdivisions Tort Claim §8542 (hereinafter referred to as "The Act") 40. The Act provides a general grant of immunity to political subdivi: departments and employees, when acting within the scope of their office or d~ 41. The Act further provides limited exceptions under which recovery made against political subdivisions such as defendants. the same the same against plaintiff just and s in tort is 42 Pa. C.S.A. their tort claims may be 42. Plaintiff s cause of action is or may be barred or otherwise limited b~ the Pennsylvania Political Subdivisions Tort Claims Act, 42 Pa. C.S.A. §8241 et sec . 43. Plaintiff s cause of action is barred because plaintiff has failed to give notice to the defendants within the six (6) month statute of limitations as set forth in 42 Pa. C.S.A. §8522. 44. Some if not all of Plaintiff's allegations of negligence are not causes of action that fall within exceptions to the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. §8541 et. seq. 45. Any benefits received by plaintiff or to which plaintiff may be entitled other than the proceeds from a life insurance policy are deductible from any damages which against the defendants. Act of October 5, 1980, P.L. 693, No. 142 §221(e) 42 46. Any claim by plaintiff against the answering defendant is barred or October 5, 1980, P.L. 693, No. 142 Pa. C.S.A. §8541 et sec .providing 47. If any injuries and/or damages were sustained by the plaintiff as Complaint, they were caused in whole or in part by persons other than the over whom the answering defendants had no control and for whose actions be assessed 8553 et sec . cited by the Act of ltal immunity. ;d in his ing defendants and cants are not liable. 48. Whatever injuries and damages, if any, were sustained by plaintiff as averred in his Complaint were caused in whole or in part by conditions and circumstances the answering defendants. 49. Plaintiff s claims are barred or substantially reduced because of reasonably or timely to mitigate damages. 50. Any negligence of the answering defendants was not a substantial harm complained of by plaintiff. 51. The claims of plaintiff are barred by the appropriate statutes of the control of iff s failure to act in causing the and repose. 52. Answering Defendants cannot be primarily liable for the alleged inju~ies of the plaintiff. 53. Plaintiff s' Complaint fails to state a cause of action upon which 54. Answering Defendants were not negligent. 55. Answering Defendants did not cause any alleged, harm, injury or 56. The negligent act or omissions of other individuals or entities intervening causes of the damages and/or injuries alleged to have been 57. Answering Defendants are not responsible for persons, events, conditions beyond Answering Defendants' control. can be granted. superseding, by Plaintiff. or 58. Plaintiff s claims may be barred in whole or in part by assumption o~the risk. 59. Plaintiff s claims may be barred in whole or in part, or reduced by Plaintiff's contributory and/or comparative negligence. 60. Plaintiff's negligence was greater than that of any defendant. 61. Plaintiff has not sustained any injuries cognizable under Pennsylvarli law as a consequence of answering defendant's alleged action. 62. Plaintiff s claims are barred because Plaintiff has sustained no injury ~n fact. 63. Pennsylvania Rule of Civil Procedure 238, pertaining to delay damages, is inapplicable under the facts of the present case, and is unconstitutional and in violation of they Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. 64. Without waiver of the above defense, to the extent that delay dama~~~ are alleged, any such delay was not caused by answering Defendants but was caused by Plaintiffs or by a circumstance not the fault of answering Defendants, and delay damages should riot be assessed for same. 65. Plaintiff may have entered into a release which bars and/or limited recovery in this action. 66. Plaintiff s claims may be barred in whole or in part by the doctrine a~'res judicata and/or collateral estoppel. 67. Plaintiff s claims, if any, may be reduced and/or limited by any compensation and/or benefit. 68. Plaintiff has failed to mitigate damages. BY & ASSOCIA source of ~I~ISTINE E. MUNION, ESQ Attorney for Defendants VERIFICATION I, Thomas P. Martini, Chairman, West Shore Regional Police Commissio ,verify that the statements made in the foregoing Answer that are within the personal knowled e, are true and correct, and as to the facts based on the information of others including information gathered by our attorneys, after diligent inquiry, believes them to be true. Further, this Verification' s signed on the recommendation of my attorneys, who advise me that the statements and language n this document are required legally to raise issues for resolution at trial by the Court, or by continu ng investigation and preparation for trial. To the extent that the contents are that of counsel, I hav relied upon my counsel in making this Verification. I understand that the statements made herein are made subject to penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Date: T~ ~ ~ I n Thomas L. Martini, Chairman West Shore Regional Police i nmission :393157 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jean K. Biffart and Robert Biffart, h/w v. Floyd Morrow, Jr. and West Shore Regional Police Dept. No.: 2009-8279 Civil Action -Law Jury Trial Demanded CERTIFICATE OF SERVICE I, Christine E. Munion, Esquire, counsel for Defendants Borough of Weitzel, hereby state that a true and correct copy of the foregoing Answer to with New Matter was served on the counsel below onJv~ ~ , 2010, by same in the United States regular first-class mail, first-class postage prepaid. ATTORNEY FOR PLAINTIFF W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 WILLIAM ~N & ASSOCIA BY: _ __ CH INE E. M ,ESQUIRE Attorney for Defendants and Brian s Complaint a copy of ~, ~' T ~ cl~'i ~~UG- .K Pm 3 : !~ :, ,,., .,} ~~.;: r~; .. __ W. Scott Henning, Esquire I.D.#32288 HANDLER, HENNING 8 ROSENBERG, LLP 1300 Linglestown Road Hamsburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiffs Fax : (717) 233-3028 E-mail: Henning~HHRLaw.com JEAN K. BIFFART, and IN THE COURT OF COMMON PLEAS ROBERT BIFFART, :CUMBERLAND COUNTY, PENNSYLVANIA her husband Plaintiffs v. NO. 2009- 8279 FLOYD MORROW JR., and WEST SHORE REGIONAL POLICE DEPARTMENT, Defendants :CIVIL ACTION -LAW PLAINTIFFS' REPLY TO NEW MATTER AND NOW, comes the Plaintiffs, Jean K Biffart and Robert Biffart, by and through their attorney, HANDLER, HENNING Sz ROSENBERG, LLP, by W. Scott Henning, Esq., and responds to the Defendants' allegations of New Matter as follows: 39. Denied. The allegation set forth in paragraph 39 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, Plaintiff acknowledges that she will be bound by any provisions of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A §8542, et seq., that the Honorable Court deems properly applicable to the subject cause of action. 40. Denied. The allegation set forth in paragraph 40 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, Plaintiff acknowledges that she will be bound by any provisions of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A §8542, et seq., that the Honorable Court deems properly applicable to the subject cause of action. 41. Denied. The allegation set forth in paragraph 41 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, Plaintiff acknowledges that she will be bound by any provisions of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A §8542, et seq., that the Honorable Court deems properly applicable to the subject cause of action. By way of further answer, the Plaintiffs assert that the subject cause of action falls within one of the exceptions to the grant of immunity to Political Subdivisions, and proof to the contrary is demanded at the trial in this matter. 42. Denied. The allegation set forth in paragraph 42 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, Plaintiff acknowledges that she will be bound by any provisions of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A §8542, et seq., that the Honorable Court deems properly applicable to the subject cause of action. 2 43. Denied. The allegation set forth in paragraph 43 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs' cause of action is barred because the Plaintiff failed to give notice to the Defendants within the six month period set forth in 42 Pa. C.S.A. §8522. By way of further answer, the Plaintiffs assert that the Defendants were aware of the subject cause of action and the incident giving rise to the cause of action on the very day that the incident occurred. No further notice was required pursuant to 42 Pa. C.S.A. §8522. 44. Denied. The allegation set forth in paragraph 44 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs' allegations of negligence do not fall within the exceptions of the Pennsylvania Political Sub-Division Tort Claims Act, and proof to the contrary is demanded at the trial in this matter. 45. Denied. The allegation set forth in paragraph 45 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiffs acknowledge that they will be bound by any provisions of the Act of October 5, 1980, P.L. 693, No. 142 §221(e), 42 Pa. §8553, et seq., that the Honorable Court deems properly applicable to the subject cause of action. 46. Paragraph 46 is a conclusion in law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiffs acknowledge that they will be bound by any provisions of the 3 Act of October 5, 1980, P.L. 693, No. 142 (sic) Pa. C.S.A. §8541, et seq., that the Honorable Court deems properly applicable to the subject cause of action. 47. Denied. It is denied that the injuries and damages sustained by the Plaintiffs were caused in whole or in part by persons other than the Answering Defendants and over whom the Answering Defendants did not have control, and proof to the contrary is demanded at the trial in this matter. 48. Denied. It is denied that the injuries and damages sustained by the Plaintiffs were caused in whole or in part by conditions and circumstances beyond the control of the Answering Defendants, and proof to the contrary is demanded at the trial in this matter. 49. Denied. It is denied that the Plaintiffs' claims should be barred or substantially reduced because of Plaintiffs' failure to act reasonably or timely to mitigate damages, and proof to the contrary is demanded at the trial in this matter. 50. Denied. The allegation set forth in paragraph 50 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the negligence of the Answering Defendants was not a substantial factor in causing the harms complained of by Plaintiffs. By way of further answer, the Plaintiffs assert that the concept of "substantial factor" has been superseded by the phrase "factual cause". To the extent applicable, the concept of "factual cause" should be the concept submitted to the jury during the Jury Instructions. 51. Denied. The allegation set forth in paragraph 51 is a conclusion of law to which no responsive pleading is required, however, to the extent 4 that the Honorable Court deems a response necessary, it is denied that the claims of the Plaintiffs are barred by the Statute of Limitations or the Statute of Repose, and proof to the contrary is demanded at the trial in this matter. 52. Denied. The allegation set forth in paragraph 52 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Answering Defendants are not primarily liable for he injuries sustained by the Plaintiff, Jean Biffart, and proof to the contrary is demanded at the trial in this matter. 53. Denied. The allegation set forth in paragraph 53 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs' Complaint fails to state a cause of action upon which relief can be granted, and proof to the contrary is demanded at the trial in this matter. 54. Denied. The allegation set forth in paragraph 54 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiffs deny that the Answering Defendants were not negligent in causing the Plaintiffs' injuries, and proof to the contrary is demanded at the trial in this matter. 55. Denied. The allegation set forth in paragraph 55 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Answering Defendants did not cause harm, injury and loss to the Plaintiffs, and proof to the contrary is demanded at the trial in this matter. y~ u 56. Denied. The allegation set forth in paragraph 56 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that there were negligent acts or omissions of other individuals or entities that constituted a superseding and/or intervening cause of the injuries and damages sustained by the Plaintiffs, and proof to the contrary is demanded at the trial in this matter. 57. Denied. The allegation set forth in paragraph 57 is a conclusion of law or a factual assertion without any factual basis, to which no responsive pleading is required, however to the extent that the Honorable Court deems a response necessary, it is denied that any other persons, events, circumstances or conditions, other than the Answering Defendants' negligence caused the injuries to the Plaintiffs, and proof to the contrary is demanded at the trial in this matter. 58. Denied. The allegation set forth in paragraph 58 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs' claims are barred in whole or in part by the Doctrine of Assumption of Risk, and proof to the contrary is demanded at the trial in this matter. By way of further answer, the Plaintiffs assert that the Assumption of the Risk Doctrine is not applicable to the subject cause of action, given the facts involved in the subject cause of action and the Appellate Court cases that have recently interpreted the limitations of the Assumption of the Risk Doctrine. 59. Denied. The allegation set forth in paragraph 59 is a conclusion of law to which no responsive pleading is required, however, to the extent that the 6 Honorable Court deems a response necessary, it is denied that the Plaintiffs' claims are barred in whole or in part by any contributory or comparative negligence on the part of Plaintiff, Jean Biffart, and proof to the contrary is demanded at the trial in this matter. By way of further answer, the Plaintiffs assert that Plaintiff, Jean Biffart, was not in any way contributorily or comparatively negligent. 60. Denied. The allegation set forth in paragraph 60 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs' claims are barred in whole or in part by any contributory or comparative negligence on the part of Plaintiff, Jean Biffart, and proof to the contrary is demanded at the trial in this matter. By way of further answer, the Plaintiffs assert that Plaintiff, Jean Biffart, was not in any way contributorily or comparatively negligent. 61. Denied. The allegation set forth in paragraph 61 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff has not sustained injuries cognizable under Pennsylvania law, and proof to the contrary is demanded at the trial in this matter. 62. Denied. The allegation set forth in paragraph 62 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs' claims are barred because Plaintiffs have not sustained an injury in fact, and proof to the contrary is demanded at the trial in this matter. 7 63. Denied. The allegation set forth in paragraph 63 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiffs acknowledge that they will be bound by any statutory decisions and Appellate Court decisions that the Honorable Court deems properly applicable to the subject cause of action with respect to the application of delay damages pursuant to Pennsylvania Rule of Civil Procedure No. 238. 64. Denied. At this stage in the proceedings, the Plaintiffs are not in a position to address the Answering Defendants' assertions with regard to the cause of delays in the proceedings as it would effect the application of delay damages, since the legal proceedings have only recently been initiated. 65. Denied. It is denied that the Plaintiffs have entered into a release which may bar or limit the recovery in the subject cause of action, and proof to the contrary is demanded at the trial in this matter. 66. Denied. The allegation set forth in paragraph 66 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs' claims may be barred in whole or in part by the Doctrine of Res Judicata and/or Collateral Estoppel, and proof to the contrary is demanded at the trial in this matter. 67. Denied. The allegation set forth in paragraph 67 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiffs acknowledge that they will 8 be bound by any collateral source rules that the Honorable Court deems properly applicable to the subject cause of action. 68. Denied. Paragraph 68 is a reiteration of Paragraph 49 and to that extent, the Plaintiffs set forth their response to Paragraph 49 as though fully set forth herein. WHEREFORE, Plaintiffs, Jean Biffart and Robert Biffart, seeks damages from the Defendants in an amount in excess of the compulsory arbitration limits of Cumberland County exclusive of interest and costs. Respectfully submitted, HANDLER, HENNING 8~ ROSENBERG, LLP By: DATED: ` o~'o ~~ W. Scott a g, squire Supreme C rt I. . # 32 1300 Lingl stow Roa Harrisbur , PA 711 (717) 238- Attorney for Plai 9 VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (cl W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Date: ''~-'~1~ CERTIFICATE OF SERVICE On the 2"d day of August, 2010, I hereby certify that a true and correct copy of JEAN K. BIFFART, and ROBERT BIFFART, her husband Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2009- 8279 FLOYD MORROW JR., and WEST SHORE REGIONAL POLICE DEPARTMENT, . Defendants :CIVIL ACTION -LAW Plaintiffs' Reply To New Matter was served upon the following by depositing in U.S. Mail; Christine E. Munion, Esq Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 Very truly yours, HANDLER, HENNING 8~ ROSENBERG, LLP By: WSH/tgd HANDLER, HENNING & ROSENBERG, LLP By: W. Scott Henning, Esquire Attorney I.D. #32298 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jean K. Biffart and Robert Biffart, h/w V. Floyd Morrow, Jr. and West Shore Regional Police Dept. : No.: 2009-8279 Civil Action -Law Jury Trial Demanded ORDER TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: c? C rasa) =rn x? Nr r? C? mc, z Kindly mark the above captioned matter Settled, Discontinued and Ended. N b m co T? 3 c? e' w? rn F am ;1= c:) 1 -4 cr ? -n HANDLER. HENNING & ROSENBERG, LLP By: