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HomeMy WebLinkAbout13-1148a ~1i ~N ~' ~ f" OM ~' z~ m ~TLILAKIS z~ ~ -vim, ~~ ~ ~~ Jason P. Kutulakis, Esquire ~ .,,,~ Attorney LD. #: 80411 ~ C3 ..0 ~ ~ 2 West High Street ~~ 3 Carlisle, P~ 17013 717 249 0900 ~,C t ~~ ( ) - -°a "' -~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CNIL DIVISION STEPHEN J. GARDNER, Plaintiff v. THOMAS D. DAIHL, JR., Defendants IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA FILENO.: ~3- ~~~8 CNIL ACTION -LAW NOTICE 'I'O PLEAD TO: Thomas D. Daihl, Jr. 130 Pinnacle Drive Newburg, PA 17240 Pro Se Defendant YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO ~~os. ~S P~ A7''`/ 1 e~ 5N39 ~.~~.ByaaY PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Pennsylvania Bar Association Lawyer Referral Service 1-800-692-7375 (I'A ONLY) or 717-238-6715 Respectfully Submitted, ABOM & KUTULAI~IS, LLP Date: ~) . [ J on I . ~utulakis, Esquire orney D # 80411 2 West Hip Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff 2 z IN THE COURT OF COMMON PLEAS CUMBERLANL? COUNTY, PENNSYLVANIA CIVIL DIVISION STEPHEN J. GARDNER, Plaintiff v. THOMAS D. DAIHL, JR., Defendants IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYLVANIA FILE NO.: CIVIL ACTION -LAW TO THE HONORABLE JUDGES OF SAID COURT: COMPLAINT AND NOW, come the Plaintiff, Stephen J. Gardner, by and through his attorney, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings this action against the above- named Defendant to recover damages, attorney fees, and costs, upon the following cause of action: PARTIES 1. Plaintiff, Stephen J. Gardner, is an adult individual who resides at 32 Mitchell Lane, Newburg, Pennsylvania 17240. 2. Defendant, Thomas D. Daihl, Jr., is an adult individual who resides at 130 Pinnacle Drive, Newburg, Pennsylvania. 17240. FACTUAL BACKGROUND 3. Paragraphs one (1) through two (2) are incorporated herein. 4. Plaintiff and Defendant are neighbors who share yards that border one another. 3 5. Plaintiff owns a dog named "Minnie" (hereinafter to be referred to as "dog") who is a champion trained raccoon hunting dog. 6. On the evening of August 15, 2011, Plaintiff was training his dog to hunt on his brother's property. 7. Plaintiff s brother's property consists of 228 acres. 8. Plaintiff s brother's property border's Defendant property. 9. Plaintiff s dog spotted a raccoon and ran off. 10. Plaintiff found his dog about fifty (50) yards onto Defendant's property. 11. Plaintiff did not cause any harm to Defendant property. 12. Plaintiff was unaware he had entered Plaintiff's property. 13. There were not flags or markers to show the appropriate property lines. 14. Plaintiff began to leave Defendant's property. 15. As Plaintiff was leaving the property, the Defendant drove up on an all-terrain vehicle (ATV) to where Plaintiff was standing. 16. Defendant got off his ATV and approached Plaintiff in an aggressive manner. 17. Defendant began screaming and yelling at Plaintiff. 18. Defendant raised his fist to Plaintiff. 19. After raising his fist to Plaintiff, Defendant punched Plaintiff in the face. 20. Defendant admits to hitting the Plaintiff and knocking him down. See, Criminal Trial Transcript, page 72, attached hereto as Exhibit "A". 21. Plaintiff repeatedly attempted to push Defendant away in order to escape. 22. Defendant pushed Plaintiff to the ground. 23. As a result of Defendant forcing Plaintiff to the ground, Plaintiff hit his shoulder on a rock. 4 24. After pushing Plaintiff to the ground, Defendant straddled plaintiff and repeatedly punched Plaintiff in the face. 25. Plaintiff was eventually able to push Defendant off of him. 26. Plaintiff did not cause any harm to the Defendant. 27. Plaintiff called the State Police after reaching safety. 28. Plaintiff did not instigate Defendant. 29. Plaintiffls attack on Defendant was unprovoked. 30. Defendant is a known liar. 31. Defendant admits to lying to the State Police about hitting the Plaintiff. See, Criminal Trial Transcript, page 82, attached hereto as Exhibit "B". 32. Plaintiff suffered from the following injuries as a result of Defendant's actions: a. Bloody left eye; b. Bloody Lip; c. Crown tooth knocked out; d. Pain in shoulder; e. Contusions; f. Fat lower lip; g. Broken tooth; h. Loose upper tooth; and i. Swollen left side of face. See, Pictures, attached hereto as "Exhibit C." 33. On October 13, 2011, Police charged Defendant with Simple Assault as a result of the incident. 34. Plaintiff underwent an extraction of his broken tooth as a result of his injuries from the incident. 5 35. Plaintiff required an implant to replace his broken tooth as a result of his injuries from the incident. 36. Plaintiff missed over 8 days of work as a result of doctors' appointments and surgeries required after the incident. 37. As, a result of Plaintiff's injuries he incurred medical bills to repair damage to his teeth. See, Medical Bills, attached hereto as Exhibit "D". 38. Charges were brought in the Court of Common Pleas, Cumberland County at docket number CP-21-CR-0029522011. See, Docket Sheet, attached hereto as "Exhibit E." 39. On May 2, 2012, Defendant was found guilty of the simple assault charge. See, Docket Sheet, attached hereto as "Exhibit E." COUNT I -BATTERY 40. Paragraphs one (1) through forty one (41) are incorporated herein. 41. Under Pennsylvania law, to establish a claim of battery, Plaintiff must establish that the Defendant intended to cause a harmful or offensive contact to Plaintiff, or an imminent apprehension of such contact in Plaintiff, and that such contact with Plaintiff resulted. Lakits v. York, 258 F. Supp. 2d 401, 407 (E.D. Pa. 2003). 42. Defendant intended to cause harmful or offensive contact to Plaintiff by punching him in the face Defendant intended to cause imminent apprehension of harmful or offensive contact by raising his fist at Plaintiff and punching Plaintiff in the face. 43. Defendant intended to cause harmful or offensive contact to Plaintiff by pushing Plaintiff to the ground. 44. Defendant intended to cause imminent apprehension of harmful or offensive contact by pushing Plaintiff to the ground. 6 45. The conduct of the Defendant was outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Plaintiff Stephen Gardner. 46. The conduct of the Defendant was such that an award of punitive damages is justified. WHEREFORE, the Plaintiff, Stephen J. Gardner, demand judgment in his favor and against the Defendant, Thomas D. Daihl, Jr., in an amount to exceed arbitration limits, bodily injury, lost wages, pain and suffering, punitive damages and other such relief as the Court may direct. COUNT II -ASSAULT 47. Paragraphs one (1) through forty eight (48) are incorporated herein. 48. Under Pennsylvania law, to establish a cause of action for assault Plaintiff must show that Defendant intentionally caused an imminent apprehension of a harmful or offensive bodily contact in Plaintiff. Lakits v. York, 258 F. Supp. 2d 401, 407 (E.D. Pa. 2003). 49. Defendant intentionally caused an imminent apprehension of offensive bodily contact by approaching Plaintiff in an offensive manner by raising his fist at Plaintiff. 50. Defendant intended to cause unmuient apprehension of offensive bodily contact by pushing Plaintiff to the ground. 51. The conduct of the Defendant was outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Plaintiff Stephen Gardner. 52. The conduct of the Defendant was such that an award of punitive damages is justified. . WHEREFORE, the Plaintiff, Stephen J. Gardner, demand judgment in his favor and against the Defendant, Thomas D. Daihl, Jr., in an amount to exceed arbitration limits, bodily injury, lost wages, pain and suffering, punitive damages and other such relief as the Court may direct. COUNT III -INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 53. Paragraphs one (1) through fifty four (54) are incorporated herein. 54. Under Pennsylvania law, to establish a cause of action for intentional infliction of emotional distress Plaintiff must show that Defendant by extreme and outrageous conduct intentionally 7 or recklessly caused severe emotional distress to Plaintiff. Kazatsky v. King David Mem'1 Park, Inc., 515 Pa. 183, 190, 527 A.2d 988, 991 (1987). 55. Defendant's conduct of punching the Plaintiff in the face with no provocation is extreme and outrageous. 56. Defendant's extreme and outrageous conduct caused Plaintiff sever emotional distress. 57. Defendant's extreme and outrageous conduct caused Plaintiff severe physical injury. 58. The conduct of the Defendant was outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Plaintiff Stephen Gardner. 59. The conduct of the Defendant was such that an award of punitive damages is justified. WHEREFORE, the Plaintiff, Stephen J. Gardner, demand judgment in his favor and against the Defendant, Thomas D. Daihl, Jr., in an amount to exceed arbitration limits, bodily injury, lost wages, pain and suffering, punitive damages and other such relief as the Court may direct. COUNT IV -NEGLIGENCE PER SE 60. Paragraphs one (1) through sixty one (61) are hereinafter incorporated by reference. 61. "The concept of negligence per se establishes both duty and the required breach of duty where an individual violates an applicable statute, ordinance or regulation designed to prevent a public harm." Cabiroy v. Scipone, 767 A. 2d. 1078, 1079 (Pa. Super. 2001). 62. Defendant punched plaintiff in the face. 63. Defendant pushed Plaintiff to the ground 64. After pushing Plaintiff to the ground, Defendant straddled plaintiff and repeatedly punched Plaintiff in the face. 65. Defendant was negligent, reckless, and careless by punching and pushing Plaintiff in violation of 18 Pa. C.S.A. ~ 27C11. 66. Defendant knew of should have known punching and pushing Plaintiff would increase the likelihood of causing seriously injury to Plaintiff. 8 67. As a direct and proximate result of the negligence and carelessness of the Defendant, the Plaintiff suffered the following injuries: a. Bloody left eye; b. Bloody Lip; c. Crown tooth knocked out; d. Pain in shoulder; e. Contusions; £ Fat lower lip; g. Broken tooth; h. Loose upper tooth; and i. Swollen left side of face. See, Pictures, attached hereto as "Exhibit C." 68. Plaintiff s conduct was not a contributing factor to the incident on August 15, 2011. 69. Plaintiff did not assume any risk regarding the incident on August 15, 2011. 70. The conduct of the Defendant was outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Plaintiff Stephen Gardner. 71. The conduct of the Defendant was such that an award of punitive damages is justified. WHEREFORE, the Plaintiff, Stephen J. Gardner, demand judgment in his favor and against the Defendant, Thomas D. Daihl, Jr., in an amount to exceed arbitration limits, bodily injury, lost wages, pain and suffering, punitive damages and other such relief as the Court may direct. COUNT V -NEGLIGENCE 72. Paragraphs one (1) through seventy three (73) are hereinafter incorporated by reference. 73. "Negligence is established by proving the following four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages." Grossman v. Barke, 868 A.2d. 561, 566 (I'a. Super. 2005). 9 74. Defendant punched plaintiff in the face. 75. Defendant pushed Plaintiff to the ground 76. After pushing Plaintiff to the ground, Defendant straddled plaintiff and repeatedly punched Plaintiff in the face. 77. Defendant had a duty to not physically attack Plaintiff without provocation. 78. Defendant breached his duty by physically attacking Plaintiff without provocation. 79. As a direct and proximate result of the negligence and carelessness of the Defendant, the Plaintiff suffered the following injuries: a. Bloody left eye; b. Bloody Lip; c. Crown tooth knocked out; d. Pain in shoulder; e. Contusions; £ Fat lower lip; g. Broken tooth; h. Loose upper tooth; and i. Swollen left side of face. See, Pictures, attached hereto as "Exhibit C." 80. Plaintiff s conduct was not a contributing factor to the incident on August 15, 2011. 81. Plaintiff did not assume any risk regarding the incident on August 15, 2011. 82. The conduct of the Defendant was outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Plaintiff Devin Hall. 83. The conduct of the Defendant was such that an award of punitive damages is justified. 10 WHEREFORE, the Plaintiff, Stephen J. Gardner, demand judgment in his favor and against the Defendant, Thomas D. Daihl, Jr., in an amount to exceed arbitration limits, bodily injury, lost wages, pain and suffering, punitive damages and other such relief as the Court may direct. Respectfully Submitted, LLP Date: March 1, 2013 ~ son Y.y~utulaKis, t; ttorney ID # 80411 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaint 11 VERIFICATION I, Stephen J. Gardner, verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S.A. X4904, relating to unsworn falsification to authorities. ~6 't7 aor3 Date Stephen . Ga er 12 out with both hands to push him back. When I did he started swinging. I hit him once and knocked him down. I told him to get off my property and leave me be. I turned around to walk away and he tackled me. Q So you offered him the opportunity to then retreat? A Yes. Q And he persisted into attacking you? A Yes. He grabbed me under the knees and tackled me to the ground. Q what happened after he took you to the ground? A I fell on my face, so I had to roll around. As I was rolling around, he got up on top of me. He said now you are going to get yours and started swinging. I started hitting back and knocked him off again. I went to get up again, and he grabbed both my knees again. He was holding me at both knees. I kept hitting him on the side of the face and telling him to let go and get out of here, and he would not. Finally I said enough. I am not hitting you anymore. Let go of my legs and get out of here. He got up. I got up. I went over to pick up my hat and he tried to kick me in the face. Q So you gave him ample opportunity to leave your property? 72 when we were attempting to come home. Q Is your wife here today? A No. She is not. Q So on August 15th of last year, that's the first time you and the victim ever had a physical fight? A Yes. Q When you met with the trooper, you denied being in any physical fight with Mr. Gardner, didn't you? A Yes. Q And that's a lie? A No. It wasn't a lie. I denied the charges that the trooper said that I had come flying up there in a four-wheeler and coldcocked him. That is what I denied. Q But you actually denied any physical contact with Mr. Gardner, didn't you? A I told him I wasn't confessing to anything. Q But not only did you not confess, you actually said that that didn't happen. I didn't have a physical fight with him, right? A Yes. I might have said that. Q And that's a lie, right? A Yes. Q You actually told the trooper, well maybe it was one of these mysterious drug dealers who beat him up and caused those injuries, right? 82 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DOCKET Docket Number: CP-21-CR-0002952-2011 CRIMINAL DOCKET Court Case Commonwealth of Pennsylvania Page 1 of 7 v. Thomas Dallas Daihl Jr. CASE INFORMATION Cross Court Docket Nos: MJ-09301-CR-0000386-2011 Judoe Assioned: Date Filed: 10/13/2011 Initiation Date: 08/22/2011 OTN: 70824762 Lower Court Docket No: MJ-09301-CR-0000386-2011 Initial Issuing Authority: Brenda M. Knepper Final Issuing Authority: Brenda M. Knepper Arresting Agency: Carlisle Psp Arresting Officer: Long, Matthew D. Case Local Number Type(s) Case Local Number(s) STATilS IN~RMAT40N Case Status: Closed Status Date Processing Status Complaint Date: 08/22/2011 06/19/2012 Sentenced/Penalty Imposed 05/02/2012 Awaiting Sentencing 12/15/2011 Awaiting Pre-Trial Conference 10/13/2011 Awaiting Formal Arraignment 10/13/2011 Awaiting Filing of Information 10/13/2011 Awaiting ARD Hearing <' CALENiflAR~Efi~fTS Case Calendar Event Schedule Start Room Judge Name Schedule Type Start Date Time Status Formal Arraignment 12/15/2011 9:00 am Jury Assembly Scheduled Room Pre-Trial Conference 01/12/2012 1:30 pm 4th Floor Moved Pre-Trial Conference 02/23/2012 1:30 pm 4th Floor Scheduled Trial 03/05/2012 9:00 am 4th Floor Scheduled Pre-Trial Conference 04/19/2012 9:00 am 4th Floor Scheduled Trial 04/30/2012 9:00 am 4th Floor Scheduled Sentencing . 06/05/2012 1:30 pm Courtroom 1 Judge Albert H. Masland Moved Sentencing 06/19/2012 1:30 pm Courtroom 1 Judge Albert H. Masland Scheduled bEFENDANT iNFflRMATION~ Date Of Birth: 07i2G,1963 City/StateiZip Newburg, PA 17240 CASE PARTICIPANTS Participant Tvpe Name Defendant Daihl, Thomas Dallas Jr. AOPC 9062 -Rev 0211 3/2 0 1 3 Printed: 02/13/2013 Recent entries made in the court filing offices may not be immediately reflected on these docket sheets .Neither the courts of the U System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccu data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background c only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY .DOCKET' Daihl, Thomas Dallas Jr. Bail Action Date Commonwealth of Pennsylvania v. Thomas Dallas Daihl Jr. BAIL lNFORNlATION Bail Tvpe Percentage Docket Number: CP-21-CR-0002952-2011 CRIMINAL DOCKET Court Case Page 2 of 7 Nebbia Status: None Amount Bail Posting Status Posting Date Set 10/11/2011 Unsecured $5,000.00 CHARGES Sep. Orig Sep. Grade Statute Statute Description 1 1 M2 18 § 2701 §§A1 Simple Assault DISPOSITION SENTENCNGIPENAI_TIES Disposition Case Event Sequence/Description Sentencing Judge Sentence/Diversion Program Tvpe Sentence Conditions Linked Offense -Sentence Waived for Court (Lower Court) Lower Court Disposition 1 /Simple Assault Proceed to Court Information Filed 1 /Simple Assault Guilty Defendant Was Present Trial 1 /Simple Assault Masland, Albert H. Probation Anger Mgmt. Offense Dt. OTN 08/15/2011 T0824762 Disposition Date Final Disposition Offense Disposition Grade Section Sentence Date Credit For Time Served Incarceration/Diversionary Period Start Date Link Tvpe Linked Docket Number Defendant Was Present 10/11/2011 Not Final Waived for Court (Lower Court) M2 18§2701 §§A1 12/13/2011 Held for Court 05/02/2012 Guilty 06/19/2012 Min of 12.00 Months Max of 12.00 Months Other Not Final M2 18§2701§§A1 Final Disposition M2 18§2701§§A1 06(19/2012 AOPC 9082 -Rev 02/132013 Printed: 02/13!2013 Recent entries made in the court filing offices may not be immediately reflected on these docket sheets .Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DOCKET Docket Number: CP-21-CR-0002952-2011 CRIMINAL DOCKET Court Case -COMMONWEALTH INFORMATfON Name: Christin J. Mehrtens-Carlin District Attorney Supreme Court No: 200361 Phone Number(s): (717)240-6467 (Phone) Address: One Courthouse Square Carlisle PA 17013 Sequence Number CP Filed Date 1 10/13/2011 Commonwealth of Pennsylvania Page 3 of 7 v. Thomas Dallas Daihl Jr. ATTORNEY INEORMAT~ON Name: Stephen Russell Maitland Private Supreme Court No: 204853 Rep. Status: Active Phone Number(s): Address: 421 Cherokee Dr Mechanicsburg PA 17050 Representing: Daihl, Thomas Dallas Jr. - ~ "EN~"RfES Document Date Original Papers Received from Lower Court 2 12/13/2011 Information Filed 1 12/15/2011 Entry of Appearance Filed By Court of Common Pleas -Cumberland County Commonwealth of Pennsylvania Maitland, Stephen Russell 2 12/15/2011 Maitland, Stephen Russell Acknowledgment of Arraignment, filed. You and your attorney are directed to appear for PTC on 2/23/12 at 1:30 PM and to appear 3/5112 at 9:00 AM for Trial. 2 02/23/2012 Hess, Kevin A. Pre-trial Order, filed 2/23/12. In re: Trial The parties having indicated the case is ready for trial. The defendant is directed to appear for trial on 3/5/12 at 9:00 am. 2/23/12 copies by CA 1 03/08/2012 03/07/2012 Ebert, M. L. Jr. Order of Court, filed 3/7/12. In re: Continuance The defendant is directed to appear for pretrial conference on 4/19/12 at 9:00 am and for trial on 4/30/12 at 9:00 am. 3/8/12 copies mailedldelivered AOPC 9082 -Rev 02/13/2013 Prinfed: 02!1312013 Recent entries made in the court filing offices may not be immediately reflected on these docket sheets .Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DOCKET. Commonwealth of Pennsylvania v. Thomas Dallas Daihl Jr. Docket Number: CP-21-CR-0002952-2011 CRIMINAL DOCKET Court Case Page 4 of 7 ENTRIES Seouence Number CP Filed Date Document Date Filed By 2 04/19/2012 Ebert, M. L. Jr. Pretrial Order, filed 4/19/12. In re: For Trial The parties having indicated the case is ready for trial. The def. is directed to appear for trial on 4/30/12 at 9:00 am. 1 05/02/2012 Masland, Albert H. Guilty 2 05/02/2012 Masland, Albert H. Verdict Slips, filed 5/2/12. 14 jurors May 2, 2012 Christin Mehrtens Carlin Attorney for the Commonwealth Stephen Maitlin Attorney for Defendant Honorable Albert H. Masland Court Room 1 1 05/03/2012 05/02/2012 Masland, Albert H. Order of Court, filed 5/2/12. In Re: Defendant Found Guilty . ~ We direct the defendant to appear for sentencing on 6/5/12 at 1:30 PM. 5/3/12 -copies delivered/mailed. 1 05/18/2012 Maitland, Stephen Russell Request for Production of Transcript, Filed. 1 05/23/2012 Masland, Albert H. Order of Court, filed 5/23/12. In Re: Request for Production of Transcript It is hereby ordered that Stephen Maitland, Esquire, be furnished a copy of the Trial transcript with costs to the defendant. 5/23/12 -copies delivered 1 06/04/2012 Masland, Albert H. Order of Court, filed 6/4/12. The sentencing scheduled for 6/5112 is cancelled and defendant is ordered to appear for sentencing on 6/19/12 at 1:30 PM, in ctrm 1. 6/5/12 -copies delivered/mailed. AOPC 9082 -Rev 02/13/2013 Printetl: 02/13/2013 Recent entries made in the court riling offices may not be immediately reflected on these docket sheets .Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record Information Act may be subject to civil liability as set forth in 1 B Pa.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DOCKET Docket Number: CP-21-CR-0002952-2011 CRIMINAL DOCKET Court Case Commonwealth of Pennsylvania Page 5 of 7 v. Thomas Dallas Daihl Jr. ENTRIE'S Sequence Number CP Filed Date Document Date Filed By 1 06/11/2012 05!02/2012 Masland, Albert H. Proceedings, filed 5/2112. In Re: Jury Trial Proceedings. Proceedings held before the Honorable Albert H. Masland, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on May 2, 2012, in Courtroom Number One. 1 06/19/2012 Masland, Albert H. Order -Sentence/Penalty Imposed 1 06/20/2012 Court of Common Pleas -Cumberland County Penalty Assessed 1 06/27/2012 06/19/2012 Masland, Albert H. Sentence Order of Court, filed 6!19/12. 6/27/12 -copies delivered/mailed 1 07l02/2012~ Daihl, Thomas Dallas Jr. Penalty Satisfied 1 07/18/2012 Cumberland County DistrictAtt Guideline Sentence Form AOPC 9082 -Rev 02/13/2013 Printed: 02/13/2013 Recent entries made in the court filing offices may not be immediately reflected on these docket sheets .Neither the wurts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DOCKET. CostslFees Docket Number: CP-21-CR-0002952.2011 CRIMINAL DOCKET Court Case Commonwealth of Pennsylvania Page 6 of 7 v. Thomas Dallas Daihl Jr. CASEFINANCIAL lNF4RMATION - Last Payment Date: 07/02/2012 Total of Last Payment: -$650.52 Daihl, Thomas Dallas Jr. Assessment Payments Adjustments Non Monetary Total Defendant Payments Sheriff Costs (Cumberland) $18.45 -$18.45 $0.00 $0.00 $0.00 Sheriff Costs (Cumberland) $6.45 -$6.45 $0.00 $0.00 $0.00 State Court Costs (Act 204 of 1976) $11.00 -$11.00 $0.00 $0.00 $0.00 Commonwealth Cost - H6627 (Act 167 $9.40 -$9.40 $0.00 $0.00 $0.00 of 1992) County Court Cost (Act 204 of 1976) $30.60 -$30.60 $0.00 $0.00 $0.00 Crime Vctims Compensation (Act 96 $35.00 -$35.00 $0.00 $0.00 $0.00 of 1984) Domestic Violence Compensation (Act $10.00 -$10.00 $0.00 $0.00 $0.00 44 of 1988) Victim Witness Service (Act 111 of $25.00 -$25.00 $0.00 $0.00 $0.00 1998) Firearm Education and Training Fund $5.00 -$5.00 $0.00 $0.00 $0.00 (158 of 1994) District Attorney (Cumberland) $38.00 -$38.00 $0.00 $0.00 $0.00 Administrative Fee (Cumberland) ~ $45.00 -$45.00 $0.00 $0.00 $0.00 Sheriff Costs (Cumberland) $1.50 -$1.50 $0.00 $0.00 $0.00 Automation Fee (Cumberland) $5.00 -$5.00 $0.00 $0.00 $0.00 Jury/Non-Jury Fee (Cumberland) $225.00 -$225.00 $0.00 $0.00 $0.00 Non DUI Central Processing Cost $200.00 -$200.00 $0.00 $0.00 $0.00 (Cumberland) Costs of Prosecution - CJEA $50.00 -$50.00 $0.00 $0.00 $0.00 Judicial Computer Project $8.00 -$8.00 $0.00 $0.00 $0.00 ATJ ~ $3.00 -$3.00 $0.00 $0.00 $0.00 CJES $2.25 -$2.25 $0.00 $0.00 $0.00 JCPS $10.25 -$10.25 $0.00 $0.00 $0.00 OSP (Cumberland/State) (Act 35 of $270.00 -$270.00 $0.00 $0.00 $0.00 1991) OSP (Cumberland/State) (Act 35 of $270.00 -$270.00 $0.00 $0.00 $0.00 1991) Costs/Fees Totals: $1,278.90 -$1,278.90 $0.00 $0.00 $0.00 Fines AOPC 9082 -Rev 02/13/2013 Printed: 02/13/2013 Recent entries made in the court filing offices may not be immediately reflected on these docket sheets .Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record Information Ad may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DOCKET Daihl, Thomas Dallas Jr. Defendant Crimes Code, etc. Fines Totals: Restitution CVC Board Restitution Restitution Totals Grand Totals '" -Indicates assessment is subrogated Docket Number: CP-21-CR-0002952-2011 CRIMINAL DOCKET Court Case Commonwealth of Pennsylvania v. Thomas Dallas Daihl Jr. CASE FINANCIAL INI=ORMATION Assessment Pavments Adjustments $200. 00 -$200.00 $0. 00 $200. 00 -$200.00 $0. 00 $650. 52 -$650.52 $0. 00 $650. 52 -$650.52 $0. 00 $2,129. 42 -$2,129.42 $0. 00 Page 7 of 7 Non Monetary Total Pavments $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 AOPC 9082 -Rev 02/13!2013 Printed: D2/13/2013 Recent entries made in the court filing offices may not be immediately reflected on these docket sheets . Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. (~/$/pharmacy' 702 E. KING ST.; SHIPPENSBURG I'H lr?!.,` PHARMACY: 530--1901 STORE: r~30 161?? REGa06 TP.N#6253 i'SHRU002583'~ SlRri57?~, ExtraCa~ e L"ard #: ~*+t*px~x?3y F 1 RX # : x ~ _ ~ ;,0000 2 69hJ F 1 RX q: .I; 10000 3.97N 2 ITEh1S Survey ID # 9910 11 ~0 8901 991 23 TOTAL 6.61 CASH 20.61 CHANGE 19 00 2505 7262 1986 25311 bi RETURNS WITH RECEIPT THRU {)9/14/2012 JULY 16, 2012 10 2t~ AM F=FLEXIBLE SPENDING RCCT SUMMAFIY (t=`_iA) Prescription Eti9ible Tot~jl ~; ~;i if*i41fiE*)flFlf3EMif*~f***lEMNiflE*1Ek~#iE#it~1iE#*#K~ ' FSA summary above includes items (and tax) that may be elisible for F1~,n reimbursement. Restrictions me•. ~ANIu CiJRR7E € H~CH i iMFLA1V i FE. EST1~ilATE ~- //';f~.~ -_-:~-~~ i~=- P~,cSc ~ I i a~Ticll~ P,cii ,'', .~,?~ ~L J ~c~-_ ~- ?,adiccs~pns: ~_ _` yore;: (~C~~S-Dp3~u1 - /, i-'i"luc I~ Irc~'~i7c^:^i Plarl -J.'cL~ICn ~ -r uv~rl Y'-~-1,~_J' - ~ DD ' 1~,1_m'~~ran~ (D=',BSc,, Slnu~ I,-, -.. InrU :`i=CiSc'TiG,TiV/iTilrll Si:iU~ lii~ ~~~~/?O ~i i~v~c n JIG,~~.r7 t~.5i1C ~l~~~Oi ~<U0: .-~~. ~cC10=rc~iilC Sl~.nl (~~85'7i S Ir nJ~cn~ JUr~c `/ (Q~r lii"171=^,?): ill cXllie / 1~'~enCII GIE (~Gip~ pf ~ ~ ~ ~~ "-- Int_yntion i ~~ing " .-.~u~.men/,<_ep_rs per uni~ i _mpor-_ry Crown/=lipp_r (DS8 %0/~2~7pj Genral Ar~~sh=_siz (D9%20j 5 Phase ill Tr=ztm2nt Plan: Irnriznt UiiCO`l~rlrl~. C`e IrICiL'OcC In lh~ I(ilpicn~ Tce ?I.=s=_ ncte:7he =_ra~ ree tct=_I grill d=_cend upon specrc serric=_s providad acd may'o=_ Wore or less than stimated.T'r.is estivate u v31id data and ray lncr-__se .or serric_s prcvid=_d azer that tin=_. Iand=_r-nd that a li'a>_s vrili b=_ due she day c~ scrr,c2. .or six nonce^s rron this Orgina! copy liven to patient =_t time o. appoint,-lent. Pati=_nt Si :a_ur=_ /date: "i UNITED CONCORDIA DENTAL PREDETERMINATION NOTIFICATION KEEP FOR YOUR RECORDS NNN.000I.COM DENTAL CUSTOMER P.O. BOX 69420 HARRISBURG PA PROCEDURE DESCRIPTION NUM PROCEDURE CODE OF PROVIDERS ALLONANCE APPROVED AMOUNT REMARKtSI *TOOTH NUMBER/SURFACE5* SVCS CHARGE AMOUNT NOT APPROVED PREFAB IMPLANT ABUTMENT 001 580.00 .00 .00 580.00 U5002A D6056 *10* IMP ABT POR/HIGH NOBLE CR 001 958.00 .00 .00 958.00 U5002A D6059 *10* TOTALS I .OOI .OOI SERVICE 17106-9420 THE APPROVED AMOUNT IS SUBJECT TO THE TERMS OF THE BENEFICIARY'S COVERAGE IN EFFECT ON THE DATE OF RECEIPT AND MAY CHANGE IF "fIIE CONTRACT OR TtiE PROPOSED TREATMENT PLAN CHANGES. THE AMOUNT PAID MAY BE LESS THAN SHOWN IF BENEFITS ARE PAYABLE UNDER ANOTHER PLAN WHICH 15 PRIMARY- WHEN TREATMENT IS COMPLETED YOUR DENTIST MAY REQUEST PAYMENT BY SUBMITTING THE PROVIDER COPY OF THIS FORM OR BY CALLING TtiE INTERACTIVE VOICE RESPONSE SYSTEM (IVR) Any personally identifiable health information about the members enrolled dependents is protected by the Health Insurance Portability and Accountability Act of 1996 and other privacy laws. In accordance with those laws, United Concordia may use and disclose Protected Health lnformation for treatment, payment and health care operations as described in its Notice of Privacy Practices. If you are covered by more than one health benefit plan, you should file all your claims with each plan. UNITED CONCORDIA P O. Box 69407 Harrisburg, PA 17106-9407 GLORIA J GARDNER 32 MITCHEL LN NEWBURG PA 17240 HAVE A QUESTION? PLEASE CALL 1-888-320-3321 Business Hours: Sam-8pm E.T. Service for the Deaf via TDD Equipment is available at 1-800-345-3837. THIS IS NOT A BILL PD012625 Current Dental Terminology © American Dental Association UNITED CONCORDIA DENTAL N1tM . UCCI . cOM PREDETERMINATION DENTAL cusronER SERVICE NOTIFICATION P.O. BOX 69420 HARRISBURG PA 17106-9420 KEEP FOR YOUR RECORDS Page: 2 OF 2 Claim Number: 12207238267 U5002A No payment can be made. The patient's coverage does not provide for this Prosthetic Dental service. ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE COMPANY OR OTHER PERSON FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF CLAIM CONTAINING ANY MATERIALLY FALSE INFORMATION OR CONCEALS FOR THE PURPOSE OF MISLEADING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO COMMITS A FRAi.1T~t Il FNT II\ICt IR ANCF n CT, ~x~u1~H IS p CRIME AND SUBJECTS SUCH PERSON TO CRIMINAL. AND CIVIL PENALTIES. AZ: For your protection Arizona law requires the following statement to appear on this form. Any person who knowingly presents a false or fraudulent claim for payment of loss is subject to crinunal and civil penalties. CA: For your protection California law requires that the following appear on the form: Any person who knowingly presents a false claim for the payment of a loss is guilty of a crime and may be subject to fines and confinement in state prison. FL: Any person who knowingly, and with intent to injure, defraud, or deceive any insurer files a statement of claim or an application containing any false, incomplete or misleading information is guilty of a felony in the third degree. NJ: Any person who knowingly files a statement of claim containing any false or misleading information is subject to criminal and civil penalties. NY: Any person who knowingly and with intent to defraud any insurance company or other person files an application for insurance or statement of claim containing any materially false information, or conceals for the purpose of misleading, information concerning any fact material thereto, commits a fraudulent insurance act, which is a crime, and shall also be subject to a civil penalty not to exceed five thousand dollars and the stated value of the claim for each such violation. D.C., LA, & RI: Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or knowingly presents false information in an application for insurance is guilty of a crime and may be subject to fines and confinement in prison. VA: Any person who with the intent to defraud or knowing that he is facilitating a fraud against an insurer, submits an application or files a claim containing a false or deceptive statement may have violated the state law. TN & WA: It is a crime [o .knowingly provide false, incomplete or misleading information to an insurance company for the purpose of defrauding the company. Penalties include imprisonment, fines and denial of insurance benefits. IN & OK: WARNING: Any person who knowingly, and with intent to injure, defraud or deceive any insurer, makes any claim for the proceeds of~ an insurance policy containing any false, incomplete or misleading information is guilty of a felony. KY: Any person who knowingly and with intent to defraud any insurance company or other person files a statement of claim containing any materially false information or conceals, for the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime. THIS iS NOT A BILL PD012825 Current Denta! Terminology ©American Dental Association IIGHNI/~RK: BLUE SHIELD rrr lrrrl•yr..rJe.rf Ilrerr>.:e "l rlr. (!lua r,,,. and Clue ~nn.l.l.a» crar,.~n AUGUST 14, 2012 Page 2 of 2 Need Help? Call 1-888-301-9273 - -. Me-nber Service _~ Member Service: 1-888-301-9273 If a claim has been denied in whole or in part, please refer to the Administration section of your Benefit Booklet for additional information. You have the right to request a review of a denied claim. To appeal a claim, file a WRITTEN OR ORAL APPEAL WITHIN 60 DAYS AFTER RECEIVING THE EXPLANATION OF BENEFITS STATEMENT. If you have any questions or want to file an oral appeal, please contact our Member Service Department at the telephone number identified above. Written appeals can be submitted to us at: Highmark Blue Shield P.O. Box 890178 Camp Hill, PA 17089-0178 Attention: Review Committee (TTY services via 1 - 800 - s62 - 0591 for the hearing and speech impaired.) If you suspect fraud or abuse involving your health insurance, please call the toll-free fraud or abuse hotline at 1-800-438-2478. .. i1N011036 011036 0002 0002 i UNITED CONCORDIA DENTAL EXPLANATION OF BENEFITS KEEP FOR YOUR TAX RECORDS A8032 No payment can be made. Our records show that this tooth was already extracted. Subscriber: GLORIA J GARDNER ID Number: XXXXXXXXX Page: 1 of Patient: STEPHEN J GARDNER Claim Number: 12212344527 Bate: 08/09 Provider: CURRIE AND HECHT ORAL AND MAXILL (000116673) PROCEDURE DESCRIPTION PROCEDURE CODE SERVICE PROVIDER'S ALLOWANCE AMOUNT PAID Ah10UNT REMARKS (NUMBER OF SERVICES) DATE(S) CHARGE NOT PAID *TOOTH DESCRIPTION* EXTRACTION (001) 07/16/12 125.00 .00 .00 125.OD A8032 D7140 *10* TOTALS 125.00 .00 .00 125.00 You can view or print a copy of our Health Insurance Portability and Accountability Act of 1996 (HIPAA) Notice of Privacy Practices by visiting our website at www.ucci.com and clicking on the HIPAA Privacy Notice button or by calling 1-866-215-2352 {,toll tree) to request a paper copy. If you are covered by more than one health benefit plan, you should file all your claims with each plan. www.uccl.coM DENTAL CUSTOMER SERVICE P.O. BOX 69420 HARRISBURG PA 17106-9420 UNITED CONGORDIA PO Box 69407 HARRISBURG, PA 17106-9407 GLORIA J GARDNER ~: 32 MITCHEL LN NEWBURG PA 17240 HAVE A QUESTION? PLEASE CALL 1-800-332-0366 Business Hours: Sam-8pm E.T. Service for the Deaf via TDD Equipment is available at 1-800-345-3837. THIS IS NOT A BILL DN049129 1105-S Current Dental Terminology © American Dental Association 035034 ` UNITED CONCORDIA DENTAL EXPLANATION OF BENEFITS KEEP FOR YOUR TAX RECORDS Subscriber: GLORIA J GARDNER ID Number: XXXXXXXXX Page: 2 of Patient: STEPHEN J GARDNER Claim Number: 12212344527 Date: 08/09/7 Provider: CURRIE AND HECHT ORAL AND MAXILL (000116673) Services not shown on this Explanation of Benefits are being processed on a separate claim. You will be notified when processing is complete. THIS IS NOT A BILL 1105-S Current Dentai Terminology © American Dental Association DN049129 UNITED CONCORDIA DENTAL WWW. UCCI . COM EXPLANATION OF BENEFITS DENTAL CUSTOMER SERVICE P.O. BOX 69420 KEEP FOR YOUR TAX RECORDS HARRISBURG PA 17106-9420 Subscriber: GLORIA J GARDNER ID Number: XXXXXXXXX Patient: STEPHEN J GARDNER Claim Number: 12692222431 Provider: CURRIE AND HECHT ORAL AND MAXILL (000116673) Page: 1 of Date: 07/12 PROCEDURE DESCRIPTION PROCEDURE CODE SERVICE PROVIDER'S ALLOWANCE AMOUNT PAID AMOUNT REMARKS (NUMBER OF SERVICES) DATE(S) CHARGE NOT PAID *TOOTH UESCRIPTION~ CONE BEAM CT 3 DIMENSION (001) 07/09/12 80.00 .00 .00 80.00# U5002A D0363 CONSULTATION -(001) 07/09/12 70.00 70.00 70.00 .00 D9310 TOTALS 150.00 70.00 70.00 80.00 U5002A Na payment can be made. The patient's coverage does not provide for this Diagnostic Dental service. You can view or print a copy of our Health Insurance Portability and Accountability Act of 1996 (HIPAA) Notice of Privacy Practices by visiting our website at www.ucci.com and clicking on the HIPAA Privacy Notice button or by calling 1-866-215-2352 (toll tree) to request a paper copy. If you are covered by more than one health benefit plan, you should file all your claims with each plan. UNITED CONCORDIA PO Box 69407 HARRISBURG, PA 17106-9407 GLORIA J GARDNER 32 MITCHEL LN NEWBURG PA 17240 HAVE A QUESTION? PLEASE CALL 1-888-320-3321 Business Hours: Sam-8pm E.T. Service for the Deaf via TDD Equipment is available at 1-800-345-3837. THIS IS NOT A BILL 1105-S Current Denta! Terminology (~ American Dental Association DN059097 UNITED CONCORDIA DENTAL EXPLANATION OF BENEFITS KEEP FOR YOUR TAX RECORDS Subscriber: GLORIA J GARDNER ID Number: XXXXXXXXX Page: 2 of ; Patient: STEPHEN J GARDNER Claim Number: 12692222431 Date: 07/12/1; Provider: CURRIE AND HECHT ORAL AND MAXILL (000116673) # This Provider has agreed to accept the contracted Maximum Allowable charge as payment in full for non covered services. These services were performed by a Participating Provider. The Provider has been paid the amount shown in the AMOUNT PAID column. PATIENT SUMMARY FOR: Patient Name: STEPHEN J GARDNER Identification Number: XXXXXXXXX(002) Benefit Period: 01/01/12 - 12/31/12 Coverage: Dental Group Number: 846525-000 For this benefit period, $70.00 has been applied to your 51,000.00 individual program dollar maximum. THIS IS NOT A BILL DN059097 1105-S Current Dental Terminology © American Dental Association ~ IGHMnRK. BLUE SHIELD „~ o~d..~,.,,d.,~, u<r,~s,~ .., ~,~r e~~,. _. ,...,.d ei„r smrm x.,,,~,,m„~ AUGUST 14, 2012 Page 1 of 2 Explanation of Benefits Need Help? Call 1-888-301-9273 THIS IS NOT A BILL Contract Holder Name: GLORIA J GARDNER Member ID: 112454650001 Grou Name; PENNSYLVANIA EMPLOYEES BENEFIT TRUST Grou ID: 025364.000 i?~lr~atfit'iACt,S.kliY~ ...'F.CFA:.::~`~~.`PE3.EN.:.ic3.iJt'iA~Di1FEcR.:::;;::::;::?::~:i:::i~:•>i;::::>:::2::::i?:i`<:?::;i:: Claim Number: 12223567329 ss£~fPI;AIVFLTZC7IV? P,T A`:GL~iNCE. Date of Service: 07/16/12 Provider: CURRIE AND HECHT ORAL AND MAXILLOFACIAL A Preferred Provider - Provider May Bill You (If Not Alread Paid): $ 1,600.00 Member Responsibility Provider Date of Service Provider's Charge rt Crud ;: Plan Allowance ry74~tlrit au .; Utt+te Provider ;; See Remarks Type of Service C~ta?i'ge5 ;: (Covered . ;(:7~ot;;#;~! .. ? Service Code . Charges) : 3tiat#~d Number of Services •• URRIE AND HECHT ORAL 1600.00 i j`#6{kfk:;4kEki; 0.00 i ii :i;2;fiQL~;DE~i; U5126 07/16/12 NDOSTEAL IMPLANT ~ p6010 (1) Explanation of Remark Codes. 5126 - The dental service reported is eligible only if it is a direct result of an accident. The reported service would not be performed in conjunction with an accidental injury. Therefore, no payment can be made for this service. e provide administrative claims payment services only and do not assume any financial risk or obligation regarding claims. Vstt Our Webs€fe For online member service, view or update other insurance information, check eligibility or claims status, logon to our website at: www.highmark.com VN011036 We are going Green.... Please remember that you can always view EOBs for all of your claims on the website. You can also choose to begin receiving all of your EOBs online by signing up for "Go Paperless." Simply go to the website and log in. Under "Quick Resources," click on "Go Paperless." i IGHMnRK„ BLUE SHIELD ~, r~~dh,~„dnrc ua.,,~.~ „rmt urn.-a„» ~~d erg,. srndd a..~~i,n,~~~ Camp Hill, PA 17089-0089 #BWNDBQH #OCS8875453496213# t~ GLORIA J GARDNER 32 MITCHEL LN NEWBURG PA 17240 , :~ VN01103 O11U36 nnni nnr ' UNITED CONCORDIA DENTAL www.uccl .coM EXPLANATfON OF BENEFITS DENTAL CUSTOMER SERVICE P.O. BOX 69420 KEEP FOR YOUR TAX RECORDS HARRISBURG PA 17106-9420 Subscriber: GLORIA J GARDNER Patient: STEPHEN J GARDNER ID Number: XXXXXXXXX Page: 1 of Claim Number: 12212344527 Date: 08/04/ Provider: CURRIE AND HECHT ORAL AND MAXILL (000116673) PROCEDURE DESCRIPTION PROCEDURE CODE .SERVICE PROVIDER'S ALLOWANCE AMOUNT PAID AMOUNT REMARKS (NUMBER OF SERVICES) DATE(S) CHARGE NOT PAID *TOOTH DESCRIPTION* EXTRACTION (0011 07!16/12 125.00 .00 .00 125.00 A8032 D7140 *10* TOTALS 125.00 .00 .00 125.00 A8032 No payment can be made. O.ur records show that this tooth was already extracted. You can view or print a copy of our Health Insurance Portability and Accountabi-ity Act of 1996 (H1PAA) Notice of Privacy Practices by visiting our website at www.ucci.com and clicking on the HIPAA Privacy Notice button or by calling 1-866-215-2352 (toll free) to request a paper copy. [f you are covered by more than one health benefit plan, you should file ail your claims with each plan. U~TED CONCORDIA PO Box 69407 HARRISBURG, PA 17106-9407 GLORIA J GARDNER 32 MITCHEL LN NEWBURG PA 17240 . ~~ HAVE A QUESTION? PLEASE CALL 1-800-332-0366 Business Hours: Sam-8pm E.T. Service for the Deaf via TDD Equipment is available at 1-800-345-3837. THIS IS NOT A BILL DN049129 1105-S Current Dental Terminology © American Dental Association 035034 ~ 1.1N6TED CONCOR®!A DENTAL EXPLANATION OF BENEFITS KEEP FOR YOUR TAX RECORDS Subscriber: GLORIA J GARDNER ID Number: XXXXXXXXX Page: 2 of Patient: STEPHEN J GARDNER Claim Number: 12212344527 Date: 08!09/ Provider: CURRIE AND HECHT ORAL AND MAXILL (000116673) Services not shown on this Explanation of Benefits are being processed on a separate claim. You will be notified when processing is complete. THIS IS NOT A BILL DN049129 1105-S Current Dental Terminology © American Dental Association ^ UNITED CONCORDIA DENTAL EXPLANATION OF BENEFITS KEEP FOR YOUR TAX RECORDS WWM.000I.COM DENTAL CUSTOMER SERVICE P.O. BOX 69420 HARRISBURG PA 17106-9420 Subscriber: GLORIA J GARDNER Patient: STEPHEN J GARDNER Provider: CURRIE AND HECHT ORAL AND MAXILL (000116673) ID Number: XXXXXXXXX Page: 1 of Claim Number: 12692222431 Date: 07/12/ PROCEDURE DESCRIPTION PROCEDURE CODE SERVICE PROVIDER'S ALLOWANCE AMOUNT PAID AMOUNT REMARKS (NUMBER OF SERVICES) DATE(S) CHARGE NOT PAID *TOOTH UESCRIPTION* CONE BEAM CT 3 DIMENSION (001) 07/09/12 80.00 .00 .00 80.001[ U5002A D0363 CONSULTATION (001) 07/09/12 70.00 70.00 70.00 .00 D9310 TOTALS 150.00 70.00 70.00 80.00 U5002A No payment can be made. The patient's coverage does not provide for this Diagnostic Dental service. You can view or print a copy of our Health insurance Portability and Accountability Act of 1996 (HlPAA) Notice of Privacy Practices by visiting our website at www.ucci.com and clicking on the HIPAA Privacy Notice button or by calling 1-866-215-2352 (toll free) to request a paper copy. If you are covered by more than one health benefit plan, you should file all your claims with each plan. UNITED C;oNCARDIA PO Box 69407 HARRISBURG, PA 17106-9407 GLORIA J GARDNER 32 MITCHEL LN NEWBURG PA 17240 HA1fE A QUESTION? PLEASE CALL 1-888-320-3321 Business Hours: Sam-8pm E.T. Service for the Deaf via TDD Equipment is available at 1-800-345-3837. THIS IS NOT A BILL DN059097 1105-S Current Dental Terminology © American Dental Association nzzvi UNITED CONCORDIA i~ ~~ DENTAL EXPLANATION OF BENEFITS KEEP FOR YOUR TAX RECORDS Subscriber: GLORIA J GARDNER ID Number: XXXXXXXXX Page:. 2 of Patient: STEPHEN J GARDNER Claim Number: 12692222431 Date: 07/12/) Provider: CURRIE AND HECHT ORAL AND MAXILL (000116673) # This Provider has agreed to accept the contracted Maximum Allowable charge as payment in full for non covered services. These services were performed by a Participating Provider. The Provider has been paid the amount shown in the AMOUNT PAID column. PATIENT SUMMARY FOR: Patient Name: STEPHEN J GARDNER Identification Number: XXXXXXXXX(002) Benefit Period: 01/01/12 - 12/31/12 Coverage: Dental Group Number: 846525-OOC For this benefit period, $70.00 has been applied to your 51,000.00 individual program dollar maximum. THiS IS NOT A BILL DN059097 1105-S Current Dental Terminology © American Denial Association I~IIGHMnRK. BLUE SHIELD b~ lndepmdenll igenser el me Blue ~r.~r and Blu. fhlrlJ J>scdanrm Contract Holder Name: GLORIA J GARDNER Member ID: 112454650001 Grou Name: PENNSYLVANIA EMPLOYEES BENEFIT TRUST Grou ID: 025364-000 izh .,i§s.~kiv.a,t.....F.~a~-.....$~.''~~.'!F3EI3. J .GBR13N)'.R.. . • ::: ::.:..::::.:....:;:: Claim Number: 12223567329 THIS IS NOT A BILL L „ Explanation of Remark Codes -- -- U5126 - The dental service reported is eligible only if it is a direct result of an accident. The reported service would not, be performed in conjunction with an accidental injury. Therefore, no payment can be made for this service. We provide administrative claims payment services only and do not assume any financial risk or obligation regarding claims. Member Responsibility Provider Provider's "' n:<:;:~>::; ~:. Plan ~no~~~:;. a~u .' . See Date of Service Charge yf:::: Allowance , , C,1~t~Prarttl~r: Remarks Type of Service <:~#7ri;!i` :.,s::::;: ~ Covered ~ <~7'ofati~~t#:> ~: Service Code ........... Charges) ::: »:9k~~!;~~><< Number of Services ~~ URRIE AND HECHT ORAL 1600.00 ii ?i:2`¢GY4Yri4~4~: 0.00 >:::;~:G~k~:~fl4):: U5126 07/16/12 NDOSTEAL IM PLANT 6010 1 t ) ' . OTALS 1600.00 ':' 2' Tx[Y:a~Y 0.00 :: ' ~~' ' ~L1:4YL): AUGUST 14, 2012 Page 1 of 2 Explanation of Benefits Need Help? Call 1-888-301-9273 ,:.;. £3{£?T~#1~•2'~.f7N''#`Z'~ ~' Gsi:~ANC,Bi. Date of Service: 07 16/12 Provider: CURRIE AND HECHT ORAL AND MAXILLOFACIAL A Preferred Provider Provider May Bill You (If Not Alread Paid): $ 1,600.00 VISIt DUf Webskte For online member service, view or update other insurance information, check eligibility or claims status, logon to our website at: www.highmark.com VN011036 We are going Green.... Please remember that you can always view EOBs for all of your claims on the website. You can also choose to begin receiving all of your EOBs online by signing up for "Go Paperless." Simply go to the website and log in. Under "Quick Resources," click on "Go Paperless." ~i-IIGHMnRKN BLUE SHIELD Arr /rxlgrerrdm/ l k~errsee u/ Ihr Blru~ Cans and &ue Slddd A+wslarbu Camp NiII, PA 17089-0089 #~3WNDBQH #OCS8875453496213# GLORIA J GARDNER 32 MITCHEL LN NEWBURG PA 17240 VN01103E 011036 nnni nnr 'l~-lIGHMnRlC. BLUE SHIELD 3n /ndryre.rJenl Ilrensae ui lfi. P.hre Cam,,.. a.~d Elue >fiirJd iss~~ciatlnn AUGUST 14, 2012 Page 2 of 2 Need Help? Call 1-888-301-9273 Member Service Member Service: 1- 888 - 301- 9273 If a' claim has been denied in whole or in part, please refer to the Administration section of your Benefit Booklet for additional information. You have the right to request a review of a denied claim. To appeal a claim, file a WRITTEN OR ORAL APPEAL WITHIN 60 DAYS AFTER RECEIVING THE EXPLANATION OF BENEFITS STATEMENT. If you have any questions or want to file an oral appeal, please contact our Member Service Department at the telephone number identified above. Written appeals can be submitted to us at: Highmark Blue Shield P.O. Box 890178 Camp Hill, PA 17089-0178 Attention:Review Committee (TTY services via 1- 800 - 562 - 0591 for the hearing and speech impaired.) If you suspect fraud or abuse involving your health insurance, please call the toll-free fraud or abuse hotline at 1-800-438-2478. t ~. w VN011036 011036 0002 0002 s. UNITED CONCORDIA DENTAL PREDETERMINATION NOTIFICATION KEEP FOR YOUR RECORDS WNN.000I.COM DENTAL CUSTOMER SERVICE P.O. BOX 69420 HARRISBURG PA 17106-9420 PROCEDURE DESCRIPTION NUN - PROCEDURE CODE OF PROVIDERS ALLONANCE APPROVED AMOUNT REMARK(S) *TOOTH NUMBER/SURFACES* SVCS CHARGE AMOUNT NOT APPROVED PREFAB IMPLANT ABUTMENT 001 580.00 .00 .00 580.00 U5002A D6056 *10* IMP ABT POR/HIGH NOBLE CR 001 958.00 .00 .00 958.00 U5002A D6059 *10* TOTALS I .OO) .OOI THE APPROVED AMOUNT IS SUB]ECT TO THE TERMS OF THE BENEFICIARY'S COVERAGE IN EFFECT ON THE DATE OF RECEIPT AND MAY CHANGE IF TiiE CONTRACT OR TFiE PROPOSED TREATMENT PLAN CHANGES. THE AMOUNT PAID MAY BE LESS THAN SHOWN IF BENEFITS ARE PAYABLE UNDER ANOTHER PLAN WHICH IS PRIMARY. WHEN TREATMENT 1S COMPLETED YOUR DENTIST MAY REQUEST PAYMENT BY SUBMITTING THE PROVIDER COPY OF THIS FORM OR BY CALLING THE INTERACTIVE VOICE RESPONSE SYSTEM (IVR) - Any personally identifiable health information about the members enrolled dependents is protccted by the Health Insurance Portability and Axountability Act of 1996 and other privacy laws. In accordance with those laws, United Concordia may use and disclose Protected Health information for treatment, payment and health care operation as described in its Notice of Privacy Practices. If you are covered by more than one health benefit plan, you should file all your claims with each plan. UNITED CONCORDIA P O Box 69407 Harrisburg, PA 17106-9407 GLORIA J GARDNER 32 MITCHEL LN NEWBURG PA 17240 HAVE A QUESTION? PLEASE CALL 1-888-320-3321 Business Hours: Sam-8pm E.T. Service for the Deaf via TDD Equipment is available at 1-800-345-3837. THIS IS NOT A BILL PD012825 Current Denta/ Terminology ©American Dental Association 003588 .. s+ w UNITED CONCORDIA DENTAL tINN. UCCI .CON PREDETERIIAINATION DENTAL CUSTOMER SERVICE NOTIFICATION P•o• sox 69420 HARRISBURG PA 17106-9420 KEEP FOR YOUR RECORDS Page: 2 OF 2 Claim Number: 12207238267 U5002A No payment can be made. The patient's coverage does not provide for this Prosthetic Dental service. ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE COMPANY OR OTHER PERSON FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF CLAIM CONTAINING ANY MATERIALLY' FALSE INFORMATION OR CONCEALS FOR THE PURPOSE OF MISLEADING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO COMMITS A FRA11nLIL FNT Il~fCilRAIyC`F ACT, ~?~IuIC?-I 1S A CRIME AND SUBJECTS SUCH PERSON TO CRIMINAL AND CIVIL PENALTIES. AZ: For your protection Arizona law requires the following statement to appear on this form. Any person who knowingly presents a false or fraudulent claim for payment of loss is subject to criminal and civil penalties. CA: For your protection California law requires that the following appear on the form: Any person who knowingly presents a false claim for the payment of a loss is guilty of a crime and may be subject [o fines and confinement in state prison. FL: Any person who knowingly, and with intent to injure, defraud, or deceive any insurer files a statement of claim or an application containing any false, incomplete or misleading information is guilty of a felony in the third degree. NJ: Any person who knowingly files a statement of claim containing any false or misleading information is subject to criminal and civil penalties. NY: Any person who knowingly and with intent to defraud any insurance company or other person files an application for insurance or statement of claim containing any materially false information, or conceals for the purpose of misleading, information concerning any fact material thereto, commits a fraudulent insurance act, which is a crime, and shall also be subject to a civil penalty not to exceed five thousand dollars and the stated value of the claim for each such violation. D.C., LA, & RI: Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or knowingly presents false information in an application for insurance is guilty of a crime and may be subject [o fines and confinement in prison. VA: Any person who with the intent to defraud or knowing that he is facilitating a fraud against an insurer, submits an application or files a claim containing a false or deceptive statement may have violated the state law. . TN & WA: It is a crime to knowingly provide false, incomplete or misleading information to an insurance company for the purpose of defrauding the company. Penalties include imprisonment, fines and denial of insurance benefits. IN & OK: WARNING: Any person who knowingly, and with intent to injure, defraud or deceive any insurer, makes any claim for the proceeds of an insurance policy containing any false, incomplete or misleading information is guilty of a felony. KY: Any person who knowingly and with intent to defraud any insurance company or other person files a statement of claim containing any materially false information or conceals, for the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime. THIS iS MOT A BILL PD012825 Current Denta! Terminology ©American Dental Association STEPHEN J. GARDNER, Plaintiff V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT THOMAS D. DAIHL, JR., Defendant 2013-01148 CIVIL TERM IN RE: MOTION TO PREVENT WASTE AND SECURE ASSETS ORDER OF COURT AND NOW, this 1 r day of March 2013, upon consideration of the Motion to Prevent Waste and Secure Assets, a RULE is issued upon Defendant to show cause why the relief requested should not be granted. j PLAINTIFF shall effectuate service of this Order of Court upon Defendant. A motion to make rule absolute will not be entertained until proof of service is filed. RULE RETURNABLE twenty (20) days from the date of service. Distribution: Thomas'AV Placey C.P.J. /Jason P. Kutulakis, Esq. 2 West High Street Carlisle, PA 17013 ✓Thomas D. Daihl, Jr. MW 130 Pinnacle Drive ` Newburg, PA 17240 - °C, �, L' C- cn �� SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson { 1t Sheriff � � �K� � trot,.'; art+ u ryp'f � Jody S Smith ' 9. �l Chief Deputy X013 MAR 8 Richard W Stewart Solicitor OFFiCE OF TME$NERIFF � R sy A{ FE'S Stephen Joseph Gardner Case Number vs. Thomas Dallas Daihl, Jr 2013-1148 SHERIFF'S RETURN OF SERVICE 03111/2013 01:05 PM-Deputy William Cline, being duly swom according to law,served the requested Complaint& Notice by"personally"handing a true copy to a person representing themselves to be the Defendant,to wit:Thomas Dallas Daihl,Jr at 130 Pinnacle Drive, Hopewell Town:;AM ewb rg, PA 17240, LINE, DEPUTY SHERIFF COST: $48.00 SO ANSWERS, March 12,2013 RON R ANDERSON, SHERIFF {c}Gountysuite Sheriff.Teleosoft Inc. r OM CSC FLED-OFF W LITLILAKIS € F TH ' PROTH, 40T;-- Jason P.Kutulakis,Esquire HA Attorney I.D.#: 80411 22 PM 3. 4 2 West High Street J `i Carlisle.PA 17013 CUMBERLAND COIJN `c* (717)249-0900 PENNS YLVA�It� STEPHEN J. GARDNER, : IN THE COURT OF CO ON PLEA Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : FILE NO.: 13-1148 THOMAS D.DAIHL,JR., : CIVIL ACTION—LAW Defendant PROOF OF SERVICE I,Jason P. Kutulakis, Esquire, hereby certify that I did serve a true and correct copy of the March 15, 2013 Order of Court, upon the Defendant, by depositing, or causing to be deposited, same in the U.S. mail, certified delivery, postage prepaid, on Thomas Daihl,Jr., at Carlisle, Pennsylvania, addressed as follows: Thomas D. Daihl,Jr. 130 Pinnacle Drive Newburg, PA 17240 Return card acknowledging receipt on March 20, 2013, is attached as Exhibit "A". OM&KUTULAMS,L.L.P. Date: �tlorney n P. Kutu a s, Esquire I.D. No: 80411 2 West High Street Carlisle, PA 17013 (717)249-0900 Attorney for Plaintiff /IiM©ccrftptlts a r ttenri 4'W bmijosry is fig sNefl. 1 0 Print your nww wid address on the revems x so that vm can nettrn the card,to you. by( oswaery • Attach this card to the back of the mai ece, .S �Q or on the front If apace psrrrks. AN love 1. Article Addressed to: D. a delvery addre� horn 1? �e Addressed If YES,enter delivery address NO ;I /Zo � y I 11w 3. Service Type m Caroled Maa ❑Express MOM 13 Rsgiefared OL PAb"Receipt for Mordwaft 13 imaed Mall Q C.O.D. 4. Restricted Deavery?Pft Feed ❑Yea I Article Nurrim 7 012 1010 0001 3110 5955 Mwmw orom swviw ho" i ft FWM X11,1° yr n" Darrrntle Rsk rn ReosMrc mesbae+r rwe i I EXHIBIT `A" i 1E pJp 1 i 4. Defendant is without sufficient knowledge or information to form a belief as to the truth, or relevance, of the averment. The averment is therefore denied and strict proof is demanded at trial. 5. Denied. By way of further answer, Defendant only first noticed Plaintiff because Plaintiff was snooping around Defendant's son's garage. It is specifically denied Plaintiff was making any effort to leave the property. 6. It is denied Plaintiff was leaving the property. By way of further answer, Defendant only first noticed Plaintiff because he was snooping around Defendant's son's garage. It is admitted Defendant first approached Plaintiff while driving a four-wheeler. 7. Denied. It is specifically denied Defendant approached Plaintiff in an "aggressive" manner. Strict proof is demanded at trial. 8. Denied. It is specifically denied Defendant raised his fist without provocation. Strict proof is demanded at trial. 9. Denied. It is specifically denied Defendant punched Plaintiff without provocation. Strict proof is demanded at trial. 10. Denied. It is specifically denied Defendant pushed Plaintiff to the ground without provocation. Strict proof is demanded at trial. 11. Denied. By way of further answer, it is admitted there was a scuffle between Plaintiff and Defendant; however, at no point during that scuffle did Plaintiff try to extricate himself from the situation. To the contrary, on two separate occasions during the incident Plaintiff tackled Defendant from behind as Defendant tried to walk away from the altercation. 12. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. 20. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. 21. Specifically denied. This statement constitutes a conclusion of law to which no response is required. By way of further answer the relief requested by Plaintiff amounts to a preliminary injunction preventing Defendant, Defendant's wife, and Defendant's sister from selling their real property. "Any preliminary injunction is an extraordinary, interim remedy that should not be issued unless the moving party's right to relief is clear and the wrong to be remedied is manifest." Ambrogi v. Reber, 932 A.2d 969, 974 (Pa. Super. 2007). Prior to an award of injunctive relief, the moving party must show (1) a preliminary injunction is needed to prevent immediate and irreparable harm that cannot be adequately compensated by damages; (2) more harm would result from not granting the injunction than from granting it and the injunction will not harm other interested parties in the proceedings; (3) the injunction will restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; (4) the activity it seeks to restrain is actionable, its right to relief is clear, and the wrong is manifest, in other words, the moving party must show it is likely to prevail on the merits; (5) the injunction is designed to abate the offending activity; and (6) the preliminary injunction will not negatively affect the public interest. Citizens Bank v. Myers, 872 A.2d 827, 834 (Pa. Super. Ct. 2005). Here, the request for injunctive relied fails for several reasons. First, there is no immediate or irreparable harm. The only possible harm is prospective, at best, as it will only occur if Plaintiff first prevails in the matter and then is unable to collect his judgment without forcing Defendant to sell his interest in the identified properties. Second, the injunction would not be intended to abate any offending activity. The properties listed in the motion are not currently for sale, and Defendant has not sold any other real property recently. Rather, the injunctive relief requested is a preemptive strike on any possible sale Defendant may be contemplating. Therefore, there is no question the motion could not act to abate activity; yet there is reason to question whether any possible sale of real property would be "offending." Third, the motion fails to show it is likely Plaintiff will prevail on the merits. Plaintiff has alleged he just happened to wander onto a neighboring property, failed to notice posted signs, and was simply minding his own business and trying to leave peacefully when the property owner's father came upon him and, with no stated reason and with absolutely no provocation, the property owner's father immediately began raining vicious blows upon him. There were no other witnesses present so all allegations will be supported entirely by credibility determinations. With such an improbable series of allegations, and no supporting evidence or witness testimony, it cannot be said that Plaintiff will likely prevail on the merits. Moreover, Plaintiff has claimed actual damages of less then $7,000. The large majority of the relief requested ("an amount to exceed arbitration limits") will theoretically come from "lost wages, pain and suffering, punitive damages, and such other relief as the Court may direct." Pennsylvania has adopted the rule of punitive damages as set forth in the Restatement of Torts. Focht v. Rabada, 268 A.2d 157, 159 (Pa. Super. Ct. 1970). Accordingly, "[p]unitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others." Id. (internal citation omitted). This higher standard makes it even more unlikely Plaintiff will prevail on the merits such that punitive damages will be awarded; thus, it is not required for this Court to apply the "extraordinary, interim remedy" of barring the sale of the real property owned by Defendant, Defendant's wife, and Defendant's sister just to ensure that Plaintiff will be able to collect his comparitively small request for actual damages. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's motion with prejudice. Respectfully submitted, MOONEY& ASSOCIATES By:;: JeffIt. Lawr , Attorney fo Defendant I.D. # 209725 2 South Hanover Street Carlisle, PA, 17013 (717)243-4770 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHEN J. GARDNER, NO. 13-1148 Plaintiff, vs. CIVIL ACTION - LAW THOMAS D. DAIHL, JR., Defendant. CERTIFICATE OF SERVICE I, Jeff R. Lawrence, Esquire, attorney for the above Defendant, hereby certify that on this 2nd day of April , 2013, I have forwarded a copy of the Answer to Motion to Prevent Waste and Secure Assets, in the above-captioned action to the following individual by regular U.S. Mail as set forth below: Jason P. Kutulakis, Esquire Abom &Kutulakis, LLP 2 West High Street Carlisle, PA 17013 Respectfully submitted, MOONEY& ASSOCIATES By: K77'�_ eff R. e re Attorne r Defendant I.D. # 209725 2 South Hanover Street Carlisle, PA, 17013 (717) 243-4770 tC-'fir, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHEN J. GARDNER, NO. 13-1148 Plaintiff, vs. CIVIL ACTION-LAW THOMAS D. DAIHL, JR., Defendant. AND NOW, comes the Defendant, Thomas D. Daihl, Jr., by and through his attorneys, Mooney & Associates, by Jeff R. Lawrence, Esquire, and files the within Answer with New Matter wherein the following is a statement, to wit: ANSWER 1. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 2. Admitted. 3. No response required. 4. Admitted. By way of further answer, Plaintiff and Defendant are not traditional "neighbors" who "share yards." Plaintiff's property encompasses approximately 146 acres and borders at least 17 other properties. Of those, there is only one border between Plaintiff's property and Defendant's property, and that border runs approximately 200 yards. Neither side of those 200 yards has been cleared of trees. 5. Defendant is without sufficient knowledge or information to form a belief as to the truth, or relevance, of the averment. The averment is therefore denied and strict proof is demanded at trial. 6. Defendant is without sufficient knowledge or information to form a belief as to the truth, or relevance, of the averment. The averment is therefore denied and strict proof is demanded at trial. 7. Defendant is without sufficient knowledge or information to form a belief as to the truth, or relevance, of the averment. The averment is therefore denied and strict proof is demanded at trial. 8. Denied. By way of further answer, Plaintiff's brother's property does not border Defendant's property. However, Plaintiff's brother's property does border Defendant's son's property, located at 150 Pinnacle Drive, Newburg, Pennsylvania. Any interactions which occurred between Plaintiff and Defendant on the evening of August 15, 2011 took place on Defendant's son's property at 150 Pinnacle Drive. 9. Defendant is without sufficient knowledge or information to form a belief as to the truth, or relevance, of the averment. The averment is therefore denied and strict proof is demanded at trial. 10. Defendant is without sufficient knowledge or information to form a belief as to the truth, or relevance, of the averment. The averment is therefore denied and strict proof is demanded at trial. By way of further answer, the property where Plaintiff and Defendant met was not owned by Defendant. It is owned by Randall Daihl, Defendant's son. Additionally, while it is unknown how far Plaintiff originally trespassed onto Defendant's son's property, it is known that when Defendant first saw Plaintiff, Plaintiff was just outside of the garage on Defendant's son's property. At the time Defendant came upon Plaintiff, Defendant believes and therefore avers Plaintiff was attempting to look through the window on the garage. 11. Denied. It is specifically denied Plaintiff did not cause any harm to Defendant's son's property. 12. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. By way of further answer, Defendant's son has multiple signs posted along the property line. Even in low light the signs would be difficult to miss. Moreover, Defendant's son's property was once part of land owned by Plaintiff. It is therefore believed and averred Plaintiff was well aware of the boundaries of the property which he had previously owned. 13. Denied. It is specifically denied there were no flags or markers denoting the property line. 14. Denied. It is specifically denied Plaintiff was leaving Defendant's son's property. When Defendant first saw Plaintiff, Plaintiff was just outside of the garage on Defendant's son's property. At the time Defendant came upon Plaintiff, Defendant believes and therefore avers Plaintiff was attempting to look through the window on the garage. 15. Denied. It is specifically denied Plaintiff was leaving Defendant's son's property. When Defendant first saw Plaintiff, Plaintiff was just outside of the garage on Defendant's son's property. At the time Defendant came upon Plaintiff, Defendant believes and therefore avers Plaintiff was attempting to look through the window on the garage. 16. Denied. It is specifically denied Defendant approached Plaintiff in "an aggressive manner." Strict proof is demanded at trial. 17. Denied. To the contrary, Defendant initiated contact with Plaintiff by asking the obvious question: "What are you doing on my property?" 18. Denied. It is specifically denied Defendant "raised his fist to Plaintiff." Strict proof is demanded at trial. 19. Denied. It is specifically denied Defendant punched Plaintiff in the face after raising his fist. To the contrary, Defendant struck Plaintiff only after Plaintiff charged at Defendant, poked his finger at his chest, spit in his face, and started swinging punches at Defendant. 20. It is admitted Defendant struck Plaintiff after Plaintiff refused to leave Defendant's son's property, charged at Defendant, poked his finger at his chest, spit in his face, and started swinging punches at Defendant. See copy of Criminal Trial Transcript, pages 71-73, attached as Exhibit"D 1." 21. Denied. To the contrary, on at least two occasions Plaintiff tackled Defendant from behind as Defendant attempted to end the altercation. 22. Denied. Both men were on the ground at different times during the altercation; but the first time Plaintiff went to the ground was after Defendant punched him in response to Plaintiff's aggressive antics as described in¶19. 23. Defendant is without sufficient knowledge or information to form a belief as to the truth, or relevance, of the averment. The averment is therefore denied and strict proof is demanded at trial. 24. Denied. It is specifically denied Defendant "straddled Plaintiff [sic] and repeatedly punched Plaintiff in the face." Strict proof is demanded at trial. 25. Denied. At no point was it necessary for Plaintiff to "push Defendant off of him." To the contrary, on at least two occasions Plaintiff tackled Defendant from behind as Defendant attempted to end the altercation. 26. Denied. It is specifically denied Plaintiff"did not cause any harm to Defendant." To the contrary, after refusing to leave Defendant's son's property after being asked to do so, Plaintiff spit on Defendant, poked his finger at Defendant, threw punches at Defendant, and tackled Defendant from behind. Each of those actions caused harm to Defendant. 27. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 28. Denied. Defendant incorporates all previous paragraphs by reference. 29. Denied. Defendant incorporates all previous paragraphs by reference. 30. Denied. It is specifically denied Defendant "is a known liar." Strict proof is demanded at trial. 31. Denied. By way of further answer, it is admitted that a few days after the incident a State Trooper approached Defendant in a very aggressive manner, beginning his interaction with Defendant not by asking to hear Defendant's side of the story, but rather, by telling Defendant that he knew Defendant had "cold cocked" Plaintiff. In response, Defendant, feeling very nervous and confused, at first denied all allegations concerning the confrontation on his son's property, including any allegation there had been any physical interaction. . 32. (a) — (i): After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 33. Admitted. 34. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 35. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 36. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 37. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 38. Admitted. 39. Admitted. COUNT I-BATTERY 40. No response required. 41. Specifically denied. This statement constitutes a conclusion of law to which no response is required. 42. Denied. It is specifically denied Defendant intended to cause harmful or offensive contact to Plaintiff by punching him in the face. It is also specifically denied Defendant intended to cause imminent apprehension of harmful or offensive contact by raising his fist at Plaintiff and punching Plaintiff in the face. Strict proof is demanded at trial. 43. Denied. It is specifically denied Defendant intended to cause harmful or offensive contact to Plaintiff by pushing Plaintiff to the ground. Strict proof is demanded at trial. 44. Denied. It is specifically denied Defendant intended to cause imminent apprehension of harmful or offensive contact by pushing Plaintiff to the ground. Strict proof is demanded at trial. 45. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 46. Specifically denied. This statement constitutes a conclusion of law to which no response is required. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's complaint with prejudice. COUNT II-ASSUALT 47. No response required. 48. Specifically denied. This statement constitutes a conclusion of law to which no response is required. 49. Denied. It is specifically denied Defendant intentionally caused an imminent apprehension of offensive bodily contact by approaching Plaintiff in an offensive manner by raising his fist at Plaintiff. Strict proof is demanded at trial. 50. Denied. It is specifically denied Defendant intended to cause immediate apprehension of offensive bodily conduct by pushing Plaintiff to the ground. Strict proof is demanded at trial. 51. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 52. Specifically denied. This statement constitutes a conclusion of law to which no response is required. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's complaint with prejudice. COUNT III—INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 53. No response required. 54. Specifically denied. This statement constitutes a conclusion of law to which no response is required. 55. Denied. It is specifically denied Defendant punched Plaintiff "in the face with no provocation." Strict proof is demanded at trial. 56. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 57. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 58. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 59. Specifically denied. This statement constitutes a conclusion of law to which no response is required. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's complaint with prejudice. COUNT IV—NEGLIGENCE PER SE 60. No response required. 61. Specifically denied. This statement constitutes a conclusion of law to which no response is required. 62. Denied. Defendant incorporates his responses to¶¶19—25. 63. Denied. Defendant incorporates his responses to¶¶19—25. 64. Denied. Defendant incorporates his responses to¶¶19—25. 65. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 66. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response.is required Defendant incorporates all previous paragraphs by reference. 67. (a) — (i): After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 68. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 69. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 70. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 71. Specifically denied. This statement constitutes a conclusion of law to which no response is required. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's complaint with prejudice. COUNT V-NEGLIGENCE 72. No response required. 73. Specifically denied. This statement constitutes a conclusion of law to which no response is required. 74. Denied. Defendant incorporates his responses to¶¶19—25. 75. Denied. Defendant incorporates his responses to¶¶19—25. 76. Denied. Defendant incorporates his responses to¶¶19—25. 77. Specifically denied. This statement. constitutes a conclusion of law to which no response is required. To the extent a response may be required Defendant incorporates his responses to¶¶19—25. 78. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response may be required Defendant incorporates his responses to¶¶19—25. 79. (a) — (i): After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. If a response is required, this averment is denied. Strict proof is demanded at trial. 80. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 81. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 82. Specifically denied. This statement constitutes a conclusion of law to which no response is required. To the extent a response is required Defendant incorporates all previous paragraphs by reference. 83. Specifically denied. This statement constitutes a conclusion of law to which no response is required. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's complaint with prejudice. NEW MATTER 84. All previous paragraphs are incorporated by reference. 85. There is a history of conflict and animosity between Plaintiff's family members and Defendant's family members. 86. The animosity increased after Defendant made reports to the police that he believed Plaintiff and Plaintiff's brother were growing marijuana on their land. 87. Prior to the incident on August 15, 2011, Plaintiff had repeatedly acted in a threatening and menacing manner towards Defendant and his family. 88. On one such occasion, Plaintiff parked his truck so as to prevent Defendant access to Defendant's property. After Defendant was forced to stop his vehicle, Plaintiff approached and told Defendant and his wife he would kill them if he ever caught them on Plaintiff's property. 89. Defendant believes and therefore avers this was Plaintiff's way of telling him to stop crossing Plaintiff's land where he might see the marijuana fields. 90. Over the years Defendant has had equipment broken or stolen and vehicle tires slashed or flattened and, although he never had direct proof and therefore never filed criminal charges, he always believed the mischief/harassment had been caused by Plaintiff. 91. On the evening of August 15, 2011, Defendant went to his son's property for the specific purpose of making sure Plaintiff was not causing similar mischief/harassment as his son was in the process of moving. Accordingly, the son's residence was left unattended but there was still a great deal of property and equipment there. Of particular concern was the garage area, as Defendant's son had stored a number of items in the garage in preparation for transport. 92. When Defendant got to his son's property it was after 9:00 p.m. and it was dark enough that he could see the beam of a flashlight.He could see the flashlight was being held by a figure on his son's property near his son's garage. 93. As he approached he realized the figure was Plaintiff, who was holding a dog on a leash and walking along the sides of Defendant's son's garage. 94. Defendant confronted Plaintiff, asked him what he was doing there, and then told him to leave. 95. Plaintiff told Defendant he couldn't be forced off the land and he had no intention of going anywhere. 96. A discussion ensued. Over the course of approximately 20 minutes the discussion escalated and both men were yelling. 97. Plaintiff's temper eventually boiled over and he charged at Defendant, spitting at him at the same time. 98. After Plaintiff got close enough to,Defendant to do so, he poked his finger into Defendant's chest while continuing to yell loud enough to throw spittle at Defendant's face. 99. Plaintiff then placed on hand on Defendant's shoulder and pushed him backwards towards the garage. Defendant responded by pushing Plaintiff away with both hands. 100. At that point Plaintiff began throwing punches at Defendant, swinging with both fists clenched. 101. In response Defendant threw one punch, hitting Plaintiff squarely in the face. 102. Plaintiff fell to the ground and rolled down a slight embankment, stopping 10 -15 feet away from Defendant. 103. Defendant began walking back towards his four-wheeler, attempting to leave. 104. Plaintiff charged again, this time tackling Defendant from behind. Defendant fell to the ground and landed face-first; Plaintiff then got on top of Defendant and again began swinging at Defendant with both fists clenched. . 105. Defendant defended himself by returning punches and eventually was able to escape from underneath Plaintiff. 106. Defendant again began to walk back to his four-wheeler, and again Plaintiff grabbed him from behind, wrapping both arms around Defendant's legs and refusing to let go. 107. To break free of the hold Defendant resorted to swinging awkwardly at Plaintiff, all the while telling Plaintiff to let him go and to get off the property. 108. Eventually Defendant told Plaintiff enough was enough and he stopped attempting to break free of Plaintiff's hold. After a few moments Plaintiff released his hold and left the property. 109. "The intentional infliction upon another of a harmful or offensive contact or other bodily harm by a means not intended to cause death or serious bodily harm is privileged for the purpose of preventing or terminating another's intrusion upon the actor's possession of land or chattels, if (a) the other's intrusion (i) is not privileged, or (ii) though privileged, the other intentionally or negligently causes the actor to believe his intrusion to be unprivileged, and (b) the actor reasonably believes that the other's intrusion can be prevented or terminated only by the immediate infliction of the harmful or offensive bodily contact, or other bodily harm, and (c) the means which the actor uses to prevent or terminate the intrusion are reasonable, and (d) the actor has first requested the other to desist from the intrusion and the other has disregarded the request, . . . ." Hughes v. Babcock, 37 A.2d 551 (Pa. 1944)(citing Restatement, Torts, Section 77). I 10. Defendant's conduct was privileged in that (a) Plaintiff's intrusion was not privileged, (b) after Plaintiff began spitting at Defendant, poking his finger in Defendant's chest, and eventually throwing punches at Defendant, Defendant reasonably believed Plaintiff would not leave without immediate infliction of harmful or offensive bodily contact, (c) Defendant's use of harmful or offensive bodily contact was reasonable under the circumstances, and (d) Defendant had told Plaintiff several times over the course of at least 15 minutes to leave the property. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's complaint with prejudice. COUNTERCLAIM COUNT I: ASSUALT 111. All previous paragraphs are incorporated by reference. 112. Under Pennsylvania law, to establish a claim of assault, the moving party must establish the actor intentionally caused an imminent apprehension of a harmful or offensive bodily contact. Lakits v. York, 258 F. Supp. 2d 401, 407 (E.D. Pa. 2003). 113. Plaintiff intended to cause an imminent apprehension of offensive bodily contact by spitting on Defendant. 114. Plaintiff intended to cause an imminent apprehension of offensive bodily contact by punching Defendant in the face. 115. Plaintiff intended to cause an imminent apprehension of offensive bodily contact by tackling him to the ground face-first. 116. Plaintiff intended to cause an imminent apprehension of offensive bodily contact by straddling Defendant and swinging punches at him. 117. The conduct of Plaintiff was outrageous, willful and wanton, and exhibited a reckless indifference to the health of Defendant such that an award of punitive damages is justified. WHEREFORE, Defendant respectfully requests this Honorable Court award judgment in his favor in an amount to exceed arbitration limits for bodily injury, pain and suffering, punitive damages, and such other relief as deemed appropriate. COUNT II: BATTERY 118. All previous paragraphs are incorporated by reference. 119. Under Pennsylvania law, to establish a claim of battery, the moving party must establish the actor intended to cause a harmful or offensive contact, or an imminent apprehension of such contact, and that such contact resulted. Lakits v. York, 258 F. Supp. 2d 401, 407 (E.D. Pa. 2003). 120. Plaintiff intended to cause harmful or offensive contact to Defendant by spitting on him. 121. Plaintiff intended to cause harmful or offensive contact to Defendant by punching him in the face. 122. Plaintiff intended to cause harmful or offensive contact to Defendant by tackling him to the ground face first. 123. Plaintiff intended to cause harmful or offensive contact to Defendant by straddling him and swinging punches at him. 124. The conduct of Plaintiff was outrageous, willful and wanton, and exhibited a reckless indifference to the health of Defendant such that an award of punitive damages is justified. WHEREFORE, Defendant respectfully requests this Honorable Court award judgment in his favor in an amount to exceed arbitration limits for bodily injury, pain and suffering, punitive damages, and such other relief as deemed appropriate. Respectfully submitted, MOONEY &ASSOCIATES By: Jeff R. fawrbendant , s ire Attorney for I.D. # 209725 2 South Hanover Street Carlisle, PA, 17013 (717) 243-4770 VERIFICATION I verify that the statements made in this Answer with New Matter and Counterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Date: /3 ^ Thomas D. Daihl, Jr. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHEN J..GARDNER, NO. 13-1148 Plaintiff, vs. CIVIL ACTION - LAW THOMAS D. DAIHL, JR., Defendant. CERTIFICATE OF SERVICE I, Jeff R. Lawrence, Esquire, attorney for the above Defendant, hereby certify that on this 19th day of August , 2013, I have forwarded a copy of the Answer with New Matter and Counterclaim, in the above-captioned action to the following individual by regular U.S. Mail as set forth below: Jason P. Kutulakis,Esquire Abom &Kutulakis, LLP 2 West High Street Carlisle, PA 17013 Respectfully submitted, MOONEY & ASSOCIATES By. Jeff R. a ce, re Attorne or Defendant I.D. # 209725 2 South Hanover Street Carlisle, PA, 17013 (717) 243-4770 C-) w mow. to . M 1 t r- om & U UI AKIS Jason P.Kutulakis,Esquire Attornev I.D.#80411 2 West I ligh Street Carlisle,PA 17013 (717)249-0900 STEPHEN J. GARDNER, : IN THE COURT OF COMMON PLEA Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : FILE NO.: 13-1148 THOMAS D. DAIHL,JR., : CIVIL ACTION —LAW Defendant NOTICE TO PLEAD TO: Jeff R. Lawrence, Esquire Mooney&Associates 2 South Hanover Street Carlisle,PA 17013 Attorney for tl�e Defendant YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objection within twenty (20) days after service or a judgment may be entered against you. Respectfully Submitted, ABOM&KUTULAKIS,L.L.P. Date: September 11,2013 cxG� ► ep. Jason P. Kutulakis, Esquire Supreme Court ID #80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff NuOM & ULAKIS Jason 1'.Kutulakis,Esquire Attornee I.D.#80411 2 west High Street Carlisle,PA 17013 (717)249-0900 STEPHEN J. GARDNER, : IN THE COURT OF COMMON PLEA Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : FILE NO.: 13-1148 THOMAS D. DAIHL,JR., : CIVIL ACTION—LAW Defendant PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER AND COUNTERCLAIM AND NOW, comes the Plaintiff, John G. Mohl, by and through his counsel, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and files the following Preliminary Objections to Defendant's Answer and Counterclaim. 1. On or about March 1, 2013, Plaintiff brought this cause of action against Defendant by filing a Complaint. 2. On or about August 19, 2013, Defendant filed an Answer to Plaintiffs Complaint and Counterclaim. 3. Plaintiffs Counterclaim fails is legally insufficient and therefore, Defendant brings the within Preliminary Objections. Plaintiffs Second Preliminary Objection to Defendant's Counterclaim Pa.R.C.P. 1028(a)(4) —Legal Insufficiency 4. Paragraphs one (1) through three (3) are incorporated by reference as if set forth in full. 5. Defendant Counterclaims for both Assault and Battery. a Y 6. On or about October 13, 2011, Police charged Defendant with Simple Assault as a result of the Defendant's attack on the Plaintiff. 7. Charges were brought in the Court of Common Pleas, Cumberland County at dockter number CP-21-CR-002952201 1. See, Docket Sheet, attached hereto as "Exhibit A." 8. On or about May 2, 2012, Defendant was found guilty of the simple assault charge. See, Docket Sheet, attached hereto as "Exhibit A." 9. The operative facts necessary for a non-summary criminal conviction may be admitted as conclusive facts in a civil suit arising from the same event. See Commonwealth Dept. of Trans. V. Mitchell, 517 Pa. 203, 535 A.2d 581 (1987); In re Estate of Klein, 474 Pa. 416, 378 A.2d 1182 (1987); Folino v. Young, 523 Pa. 532, 568 A.2d 171 (1990). 10. Additionally, regarding civil litigation of factual matters already disposed of in criminal court, the Pennsylvania Supreme Court has previously opined: The defendant was presented with more than ample opportunity to overcome the charges lodged against him while he was swathed in a cloak of presumed innocence. His case was [presented to a jury which found him guilty beyond a reasonable doubt], upon the same facts which are now urged as the basis for his civil liability. To now hold that the effect of those jury determinations is nil not only would be to fly in the face of reason but would also be a general indictment of the whole American jury system. The defendant should not now be heard to deny that which was established by his prior criminal conviction, without proof that his conviction was procured by fraud, perjury or some manner of error now sufficient to upset the conviction itself...No valid reason exists why he should be given a chance to try his luck with another jury. Hurtt v. Stirone, 416 Pa. 493, 498-99, 206 A.2d 624, 626-27 (1965). 11. Therefore, if a defendant has been found guilty of a crime, he cannot then during the civil litigation involving the same charges say he did not commit the crime or offer a justification for committing the crime when that issue was already litigated and decided during the criminal phase arising from the same actions. See, Hagans v.Jackson, 17 Pa.D. & C.4th 638 (Pa.Com.Pl., 1992). 12. In the instant case, Defendant should not now be able to offer a justification to his assault and battery on the Plaintiff when he did so during the criminal proceedings regarding the same assault and battery and was found guilty. 13. Defendant in the case sub jsdice had ample opportunity to offer a defense to the assault and battery charge which gave rise to this civil litigation; and, just as the Pennsylvania Supreme Court in Hurtt has held, the Defendant here should not now be able to assert a defense or claim he did not commit the offense after he has already been found guilty in criminal court. WHEREFORE, the Plaintiff respectfully requests this Honorable Court dismiss the Plaintiff's Counterclaim for assault and battery because the Defendant claim is legally insufficient. Respectfully submitted, ABOM&KUTULAKis,L.L.P. DATE Jason P. Kutulakis, Esquire Supreme Court ID #80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Petitioner CERTIFICATE OF SERVICE AND NOW, this 11`'' day of September, 2013, I, Shannon Freeman, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and correct copy of the foregoing Preliminary Objections, upon the Defendant by depositing, or causing to be deposited, same in the United States Mail, postage prepaid addressed to the following: Jeff R. Lawrence, Esquire Mooney &Associates 2 South Hanover Street Carlisle,PA 17013 Attorney for Defendant nnon Freeman r� HE 1.� I..d C,,' f .. 20 i3 OCT — I Pfd 3: 3 CUMBERLAND Ci U F,( PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHEN J. GARDNER, NO. 13-1148 Plaintiff, vs. CIVIL ACTION-LAW THOMAS D. DAIHL, JR., Defendant. ANSWER TO PLAINTIFF'S PRELIMINARY OBJECTIONS AND NOW, comes the Defendant, Thomas D. Daihl, Jr., by and through his attorneys, Mooney & Associates, by Jeff R. Lawrence, Esquire, and files the within Answer To Plaintiffs Preliminary Objections, wherein the following is a statement, to wit: ANSWER 1. Admitted. 2. Admitted. 3. Specifically denied. This statement constitutes a conclusion of law to which no response is required. Page 1 of 3 4. No response required. 5. Admitted. 6. It is admitted Defendant was charged with Simple Assault. It is denied Police brought that charge "as a result of the Defendant's attack of Plaintiff." 7. Admitted. 8. Admitted. 9. This statement constitutes a conclusion of law to which no response is required. 10. This statement constitutes a conclusion of law to which no response is required. 11. This statement constitutes a conclusion of law to which no response is required. 12. Specifically denied. This statement constitutes a conclusion of law to which no response is required. By way of further answer, Plaintiff has filed preliminary objections to Defendant's Counterclaim, which includes one count for assault and one count for battery. As such, the Counterclaim is not presented as a justification for Defendant's actions; rather, it is an assertion that Plaintiff committed tortious acts as well. The mere fact Plaintiff was not criminally charged is not conclusive of absence of civil liability on his part. 13. Specifically denied. This statement constitutes a conclusion of law to which no response is required. By way of further answer, Plaintiff has filed preliminary objections to Defendant's Counterclaim, which includes one count for assault and one count for battery. As such, the Counterclaim is not presented as a justification for Defendant's actions; rather, it is an assertion that Plaintiff committed tortious acts as well. The mere fact Plaintiff was not criminally charged is not conclusive of absence of civil liability on his part. Page 2 of 3 WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's preliminary objections with prejudice. Respectfully submitted, MOONEY & ASSOCIATES B41 iiz ■11111. Jeff R. Lawr=rr Attorney for Defendant I.D. # 209725 2 South Hanover Street Carlisle, PA, 17013 (717) 243-4770 Page 3 of 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHEN J. GARDNER, NO. 13-1148 Plaintiff, vs. CIVIL ACTION - LAW THOMAS D. DAIHL, JR., Defendant. CERTIFICATE OF SERVICE I, Jeff R. Lawrence, Esquire, attorney for the above Defendant, hereby certify that on this 1st day of October , 2013, I have forwarded a copy of the Answer to Plaintiff's Preliminary Objections to Defendant's Answer and Counterclaim, in the above-captioned action to the following individual by regular U.S. Mail as set forth below: Jason P. Kutulakis, Esquire Abom &Kutulakis, LLP 2 West High Street Carlisle, PA 17013 Respectfully submitted, MOONEY & ASSOCIATES B i.1� i_� J: �'�. 4. e,squire Attorney for Defendant I.D. # 209725 2 South Hanover Street Carlisle, PA, 17013 (717) 243-4770 04// � PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next-t - Argument Court.) • rcO c CAPTION OF CASE (entire caption must be stated in full) Stephen J. Gardner vs. -57 T caa Thomas D. Deihl, Jr. No. 13-1148 Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Preliminary Objections to Defendant's Answer and Counterclaim 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jason P. Kutulakis, Esquire, 2 West High Street, Carlisle, PA 17013 (Name and Address) (b) for defendants: Jeff R. Lawrence, Esquire, 230 York Street, Hanover, PA 17331 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 8,2013 •is ature Ku 1AIQ is P t your name Plaintiff October 21 , 2013 Attorney for / / Date: r 4/.f4C-pd � �J INSTRUCTIONS: `T / f �- 1. Original and two copies of all briefs must be filed with the COURT e# 6/c.' ADMINISTRATOR(not the Prothonotary)before argument. 2.The moving party shall file and serve their brief 14 days prior to argument.L.9 ryJ Q1 3.The responding party shall file their brief 7 days prior to argument. (T 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)after the case is relisted. STEPHEN J. Plaintiff ER u� ! l 11l IN.nizt v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2013-01148 CIVIL TERM THOMAS D. DAIHL, JR•, Defendant CIVIL ACTION IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER AND COUNTERCLAIM BEFORE GUIDO, EBERT, AND PLACEY, JJ. ORDER OF COURT AND NOW, this 12th day of November 2013, upon review of Plaintiff's Preliminary Objection's, the pleadings, and following argument, the preliminary objections for legal insufficiency are DENIED. Thomas . lacey C.P.J. Distribution: .. Jason P. Kutulakis, Esq. c `=' Jeff R. Lawrence, Esq. r- 7> ca < <31, a err) OM ( ' _ � t ' LITLILAKIS , (- 1 Jason P.Kutulakis,Esquire '�. Attorney I.D.#: 80411 ; fZ AND av _ 2 West HighStreet P���1a ' � Carlisle,PA 17013 ��"� 'IP I tai (717)249-0900 STEPHEN J. GARDNER, : IN THE COURT OF COMMON PLEA Plaintiff : CUMBERLAND COUNTY, :PENNSYLVANIA v. : FILE NO.: 13-1148 THOMAS D. DAIHL,JR., : CIVIL ACTION—LAW Defendant : JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND NEW MATTER AND NOW, this 2' day of December, 2013, comes Plaintiff, Stephen J. Gardner, by and through his counsel,Jason P. Kutulakis, Esquire, of Abom & Kutulakis, LLP, and respectfully files his reply to Defendants' New Matter to Plaintiffs Complaint and in support thereof avers as follows: 84. No response required. 85. Admitted. 86. Denied. It is specifically denied that animosity increased after Defendant made reports to police that he believed Plaintiff and Plaintiffs brother were growing marijuana on their land. 87. Denied. It is specifically denied that prior to the incident on August 15, 2011, Plaintiff had repeatedly acted in a threatening and menacing manner towards Defendant and his family. 88. Denied. It is specifically denied that on one (1) occasion Plaintiff parked his truck so as to prevent access to Defendant's property and that after Defendant was forced to stop his vehicle, Plaintiff approached and told Defendant and his wife that he would kill them if he ever caught them on Plaintiffs property. 89. Denied. Plaintiff is unable to assert the truth or falsity of what Defendant believes. 90. Denied. Plaintiff is unable to assert the truth or falsity of what Defendant believes. 91. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief to admit or deny this averment. 92. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief to admit or deny this averment. 93. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief to admit or deny this averment. 94. Admitted in part, Denied in part. It is specifically admitted that Defendant confronted Plaintiff. It is specifically denied that Defendant asked Plaintiff what he was doing there and then told him to leave. By way of further answer, Defendant aggressively jumped off his ATV and began screaming at the Plaintiff while raising his fists. 95. Denied. It is specifically denied that Plaintiff told Defendant he couldn't be forced off of the land and he had no intention of going anywhere. By way of further answer, Defendant almost immediately punched Plaintiff and the face and Plaintiff tried to push him away so he could escape the unprovoked beating that ensued. 96. Denied. It is specifically denied that a discussion ensued. It is further specifically denied that over the course of approximately twenty (20) minutes the discussion escalated and both men were yelling. By way of further answer, the Defendant pushed the Plaintiff to the ground and mercilessly and repeatedly punched Plaintiff in the face,not even giving Plaintiff a chance to speak let alone escape. 97. Denied. It is specifically denied that Plaintiffs temper eventually boiled over and he charged at Defendant, spitting at him at the same time. By way of further answer, the Plaintiff was being punched in the face repeatedly by the Defendant and could not intentionally control whether any"spittle"was coming out of his mouth. 98. Denied. It is specifically denied that after Plaintiff got close enough to Defendant to do so, he poked his finger into Defendant's chest while continuing to yell loudly enough to throw spittle at Defendant's face. By way of further answer, Plaintiff did not cause any harm to Defendant, but rather Plaintiff suffered a severe beating from Defendant. 99. Denied. It is specifically denied that Plaintiff then placed one [sic] hand on Defendant's shoulder and pushed him backwards towards the garage. By way of further answer, Plaintiff eventually did push Defendant off him so that the severe pummeling stopped and Plaintiff could escape. 100. Denied. It is specifically denied that at that point Plaintiff began throwing punches at Defendant, swinging with both fists clenched. 101. Admitted in part and denied in part. It is admitted that Defendant threw a punch and hit Plaintiff squarely in the face. It is specifically denied Defendant only threw one punch and that it was in direct response to Plaintiffs actions. By way of further answer,Defendant threw multiple damaging punches to Plaintiffs face. 102. Denied. It is specifically denied that Plaintiff fell to the ground and rolled down a slight embankment, stopping 10-15 feet away from Defendant. 103. Denied. It is specifically denied that Defendant began walking towards his four- wheeler,attempting to leave. 104. Denied. It is specifically denied that Plaintiff charged again, this time tackling Defendant from behind. Further, it is specifically denied that Defendant fell to the ground and landed face first and that Plaintiff then got on top of Defendant and again began swinging at Defendant with both fists clenched. 105. Denied. It is specifically denied that Defendant defended himself by returning punches and eventually was able to escape from underneath Plaintiff. 106. Denied. It is specifically denied Defendant again began to walk back to his four- wheeler and again Plaintiff grabbed him from behind, wrapping both arms around Defendant's legs and refusing to let go. 107. Denied. It is specifically denied that to break free of the hold Defendant resorted to swinging awkwardly at Plaintiff, all the while telling Plaintiff to let him go and to get off the property. 108. Denied. It is specifically denied that Defendant told Plaintiff enough was enough and he stopped attempting to break free of Plaintiffs hold. Further, it is specifically denied that after a few moments Plaintiff released his hold and left the property. 109. The averment within this paragraph is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Plaintiff specifically denies this averment. 110. The averment within this paragraph is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Plaintiff specifically denies this averment. COUNTERCLAIM COUNT I:ASSAULT 111. No response is required. 112. The averment within this paragraph is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Plaintiff specifically denies this averment. 113. The averment within this paragraph is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Plaintiff specifically denies this averment. 114. The averment within this paragraph is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Plaintiff specifically denies this averment. 115. The averment within this paragraph is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Plaintiff specifically denies this averment. 116. The averment within this paragraph is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Plaintiff specifically denies this averment. 117. The averment within this paragraph is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Plaintiff specifically denies this averment. COUNT II: BATTERY 118. No response is required. 119. The averment within this paragraph is a conclusion of law to which no response is required. By way of further response,Plaintiff specifically denies this averment. 120. The averment within this paragraph is a conclusion of law to which no response is required. By way of further response,Plaintiff specifically denies this averment. 121. The averment within this paragraph is a conclusion of law to which no response is required. By way of further response,Plaintiff specifically denies this averment. 122. The averment within this paragraph is a conclusion of law to which no response is required. By way of further response,Plaintiff specifically denies this averment. 123. The averment within this paragraph is a conclusion of law to which no response is required. By way of further response,Plaintiff specifically denies this averment. 124. The averment within this paragraph is a conclusion of law to which no response is required. By way of further response,Plaintiff specifically denies this averment. WHEREFORE, it is prayed that this Honorable Court deny Defendant's Counterclaim and find in favor of Plaintiff. NEW MATTER 125. All previous paragraphs in Plaintiff's Answer are incorporated by reference as if set forth in full. 126. The Defendant was convicted by a jury of Simple Assault—Causing Bodily Injury on May 2, 2012 docketed at CP-21-CR-2952-2011 in the Court of Common Pleas of Cumberland County,Pennsylvania. 127. When State Police talked with the Defendant after he severely beat the Plaintiff, no injuries were observed on the Defendant. (See Page 49-50 of Trial Transcript, attached as Exhibit"A"). 128. Additionally, the Defendant did not indicate to Police that an altercation took place that night. (See Exhibit"A"). 129. Moreover, the jury even having the option to find the Defendant guilty of Simple Assault — Mutual Consent, instead found the Defendant guilty of Simple Assault — Causing Bodily Injury. (See Pages 108—113 of Trial Transcript, attached as Exhibit`B") 130. Defendant's counterclaim and ability to recover is barred by Defendant's failure to mitigate his damages. 131. Defendant's counterclaim and ability to recover is barred by the defense of laches. 132. Defendant's counterclaim and ability to recover is barred by the statute of limitation. 133. Defendant's counterclaim and ability to recover is barred by the defense of estoppel. 134. Defendant's counterclaim and ability to recover is barred by the defense of fraud. 135. Defendant's counterclaim and ability to recover is barred by the defense of impossibility of performance. 136. Defendant's counterclaim and ability to recover is barred by the defense of legality. 137. Defendant's counterclaim and ability to recover is barred by the defense of justification. 138. Defendant's counterclaim and ability to recover is barred by the defense of excuse. 139. Defendant's counterclaim and ability to recover is barred by the defense of assumption of risk. 140. Defendant's counterclaim and ability to recover is barred by the defense of consent. 141. Defendant's counterclaim and ability to recover is barred by the defense of res judicata. 142. Defendant's counterclaim and ability to recover is barred by collateral estoppel. 143. Defendant's counterclaim and ability to recover is barred by adjudication at a prior criminal proceeding where a jury found the Defendant guilty of Simple Assault against the Plaintiff. WHEREFORE,Plaintiff respectfully demands judgment in his favor and against Defendant, along with costs, fees and other damages the Court deems appropriate. Respectfully submitted, ,:OM& TULAKIS,LLP DA rE DECEMBER 2,2013 f41 uJ�— Ja on . Ku E1 's,Esquire t► N. 80411 2 est ';:h Street Carlisle,PA 17013 (717) 249-0900 Attorney for Plaint VERIFICATION I, Stephen J. Gardner, verify that the statements made in the foregoing Answer and New Matter are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S.A. §4904,relating to unsworn falsification to authorities. //-°2 7-43 Jr, Date Stephe . Gardner A I did not. At that time it was close to the end of our shift. This property as he has explained is very confusing to someone that has never been back there . We did not feel that at that time it was safe to go up there. Q It is nighttime at this point? A It is at least probably 10 : 30 at night at this time. Q By then you were aware of the allegation that there had been a physical assault? A Correct. Q When did you speak to Mr. Daihl? A I called him the next day to speak with him, and he returned my call two days later where we were able to make a meeting at Carlisle -- I think the 17th of August about 10 : 00 p.m. Q So two days after the incident happened? A Correct. Q Did you ask him about this incident? A Yes . I did. Q What did the defendant tell you? A He told me that they had had verbal disagreements in the past . He said that this evening in question there was nothing physical that happened, and the injuries that he received were not from him. Q Did he say if he was in any kind of a fight 49 with the victim that night? A He stated nothing about any altercation. Q Did he give you any explanation of what could have happened to the victim? A Not that I remember. Q Did he tell you anyone who could be to blame for the physical fight? A Okay, yeah, at that time he did state that Mr. Gardner had grown marijuana on his property somewhere, and that this possibly could be people that he dealt drugs to and a drug deal gone bad. Q When you spoke to Mr. Daihl did you see any injuries on him? A I did not. Q At some point then did you file the charge of Simple Assault against the defendant? A Yes . I did. Q Do you know when that charge was filed? A Without the paperwork, I do not -- shortly afterwards . Q Perhaps August 22nd, does that sound about right? A That sounds about right. Q At some point after you filed charges was there a preliminary hearing scheduled in this case? 50 1 views and change your opinion if convinced it is erroneous. 2 However, no juror should surrender an honest conviction as 3 to the weight or effect of the evidence solely because of 4 the opinion of your fellow jurors, or for the mere purpose 5 of returning a verdict. 6 In closing, I would like to suggest that you 7 will be able to deliberate more easily and in a way that is 8 better for all concerned if you treat the views of your 9 fellow jurors with the same courtesy and respect you would 10 other persons in your everyday life. 11 Certain exhibits which have been admitted 12 into evidence will go out with you to the jury room. If 13 there are any exhibits not sent out you may request to see 14 them and if it is legally permissible I will make those 15 exhibits available . In considering any of these exhibits, 16 you should apply the same general principles which I have 17 already given you concerning the evidence in this case. 18 Do counsel have anything further with regard 19 to these instructions? 20 MS. MEHRTENS-CARLIN: Nothing, Your Honor. 21 MR. MAITLAND: No, sir. 22 THE COURT: Let me briefly explain the 23 verdict slip. It is very simple. It is one page and there 24 are two questions . The question number one says Simple 25 Assault-Bodily Injury Caused. We find the defendant guilty 108 1 or not guilty. And then below that it says, if you find the 2 defendant not guilty of number one, that is causing bodily 3 injury, proceed to answer number two. If you find the 4 defendant guilty of number one, notify the tipstaff and 5 return to the courtroom. Number two is Simple Assault- 6 Mutual Consent. What I am saying is if you find the 7 defendant guilty of one, you do not proceed to two. If not 8 guilty of one, you proceed to number two and consider the 9 mutual consent charge. You will have that in writing, the 10 elements of the offense, when you go upstairs, so that 11 should be simple enough to look at . And the same with 12 number two as number one, guilty or not guilty, it is dated 13 and signed by the foreperson, placed in this envelope, and 14 given to the tipstaff. 15 With that, we have now reached the point in 16 the trial where it is my necessity to excuse with thanks the 17 alternate jurors, I believe Mr. Wiley and Mr. Lloyd or 18 Ms . Wiley and Ms . Lloyd -- very good -- you are seated in 19 different places. I will ask as the other jurors return to 20 the jury deliberation room to deliberate, if you remain 21 behind, Mrs . Sherman can get any belongings that you have 22 that might be up in the jury room. But I think you 23 understand at this point only 12 people can deliberate, and 24 we don' t want to take a chance that it might be seen that 25 you had any influence on them once they begin their 109 1 deliberations . I will say, even in a trial of this nature, 2 the food downtown is pretty good, but somebody could have a 3 bad lunch and not come back. And so, under the 4 circumstances, I am glad you were here. You were attentive, 5 and if you had been needed, we are sure that you would have 6 performed your duties and responsibilities swimmingly. But 7 with that, I ask you to stay behind, and the other jurors 8 may now return to the jury deliberation room and begin your 9 deliberations. 10 (Whereupon, the jury went out to 11 deliberate at 1 : 35 p.m. ) 12 Gentlemen, I am pleased to inform you that 13 your service is no longer needed. We have concluded or 14 picked all the jurors we need for this week so you are 15 excused. I am sure that Mrs. Sherman or Mrs . Eckenrode will 16 be able to give you any documents you may need, or if you 17 need to go to the Court Administrator' s Office they can 18 assist you down there. Thank you very much for this 19 service. I have had jury trials where we needed to use both 20 alternates, so I appreciate you being part of this . 21 Unfortunately you are all dressed up with no place to go, 22 but you get to go home, but a little bit sooner than the 23 other jurors on this case. Thank you very much. 24 (Whereupon, the alternate jurors were 25 excused. ) 110 1 THE COURT: Do counsel want to look over the 2 exhibits and tell me if you reached any position? 3 MS. MEHRTENS-CARLIN: I think they all go 4 out . They are all photographs . I have no objection to them 5 all going out. 6 MR. MAITLAND: I don' t either. 7 THE COURT: Okay. I think it is appropriate . 8 They can all go out. We don' t have to worry about any 9 reports in this case. 10 Mr. Maitland, we know where to contact 11 Ms. Mehrtens-Carlin, but make sure that we have your cell 12 phone, Mrs . Eckenrode or somebody has your cell phone, so we 13 can reach you if you have to leave the courthouse . 14 MR. MAITLAND: Okay. 15 THE COURT: Thank you. 16 (Whereupon, the Court was in recess. ) 17 18 19 20 21 22 23 24 25 111 1 (AFTER RECESS) 2 THE COURT: Thank you. Please be seated. 3 Anything from counsel? 4 MS. MEHRTENS-CARLIN: Nothing, Your Honor. 5 MR. MAITLAND: No, sir. 6 THE COURT: Bring the jury in. 7 (Whereupon, the jury returned to the 8 courtroom at 3 :48 p.m. with a verdict . ) 9 You may be seated. 10 I will ask the foreperson and all the jurors 11 to please rise. 12 Mr. Foreperson, has the jury reached a 13 verdict on question number 1, Simple Assault, Causing Bodily 14 Injury? 15 MR. FOREPERSON: Yes, Your Honor. 16 THE COURT: What is your verdict? 17 MR. FOREPERSON: Our verdict is guilty. 18 THE COURT: So say you all? 19 THE JURY: Yes . 20 THE COURT: Let the verdict be recorded. 21 Thank you. You may be seated. 22 He is on ROR? 23 MS. MEHRTENS-CARLIN: It was unsecured, Your 24 Honor, $5, 000 . 00 unsecured. 25 THE COURT: And then we will enter this 112 1 order: 2 AND NOW, this 2nd day of May, 2012, the 3 defendant having been found guilty of the offense of Simple 4 Assault, graded a Misdemeanor 2, by jury, we direct him to 5 appear for sentencing on Tuesday, June 5, 2012, at 1 : 30 p.m. 6 A presentence investigation is ordered. 7 This concludes the trial, and this concludes 8 your service. I will ask those of you in the back if you 9 would not mind departing now so that I have a chance to 10 speak briefly with the jurors . 11 (Whereupon, the proceedings ended 12 at 3 : 54 p.m. ) 13 14 15 16 17 18 19 20 21 22 23 24 25 113 CERTIFICATE OF SERVICE AND NOW, this 2nd day of December, 2013, I, Sally Evans, of ABOM&KUTULAKIS,LLP, hereby certify that I did serve a true and correct copy of the foregoing PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND NEW MATTER by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Jeff R. Lawrence,Esquire Mooney&Associates 230 York Street Hanover,PA 17331 Sally Evans STEPHEN J. GARDNER, Plaintiff v. THOMAS D. DAIHL, JR., Defendant Ototintp of ettmberIanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13 -1148 CIVIL ACTION IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER WITH NEW MATTER BEFORE GUIDO, MASLAND, and PLACEY, J.J. OPINION and ORDER OF COURT Placey, C.P.J. ; 25 April 2014. In this civil action, Plaintiff filed a complaint on 1 March 2013 which included counts for battery, assault, intentional infliction of emotional distress, negligence, and negligence per se. Plaintiff filed a Motion to Prevent Waste and Secure Assets on 12 March 2013. The Court issued a Rule upon Defendant to show cause why the relief requested should not be granted; thereafter, Defendant filed an Answer to the Motion on 2 April 2013. On 7 August 2013, Plaintiff filed a Notice of Intent to Seek Default because Defendant had not filed an Answer to the Complaint. On 19 August 2013, Defendant filed an Answer with New Matter and Counterclaims for assault and battery. For disposition at this time are Plaintiffs Preliminary Objections to Defendant's Answer with New Matter. Plaintiff alleges that the Defendant's criminal conviction for simple assault, arising from the same incident, precludes him from seeking civil liability for assault and battery against Plaintiff. For the reasons stated in the following opinion, Plaintiff's Preliminary Objections are OVERRULED. STATEMENT OF FACTS The pertinent facts, viewed in the light most favorable to Defendant as the non- moving party, can be summarized as follows: There has been a history of conflict and animosity between Plaintiff's family members and Defendant's family members which has escalated over the years. On the evening of 15 August 2011, around 9:00 p.m., Defendant was on his son's property which is a few houses away from Plaintiff's property. Defendant was checking the property for any signs of damage or mischief when he saw the beam of a flashlight held by a figure near his son's garage. As Defendant approached, he realized the figure was Plaintiff who had his dog on a lease and was walking along the side of the garage.' Defendant confronted Plaintiff about his presence on the property and told him to leave. A discussion ensued and escalated until both Plaintiff and Defendant were yelling. The interaction turned physical and punches were thrown by both parties.2 Plaintiff suffered various injuries during the encounter and called the State Police after the altercation ended. Several days later, Defendant was approached by the State Police and questioned about the incident. On 13 October 2011, simple assault charges were filed against Defendant at docket CP- 21 -CR- 02952 -2011. No charges were filed 1 Plaintiff, on the other hand, claimed his champion trained raccoon hunting dog had spotted a raccoon and ran away from Plaintiff, and Plaintiff found her on Defendant's property although he was unaware he was on defendant's property. Compl. at ¶¶ 6, 9 -10, 12. 2 Both parties give varying accounts of the interaction, stating the other threw the first punch, that each tried to fend off the attack, and that each attempted to leave. See Compl. at 11119, 21; Answer at ¶¶ 19, 21, 26. 2 against Plaintiff.3 A trial was held in May of 2012 in which Defendant was found guilty of misdemeanor 2 simple assault. 4 STATEMENT OF LAW Preliminary objections, generally. Preliminary objections may be filed by any party to any pleading on grounds such as failure to conform to law or rule of court, insufficient specificity in a pleading, and legal insufficiency of a pleading. Pa.R.C.P. 1028(a). A court will only sustain preliminary objections based on legal insufficiency when, "based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief." Mazur v. Trinity Area School Dist., 961 A.2d 96, 101 (Pa. 2008). Any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723, 726 (Pa.Cmwlth. 2003). When reviewing preliminary objections, the court must accept as true all well - pleaded allegations and material facts averred in the non - moving party's pleadings, as well as all reasonable inferences that can be drawn from those facts. Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992). The court, however, "need not accept as true conclusions of law, 3 It is noted that Plaintiff was not charged with a dog law violation, even though the Plaintiff's own statements in the Complaint indicate a clear transgression. See 3 P.S. § 459 -305 (Confinement and housing of dogs not part of a kennel: (a) Confinement and control. It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either: (1) confined within the premises of the owner; (2) firmly secured by means of a collar and chain or other devise so that it cannot stray beyond the premises on which it is secured; or, (3) under the reasonable control of some person, or when engaged in lawful hunting, exhibition or field training.). 4 18 Pa.C.S. § 2701. Simple assault. (a) Offense defined. - -A person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; (2) negligently causes bodily injury to another with a deadly weapon; (3) attempts by physical menace to put another in fear of imminent serious bodily injury; ... (b) Grading. -- Simple assault is a misdemeanor of the second degree unless committed: (1) in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree[.] 3 unwarranted inferences from facts, argumentative allegations or expressions of opinion." Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998). Demurrers, generally. Under Pennsylvania Rule of Civil Procedure 1028(a)(4), a party may file a preliminary objection in the form of a demurrer for legal insufficiency of a pleading. "The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." Price v. Brown, 680 A.2d 1149, 1151 (Pa. 1996). A preliminary objection in the nature of a demurrer may be properly granted only where the contested pleading is legally insufficient. Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007). DISCUSSION Plaintiff argues that Defendant's counterclaims for assault and battery should be dismissed because Defendant was found guilty of simple assault during his criminal trial. Plaintiff avers that Defendant had the opportunity to provide a justification for his actions during the criminal trial, and he failed to convince a jury that his actions were justified. Based on this, Plaintiff asserts that Defendant should be precluded from presenting counterclaims which are based on testimony that a criminal jury found non - credible. In support of this argument, Plaintiff cites to Commonwealth Dept. of Trans. v. Mitchell, 535 A.2d 581 (Pa. 1987). However, Mitchell involved a defendant who pled guilty in his criminal proceedings; Mitchell specifically noted that "it is well settled that a guilty plea constitutes an admission to all of the facts averred in the indictment" and, 4 therefore, the defendant's criminal conviction was used to establish the operative facts in a subsequent civil case based on the same facts. Id. at 585. The Pennsylvania Supreme Court in Folino v. Young, 568 A.2d 171, 172 (1990) did state that it "has allowed operative facts necessary for non - summary criminal convictions to be admitted as conclusive facts in civil suits arising from the same event." However, it is important to recognize that only the "operative facts" are admitted as conclusive facts. Here, Defendant was convicted of simple assault in which the jury found Defendant guilty of "intentionally, knowingly, or recklessly [causing] bodily injury to another." 5 See 18 Pa.C.S. § 2701(a)(1). The operative facts from Defendant's conviction which should be admitted in the instant civil matter are: 1) Defendant caused bodily injury to Plaintiff; and 2) Defendant caused said bodily injury intentionally, knowingly, or recklessly. The "operative fact" that Plaintiff seemingly wishes to have deemed admitted is that Plaintiff did not attempt to cause or intentionally, knowingly, or recklessly cause bodily injury to Defendant; this "fact" was never within the purview of the jury during Defendant's criminal trial. Plaintiff also references the Pennsylvania Supreme Court opinion in Hurtt v. Stirone, 206 A.2d 624, 626 (1965), which found a defendant cannot "deny that which was established by his prior criminal conviction[.]" While Defendant is estopped by virtue of his conviction from re- litigating the conviction and must acknowledge that he has been convicted of the crime for purposes of the instant matter, the assertion that 5 The jury verdict slip first asked for a determination of guilt regarding "Simple Assault (bodily injury caused)" and only if the jury found Defendant to be not guilty of that offense would they proceed to a determination of guilt regarding "Simple Assault (mutual consent) ". Thus, when the jury found Defendant guilty of "Simple Assault (bodily injury caused) ", a misdemeanor of the second degree, the jury never examined whether Defendant was guilty of "Simple Assault (mutual consent) ", a misdemeanor of the third degree. 5 Plaintiff may also bear some civil liability for his actions against Defendant is not a denial of his conviction. Plaintiff cannot use the lack of a conviction on his part to show that Plaintiff did not engage in activities that would make him civilly liable for assault and battery. The criminal guilt of one party does not correlate into the innocence, or lack of liability, of the other party.6 Thus, it is found that Defendant's counterclaims are legally sufficient and Plaintiff's preliminary objections are OVERRULED. ORDER OF COURT AND NOW, this 25 day of April 2014, upon consideration of the Plaintiff's Preliminary Objections to Defendant's Answer with New Matter, Plaintiff's Brief in support thereof, and Defendant's Brief in Opposition, and following argument, Plaintiff's preliminary objections are OVERRULED. OURT, Distribution Jason P. Kutulakis, Esq. Lawrence, Esq. CCIDI JeasAy Thomas A P acey C.P.J. CZZ) ••••■••• 6 If this were the standard for civil liability, the independent District Attorneys would be under enormous outside influences to plead cases under specific civil fact patterns. Indeed, the underlying criminal matter in this case could have been pled in such a way for the defense that there would be no preclusion from re-litigating the current assault issue. 6