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HomeMy WebLinkAbout01-1403KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 396-9001 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, VS. CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE : Carlisle Sports Emporium, Inc. : 36 Kelly Drive : Carlisle, Pennsylvania 17013 : and : TRAVIS BEST : 2569 South Avenue : New York, New York 10039 : Defendants. : Comolaint Civil Action: COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION 0/-/V ~5 ,2001 Docket No. COMPLAINT Miscellnn~aus NOTICE You have been sued in court, If you wlsh to defend against the clalrn~ act forth In the following pages, you must taka action within twenty (20) days after this complaint and notice are senmd, by entering a Written aopeamnce personally or by attorney and filing in writing with the court your defenses or objections to the clairol set forth ~Jalmt 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 aoy other claim or relief requested by the plaintiff. You my lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (2~5) 396-9001 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, VS. CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Inc. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION o/- / ~/o3 ~2fTERM, 2001 Docket No. COMPLAINT Complaint Civil Action: M?o~ll~eous 1. Plaintiff, Paulette Harris, is an adult individual, residing at 1880 Lafayette Avenue, in Bronx, New York. 2. Defendant, Carlisle Sports Emporium, Inc., is a business, company, entity, partnership, franchise, fictitious name, proprietorship or corporation existing and/or qualifying under the laws of the Commonwealth of Pennsylvarria, with a registered office for acceptance of service or principal place of business at 36 Kelly ])rive, Carlisle, in the Commonwealth of Permsylvania. 3. Defendant, John Doe, is an adult individual and employee of Carlisle Sports Emporium, Inc., located at 36 Kelly Drive, in Carlisle, Pennsylvania. 4. Defendant, Travis Best, is an adult individual, residing at 2569 South Avenue, in New York, New York. 5. At all times relevant and material, defendant, John Doe, was an agent, servant and/or employee of defendant, Carlisle Sports Emporium, Inc., acting at all times within the course and scope of his employment. 6. At all times relevant and material to this Complaint, defendants did act through their agents, servants, workmen, employees and/or representatives, said individuals acting within the course and scope of their employment and/or agency. 7. At all times relevant and material to this Complaint, defendant, Carlisle Sports Emporium, Inc., owned, operated, leased, managed, controlled and/or had dominion over the premises commonly known as Sports Emporium, located at 29 S. Middlesex Road, in Carlisle, Pennsylvania (the "Premises"). 8. At all times material and relevant hereto, there was an obligation on the part of the aforesaid defendants, to supervise, maintain, inspect, clean and otherwise be responsible for the Premises, including the roller skating rink area of the Premises, so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 9. On or ahout March 13, 1999, at or about 9:30 p.m., plaintiff, Paulette Harris, was a business invitee on the Premises, on or about the go-cart track area of the Premises. 10. At the aforementioned time and place, plaintiff, Paulette Harris, was operating a go-cart, on 2 the go-cart track, when suddenly and without warning, defendant employee, John Doe, failed to prevent defendant, Travis Best, from operating his go-cart in a dangerous and reckless manner, on the aforementioned go-cart track, allowing defendant, Travis Best, to operate his go-cart in a dangerous and reckless manner, thereby causing plaintiff's go-cart to be violently struck by defendant, Travis Best's, go- cart, causing plaintiffto suffer severe and grievous injuries. 11. At all times relevant hereto, defendants herein owed a duty to supervise, manage, train, and otherwise be responsible for the conduct of their employees, to provide a safe and hazard free enviromnent and otherwise be responsible for the aforesaid premises so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 12. The circumstances under which plaintift~ Paulette Harris, was injured were such that said injuries to plaintiff could not have occurred on the Premises except by defendants' negligence. 13. The aforesaid accident resulted solely from the negligence and carelessness of defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, and in no manner whatsoever to any act or failure to act on the part of plaintiff, Paulette Harris. COUNT I PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC. 14. Plaintiff, Panlette Harris, incorporates by reference thereto, paragraphs one through thirteen, inclusive, as though same were set forth hereiu at length. 15. the following: (a) The negligence and carelessness of defendant, Carlisle Sports Emporium, Inc., consisted of failing to provide safe conditions for business invitees, patrons and/or members of the public on the Premises; 3 (b) failing to supervise, train, review or regulate the conduct of Sports Emporium employees on the Premises, said failure to supervise, train, review or regulate the conduct of Sports Emporium employees existing for a long time prior to the date of this accident; (c) failure to properly and adequately train Sports Emporium employees, in particular the aforesaid unsafe conduct of the employee, John Doe, of Carlisle Sports Emporium, Inc.; (d) failure to take reasonable precautions against the dangerous, reckless and unsafe conduct of the Sports Emporium employees; (e) failure to properly and adequately hire and/or instruct the agents, servants, workmen, employees and/or representatives, of defendant herein, as to the safe and proper procedures for supervising, training, and regulating the conduct of Sports Emporium employees which caused plaintiffs injuries; (f) failure to use reasonable care in the construction, maintenance and operation of the Premises, in particular, the go-cart track area; (g) failure to provide and maintain proper supervision of the Premises; (h) failure to provide and maintain proper safety precautions at the Premises; (i) failure to furnish a reasonable ntunber and distribution of safety personnel and safety equipment at the Premises; (j) failure to provide and maintain proper training procedures at the Premises; (k) failure to furnish a reasonable number and distribution of training personnel and training equipment at the Premises; and (1) negligence per se. WHEREFORE, plaintiff, Paulette Harris, demands damages against defendant, Carlisle Sports Emporium, Inc., in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT II PAULETTE HARRIS vs. JOHN DOE 16. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through fifteen, inclusive, as though same were set forth herein at length. 17. The negligence of the defendant, John Doe consisted of the following: (a) failing to properly and adequately conduct himself when interacting with business invitees, patrons and/or members oft. he public, in particular, plaintiff, Paulette Harris; (b) failing to use due care and to employ reasonable skill in the performance of his job duties; (c) negligently and carelessly inflicting bodily harm upon the plaintiff; (d) negligently and carelessly allowing another person to continually operate a go-cart in a dangerous and reckless manner; and (e) failing to regard the rights, safety and lawful position ofplaintiffat the point aforesaid. WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendant, John Doe, in a sum not in excess of $50,000.00, plus interest, costs, and attorneys' fees. COUNT III PAULETTE HARRIS vs. TRAVIS BEST 18. Plaintiff, Paulette Harris, incorporate by reference thereto, paragraphs one through seventeen, inclusive, as though same were set forth herein at length. 19. The negligence and carelessness of defendant, Travis Best, consisted of the following: (a) failing to properly operate and control said go-cart; 5 (b) operating said go-cart at an excessive and unsafe rate of speed under the circumstances; (c) operating said go-cart in a dangerous and reckless manner; (d) failing to maintain a proper and adequate lookout; (e) failing to follow and observe traffic patterns and conditions; (f) failing to regard the rights, safety and lawful position of plaintiffat the point aforesaid; (g) causing a vehicular collision; (h) failing to properly and adequately maintain said motor vehicle; (i) negligence per se. WHEREFORE, plaintiff, Paulette Harris, demands damages of defendant, Travis Best, in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT IV PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC., JOHN DOE and TRAVIS BEST 20. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through nineteen, inclusive, as though same were set forth herein at length. 21. As a result of this accident, plaintiff, Paulette Harris, has suffered injuries which are or may be serious and permanent, including, but not limited to cervical strain and sprain, lumbosacral strain and sprain, right shoulder strain and sprain, right brachial plexus injury, radiculopathy, post-traumatic headaches, post-traumatic stress disorder, myofascitis, cervalgia, himbalgia and thoracicalgia, 22. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive and undergo medical attention and care for her injuries, and to incur various expenses for said care, and she may be obligated to continue to expend such sums and to incur such expenses for an indefinite period of time in the future. 23. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive and undergo reasonable and necessary medical treatment and rehabilitative services for the injuries she has suffered, and to incur various expenses for said treatment and services, and she may incur various reasonable and necessary future medical expenses from the injuries sustained, and defendants are liable for all of the same. 24. As a further result of this accident, plaintiff, Panlette Harris, has or may suffer severe loss mad impairment of her earning capacity and power, and may continue to suffer such a loss of an indefinite time in the furore. 25. As a further result of this accident, plaintiff, Paulette Harris, has been unable to attend to her daily chores, duties and occupations, and may be unable to do so for an indefinite time in the future. 26. As a direct result of the accident, plaintiff, Paulette Harris, has and may continue to in the future incur other financial expenses or losses to which she may be otherwise entitled to recover. 27. As a further result of the accident, plaintiff, Paulette Harris, has suffered severe physical pain, aches, mental anguish, and humiliation, inconveniences, and loss of life's pleasures, and she may continue to suffer the stone for an indefinite time in the future. WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, jointly and/or severally, in a sum not in excess of $50,000.00, plus interest, costs, and attorney's fees. KATS, JAMISON, VAN DER VEEN & ASSOCIATES , sqmre Attorney for Plaintiff VERIFICATION , hereby verifies that he/she is the plaintiff herein and that the facts set forth in the foregoing pleading are tree and correct to the best of his/hei' knowledge, information and belief. This statement is made subj%to the penalties of 18 PA C.S. / / Section 4904 relating to the unsworn falsification tdat~horities. /I /~, SHERIFF'S CASE NO: 2001-01403 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARRIS PAULETTE VS CARLISLE SPORTS EMPORIUM INC E RETURN - REGULAR GEi~ALD WORTHINGTON , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE CARLISLE SPORTS EMPORIUM INC DEFENDANT , at 1735:00 HOURS, on the at 36 KELLY DRIVE Sheriff or Deputy Sheriff of who being duly sworn according to was served upon 3rd day of April law, the , 2001 CARLISLE, PA 17013 DAN HURLEY MANAGER a true and attested copy of by handing to COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.10 Affidavit .00 Surcharge 10.00 .00 31.10 Sworn and Subscribed to before me this //~ day of ~ ~ ! A.D. t~rdthonotary · /~ , So Answers: R. Thomas Kline 04/04/2001 KATS & ASSOCIATES Deputy S~riff HECKER BROWN SHERRY AND JOHNSON BY: Steven D. Johnson/Eugene A. Luciw Atty. I.D. Nos.: 23848/38969 Suite 800, The Professional Building 65 E. Elizabeth Avenue Bethlehem, PA 18018-6506 (610) 868-1400 Attorneys for Plaintiff Weis Markets, Inc. WEIS MARKETS, INC., Plaintiff SILVER LAKE FOODS, INC. and ROBERT TOWNS, Defendants COURT OF COMMON PLEAS NORTHUMBERLAND COUNTY CIVIL EQUITY ~(~T!O~N 1739 'Tl~. O I - I 'l uo Judgment No.: ~ ! ! Cumberland County No.: INTERROGATORIES IN ATTACHMENT ADDRESSED TO GARNISHEE. METROPOLITAN LIFE INSURANCE COMPANY To: Metropolitan Life Insurance Company C/o Brian Breneman, Regional Manager 4720 Old Gettysburg Road, Suite 305 Mechanicsburg, PA 17055 You are required to file answers to the following interrogatories within twenty (20) days after service upon you. Failure to do may result in judgment against you: N.B. References to defendant include defendant, Robert Towns, only. 1. At the time you were served or at any subsequent time did you owe the defendant any money or were you liable to the defendant on any negotiable or other written instrument, or did the defendant claim that you owed the defendant any money or were liable to the defendant for any reason. ")/L~O - Answer: . t~so, ptease provide particulars so far as ~ relevant regarding the monies owed (or claimed to be owed) or the liability (or claim of/__r ~.._.. 1--~ ~..~--..L ~--,~ liability) including, without limiting generality, the amount of same, how same arose, same's value, identifying details of the negotiable or other written instrument, any account or file numbers, the nature of same, the status of same, the names and addresses of any persons taking part in any relevant transactions, the specific amount of the debt, the value 59663-1 and location of any property, and the nature and amount of consideration, if any,~ O~,iwfig~ven for any transfer of property. 2. At the time you were served or at any subsequent time was there in your possession, custody or control or in the joint possession, custody or control of yourself defendant9and one or more /~ other ~ persons ~ any property ~°fany.5 J-t/~ nature/6°wned ~J'~ sole?_ ~k'°r i~ part_ ~3 by~ the Answer: . If so, please provide particulars so far as relevant regarding the property, setting forth, without limiting generality, its nature, amount, value, identity, file number, account number, accompanying documentation, all other persons in possession, all persons who own same, all persons who claim a right to same, its status, the names and addresses of any persons taking part in any relevant transactions, the specific amount or the value of the property, the location of any 59663-1 property, and the nature and amount of consideration, if any given for any trans property. 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in part by, the defendant or in which -- ~ ......... / c uelenuant bela or claimea any ~ .Ttr..2~ o~t ~ ~ Answer: . If so, please provide particulars so far as relevant regarding that property by setting forth (without limiting generality), its nature, amount value, identifying information, account number, file number, accompanying documentation, all persons holding legal title, all persons who own same or claim a right to same, its status, the names and addresses of any persons taking part in any relevant transactions, the specific amount or the value of the property, the location of any property, and tbe nature and amount of consideration, if any given for any transfer of property. 59663-1 4. At the time you were served or at any subsequent time did you hold as fiduciary any pronert¥ in which the defendant had an inte~[est? ~ ~ ~ J' J~ ,answer: . If so, please provide particulars so far as regarding that property by setting forth (without limiting generality), its nature, amount value, identifying information, account number, file number, accompanying documentation, all persons holding legal title, all persons who own same or claim a right to same, its status, the names and addresses of any persons taking part in any relevant transactions, the specific amount or the value of the property, the location of any property, and the nature and amount of consideration, if any given for any transfer of property. 59663-1 5. At any time before or after you were served did the defendant transfer or deliver any property to you or to any person or place pursuant to your direction or consent and if so, what was the consideration therefor? Answer: . If so, please set forth particulars in so far as relevant regarding any such transfer, delivery or property, including, without limitation, the dates of any such transfers or deliveries, the names and addresses of any persons taking part in any relevant deliveries or transactions, the nature and amount of any consideration, if any, given for any transfer or delivery or property, any account or file number, the nature of any transaction, delivery of property, the location of any property, the specific amount of any debt, the value of any such property, any accompanying documentation, the nature of any prope~y, the status of any property, and all persons in possession of same or who claim ownership or any other rights in same. 59663-1 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendant or to any person or place pursuant to the~tefendant's direction or otherwise discharge any claim of the defendant against you? ~c////~ Answer: . If so, please set forth particulars, in so far as relevant, regarding any such payment, transfer, discharge, delivery, property, or claim, including, without limitation, the dates, the names and addresses of all persons taking part in same, the nature and amount of any consideration, if any, given, any account or file numbers, the nature of any relevant transaction or claim or property, the location of any money or property, the specific amount of any debt or claim, or money, the value of any claim, money or property, the nature of any money, claim or property, any accompany documentation, identification of any money, claim, property, payment, transfer, or delivery, and all persons who own, possess, or claim rights to any such monies or property. 59663-1 HECKER BROWN SHERRY AND JOHNSON LLP Date: By: Euge~sq.~' ~ 59663-1 ! hereby certify that I have served a copy of this paper upon all other parties or their attorneys by: x %eguLar Mall -- C'mr t i f i ed Mail SPECTOR~.~DON & ROSEN, P.C. By: Lary I. Zucker, Esquire Identification No. 61072 John T. Asher, Iii, Esquire Identification No. 76957 Seven Penn Center Plaza 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840/(215) 241-8844 (fax) To: Plaintiff(s) You ar, ehereby notified to plead to the eni~.osed Preliminary Objections within twenty ~ ) days ~7.OB.~ervice Attorneys for Defendant, Carlisle Sports Emporium, Inc. PAULETTE HARRIS COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, CARLISLE SPORTS EMPORIUM, INC. : 01-1403 Civil and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants PRELIMINARY OBJECTIONS OF DEFENDANT, CARLISLE SPORTS EMPORIUM, INC. TO PLAINTIFF'S COMPLAINT Defendant, Carlisle Sports Emporium, Inc., by and through its attorneys, Spector Gadon & Rosen, P.C., hereby preliminarily objects to plaintiffs Complaint and, in support thereof, avers as follows: 1. This matter arises from an incident which allegedly occured on or about March 13, 1999 when plaintiff was allegedly injured at defendant, Carlisle Sports Emporium, Inc.'s facility in Carlisle, Pennsylvania. 2. On or about March, 2001, plaintiff filed a Complaint against Defendants, Carlisle Sports Emporium, Inc., John Doe, Employee and Travis Best on or about March 12, 2001. A true and correct copy of plaintiff's Original Complaint is attached hereto as Exhibit "A". 3. Upon information and belief, service was made upon defendant, Carlisle Sports Emporium on April 3, 2001. 4. The statute of limitations in this matter expired on March 13, 2001 I. PRELIMINARY OBJECTIONS IN THE NATURE OF A MOTION TO DISMISS FOR LACK OF JURISDICTION FOR IMPROPER SERVICE 5. Defendant, Cadisle Sports Emporium, Inc. incorporates the foregoing paragraphs as though same were set forth herein at length. 6. Plaintiff's complaint names "John Doe, Employee" as a defendant in the within action. See Exhibit '%." "John Doe, Employee's" address is listed as that of Carlisle Sports Emporium, Inc,, 36 Kelly Drive, Carlisle, Pennsylvania, 17013. 7. Upon information and belief, no service was made upon "John Doe, Employee" at 36 Kelly Drive, Carlisle, Pennsylvania. 8. Pursuant to Pa.R.C.P. 40'1 service must be made within thirty (30) days after the issuance of a writ or the filing of a complaint and if service is not made, then the complaint or writ may be reinstated or reissued. -2- 9. Upon information and belief, plaintiff has neither reinstated her complaint nor made service upon "John Doe, Employee." WHEREFORE, Defendant, Cadisle Sports Emporium, Inc. respectfully requests this Honorable Court enter an order dismissing plaintiff's complaint against "John Doe, Employee" for improper service. I1. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO "JOHN DOE, EMPLOYEE" BEING NAMED AS A PARTY AND ALL COUNTS RELATIVE TO SAID DEFENDANT AND FOR LACK OF SPECIFICITY TO PLAINTIFF'S COMPLAINT 10. Defendant, Carlisle Sports Emporium, Inc. incorporates the foregoing paragraphs as though same were set forth herein at length. 11. Plaintiffs' complaint names "John Doe, Employee" as an agent, servant and/or employee of defendant, Cadisle Sports Emporium, Inc. and avers causes of action against "John Doe, Employee" in counts II and IV of her complaint. See Exhibit 12. Plaintiff further avers that defendant, Carlisle Sports Emporium, Inc. acted through its "agents, servants, workmen, employees and/or representatives" in paragraph of 6 of her complaint. See Exhibit "A." '13. Plaintiff fails to name the employee or employees she has sued as "John Doe, Employee" in her complaint. 14. Pursuant to Pa.R.C.P. 1019, the material facts upon which a cause of action are based must be stated in concise and summary form. 15. Plaintiff has failed to identify any employee of defendant who is allegedly liable to plaintiff in this action. -3- 16. By naming "John Doe, Employee" as a defendant, plaintiff may seek to amend her complaint at a point beyond the statute of limitations to name an individual, or as paragraph 6 suggests, individuals, beyond the expiration of the statute of limitations. 17. Amending a complaint to add a new defendant after the statute of limitations is not permitted. Anderson Equipment Co. v. Huchber, 690 A.2d 1239, 456 Pa. Super. 535 ('~997). 18. If plaintiff did not know the identity of individuals prior to the expiration of the statute of limitations, plaintiff could have filed a Writ of Summons and sought to take pre-complaint discovery pursuant Pa.R.C.P. 4005 or upon motion to this Court. 19. Defendant should not be prejudiced by plaintiff's failure to comply with the rules and attempting to amend their complaint at a later date after the expiration of the statute of limitations. WHEREFORE, defendant, Carlisle Sports Emporium, Inc., respectfully requests this Honorable Court Strike plaintiff's complaint against, defendant, "John Doe,Employee" and strike counts II and IV as they relate to "John Doe, Employee" with prejudice. III. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER AND MOTION TO STRIKE THE AVERMENTS OF RECKLESSNESS SET FORTH IN PARAGRAPHS '10 AND 15(C) OF PLAINTIFF'S COMPLAINT 20. Defendant, Carlisle Sports Emporium, Inc, incorporates the foregoing paragraphs as though same were set forth herein at length. -4- 21. In paragraph 10 of plaintiff's complaint, plaintiff avers that".., defendant employee, Jonn Doe, failed to prevent defendant, Travis Best, from operating his go- cart in a dangerous and reckless manner, on the aforementioned go-cart track, allowing defendant, Travis Best, to operate his go-cart in a dangerous and reckless manner." See Exhibit "A." 22. Jn paragraph 15(c), plaintiff avers that the negligence and carelessness of defendant, Carlisle Sports Emporium, Inc. consisted of, inter alia, "failure to take reasonable precautions against the dangerous, reckless and unsafe conduct of the Sports Emporium employees." 23. By asserting allegations of recklessness against defendant and that defendant failed to prevent reckless conduct, plaintiff is preserving a claim for punitive damages against defendant, Carlisle Sports Emporium which is unsupported by the averments set forth in the complaint. 24. Punitive damages are only warranted for conduct that is malicious, wanton, reckless, willful or oppressive, ie. conduct that is more serious than the commission of the underlying tort. Feld v. Merriam, 506 Pa. 383, 483 A.2d 742 (1983); see also Franklin Music v. American Broadcasting Companies, 616 F.2d 528 (3d. Cir. 1979). 25. Plaintiff's complaint merely alleges ordinary negligence against defendants and does not set forth facts which in any way can be construed to constitute outrageous behavior, evil motive or reckless indifference to the rights of others as required under Pennsylvania law. -5- 26. Defendants have failed to meet the specificity requirements of Pa.R.C.P. 1019, which requires that the "material facts upon which the cause of action is based be set forth in concise and summary form." 27. On or about April 25, counsel for plaintiff agreed to strike the allegation of recklessness appearing in paragraph 15(c) of plaintiffs complaint. This agreement is memorialized in correspondence dated April 25, 2001 and stipulation, both of which are attached hereto as Exhibit "B." WHEREFORE, Defendant, Carlisle Sports Emporium, Inc., respectfully requests that the allegations of recklessness contained in paragraphs 15(c) and 10 from plaintiffs complaint with prejud Respectfully submitted, J~HN~T. ASHER, III, ESQUIRE Att~n~ys for Defendant, Carlisle Sports Empb~m, Inc. -6- VERIFICATION I, John T. Asher, III, Esquire, is attorney for defendant, Carlisle Sports Emporium, Inc., and verify the statements made in the foregoing Preliminary Objections, are true and correct to the best of my knowledge, information and belief. I understand that statements made herein are subject to penalties for unsworn falsification to authorities pursuant to Dated: May 8, 2001 EXHIBIT "A" KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustletou Pike Feasterville, PA 19053 (215) 396-9001 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff; VS. CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE : Carlisle Sports Emporium, Inc. : 36 Kelly Drive : Carlisle, Pennsylvania 17013 : and : TRAVIS BEST : 2569 South Avenue : New York, New York 10039 : Defendants.. : Comolaint Civil Action: COURT OF COMMON PLEAS CUMBERLAND COUNTY CML ACTION 01-/¢V.~ ~,~*'1 TERM, 2001 Docket No. COMPLAINT Miscellaneous You Iw~ ~ ~utd In court. If you ~ to d~ Ig~nzt tls clllml mt forth In ~ following I~g~. you must like action within runty (20) ~1 ~ ~ll camphlint Ind i~_, ~ ll~tlcl, by Intlring · ~l&ti~ ~l~lrl~cl pet~onlllv ar by It~ornev ind YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FOfl'tq.I InELoW TO FIND OUT WHERE YOU CAN GET LEGAl. HELP. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 3969O01 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plnintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Inc. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants.. COURT OF COMMON PLEAS ~ERLAND COUNTY CIVIL ACTION TERM, 2001 Docket No. COMPLAINT Comolaint Civil Action: Miscellaneous 1. Plaintiff, Paulette Harris, is an adult individual, residing at 1880 Lafayette Avenue, /n Bronx, New York. 2. Defendant, Carlisle Sports Emporium, Inc., is a business, company, entity, partnership, lkanchise, fictitious name, proprietorship or corporation existing and/or qualifying under the laws of the Commonwealth of Permsylvan/a, with a registered office for acceptance of service or principal place of business at 36 Kelly Drive, Carlisle, in the Commonwealth of Permsylvania. 3. Defendant, John Doe, is an adult individual and employee of Carlisle Sports Emporium, Inc., located at 36 Kelly Drive, in Carlisle, Pennsylvania. 4. Defendant, Tmvis Best, is an adult individual, residing at 2569 South Avenue, in New York, New York. 5. At all times relevant and material, defendant, ,lohn Doe, was an agent, servant and/or employee of defendant, Carlisle Sports Emporium; Inc., acting at all times w/thin the course and scope of his employment. 6, At all times relevant and material to this Complaint, defendants did act through their agents, servants, workmen, employees and/or representatives, said individuals acting within the course and scope of their employment and/or agency. 7. At all times relevant and material to this Complaint, defendant, Carlisle Sports Emporium, Inc., owned, operated, leased, managed, controlled and/or had dominion over the premises commonly known as Sports Emporium, located at 29 S. Middlesex Road, in Carlisle, Pennsylvania (the "Premises"). 8. At all times material and relevarit hereto, there was an obligation on the part of the afotesaid defendants, to supervise, maintain, inspect, clean and otherwise be responsible for the Premises, including the miler skating fink area of the Premises, so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 9. On or about March 13, 1999, at or about 9:30 p.m., plaintiff, Paulette Harris, was a business invitee on the Premises, on or about the go-cart track area of the Premises. 10. At the aforementioned time and place, plaintiff, Paulette Harris, was operating a go-cart, on the go-cart track, when suddenly and without warning, defendant employee, John Doe, failed to prevent defendant, Travis Best, from operating his go-cart in a dangerous and reckless manner, on the aforementioned go-cart track, allowing defendant, Travis Best, to operate his go-cart in a dangerous and reckless manner, thereby causing plaintiffs go-cart to be violently struck by defendant, Travis Best's, go- cart, causing plaintiffto suffer severe and grievous injuries. 11. At all times relevant hereto, defendants herein owed a duty to supervise, manage, train, and otherwise be responsible for the conduct of their employees, to provide a safe and hazard free environment and otherwise be responsible for the aforesaid premises so that same would be safe for use by patrons, business invitees and/or members of the general pubhe, including plaintiff, Panlette Harris. 12. The cireurnstanees under which plaintiff, Panlette Hams, was injured were such that said injuries to plaintiff could not have occurred on the Premises except by defendants' negligence. 13. The aforesaid accident resulted solely from the negligence and carelessness of defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, and in no manner whatsoever to any act or failure to act on the part of plaintiff, Paulette Harris. · COUNT I PAIJLETTE }IARRIS vs. CARLISLE SPORTS ElgfPORIUM, INC. 14. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through thirteen, inclusive, as though same were set forth herein at length. 15. the following: (a) The negligence and carelessness of defendant, Carlisle Sports Emporium, Inc., consisted of failing to provide safe conditions for business invitees, patrons and/or members of the public on the Premises; 3 Co) failing to supervise, train, review or regulate the conduct of Sports Emporium employees on the Premises, said failure to supervise, train, review or regulate the conduct of Sports Emporium employees existing for a long time prior to the date of this accident; (c) failure to properly and adequately train Sports Emporium employees, in particular the aforesaid unsafe conduct of the employee, John Doe, of Carlisle Sports Emporium, Inc.; (d) failure to take reasonable precautions against the dangerous, reckless and unsafe conduct of the Sports Emporium employees; (e) failure to properly and adequately hire and/or instruct the agents, servants, workmen, employees and/or representatives, of defendant herein, as to the safe and proper procedures for supervising, training, and regulating the conduct of Sports Emporium employees which caused plaintiffs injuries; (f) failure to use reasonable care in the construction, maintenance and operation of the Premises, in particular, the go-cart track area; (g) failure to provide and maintain proper supervision of the Premises; (h) failure to provide and maintain proper safety precautions at the Premises; (i) failure to furnish a reasonable number and distribution of safety personnel and safety equipment at the Premises; (j) failure to provide and maintain proper training procedures at the Premises; (k) failure to furnish a reasonable number and distribution of waining personnel and Iraining equipment at the Premises; and (l) negligence per se. WI-IEREFORE, plaintiff, Paulette HalTis, demands damages against defendant, Carlisle Sports Emporium, Inc., in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT Il PAULETTE HARRIS vs. JOHN DOE 16. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through fii~een, inclusive, as though same were set forth herein at length. 17. The negligence of the defendant, John Doe consisted of the following: (a) failing to properly and adequately conduct himself when interacting with business invitees, patrons and/or members of the public, in particular, plaintiff~ Paulette Harris; Co) failing to use due care and to employ reasonable skill in the performance of his job duties; (e) negligently and carelessly inflicting bodily harm upon the plaintiff; (d) negligently and carelessly allowing another person to continually operate a go-cart in a dangerous and reckless manner;, and (e) failing to regard the rights, safety and lawful position of plaintiff at the point aforesaid. WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendant, John Doe, in a sum not in excess of $50,000.00, plus interest, costs, and attorneys' fees. COUNT IH PAULE'I-I'IE HARRIS vs. TRAVIS BEST 18. Plaintiff, Paulette Harris, incorporate by reference thereto, paragraphs one through seventeen, inclusive, as though same were set forth herein at length. 19. The negligence and carelessness of defendant, Travis Best, consisted of the following: (a) failing to properly operate and control said go-cart; 5 (b) operating said go-caxt at an excessive and unsafe rate of speed under the circumstances; (c) operating said go-cart in a dangerous and meld*ss manner;, (d) failing to maintain a proper and adequate lookout; (e) failing to follow and observe traffic patterns and conditions; (f) failing to regard the rights, safety and lawful position of plaintiff at the point afor~aid; (g) musing a vehicular collision; (h) failing to properly and adequately maintain ~aid motor vehicle; (i) negligence per se. WHEREFORE, plaintiff, Paulette Harris, demands damages of defendant, Travis Best, in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT IV - PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC., JOHN DOE and TRAVIS BEST 20. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through nineteen, inclusive, as though same were set forth herein at length. 21. As a result of this accident, plaintiff, Paulette Harris, has suffered injuries which are or may be serious and permanent, including, but not limited to cervical strain and sprain, lumbosacral strain and sprain, right shoulder strain and sprain, right brachial plexus injury, radiculopathy, post-traumatic headaches, post-traumatic stress disorder, myofascitis, cervalgia, lumbalgia and thoracicalgia, 22. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive and undergo medical attention and care for her injuries, and to incur various expenses for said care, and she may be obligated to continue to expend such sams and to incur such expenses for an indefinite period of time in the future. 23. As a further result of this accident plaintiff, Paulette Harris, has been obligated to ~eeive and undergo reasonable and necessary medical treatment and rehabilitative services for the injuries shq has suffered, and to incur various expenses for said treatment and services, and she may incur various reasonable and necessary future medical expenses fi'om the injuries sustained, and defendants are liable for all of the same. 24. As a further result of this accident, plaintiff, Paulette Hah'is, has or may suffer severe loss and impairment of her earning capacity and power, and may continue to suffer such a loss of an indefinite time in the future. 25. As a further result of this accident, plaintiff, Paulette Harris, has been unable to attend to her daily chores, duties and occupations, and may be unable to do so for an indefinite time in the future. 26. As a direct result of the accident, plaintiff, Paulette Harris, has and may continue to in the future incur other financial expenses or losses to which she may be otherwise entitled to recover. 27. As a further result of the accident, plaintiff, Paulette Harris, has suffered severe physical pain, aches, mental anguish, and humiliation, inconveniences, and loss of life's pleasures, and she may continue to suffer the same for an indefinite time in the future. WHEREFORE, plaintiff, Paulette Harris, demands damages of the def, ndant~, Carlisle Sports Emporium, Inc., John Doe and Travis Best, jointly and/or severally, in a sum not in excess of $50,000:00, plus interest, costs, and attorney's fees. KATS, JAI~I$ON~ VAN DER ~EEN & ASSOCIATES By: Marina Kats, Esqu~e Attorney for Plaintiff tRUE COPY FROM RECORD Tn Tsstlmony whereof, I hero unto =et my hand VERIFICATION · hereby verifies that he/she is the plaintiff herein and that the facts set forth in the foregoing pleading are true and correct to the best of his/hei' knowledge, information and belief. This statement is made subl/~to the penalties of 18 PA C.S. Section 4904 relating ~to the unswom falsificationI t~ Date: EXHIBIT "B" [215] 241-8847 iasher(~laws~r.com SPECTOR GADoN & ROSEN, P. C. ATTORNEYS AT LAW SEVEN PENN CENTER 1635 MARKET STREET April25,2001 VIA FEDERAL EXPRESS Rick Brown, Esquire Kats, Jamison, VanderVeen & Associates 25 Bustleton Pike Feasterville, PA 19053 Re: Paulette Harris v. Carlisle Sports Emporium, Inc., et al. CCP, Cumberland Cty., No. 01~1403 Our File No. 45434-001 Dear Mr. Brown: This correspondence is to confirm that you have agreed to strike the word "reckless" from paragraph 15 D. of Plaintiff's Complaint by Stipulation. I am according enclosing herewith a Stipulation for your review and signature. If you would kindly sign this Stipulation and return it to me, I will then forward this on to the Court for filing. Also, I am writing to confirm that you have agreed to provide me with a 2 week extension of time in which to respond to Plaintiffs Complaint. I will file a response to plaintiffs Complaint within 2 weeks or by May 9, 2001. Also, as I advised in our telephone conversation, I spoke with Michael David, Esquire regarding the civil action in the Federal Court. According to Mr. David, he is your referring counsel and has filed this action to preserve the Statutes of Limitations. It is also my understanding from speaking with him that he will be withdrawing this action. Should you have any questions, kindly feel free to contact me. JTA~nt ~ SPECTOR, GADON & ROSEN, P.C. BY: John T. Asher, III, Esquire 1635 Market Street, 7th floor Seven Penn Center Philadelphia, PA 19103 (215) 241-88881(215) 241-8844 (fax) Attorneys for Defendant, Carlisle Sports Emporium, Inc. PAULETTE HARRIS : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs, CARLISLE SPORTS EMPORIUM · 01-1403 CIVIL TERM, 2001 and JOHN DOE, EMPLOYEE and STIPULATION TRAVIS BEST Defendants. It is hereby agreed by and between between counsel for Plaintiff, Rick Brown, Esquire, and counsel for Defendants, John T. Asher, III, Esquire, that the word "reckless" in subparagraph 15 D. of Plaintiff's Complaint is stricken from Plaintiff's Complaint with prejudice· Dated: KATS, JAMISON, VANDERVEEN & ASSOC. SPECTOR GADON & ROSEN, P.C. Rick Brown, Esquire John T. Asher, III, Esq. Attorney for Plaintiff Attorney for Defendants 04/26/2001 15:48 FAX SPECTOR GADON & ROSEN ********************* *** TX REPORT ~ 001 TRANSMISSION OK TX/RX NO 2467 CONNECTION TEL 45434001#12153§68388 SUBADDRESS CONNECTION ID ST. TI~E 04/26 15:47 USAGE T 00'53 PGS. SENT 3 RESULT OK SPECTOR GADON & ROSEN 1635 MARKI~,T STREET - 7th Floor Philadelphia, Pennsylvania 19103 (215) 241-8888 Fax #: (215) 241-8844 FACSIMII.E COVER SHEET DATE: April 26, 2001 CLIENT/MATTJEK: 45434-001 TO: RICKBROWN, ESQUIRE FROM: JOHN T. ASHFe.~/_II, ESQUIRE TOTAL NUMBER OF PAGES SENT: (Including this ~ovex page) __ MESSAGE PLEASE CONFIR_M RECEIPT. TIME: FAX NUMBER: (215) 396-8388 3 SPECTOR, GADON & ROSEN, P.C. BY: John T. Asher, III, Esquire 1635 Market Street, 7th floor Seven Penn Center Philadelphia, PA 19103 (215) 241-8888/(215) 241-8844 (fax) Attorneys for Defendant, CaHisle Sports Emporium, Inc. PAULETTE HARRIS : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs, CARLISLE SPORTS EMPORIUM and : 01-1403 CIVIL TERM, 2001 : JOHN DOE, EMPLOYEE and ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our Appearance on behalf of Carlisle Sports Emporium, Inc., in connection with the above-captioned matter. Dated: May 8, 2001 Respectfully submitted, '~sher, III, Esquire PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnfitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) PAULETTE HARRIS VS. CARLISLE SPORTS EMPORIUM and JOHN DOE, EMPLOYEE and TRAVIS BEST (Plaintiff) (Defendants) No.: 1403 Civil Term, 2001 State matter to be argued. (i.e., plaintiffs' motion for new trial, defendants demurrer to complaint, etc.) Defendant, Carlisle Sports Emporium, Inc.'s Preliminary Objections to Plaintiff's Complaint. 2. Identify counsel who will argue cases: (a) for plaintiff: Address: Chris Houdock, Esquire Rats, Jamison, Van Dermeer & Associates 25 Bustleton Pike Feasterville, Pennsylvania 19031 (b) for defendant: Address: John T. Asher, III, Esquire Spector Gadon & Rosen, P.C. 1635 Market Street, 7th Floor Philadelphia, Pennsylvania 19103 I will notify all parties in writing within two (2) days that this case has been listed for argument. ~~~.~N T AS R, ]]~ ~ Argument Court Date: July 25, 2001 __ KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 PAULETTE HARRIS VS. Plaintiff, CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants. Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY NO: 01-1403 Civil PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Plaintiff, Paulette Harris, by and through her attorney, Marina Kats, Esquire, hereby requests this Honorable Court to enter an Order overruling defendant, Carlisle Sport Emporium, l nc.'s Preliminary Objections, and in support thereof avers thc following: 1. Admitted. 2. Admitted. By way of further answer, pursuant to the Pennsylvania Rules of' Civil Procedure, plaintiff's Complaint contained a Notice to Plead stating that: 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 the complaint and notice arc served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claim set forth against you. See plaintiffs Complaint (emphasis added). Accordingly, defendant was required to file an Answer or Preliminary Objection to plaintiffs Complaint within twenty (20) days of service. 3. Admitted. By way of further answer, having been served on April 3,2001, defendant was required to file an Answer or Preliminary Objection to plaintiffs Complaint xvithin twenty (20) days of service, i.e., by April 23, 2001. Nevertheless, by April 23, 2001, defendant had neither filed an Answer or Preliminary Objections to plaintiff's Complaint. Rather, on April 25,2001, defendant requested an extension of time to respond to plaintiff's Complaint and as a professional courtesy, plaintiff granted defendant a two (2) week extension of time to Answer the Complaint only. Thereafter, instead of filing an Answer to the Complaint, on May 8, 2001, defendant filed Preliminary Objections contrary to the agreement. Therefore, pursuant to the Pennsylvania Rules of Civil Procedure, defendant's Preliminary Objections should be overruled as untimely and defendant should file an Answer to plaintiff's Complaint. 4. Admitted. 5. Plaintiff incorporates the foregoing paragraphs as though the same were set fbrth herein at length. 6. Admitted. By way of further answer, defendant has never disclosed the name and address of defendant's employee who was working at the time of the incident. In fact, despite having several conversations with counsel for plaintiffto date, defendant still has not disclosed the name and address of defendant's employee. 7. Denied. It is specifically denied that no service was made upon defendant's employee. On the contrary, on April 3, 2001, the Sheriff of Cumberland County served plaintiff's Complaint upon defendant at the only known address for the employee, i.e., 36 Kelly Drive, Carlisle, PA 17013. Having avoided disclosure of its employee's name, defendant can not argue that plaintiff should have known the home address of its employee. Without question, defendant should not benefit from its avoidance tactics in these preliminary objections. By way of further answer, under the theory of respondeat superior, defendant is responsible for the actions of its employee and has a duty to defend its employee. As it has a duty to defend its employee, service of the complaint at only known address for the employee, i.e_ 36 Kelly Drive, Carlisle, PA 17013 was proper. In other words, defendant is on notice of the claims it must defend for itself and its employee and should simply Answer the Complaint. On the other hand, should defendant deny that it has a duty to defend its employee and therefore, may not accept service, then defendant has no standing to object to service upon the employee. Indeed, in reviewing the docket in this matter, counsel has entered his appearance only for defendant, Carlisle Sport Emporium, Inc. Accordingly, if defendant admits that it has a duty to defend its employee for conduct arising out of the course and scope of employment, then service was proper upon its employee at 36 Kelly Drive, Carlisle, PA 17013. If defendant denies that it has a duty to defend its employee and can not accept service for its employee, then defendant does not have standing to object to service upon its employee. Defendant can not have it both ways. Under these circumstances, the Court should overrule the preliminary objections to service upon defendant's employee. 8. Admitted. 9. Denied. It is specifically denied that no service was made upon defendant's employee. On the contrary, the Sheriffof Cumberland County served plaintifffs Complaint upon defendant's employee at the only known address, i.e., 36 Kelly Drive, Carlisle, PA 17013. More importantly, counsel for defendant has no standing to file this Preliminary Objection to service upon defendant, John Doe, Employee. The objecting counsel has entered his appearance only for defendant, Carlisle Sport Emporium, Inc. and not for any other defendant. Accordingly, the objecting counsel cannot file objections for parties it does not represent. In short, defendant has no standing to object to service upon the employee. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiff's Complaint. 10. Plaintiff incorporates the foregoing paragraphs as though the same were set ibrth herein at length. 11. Admitted. By way of further answer, Count IV of plaintiff's Complaint also avers causes of action against defendant, Carlisle Sports Emporium and defendant, Travis Best. 12. Admitted. 13. Denied. It is specifically denied that plaintiff failed to name defendant's employee in plaintiff's C(Jmplaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. Under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa.R.C.P. 1033; See also Goolsby v. Papanikolua, 161 Pa. Commw. 489, 637 A.2d 707 (1994), appeal denied, 540 Pa. 624, 657 A.2d 493 (1995). As quoted from Goodrich Amram's Standard Pennsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, § 1033:19 (emphasis added). 14. Admitted. 5 15. Denied. It is specifically denied that plaintiff failed to identify defendant's negligent employee in plaintiff's Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. As stated above, under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to identify the unknown employee. Moreover, it is disingenuous for defendant to complain that plaintiff has not identified the employee while, at the same time, failing to disclose the identity of its employee. Under these circumstances, prior to any discovery, the designation of "John Doe" should not be stricken from the Complaint with prejudice. See Int'l Union, U.B.F.C.S.D.&D.W.v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965) (preliminary objections denied where matters would necessarily be known only to the objecting party and secreted from the pleading party); Line Lexington Lumber & Millwork~ Co. v. Pennsylvania Publishing Corp., 451 Pa. 154, 301 A.2d 684 (1973) (plaintiff has greater leeway in pleadings where facts are within exclusive knowledge of defendant). 16. Admitted in part. Denied in part. It is admitted that plaintiff may seek to amend her complaint to change the designation of "John Doe, Employee" to the specific name of defendant's employee. It is specifically denied that, by doing so, plaintiffis adding a new party after the statute of limitations. Pursuant to Rule 1033 of the Pennsylvania Rules of Civil Procedure, "la] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name ofaparty or amend his pleading." Pa.R.C.P. 1033 (emphasis added). According to the Pennsylvania Supreme Court, Pennsylvania courts should liberally permit amendments to complaints pursuant to Pa.R.C.P. 1033. Laursen v. General Hospital of Mouroe County, 494 Pa. 238,431 A.2d 237 (1981); Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965). The principle underlying this liberal policy in favor of 6 amendments lies with the desire of Pennsylvania courts to secure determination of cases based on merits rather than mere technicalities. Horowitz v. Universal Underwriters Ins., 397 Pa. Super. 473,580 A.2d 395, appeal denied 527 Pa. 610, 590 A.2d 297 (1990). 17. Admitted in part. Denied in part. It is admitted that the general rule is that a party is not permitted to add a new defendant after the statute of limitations. However, there are exceptions to the general rule. See e.g., Coatsman v. Alpha Racquetball~ Inc., 40 Pa. D.& C.3d 89 (1984) (motion for leave to amend a complaint to include a new party after the applicable statute of limitations had run will be granted where defendants failed to provide notice of their denial of ownership of the property in question). Nonetheless, it is specifically denied that plaintiff is adding a new party beyond the statute of limitations. On the contrary, plaintiff has specifically named defendant's employee who was working the go-cart track on March 13, 1999 at 9:30 p.m. as a defendant in this action. Once defendant finally discloses the name of its employee, plaintiff's motion to amend the Complaint merely will ask the Court allow plaintiff to include the correct designation of defendant, John Doe, Employee. Pennsylvania courts generally will allow an amendment to correct the designation of a party. See e.g., Zercher v. Coca-Cola USA, 438 Pa. Super. 142, 651 A.2d 1133 (1994) (in order to secure determination of cases on merits, trial court should grant, whenever possible, petition to change name on pleadings); Hall v. Acme Markets, Inc., 110 Pa. Cmwlth. 199, 532 A.2d 894 (1987) (naming Commonwealth of Pennsylvania rather than Department of Transportation as defendant was mere technical defect that could be remedied by amendment). Accordingly, defendant's Preliminary objections should be overruled. 18. Admitted. By way of further answer, in the alternative, under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John 7 Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa.R.C.P. 1033; See also Goolsby, 161 Pa. Commw. 489, 637 A.2d 707 (1994), appeal denied, 540 Pa. 624, 657 A.2d 493. As quoted from Goodrich Amram's Standard Pennsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, § 1033:19 (emphasis added). 19. Denied. It is specifically denied that defendant would be prejudiced if the Court overruled these preliminary objections. On the contrary, defendant can not demonstrate any prejudice that could befall it if the Court overrules its objections and later allows an amendment. It is clear that defendant was put on notice before the statute of limitations had expired that it would have to defend the actions of its employee in a suit by plaintiffs. In particular, defendant was put on notice that its employee had been negligent during the course and scope of his employment for defendant on March 13, 1999 at 9:30 p.m. at the go-cart track. Moreover, defendant's act of filing preliminary objections for its employee and defending the action demonstrates that defendant is on notice that the employee who was working the go-cart track on March 13, 1999 at 9:30 p.m. has been sued by plaintiff in this action. Therefore, there can be no claim of undue prejudice on the part of Defendant which would prevent the Court from overruling these preliminary objections and later, granting leave to amend the Complaint. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintifffs Complaint. 8 20. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 21. Admitted. 22. Denied. It is specifically denied that paragraph 15(c) alleges "dangerous, reckless and unsafe conduct" on the part of defendant. On the contrary, plaintiff alleges "dangerous, reckless and unsafe conduct" on the part of defendant in paragraph 15(d). 23. Denied. It is specifically denied that plaintiff is asserting a claim for punitive damages against defendant. 24. Admitted. By way of further answer, punitive damages may be awarded for conduct that is outrageous, because of defendant's evil motive or reckless indifference to the rights of others. L. McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 533 A.2d 436, (1986). In assessing punitive damages, the trier of fact can properly consider the character of defendant's act, the nature and extent of the harm to plaintiffthat defendant caused or intended to cause and the wealth of Defendant. Id. 25. Admitted. 26. Denied. It is specifically denied, however, that plaintiffs Complaint violates the specificity requirements of Rule 1019 of the Pennsylvania Rules of Civil Procedure. On the contrary, plaintiffs Complaint sets forth the material facts with sufficient specificity to appraise defendant of the claims and enable it to prepare a response and a defense. The sufficiency of the facts alleged in a complaint are determined by reading the complaint in its' entirety and not by basing an objection on hand-picked averments in plaintiffs Complaint. See Laursen v. General Hosp. of Monroe County., 259 Pa. Super. 150, 159, 383 A.2d 761,766 (1978) (reading the sufficiency of paragraph 13 of the complaint in conjunction with paragraphs 15, 16, 17 and 19). 9 27. Admitted. By way of further answer, counsel for plaintiff had agreed to strike the allegations of recklessness from paragraph 15(d) only. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order sustaining defendant's Preliminary Objections to plaintiff's Complaint in the nature of a motion to strike the allegations of recklessness from plaintiff' s Complaint. KATS,. By: hMISON, VAN DER VEEN & ASSOCIATES ina lqats, Esquire Attorney for Plaintiff 10 VERIFICATION I, Marina Kats, Esquire, hereby states that I am the attorney for Plaintiff in this action, and verify that the statemems made in the foregoing Plaintiffs Answer to Defendant's Preliminary Objections are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Attorney for Plaintiff 11 KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: MarinaKats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 PAULETTE HARRIS VS. Plaintiff, CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants. Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY NO: 01-1403 Civil CERTIFICATE OF SERVICE I, the undersigned attorney for Plaintiff, hereby certify that Plaintiff's Answer to Defendant's Preliminary Objections was served via first-class mail upon the following: John T. Asher, III, Esquire Spector, Gadon & Rosen, P.C. Seven Penn Center 1635 Market Street, 7"~ Floor Philadelphia, PA 19103 KATS, JAMISON, VAN DER VEEN & ASSOCIATES Attorney for Plaintiff Dated: June 21, 2001 12 PRAECI/)E FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) PAULETTE HARRIS VS. CARLISLE SPORTS EMPORIUM and JOHN DOE, EMPLOYEE and TRAVIS BEST (Plaintiff) (Defendants) No.: 1403 Civil Term, 2001 State matter to be argued. (i.e., plaintiffs' motion for new trial, defendants demurrer to complaint, etc.) Defendant, Carlisle Sports Emporium, Inc.'s Preliminary Objections to Plaintiff's Complaint. 2. Identify counsel who will argue cases: (a) for plaintiff: Address: Robert Baccari, Esquire Kats, Jamison, Van Dermeer & Associates 25 Bustleton Pike Feasterville, Pennsylvania 19031 (b) for defendant: Address: John T. Asher, III, Esquire Spector Gadon & Rosen, P.C. 1635 Market Street, 7th Floor Philadelphia, Pennsylvania 19103 Dated: I will notify all parties in writing within two (2) days that this case has been listed for argument. Argument Court Date: August 29, 2~ rney for Defendant, ;le Sports Emporium, Inc. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 PAULETTE HARRIS VS. Plaintiff, CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants. Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY NO: 01-1403 Civil PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Plaintiff, Paulette Harris, by and through her attorney, Marina Kats, Esquire, hereby requests this Honorable Court to enter an Order overruling defendant, Carlisle Sport Emporium, Inc.'s Preliminary Objections, and in support thereof avers the following: 1. Admitted. 2. Admitted. By way of further answer, pursuant to the Pennsylvania Rules of Civil Procedure, plaintiffs Complaint contained a Notice to Plead stating that: 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 thc 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 thc claim set forth against you. See plaintiffs Complaint (emphasis added). Accordingly, defendant was required to file an Answer or Preliminary Objection to plaintiffs Complaint within twenty (20) days of service. 2 3. Admitted. By way of further answer, having been served on April 3, 2001, defendant was required to file an Answer or Preliminary Objection to plaintiffs Complaint within twenty (20) days of service, i.e., by April 23, 2001. Nevertheless, by April 23, 2001, defendant had neither filed an Answer or Preliminary Objections to plaintiff's Complaint. Rather, on April 25, 2001, defendant requested an extension of time to respond to plaintiff's Complaint and as a professional courtesy, plaintiff granted defendant a two (2) week extension of time to Answer the Complaint only. Thereafter, instead of filing an Answer to the Complaint, on May 8, 2001, defendant filed Prelimina.ry Objections contrary to the agreement. Therefore, pursuant to the Pennsylvania Rules of Civil Procedure, defendant's Preliminary Objections should be overruled as untimely and defendant should file an Answer to plaintiff's Complaint. 4. Admitted. 5. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 6. Admitted. By way of further answer, defendant has never disclosed the name and address of defendant's employee who was working at the time of the incident. In fact, despite having several conversations with counsel for plaintiff to date, defendant still has not disclosed the name and address of defendant's employee. 7. Denied. It is specifically denied that no service was made upon defendant's employee. On the contrary, on April 3, 2001, the Sheriff of Cumberland County served plaintiff's Complaint upon defendant at the only known address for the employee, i.e., 36 Kelly Drive, Carlisle, PA 17013. Having avoided disclosure of its employee's name, defendant can not argue that plaintiff should have known the home address of its employee. Without question, defendant should not benefit from its avoidance tactics in these preliminmy objections. 3 By way of further answer, under the theory ofrespondcat superior, defendant is responsible for the actions of its employee and has a duty to defend its employee. As it has a duty to defend its employee, service of the complaint at only known address for the employee, i.e., 36 Kelly Drive, Carlisle, PA 17013 was proper. In other words, defendant is on notice of the claims it must defend for itself and its employee and should simply Answer the Complaint. On the other hand, should defendant deny that it has a duty to defend its employee and therefore, may not accept service, then defendant has no standing to object to service upon the employee. Indeed, in reviewing the docket in this matter, counsel has entered his appearance only for defendant, Carlisle Sport Emporium, Inc. Accordingly, if defendant admits that it has a duty to defend its employee for conduct arising out of the course and scope of employment, then service was proper upon its employee at 36 Kelly Drive, Carlisle, PA 17013. If defendant denies that it has a duty to defend its employee and can not accept service for its employee, then defendant does not have standing to object to service upon its employee. Defendant can not have it both ways. Under these circumstances, the Court should overrule the preliminary objections to service upon defendant's employee. 8. Admitted. 9. Denied. It is specifically denied that no service was made upon defendant's employee. On the contrary, the Sheriff of Cumberland County served plaintiff's Complaint upon defendant's employee at the only known address, i.e., 36 Kelly Drive, Carlisle, PA 17013. More importantly, counsel for defendant has no standing to file this Preliminary Objection to service upon defendant, John Doe, Employee. The objecting counsel has entered his appearance only for defendant, Carlisle Sport Emporium, Inc. and not for any other defendant. Accordingly, the 4 objecting counsel cannot file objections for parties it does not represent. In short, defendant has no standing to object to service upon the employee. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiffs Complaint. 10. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 11. Admitted. By way of further answer, Count IV of plaintiff's Complaint also avers causes of action against defendant, Carlisle Sports Emporium and defendant, Travis Best. 12. Admitted. 13. Denied. It is specifically denied that plaintiff failed to name defendant's employee in plaintiffs Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. Under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa.R.C.P. 1033; See also Goolsby v. Papanikolua, 161 Pa. Commw. 489, 637 A.2d 707 (1994), appeal denied, 540 Pa. 624, 657 A.2d 493 (1995). As quoted from Goodrich Amram's Standard Pennsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, § 1033:19 (emphasis added). 14. Admitted. 5 15. Denied. It is specifically denied that plaintiff failed to identify defendant's negligent employee in plaintiff's Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. As stated above, under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to identify the unknown employee. Moreover, it is disingenuous for defendant to complain that plaintiff has not identified the employee while, at the same time, failing to disclose the identity of its employee. Under these circumstances, prior to any discovery, the designation of'~John Doe" should not be stricken from the Complaint with prejudice. See Int'l Union. U.B.F.C.S.D.&D.W.v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965) (preliminary objections denied where matters would necessarily be known only to the objecting party and secreted from the pleading party); Line Lexink:,ton Lumber & Millwork, Co. v. Pennsylvania Publishin~ Com., 451 Pa. 154, 301 A.2d 684 (1973) (plaintiff has greater leeway in pleadings where facts are within exclusive knowledge of defendant). 16. Admitted in part. Denied in part. It is admitted that plaintiff may seek to amend her complaint to change the designation of "John Doe, Employee" to the specific name of defendant's employee. It is specifically denied that, by doing so, plaintiff is adding a new party after the statute of limitations. Pursuant to Rule 1033 of the Pennsylvania Rules of Civil Procedure, "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name ofaparty or amend his pleading." Pa.R.C.P. 1033 (emphasis added). According to the Pennsylvania Supreme Court, Pennsylvania courts should liberally permit amendments to complaints pursuant to Pa.R.C.P. 1033. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981); Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965). The principle underlying this liberal policy in favor of 6 amendments lies with the desire of Pennsylvania courts to secure determination of cases based on merits rather than mere technicalities. Horowitz v. Universal Underwriters Ins., 397 Pa. Super. 473,580 A.2d 395, appeal denied 527 Pa. 610, 590 A.2d 297 (1990). 17. Admitted in part. Denied in part. It is admitted that the general rule is that aparty is not permitted to add a new defendant after the statute of limitations. However, there are exceptions to the general rule. See e.g., Coatsman v. Alr~ha Racquetball, Inc., 40 Pa. D.& C.3d 89 (1984) (motion for leave to amend a complaint to include a new party after the applicable statute of limitations had run will be granted where defendants failed to provide notice of their denial of ownership of the property in question). Nonetheless, it is specifically denied that plaintiff is adding a new party beyond the statute of limitations. On the contrary, plaintiff has specifically named defendant's employee who was working the go-cart track on March 13, 1999 at 9:30 p.m. as a defendant in this action. Once defendant finally discloses the name of its employee, plaintiff's motion to amend the Complaint merely will ask the Court allow plaintiff to include the correct designation of defendant, John Doe, Employee. Pennsylvania courts generally will allow an amendment to correct the designation of a party. See e.g., Zercher v. Coca-Cola USA, 438 Pa. Super. 142, 651 A.2d 1133 (1994) (in order to secure determination of cases on merits, trial court should grant, whenever possible, petition to change name on pleadings); Hall v. Acme Markets, Inc., 110 Pa. Cmwlth. 199, 532 A.2d 894 (1987) (naming Commonwealth of Pennsylvania rather than Department of Transportation as defendant was mere technical defect that could be remedied by amendment). Accordingly, defendant's Preliminary objections should be overruled. 18. Admitted. By way of further answer, in the alternative, under the Pennsylvania Rules of Civil Procedure, plaintiff may designate an unknown employee of defendant as "John 7 Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa.R.C.P. 1033; See also Goolsb¥, 161 Pa. Commw. 489, 637 A.2d 707 (1994), appeal denied, 540 Pa. 624, 657 A.2d 493. As quoted from Goodrich Amram's Standard Pennsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, §1033:19 (emphasis added). 19. Denied. It is specifically denied that defendant would be prejudiced if the Court overruled these preliminary objections. On the contrary, defendant can not demonstrate any prejudice that could befall it if the Court overrules its objections and later allows an amendment. It is clear that defendant was put on notice before the statute of limitations had expired that it would have to defend the actions of its employee in a suit by plaintiffs. In particular, defendant was put on notice that its employee had been negligent during the course and scope of his employment for defendant on March 13, 1999 at 9:30 p.m. at the go-cart track. Moreover, defendant's act of filing preliminary objections for its employee and defending the action demonstrates that defendant is on notice that the employee who was working the go-cart track on March 13, 1999 at 9:30 p.m. has been sued by plaintiff in this action. Therefore, there can be no claim of undue prejudice on the part of Defendant which would prevent the Court from overruling these preliminary objections and later, granting leave to amend the Complaint. WHEREFORE, plaintiff, Paulette Hams, respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiff's Complaint. 20. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 21. Admitted. 22. Denied. It is specifically denied that paragraph 15(c) alleges "dangerous, reckless and unsafe conduct" on the part of defendant. On the contrary, plaintiff alleges "dangerous, reckless and unsafe conduct" on the part of defendant in paragraph 15(d). 23. Denied. It is specifically denied that plaintiff is asserting a claim for punitive damages against defendant. 24. Admitted. By way of further answer, punitive damages may be awarded for conduct that is outrageous, because of defendant's evil motive or reckless indifference to the rights of others. L. McDaniel v. Merck, Sham & Dohme, 367 Pa. Super. 600, 533 A.2d 436, (1986). In assessing punitive damages, the trier of fact can properly consider the character of defendant's act, the nature and extent of the harm to plaintiff that defendant caused or intended to cause and the wealth of Defendant. Id. 25. Admitted. 26. Denied. It is specifically denied, however, that plaintiffs Complaint violates the specificity requirements of Rule 1019 of the Pennsylvania Rules of Civil Procedure. On the contrary, plaintiffs Complaint sets forth the material facts with sufficient specificity to appraise defendant of the claims and enable it to prepare a response and a defense. The sufficiency of the facts alleged in a complaint are determined by reading the complaint in its entirety and not by basing an objection on hand-picked averments in plaintiffs Complaint. See Lanrsen v. General Hosp. of Monroe County., 259 Pa. Super. 150, 159, 383 A.2d 761,766 (1978) (reading the sufficiency of paragraph 13 of the complaint in conjunction with paragraphs 15, 16, 17 and 19). 9 27. Admitted. By way of further answer, counsel for plaintiffhad agreed to strike the allegations of recklessness fi.om paragraph 15(d) only. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order sustaining defendant's Preliminary Objections to plaintiff's Complaint in the nature of a motion to strike the allegations of recklessness fi.om plaintiff's Complaint. KATS, JAMISON, VAN DER VEEN & ASSOCIATES BY: ~M~arina Kats,~ Attorney for Plaintiff 10 VERIFICATION I, MARINA KATS, ESQUIRE, hereby certifies that the facts set forth in the foregoing Answer are true and correct to the best of my knowledge, belief and understanding. I also understand that any false statements made are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS Plaintiff, VS. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY NO: 01-1403 Civil CERTIFICATE OF SERVICE I, MARINA KATS, ESQUIRE, hereby certify that on August 15, 2001, a tree and correct copy of Plaintiffs Answer to Defendant's Prelim'mary Objections were forwarded to counsel for defendants at the address listed below via first class mail, postage prepaid: John T. Asher, III, Esquire SPECTOR, GADON, & ROSEN, P.C. Seven Penn Center 1635 Market Street 7th Floor Philadelphia, PA 19103 KATS, JAMISON, van der VEEN & ASSOCIATES BY: M~ARiN~A ~KATS, ES~RE Attorney for Plaintiff Exhibit A By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 Attorney for Plaintiff PAULETTE HARRIS VS. Plaintiff, CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants. AND NOW, this __ day of ORDER COURT OF COMMON I~LEAS CUMBERLAND COUNTY NO: 01-1403 Civil ~ : - ,2001, upon consideration o£ plaintiffs Answer to defendant, Carlisle Sport Emporium, Inc.'s Preliminary Objections to plaintiffs Complaint, it is hereby ORDERED AND DECREED that: __ defendant's Preliminary Objections in the nature ora motion to strike the allegations of recklessness from plaintiWs Complaint are SUSTAINED. __ defendant's Preliminary Objections in the nature of a motion to dismiss plaintiff's Complaint against defendant, John Doe, Employee for improper are OVERRULED. __ defendant's Preliminary Objections in the nature of a motion to strike the designation of defendant. John Doe. Employee from plaintiff's Complaint are OVERRULED. It is further ORDERED AND DECREED that defendant file an Answer to plaintiffs Complaint within twenty. (20) days of the date of this Order. BY THECOURT: KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 PAULETTE HARRIS VS. Plaintiff, CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Dgfendants. Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Plaintiff, Paulette Harris. by and through her attorney, Marina Kats, Esquire, hereby requests this Honorable Court to enter an Order overruling defendant, Carlisle Sport Emporium. Inc.'s Preliminary Objections. and in support thereof avers the following: Admitted. x, 2. Admitted. By way of further answer, pursuant to the Pennsylvania Rules of Civil Procedure, plaintiffs Complaint contained a Notice to Plead stating that: You have been sued in court. If you wish to defend against the claims set forth in the tbllowing pages, you must take action within twenty (20) days after the 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 claim set tbrth against you. See plaintiffs Complaint (emphasis added). Accordingly, defendant was required to file an Answer or Preliminao' Objection to plaintiffs Complaint within twenty (20) days of ser~,ice. 2 3. Admitted. By way of further answer, having been served on April 3,2001. defendant was required to file an Answer or Preliminary. Objection to plaintiffs Complaint within twenty (20) days of service, i.e., by April 23, 2001. Nevertheless, by April 23.2001, defendant had neither filed an Answer or Preliminary Objections to plaintiff's Complain,~. Rather. on April 25. 2001. defendant requested an extension of time to respond to plaintiff's Complaint and as a professional courtesy, plaintiffgranted defendant a two (2) week extension of time to Answer the Complaint only. Thereafter, instead of filing an Answer to the Complaint, on May 8, 2001, defendant filed Prelimina~. Objections contrary to the agreement. Therefore, pursuant to the Pennsylvania Rules of Civil Procedure, defendant's Preliminary' Objections should be overruled as untimely and defendant should file an Answer to plaintiff's Complaint. 4. Admitted. 5. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 6. Admitted. By x'~ay of further answer, defendant has never disclosed the name and address of defendant's employee who was working at the time of the incident. In tact. despite having several conversations with counsel for plaintiff to date. defendant still has not disclosed the name and address of defendant's employee. 7, Denied. [t is specifically denied that no service was made upon defendant's employee. On the contrao~', on April 3. 2001. the Sheriff of Cumberland County served plaintiffs Complaint upon defendant at the only kno~vn address for the employee, i.e.. 36 Kelly Drive. Carlisle, PA 17013. Having avoided disclosure of its employee's name, defendant can not argue that plaintiff should have known the home address of its employee. Without question. defendant should not benefit from its avoidance tactics in these preliminary objections. 3 By way of further answer, under the theo~ ofrespondeat superior, defendant is responsible tbr the actions of its employee and has a duty to defend its employee. As it has a duty to defend its employee, service of the complaint at only known address for the employee. i.e.. 36 Kelly Drive, Carlisle. PA 17013 was proper. In other words, defendant is on not,!ce of the claims it must defend for itself and its employee and should simply Answer the Complaint. On the other hand. should defendant deny that it has a duty to defend its employee and theretbre, may not accept service, then defendant has no standing to object to service upon the employee. Indeed, in reviewing the docket in this matter, counsel has entered his appearance only for defendant, Carlisle Sport Emporium. Inc. Accordingly, if defendant admits that it has a duty to defend its employee tbr conduct arising out of the course and scope of employment, then service was proper upon its employee at 36 Kelly Drive, Carlisle, PA 17013. If defendant denies that it has a duty to defend its employee and can not accept service for its employee, then defendant does not have standing to object to service upon its employee. Defendant can not have it both ways. Under these circumstances, the Court should overrule the preliminary, objections to service upon defendant's employee. 8. Admitted. 9. Denied. It is specifically denied that no service was made upon defendant's employee. On the contrary,, the Sheriffof Cumberland County served plaintiff's Complaint upon defendant's employee at the only known address, i.e., 36 Kelly Drive, Carlisle. PA 17013. More importantly, counsel for defendant has no standing to file this Prelimin~ Objection to service upon defendant, John Doe, Employee. The objecting counsel has entered his appearance only for defendant. Carlisle Sport Emporium, Inc. and not/hr any other defendant. Accordingly, the 4 objecting counsel cannot file objections for parties it does not represent. In short, defendant has no standing to object to service upon the employee. WHEREFORE, plaintiff, Panlette Harris. respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary, Objections to plaintiff's Complaint. · I0. Plaintiff incorporates the foregoing paragraphs as though the same were set furth herein at length. 1 I. Admitted. By way of further answer, Count IV of plaintiff's Complaint also avers causes of action against defendant, Carlisle Sports Emporium and defendant, Travis Best. 12. Admitted. 13. Denied. It is specifically denied that plaintiff failed to name defendant's employee in plaintiffs Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. Under the Pennsylvania Rules of Civil Procedure, plaintiffmay designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa.R.C.P. 1033; See also Gootsby v. Papanikolua. 16I Pa. Commw. 489, 637 A.2d 707 (1994), appeal denied. 540 Pa. 624, 657 A.2d 493 (1995). As quoted from Goodrich Amram's Standard Pennsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizza shop, the plaintiff would be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, § 1033:19 (emphasis added). l 4. Admitted. 15. Denied. It is specifically denied that plaintiff failed to identify defendant's negligent employee in plaintiff's Complaint. On the contrary, plaintiff filed suit against "John Doe" in the Complaint. As stated above, under the Pennsylvania Rules of Civil Procedure. plaintiffmay designate an unknown employee of defendant as "John Doe," conduct discovery and then file a petition to Amend the Complaint to identify the unknown employee. Moreover. it is disingenuous for defendant to complain that plaintiff has not identified the employee while, at the same time. failing to disclose the identity of its employee. Under these circumstances, prior to any discovery, the designation of "John Doe" should not be stricken from the Complaint with prejudice. See Int'l Union. U.B.F.C.S.D.&D.W.v. Watkins. 417 Pa. 120. 207 A.2d 776 (1965) (preliminary objections denied where matters would necessarily be known only to the objecting party and secreted from the pleading party); Line Lexington Lumber & Millwork. Co. v. Pennsylvania Publishing Cot0.. 45t Pa. 154, 301 A.2d 684 (1973) (plaintiff has greater leeway in pleadings where facts are within exclusive knowledge of defendant). 16. Admitted in part. Denied in part. It is admitted that plaintiff may seek to amend her complaint to change the designation of "John Doe. Employee" to the specific name of defendant's employee. It is specifically denied that. by doing so, plaintiff is adding a new party after the statute of limitations. Pursuant to Rule 1033 of the Pennsylvania Rules of Civil Procedure. "la] party, either by filed consent of the adverse party or by leave of court, may at an~x time change the tbrm of action, correct the name t?faparty or amend his pleading." Pa.R.C.P. 1033 (emphasis added). According to the Permsylvania Supreme Court, Pennsylvania courts should liberally permit amendments to complaints pursuant to Pa.R.C.P. 1033. Laursen v. General Hospital of Monroe County. 494 Pa. 238.431 A.2d 237 (198 t); Saracina v. Cotoia. 417 Pa. 80. 208 A.2d 764 (1965). The principle underlying this liberal policy in [hvor of amendments lies with the desire of Pennsylvania courts to secure determination of cases based on merits rather than mere technicalities. Horowitz v. Universal Underwriters Ins., 397 Pa. Super. 473. 580 A.2d 395, appeal denied 527 Pa. 610, 590 A.2d 297 (1990). 17. Admitted in part. Denied in part. It is admitted that the general role is that a party,' is not permitted to add a new defendant after the statute of limitations. However, there are exceptions to the general rule. See e.g., Coatsman v. Alpha Racquetball~ Inc., 40 Pa. D.& C.3d 89 (1984) (motion for leave to amend a complaint to include a new- party after the applicable statute of limitations had run will be granted where defendants failed to provide notice of their denial of owx~ership of the property in question). Nonetheless, it is specifically denied that plaintiff is adding a new party beyond the statute of limitations. On the contrary, plaintiff has specifically named defendant's employee who was working the go-cart track on March 13, 1999 at 9:30 p.m, as a defendant in this action. Once defendant finally discloses the name of its employee, plaintiff's motion to amend the Complaint merely will ask the Court allow' plaintiff to include the correct designation of defendant. John Doe, Employee. Pennsylvania courts generally will allow an amendment to correct the designation ora party. See e.g., Zercher v. Coca-Cola USA, 438 Pa. Super. 142. 651 A.2d 1133 (1994) (in order to secure determination of cases on merits, trial court should grant. x~ henever possible, petition to change name on pleadings); Hall v. Acme Markets. Inc.. 110 Pa. Cmwlth. 199. 532 A.2d 894 (1987) (naming Commonwealth of Pennsylvania rather than Department of Transportation as defendant was mere technical defect that could be remedied b3 amendment). Accordingly, defendant's Preliminary objections should be overruled. 18. Admitted. By way of further answer, in the alternative, under the Pennsylvania Rules of Civil Procedure. plaintiff may designate an unknown emplo~,ee of defendant as "John Doe." conduct discovery and then file a petition to Amend the Complaint to change the designation to the correct name of the unknown employee. See Pa.R.C.P. 1033: See also Goolsby. 161 Pa. Commw. 489.637 A.2d 707 (1994). appeal denied, 540 Pa. 624. 657 A.2d 493. As quoted from Goodrich Amram's Standard Pennsylvania Practice 2d, In an action in which the plaintiff originally named one defendant as John Doe, an unknown employee of the defendant pizza shop, the plaintiffwould be permitted to amend the complaint to actually name the defendant. Goodrich Amram 2d, Standard Pennsylvania Practice 2d, § 1033:19 (emphasis added). 19. Denied. It is specifically denied that defendant would be prejudiced if the Court overruled these preliminary objections. On the contrary, defendant can not demonstrate any prejudice that could befall it if the Court overrules its objections and later allows an amendment. It is clear that defendant was put on notice before the statute of limitations had expired that it would have to defend the actions of its employee in a suit by plaintiffs. In particular, defendant was put on notice that its employee had been negligent during the course and scope of his employment for defendant on March l 3.1999 at 9:30 p.m. at the go-cart track. Moreover. defendant's act of filing preliminary, objections Ir'or its employee and defending the action demonstrates that defendant is on notice that the employee who was working the go-cart track on March 13. 1999 at 9:30 p.m. has been sued by plaintiff in this action. Therefore. there can be no claim of ttndzte prejudice on the part of Defendant which would prevent the Court from overruling these preliminary objections and later, granting leave to amend the Complaint. WHEREFORE, plaintiff. Paulette Harris. respectfully requests this Honorable Court to enter an Order overruling defendant's Preliminary Objections to plaintiffs Complaint. 8 20. Plaintiff incorporates the foregoing paragraphs as though the same were set forth herein at length. 21. Admitted. 22. Denied. It is specifically denied that paragraph 15(c) alleges "dangerous~.reckless and unsafe conduct" on the part of defendant. On the contrary, plaintiffalleges "dangerous. reckless and unsafe conduct" on the part of defendant in paragraph 15(d). 23. Denied. It is specifically denied that plaintiff is asserting a claim for punitive damages against defendant. 24. Admitted. By way of further answer, punitive damages may be awarded for conduct that is outrageous, because of defendant's evil motive or reckless indifference to the rights of others. L. McDaniel v. Merck, Shaw & Dohme, 367 Pa. Super. 600, 533 A.2d 436. (1986). In assessing punitive damages, the trier of fact can properly consider the character of defendant's act, the nature and extent of the harm to plaintiff that defendant caused or intended to cause and the wealth of Defendant. Id. 25. Admitted. 26. Denied. It is specifically denied, however, that plaintiff's Complaint violates the specificity requirements of Rule 1019 of the Pennsylvania Rules of Civil Procedure. On the contraD', plaintiffs Complaint sets forth the material facts with sufficient specificity, to appraise defendant of the claims and enable it to prepare a response and a defense. The sufficiency of the t'acts alleged in a complaint are determined by reading the complaint in its entirety and not by basing an objection on hand-picked averments in plaintiffs Complaint. See Laursen v. General Hosl~. of Monroe County., 259 Pa. Super. 150, 159. 383 A.2d 761,766 (1978) (reading the sttl~'~ciency of paragraph 13 of the complaint in conjunction with paragraphs 15, 16. 17 and 19). 9 27. Admitted. By way of further answer, counsel for plaintiffhad agreed to strike the allegations of recklessness from paragraph 15(d) only. WHEREFORE, plaintiff, Paulette Harris, respectfully requests this Honorable Court to enter an Order sustaining defendant's Preliminars' Objections to plaintiWs Complaint in. the nature of a motion to strike the allegations of recklessness from plaintiff's Complaint. KATS, AMISON. VAN DER VEEN & ASSOCIATES ina Kats, Esquire Attorney for Plaintiff lO VERIFICATION I. Marina Kats. Esquire. hereby states that I am the attorney for Plaintiff in this action, 'x and verify that the statements made in the foregoing Plaintiff's Answer to Defendant's Prelimina~,' Objections are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Attorney for Plaintiff 11 KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 PAULETTE HARRIS VS. Plaintiff, CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants. Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY NO: 01-1403 Civil CERTIFICATE OF SERVICE I. the undersigned attorney for Plaintiff, hereby certify that Plaintiff's Answer to Defendant's Preliminary. Objections was served via first-class mail upon the following: John T. Asher. III, Esquire Spector, Gadon & Rosen, P.C. Seven Penn Center 1635 Market Street. 7"' Floor Philadelphia, PA 19103 KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: ~ari~tC. ~sq!? Attorney for Plaintiff Dated: June 21. 2001 12 KATS, JAMISON, VAN DER VEEN & ASSOCIATES, P.C. By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 396-9001 Attorneys for Plaintiff This is an Arbitration case.. An assessment of damages hearing is requested PAULETTE HARRIS VS. CARLISLE SPORTS EMPORIUM, INC. : AND : JOHN DOE, EMPLOYEE OF : CARLISLE SPORTS EMPORIUM, INC. : AND : TRAVIS BEST : CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW NO.: 01 1403 PRAECIPE TO THE PROTHONOTARY: Kindly reinstate Plaintiff's Complaint in Civil Action in the above-captioned matter for thirty (30) days so that service may effectuated on the Defendant, TRAVIS BEST. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: \ O ~arina Kats, Esquire Attorney for Plaintiffs KATS, JAMISON, VAN DER VEEN & ASSOCIATES, P.C. By: Marina Kats, Esquire Identification No. 53020 Attorneys for Plaintiff 25 Bustleton Pike Feasterville, PA 19053 This is an Arbitration case,. (215) 396-9001 An assessment of damages hearing is requested PAULETTE HARRIS Plaintiff, VS. CARLISLE SPORTS EMPORIUM, INC., JOHN DOE, EMPLOYEE OF CARLISLE SPORTS EMPORIUM, INC.; and TRAVIS BEST, Defendants. / CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION - LAW NO. 01 1403 PRAECIPE TO THE PROTHONOTARY: Kindly reinstate Plaintiff's Complaint in Civil Action in the above-captioned matter for thirty (30) days so that service may effectuated on the Defendant, TRAVIS BEST. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: ~ VMaHna Kats, Esquire Attorney for Plaintiff KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 396-9001 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, VS. CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Inc. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION 0/- /V0 3 ~o.,~TERM, 2001 Docket No. COMPLAINT Comolaint Civil Action: NOTICE Miscellaneous TRU[~ COPY FROM RECORD You have been sued In court. If you wish to defend agalnlt the ¢lelml .t forth In the following pages, you mugt take ~tlon within twenty (20) dayl efter this complaint and notice are served, by entering a written ~ppel~'lnca personally or by attorney end filing in writing with the court your defenlel or objections to the claims let forth against you. You am warned that if you fell to do YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HE LP, KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Pike Feasterville, PA 19053 (215) 396-9001 THIS IS AN ARBITRATION MATTER Assessment of damages hearing is requested Attorney for Plaintiff PAULETTE HARRIS 1880 Lafayette Avenue Bronx, New York 10473 Plaintiff, VS. CARLISLE SPORTS EMPORIUM, INC. 36 Kelly Drive Carlisle, Pennsylvania 17013 and JOHN DOE, EMPLOYEE Carlisle Sports Emporium, Inc. 36 Kelly Drive Carlisle, Pennsylvania 17013 and TRAVIS BEST 2569 South Avenue New York, New York 10039 Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION TERM, 2001 Docket No. COMPLAINT Complaint Civil Action: Miscellaneous Plaintiff, Paulette Harris, is an adult individuai, residing at 1880 Lafayette Avenue, in Bronx, New York. 2. Defendant, Carlisle Sports Emporium, Inc., is a business, company, entity, patmership, franchise, fictitious name, proprietorship or corporation existing and/or qualifying under the laws of the Commonwealth of Pennsylvania, with a registered office for acceptance of service or principal place of business at 36 Kelly Drive, Carlisle, in the Commonwealth of Pennsylvania. 3. Defendant, John Doe, is an adult individual and employee of Carlisle Sports Emporium, Inc., located at 36 Kelly Drive, in Carlisle, Pennsylvania. 4. Defendant, Travis Best, is an adult individual, residing at 2569 South Avenue, in New York, New York. 5. At all times relevant and material, defendant, John Doe, was an agent, servant and/or employee of defendant, Carlisle Sports Emporium, Inc., acting at all times within the course and scope of his employment. 6. At all times relevant and material to this Complaint, defendants did act through their agents, servants, workmen, employees and/or representatives, said individuals acting within the course and scope of their employment and/or agency. 7. At all times relevant and material to this Complaint, defendant, Carlisle Sports Emporium, Inc., owned, operated, leased, managed, controlled and/or had dominion over the premises commonly known as Sports Emporium, located at 29 S. Middlesex Road, in Carlisle, Pennsylvania (the "Premises"). 8. At all times material and relevant hereto, there was an obligation on the part of the aforesaid defendants, to supervise, maintain, inspect, clean and otherwise be responsible for the Premises, including the roller skating fink area of the Premises, so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 9. On or about March 13, 1999, at or about 9:30 p.m., plaintiff, Paulette Harris, was a business invitee on the Premises, on or about the go-cart track area of the Premises. 10. At the aforementioned time and place, plaintiff, Paulette Harris, was operating a go-cart, on 2 the go-cart track, when suddenly and without waming, defendant employee, John Doe, failed to prevent defendant, Travis Best, from operating his go-cart in a dangerous and reckless manner, on the aforementioned go-cart track, allowing defendant, Travis Best, to operate his go-cart in a dangerous and reckless manner, thereby causing plaintiWs go-cart to be violently struck by defendant, Travis Best's, go- cart, causing plaintiffto suffer severe and grievous injuries. 11. At all times relevant hereto, defendants herein owed a duty to supervise, manage, train, and otherwise be responsible for the conduct of their employees, to provide a safe and hazard free environment and otherwise be responsible for the aforesaid premises so that same would be safe for use by patrons, business invitees and/or members of the general public, including plaintiff, Paulette Harris. 12. The circumstances under which plaintiff, Paulette Harris, was injured were such that said injuries to plaintiff could not have occurred on the Premises except by defendants' negligence. 13. The aforesaid accident resulted solely from the negligence and carelessness of defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, and in no manner whatsoever to any act or failure to act on the part of plaintiff, Paulette Harris. COUNT I PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC. 14. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through thirteen, inclusive, as though same were set forth herein at length. 15. the following: (a) The negligence and carelessness of defendant, Carlisle Sports Emporium, Inc., consisted of failing to provide safe conditions for business invitees, patrons and/or members of the public on the Premises; 3 (b) failing to supervise, train, review or regulate the conduct of Sports Emporium employees on the Premises, said failure to supervise, train, review or regulate the conduct of Sports Emporium employees existing for a long time prior to the date of this accident; (c) failure to properly and adequately train Sports Emporium employees, in particular the aforesaid unsafe conduct of the employee, John Doe, of Carlisle Sports Emporium, Inc.; (d) failure to take reasonable precautions against the dangerous, reckless and unsafe conduct of the Sports Emporium employees; (e) failure to properly and adequately hire and/or instruct the agents, servants, workmen, employees and/or representatives, of defendant herein, as to the safe and proper procedures for supervising, training, and regulating the conduct of Sports Emporium employees which caused plaintiffs injuries; failure to use reasonable care in the construction, maintenance and operation of the Premises, in particular, the go-cart track area; (g) failure to provide and maintain proper supervision of the Premises; (h) failure to provide and maintain proper safety precautions at the Premises; (i) failure to furnish a reasonable number and distribution of safety personnel and safety equipment at the Premises; (j) failure to provide and maintain proper training procedures at the Premises; (k) failure to furnish a reasonable number and distribution of training personnel and training equipment at the Premises; and (l) negligence per se. WHEREFORE, plaintiff, Paulette Harris, demands damages against defendant, Carlisle Sports Emporium, Inc., in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT II PAULETTE HARRIS vs. JOHN DOE 16. Plaintiff, Paulette Harris, incorporates by reference thereto, paragraphs one through fifteen, inclusive, as though same were set forth herein at length. 17. The negligence of the defendant, John Doe consisted of the following: (a) failing to properly and adequately conduct himself when interacting with business invitees, patrons and/or members of the public, in particular, plaintiff, Paulette Harris; (b) failing to use due care and to employ reasonable skill in the performance of his job duties; (c) negligently and carelessly inflicting bodily harm upon the plaintiff; (d) negligently and carelessly allowing another person to continually operate a go-cart in a dangerous and reckless manner; and (e) failing to regard the rights, safety and lawful position of plaintiff at the point aforesaid. WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendant, John Doe, in a sum not in excess of $50,000.00, plus interest, costs, and attorneys' fees. COUNT III PAULETTE HARRIS vs. TRAVIS BEST 18. Plaintiff, Paulette Harris, incorporate by reference thereto, paragraphs one through seventeen, inclusive, as though same were set forth herein at length. 19. The negligence and carelessness of defendant, Travis Best, consisted of the following: (a) failing to properly operate and control said go-cart; (b) operating said go-cart at an excessive and unsafe rate of speed under the circumstances; (c) operating said go-cart in a dangerous and reckless manner; (d) failing to maintain a proper and adequate lookout; (e) failing to follow and observe traffic pattems and conditions; (0 failing to regard the rights, safety and lawful position of plaintiff at the point aforesaid; (g) causing a vehicular collision; (h) failing to properly and adequately maintain said motor vehicle; (i) negligence per se. WHEREFORE, plaintiff, Paulette Harris, demands damages of defendant, Travis Best, in a sum not in excess of $50,000.00, plus interest, costs and attorney's fees. COUNT IV PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC., JOHN DOE and TRAVIS BES'r 20. Plaintiff, Paulette Harris, incomomteq hv ~e~ercnt. e ,.. '~' ~,aragraphs one through nineteen, inclusive, as though same were set forth herein at length. 21. As a result of this accident, plaintiff, Paulette Harris, has suffered injuries which are or may be serious and permanent, including, but not limited to cervical strain and sprain, lum ....... otrain and sprain, fight shoulder strain and sprain, right brachial plexus injury, radiculopathy, post-traumatic headaches, post-traumatic stress disorder, myofascitis, cervalgia, lumbalgia and thoracicalgia, 22. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive and undergo medical attention and care for her injuries, and to incur various expenses for said care, and she may be obligated to continue to expend such sums and to incur such expenses for an indefinite period of time in the future. 23. As a further result of this accident plaintiff, Paulette Harris, has been obligated to receive and undergo reasonable and necessary medical ~eatment and rehabilitative services for the injuries she has suffered, and to incur various expenses for said treatment and services, and she may incur various reasonable and necessary future medical expenses from the injuries sustained, and defendants are liable for all of the same. 24. As a further result of this accident, plaintiff, Paulette Hams, has or may suffer severe loss and impairment of her earning capacity and power, and may continue to suffer such a loss of an indefinite time in the future. 25. As a further result of this accident, plaintiff, Paulette Harris, has been unable to attend to her daily chores, duties and occupations, and may be unable to do so for an indefinite time in the future. 26. As a direct result of the accident, plaintiff, Paulette Harris, has and may continue to in the future incur other financial expenses or losses to which she may be otherwise entitled to recover. 27. As a further result of the accident, plaintiff, Paulette Harris, has suffered severe physical pain, aches, mental anguish, and humiliation, inconveniences, and loss of life's pleasures, and she may continue to suffer the same for an indefinite time in the future. WHEREFORE, plaintiff, Paulette Harris, demands damages of the defendants, Carlisle Sports Emporium, Inc., John Doe and Travis Best, jointly and/or severally, in a sum not in excess of $50,000.00, plus interest, costs, and attorney's fees. KATS, JAMISON, VAN DER VEEN & ASSOCIATES Attorney for Plaintiff 8 VERIFICATION , hereby verifies that he/she is the plaintiff herein and that the facts set forth in the foregoing pleading are true and correct to the best of his/her knowledge, information and belief. This statement is made subj~e,~to the penalties of 18 PA C.S. // Section 4904 relating to the unswom falsification t0au~horities. Date: KATS, JAMISON, VAN DER VEEN & ASSOCIATES, P.C. By: Marina Kats, Esquire Identification No. 53020 Attorneys for Plaintiff 25 Bustleton Pike Feasterville, PA 19053 This is an Arbi~ation case.. (215) 396-9001 An assessment of damages hearing is requested PAULETTEHARRIS VS. CARLISLE SPORTS EMPORIUM, INC. AND JOHN DOE, EMPLOYEE OF CARLISLE SPORTS EMPORIUM, INC. AND TRAVIS BEST CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW NO.: 01 1403 P RAE C I P E TO THE PROTHONOTARY: Kindly reinstate Plaintiff's Complaint in Civil Action in the above-captioned matter for thirty (30) days so that service may effectuated on the Defendant, TRAVIS BEST. KATS, JAMISON, VAN DER VEEN & ASSOCIATES By= Marina Kats, Esc~.ire AttOrney for Plamntiffs SPECTOR, GADON & ROSEN, P.C. BY: John T. Asher, III, Esquire 1635 Market Street, 7th floor Seven Penn Center Philadelphia, PA 19103 (215) 24t-8888/(215) 241-8844 (fax) Attorneys for Defendant, Carlisle Sports Emporium, inc. PAULETTE HARRIS : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs, CARLISLE SPORTS EMPORIUM : 01-1403 CIVIL TERM, 2001 and JOHN DOE, EMPLOYEE and STIPULATION TRAVIS BEST : Defendants. It is hereby agreed by and between between counsel for Plaintiff, Robert Baccari, Esquire, and counsel for Defendants, John T. Asher, Ill, Esquire, that the word "reckless" in subparagraphs 15 D. and 17 D. of Plaintiff's Complaint is stricken from Plaintiff's Complaint with prejudice. Dated: (~/~ I/0 Z.. KATS, JAMISON, VANDERVEEN & ASSOC. o bR~e~/cc~ari, Esqui re Attorney for Plaintiff SPI~OR G.,~ROSEN, P.C, AttoCf~or Defendants I hereby certify that I have served a copy of this paper upon all other parties or theit attorneys by: Regular iii Certifi ai~~ Other: SPE )ON & ROSEN, P.C. By: John T. Asher, III, Esquire Identification No. 76957 Seven Penn Center Plaza t635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840/(215) 241-8844 (fax) To: You are hereby notified to plead to the enclosed ~ithin thir~ (30) days from service hereof or a~ efau~t~j~maybe entered aga~ Attorneys for Defendants, Carlisle Sports Emporium, Inc. and John Doe Employee PAULETTE HARRIS : COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiff, CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants : 01-1403 Civil DEFENDANT, CARLISLE SPORTS EMPORIUM, INC. AND JOHN DOE, EMPLOYEE'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER Defendant, Carlisle Sports Emporium, Inc. ("Sports Emporium") and John Doe Employee ("John Doe") (collectively referred to hereinafter as "Answering Defendants") by and through their attorneys, Spector Gadon & Rosen, P.C., hereby file the following Answer with New Matter to Plaintiff's Complaint: 1. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. 2, Admitted. 3. Admitted in part, denied in part. It is admitted that Sports Emporium employed various individuals and did so on the date of the alleged incident, 03/13/99. It is specifically denied that any employees employed by Sports Emporium are named John Doe. 4. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. 5. Admitted in part, Denied in part. It is admitted that Sports Emporium employed various individuals and did so on the date of the alleged incident, 03/13/99. It is specifically denied that any employees employed by Sports Emporium are named John Doe. The remaining averments set forth in the foregoing paragraphs are denied as conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same ara denied. 6. Admitted in part, denied in part. It is admitted that Sports Emporium employed various individuals and did so on the date of the alleged incident, 03/13/99. The remaining allegations set forth in this paragraph of Plaintiff's Complaint are denied as conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 7. Admitted. -2- 8. Denied. The allegations set forth in this paragraph of PlaintifFs Complaint are denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations of this paragraph of PlaintifFs Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 9. Denied. After reasonable investigation, Answering Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of PlaintifFs Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of PlaintifFs Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 10. Denied. After reasonable investigation, Answering Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of PlaintifFs Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, it is specifically denied that Sports Emporium or any of its employees in any way acted recklessly in any fashion whatsoever. 11. Denied. The allegations set forth in this paragraph of PlaintifFs Complaint are denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). -3- 12. Denied. The allegations set forth in this paragraph of Plaintiff's Complaint are denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 13. Denied. The allegations set forth in this paragraph of Plaintiff's Complaint are denied as a conclusion of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). COUNT I PAULETTE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC. 14. Answering Defendants hereby incorporate by reference their responses to the paragraphs 1 through 13 of Plaintiffs' Complaint as if same were more fully set forth at length herein. 15, Denied. The averments set forth in this paragraph of Plaintiff's Complaint, including subparts (a) through (I) therein, contain conclusions of law to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure, therefore same are deemed denied. By way of further answer, the averments set forth in this paragraph of Plaintiffs Complaint, including subparts (a) through (I) therein, are generally denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, it is specifically denied that the conduct of Sports Emporium employees was in any dangerous, reckless or unsafe as alJeged in subparagraph 15(d) of Plaintiff's Complaint. -4- WHEREFORE, Answering Defendants, Cadisle Sports Emporium, Inc. and John Doe, Employee respectfully request that Plaintiff's Complaint be dismissed with prejudice and judgment be entered in their favor. COUNT II PAULETTE HARRIS vs. JOHN DOE 16. Answering Defendants, Carlisle Sports Emporium, inc. and John Doe, Employee hereby incorporate by reference their responses to parragraphs 1 through 15 of Plaintiff's Complaint as if same were set forth more fully heroin at length. 17. Denied. The averments set forth in this paragraph of Plaintiff's Complaint, including subparagraphs (a) through (e) therein contain conclusions of law to which no rosponse is roquirod pursuant to the Pennsylvania Rules of Civil Procedure, theroforo same are deemed denied. By way of further answer, the allegations set forth in this paragraph of Plaintiff's Complaint, including subparagraphs (a) through (e) theroin aro denied generally pursuant to Pa.R.C.P. 1029(e). By way of further answer, it is specfically denied that Sports Emporium employees allowed another person to operate a go-kart in a dangerous or a rockless manner. WHEREFORE, Answering Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee demand that Plaintiff's Complaint be dismissed and judgment enterod in their favor. COUNT III PAULETTE HARRIS vs. TRAVlS BEST 18. Answering Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee hereby incorporate by roferonce their responses to paragraphs 1 through 17 of Plaintiff's Complaint as if same were set forth moro fully heroin at length. -6- 19. The averments contained in this paragraph of plaintiff's Complaint, including subparts (a) through (i) therein are not addressed to Defendant Sports Emporium or Defendant, John Doe Employee, and, accordingly, no responsive pleading is required. To the extent that any of the averments contained within this paragraph of Plaintiff's Complaint are directed to Defendant, Sports Emporium or Defendant, John Doe Employee and/or require a responsive pleading, they are specifically denied with strict proof demanded. By way of further answer, it is specifically denied that any of Sports Emporium's employees at any time relevant hereto acted dangerously, recklessly or in any way in an unsafe manner. WHEREFORE, Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee request that Plaintiff's Complaint be dismissed and judgment entered in their favor. COUNT IV PAULET'rE HARRIS vs. CARLISLE SPORTS EMPORIUM, INC., JOHN DOE AND TRAVlS BEST 20. Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee hereby incorporate by reference their responses to paragraphs 1 through 19 of PlaintifFs Complaint as if same were set forth more fully herein at length. 21. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). -7- 22. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 23. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 24. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 25. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 26. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict -8- proof demanded. By way of further answer, the allegations of this paragraph of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). 27. Denied. After reasonable investigation, Defendants are without knowledge of information sufficient to form a belief as to the truth of the averments set forth in this paragraph of Plaintiff's Complaint, therefore same are denied with strict proof demanded. By way of further answer, the allegations of this paragraph of Plaintiffs Complaint are generally denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendants, Cadisle Sports Emporium, Inc. and John Doe, Employee request that Plaintiff's Complaint be dismissed and judgment be entered in their favor. NEW MATTER 28. Plaintiff's complaint fails to state a cause of action or causes of action against answering Defendants upon which relief can be granted. 29. Plaintiff was comparatively negligent so as to totally bar her recovery in this case under the applicable provision of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. § 7102; in the alternative, plaintiff's recovery is to be reduced in accordance with the amount of comparative negligence attributed to her. 30. Plaintiff assumed the risk of injury under the circumstances, thereby barring her from any recovery under the applicable law. 31. Plaintiff's claims are barred by the applicable Statute of Limitations and/or the Doctrine of Laches. 32. Answering Defendants deny that the injuries alleged in plaintiff's Complaint were caused or contributed to by any conduct on the part of answering -9- Defendants, their agents, servants, workmen and/or employees acting with the course and scope of their employment. 33. Answering Defendants deny knowledge or information as to the occurrence of the incident as alleged in plaintiff's Complaint, but believe and therefore aver, that should same be proven at trial, the incident complained of was caused solely by the negligence and/or otherwise liability producing conduct of the plaintiff or other persons or entities over whom or which answering Defendants neither exercised control nor had any duty to control under the circumstances and for whom answering defendant bears no responsibility, either in fact or in law, under the circumstances. 34. Plaintiff's injuries were caused in whole or in part by persons or entities over whom Answering Defendants had no control or right to control. 35 The incident or damages alleged in plaintiff's Complaint were the result of the sole negligence and/or intentional conduct of plaintiff. 36. Answering Defendants deny that they are liable for any negligence which was the proximate cause of the injuries and/or damages alleged to have been sustained by plaintiff. 37. Plaintiff has failed to mitigate her damages. 38. Answering Defendants owed no duty nor breached any duty to plaintiffs. WHEREFORE, Answering Defendants respectfully request that plaintiff's Complaint be dismissed with prejudice and judgment entered in their favor. NEW MATTER IN THE NATURE OF A CROSSCLAIM ADDRESSED TO DEFENDANT, TRAVIS BEST PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 2252(D) -10- 39. Answering Defendants hereby incorporate by reference, without admitting the truth of same, for purposes of this Rule 2252(d) New Matter all the averments contained in Plaintiffs' Complaint against Defendants, Carlisle Sports Emporium, Inc., John Doe, Employee and Travis Best. 40. Answering Defendants hereby incorporates by reference their responses to paragraphs 1 through 38 above comprising its Answer and New Matter to Plaintiffs' Complaint as if same were set forth fully herein at length. 41. Answering Defendants have denied the occurrence of the incident as alleged in Plaintiffs' Complaint as well as Plaintiffs' claimed injuries, damages and other losses, but believes and therefore avers, that should same be proven true, they were due solely to the acts and/or omissions, carelessness, recklessness, negligence and/or otherwise liability producing conduct of defendant, Travis Best and that Travis Best is alone liable to Plaintiff or are liable over to Answering Defendants for contribution and/or indemnity. WHEREFORE, Answering Defendants, Carlisle Sports Emporium, Inc. and John Doe, Employee respectfully request that judgment be entered in their favor and against Plaintiffs and defendant, Travis Best. Respectfully submitted, SPECTOR (~DO~ ~JOHN T. ASHER, III, ESQUIRE~ J'* ~ 'A~.ttorneys for Defendant, Carlisle Sports -11- VERIFICATION I, John T. Asher, III, Esquire, am attorney for Defendants, Carlisle Sports Emporium and John Doe, Employee and that I am authorized to make this verification on their behalf. I hereby verify that the facts set forth in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to thepenalties of 18 Pa.C.S.A. § 4904 relating~ JO%H,N ~ ~'~SHER, III ~ -12- CERTIFICATE OF SERVICE I, JOHN T. ASHER, III, ESQUIRE, attorney for answering defendant hereby certify that a true and correct copy of defendant's Answer to plaintiffs' Complaint with New Matter was served by first class mail on June 20, 2002, upon the following counsel of record: Robert Baccari, Esquire Kats, Jamison, VanderVeen & Associates 25 Bustleton Pike Feasterville, PA 19053 Respectfully submitted, SPECTOR GAl)ON & ROSEN, P.C. 163'5~Ia~ket Street, Th Floor Philade~ia, PA 19103 KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 PAULETTE HARRIS Plaintiff, VS. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants. Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY NO: 01-1403 Civil PLAINTIFF, PAULETTE HARRIS' ANSWER TO DEFENDANTS, _CARLISLE SPORTS EMPORIUM, INC. AND JOHN DOE'S NEW MATTER 28. Denied. Paragraph 28 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "plaintiff's complaint fails to state a cause of action or causes of action against answering defendant upon which relief may be grained" is specifically denied. On the contrary, plaintiff's Complaint states a valid cause of action of negligence against answering defendants for which relief may be granted. 29. Denied. Paragraph 29 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "plaimiff was comparatively negligent so as to totally bar her recovery in this case..." is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act on the part of plaintiff. 30. Denied. Paragraph 30 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "plaintiff assumed the risk of injury under the circumstances...." is specifically denied. On the contrary, plaintiff assumed no known risk and the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants. 31. Denied. Paragraph 31 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that plaintiff's claims are barred by the statute of limitations and/or the doctrine of laches is specifically denied. On the contrary, plaintiff's claims arise out of an accident that occurred on or about March 13, 1999 and this action was commenced by Complaint filed on March 12,2001. Clearly, plaintiff commenced this action with the Court within the applicable two-year statute of limitations and without delay. 32. Denied. Paragraph 32 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that the injuries sustained by plaintiffwere not caused by any conduct on the part of answering defendants is specifically denied. On the contrary, the injuries sustained by plaintiffwere caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act on the part of plaintiff. 33. Denied. Paragraph 33 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "the incident complained of was caused solely by the negligence and/or otherwise liability producing conduct of the plaintiff or other persons or entities over whom or which answering defendant neither exercised control nor had any duty to control under the circumstances...." is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act on the part of plaintiff. 34. Denied. Paragraph 34 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "plaintiff's injuries were caused in whole or in part by persons or entities over whom answering defendant had no control or right to control.~.." is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act by plaintiff. 35. Denied. Paragraph 35 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that "the incident and damages alleged in plaintiff' s Complaint were the result of the sole negligence and/or intentional conduct of plaintiff...." is specifically denied. On the contrary, the injuries and damages sustained by plaintiff were caused solely by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act by plaintiff. 36. Denied. Paragraph 36 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, the averment that defendants' negligence was not the proximate cause of plaintiff's injuries and damages is specifically denied~ On the contrary, the injuries and damages sustained by plaintiff were caused solely and proximately by the negligence, carelessness and recklessness of answering defendants, and were due in no manner whatsoever to any act or failure to act by plaintiff. 37. Denied. Paragraph 37 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth or the falsity of the averments contained in Paragraph 37 of defendants' New Matter and such averments are deemed at issue. Strict proof of said averment is demanded at the trial of this case. 38. Denied. Paragraph 38 is a conclusion of law to which no responsive pleading is required. To the extent a pleading is required, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth or the falsity of the averments contained in Paragraph 38 of defendants' New Matter and such averments are deemed at issue. Strict proof of said averment is demanded at the trial of this case. WHEREFORE, plaintiff, Paulette Harris, demands judgment against defendants in an amount not in excess of $50,000.00, plus interest, costs and attorney's fees and such relief as this Court deems appropriate. 39-41~ The averments in paragraphs 39-41 are not directed to answering plaintiff and therefore, no responsive pleading is required. WHEREFORE, plaintiff, Paulette Harris, demands judgment against defendants in an amount not in excess of $50,000.00, plus interest, costs and attorney's fees and such relief as this Court deems appropriate. i CATS, JAMISON, van der VEEN & ASSOCIATES Marina Kats, Esquire Attorney for Plaintiff VERIFICATION I, Marina Kats, Esquire, hereby states that I am the attorney for plaintiffs in this action, and verify that the statements made in the ibregoing Answer to defendants' New Matter are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. KATS, JAMISON, van der VEEN & ASSOCIATES rina Kats, Esquire Attorney for plaintiff Dated: August 22, 2002 KATS, JAMISON, VAN DER VEEN & ASSOCIATES By: Marina Kats, Esquire Identification No. 53020 25 Bustleton Avenue Feasterville, PA 19053 (215) 396-9001 PAULETTE HARRIS Plaintiff, VS. CARLISLE SPORTS EMPORIUM, INC. and JOHN DOE, EMPLOYEE and TRAVIS BEST Defendants. Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY NO: 01-1403 Civil CERTIFICATE OF SERVICE I, the undersigned attorney for plaintiff, hereby certify that plaintiffs Answer to defendants' New Matter was served via first-class mail upon the following: John T. Asher, 1II, Esquire SPECTOR, GADON & ROSEN, P.C. Seven Penn Center Plaza 1635 Market Street, 7th Floor Philadelphia, PA 19103 KATS, JAMISONrn~t der VEEN & ~qlarina Kats, Esquire Attorney for plaintiff ASSOCIATES Dated: August 22, 2002