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HomeMy WebLinkAbout11-8180RALPH HAWK and IN THE COURT OF COMMON PLEAS BARBARA HAWK, OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs == V. NO. l l - 8180 CIVIL TERM = = r;LO C? °q HARRY NAZZARO CIVIL ACTION-LAW Defendant =17 ;C NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 q) ?Qa.oo PQ Ivft4 C-' l93Q8 t2?o2lv(o5'1? RALPH HAWK and BARBARA HAWK, Plaintiffs V. HARRY NAZZARO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. I I-, V 1V "b CIVIL TERM CIVIL ACTION-LAW COMPLAINT AND NOW, come Ralph Hawk and Barbara Hawk, by and through their attorney, Michael A. Scherer, Esquire, and respectfully represents as follows: 1. The plaintiffs are Ralph Hawk and Barbara Hawk (hereinafter "Hawks"), husband and wife, who are residents of Cumberland County, Pennsylvania, and own real estate located at 407 Third Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter "Hawk property"). 2. The defendant is Harry Nazzaro (hereinafter "Nazzaro"), a resident of Cumberland County, who owns real estate located at 409 Third Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter "Nazzaro property") 3. The Hawk property and Nazzaro property together form a duplex with a common center wall, including an interior brick masonry party foundation wall in the basement (hereinafter "basement party foundation wall"), which wall serves to separate the Hawk and Nazzaro basements. 4. The basement party foundation wall served as an interior bearing wall which supported the tributary areas of the first and second floor structures of both residences. 5. Over the last several years Nazzaro had made certain modifications to his property, including the removal of a side porch, which left several open holes in the exposed portions of the exterior stone masonry foundation walls at the level of the finished exterior grade. 6. In addition, an exterior basement stairway to the Nazzaro property was covered only by OSB board, leaving an opening for water to flow from grade into the Nazzaro basement. 7. On April 28, 2011, heavy rains in the New Cumberland, Pennsylvania area resulted in large amounts of surface water rapidly entering the basement of the Nazzaro property through the open holes and exterior basement stairwell mentioned in paragraphs five and six above. 8. Eventually the water entering the Nazzaro basement filled to the level where the basement party foundation wall could not take the lateral pressure force which was being exerted from the water in the Nazzaro basement and a large section of the wall failed due to the differential water pressure forces exerted upon the party foundation wall. 9. As a result of the events listed in paragraphs 7. and 8. above, a large portion of the basement party foundation wall collapsed into the basement space of the Hawk property. 10. Significant pressure differential caused by the extreme depth of water in the Nazzaro basement and lack of significant water in the Hawk basement caused the failure of the basement party foundation wall. 11. As a result of the collapse of the basement party foundation wall, neither the Hawk residence nor the Nazzaro residence are safe for occupancy and the Borough of New Cumberland condemned both properties. 12. The Hawks were forced to find alternate housing on April 28, 2011. 13. The basement party foundation wall requires rebuilding and major renovations are necessary to the Hawk residence in order to make it habitable. 14. The damages to the Hawk property as set forth herein were caused by the negligence of Nazzaro in failing to keep his property in good repair, renovating his property in a manner which allowed large holes to exist adjacent to his foundation and the removal of exterior basement stairwell doors, all of which allowed substantial amounts of surface water to enter the only the basement of his property, and not the basement of the Hawks, so rapidly that it collapsed the basement party foundation wall. 15. The damages to the Hawk property as set forth herein were caused by Nazzaro's negligence in allowing water to accumulate into his basement and collapse the basement party foundation wall constituting a trespass upon the Hawk property. 16. In addition to the structural damages to the Hawk property, Plaintiffs have suffered damages to the heating and ventilation, mechanical and electrical systems in the home and have suffered other water related damage to their home. 17. Plaintiffs will incur expenses in cleaning up the damage to their home and remediating water damage to their home. WHEREFORE, Hawks respectfully request that the Court enter judgment in their favor and award them damages for the repair of their property, the lack of use of their property, and such other damages as the Court deems just, in an amount exceeding the amount requiring compulsory arbitration. Respectfully submitted, BARIC SCHERER LLC ich el A. Scherer, Esquire I. D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by our attorney in this litigation. The language of the statements is not our own. We have read the statements; and to the extent that they are based upon information which we have given to our counsel, they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. DATE: i o• i 3 l alph Hawk Barbara Hawk THOMAS, THOMAS & HAFER, LLP Thomas L. Isenberg, Jr., Esquire PA Attorney ID #76652 PO Box 999 Harrisburg, PA 17108-0999 for Defendant, Harrv Nazzaro RALPH HAWK and IN THE COURT OF COMMON PLEAS BARBARA HAWK, CUMBERLAND CO., PENNSYLUANIA-- Plaintiffs NO. 11-8180 V. CIVIL ACTION - LAW HARRY NAZZARO, Defendant o `V' ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Thomas L. Isenberg, Jr., Esquire of Thomas, Thomas & Hafer, LLP, on behalf of the Defendant in the above-captioned matter. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Th s L. Isen Jr., quire Attorneys for Defen Date: November 21, 2011 CERTIFICATE OF SERVICE I, Angela A. Kelly, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, and addressed as follows: Michael A. Scherer, Esquire Baric & Scherer, LLC 19 West South Street Carlisle, PA 17013 THOMAS, THOMAS & HAFER, LLP Aiigela)A. Kelly Date: November 21, 2011 1016547.1 RALPH HAWK and IN THE COURT OF COMMON PLEAS BARBARA HAWK, OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2011-8180 CIVIL TERM HARRY NAZZARO, CIVIL ACTION-LAW ''? -ri Defendant r- ca Z --,z PLAINTIFFS REPLY TO NEW MATTER y -t cn a 19.-26. Paragraphs 19-26 state legal conclusions to which no resp? ns'g is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029 (d) and (e). Strict proof thereof is demanded at time of trial. Respectfully submitted, BARIC SCHERER LLC 4&_,0i) Mi hael A. Sc rer, Esquire 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on December aI , 2011, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of Plaintiffs Reply To New Matter, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Thomas L. Isenberg, Jr., Esquire Thomas, Thomas & Hafer LLP 305 North Front Street P.O. Box 999 Harrisburg, Pennsylvania 17108 J n' e i say l THOMAS, THOMAS & HAFER, LLP Thomas L. Isenberg, Jr., Esquire PA Attorney ID #76652 PO Box 999 Harrisburg. PA 17108-0999 RALPH HAWK and BARBARA. HAWK, V. HARRY NAZZARO, V. for Defendant, Harrv Nazzaro IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA Plaintiffs Defendant NO. 11-8180 CIVIL ACTION - LAW BOROUGH OF NEW CUMBERLAND, Additional Defendant CD c? c e.a C= -' m rn-n tl7i""' xs N ?, < a-Tj i Z Za NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS PLEADING AND NOTICE ARE SERVED BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 THOMAS, THOMAS & HAFER, LLP Thomas L. Isenberg, Jr., Esquire PA Attorney ID #76652 PO Box 999 Harrisburg. PA 17108-0999 RALPH HAWK and BARBARA HAWK, V. HARRY NAZZARO, V. IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA Plaintiffs NO. 11-8180 CIVIL ACTION - LAW Defendant BOROUGH OF NEW CUMBERLAND, Additional Defendant DEFENDANT HARRY NAZZARO'S COMPLAINT TO JOIN THE BOROUGH OF NEW CUMBERLAND, PENNSYLVANIA AS AN ADDITIONAL DEFENDANT PURSUANT TO PA.R.C.P. 2252 AND NOW, comes Defendant, Harry Nazzaro, by and through his counsel, Thomas, Thomas & Hafer, LLP, and files the following Additional Defendant Complaint to join the Borough of New Cumberland as an Additional Defendant and in support thereof, respectfully states the following: 1. On or about October 27, 2011, Plaintiffs, Ralph and Barbara Hawk ("Plaintiffs") instituted this action in the Court of Common Pleas of Cumberland County, Pennsylvania, by the filing of a Complaint against Defendant, Harry Nazzaro ("Defendant"). A true and correct copy of the Plaintiffs' Complaint is attached hereto and marked as Exhibit "A". 2. Additional Defendant is the Borough of New Cumberland, a Pennsylvania municipality operating under the Pennsylvania Borough Code with a principal place of business and governance located at 1120 Market Street, New Cumberland, Cumberland County, Pennsylvania. 3. Plaintiffs' Complaint asserts a claim of negligence against Defendant and further seeks the recovery of monetary damages for injuries caused to their home and property, which allegedly occurred on or about April 28, 2011. 4. Plaintiffs' Complaint asserts that Plaintiffs and Defendant owned property situated within the Borough of New Cumberland, Pennsylvania which, together, formed a residential duplex with a common center wall located at 407/409 Third Street, New Cumberland, Pennsylvania. 5. Plaintiffs' Complaint further asserts that on April 28, 2011, heavy rains resulted in large amounts of surface water which entered the basement of the Nazzaro property through open holes in the foundation and through an exterior basement stairwell. 6. Plaintiffs allege that the water level in the Nazzaro basement rose to such a level that it caused the basement party foundation wall to fail and flood Plaintiffs' basement. 7. Plaintiffs further assert that the flooding and failure of the basement party foundation wall resulted in property damage and the need to find alternative housing. 8. Plaintiffs contend that the damage to their property was caused by Defendant's failure to keep his property in good repair in that Defendant allowed large holes to exist adjacent to the property's foundation and that Defendant removed the exterior basement stairwell doors, all of which permitted excessive amounts of water to enter and flood the Defendant's basement. 9. Defendant filed an Answer with New Matter to Plaintiffs' Complaint denying all allegations of negligence. A true and correct copy of Defendant's Answer with New Matter is attached hereto and marked as Exhibit "B". 10. This Joinder Complaint is timely filed pursuant to the Pennsylvania Rules of Civil Procedure. 11. Defendant hereby incorporates by reference, without admission, the allegations and averments contained in Plaintiffs' Complaint. Count I -Negligence Harry Nazzaro v. The Borough of New Cumberland 12. :Paragraphs 1 through 11 above are incorporated herein by reference as if set forth in full. 13. Defendant asserts that the property damage as alleged in Plaintiffs' Complaint was caused by the Borough of New Cumberland's negligence in that the Borough's storm water drainage system caused a dangerous condition when it failed to accommodate the rainfall of April 28, 2011, diverted the natural flow of surface water and caused large amounts of surface water to accumulate on and ultimately flood the Nazzaro property. 14. Prior to and including the incident identified in Plaintiffs' Complaint, Defendant experienced several flooding events upon his property within the previous twelve (12) months of April 28, 2011. 15. The prior flooding events noted above were caused by the failure of the Borough's storm water drainage system, which railed to accommodate the rainfall, diverted the natural flow of surface water and resulted in large amounts of surface water to run onto and accumulate on the Nazzaro property which ultimately caused such surface water to enter the Nazzaro basement. 16. Prior to and including the incident identified in Plaintiffs' Complaint, Defendant provided notice of the flooding events to the Borough of New Cumberland. 17. Defendant provided notice to the Borough of New Cumberland that the storm water drainage system located behind his residence failed to accommodate the rainfall, diverted the natural flow of surface water, caused large amounts of surface water to run onto his property and further caused said surface water to enter his basement. 18. Plaintiffs also contacted and provided notice to the Borough of New Cumberland that the storm water drainage system located behind their property failed to accommodate the rainfall, directed surface water upon the property and caused the accumulation of large amounts of surface water to enter their property. 19. The Borough of New Cumberland knew or should have known that the storm water drainage system located behind the Nazzaro property failed to accommodate the rainfall, diverted the natural flow of water and caused large amounts of surface water to run onto the Nazzaro property flooding the Nazzaro basement. 20. At all times material hereto, the Borough of New Cumberland failed to take any action to remedy the known failures of its storm water drainage system located behind the Nazzaro property. 21. The negligence and carelessness of the Borough of New Cumberland consisted of the following; a. failing to construct the storm water drainage system in a manner so that the system was able to accommodate the rainfall; b. failing to construct the storm water drainage system so as to prevent the run-off and accumulation of surface water on the Nazzaro property; C. failing to repair and maintain the storm water drainage system in a manner so as to permit the same to accommodate the rainfall; d. failing to repair and maintain the storm water drainage system so as to prevent the run-off and accumulation of surface water on the Nazzaro property; e. improperly directing and diverting the natural flow of surface water on to Defendant's property; and f. failing to take steps necessary to remedy known problems and the dangerous condition of the storm water drainage system as aforesaid. 22. Defendant avers that the Borough of New Cumberland is solely liable for the underlying cause of action, is liable to or with Defendant as the joining party on the cause of action arising out of the incident averred by Plaintiffs in Plaintiffs' Complaint, and for any and all damages claimed by Plaintiffs for which the underlying cause of action against Defendant as the joining party is based. WHEREFORE, Defendant, Harry Nazzaro, demands judgment to be entered in his favor and against that of the Additional Defendant, the Borough of New Cumberland, Pennsylvania, as sole liability or liability with Defendant on the cause of action arising out of the incident averred to in Plaintiffs' Complaint. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Tho as L. Isen squire Attorneys for Defendant Date: December 22, 2011 VERIFICATION I, Thomas L. Isenberg, Jr., Esquire, counsel for Defendant, Harry Nazzaro, verify that the statements and averments made in the Joinder Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. 7omas L. Is uire Date: December 22, 2011 EXHIBIT "A N0 V, I. LV L `tU?IVI UIVJI 1J7LV vu, IL VV L RALPH HAWK and IN THE COURT OF COMMON PLEAS BARBARA HAWK, OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs .? V. NO. It ?- $I 80 CIVIL TERM .-"-:- t rni s J o "t HARRY NAZZARO, : CIVIL ACTION-LAW x;; ,; ?4 Defendant . NQTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fall to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in -the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights Important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW, THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT WIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE, TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 2493166 IN0V. 1, LUI I L.1turivl UIU)1137LU RALPH HAWK and BARBARA HAWK, Plaintiffs V. HARRY NAZZARO, Defendant IVU? I LUU ? J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL TERM CIVIL ACTION-LAW COMPLAINT AND NOW, come Ralph Hawk and Barbara Hawk, by and through their attorney, Michael A. Scherer, Esquire, and respectfully represents as follows: 1. The plaintiffs are Ralph Hawk and Barbara Hawk (hereinafter "Hawks"), husband and wife, who are residents of Cumberland County, Pennsylvania, and own real estate located at 447 Third Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter "Hawk property"). 2, The defendant Is Harry Nazzaro (hereinafter "Nazzaro"), a resident of Cumberland County, who owns real estate located at 449 Third Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter "Nazzaro property°). 3. The Hawk property and Nazzaro property together form a duplex with a common canter wall, Including an Interior brick masonry party foundation wall in the basement (hereinafter "basement party foundation wall'), which wall serves to separate the Hawk and Nazzaro basements, 4. The basement party foundation wall served as an Interior bearing wall which supported the tributary areas of the firs( and second floor structures of both residences. IV UV, II LVi I .. TlIIYI VIVJ7 IJJLV 5, Over the last several years Nazzaro had made certain modifioations to his property, Including the removal of a side poroh, which left several open holes in the exposed portions of the exterior stone masonry foundation walls at the level of the finished exterior grade. 6 In addition, an exterior basement stairway to the Nazzaro property was covered only by OSB board, leaving an opening for water to flow from grade Into the Nazzaro basement, 7. On April 28, 2011, heavy rains In the New Cumberland, Pennsylvania area resulted in large arrfounts of surfaoe water rapidly entering the basement of the Nazzaro property through the open holes and exterior basement stalrvrell mentioned in paragraphs five and six above. 8. Eventually the water entering the Nazzaro basement filled to the level where the basement party foundation wall could not take the lateral pressure force which was being exerted from the water In the Nazzaro basement and a large section of the wail failed due to the differential water pressure forces exerted upon the party foundation wall. 9. As a result of the events listed In paragraphs 7, and 8, above, a large portion of the basement party foundation wall collapsed into the basement space of the Hawk property. 10. Significant pressure differential caused by the extreme depth of water In the Nazzaro basement and lack of significant water in the Hawk basement caused the failure of the basement party foundation wall. INV V, I. L V 1 1 .'?I1m V I V J I IJ/LV 11. As a result of the collapse of the basement party foundation wall, neither the Hawk residence nor the Nazzaro residence are safe for occupancy and the Borough of New Cumberland condemned both properties, 12. The Hawks were forced to find alternate housing on April 28, 2011. 13. The basement party foundation wall requires rebuilding and major renovations are necessary to the Hawk residence in order to make It habitable. 14, The damages to the Hawk property as set forth herein were caused by the negligence of Nazzaro in failing to keep his property in good repair, renovating his property In a manner which allowed large holes to exist adjacent to his foundation and the removal of exterior basement stairwell doors, all of which allowed substantial amounts of surface water to enter the only the basement of his property, and not the basement of the Hawks, so rapidly that it collapsed the basement party foundation wall. 15. The damages to the Hawk property as set forth herein were caused by Nazzaro's negligence in allowing water to accumulate into his basement and collapse the basement party foundation wall constituting a trespass upon the Hawk property. 16. In addition to the structural damages to the Hawk property, Plaintiffs have suffered damages to the heating and ventilation, mechanical and electrical systems in the home and have suffered other water related damage to their home. 17. Plaintiffs will Incur expenses in cleaning up the damage to their home and remediating water damage to their home, IV V V I. L i l ! ?. Y l l i9i V I V I I J% I V ? c. v v WHEREFORE, Hawks respectfully request that the Court enter Judgment In their favor and award them damages for. the repair of their property, the lack of use of their property, and such other damages as the Court deems just, in an amount exceeding the amount requiring compulsory arbitration. Respectfully submitted, BARIC SCHERER LLC 444 1 A/) / /tj MlchAtel A. Scherer, Esquire IrD. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-0873 lVU1', !, LU' I ? "Illvi LJ;?1J! 1?7LV „?, ic.vv VERIF=ICATION The statements in the foregoing Complaint are based upon information which has been assembled by our aftorney In this litigation. The language of the statements is not our own. We have read the statements,, and to the extent that they are based upon information which we have given to our counsel, they are true and correct to the best of our knowledge, information and belief, We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorlties. DATE: ! (? " I• l t ra C c alph Hawk Barbara Hawk EXHIBIT "B" -„r THOMAS, THOMAS & HAFER, LLP Thomas L. Isenberg, Jr., Esquire PA Attorney ID #76652 PO Boa 999 Harrisbum. PA 17108-0999 RALPH HAlA7K and BARBARA HAWK, Attorney for Defendant, Harry Nazzaro IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA Plaintiffs V. NO. 11-81.80 CIVIL ACTION - LAW HARRY NAZZARO, Defendant NOTICE TO PLEAD TO: Ralph Hawk and Barbara Hawk c/o Michael A. Scherer, Esquire Baric & Scherer, LLC 19 West South Street Carlisle, PA 17013 YOU .ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By T mas L. enber , J , Esquire TR THOMAS, THOMAS & HAFER, LLP Thomas L. Isenberg, Jr., Esquire PA Attorney ID #76652 PO Box 999 Harrisburg. PA 17108-0999 Nazzaro RALPH HAWK and IN THE COURT OF COMMON PLEAS BARBARA HAWK, CUMBERLAND CO., PENNSYLVANIA Plaintiffs NO. 11-8180 V. CIVIL ACTION - LAW HARRY NAZZARO, Defendant ANSWER WITH NEW MATTER OFDEFENDANT TO PLAINTIFFS' COMPLAINT AND NOW, comes Defendant, Harry Nazzaro, by and through his counsel, Thomas, Thomas & Hafer, LLP, and respectfully files this Answer with New Matter to Plaintiffs' Complaint and in support thereof, states the following: 1. Admitted upon information and belief. 2. Admitted in part; denied in part. It is admitted only that Defendant Harry Nazzaro ("Nazzaro") currently owns real estate located at 409 Third Street, New Cumberland, Cumberland County, Pennsylvania. It is denied that Defendant Nazzaro is a resident of Cumberland County. By way of further answer, Defendant currently resides at 197 Reward Road, Millerstown, Perry County, Pennsylvania. 3. Admitted. 4. Admitted. 5. Admitted in part; denied in part. It is admitted only that, at the time of the incident, complained of within Plaintiffs' Complaint, Defendant Nazzaro was in the process of constructing a new side porch. It is denied that the demolition and/or construction of the side porch resulted in any open holes in the exposed portion of IN the exterior stone masonry foundation. By way of further answer, there were no open holes in the exposed portion of the exterior stone masonry foundation at the time of the incident complained of in Plaintiffs' Complaint. 6. Admitted in part; denied in part. It is admitted only that the exterior basement stairway was covered by OSB board. It is denied that the presence of the OSB board provided any direct opening for water to flow from grade into the Nazzaro basement. By way of further answer, the OSB board covering the stairwell was sealed and caulked and the stairwell was closed with a sealed and insulated double wall. By way of further answer, water entered the basement through non- water tight points of the floor, walls and foundation as well as through other surface cavities in and around the property. 7. Admitted in part; denied in part. It is admitted only that on April 28, 2011 there were heavy rains in the New Cumberland, Pennsylvania area and that water entered Defendant's basement. It is denied that the heavy rains were the sole causation for large amounts of surface water to enter Defendant Nazzaro's basement and that such water entered the basement only through open holes in the foundation and exterior basement stairwell as alleged. By way of further answer, the Borough of New Cumberland's storm water drainage system failed to accommodate the heavy rainfall and as a result of such failure, large amounts of surface water accumulated, crossed several adjacent properties, entered Defendant Nazzaro's basement, among others, and flooded Defendant's basement. The remaining allegations contained in paragraph 7 of Plaintiffs' Complaint are denied inasmuch as after reasonable investigation, Defendant Nazzaro is without 2 M knowledge or information sufficient to form a belief as to the truth of same. Strict proof thereof is demanded at the time of trial. 8. Admitted in part; denied in part. It is admitted that a large section of the wall failed. It is denied that the wall failed solely due to the lateral pressure force being exerted thereon. The remaining allegations contained in paragraph 8 of Plaintiffs' Complaint are denied inasmuch as after reasonable investigation, Defendant Nazzaro is without knowledge or information sufficient to form a belief as to the truth of same. Strict proof thereof is demanded at the time of trial. 9. Admitted in part; denied in part. It is admitted only that a large portion of the basement party foundation wall collapsed into the basement space of Plaintiffs' property. For the reason set forth in paragraph 7 above, the same of which is incorporated hereby by reference, the remaining allegations are denied. 10. Admitted in part; denied in part. It is admitted only that significant pressure differential caused by the depth of water in the Nazzaro basement was a cause of the basement party foundation wall failure. The remaining allegations contained within paragraph 10 of Plaintiffs' Complaint are denied inasmuch as after reasonable investigation, Defendant Nazzaro is without knowledge or information sufficient to form a belief as to the truth of same. Strict proof thereof is demanded at the time of trial. 11. Admitted. 12. Admitted upon information and belief. 13. Admitted in part; denied in part. It is admitted only that the basement party foundation wall requires rebuilding and/or repair so as to make the Hawk 3 m residence habitable. The remaining allegations contained within paragraph 13 of Plaintiffs' Complaint are denied inasmuch as after reasonable investigation, Defendant Nazzaro is without knowledge or information sufficient to form a belief as to the truth of same. Strict proof thereof is demanded at the time of trial. 14. Denied. The allegations contained within paragraph 14 of Plaintiffs' Complaint are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 15. Denied. The allegations contained within paragraph 15 of Plaintiffs' Complaint are legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 16. Denied. After reasonable investigation, Defendant Nazzaro is without knowledge or information sufficient to form a belief as to the truth of the allegations contained within paragraph 16 of Plaintiffs' Complaint. Strict proof thereof is demanded at the time of trial. 17. Denied. After reasonable investigation, Defendant Nazzaro is without knowledge or information sufficient to form a belief as to the truth of the allegations contained within paragraph 17 of Plaintiffs' Complaint. Strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Harry Nazzaro respectfully requests this Honorable Court to enter judgment in his favor and against that of the Plaintiffs. 4 TV NEW MATTER 18. Paragraphs 1 through 17 are incorporated herein by reference as if set forth in full. 19. Plaintiffs have failed to state a claim upon which relief can be granted. 20. Defendant was not negligent and at all times material hereto, performed each and every duty owed to Plaintiffs, if any, in a reasonable and prudent manner. 21. Defendant owes no duty to Plaintiffs. 22. The value of Plaintiffs' claims are diminished due to their failure to mitigate their damages. 23. Plaintiffs' alleged damages were caused, in whole or in part, by third parties over whom Defendant had no control. 24. The occurrence complained of was neither intended, foreseeable, nor preventable by the exercise of reasonable care. 25. The flooding of Defendant's basement and any resulting damage to the Plaintiffs' property was not caused by Defendant's intentional or negligent acts. 26. The large amount of water that flooded Defendant Nazzaro's basement was caused by the Borough of New Cumberland's storm water drainage system, which failed to accommodate the rainfall, caused large amounts of water to back up, cross several adjacent properties, and enter Defendant Nazzaro's basement. 5 Tw WHEREFORE, Defendant Harry Nazzaro respectfully requests this Honorable Court to enter judgment in his favor and against that of the Plaintiffs. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP gy: Th mas L. Isen r., Esq 're Attorneys for Defen Date/J/07/ v/j 6 TI VERIFICATION I, Harry Nazarro, verify that the statements made in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. By:%," ) - Harry N aro Date : ??? Tw CERTIFICATE OF SERVICE I, Angela A. Kelly, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, and addressed as follows: Michael A. Scherer, Esquire Baric & Scherer, LLC 19 West South Street Carlisle, PA 17013 Date: 12,'-T ? l 1016585.1 THOMAS, THOMAS & HAFER, LLP I CERTIFICATE OF SERVICE I, Angela A. Kelly, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons, and addressed as follows: Via first class mail Michael A. Scherer, Esquire Baric & Scherer, LLC 19 West South Street Carlisle, PA 17013 Date: December 22, 2011 Via personal service Borough of New Cumberland 1120 Market Street New Cumberland, PA 17070 1027565.1 THOMAS, THOMAS & HAFER, LLP SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor Ralph Hawk (et al.) vs. Borough of New Cumberland w' 1 i1 n E'? !!I?"1 PM t: ?.`?tL..•: so CUMBERLAND YES pEtd Mtj'px t? Case Number 2011-8180 SHERIFF'S RETURN OF SERVICE 01/04/2012 12:25 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on January 4, 2012 at 1225 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Borough of New Cumberland, by making known unto Fran Lengenman, Office Manager for The Borough of New Cumberland at 1120 Market Street, New Cumberland, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $45.00 January 05, 2012 TIM BLA K, DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF I 1: A ((t°?} ?1?f t(( WILLIAM J. FERREN & ASSOCIATES BY: Christine E. Munion, Esquire Attorney I.D. No. 72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 1012 FEB 24 P l: 22 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Defendant, Borough of New Cumberland Ralph Hawk and Barbara Hawk V. ; Harry Nazzaro Defendant Borough of New Cumberland Additional Defendant : COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 11-8180 JURY TRIAL DEMANDED DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Defendant, Borough of New Cumberland, by and through their undersigned counsel, ?xrebv demand a trial by a jury of twelve. WILLIAK4 J. F SSO(1: TES By: rtstine E. n, Esquire Attorney for Defendant, Borough of New Cumberland Not a Partnership or Professional Corporation All Attorneys are Employees of The Travelers Indemnity Company and its Property Casualty Affiliates and Subsidiaries WILLIAM J. FERREN & ASSOCIATES BY: Christine E. Munion, Esquire Attorney I.D. No. 72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 2,212 FEB 24 Ph 1: 22 ??U?iEIERLAND A??'ouY Attorney foMNA Y gh of New Cumberland Ralph Hawk and Barbara Hawk COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. Harry Nazzaro NO. 11-8180 Defendant JURY TRIAL DEMANDED Borough of New Cumberland Additional Defendant ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as attorney for Defendant, Borough of New Cumberland, in the above captioned matter. WILLIAN4- . P?'RREN & ASSOCIATES BY: I Not a Partnership or Professional Corporation All Attorneys are Employees of The Travelers Indemnity Company and its Property Casualty Affiliates and Subsidiaries ?,, risti e ? nion, Esquire Attorney for Defendant, Borough of New Cumberland mt` JI:ui tU 23 kit i a? Defendant Christine E. Munion, Esquire WILLIAM J. FERREN & ASSOCIATES BY: Christine E. Munion, Esquire Attorney I.D. No. 72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 NOTICE TO PLEAD TO: PLAINTIFF/DEFENDANT YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER TWENTY (20) DAYS FROM THE SERVICES HEREOF OR A DEFAULT JUDGMEN% MAY BE ENTERED AGAINST YOU. / . Attorney for Defendant, Borough of New Cumberland Ralph Hawk and Barbara Hawk V. Harry Nazzaro Borough of New Cumberland COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 11-8180 JURY TRIAL DEMANDED Additional Defendant DEFENDANT BOROUGH OF NEW CUMBERLAND'S ANSWER TO DEFENDANT, HARRY NAZZARO'S JOINDER COMPLAINT WITH NEW MATTER NOW COMES Additional Defendant Borough of New Cumberland by and through their attorneys Law Offices of William J. Ferren and Associates, by Christine E. Munion, Esquire and in support of its answer and new matter to defendant, Harry Nazzaro's Joinder Complaint states as follows: 1. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in said paragraph, and they are therefore deemed denied. 2. Admitted in part; denied in part. It is admitted only that the Borough of New Cumberland's address is 1120 Market Street, New Cumberland, Cumberland County, Pennsylvania. The remaining averments are denied as they constitute conclusions of law to which no response is necessary and they are therefore denied. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 11. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. Count I - Nee leence Harry Nazzaro v. The BorouO of New Cumberland 12. Paragraph 1 through 11 of defendant's Joinder Complaint are incorporated herein by reference as if set forth in full. 13. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 14. Denied. After reasonable investigation, answering additional defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in said paragraph, and they are therefore deemed denied. 15. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 16. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 17. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 18. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 19. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 20. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. 21. (a)-(f) Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. By way of further reply, answering defendant denies that it was negligent. To the contrary, at all times relevant herein, answering defendant acted reasonably and without negligence. 22. Denied. Answering additional defendant is advised by counsel that the corresponding averments constitute conclusions of law to which no response is necessary and therefore the same are denied. WHEREFORE, answering additional defendant demands judgment in its favor and against all other parties together with interests and costs. NEW MATTER ADDRESSED TO PLAINTIFFS RALPH AND BARBARA HAWK AND DEFENDANT HARRY NAZZARO 23. Answering additional defendant is considered a political subdivision or an agent of a political subdivision whose liability for claims in tort is statutorily prescribed by the Pennsylvania Political Subdivisions Tort Claim Act, 42 Pa. C.S.A. §8542 (hereinafter referred to as "The Act") 24. The Act provides a general grant of immunity to political subdivisions, their departments and employees, when acting within the scope of their office or duties. 25. The Act further provides limited exceptions under which recovery for tort claims may be made against political subdivisions such as defendants. 26. All causes of action are or may be barred or otherwise limited by the Pennsylvania Political Subdivisions Tort Claims Act, 42 Pa. C.S.A. §8241 et seq. 27. All causes of action are barred because the parties have failed to give notice to the additional defendant within the six (6) month statute of limitations as set forth in 42 Pa. C.S.A.§8522. 28. Some if not all of the allegations of negligence are not causes of action that fall within any of the exceptions to the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. §8541 et. seq. 29. Additional defendant had no notice, nor can it be reasonably charged with notice under the circumstances, that a dangerous condition existed at a sufficient time prior to the incident to have taken protective measures. 30. Any benefits received by plaintiff or to which plaintiff may be entitled other than the proceeds from a life insurance policy are deductible from any damages which may be assessed against the defendants. Act of October 5, 1980, P.L. 693, No. 142 §221(e) 42 Pa. 8553 et sm. 31. Any claim against the additional defendant is barred or limited by the Act of October 5, 1980, P.L. 693, No. 142 Pa. C.S.A. §8541 et SeMc . providing governmental immunity. 32. If any injuries and/or damages were sustained by the plaintiff as averred in their Complaint, they were caused in whole or in part by persons other than the additional defendant and over whom the answering defendant had no control and for whose actions answering defendant is not liable. 33. Whatever injuries and damages, if any, were sustained by plaintiff as averred in her Complaint were caused in whole or in part by conditions and circumstances beyond the control of the answering defendant. 34. Plaintiffs' claims are barred or substantially reduced because of plaintiff's failure to act reasonably or timely to mitigate damages. 35. Any negligence of the additional defendant was not a substantial factor in causing the harm complained of by plaintiff. 36. The claims of plaintiff are barred by the appropriate statutes of limitations and repose. 37. Answering Defendant cannot be primarily liable for the alleged injuries of the plaintiffs. 38. Plaintiffs' Complaint and the Joinder Complaint fail to state a cause of action upon which relief can be granted. 39. Additional Defendant was not negligent. 40. Additional Defendant did not cause any alleged, harm, injury or loss. 41. The negligent act or omissions of other individuals or entities constituted superseding, intervening causes of the damages and/or injuries alleged to have been sustained by Plaintiff. 42. Additional Defendant is not responsible for persons, events, circumstances or conditions beyond answering Defendant's control. 43. Plaintiffs' claims may be barred in whole or in part by assumption of the risk. 44. Plaintiffs' claims may be barred in whole or in part, or reduced by Plaintiffs' contributory and/or comparative negligence. 45. Plaintiffs' have not sustained any injuries cognizable under Pennsylvania law as a consequence of answering defendant's alleged action. 46. Plaintiffs' claims are barred because Plaintiff has sustained no injury in fact. 47. Pennsylvania Rule of Civil Procedure 238, pertaining to delay damages, is inapplicable under the facts of the present case, and is unconstitutional and in violation of the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. 48. Without waiver of the above defense, to the extent that delay damages are alleged, any such delay was not caused by Additional Defendant but was caused by another party or by a circumstance not the fault of additional Defendant, and delay damages should not be assessed for same. 49. Plaintiffs' may have entered into a release which bars and/or limited recovery in this action. 50. Plaintiffs' claims may be barred in whole or in part by the doctrine of res judicata and/or collateral estoppel. 51. Plaintiffs' claims, if any, may be reduced and/or limited by any collateral source of compensation and/or benefit. 52. Plaintiffs' have failed to mitigate damages. WHEREFORE, answering Defendant demands judgment in its favor and against all other parties together with interests and costs. NEW MATTER IN THE NATURE OF A CROSS-CLAIM AGAINST DEFENDANT NAZZARO By way of further answer, answering defendants assert the following New Matter in the Nature of a Cross-Claim: 44. The averments in Plaintiffs' Complaint are incorporated by reference herein as if fully set forth at length. 45. If it is determined that Answering Defendant Borough of New Cumberland, is liable to the Plaintiff on any count in Plaintiffs' Complaint, this being strictly denied, then Defendant Harry Nazzaro is solely liable to the Plaintiffs, jointly and severally liable to the Plaintiffs, or liable over to Defendant Borough of New Cumberland, by way of contribution and/or indemnification on plaintiffs' cause of action. WHEREFORE, Answering Defendant, Borough of New Cumberland denies liability and avers that Defendant Harry Nazzaro.is solely liable, and/or jointly and severally liable and/or liable over to it on the cause of action declared upon and demand judgment in its favor. ATES WILLIAM J. FE77 By: Christine . Munion, Esquire Attorney for Defendant, Borough of New Cumberland VERIFICATION I, Stephen C. Sultzaberger, am the Borough Manager for the Borough of New Cumberland, Pennsylvania and state that the facts in Additional Defendant, Borough of New Cumberland's Answer to the Joinder Complaint with New Matter are true and correct to the best of my knowledge, information and belief. This Verification is made with knowledge of the penalties contained in 18 Pa. C.S.A. §4904, relating to unsworn verification to authorities. By: OeAor - SStephefi C. Sultza erger Manager, Borough of New Cumberland Dated: Not a Partnership or Professional Corporation All Attorneys are Employees of The Travelers Indemnity Company and its Property Casualty Affiliates and Subsidiaries WILLIAM J. FERREN & ASSOCIATES BY: Christine E. Munion, Esquire Attorney I.D. No. 72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 Ralph Hawk and Barbara Hawk V. Attorney for Defendant, Borough of New Cumberland COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Harry Nazzaro Defendant NO. 11-8180 JURY TRIAL DEMANDED Borough of New Cumberland Additional Defendant CERTIFICATE OF SERVICE I, Christine E. Munion, Esquire, hereby certify that I have served upon all persons listed below a true and correct copy of Defendant Borough of New Cumberland's Answer to Defendant Harry Nazzaro's Joinder Complaint with New Matter in the above-captioned matter this date by First-Class Mail, postage prepaid to all parties listed below: Thomas L. Isenberg, Jr, Esquire Thomas, Thomas & Hafer, LLP P. O. Box 999 305 North Front Street, Sixth Floor Harrisburg, PA 17108-0999 Michael A. Scherer, Esquire Baric Scherer LLC 19 West South Street Carlisle, PA 17013 WILLIAM J. FERREN & ASSOCIATES By: Christine E. Munion, Esquire Attorney for Additional Defendant Dated: March 20, 2012 THOMAS, THOMAS & HAFER, LLP - ?, ` E' i { U ;°'.) Thomas L. Isenberg, Jr., Esquire PA Attorney ID #76652 PO Box 999 t- Harrisburg, PA 17108-0999 Attornev for Defendant, Harrv Nazzaro RALPH HAWK and 'j 13 E t-\L A `0 C THE COURT OF COMMON PLEAS ?E?_?aN! BARBARA HAWK, Plaintiffs ''PiS Y CUMBERLAND CO., PENNSYLVANIA NO. 11-818o V. CIVIL ACTION - LAW HARRY NAZZARO, Defendant V. BOROUGH OF NEW CUMBERLAND, Additional Defendant DEFENDANT HARRY NAZZARO'S REPLY TO NEW MATTER AND ANSWER TO CROSS-CLAIM OF ADDITIONAL DEFENDANT AND NOW, comes Defendant, Harry Nazzaro, by and through his counsel, Thomas, Thomas & Hafer, LLP, and files the within Reply to New Matter and Answer to Cross-Claim of Additional Defendant, Borough of New Cumberland as follows: 23. Denied. The allegations contained within paragraph 23 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 24. Denied. The allegations contained within paragraph 24 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies same. By way of further answer, the remaining allegations contained within paragraph 24 further relate to or reference a document, the terms, conditions and contents of which speak for itself. 25. Denied. The allegations contained within paragraph 25 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies same. By way of further answer, the remaining allegations contained within paragraph 24 relate to or reference a document, the terms, conditions and contents of which speak for itself. 26. Denied. The allegations contained within paragraph 26 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 27. Denied. The allegations contained within paragraph 27 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 28. Denied. The allegations contained within paragraph 28 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 29. Denied. It is denied that Additional Defendant received no notice that a dangerous condition existed at a sufficient time prior to the incident to have taken protective measures. By way of further answer, Additional Defendant was provided notice of the dangerous condition on numerous occasions prior to the incident which is the subject matter of the within litigation. 30. Denied. The allegations contained within paragraph 30 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 31. Denied. The allegations contained within paragraph 31 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 32 Denied. The allegations contained within paragraph 32 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 33• Denied. The allegations contained within paragraph 33 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. By way of further answer, after reasonable investigation, Defendant Nazzaro is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained within paragraph 33 and strict proof thereof is demanded at time of trial. 34• Denied as stated. The allegations in paragraph 34 are directed to a party other than Defendant Nazzaro and as such, no further response is deemed necessary. 35• Denied. The allegations contained within paragraph 35 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 36. Denied as stated. The allegations in paragraph 36 are directed to a party other than Defendant Nazzaro and as such, no further response is deemed necessary. 37. Denied. The allegations contained within paragraph 37 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 38. Denied. The allegations contained within paragraph 38 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 39• Denied. The allegations contained within paragraph 39 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 40. Denied. The allegations contained within paragraph 40 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 41. Denied. The allegations contained within paragraph 41 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 42. Denied. The allegations contained within paragraph 42 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. By way of further answer, after reasonable investigation, Defendant Nazzaro is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained within paragraph 42. Strict proof thereof is demanded at the time of trial. 43• Denied as stated. The allegations in paragraph 43 are directed to a party other than Defendant Nazzaro and as such, no further response is deemed necessary. 44• Denied as stated. The allegations in paragraph 44 are directed to a party other than Defendant Nazzaro and as such, no further response is deemed necessary. 45• Denied. The allegations contained within paragraph 45 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 46. Denied as stated. The allegations in paragraph 46 are directed to a party other than Defendant Nazzaro and as such, no further response is deemed necessary. 47. Denied. The allegations contained within paragraph 47 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 48. Denied. The allegations contained within paragraph 48 of Additional Defendant's New Matter contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. 49• Denied as stated. The allegations in paragraph 49 are directed to a party other than Defendant Nazzaro and as such, no further response is deemed necessary. 50. Denied as stated. The allegations in paragraph 5o are directed to a parry other than Defendant Nazzaro and as such, no further response is deemed necessary. 51. Denied as stated. The allegations in paragraph 51 are directed to a parry other than Defendant Nazzaro and as such, no further response is deemed necessary. 52. Denied as stated. The allegations in paragraph 52 are directed to a parry other than Defendant Nazzaro and as such, no further response is deemed necessary. WHEREFORE, Defendant, Harry Nazzaro, respectfully requests judgment be entered in his favor and against all other parties to this action. DEFENDANT NAZZARO'S ANSWER TO ADDITIONAL DEFENDANT'S NEW MATTER IN THE NATURE OF A CROSS-CLAIM 44• No response is deemed necessary to paragraph 44 of Additional Defendant's New Matter in the Nature of a Cross-Claim inasmuch as the same does not contain any factual allegations. By way of further answer, however, Defendant Nazzaro incorporates by reference all facts and allegations contained within its Answer and New Matter to Plaintiffs' Complaint as well as its Complaint to Join Additional Defendant by reference as if set forth at length herein. 45• Denied. The allegations contained within 45 of Additional Defendant's New Matter in the Nature of a Cross-Claim contain legal conclusions to which no responsive pleading is required. To the extent a response is deemed necessary, Defendant Nazzaro specifically denies the same. WHEREFORE, Defendant, Harry Nazzaro respectfully requests this Honorable Court to enter judgment in its favor and against all other parties to this action. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP omas L. I nberg, Jr. Esquire A orneys for De en ant Date: April 12, 2012 CERTIFICATE OF SERVICE I, Angela A. Kelly, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing Reply of Defendant to New Matter of Additional Defendant on the following persons by placing same in the United States mail, postage prepaid, and addressed as follows: Michael A. Scherer, Esquire Baric & Scherer, LLC 19 West South Street Carlisle, PA 17013 Christine E. Munion, Esquire William J. Ferren & Associates 1o Sentry Parkway, Suite 301 Blue Bell, PA 19422 THOMAS, THOMAS & HAFER, LLP 6 1 A?? Kelly Date: April 12, 2012 1073131.1