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HomeMy WebLinkAbout10-4821.~° l.. - T1 ~. 't,ra~ ,, Stephen G. Held, Esquire ~ ,, ~ ~ I.D. No. 72663 ~~~u ~,~L ~.~ P~ ~: 3Q HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 C;.~~,r~~ ~ ~`.~-~,Y. Harrisburg, PA 17110 rte, y , ~,., , ,, Telephone: (717) 238-2000 Attorneys for Plaintiff Fax : (717) 233-3029 E-mail: Held@hhrlaw.com STEVEN HARPER II, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. NO. )p - y$a~ ~IvilTtA,ITY1 BRIAN SHOTTS and CHERIE SHOTTS :CIVIL ACTION -LAW Defendants 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 LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 717-249-3166 ( u ~Ra. oo Po Amr a~ 113x1 ~~a~sm~~l Stephen G. Held, Esquire I.D. No. 72663 HANDLER, HENNING 8~ ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiff Fax : (717) 233-3029 E-mail: HeldQhhrlaw.com STEVEN HARPER II, Plaintiff v. BRIAN SHOTTS and CHERIE SHOTTS Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . NO. CIVIL ACTION -LAW AVISO LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mks adelante en las siguientes p~iginas, debe tomar accibn dentro de los proximos veinte (20) dias despu~s de la notificacibn de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accibn como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacibn o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mks aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes pars usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYAA LASIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 717-249-3166 Stephen G. Held, Esquire I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiff Fax : (717) 233-3029 E-mail: HeldQhhrlaw.com STEVEN HARPER II, Plaintiff ~. BRIAN SHOTTS and CHERIE SHOTTS Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ~~ _ y~al crJ%l -f-~~ CIVIL ACTION -LAW COMPLAINT AND NOW, comes the Plaintiff, Steven Harper, II, by and through his attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and brings forth this Complaint against the Defendants, Brian and Cherie Shotts, and avers as follows: 1. Plaintiff, Steven Harper, II, is an adult individual currently residing at 862 Carlwynne Manor, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendants, Brian and Cherie Shotts, are adult individuals currently residing at 10 Mooredale Road, Carlisle, Cumberland County, Pennsylvania 17015. 3. At all times material hereto, Defendants, Brian and Cherie Shotts, were either in ownership, possession, management and/or control of the Premises located at and known as 353 North Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013 (hereinafter, "the Premises"). 4. At all times material hereto, Plaintiff, Steven Harper, I I, was lawfully upon the Premises as a licensee. 5. At all times material hereto, Defendants, Brian and Cherie Shotts, had permitted dangerous conditions to exist on the Premises of which they had lawful ownership. 6. At all times material hereto, Defendants, Brian and Cherie Shotts, who had control of the Premises, had allowed a window pane to fall from the second floor of the apartment building of the Premises. 7. On or about September 17, 2008, Plaintiff, Steven Harper, II, was lawfully walking on the sidewalk of the Premises. While walking on the sidewalk, an unsecured glass window pane fell from a second floor apartment. The glass pane fell and struck Plaintiff, causing personal injuries to the Plaintiff. 8. As a direct and proximate result of the negligence of the Defendants, Brian and Cherie Shotts, the Plaintiff sustained serious injuries as set forth more specifically below. 9. At all times material hereto, Plaintiff, Steven Harper, I I, believes and therefore avers, that Defendants, Brian and Cherie Shotts, were in ownership, possession, management, and/or control of the Premises and was responsible for maintaining and/or enforcing the safe condition of the Premises. 2 10. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Steven Harper, II, were caused directly and proximately by the negligence of Defendants, Brian and Cherie Shotts, generally and more specifically as set forth below: (a) In causing or permitting a glass window pane to fall from the second story of the apartment building at the Premises thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In failing to make a reasonable inspection of the Premises which would have revealed the existence of the dangerous condition posed by the unsecured window and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (c) In failing to ensure the windows at the Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (d) In failing to properly secure the window of the Premises so as to avoid the situation where it could fall to the sidewalk below and cause injury; (e) In failing to keep every window in sound condition and good repair upon the Premises pursuant to Section 304.13 of the International Property Maintenance Code; (f) In failing to keep every window, other than a fixed window, held in position by window hardware pursuant to Section 304.13.2 of the 3 International Property Maintenance Code; and, g) In failing to maintain in a reasonably safe condition that would prevent someone lawfully on the Premises from being injured. 11. Defendant had actual knowledge or should have known through the exercise of ordinary care and diligence that there existed an unsecured window on the second floor of the apartment building on the Premises where Plaintiff, Steven Harper, II, was injured. 12. As a direct and proximate result of the negligence of Defendant, Plaintiff, Steven Harper, II, sustained serious injuries including, but not limited to a laceration on his lower right leg, resulting in a four inch scar. 13. As a direct and proximate result of the negligence of Defendant, Plaintiff, Steven Harper, I I, has undergone physical pain, discomfort and mental anguish and he will continue to endure the same for an indefinite period of time in the future, to his detriment and loss, physically, emotionally and financially. 14. As a direct and proximate result of the negligence of Defendant, Plaintiff, Steven Harper, I I, has suffered lost wages/income and may in the future continue to suffer a loss of income and/or loss of earning capacity. 15. As a direct and proximate result of the negligence of Defendant, Plaintiff, Steven Harper, II, has been, and will in the future be, hindered from attending to his daily duties and activities to his detriment, loss, humiliation and embarrassment. 16. As a direct and proximate result of the negligence of Defendant, Plaintiff, Steven Harper, II, has suffered and will in the future suffer a loss of life's pleasures. 4 17. As a direct and proximate result of the negligence of Defendant, Plaintiff, Steven Harper, II, has been compelled, in order to effect a cure for the aforesaid injuries, to expend sums of money for medicine and medical attention, and will be required to expend sums of money for the same in the future, to his detriment and loss. WHEREFORE, Plaintiff, Steven Harper, II, seeks damages from Defendants, Brian and Cherie Shotts, in an amount in excess of the compulsory arbitration limits of Cumberland County. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP Date: July 20, 2010 5 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. c Steven Harper, II Date: ~~~ ~~ Request for Service Ronny R. Anderson, Sheriff Cumberland County Office of the Sheriff One Courthouse Square Carlisle, PA i~oi3 Ph: ~i7.z4o.63go Fx: 7i~.z4o.6397 Plaintiff/s: STEVEN HARPER, II Defendant/s: BRIAN SHOTTS AND CHERI SHOTTS ~ Serve Upon: BRIAN SHOTTS Address for Service: 10 Mooredale Road Carlisle......... _ __ _ __ State PA __ 1701.5. Alternate Address for for Service: _ _ .~ ~~~.__ __ _ . State AR __ Type of Service: r' Adult in Charge (X Special Service Instructions: Personal r; Deputize (-'', Certified Mail (~ Posting **Copy of Court Order Required with Posting** *If service is to be made by deputized service to '. another county please specify which county* Request for Service Ronny R. Anderson, Sheriff Cumberland County Office of the Sheriff One Courthouse Square Carlisle, PA i7oi3 Ph: ~7.Z4o.639o Fx: 7i7.a4o.6397 Plaintiff/s: STEVEN HARPER, II Defendant/s: BRIAN SHOTTS AND CHERI SHOTTS Serve Upon: CHERI SHOTTS Address for Service: 10 Mooredale Road Carlisle .._ ~_ ~ ~' State PA 17015. __ _ Alternate Address for for Service: __ _ _ __ _ ~~..,_.~..._ _ State AR __ _ __ __. Type of Service: (~ Adult in Charge (X', Special Service Instructions: Personal (- Deputize r Certified Mail ~ Posting **Copy of Court Order Required with Posting** *If service is to be made by deputized service to another county please specify which county* SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~g~1,tr of ~u~6rr,~~d ~ ~ti ~•-V ~' ~. -,~°: ~'FiCE ~~r TAE SHERIFF 1-i~( ~_' f , _ Jody S Smith Chief Deputy Richard W Stewart $OIICltOr Steven Harper, II vs. Brian Shotts (et al.) ~~^^ p-vcr ~ Pru t . s~ ~ I. .~ Case Number 2010-4821 SHERIFF'S RETURN OF SERVICE 07/26/2010 06:20 PM -Robert Bitner, Deputy! Sheriff, who being duly sworn according to law, states that on July 26, 2010 at 1820 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Brian Shotts, bey making known unto himself personally, at 10 Mooredale Road, Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same time handing to him personally the said true and correct copy of the same. RO ERT BITNER, P 07/26/2010 06:20 PM -Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on July 26, 2010 at 1820 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Cheri Shotts, by making known unto herself personally, at 10 Mooredale Road, Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same time handing to her personally the said true and correct copy of the same. RO ERT BI ER, D SHERIFF COST: $49.84 Juiy 27, 2010 (ci CountySuite Sheriff, TeleosoR, lac. SO ANSWERS, ~" ~~ RON R ANDERSON, SHERIFF Johnson, Duffle, Stewart & Weidner r-, By: Jefferson J. Shipman I.D. No. 51785 Attorneys for Defendants `- -' 301 Market Street --TZ3 P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 hs@jdsw.com cro STEVEN HARPER, II, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 10-4821 CIVIL TERM V. CIVIL ACTION - LAW BRIAN SHOTTS and CHERIE SHOTTS, JURY TRIAL DEMANDED Defendants PRAECIPE TO ENTER APPEARANCE AND NOW, this f ay of August, 2010, enter the appearance of JEFFERSON J. SHIPMAN, I.D. 51785, on behalf of Defendants in the above captioned suit. JOHNSON, DUFFIE, STEWART & WEIDNER kon J. Shi an :410456 CERTIFICATE OF SERVICE AND NOW, this // day of August, 2010, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 JOHNSON, DUFFIE, STEWART & WEIDNER By: chelle H. Spangler :410456 JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman, Esquire I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com el rs 3:49 i&1eyys for Defendants STEVEN HARPER II, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 10-4821 CIVIL TERM V. CIVIL ACTION -LAW BRIAN SHOTTS and CHERIE SHOTTS, JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD TO: Steven Harper, II c/o Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 YOU ARE REQUIRED to plead to the within Answer and New Matter within 20 days of service hereof or a default judgment may be entered against you. JOHNSON, DUFFIE, STEWART & WEIDNER Date: August 26, 2010 " fdrrkn J. Shipman, Esquire Attorney I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant 410687 JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman, Esquire I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com STEVEN HARPER II, Plaintiff v. BRIAN SHOTTS and CHERIE SHOTTS, Defendants NO. 10-4821 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants, Brian Shotts and Cherie Shotts, by and through their counsel, Jefferson J. Shipman, Esquire and Johnson, Duffie, Stewart & Weidner, and file the following Answer and New Matter to Plaintiffs' Complaint: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that the Defendants own the Premises located at and known as 353 North Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013 (the Premises). However, it is specifically denied that the Defendants were in possession, management, or control of the Premises. By way of further answer, the Premises are leased to tenants, Amanda Eboch and Coty Fry. 4. Denied. After reasonable investigation, the Defendants are without P?tt?e43WqDQ&d ants rJ14V PEJgN5YJAINI A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 4 and the same are therefore denied, and strict proof is demanded at the time of trial. 5. Denied. The averments contained in paragraph number 5 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that the Defendants permitted dangerous conditions to exist on the Premises. 6. Denied. It is specifically denied that the Defendants had control of the Premises. It is further specifically denied that the Defendants allowed a window pane to fall from the second floor of the apartment building of the Premises. 7. Denied. After reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 7 and the same are therefore denied, and strict proof is demanded at the time of trial. 8. Denied. The averments contained in paragraph number 8 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 8 are specifically denied, and strict proof is demanded at trial. By way of further answer, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 8 relating to Plaintiff's alleged injuries and the same are therefore denied, and strict proof is demanded at the time of trial. 9. Admitted in part, and denied in part. It is admitted that the Defendants owned the Premises. However, it is specifically denied that the Defendants were in possession, management, or control of the Premises. It is further specifically denied that the Defendants were responsible for maintaining and/or enforcing the safe condition of the Premises. 10. Denied. The averments contained in paragraph number 10 and subparagraphs (a) through (g) are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 10 and each individual subparagraph (a) through (g) are specifically denied. (a) Denied. It is specifically denied that the Defendants caused or permitted a glass window pane to fall from the second story of an apartment building at the Premises thereby posing an alleged unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) Denied. It is specifically denied that the Defendants failed to make a reasonable inspection of the Premises which would have revealed the existence of the alleged dangerous condition posed by the allegedly unsecured window and thereby allowing the same to be and remain a dangerous condition when the Defendants knew or should have known of it; (c) Denied. It is specifically denied that the Defendants failed to ensure the windows at the Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully on the Premises; (d) Denied. It is specifically denied that the Defendants failed to properly secure the window of the Premises so as to avoid a situation where it could fall to the sidewalk below and cause injury; (e) Denied. It is specifically denied that the Defendants failed to keep every window in sound condition and good repair upon the Premises pursuant to Section 304.13 of the International Property Maintenance Code. (f) Denied. It is specifically denied that the Defendants failed to keep every window, other than a fixed window, held in position by window hardware pursuant to Section 304.13.2 of the International Property Maintenance Code; and (g) Denied. It is specifically denied that the Defendants failed to maintain a reasonably safe condition that would prevent someone lawfully on the Premises from being injured. 11. Denied. It is specifically denied that the Defendants had actual knowledge or should have known through the exercise of ordinary care and diligence that there allegedly existed an unsecure window on the second floor of the apartment building on the Premises where Plaintiff, Steven Harper, II was allegedly injured. 12. Denied. The averments contained in paragraph number 12 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 12 are specifically denied, and strict proof is demanded at trial. By way of further answer, after reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 12 relating to Plaintiff's alleged injuries and the same are therefore denied, and strict proof is demanded at the time of trial. 13. Denied. The averments contained in paragraph number 13 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 13 are specifically denied, and strict proof is demanded at trial. By way of further answer, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 13 relating to Plaintiff's alleged physical pain, discomfort, and mental anguish and the same are therefore denied, and strict proof is demanded at the time of trial. 14. Denied. The averments contained in paragraph number 14 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 14 are specifically denied, and strict proof is demanded at trial. By way of further answer, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 14 relating to Plaintiff's alleged lost wages/income and future loss of income and loss of earning capacity and the same are therefore denied, and strict proof is demanded at the time of trial. 15. The averments contained in paragraph number 15 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 15 are specifically denied, and strict proof is demanded at trial. By way of further answer, after reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 15 relating to Plaintiffs alleged hindrance from attending to his daily duties and activities and the same are therefore denied, and strict proof is demanded at the time of trial. 16. The averments contained in paragraph number 16 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 16 are specifically denied, and strict proof is demanded at trial. By way of further answer, after reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 16 relating to Plaintiffs alleged loss of life's pleasures and the same are therefore denied, and strict proof is demanded at the time of trial. 17. The averments contained in paragraph number 17 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 17 are specifically denied, and strict proof is demanded at trial. By way of further answer, after reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 16 relating to Plaintiffs alleged medical expenses and the same are therefore denied, and strict proof is demanded at the time of trial. WHEREFORE, the Defendants respectfully request that judgment be entered in their favor and that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER By way of further answer and reply, the Defendants interpose the following new matter defenses: 18. That if it should be found that there was any negligence on the part of the Defendants, which is denied, then in that event any such negligence was not a substantial factor nor factual cause of the alleged harm to the Plaintiff. 19. That the Plaintiffs' alleged cause of action may have been caused by intervening, superseding cause. 20. That the Plaintiffs' alleged cause of action may have been caused by third parties or entities not presently involved in this action. 21. That the Plaintiffs' alleged cause of action may be barred in whole or in part by the Pennsylvania Comparative Negligence Act. 22. That the Plaintiffs comparative negligence was a substantial factor or factual cause of the accident. 23. That the second floor window and/or the alleged dangerous condition were not and are not under the Defendants' possession or control. 24. That Defendants did not create the alleged dangerous condition. 25. That Defendants did not have any notice or knowledge of the alleged dangerous condition. 26. That the Plaintiff may have been trespassing on the Premises. 27. That the Plaintiffs alleged injuries may have been pre-existing. 28. That the alleged dangerous condition may have been open and obvious. 29. That the Plaintiff may have failed to mitigate his alleged injuries and damages. 30. That the Plaintiff's cause of action may be barred in whole or in part by the applicable Statute of Limitations. WHEREFORE, the Defendants respectfully request that judgment be entered in their favor and that Plaintiff's Complaint be dismissed with prejudice. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By:: / -t J erson J. Shipm n, Esquire Attorney I.D. No. 51785 301 Market Street P, O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Date: August 26, 2010 :410687 VERIFICATION 1, Cherie L. Shotts, hereby acknowledge that I am a Defendant in this action, and I have read the foregoing Answer and New Matter of Defendants to Plaintiffs Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein made are subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Cherie L. Shoff Date: 1? -r) I - J4t) :410687 VERIFICATION I, Brian K. Shotts, hereby acknowledge that I am a Defendant in this action, and I have read the foregoing Answer and New Matter of Defendants to Plaintiffs Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein made are subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Brian K. Shotts Date: C 0 :410687 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer and New Matter of Defendants to Plaintiffs 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 26, 2010: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 JOHNSON, DUFFIE, STEWART & WEIDNER Mic elle H. Spangler n tow VA NA Stephen G. Held, Esquire I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorneys for Plaintiff Fax: (717) 233-3029 E-mail: Held@hhrlaw.com STEVEN HARPER II, Plaintiff V. BRIAN SHOTTS and CHERIE SHOTTS Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4821 Civil Term CIVIL ACTION -LAW PLAINTIFF'S REPLY TO NEW MATTER 18. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, Defendants' negligence was a factual cause of the harm to Plaintiff. 19. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiff's cause of action was caused by intervening, superseding cause. 20. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment maybe deemed factual, it is hereby denied. Byway of amplification, it is denied that Plaintiff's cause of action may have been caused by third parties or entities not presently involved in this action. 21. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiff's cause of action may be barred in whole or in part by the Pennsylvania Comparative Negligence Act. 22. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiff was negligent and furthermore, it is denied that any negligence on the part of Plaintiff was a substantial factor or factual cause of the accident. 23. 'This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that the second floor window and/or the dangerous condition was not under the Defendant's possession or control. 24. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Defendants did not create the alleged dangerous condition. 2 25. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Defendants did not have any notice of knowledge of the dangerous condition. 26. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment maybe deemed factual, it is hereby denied. Byway of amplification, it is denied that Plaintiff k!,?as trespassing. 27. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiff's injuries were pre-existing. 28. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that the dangerous condition is open and obvious. 29. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that the Plaintiff failed to mitigate his damages. 30. This averment is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiff's cause of action is in any way limited by the applicable statute of limitations. 3 WHEREFORE, Plaintiff respectfully requests that Judgment be entered in theirfavor and against Defendants. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP By: -9& Luv Ste en G. Held, Esquire Attorney l.D. No.: 72663 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff Date: September 13, 2010 4 VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) Stephen G. Held, 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. %9V S phen G. Held', Esquire Date: September 13, 2010 Stephen G. Held Attorney ID# 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff(s) Fax : (717) 233-3029 E-mail: Held@hhriaw.com STEVEN HARPER, II IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 10-4821 : CIVIL ACTION - LAW BRIAN SHOTTS AND CHERIE SHOTTS Defendants CERTIFICATE OF SERVICE On September 13, 2010, 1 hereby certify that a true and correct copy of Plaintiff's Reply to New Matter was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Jefferson J. Shipman, Esquire Johnson, Duffle, Stewart & Weidner, P.C. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants HANDLER, HENNING & ROSENBERG, LLP S teph n G. Held, Esquire I.D. No.: 72663 Attorneys for Plaintiff 1 ^f wi `xljii'J ` l h ? _a 1 ? ? ?rVa JOHNSON, DUFFIE, STEWART & WEIDNER ~ ?? 5, ? ?(r `t1 + By: Jefferson J. Shipman, Esquire Attorneys for Defendants I . D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: As@jdsw.com STEVEN HARPER II, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 10-4821 CIVIL TERM V. CIVIL ACTION - LAW BRIAN SHOTTS and CHERIE SHOTTS, JURY TRIAL DEMANDED Defendants DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND NOW come Defendants, Brian Shotts and Cherie Shots, by and through their attorneys, Johnson, Duffie, Stewart & Weidner, and file the following Motion for Summary Judgment: 1. This is a civil action for personal injuries filed on July 22, 2010. A true and correct copy of Plaintiffs Complaint is attached hereto as Exhibit A. 2. Defendants filed an Answer and New Matter to Plaintiffs Complaint in which they denied liability for Plaintiffs alleged injuries. See Answer, attached as Exhibit B. 3. According to Plaintiff's Complaint, on September 17, 2008, Plaintiff received a cut to his leg when a piece of glass fell from the second story window of Apartment B, at 353 North Hanover Street, Carlisle, Pennsylvania, 17013. Pl.'s Comp., para 7. 4. Defendants Brian and Cherie Shotts own the premises at issue. 5. The Shotts have leased Apartment B to Amanda Eboch and Codi Fry ("Tenants") continuously since on or around March 4, 2008. See Deposition of Amanda Eboch, pp. 5-6, attached as Exhibit C. 6. The Tenants' two minor daughters reside with the Tenants and were present at the apartment at the time of the alleged incident. See Deposition of Codi Fry, p. 12, attached as Exhibit D. 7. Plaintiff Harper testified that on September 17, 2008, he was walking on the sidewalk along North Hanover Street when he came upon the scene of a recent automobile accident. See Deposition of Steven Harper, pp. 16-19, attached as Exhibit E. 8. At the same time, after observing the accident scene and billowing smoke, Tenant Codi Fry testified that he instructed his minor daughter to shut the subject window, which she did, and a piece of the window fell out in the process. Exhibit D, p. 12, 14. 9. As Plaintiff was passing the Premises, Plaintiff was allegedly cut on the leg by the piece of glass that reportedly fell from the window of Apartment B. Exhibit E, p. 16. 10. Plaintiff testified that he immediately looked up at the window of Apartment B and saw the hands and hair of a young girl in the window. Exhibit E, pp. 20, 25-27. 11. In his Complaint, Plaintiff alleges that the injury causing accident was caused by Defendants' negligence in the inspection, maintenance, and upkeep of the window in question and that Defendants had possession and control of the window at issue. Pl.'s Comp., para 10. 12. However, the piece of glass allegedly responsible for Plaintiffs injury fell from an area that was out of Defendants' possession and control, specifically, the bedroom window in Apartment B. 13. The window in Apartment B was at all times leased to and in the sole possession of the Tenants. 14, Plaintiff has not provided any evidence that Defendants Shotts retained possession and control over the window or that Defendants Shotts had any notice of a dangerous condition. 15. Plaintiff seeks to impose a duty on landlords to maintain and repair apartment windows that are no longer in their possession and control and for which they have no notice of a defect. Such a duty does not exist in Pennsylvania. 16. The pleadings are now closed, discovery has been taken, and the Defendants now file this Motion for Summary Judgment. 17. Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: Any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2(1), (2). 18. Generally, in the absence of any provision in the lease, a landlord is under no obligation to repair the leased premises, to see to it that they are fit for rental or to keep the premises in repair. Felton by Felton v. Spratley, 640 A.2d 1358, 1361 (Pa. Super. 1994). 19. Furthermore, as a general rule in Pennsylvania, a landlord out of possession is not liable for injuries incurred by third parties on the leased premises because the landlord has no duty to such persons. Dorsey v. Continental Associates, 591 A.2d 716, 718 (Pa. Super. A- T 1991); Kobylinski v. Hipps, 519 A.2d 488, 491 (Pa. Super. 1986); Henze v. Texaco, Inc., 508 A.2d 1200, 1202 (Pa. Super. 1986) (citing, Restatement (Second) of Torts § 356 (1965)). 20. Where a window is not necessary for.the support of a building, and where it does not serve a common benefit to multiple occupants, and where no one other than a tenant has a right to use the window, the window is not in the landlord's possession and control. Lopez v. Gukenback, 137 A.2d 771 (Pa. 1958) 21. The window at issue does not serve as a common benefit to other occupants of the building and is only generally accessible to the Tenants as it is inside their second floor apartment. Thus, under Lopez, the window at issue was not in the Shotts' possession and control. Therefore, the Shotts are not liable to the Plaintiff and summary judgment should be entered in their favor. 22. Even where a landlord retains control over leased premises, there is no duty to discover and repair a dangerous condition unless the landlord has either actual or constructive notice of the condition. See Smith v. M.P.W. Realty Co., 225 A.2d 227, 229 (Pa. 1967); Restatement (Second) of Torts § 361. 23. The Shotts were not aware of any defects with any windows in Apartment B. See Deposition of Brian Shotts, p. 18, attached as Exhibit F. 24. Tenants Amanda Eboch and Codi Fry each testified that they were not aware of, nor did they inform, the Shotts of any defect with the subject window, or any windows in the apartment. Exhibit C, p. 7 and Exhibit D, p. 22. 25. Even if the window was in Defendant's possession and control, which is specifically denied, Plaintiff has not produced any evidence that the Shotts had actual or constructive notice of the defect such that they had a duty to repair the defect. See Smith, 225 A.2d at 229. Therefore, summary judgment in Defendants' favor is proper. WHEREFORE, Defendants, Brian Shotts and Cherie Shots, request that summary judgment be entered in their favor and against Plaintiff, Steven Harper, Il, with the dismissal of all of Plaintiffs claims, with prejudice. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER Date: Juneq , 2012 :486260 rtteWdYi J. Shipmdn, Esquire orney I.D. No. 51785 Sarah E. Hoffman, Esquire Attorney I.D. No. 307612 Ulysses S. Wilson Attorney I.D. No. 312598 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Counsel for Defendants EXHIBITA 08/10/2010 15:50 FAX 7177952315 1a002/015 Tr !4: Stephen Q H", Eequlrs I.D. No. 72883 F, 2: HANDLFA, HENNING 3 ROSENBERG. LLP 1300 LNIsslown Road, Suite 2 C: Nwrisbure PA 17110 i .'1' Telephone; (717) 238-2000 Attomeys for Plairo pax ! (717) 2334029 E-mall; Heldalllhhrlenr.vom STEVEN HARPER 0. : IN THE COURT OF COMMON PLEAS Plalnd f : CUMOO LAND COUNTY, PENNSYLVANIA V. NO. ID - 46AI 12A. Vi I-EM BRIAN BHOTTS and CHEIVE : SHOTTS : CIVIL ACTION • LAW Defendants *A, - NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend sorM the claims eat fb* In the foliowirig pages, you must lake a lon within twenty (20) days after this Complaint and Notice are served, by enterlrlp a written eppearenoe pereons6y or by attcxr:ey Ind filing In wrgfng with the Court your deftness or o*ollons to the aialms setlbrth *ph* you. You are wamW that If you fail to do so the oases may proosed without you and a Judgment may be entered against you by the Court wlt}x:ut further notloe for any money dalrivW in ft Cor VWW or for any other dalm or rellef requaeted by the Plsintiff. You may We money or property or other rights ImpoAsnt to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, 60 TO OR TELEPHONE THE OFFICE SET FORTH OILOW. THIE OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFM E MAY dE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AOPNOM THAT MAY OPFER LEGAL SERVICE'S TO ELKNKE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 Seuth BeclIhM Surest CarlWe, PA 17013 7174A"166 I McUN COPY FROM MOM rln6rony wt,a•4+0f, I here UM 00 ON 11" er eea?Of Bs7 C n Ce?r. Pe. 08/10/2010 15:50 FAX 7177952315 sb?p O, Hold, E"Ulm 015.: No. #163 HAA&Mj.•HENNING & ROSENBERG, LLP 1300 png*glawn Rood, Suft 2 Han?, PA 17110 Telephone: • (717) 238-2000 Pox : (717) 2834029 Aftmep tar PialntitE [a 003/015 sTEV1EN (HARPER III Plolndit v.. gjW SHOTIM and CHERIE SHOTTS Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, :PENNSYLVANIA : NO. : CML ACTION -LAW Uff='NA (ill)0 DRMANDADOIA.EN CORRL. SI usbd dons defod0e eY bs.daflandes q+ >? P s le ?n yes ?EuNn?s'Ri ,dpi Bomar:seal6n dardro & bs pr6*b*m *Wn* (20) On deepuds d6 is 1no ftwl6n do dab Da ,r.Avb rool"ndc p a par metlb do un abooado um umn *0 via .?rlta y d en Is Corte por esgibo gus dMbnsas day y ab?donos as Ise d.6mmdo pneantadaa .mgtd iin contra sure. Se Is adv wb do 406 sl I'tstsd falls do tomir aeolbn porno so dewlbo anted rpentsr 01 ma.pumb proosder,sln uWad.y un falb por elvatquier dun* do dlnsro ndrnada on Is dmunds o oualquler o+tra r+*dan wgIdw o rm)odlo sell o par si In I pueds aer dk tado.en ¢oirira saga por Is Corte din nibs avbo ad *ml. Usted, dsreMra p Iwdw dinero o propbded u olros-defechos pnportans>.s pare uetsd. b*K u.'sT L WAR ESTE:DOCL"WO A SU A20000 MOIATAMENTE. SI USTED NO TM E UN ANOWD I.WYIE 0 VAYA A LA NWpngF %k IOTA 0f1CPIA RUM. PRO .E'IMFbl'?IA,ACION.A,dLiA6 1 l)E Coll 6 COI?MlxltijN Ae0GAD0.. SI UlTED NO PUEDL PAGAR POR108 SBRVICIOS DS UN:ABOBADO. IS POSW QUP' ESTA OR1 MALE PUEDA PROVM.110-ORMAiCION =11RE'AdEWIM QK OFRMAN SERVICIOS L'; GAE.EE SIN CARGO 0 MO COSTO A PERSONA(; QUE CUALIPICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE '33 south Bedford Strsst Cmilsb, PA 17013 71T-2"4106 08/10/2010 15:50 FAX 7177952315 , Stephan 0.. Held, !:squire I.O: NQ. HANpi.I!K,HENNWQ.W'R0SENSER4, LLP 1300 4hoo.awq Rod, Sulte'2 NwrWh p. PA 17110 Telephone; (717) 239,2000 Fax : (717) 933029. Ate mwp far P.W* }F -STEVEN' HMP141 "1, Plaintiff v. .15" SHOYTS and CHERIE SHOTTS Defendants fa 004/015 IN THE: COUIrT OF COMMVN P4.AA# CUMBOdAII D&COUNTY, PF-NNMVAN?A NO. CIVIL ACTION LAW AND NOW, comes the Plaintiff, Steven Harper, 11, by and through .his attorneys, -HANDLE=R, HLNNIyG' a ROSENBER0, LLP, by Stephen G*. Held, Esquire, and brings forththis Complaint against the Defendants, Brian and Cherie Shotts, and avers as follows: 1.. 'Plaintiff, Steven Harper, II•, Is an adult individual currently realding at 862 Cadwynne Manor, Carlisle, Cumberland County, Pennsylvania '17013. 2. Defendants, Brian and Cherie Shafts, are adult Individuals currently reslding at 10 Mooredale Road, Carlisle, Cumberland County, Pennsylvania 17015. 08/10/2010 15:50 FAX 7177952315 [?]005/015 3. At all times material hereto, Defendants, Brian and Cherie Shotts, were either in ownership, possession, management and/or control of the Premises 'located at and known as 353 North Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013 (hereinafter,. "the Premises"). 4% Atoll tlrnes material hereto, PlalnUff. Steven-Harper, 11, was lawfully upon the Premises,as a lioensee. 3. At all times motsdal hereto, Defendants, Brien and Cherie Shotts, had permitted- •dangercus conditions to exist on the Premises of which they had lawful mmership. 6. At all times •material,hereto, Defendants, Brian and Cherie Shoos, who had, control of ths'Premises, had allowed a window pane to fall-frorfi the second floor bf1he apartment building of the Premises. 7. On or about September 17, 2008, Plaintiff, Steven Harper, II-, was lawfully walking on the sidewalk of-the Premises. While walking on the sidewalk, an unsecured glass window pane fell from a second floor apartment The glass pane fell and struck Plaintiff, causing, personal injurlss to the Plaintiff. 8. • As a, direct and proximate result of the nepligenoe of the Defendants, Brian and Cherle Shotts, the Plaintiff sustained serious injuries as set forth more speoNftfly below. 9. At all times material hereto,'Pleintlff, Steven Harper, 11, believes and therefore avers, that Defendants, Brian and Cherie Shotts, were in ownership, possession, management, and/or control of the Premises and was responsible for•maintalning and/or enforcing the safe condition of the Premises. 2 08/10/2010 15:30 FAX 7177952315 Z cos/015 lo. The occ urmnos of the aforementioned Incident and the resulting Injuries to -P1gintiff, S.tevipn Harper, II, were caused directly and proximffWy by the negligence of -Dbfendants. Brian and Cherie Shotts, generally and more spedfrcaily•as setforth below: (a) in causing or permitting a glass window,pens to fall from the second story of the apartment building at the Promises thereby posing an unreasonsbIs flak of Injury to the Plaintiff and to other persons lawfully upon-the Promisee; (ti) In failing to make a reasonable Inspection of the Promisee which would have revealed the existanw of the dangerous condition posed by the unsecured window and thereby allowing the same to be and remain a dangerous aondidon when the Defendant knew or shdUld have known of k; •(c) In falling to ensure. the windows at the Premises were maintained in a safe condition to ,prevent Injury to the 'Plaintiff and other persons lawfully upon the Premises; (d) In falling to prbOdy secure the window of the Prer6lees so as to avoid the situatbn where It could fall to the sidewalk below and cguse injury; (e) In failing to keep every window In sound condition and good repair upon the Premises pursuant to Sec don 304.13 of the International Property Maintenance Code; (f) In falling to keep every window, other than :a fixed window, held In position by window hardware pursuant- to Section $04.13.2 of the 3 08/10/2010 15:50 FAX 7177952315 IaOO7/015 International Properly Maintenance Code; and, g) *In failing to maintain in a ressonobly sofa condition that would prevent someone lawfully on the Premises from being injured. 11. Defendant had actual knowledge orshould have known through the exercise of ordinary car :and diligence that there existed an unsecured window on the second floor of the apartment building on the Premises where Plaintiff. Steven Harper, II. was Injured. 12'. As a direct and proximate result of the negligence of Defendant, Plaintiff, Steven Harper. If, sustained serious injuries including, but not limited to a laceration on his lower'rloht leg,1reaulting In a four Inch soar. I.S. As a direct and proximate result of the negligence of Defendant, Pliindff, Steven Warper, If,, has undergone physical pain, discomfort and mental anguish and fie WM continue to endure the some for an indefinite period *f time in the future,-to his detriment- and loss, physically, emotionally and financially. 14. As a direct and proximate result of the negligence of Defendant, PlalntffF, Steven Harper, 11, has suffered lost wages/Inoome and may in the future continue to suffer Con of income and/or loss of eamina capacity. -115. As a direct and proximate result of the nogiigenoe of Defendant, Plaintiff, Steven Harper, ll, has been, and-will in the future'be, hindered-from attending to hi_S dolly duties -and activities to his detriment, loss, humllWdon and embarrassment. 16. As a direct and proximate result of the negligence of Defendant, -Plaintiff, Steven Harper, 11, has suffered and will In the future suffer a loss of Ilfe's,pleasures, 4 08/10/2010 15:50 FAX 7177952315 [a008/015 17, As a direct and proximate result of the negilgence of Defendant, Plaintiff, Steven'Hagw,- il, has been compelled, in order.to efhct s cure for the aforesald Injuries, to expend sums of money for medicine and medical attention, and will be required to dxpbod gums of money for the some in the future,-to his detriment and loss. 'WTIEREFORB, Plaintiff, Steven Harper, II, seeks damages from Defendants, Brian and Cherie Shotts, in an amount In excess of the compulsory arbitration Ilrr h of Cumberland County. Respectfully submitted, MANIMAJ% HIIIINNI'NO & ROS NRERt?, LLP Date: July 20, 2010 5 •1300 UngleskyW r Road, -,Suite 2 Harrisburg, PA 17110 (717) 23&2000 AflanMa fbr Plaintiff 08/10/2010 15:50 FAX 7177932315 [a 009/015 The undersigned hereby verlfles that the statements in the foregoing document are based upon information which has been furnished to counsel by me and InformaWn which has Men gathered by counsel in the preparation of-this lawsulL The language of the document is of counsel and not my own. I have read the doc ument-and'to the a tent that it is based upon'Infonn0acn which I have,plven to oourtsel• it'is true and correct to the best of my knowledge, Information and.belief. To the extent that the.cbntsnts of the document ais that of counsel, I. have relied upon my counsel In making this Verifivation. The gnderslgned eI understands that the statements math therein are made suMgd to the .penaides bf 18 Pa. C.S. Section 4904, ' ating to unswdm falsification to authorities, Steven Harper, II Date: ? Ib EXHIBIT B s JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman, Esquire I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com STEVEN HARPER II, Plaintiff V. BRIAN SHOTTS and CHERIE SHOTTS, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NOTICE TO PLEAD TO: Steven Harper, II c/o Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 NO. 10-4821 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ra "" , 7P M Lo YOU ARE REQUIRED to plead to the within Answer and New Matter within 20 days of service hereof or a default judgment may be entered against you. JOHNSON, DUFFIE, STEWART & WEIDNER 1 Date: August 26, 2010 Pbf Wn J. Shipmhn, Esquire Attorney I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant :410687 OF rr JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman, Esquire I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com STEVEN HARPER II, Plaintiff V. BRIAN SHOTTS and CHERIE 21 PM T 50 Attorneys for Defendants CL3Mp?,:SYL??? NTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4821 CIVIL TERM CIVIL ACTION - LAW SHOTTS, JURY TRIAL DEMANDED Defendants ANSWER AND NEW MATTER OF DEFENDANTS TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants, Brian Shotts and Cherie Shotts, by and through their counsel, Jefferson J. Shipman, Esquire and Johnson, Duffie, Stewart & Weidner, and file the following Answer and New Matter to Plaintiffs' Complaint: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that the Defendants own the Premises located at and known as 353 North Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013 (the Premises). However, it is specifically denied that the Defendants were in possession, management, or control of the Premises. By way of further answer, the Premises are leased to tenants, Amanda Eboch and Coty Fry. 4. Denied. After reasonable investigation, the Defendants are without sufficient knowledge, or information to form a belief as to the truth of the averments contained in paragraph number 4 and the same are therefore denied, and strict proof is demanded at the time of trial. 5. Denied. The averments contained in paragraph number 5 are conclusions of law and fact to which no response is required. If a response is deemed to be required, it is specifically denied that the Defendants permitted dangerous conditions to exist on the Premises. 6. Denied. It is specifically denied that the Defendants had control of the Premises. It is further specifically denied that the Defendants allowed a window pane to fall from the second floor of the apartment building of the Premises. 7. Denied. After reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 7 and the same are therefore denied, and strict proof is demanded at the time of trial. 8. Denied. The averments contained in paragraph number 8 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 8 are specifically denied, and strict proof is demanded at trial. By way of further answer, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 8 relating to Plaintiffs alleged injuries and the same are therefore denied, and strict proof is demanded at the time of trial. 9. Admitted in part, and denied in part. It is admitted that the Defendants owned the Premises. However, it is specifically denied that the Defendants were in possession, management, or control of the Premises. It is further specifically denied that the Defendants were responsible for maintaining and/or enforcing the safe condition of the Premises. 10. Denied. The averments contained in paragraph number 10 and subparagraphs (a) through (g) are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 10 and each individual subparagraph (a) through (g) are specifically denied. (a) Denied. It is specifically denied that the Defendants caused or permitted a glass window pane to fall from the second story of an apartment building at the Premises thereby posing an alleged unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) Denied. It is specifically denied that the Defendants failed to make a reasonable inspection of the Premises which would have revealed the existence of the alleged dangerous condition posed by the allegedly unsecured window and thereby allowing the same to be and remain a dangerous condition when the Defendants knew or should have known of it; (c) Denied. It is specifically denied that the Defendants failed to ensure the windows at the Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully on the Premises; (d) Denied. It is specifically denied that the Defendants failed to properly secure the window of the Premises so as to avoid a situation where it could fall to the sidewalk below and cause injury; (e) Denied. It is specifically denied that the Defendants failed to keep every window in sound condition and good repair upon the Premises pursuant to Section 304.13 of the International Property Maintenance Code. (f) Denied. It is specifically denied that the Defendants failed to keep every window, other than a fixed window, held in position by window hardware pursuant to Section 304.13.2 of the International Property Maintenance Code; and (g) Denied. It is specifically denied that the Defendants failed to maintain a reasonably safe condition that would prevent someone lawfully on the Premises from being injured. 11. Denied. It is specifically denied that the Defendants had actual knowledge or should have known through the exercise of ordinary care and diligence that there allegedly existed an unsecure window on the second floor of the apartment building on the Premises where Plaintiff, Steven Harper, II was allegedly injured. 12. Denied. The averments contained in paragraph number 12 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 12 are specifically denied, and strict proof is demanded at trial. By way of further answer, after reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 12 relating to Plaintiffs alleged injuries and the same are therefore denied, and strict proof is demanded at the time of trial. 13. Denied. The averments contained in paragraph number 13 are conclusions of law and fact to which no response is required. If a response is deemed to. be required, the averments contained in paragraph number 13 are specifically denied, and strict proof is demanded at trial. By way of further answer, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 13 relating to Plaintiffs alleged physical pain, discomfort, and mental anguish and the same are therefore denied, and strict proof is demanded at the time of trial. 14. Denied. The averments contained in paragraph number 14 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 14 are specifically denied, and strict proof is demanded at trial. By way of further answer, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 14 relating to Plaintiffs alleged lost wages/income and future loss of income and loss of earning capacity and the same are therefore denied, and strict proof is demanded at the time of trial. 15. The averments contained in paragraph number 15 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 15 are specifically denied, and strict proof is demanded at trial. By way of further answer, after reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 15 relating to Plaintiffs alleged hindrance from attending to his daily duties and activities and the same are therefore denied, and strict proof is demanded at the time of trial. 16. The averments contained in paragraph number 16 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 16 are specifically denied, and strict proof is demanded at trial. By way of further answer, after reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 16 relating to Plaintiffs alleged loss of life's pleasures and the same are therefore denied, and strict proof is demanded at the time of trial. 17. The averments contained in paragraph number 17 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained in paragraph number 17 are specifically denied, and strict proof is demanded at trial. By way of further answer, after reasonable investigation, the Defendants are without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 16 relating to Plaintiff's alleged medical expenses and the same are therefore denied, and strict proof is demanded at the time of trial. WHEREFORE, the Defendants respectfully request that judgment be entered in their favor and that Plaintiffs' Complaint be dismissed with prejudice. NEW MATTER By way of further answer and reply, the Defendants interpose the following new matter defenses: 18. That if it should be found that there was any negligence on the part of the Defendants, which is denied, then in that event any such negligence was not a substantial factor nor factual cause of the alleged harm to the Plaintiff. 19. That the Plaintiffs' alleged cause of action may have been caused by intervening, superseding cause. 20. That the Plaintiffs' alleged cause of action may have been caused by third parties or entities not presently involved in this action. 21. That the Plaintiffs' alleged cause of action may be barred in whole or in part by the Pennsylvania Comparative Negligence Act. 22. That the Plaintiffs comparative negligence was a substantial factor or factual cause of the accident. 23. That the second floor window and/or the alleged dangerous condition were not and are not under the Defendants' possession or control. 24. That Defendants did not create the alleged dangerous condition. 25. That Defendants did not have any notice or knowledge of the alleged dangerous condition. 26. That the Plaintiff may have been trespassing on the Premises. 27. That the Plaintiff's alleged injuries may have been pre-existing. 28. That the alleged dangerous condition may have been open and obvious. 29. That the Plaintiff may have failed to mitigate his alleged injuries and damages. 30. That the Plaintiffs cause of action may be barred in whole or in part by the applicable Statute of Limitations. WHEREFORE, the Defendants respectfully request that judgment be entered in their favor and that Plaintiffs Complaint be dismissed with prejudice. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: J erson J. Shipm n, Esquire Attorney I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendant Date: August 26, 2010 :410687 VERIFICATION I, Cherie L. Shotts, hereby acknowledge that I am a Defendant in this action, and have read the foregoing Answer and New Matter of Defendants to Plaintiff's Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein made are subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Cherie L. Shoff Date:_ E-2 I- .bt) :410687 VERIFICATION I, Brian K. Shotts, hereby acknowledge that I am a Defendant in this action, and I have read the foregoing Answer and New Matter of Defendants to Plaintiff's Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein made are subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Brian K. Shoats Date: O--0 :410687 CERTIFICATE OF SERVICE hereby certify that a copy of the foregoing Answer and New Matter of Defendants to Plaintiffs 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 26, 2010: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 JOHNSON, DUFFIE, STEWART & WEIDNER By: `ij? Mic elle H. Spangler EXHIBIT C AMANDA EBOCH 5 1 address? 2 A Three, three and a half years. 3 Q What is your date of birth? 4 A 10/17/1984. 5 Q What is your educational history? 6 A The highest grade I completed was 7 10th. 8 Q Also at Carlisle? 9 A Yes. 10 Q Do you have a criminal record? 11 A I do. It is receiving stolen 12 property. 13 Q When was that? 14 A That was in.2007. 15 Q Was that through Cumberland County? 16 A Correct. 17 Q Was it the same incident? 18 A Yes. 19 Q This apartment you rented, you were 20 the one who first rented the apartment from Mr. 21 Shotts. Right? 22 A Correct. 23 Q Okay. Do you remember when you 24 rented that? 25 A Yeah. The day of move in was March ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 6 AMANDA EBOCH 1 4, 2008. 2 Q Did you have a written lease at that 3 time? 4 A No. 5 Q Never had a written lease? 6 A No. I did ask him about a lease. 7 He said -- because years before-like -- him and I 8 have been together for nine years, so years 9 before his mom rented off of Mr. Shotts. So we 10 have known Mr. Shotts for awhile. And I asked 11 him about a lease and he said that he didn't 12 think that one was necessary. 13 Q How much do you pay per month in 14 rent? 15 A As like -- because it has gone up, 16 so from th at point or now? 17 Q Why don't we do it this way. When 18 you first started renting, how much was it? 19 A $400. 20 Q And that was $400 per month? 21 A Yes. 22 Q And what is it now? 23 A $450. 24 Q How would you categorize Mr. Shotts 25 as a landl ord? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXHIBIT D 12 CODI FRY 1 Q Yes. Tell me what you remember. 2 A It was me, my two children, and my 3 buddy Tim, and his daughter. Amanda and Tim's 4 wife, Sharon, had gone to the store. Tim said 5 about smoking a cigarette, so we went onto the. 6 little back porch we have to our like back door, 7 main door we use, and we heard aloud bang. 8 So we went out front. There was a 9 car accident. And the kids were playing and 10 everything was going on. The window was open in 11 me and her bedroom. And then we were sitting out 12 front for I would say 20 minutes. And then we 13 went upstairs and the kids were hanging out the 14 window. 15 When I got upstairs, I could smell 16 like the smoke and stuff from the car accident. 17 So I had told my daughter, go shut the window. 18 And when she did so, part of it fell out and 19 Steve was standing below and that is how his leg 20 got cut. 21 Q Okay. Like, what part of it? Like 22 the window part of it? 23 A If it is like -- some windows are 24 like a whole solid window and then some of them 25 are like a whole window and then there's like ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXHIBIT E 16 STEVEN LEE HARPER, II 1 where the old Hardee's used to be, there's a 2 Members lst and stuff. I was coming around the 3 corner down the street and there was already a 4 previous wreck that had happened. And I believe 5 it was with a Jeep. The ambulance was there, the 6 fire crews was there and everything else. 7 And obviously I had,-to walk as close 8 as possible to the building because everybody in 9 the street was just lined up. It was a big -- it 10 looked like it was fire that had happened. it So I am just walking into the scene 12 of an accident that was mAybe ten minutes prior. 13 So I am walking along the side of the buildings 14 and I had my headphones on, I can't hear anybody. 15 You know what I mean? I'm just out, just going 16 home. And the next thing I know I'm in an 17 articulation with my right leg back behind me. 18 And to be honest, it felt like -- because I 19 worked construction, I know what concrete feels 20 like. And it felt like I scraped against 21 concrete. And as soon as I did that, I didn't 22 think nothing of it. And it was hot out because 23 it was summertime. And I felt a cold shot, more 24 like a wet spot on my elbow. And I looked and it 25 was blood. And I look over and there's a window ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 17 STEVEN LEE HARPER, II 1 panel sitting in my legs. Not a shard, not a 2 piece, not anything; the window was in my leg 3 like a paper cut. And I had walked maybe like a 4 foot or two feet when I had noticed this wet 5 spot. And I saw that and I had to sit down. 6 When I actually sat down, the glass 7 actually came out and smashed onto the sidewalk 8 itself. It's almost like the momentum of me just 9 stopping was enough for the weight just to get 10 top heavy. 11 I did sit down and this was -- to my 12 left was the front doorstop of the house that I 13 was at. Like I said, it was just maybe 1 foot or 14 2 feet, maybe 3 feet until I realized and I had 15 to sit down, because I was getting tunnel vision. 16 You know, I just seen what happened to me. I am 17 getting sweaty and stuff, shock set in. 18 Stacey Kline is somebody that we 19 both went to school with, too. And Brandon Hip 20 is, too. They have a child together, but I do 21 know they know Codi. I don't know if they were 22 there visiting Codi, but they were there on the 23 side of the street. And I had sat down and 24 Stacey is the one that had actually gone and 25 gotten a police -- or the fire chief or whatever. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 18 STEVEN LEE HARPER, II 1 He came down and he assisted me. And I looked 2 over and there is Codi. And he is like, what's 3 up, dude? I said, you see it, you know. 4 So that is the only reason I even 5 knew Codi even lived there. I didn't -- like 6 after high school and stuff, people go there own 7 ways, you lose ties with everybody and stuff. Me 8 and Codi were not really the type to hang out 9 after school any way; but like I said, I never 10 had no problem with the fellow. 11 Q Let's kind of just break that down 12 so I can understand. Solyou had come upon the 13 scene of like a car accident.) 14 A An auto accident in the middle of 15 the road, yes. 16 Q Okay. And would this have been on 17 Hanover Street in Carlisle? 18 A I believe Hanover Street is coming 19 this way. Where the Jeep was parked was actually 20 a side road, because there is a railroad track 21 that comes here. And it was kind of like this, 22 because the Jeep was facing me in this corner and 23 this is the main road. And I am walking this 24 way. 25 And see, with this being the main ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 19 STEVEN LEE HARPER, II 1 road, I could see the headlights of the Jeep at 2 an angle, not straight on. Do you know what I 3 mean? So I could see both headlights versus just 4 one. 5 But it was -- they were coming onto 6 Hanover Street, yes, the Jeep was. 7 Q So when you continued walking, were 8 you on Hanover Street? 9 A Yes. 10 Q What type of accident was this? 11 What had happened? 12 A With the vellicles? 13 Q Yes, to your knowledge. 14 A I didn't see the other vehicle. 15 Like I said, there was a lot of people. I just 16 -- you know what I mean, walking and everything 17 with momentum -- a Jeep is bigger than a car. 18 And I guess with as much damage that I have seen, 19 I can only assume that somebody had already 20 hauled that car or whatever had happened. Maybe 21 it was just like an automobile fire. I have no 22 idea, but the Jeep was charred. 23 Q So you were walking along the 24 sidewalk there. And then as you are walking 25 along the sidewalk, you had your headphones in, I ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXHIBIT F IT , 18 BRIAN SHOTTS 1 A No, I don't. 2 Q Did any of the tenants you had 3 before Ms. Eboch ever complain about the 4 condition of the windows? 5 A No, sir. 6 Q Did Ms. Eboch ever complain about 7 the conditio n of the windows? 8 A No, sir. 9 Q Do you know if you ever, for any 10 reason, had a Carlisle Borough inspector inspect 11 the house? 12 A No, sir. ' 13 Q Property maintenance, inspector, or 14 anything? 15 A No. 16 Q And you never received any citations 17 at that property for any alleged violations of 18 building codes or anything like that? 19 A No, sir. We got letters -- the 20 tenants would put their trash out and not put it 21 out on the street, but nothing as far as the 22 condition of the building or anything. 23 Q Right. Okay. Did you ever talk to 24 anybody about this incident that happened? 25 A I think I answered you that before, ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES ! 'A CERTIFICATE OF SERVICE AND NOW, this _;j day of June, 2012, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen G. Held, Esquire Handier, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 JOHNSON, DUFFIE, STEWART & WEIDNER Je AWdJS. hip an FILED-OFFICE OF- THE PROTH0140TARY 2012 JUL 13 PM 1: 56 Johnson, Duffle, Stewart & Weidne UMOERLANQ COUNTY By: Jefferson J. Shipman, Esquire PENNSYLVANIA I.D. No. 51785 Attorneys for Defendants By: John A. Lucy, Esquire I.D. No. 203948 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jjs@jdsw.com jal@jdsw.com STEVEN HARPER, II, Plaintiff V. BRIAN SHOTTS and CHERIE SHOTTS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANI. NO. 10-4821 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as co-counsel on behalf of Defendants, Brian Shotts Cherie Shotts, in the above-captioned matter. J , STE-WART & WEIDNER Date: July 12, 2012 71.. A. Lucy, Esquire o. 203948 arket Street Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Co-Counsel for Defendants • . '? CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe for Entry Appearance has been duly served upon the following counsel of record, by depositing t same in the United States 1St Class Mail, postage prepaid, in Lemoyne, Pennsylvania, on Ju 12, 2012, as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 _ NSON, DUFFIV, STEWART & WEIDNER BY: Lucy, Esquire PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) 0 )= T FI p .QFFICE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the. t HONO??R?' ---------------------- J 13 pK 2; o Argument Co------------------------------------------------------ CAPTION OF CASE CUMBERLAND COUNTY (entire caption must be stated in full) PENN Y t?aANr STEVEN HARPER, II, vs. BRIAN SHOTTS and CHERIE SHOTTS No. 10-4821 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Stephen G. Held, Esquire, (Name and Address) 1300 Linglestown Road, Suite 2, Harrisburg, PA 17110 (b) for defendants: John A. Lucy, Esquire (Name and Address) 301 Market Street, Lemoyne, PA 17043 3. 1 will notify all parties in writing within two d s that this ?ase has been listed for argument. 4. Argument Court Date: September 7, 2012 r nt your name ? Date: J o, Z-F Z o t "L Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Dt+ gl? 7 a z 9 U CERTIFICATE OF SERVICE AND NOW, this t 7), day of July, 2012, the undersigned does hereby certify tl he did this date serve a copy of the foregoing document upon the other parties of recc by causing same to be deposited in the United States Mail, first class postage prepaid, Lemoyne, Pennsylvania, addressed as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg,-LL"P' 1300 Linglestown Road, Suite 2 % Harrisburg, PA 17110 JOHNSON, DUIFIE, STEWART & WEIDNER Lucy, Esquire C _ rnco 71 , ;Z ::v t.-r ?'Y. C....... r7 T' `.MJ Stephen G. Held, Esquire I. D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: Held@hhrlaw.com Attorneys for Plaintiff STEVEN HARPER 11, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. BRIAN SHOTTS and CHERIE SHOTTS, Defendants NO.: 10-4821 CIVIL TERM CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Plaintiff, Steven Harper, II, by and through his attorneys, Handl r, Henning & Rosenberg, LLP, by Stephen G. Held, Esquire, and hereby files the followi g Response to Defendants' Motion for Summary Judgment: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted in part and denied in part. It is admitted that there were tenants in t e apartment, which is owned by Defendants, Brian and Cherie Shotts; however, the piece of gla ss fell because of the conditioning of the property as evidenced by Exhibit "A" - Depositi on testimony of Amanda Eboch and Exhibit "B" - Deposition testimony of Codi Fry. 13. Admitted in part and denied in part. It is admitted that Apartment B was leas d to tenants. It is denied that the window was in possession of the tenants. 14. Denied. See Deposition transcript of Defendant, Brian Shotts attached as Exhi it "C." Specifically noted that Defendant, Brian Shotts made repairs to the window and paint d the window frames prior to the incident, and repaired the putty in the windows. (Deposition of Brian Shotts, Page 17, Lines 6-23). Furthermore, see attached Exhibit "D" - Carlisle Borou gh Ordinance dealing with windows. Plaintiff is proceeding under a theory of negligence per se. 15. Denied. 16. Admitted. 17. Admitted. 18. This is a mischaracterization of the law of Pennsylvania. 2 19. It is admitted the general rule is that a landlord out of possession is not liable Ilor injuries incurred by third parties on the leased premises. However, there are exceptio6s, namely where the landlord undertakes a repair where Lessor contracts to repair under Restatement (Second) of Torts § 357, where there are Undisclosed Dangerous Conditions known to Lessor under Restatement (Second) of Torts § 358, and Negligent Repairs by Les under Restatement (Second) of Torts § 362. Furthermore, landlord remains liable for the condition of premises for defective conditions of the common areas in multi-tenant buildi were the landlord contains control of the common approaches and common parts of the building for defective conditions of these common areas of the building of which the land has actual or constructive notice. Felton by Felton v. Spratley, 640 A.2d 1358 (Pa. Super. 1990. Furthermore, the property owner is responsible for upkeep to the exterior of the buildi See, Borough Code. 20. Denied as a conclusion of law. Furthermore, Plaintiff was on the sidewalk outsi4le of the leased premises, rather than a tenant injured like in Lopez v. Gukenback, 137 A.2d 391 Pa. 359 (1958). 21. Denied as a conclusion of law. Again, Plaintiff was a member of the public usir the common sidewalk, which is distinguishable from Lopez. 22. Admitted that this is the legal standard in Pennsylvania; However Landlord cr be deemed to have constructive notice due to the condition of the windows. n 23. Denied. This is a factual issue. Furthermore, summary Judgment is inappropri under the Nanty-Glo Rule, Nanty-Glo Boro. v. American Surety Co. 309 Pa. 236, 163 A.2d 5?3 (1932). Likewise, Witnesses Amanda Eboch and Codi Fry indicate the windows were very o 3 (Exhibit "A" - Deposition testimony of Amanda Eboch, Page 14, lines 23 - Page 15 Line 15; Exhibit "B" - Deposition testimony of Codi Fry, Page 18, Lines 16-18.) 24. Admitted. 25. Denied. See Paragraph 23 above. WHEREFORE, Plaintiff requests that this Honorable Court deny Defendants' Motion fbr Summary judgment. Respectfully submitted, HANDLER, HENNI & ROSENBERG, LLP Ste a G. Held, Esquire I.D. No.: 72663 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiff Date: July 18, 2012 4 EXHIBIT "A" AMANDA EBOCH 1 A That is only on one of the rare 2 occasions that I go out, because I don't go out 3 very often. 4 Q Was my client drunk when he was 5 talking to you or impaired in any way? 6 A I believe so, but I don't remember. 7 Q Did you ever look at where the 8 windowpane fell out after you found out about 9 this? 10 A Like from the inside or outside? 11 Q Either way. 12 A Both. When it happened, I went 13 outside and gathered up the rest of the glass 14 that was like -- the little bit of glass that 15 fell. I cleaned that up. And then I went 16 upstairs. 17 And that is when I called Brian and 18 I was talking to him and I said, What do I do? 19 He said, well -- his reaction to me was, well, 20 you need to put in a new window. Well, it is no 21 my responsibility to. You know what I mean? 22 Like it is not my property. I should not have t 23 replace the window that should have been replace 24 to begin with when they look like they're 100 25 years old. And he -- so then time has gone by 14 ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 15 AMANDA EBOCH 1 and I want to say the Borough code -- I don't 2 think he is a code's man; but some type of man 3 from the Borough came around, looked at the 4 window and had called Brian. And Brian called 5 me. He said you need to shut the storm window s 6 at least there's like a -- you know what I mean, 7 at least that is not showing. So I did. And it 8 has never been fixed since. 9 That is not the only window in the 10 house that has broken from trying to lift up or 11 push down. There is another window in my living 12 room where my AC is, which that AC is screwed in 13 so we can't take -- like I can take it out 14 eventual, but it is a really heavy old AC, so I 15 don't feel like going through the hassle. So we 16 just leave it in all year round. 17 But when we first put it in, my 18 friend Robert, he had lifted up the window. And 19 when he lifted up, a little piece of the corner 20 glass fell out and cut his thumb. He was fine, 21 but other than that -- and that is still broken. 22 Then whenever I had talked to Brian 23 about the window being broken and stuff, he told 24 me that it was mandatory like ASAP at that point 25 to get renters' insurance. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXHIBIT "B" 9 CODI FRY 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 A We have not. Q Who do you rent that apartment frc A Brian Shotts. Q And that is B-r-i-a-n? A Uh-huh. Q S-h-o-t-t-s? A Yes. Q And he is your landlord? A Yes. Q And what kind of landlord is he? A A piece of crap. Q I asked and you answered. That is f ine. Have you ever had verbalized complaints to him about things? A Many. Q Before we get into the complaints and whatnot, what is your educational history? Did you graduate high school? A I did not. Q What is the highest level you attended? A Ninth grade. Q And where was that at? A Carlisle High School. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES ? CODI FRY 1 Q Yes. Tell me what you remember. 2 A It was me, my two children, and my 3 buddy Tim, and his daughter. Amanda and Tim's 4 wife, Sharon, had gone to the store. Tim said 5 about smoking a cigarette, so we went onto the 6 little back porch we have to our like back door 7 main door we use, and we heard a loud bang. 8 So we went out front. There was a 9 car accident. And the kids were playing and 10 everything was going on. The window was open i. 11 me and her bedroom. And then we were sitting o 12 front for I would say 20 minutes. And then we 13 went upstairs and the kids were hanging out the 14 window. 15 When I got upstairs, I could smell 16 like the smoke and stuff from the car accident. 17 So I had told my daughter, go shut the window. 18 And when she did so, part of it fell out and 19 Steve was standing below and that is how his le, 20 got cut. 21 Q Okay. Like, what part of it? Lilo 22 the window part of it? 23 A If it is like -- some windows are 24 like a whole solid window and then some of them 25 are like a whole window and then there's like 12 ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 13 CODI FRY 1 four sections. 2 Q Right. 3 A It is the bottom left section, ha 4 of that window fell out. So like just that 5 little section, half of that section fell out. 6 Q So looking behind you, that door 7 the room -- 8 A Exactlv like that. lust half of c 9 of them windows. 10 Q So what is the measurement you wou c 11 say of one of those panes? 12 A I would say one of them there, that 13 is probably like a 6 by -- 6 inches by 12 inches. 14 Q So half of a 6 by 12 inch windowpane 15 fell out? 16 A Yeah. Roughly. 17 Q Roughly, yeah. 18 A And then half of it was still there. 19 We had called Brian and told him the window had 20 fell out. And he said just to go ahead and pull 21 the other part of it out and shut the storm 22 window. So we did. And he still yet has not 23 fixed that broken window. 24 Q And it has been three years? 25 A Yes. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 18 CODI FRY 1 A Just that he said my landlord is a 2 piece of crap and that, you know. He was trying 3 to take him to court or whatever for it. We 4 didn't go in detail or anything like that. I was 5 like, hey, man, you do what you got to do. You 6 are not going to assault me by anything. 7 Q After the windowpane fell out, did 8 you ever look, or inspect the window, or anythi g 9 like that? 10 A When we called Brian, he had asked 11 us to pull it out, the rest of it, and shut the 12 storm window; and that is all we have done. 13 Q Did you ever have anyone from code 14 enforcement over to look at the window or 15 anything like that? 16 A Nope. I know it is old. 17 Q What is old? 18 A The window. 19 MR. HELD: I believe that is all the 20 questions I have. This lady might have 21 some, too. 22 THE WITNESS: Okay. 23 24 EXAMINATION BY MS. HOFFMAN: 25 Q I am Sarah Hoffman. I am the ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 21 CODI FRY 1 any like tension in it, as far as, you know, y 2 can put it up like 2 inches or you can put it 3 5 inches, or do you have to put it all the way 4 up? 5 A I want to say you can put it all 6 way up. 7 Q Are you able to put it -- just lik, 8 if you want to crack the window like 2 inches, 9 are you able to do so? 10 A I don't think so. 11 Q Is there a latch that would hold t 12 window up all the way? 13 A Like if you put it like say 2 inch 14 up, you have to put something under it to hold 15 it; but if you like push it all the way up, it 16 kind of gets stuck and stays. 17 That was then. I don't know how i 18 works now. I have not opened it. 19 Q But you had opened it, I think you 20 said, without any problem before to put in AC 21 units and that type of thing? 22 A Yes. 23 Q Did you notice that anything was 24 wrong with the window by appearance or anything 25 before the incident occurred? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 22 CODI FRY 1 A I mean, the windows just look, you 2 know, brittle. Like you can see that -- they a e 3 stained. You know what I mean? Like just old. 4 Q They just appear to be an old 5 window? 6 A Yeah. 7 Q Was there any difference in the 8 window from the time that you moved in until the 9 time that the accident happened? 10 A No. 11 Q Did you ever notify Mr. Shotts or 12 his wife that there was any problem with the 13 window? 14 A Before the accident? 15 Q Before the accident, yes. 16 A No. 17 Q Okay. Did you ever make any repair s 18 to the wi ndow yourself or have somebody else mak e 19 a repair to the window before the accident 20 happened? 21 A No. 22 Q Did you ever install any kind of 23 window treatment over the window, like blinds o 24 drapes, o r that type of thing? 25 A No. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXHIBIT Ty) 15 BRIAN SHOTTS 1 their ages. i 2 A I don't know that. l 3 Q Do you have a written lease with 4 her? 5 A Not at this time. i 6 Q At one time did you have a written 7 lease with her? 8 A Yes. 9 Q Do you know if you had a written 10 lease with her in 2008? 11 A I don't remember that. 12 Q Do you still have a copy of the 13 written lease? 14 A No. 15 Q All right. I am going to take you 16 back to September 2008. How did you become awa e 17 that my client was injured outside of your i 18 property? 19 A Amanda Eboch. 20 Q What did she tell you? 21 A She told me -- this was the next 22 week. I think that happened on a Saturday. An 23 I am pretty sure this was Monday, Tuesday, or 24 Wednesday, sometime in there. She said that th 25 police were there. There was an incident. Her ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES BRIAN SHOTTS 1 daughter was in the bedroom playing, the window 2 fell out and cut a man's legs on the street. 3 Q You think this was within like a 4 week of the event happening? 5 A I know it was either that Monday, 6 Tuesday, or Wednesday. I don't remember what 7 day. It was the beginning of that week. I don' 8 remember if I was in there and I saw her, or if 9 she called me. 10 Q Okay. Did you go look at the 11 window? 12 A I don't remember. 13 Q Do you know who paid to have the 14 window repaired? 15 A No, I don't. 16 Q Do you think you paid it or do you 17 think the tenant did? 18 A I think she fixed it. 19 Q Did you ever see what exactly 20 happened to the window? 21 A No, sir. 22 Q Can you describe to me what the 23 windows looked like on the second floor? 24 A They are single pane wooden window. 25 Q Wooden frame window? 16 ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 17 BRIAN SHOTTS I 1 A Yes. 2 Q And they were the original windows 3 that were on the house when you bought it? 4 A Correct. 5 Q Prior to you -- well, strike that. 6 After you bought the property but 7 prior to renting it, did you do any sort of 8 repairs to the apartment? 9 A Painted. 10 Q When you painted, did you also pai t 11 the windows? Not the windows themselves, I gues s 12 the frames of the windows? 13 A Yes. 14 Q Okay. Do you know if those window 15 were painted in such a way that you can still 16 open and shut the windows? 17 A Yes. 18 Q Did you notice anything about the 19 condition of the windows at that time? 20 A None of them were cracked or broke 21 Q Okay. Do you know if you repaired 22 any of the putty on the windows that frame it? 23 A I would say we did. 24 Q Do you know which window actually 25 fell out? ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES 18 BRIAN SHOTTS 1 A No, I don't. 2 Q Did any of the tenants you had 3 before Ms. Eboch ever complain about the 4 condition of the windows? 5 A No, sir. 6 Q Did Ms. Eboch ever complain about 7 the condition of the windows? 8 A No, sir. 9 Q Do you know if you ever, for any 10 reason, had a Carlisle Borough inspector inspec 11 the house? 12 A No, sir. 13 Q Property maintenance, inspector, o 14 anything? 15 A No. 16 Q And you never received any citatio 17 at that property for any alleged violations of 18 building codes or anything like that? 19 A No, sir. We got letters -- the 20 tenants would put their trash out and not put i 21 out on the street, but nothing as far as the 22 condition of the building or anything. 23 Q Right. Okay. Did you ever talk t 24 anybody about this incident that happened? 25 A I think I answered you that before ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXHIBIT "D" GENERAL REQUIREMENTS shall be removed, replaced or changed in a manner that reduces its effectiveness as a safety barrier. Exception: Spas or hot tubs with a safety cover that com- plies with ASTM F 1346 shall be exempt from the provi- sions of this section. SECTION 304 EXTERIOR STRUCTURE 304.1 General. The exterior of a structure shall be maintained in good repair, structurally sound and sanitary so as not to pose a threat to the public health, safety or welfare. 304.2 Protective treatment. All exterior surfaces, including but not limited to, doors, door and window frames, cornices, porches, trim, balconies, decks and fences shall be maintained in good condition. Exterior wood surfaces, other than decay- resistant woods, shall be protected from the elements and decay by painting or other protective covering or treatment. Peeling, flaking and chipped paint shall be eliminated and sur- faces repainted. All siding and masonry joints as well as those between the building envelope and the perimeter of windows, doors, and skylights shall be maintained weather resistant and water tight. All metal surfaces subject to rust or corrosion shall be coated to inhibit such rust and corrosion and all surfaces with rust or corrosion shall be stabilized and coated to inhibit future rust and corrosion. Oxidation stains shall be removed from exterior surfaces. Surfaces designed for stabilization by oxidation are exempt from this requirement. [F] 304.3 Premises identification. Buildings shall have approved address numbers placed in a position to be plainly legible and visible from the street or road fronting the property. These numbers shall contrast with their background. Address numbers shall be Arabic numerals or alphabet letters. Numbers shall be a minimum of 4 inches (102 mm) high with a minimum stroke width of 0.5 inch (12.7 mm). 304.4 Structural members. All structural members shall be maintained free from deterioration, and shall be capable of safely supporting the imposed dead and live loads. 304.5 Foundation walls. All foundation walls shall be main- tained plumb and free from open cracks and breaks and shall be kept in such condition so as to prevent the entry of rodents and other pests. 304.9 Overhang extensions. All overhang extensions elud- ing, but not limited to canopies, marquees, signs, me awn- ings, fire escapes, standpipes and exhaust ducts shall be maintained in good repair and be properly anchored so as to be kept in a sound condition. When required, all exposed s rfaces of metal or wood shall be protected from the eleme is and against decay or rust by periodic application of weather-coat- ing materials, such as paint or similar surface treatment. 304.10 Stairways, decks, porches and balconies. Eve y exte- rior stairway, deck, porch and balcony, and all appurtenances attached thereto, shall be maintained structurally so nd, in good repair, with proper anchorage and capable of sup orting the imposed loads. 304.11 Chimneys and towers. All chimneys, cooling owers, smoke stacks, and similar appurtenances shall be mar tained. structurally safe and sound, and in good repair. All posed surfaces of metal or wood shall be protected from the el ements and against decay or rust by periodic application of eather- coating materials, such as paint or similar surface trea ent. 304.12 Handrails and guards. Every handrail and gu d shall be fn-mly fastened and capable of supporting normally b riposed loads and shall be maintained in good condition. 304.13 Window, skylight and door frames. Every w indow, skylight, door and frame shall be kept in sound condid good repair and weather tight. 304.13.1 Glazing. All glazing materials shall be mai ntained free from cracks and holes. 304.13.2 Openable windows. Every window, oth than a fixed window, shall be easily openable and capable of being held in position by window hardware. 304.14 Insect screens. During the period from [ TE] to [DATE], every door, window and other outside opening quired for ventilation of habitable rooms, food preparation areas, food service areas or any areas where products to be include or uti- lized in food for human consumption are processed, anufac- tured, packaged or stored shall be supplied with approved tightly fitting screens of not less than 16 mesh per 'rich (16 mesh per 25 mm), and every screen door used for insect control' shall have a self-closing device in good working condition. 304.6 Exterior walls. All exterior walls shall be free from holes, breaks, and loose or rotting materials; and maintained weatherproof and properly surface coated where required to prevent deterioration. 304.7 Roofs and drainage. The roof and flashing shall be sound, tight and not have defects that admit rain. Roof drainage shall be adequate to prevent dampness or deterioration in the walls or interior portion of the structure. Roof drains, gutters and downspouts shall be maintained in good repair and free from obstructions. Roof water shall not be discharged in a man- ner that creates a public nuisance. 304.8 Decorative features. All cornices, belt courses, corbels, terra cotta trim, wall facings and similar decorative features shall be maintained in good repair with proper anchorage and in a safe condition. approved means, such as air curtains or insect repell nt fans, are employed. 304.15 Doors. All exterior doors, door assemblies and hard- ware shall be maintained in good condition. Locks all en- trances to dwelling units and sleeping units shall tightl secure the door. Locks on means of egress doors shall be in ac rdance with Section 702.3. 304.16 Basement hatchways. Every basement hatch ay shall be maintained to prevent the entrance of rodents, rain and sur- face drainage water. 304.17 Guards for basement windows. Every base nt win- dow that is openable shall be supplied with rodent shields, storm windows or other approved protection against e entry of rodents. 10 2006 INTERNATIONAL PROPERTY MAINTENANCt CODE" Stephen G. Held, Esquire Attorney ID# 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: Held@hhrlaw.com Attorney for Plaintiff STEVEN HARPER, II, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-4821 CIVIL TERM CIVIL ACTION - LAW BRIAN SHOTTS AND CHERIE SHOTTS, Defendants CERTIFICATE OF SERVICE On July 19, 2012, 1 hereby certify that a true and correct copy of Plaintiff's Respon Defendants' Motion for Summary Judgment was served upon the following by depositing same in United States Mail, in Harrisburg, Pennsylvania: John A. Lucy, Esquire Johnson, Duffie, Stewart & Weidner, P.C. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants HANDLER, HENNI G & ROSENBERG, LLP (?4140 Step , Esquire I.D. No.: 72663 Attorneys for Plaintiff to the IL L-La-0 F IGE OF THE PROTHONOTAR`` 2013 MAY 23 PM !: 2 CUMBERLAND COUNTY PENNSYLVANIA Johnson, Duffie, Stewart&Weidner By: John A. Lucy, Esquire I.D. No. 203948 Attorneys for Defendants 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jal @jdsw.com IN THE COURT OF COMMON PLEAS OF STEVEN HARPER, II, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 10-4821 CIVIL TERM V. CIVIL ACTION — LAW BRIAN SHOTTS and CHERIE SHOTTS, JURY TRIAL DEMANDED Defendants STIPULATION TO REMOVE MATTER TO ARBITRATION It is hereby agreed to and stipulated to by the parties that this matter shall be moved to Compulsory Arbitration as provided for in the Pennsylvania Rules of Civil Procedure and Cumberland County Local Rules. HANDLER, HENNING & ROSENBERG, LLP JOHNSO UFFIE, STE ART & WEID R BY: 6jyvw B : Stephen b. Ueld, Esquire John A. Lucy quire Attorney I.D. No. 72663 Attorney No. 203948 1300 Linglestown Road, Suite 2 301 et Street, P. O. Box 109 Harrisburg, PA 17110 ne, PA 17043-0109 Telephone: (717) 238-2000 ephone (717) 761-4540 Counsel for Plaintiff Counsel for Defendants CERTIFICATE OF SERVICE AND NOW, this_` 2�- day of 81-1 2013, the undersigned does hereby certify that he did this date serve a copy of the foregoing Stipulation to Remove Matter to Arbitration upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Counsel for Plainti OHNSON, DUF IE, STEWART &WEIDNER BY: J A. Lucy t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA STEVEN HARPER, 11, Plaintiff NO. 10-4821 CIVIL TERM VS (D mw =r. ­n BRIAN SHOTTS and CHERIE SHOTTS, MrT-4 � rr)f- Defendant -nr- <> r RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the following form: THE PETITION FOR APPOINTMENT OF ARBITRATORS ..t TO THE HONORABLE,THE JUDGES OF SAID COURT: John A. Lucy, Esquire, counsel for the plaintiff/defendant in the above action(or actions),respectfully represents that: 1. The above-captioned action(or actions)is(are)at issue. 2. The claim of plaintiff in the action is$ The counterclaim of the defendant in the action is The following attorneys are interested in the case(s)as counsel or are otherwise disqualified to sit as arbitrators: WHEREFORE,your petitioner prays you onorabl Court to appoint three(3)arbitrators to whom the case shall be submitted. Re pectfully submitted, q3L-29 0 E OF COURT AND NOW, 20_, in consideration of the foregoing petition, Esq.,and Esq., and Esq., are appointed arbitrators in the above captioned action(or actions)as prayed for. By the Court, KEVIN A.HESS,P.J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA STEVEN HARPER, 11, Plaintiff NO. 10-4821 CIVIL TERM VS r f. C71 BRIAN SHOTTS and CHERIE SHOTTS, .* Defendant C') :Z3 -<> C D RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the following form: THE PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE,THE JUDGES OF SAID COURT: John A. Lucy, Esquire, _' counsel for the plaintiff/defendant in the above action(or actions),respectfully represents that: 1. The above-captioned action(or actions)is(are)at issue. 2. The claim of plaintiff in the action is$ The counterclaim of the defendant in the action is The following attorneys are interested in the case(s)as counsel or are otherwise disqualified to sit as arbitrators: WHEREFORE,your petitioner prays you onorabl Court to appoint three(3)arbitrators to 4LM whom the case shall be submitted. A-%9 r *1y 0( . 6 Re pectfully submitted, Ca 4/3w'-,2O 0 E OF COURT AND NOW, 2013 , in c9psideration of the foregoing 16) 00-1 petition, Esq.,and 4E.4�t Zf�3 IC/ 61 Esq.,and Esq., are appointed arbitrators in the above", c�, c:_- captioned action(or actions)as prayed for. a rri ca c- }.•„ F-Tj By the Court, , > C-1 KEVIN A. HES J. CD Z-ael r - :71 ✓rN (YA R ea-2 In the Court of Common Pleas of Cumberland Plaintiff 2��N �sF(vrtS r CHA-laa-1 County, Pennsylvania No. Defendant Civil Action—Law. Oath We do sole Viweof affirm)t hat we will support, obey and defend the Constitution of the United States and the s Commonwealth and that we will discharge the dutie o r offic wi elit . l Signature Signature ature ? mac K. Ed ward ?0161k Z Name (Chairman) Name ame SO4L.e Lir1QhT/O1�1 c4ftr6u a &C/,' ► � Law Firm Law Firm Law Firm<��r r e�,t<�/ sr y(o� T;„d le Ad. _ S+e /OZ Aa Address Address AddressSLt4'T£ lox u�;l� pA 0 non 3 City, Zip City, Zip City, Zip Award We, the undersigned arbitrators,having been duly appointed and sworn(or affirmed),make the following award: (Note: If damages for delay are awarded,they shall be separately stated.) /j pvoe Arbitrator, d'ss t . ( ert name if applicable.) Date of Hearing: $xe�� Date of Award: S1,41 l (Chairman) £ I� Notice of Entry of Award Now, the ' S� day of , 20 13 , at a7 M., the above award was entered upon the docket and 4otice thereof given by mail to the parties or their attorneys. Arbitrators' com ensation to b aid upon appeal: $ J711fu By: Prothonotary Deputy 7913 AUG - I PM 2: 4-7 CUMBERLAND COWN:TY PENNSYLVANIA J04 of A. LU-CX / /`4J l/tfa,lev �j!� STEPHEN HARPER,11, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff ' VS NO. 10-4821 :z D �µ BRIAN SHOTTS and CHERIE SHOTTS, "+ca z Defendants . C) —t .t~- . NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that Plaintiff,Stephen Harper,II appeals from the award of the board of arbitrators entered in this case on 8/1/2013 A jury trial is demanded E (Check box if a jury trial is demanded. Otherwise jury trial is waived.) I hereby certify that XM1. the compensation of the arbitrators has been paid,or F-12, application has been made for permission to proceed in forma pauperis. (Strike out the inapplicable clause.) Appel nt or Attorney or Appellant NOTE: The demand for jury trial on appeal from compulsory arbitration is governed by Rule 1007.1 (b). No affidavit or verification is required. 5 t`✓�N In the Court of Common Pleas of Cumberland v _ Plaintiff j?��G�1✓ f� fit? Cl� 5'l �gds' County, Pennsylvania No. P,() Defendant Civil Action—Law. Oath We do sole we (or affirm) that we will support, obey and defend the Constitution of the United States and the i of this Commonwealth and that we will discharge the durj Zlit . Signature Signature V $' ature � - Name (Chairman) Name ame '9641-E LitiCjhT-1#N 1�1�QLr J`'0Ni'fs Law Firm Law Firm Law Firm ' 5 sr f�'��� fit- �f(ol 7;ncf'�e �d. . Sh 102- l7 ✓� Address Address Addres9,yL4-4'F j: AtV'0(*2`5�11126 'To,-34— camp Um iPA 0 liou LZ9HJE 17-DY City, Zip City, Zip City, Zip Award We, the undersigned arbitrators, having been duly appointed and sworn(or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) IQ AI�D % L4 Cle fl-T E jvT� fiA6 7-PgW'f�1C,! /j F .Arbitrator, d'ssent . ( ert name if applicable.) Date of Hearing: ale Date of Award: S4411 (Chairman) E 12 Notice of Entry of Award Now, the " day of - , 20 l3 , at M., the above award was entered upon the docket and 4iotice thereof given by mail to the parties or their attorneys. Arbitrators' com ensation to b aid upon appeal: $ -/&S7) . .• TRUE COPY FRQt�II RECORD Prothon timony whereof,I here unto set my hand Deputy ane seal of said Court at Carlisle,Pa. This_.[..,_day of 20/_ Prothonotary fry ff C£40T, I 2L14lIIiG19 1311 I:��; CLF BERLANO PENNSYLVANIA 7l Johnson, Duffie, Stewart & Weidner By: John A. Lucy, Esquire I.D. No. 203948 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jal@jdsw.com STEVEN HARPER, II, v. BRIAN SHOTTS and CHERIE SHOTTS, Plaintiff Defendants : Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4821 CIVIL TERM CIVIL ACTION — LAW JURY TRIAL DEMANDED MOTION OF DEFENDANTS, BRIAN SHOTTS and CHERIE SHOTTS, FOR STATUS CONFERENCE AND NOW, come the Defendants, Brian Shotts and Cherie Shotts, by and through their counsel, Johnson, Duffie, Stewart & Weidner, and files the following Motion for Status Conference by stating the following: 1. This personal injury action arises out of an incident that occurred in front of the Defendants' premises located at 353 North Hanover Street, Carlisle, Cumberland County, Pennsylvania. 2. At the time of this incident, Plaintiff alleges that a window pane fell out from a second story apartment building and caused him injury. 3. On or about July 22, 2010, Plaintiff filed a Complaint averring personal injuries as noted above. 4. On or about August 13, 2010, Defense counsel entered an appearance on behalf of the Defendants. 5. On or about August 27, 2010, Defendants' Answer and New Matter was filed. 6. Plaintiff filed a Reply to Defendants' New Matter on or about September 14, 2010. 7. On May 21, 2013, a Petition for Appointment for Arbitrators was filed by the undersigned counsel. 8. On or about August 1, 2013, an Award of Arbitrators was entered in favor of Defendants, Brian Shotts and Cherie Shotts. 9. On or about August 26, 2013, an Appeal to the Arbitration Award was taken. 10. Defendants have requested that Plaintiff provide a settlement demand. 11. At this time, the parties have been unable to resolve the above matter and Defendants request a Status Conference to discuss scheduling deadlines moving forward. 2 WHEREFORE, Defendants, Brian Shotts and Cherie Shotts, respectfully request this Honorable Court enter an Order scheduling a Status Conference. Date: August j4 , 2014 Respectfully s JOHN 3 itte i, N, DUFFIfi, STEWART & WEIDNER J hn A. cy, Esquire Attorn-y I.D. No. 203948 301o - rket Street, P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Counsel for Defendants AND NOW, this CERTIFICATE OF SERVICE day of August, 2014, the undersigned does hereby certify that he did this date serve a copy of the foregoing Motion of Defendants, Brian Shotts and Cherie Shotts, for Status Conference upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Counsel for Plaintiff JOHN BY: TEWART & WEIDNER John A. r• FILED -OFFICE �i i HE: PROTHONOTARY 21314 AUG 26 Ni 2:38. CUMBERLAND COUNTY PENNSYLVANIA Johnson, Duffle, Stewart & Weidner By: John A. Lucy, Esquire I.D. No. 203948 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jal@jdsw.com STEVEN HARPER, II, Attorneys for Defendants : IN THE COURT OF COMMON PLEAS OF Plaintiff •CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 10-4821 CIVIL TERM BRIAN SHOTTS and CIVIL ACTION — LAW CHERIE SHOTTS, Defendants JURY TRIAL DEMANDED AND NOW, this a?lo 61 day of ORDER , 2014, on consideration of the Defendants' Motion for Status Conference, a Status Conference is hereby scheduled for , 2014, ath'4.M. at the Cumberland County Courthouse in Edezidgliao Distribution: • Stephen G. Held, Esquire, Handler, Henning & Rosenberg, LLP, 1300 Linglestown Road, S to 2, Harrisburg, PA 17110; (717) 238-2000 (Counsel for Plaintiff); • John A. Lucy, Esquire, Johnson Duffie Stewart & Weidner, 301 Market Street, P.O. Box 109, Lemoyne, PA 17043-0109 (717) 761-4540 (Counsel for Defendants) Cop les ire. I y BY THE C URT: ' 6 STEVEN HARPER, II, IN THE COURT OF COMMON PLEAS OF Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION — LAW : NO. 10-4821 CIVIL BRIAN SHOTTS and CHERIE SHOTTS, Defendants IN RE: MOTION FOR STATUS CONFERENCE ORDER AND NOW, this dr day of November, 2014, the status conference set for September 12, 2014, is continued to Wednesday, January 7, 2015, at 3:00 p.m. in Chambers of the undersigned. Stephen G. Held, Esquire For the Plaintiff John A. Lucy, Esquire For the Defendants :rim 1/ BY THE COURT, CD C) -r STEVEN HARPER, II, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION — LAW : NO. 10-4821 CIVIL BRIAN SHOTTS and CHERIE SHOTTS, Defendants : JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this tr. day of January, 2015, the record of this case is annotated to reflect that, at a status conference held January 15, 2015, it was agreed that counsel would list this case for trial during the week commencing March 23, 2015. BY THE COURT, Key' ✓ Stephen G. Held, Esquire 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 For the Plaintiff ✓ John A. Lucy, Esquire 301 Market Street P. O. Box 109 Lemoyne, PA 17043 For the Defendants :rim COF t.es patta_ osits 41/./2 A. Hess, P.J. N