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HomeMy WebLinkAbout04-5696Johnson, Duffle, Stewart & Weidner By: Mark C. Duffie I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcd@jdsw.com WENDY L. FINZEL and ERNEST C. FINZEL, husband and wife, individually and on behalf of their minor child, LYNDSEY M. M. FINZEL 13 West Locust Street Enola, PA 17025 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Docket No. cry- .CG 9(0 Plaintiffs CIVIL ACTION - LAW V. JURY TRIAL DEMANDED STONE HILL, LTD., d/b/a "STONE HILL, INC., at ABC Farm" and Stone Hill Stables 6962 Wertzville Road Enola, PA 17025 and NICOLE C. ESTEP, individually and d/b/a "STONE HILL, INC., at ABC Farm and Stone Hill Stables 6962 Wertzville Road Enola, PA 17025 and DAVID CRAWFORD, individually Defendants PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue a Writ of Summons against the Defendants in the above-captioned matter, and forward said Writ of Summons to the Cumberland County Sheriff for service upon Defendants, Stone Hill, Ltd., and Nicole C. Estep. Service upon Defendant Crawford will be completed upon acquisition of a valid mailing address. JOHNSON, DUFFIE, STEWAR WEIDNER Date: 11 I i z 16q By: Mar C. Duffie Att, rneys for Plaint ffs :239113 71 J ^4- i Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS WENDY L FINZEL AND ERNEST C FINZEL HUSBAND AND WIFE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD LINDSEY M M FINZEL 13 WEST LOCUST STREET, ENOLA, PA 17025 Plaintiff Vs. Court of Common Pleas No. 04-5696 In CivilAction-Law STONE HILL, LTD DB/A "STONE HILL, INC. AND NICOLE, C ESTEP INDIVIDU, ,LI,v AND DB/A STONE HILL INC AT ABC FARM AND STONE HILL STABLES 6962 WERTZVILLE ROAD, ENOLA, PA 17025 AND DAVID CRAWFORD, INDIVIDUALLY Defendant To STONE HILL LTD DB/A STONE HILL INC AND NICOLE C ESTEP INDIVIDUALLY AND DB/A STONE AND DAVID CRAWFORD INDIVIDUALLY You are hereby notified that WENDY L FINZEL AND ERNEST C FINZEL MINOR CHILD LINDSEY M M FINZEL the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) CURTIS R. LONG Prothonotary Date NOVEMBER 12, 2004 By ?f Deputy Attorney: Name: MARK C DUFFIE Address: 301 MARKET STREET P O BOX 109 LEMOYNE, PA. 17043-0109 Attorney for: Plaintiffs Telephone (717) 761-4540 Supreme Court ID No. 75906 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WENDY L. FINZEL AND ERNEST C. FINZEL : Husband and Wife, Individually and on behalf of their minor child LINDSEY M. M. DOCKET NO.: 04-5696 FINZEL Vs. : PRAECIPE AND RULE TO FILE : A COMPLAINT STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually and d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually TO THE PROTHONOTARY OF SAID COURT: PRAECIPE OF ENTRY OF APPEARANCE Please enter my appearance on behalf of the Defendants Stone Hill, Ltd. and Nicole C. Estep, in the above-captioned matter. Respectfully submitted, ABom & KVTULAKrs, LLP DATE: DECENSER 2, 2004 I Jason R. Kutulakis, Esquire 36 S. over Street Carlisle, PA 17013 (717) 249-0900 ID No. 80411 ?3 +v . v C7 a-:-a c? rs'a'rr _ - ; -?..r F77 ?, a7l! IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WENDY L. FINZEL AND ERNEST C. FINZEL : Husband and Wife, Individually and on behalf of their minor child LINDSEY M. M. DOCKET NO.: 04-5696 FINZEL Vs. : PRAECIPE AND RULE TO FILE : A COMPLAINT STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually and d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually TO THE PROTHONOTARY OF SAID COURT: Issue a rule on Wendy L. Finzel and Earnet C. Finzel, Individually and on behalf of Lindsay M. M. Finzel to file a COMPLAINT in the above-captioned case within twenty (20) days after service of the rule or suffer a judgment of non pros. DATE: December 2, 2004 Signature: Print name Attorney fi C_I:step Address: 36 South Hanover Street Carlisle„ PA 17013 Telephone No.: C717) 249-0900 Supreme Court ID No.: 80411 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WENDY L. FINZEL AND ERNEST C. FINZEL : Husband and Wife, Individually and on behalf of their minor child LINDSEY M. M. DOCKET NO.: 04-5696 FINZEL Vs. : PRAECIPE AND RULE TO FILE : A COMPLAINT STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually and d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually RULE AND NOW, this 2nd day of December, 2004, upon praecipe of defendants Stone Hill, Ltd and Nicole C. Estep, a rule is hereby issued on plaintiff to file a complaint within twenty (20) days after service of this rule or suffer the entry of a judgment of non pros. Al 1) 4 othonotary 01 :8:j ?y,l?at Gar0sle. N. i 8?t [4? r: ?t A P IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WENDY L. FINZEL AND ERNEST C. FINZEL : Husband and Wife, Individually and on behalf of their minor child LINDSEY M. M. DOCKET NO.: 04-5696 FINZEL Vs. PRAECIPE AND RULE TO FILE A COMPLAINT STONE HILL, Ltd d/b/a "STONE HILL, INC." And NICOLE C. ESTEP, Individually and d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually CERTIFICATE OF SERVICE AND NOW, this 2nd day of December 2004, I, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing Praecipe and Rule upon the following: VIA FIRST CLASS MAIL Mark C. Duffie,Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Attorney for Plaintiffs & KUTUL 4K[S, L.L.P. Jas louth P. Kutulakis 36 Hanover Street Carlisle, PA 17013 Attorney for Defendants Stone Hill And Estep 9 .?t. U-1 _., u:- -' q t,.a c? ?-j IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WENDY L. FINZEL AND ERNEST C. FINZEL : Husband and Wife, Individually and on behalf of their minor child LINDSEY M. M. FINZEL VS. : DOCKET NO.: 04-5696 : PRAECIPE TO ENTER JUDGMENT : OF NON PROS STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually and d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually TO THE PROTHONOTARY OF SAID COURT: To: Mark Duf . Esq. Date of Notice: JganmW 112005 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER. AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED :FEE OR NO FEE. ABOM & KUTULAKIS, LLP 36 S. Hanover Street Carlisle. PA 17013 P. Kutuh kis, Esq. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WENDY L. FINZEL AND ERNEST C. FINZEL : Husband and Wife, Individually and on behalf of their minor child LINDSEY M. M. DOCKET NO.: 04-5696 FINZEL VS. PRAECIPE TO ENTER JUDGMENT OF NON PROS STONE HILL, Ltd d/b/a "STONE HILL, INC." And NICOLE C. ESTEP, Individually and d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually CERTIFICATE OF SERVICE AND NOW, this 12th day of January 2005, I, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing Praecipe to Enter Judgment of Non Pros upon the following: VIA FIRST CLASS MAIL Mark C. Duffy,Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Attorney for Plaintiffs ABOM& KUTUI.AKIS, L.L.P. Jas ' n P. Kutulakis 36 outh Hanover Street Carlisle, PA 17013 -> r, • -;, ??- ' :;_- , _ ;;, t, _ W IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WENDY L. FINZEL AND ERNEST C. FINZEL : Husband and Wife, Individually and on behalf of their minor child LINDSEY M. M. DOCKET NO.: 045696 FINZEL Vs. : ACCEPTANCE OF SERVICE STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually and d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually ACCEPTANCE OF SERVICE 2. day of December, 2004, I, Mark C. Duffle, Esq., AND NOW, this hereby certify that I did receive and accept service of Praecipe and Rule to File a Complaint in the above captioned matter on behalf of the Defendant, Wendy Finzel, Ernest Finzel, and their minor child Lindsey Finzel, and I further certify that I am authorized to do so. DATE t al-v l oy Respectfully submitted, ABOM& KOTULA"S, L.L.P Mark C. Duffie, E quire Attorney for Plaintiff fi ? `35 x: }tip.,. G.. -f 4`J ICJ o l IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WENDY L. FINZEL AND ERNEST C. FINZEL : Husband and Wife, Individually and on behalf of their minor child LINDSEY M. M. DOCKET NO.: 04-5696 FINZEL Vs. PRAECIPE OF ENTRY OF APPEARANCE STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually and d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually TO THE PROTHONOTARY OF SAID COURT: PRAECIPE OF ENTRY OF APPEARANCE Please enter my appearance on behalf of the Defendants Stone Hill, Ltd. and Nicole C. Estep, in the above-captioned matter. DATE: FEBRUARY 10, 2005 Respectfully submitted, ABOM& KUTDL uzs, LLP c? Jaso . KutuLzlds, Esquire 36 . Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 80411 Michael T. Traxler, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 90961 CERTIFICATE OF SERVICE AND NOW, I, Jason P. Kutulakis, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Entry of Appearance by First Class U.S. Mail at the following: Mark C. Duffle Attorney for the Plaintiff 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Respectfully submitted, ABom& KU7v1AKzS, LLP DATE 41??195 jj'UVLG/ J# )n P. Kutulakis, Esquire 3 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 T."• ? t,., .(? ? ? - Awm& KUTULAUS, LLP 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 WENDY L. FINZEL AND ERNEST C. : IN THE COURT OF COMMON PLEAS FINZEL, Husband and Wife, Individually CUMBERLAND COUNTY, PENNSYLVANIA and on behalf of their minor child LINDSEY : M. M. FINZEL Plaintiffs V. DOCKET NO.: 04-5696 CIVIL TERM STONE HILL, Ltd d/b/a "STONE HILL, : INC." And NICOLE C. ESTEP, Individually : And d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually Defendants NOTICE TO PLEAD TO: Mark C. Duffie Attorney for the Plaintiff 301 Market Street P.O. Box 109 Lemoyne, PA 17043 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS OF DEFENDANTS WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING. ABOM& KUTUL4W, LLP 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 WENDY L. FINZEL AND ERNEST C. IN THE COURT OF COMMON PLEAS FINZEL, Husband and Wife, Individually CUMBERLAND COUNTY, PENNSYLVANIA and on behalf of their minor child LINDSEY : M. M. FINZEL Plaintiffs V. : DOCKET NO.: 04-5696 CIVIL TERM STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually And d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually Defendants DEFENDANTS' PRELIMINARY OBIECTIONS Defendants, Stone Hill, Ltd d/b/a "Stone Hill Inc." (hereinafter "Stone Hill's and Nicole C. Estep (hereinafter "Estep"), by and through Abom & Kutulalds, I.LP, preliminarily object to Plaintiffs Complaint pursuant to Pa.R.C.P. 1028 as follows: 1. LEGAL INSUFFICIENCY OF PLAINTIFFS' COMPLAINT (DEMURRER) COUNTS I & 2- GROSS NEGLIGENCE AND NEGLIGENCE. 1. Plaintiffs' Complaint fails to state a cause of action against the Stonehill and Estep for both gross negligence and negligence. 2. Plaintiffs have asserted a cause of action against Stone Hill and Estep based on gross negligence and negligence. 3. The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a casual connection between the defendant's breach and the resulting injury; and (4) actual loss or damage suffered by the complainant. Peters v. Sidorov, 855 A.2d 894, 89EI (Pa. Super. 2004). 4. In addition to proving these elements, in a gross negligence claim, a plaintiff must prove that such breach was willful or wanton. 5. The Complaint failed to adequately establish that Stonehill and Estep owed a duty of care to Plaintiffs. 6. The Complaint failed to aver that Stone Hill and Estep acted willfully or wantonly in a manner that caused them to breach their duty of care to the Plaintiffs. 7. The Complaint failed to aver a causal connection between Stone Hill and Estep's alleged breach and the resulting injury to the Plaintiffs. 8. Injury to the horse alone is not sufficient because the horse is not a Plaintiff to these causes of action. 9. The Complaint failed to aver that the Plaintiffs suffered actual loss or damage as a direct and proximate cause of Stone Hill and Estep. 10. The Plaintiff failed to aver facts necessary to establish a claim for gross negligence or negligence. WHEREFORE, due to Plaintiffs' failure to establish a legally sufficient claim in gross negligence and negligence, Stone Hill and Estep respectfully request that Plaintiffs' Gross Negligence and Negligence claim be stricken. II. LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAINT (DEMURRER) DEFENDANT ESTEP IS PROTECTED BY THE: CORPORATE VEIL. 11. Defendants incorporate by reference paragraphs 1 through 10 as though set forth at length. 12. Estep is protected from liability by Stone Hill's corporate veil. 13. All actions and/or inactions the Complaint alleges were taken by Estep, were taken by Estep while in the course and scope of her affiliation with Stone FEB. 14. Stone Hill is a Pennsylvania corporation duly formed and organized under the laws of the Commonwealth of Pennsylvania. 15. Estep is an adult individual who signed the Board Agreement as a "Stone Hill, Ltd." representative. 16. Estep is protected by Stone Hill's corporate veil. 17. Factors which may, at times, justify disregarding the corporate form include substantial intermingling of corporate and personal affairs, undercapitalization, failure to adhere to corporate formalities, and using a corporate form to perpetrate a fraud. Knoll v. Butler, 675 A.2d 1308, 1314 (Pa. Cmwlth. 1996) 18. There is a strong presumption in Pennsylvania against piercing the corporate veil. Good v. Holstein, 787 A.2d 426,430 (Pa. Super. 2001). 19. The Complaint fails to allege sufficient factors that could pierce Stone Hill's corporate veil. WHEREFORE, Estep respectfully requests that she be dismissed as a defendant due to the fact that she is protected from liability by the corporate veil of Stone Hill, Ltd. III. LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAINT (DEMURRER) DEFENDANTS STONE HILL AND ESTEP ARE NOT :LIABLE FOR DEFENDANT CRAWFORD'S ACTIONS AND/OR INACTIONS. 20. Defendants incorporate by reference paragraphs 1 through 19 as though set forth at length. 21. The Complaint failed to aver why Stone Hill and Estep would be held responsible for the actions taken by David Crawford(hereinafter "Crawford").. 22. It is believed and therefore averred that Defendant Crawford was hired as an Independent contractor by the Plaintiffs for the services he provided during the time Plaintiffs' cause of action is alleged to have arisen. 23. Plaintiffs directly paid Defendant Crawford $125.00 via check #3673 for his services on the date at issue. 24. Therefore, at the time of this alleged incident a contractual agreement existed between the Plaintiffs and Defendant Crawford, separate and apart from the Boarding Agreement entered into by Stonehill and Plaintiffs. 25. It is believed and therefore averred that Defendant Crawford was acting in the course and scope of his contractual agreement with the Plaintiffs at the time of this alleged incident. 26. The services being performed at or near the time of the alleged incident were not being conducted through a contractual agreement with Stone Hill or Est:ep. 27. Defendant Crawford was acting as an independent contractor on the date in question, and Stone Hill and Estep are therefore not be responsible for Crawford's actions and/or inactions. 28. Generally, "the employer of an independent contractor is not liable for physical harm caused to another by an action or omission of the contractor or his servants." Donnelly v. Southeastern Pennsylvania Transportation Authority, 708 A.2d 145,148 (Pa. Cmwlth. 1998). 29. Defendant Crawford is not and was not at the time of this alleged incident, acting as an employee of Stone Hill or Estep. 30. Additionally, the Complaint failed to aver sufficient facts that establish such an employment relationship that would hold Stone Hill and Estep legally responsible for Defendant Crawford's actions and/or inactions. 31. In order to determine whether one is an independent contractor, or an employee; one must consider the following factors: control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer, and also the right to terminate the employment at any time. Helsel v. Complete Care Services. L.P., 797 A.2d 1051, 1055 (Pa. Cmwlth. 2002). WHEREFORE, given the Plaintiff's failure to establish that Stone Hill and Estep were legal responsibility for Defendant Crawford's actions and/or inactions, they respectfully request this Complaint be dismissed. IV. LEGAL INSUFFICIENCY OF A PLEADING (DAMAGES) 32. Defendants incorporate by reference paragraphs 1 through 31 as though set forth at length. 33. The allegations in the Complaint that Plaintiffs attributed directly to Defendant Stone Hill and Defendant Estep do not rise to the level of egregiousness that would warrant the award of punitive damages. 34. Pennsylvania has adopted Section 908(2) of the Restatement (Second) of Torts regarding the imposition of punitive damages and permits punitive damages only for conduct that is "outrageous because of the defendant's evil motives or his reckless indifference to the rights of others." Feld v. Merriam, 485 A.2d 742 (1984) (quoting Restatement (Second) of Torts § 908(2)). 35. A court may award punitive damages only if the described conduct was "malicious, wanton, reckless, willful, or oppressive." Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963). 36. The proper focus is "on the act itself together with all the circumstances including the motive of the wrongdoer and the relations between the parties..." Id. 37. The Complaint failed to adequately plead that Stone Hill and Estep physically injured and/or condoned such behavior. 38. The Complaint failed to adequately plead the basis for which Plaintiffs were claiming punitive damages. V. LACK OF CAPACITY TO SUE PURSUA %%rr TO RULE 1028(A)(5) 39. Defendants incorporate by reference paragraphs 1 through 38 as though set forth at length. 40. The Complaint lists Wendy L. Finzel and Ernest C. Fiinzel as Plaintiffs. 41. The Complaint lists Lyndsey M. Finzel as a Plaintiff. 42. The Complaint fails to plead ownership of the horse in Wendy L. Finzel, and Ernest C. Finzel. 43. The Complaint fails to plead ownership of the horse in Lindsey M. Finzel. 44. Plaintiffs right of Complaint references a Board Agreement. 45. The Board Agreement shows Wendy L. Finzel as the sole owner of the horse. See Board Agreement attached hereto as Exhibit "A." As owner of the horse, only Wendy L. Finzel has capacity to sue. WHEREFORE, Stonehill and Estep respectfully request this Court dismiss Ernest C. Finzel and Lindsey M. Finzel for lack of capacity to sue. DATE Respectfully submitted, ABom& KuTUL u7s, LLP Jas n P. Kutulakis, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Defendani: VERIFICATION Jason P. Kutulakis, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and/or because the party for whom he makes this affidavit is outside the jurisdiction of the court, and verification of none of them can be obtained within the time allowed for the filing of the document; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document, and that this statement is made subject to the penalties of 18 Pa.C.S. 4904, relating to unworn falsification of authorities. Date: /q1) -9'?; I Jaso P. Kutulakis, Esquire "Stone Hill, Ltd. " Nicole C. Estep 620 Willow Mill Pk RD Mechanicsburg, PA 17055 Board Agreement "Stone Hill, Inc at ABC farm" and/or Nicole C. Estep hereby agrees to board the _ hand, -? (color),1- (sex), /A (age) year old horse, known as, /3nm /(name) hereinafter referred to as the "Horse" and owned by 1 (owner) of IF) I,). L-fit ,21 s C t L) }?)4-j ??\\ zip I ?M55ddress),telephone (home) )2•L2fj2 (work)')O_ Z(wForthesumof$ 4nn•"O per month "Board" under the following terms: 1. Full Care Includes A. stall cleaning B. turnout in maintained paddocks (weather permitting)„ C. two feedings daily, morning and evening, D. general look after and care for the Horse's well-being including arrangements for annual, semi-annual or quarterly vaccinations and worming, 2. All medical care will be provided by a veterinarian and all shooting provided by a farrier, and will be the expense of the Owner. In case of major illness or injury, "Stone Hill, Inc at ABC farm" will attempt to contact the Owner of the horse at the telephone numbers contained in this agreement. "Stone Hill, Ltd_" reserves the right to tall a veterinarian if, at its sole discretion, such action is in the Horse's best interest, and to authorize such emergency treatment as the veterinarian advises. The Horse shall be free from infections and contagious or transmissible diseases. The following documents are required A. Veterinarian's Health Certificate B. Current Negative Coggin Test certificate C. Immunization record D. Worming record "Stone Hill, Ltd." reserves the right to terminate this agreement within seven days of arrival or execution of this agreement, whichever is earlier, if the above documents are not received. EXHIBIT 3. "Stone Hill, Ltd." reserves the right to notify the Owner if the Horse in "Stone Hill, Ltd's" opinion is deemed dangerous or otherwise undesirable for the boarding stable. In such case, the Owner is responsible for removing the Horse from the premises within fourteen days of such written notice and payment of all fees incurred during Horse's period of board. After all fees have been paid, this agreement is terminated. 4. The undersigned and anyone associated with the undersigned agrees to comply with all barn rules and regulations in accordance with "Stone Hill, Ltd.". Failure to observe these rules and regulations will result in immediate termination of this agreement. In this case it is the responsibility of the owner to remove the horse from the premises with in fourteen days of such written notice and payment of all fees insured during Horse's period of board. 5. The undersigned agrees to hold harmless and indemnify "Stone Hill, Ltd." its employees, farm owners or agents, from any and all claims, suits, judgements, or any costs whatsoever, including attorneys' fees arising from any bodily injury or property damage: caused by the Horse to any person, horse, or property. 6. The board fee is due and payable in advance for the entire month., or part thereof, on the first day of each calendar month. "Stone Hill, Ltd." reserves the right to charge a late fee of $ 5.00 per day for any bills or fees not paid by the tenth of that month. 7. In the event that the Board fee is not received within 60 days of the due date, "Stone Hill, Ltd." may exercise alien against the Horse for all unpaid boarding fees and other accrued charges including attorneys` fees and shall be entitled to enforce the lien and sell of the Horse for the amount due in accordance with the appropriate laws of the State of Pennsylvania. Removal of the Horse from the premises may not occur prior to all debts to ";hone Hill, Ltd." being satisfied in W. 8. The Owner agrees that "Stone Hill, Ltd.", its employees, agents, and farm owners are not liable for the illness, accidental injury, or death occurring to the Horse by any cause whatsoever, except if caused by the willful and gross negligence by "Stone Hill, Ltd."„ its employees or agents. 9. "Stone Hill, Ltd." is not responsible for any personal property. It is the responsibility of each Owner to secure personal property and to carry full insurance, including coverage on the Horse and all personal property. 10. "Stone Hill, Ltd." reserves the right to terminate this agreement within thirty days of written notice to the Owner. All debts to "Stone Hill, Ltd." shall be satisfied prior to removal of the Horse from the premises and termination of the agreement. Owner must give thirty days written notice prior to the termination of this agreement. 11. This agreement represents the entire agreement between the parties. All terms and conditions of the agreement shall be binding upon "Stone Hill, Ltd." and on the Owner and their heirs, agents, successors, and assigns. Amendments to the terms of the agreement may only be made by written agreement to the parties. This agreement and any disputes concerning the construction or effect of this contract shall be interpreted and governed according to the laws of the State of Pennsylvania. "Stone Hill, Ltd." representative Date /0 //9/01 Owner of the Horse signature Name (print) Address (current) i Date) o 1?-40 Phone (home) ?? S? (work) 9- (, Z V Release Form hereby release Nicole C. Estep, her employees, ,&-?n owners, agents, and representatives, from any and all liability for injuries or other loss sustained by me or my horse resulting from riding lessons. I understand and fully assume all risks associated with horseback riding and lessons given therefore. Date: I I A'/o L , F2, Signature,UJII"UI-, Address: w, `.OW T 1 Nth 9A I-7 0-33 S- Phone: (home) 72) 2-, 2-ZSZ (work) 9 0 1 - 17, OC? CERTIFICATE OF SERVICE AND NOW, I, Jason P. Kutulakis, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Defendants' Preliminary Objections by First Class U.S. Mail at the following Mark C. DaiEe Attorney for the Plaintiff 301 Market Street P. O. Box 109 Lemoyne, PA 17043 Respectfully submitted, ABom& KuTUl'.A"s, LLP DATS cy? AY ) uC,?-- Jn P. Kutulakis, Esquire 3t. Hanover Street Carlisle, PA 17013 (717) 249-0900 Johnson, Duffle, Stewart & Weidner By: Marls C. Duffie I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 WENDY L. FINZEL and ERNEST C. FINZEL, husband and wife, Plaintiffs V. STONE HILL, LTD., d/b/a "STONE HILL, INC. at ABC Farm" and Stone Hill Stables and NICOLE C. ESTEP, individually and d/b/a "STONE HILL, INC., at ABC Farm" and Stone Hill Stables and DAVID CRAWFORD, individually, Defendants NOTICE TO DEFEND Docket No. 04-5696 CIVIL ACTION - LAW JURY TRIAL DEMANDED 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. Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, [as demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 :246001 Johnson, Duffie, Stewart & Weidner By: Mark C. Duffie I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcd@jdsw.com WENDY L. FINZEL and FINZEL, husband and wife 13 West Locust Street Enola. PA 17025 Attorneys for Plaintiffs ERNEST C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. STONE HILL, LTD., d/b/a "STONE HILL, INC., at ABC Farm" and Stone Hill Stables 6962 Wertzville Road Enola, PA 17025 and NICOLE C. ESTEP, individually and d/b/a "STONE HILL, INC., at ABC Farm and Stone Hill Stables 6962 Wertzville Road Enola, PA 17025 and DAVID CRAWFORD, individually Docket No. 04-5696 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants AMENDED COMPLAINT AND NOW, comes the Plaintiffs, by and through their attorneys, Johnson, Duffie, Stewart & Weidner, and files this Complaint and in support thereof avers as follows: 1. Plaintiff, Wendy L. Finzel, an adult individual, currently resides and at all times relevant hereto resided at 13 West Locust Street, Enola, Cumberland County, Pennsylvania 17025. 2. Plaintiff, Ernest C. Finzel, an adult individual, currently resides and at all times relevant hereto resided at 13 West Locust Street, Enola, Cumberland County, Pennsylvania 17025. He is married to Wendy L. Finzel, Co-Plaintiff herein. 3. Defendant, Stone Hill, Ltd., is a Pennsylvania corporation duly formed and organized under the laws of the Commonwealth of Pennsylvania, on or about September 5, 2001, and having a registered address of 6962 Wertzville Road, Enola, Cumberland County, Pennsylvania 17025. Defendant, Stone Hill, Ltd., trades and does business as Stone Hill Stables and/or Stone Hill, Inc., at ABC Farm (hereinafter "Stone Hill"). 4. Defendant, Nicole C. Estep, is an adult individual residing at 6962 Wertzville Road, Enola, Cumberland County, Pennsylvania 17025 (hereinafter "Estep") 5. Defendant, David Crawford, is an adult individual who previously resided in Pennsylvania and is now believed to be residing in Florida (hereinafter "Crawford"). At all times relevant to the present pleading and the events outlined herein, it is believed and therefore averred that Crawford, was employed by and under the direct supervision of Stone Hill and/or Estep. 6. Prior to October 30, 2001, Ernest C. Finzel and Wendy L. Finzel acquired a horse for their minor child, Lyndsey M. M. Finzel. The horse was named "Around the Benn" or just "Senn" for short. Ernest C. Finzel and Wendy L. Finzel are co-owners of Benn. 7 On or about October 30, 2001, Wendy L. Finzel entered into a "Board Agreement" with Stone Hill and Estep, individually, wherein Stone Hill and Estep, individually, agreed to board Benn. Both Stone Hill and Estep, individually were parties to the Agreement. Further evidencing Defendant Estep's intent to enter into the Agreement as an individual, Plaintiff Wendy L. Finzel executed a Release Form presented to Plaintiff Wendy L. Finzel releasing "Nicole C. Estep, employees, farm owners, agents, and representatives, from any and all liability for injuries or other loss sustained by me or my horse resulting from riding lessons." A true and correct copy of said Board Agreement and Release is attached hereto and incorporated herein as Exhibit "A". 8. In the Board Agreement, Stone Hill and Estep, individually, agreed to provide "full care" which included "general look after and care for the horse's well- being...". 9. Said Board Agreement provides in paragraph 8 language with respect to liability as follows: The Owner [Wendy L. Finzel] agrees that "Stone Hill, Ltd.", its employees, agents, and farm owners are not liable for the illness, accidental injury, or death occurring to the horse by any cause whatsoever, except if caused by the willful and gross negligence by "Stone Hill, Ltd.", its employees or agents. 10. On Sunday, November 17, 2002, Plaintiffs Wendy L. Finzel and her daughter, Lyndsey M. M. Finzel, arrived at the property of Stone Hill and Estep, where Benn was boarded for the purpose of having Benn clipped. 11. During the clipping, Benn was in the care, custody, and control of all Defendants and the actual clipping of Benn was performed by Defendant Crawford and was supervised and assisted by Defendants Estep and Stone Hill. 12. During the clipping, Defendant Crawford punched or struck Benn in the face approximately three (3) times. After having beaten Benn about the face with his fists, Defendant Crawford beat Benn with a blue metal-handled broom on his face and neck repeatedly until the metal-handled broom broke. After the broom broke, Defendant Crawford beat Benn repeatedly and extensively all over his body with an aluminum shovel. At all times during the course of the abuse, Defendants Estep and Stone Hill were present, participated in the action by assisting Defendant Crawford in restraining Benn and made no indication or did anything but condone the outrageous conduct and behavior of Defendant Crawford. The actions of Defendants Stone Hill and Estep in assisting Defendant Crawford and permitting this abuse by inaction was intentional, wanton and reckless. 13. At all times relevant hereto, Defendant Crawford was an employee of, Stone Hill and/or Estep, individually. At all times relevant hereto: (a) Defendant Crawford was under the direct control and supervision of Defendants Stone Hill and/or Estep. (b) Defendant Crawford performed duties for and under the control and direction of Defendants Stone Hill and/or Estep including but not limited to cleaning the stalls, caring for the horses and general maintenance and upkeep of the property. (c) Defendant Crawford, in discharging his duties as an employee, utilized the supplies, tools and equipment of Defendants Stone Hill and/or Estep. (d) Defendant Crawford was employed on a regular basis during regular hours and compensated by Defendants Stone Hill and/or Estep. (e) It is believed and therefore averred that Defendant Stone Hill and Defendant Estep compensated Defendant Crawford as an employee. 14. At all times relevant hereto, Defendant Estep was acting individually and/or in the capacity of an employee, representative and/or agent of Defendant Stone Hill. 15. At all times relevant hereto, and during the course of the egregious conduct described herein, all Defendants, representatives, employees, and agents of Defendants were aware that the owner of Benn, Plaintiff, Wendy L. Finzel, and her 14 year old minor child, Lyndsey M. M. Finzel, were present on the property and, at various times, witnessing the conduct causing the harm and damage described herein. 16. Benn suffered a number of injuries including bruising and lacerations on various areas of his body, as well as, a severely bruised withers. 17. Lyndsey M. M. Finzel, the primary rider of Benn, was unable to ride Benn for several months while Benn recovered from the beating and abuse administered by the Defendants. COUNT I: NEGLIGENCE Plaintiffs vs. Stone Hill, Ltd., Nicole C. Estep and David Crawford 18. Paragraphs 1 through 17 are incorporated herein as if set forth fully. 19. As individuals and entities operating in the business of boarding and caring for horses, the Defendants Stone Hill, Estep and Crawford have a common law duty and a contractual duty to exhibit a level of care for Benn during the time Benn is in their care, custody and control. 20. With respect to Defendants Stone Hill and Estep, the duty is created by the language in the Contract and also by virtue of their common law duty to exercise ordinary care as bailee in a bailment for the mutual benefit of both parties. With respect to Defendant Crawford, Defendant Crawford owes a duty of care as an employee of Defendant Stone Hill and/or Defendant Estep under the contractually established standard of care and in his role as bailee by virtue of his employment with Defendant Stone Hill and Defendant Estep. 21. Defendant Stone Hill's and Defendant Estep's actions and inactions as set forth herein fall below the standard of reasonable care under the circumstances. Defendant Stone Hill and Defendant Estep failed to exercise reasonable care under the circumstances during their care, custody and control of Benn or exercise reasonable care in a mutually beneficial bailment. 22. Defendant Stone Hill, Defendant Estep and Defendant Crawford failed to exercise a reasonable standard of care as defined by prevailing customs in the business of boarding and caring for horses. 23. The Defendants, each by their actions or inactions, breached the duty or standard of care with respect to the Plaintiffs and Benn. 24. Not only did the actions and inactions of the Defendants fall short of what is reasonably expected under the circumstances, but their misconduct was intentional, wanton, reckless and egregious. 25. The actions or inactions of the Defendants herein, were the direct cause of the injuries and damages sustained by Benn and the Plaintiffs. The nature of the injuries sustained by Plaintiffs were included but not limited to veterinary bills, loss of use of Benn, foreseeable circumstantial damages and associated property damage. 26. But for the actions or inactions of all Defendants, Plaintiffs would not have suffered the injuries as described herein. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against the Defendants and award damages not in excess of the mandatory arbitration limit. COUNT II: GROSS NEGLIGENCE Plaintiffs vs. Stone Hill, Ltd., Nicole C. Estep and David Crawford 27. Paragraphs 1 through 26 are incorporated herein as if set forth fully. 28. Not only did the actions and inactions of the Defendants fall short of what is reasonably expected under the circumstances, but their misconduct was intentional, wanton, reckless and egregious. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against the Defendants and award damages not in excess of the mandatory arbitration limit. COUNT III: PUNITIVE DAMAGES Plaintiffs vs. Stone Hill, Ltd., Nicole C. Estep and David Crawford 29. Paragraphs 1 through 28 are incorporated herein as if set forth fully. 30. Of the actions and inactions of the Defendants were committed willfully, maliciously and so carelessly that they could indicate nothing but a wanton disregard for the rights of the Plaintiffs. 31. The conduct of physically beating and condoning such behavior is so outrageous as to warrant punitive damages, especially in light of the fact that damages based upon infliction of emotional distress are unavailable under the facts set forth herein. 32. Punitive damages would be appropriate in this case as they are damages purely penal in nature which would appropriately prevent this from future reoccurrences. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and award damages not in excess of the arbitration limit to include appropriate punitive damages. Respectfully submitted, JOHNSON, DUFFIIEEE, STEWAARRT & WEIDNER Date: ; - > CS By: Mark C. Duffie Attorneys for Plaintiffs VERIFICATION I, Mark C. Duffie, attorney for Plaintiffs, hereby certify that the matters asserted herein constitute matters of record, legal arguments and matters within the direct knowledge of counsel. The statements contained herein are true and correct to the best of the knowledge of the undersigned. This verification is made pursuant to the provisions of 18 Pa.C.S.A. §4904. M k C. Duffie, E uire Date: 3-3-6.5 CERTIFICATE OF SERVICE ?r- AND NOW, this 3 day of March, 2005, the undersigned does hereby certify that he did this date serve a copy of the foregoing upon the other party of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis, LLP 36 S. Hanover Street Carlisle, PA 17013 JOHNSON, DUFFIE,1E7FEWAR.T*WEIDNER By: C. Duffie, 239777 EXHIBIT "A" "Stone Hill, Ltd. " Nicole C. Estep 620 Willow Mill Pk RD Mechanicsburg, PA 17055 Board Agreement "Stone Hill, Inc at ABC farm" and/or Nicole C. Estep hereby agrees to board the ? hand, &td? (color), _ 4 (sex), /? (age) year old horse, known as, (name) hereinafter referred to as the "Horse" and owned by -1 IS,, fit - _EL (owner), of G )? ?) L f T ?? zip address), telephone (home) ` ?) Z • Z 2_S2 (work) 90 ` 2-0 d For the sum of $ 4On F° per month "Board" under the following terms: 1. Full Care Includes A. stall cleaning B. turnout in maintained paddocks (weather permitting), C. two feedings daily, morning and evening, D. general look after and care for the Horse's well-being including arrangements for annual, semi-annual or quarterly vaccinations and worming, 2. All medical care will be provided by a veterinarian and all shoeing provided by a farrier, and will be the expense of the Owner. In case of major illness or injury, "Stone Hill, Inc at ABC farm" will attempt to contact the Owner of the horse at the telephone numbers contained in this agreement. "Stone Hill, Ltd" reserves the right to call a veterinarian if, at its sole discretion, such action is in the Horse's best interest, and to authorize such emergency treatment as the veterinarian advises. The Horse shall be free from infections and contagious or transmissible diseases. The following documents are required: A. Veterinarian's Health Certificate B. Current Negative Coggins Test certificate C. Immunization record D. Worming record "Stone Hill, Ltd." reserves the right to terminate this agreement within seven days of arrival or execution of this agreement, whichever is earlier, if the above documents are not received. 3. "Stone Full, Ltd." reserves the right to notify the Owner if the Horse in "Stone Hill, Ltd's" opinion is deemed dangerous or otherwise undesirable for the boarding stable. In such case, the Owner is responsible for removing the Horse from the premises within fourteen days of such written notice and payment of all fees incurred during Horse's period of board. After all fees have been paid, this agreement is terminated. 4. The undersigned and anyone associated with the undersigned agrees to comply with all barn rules and regulations in accordance with "Stone Hill, Ltd.". Failure to observe these rules and regulations will result in immediate termination of this agreement. In this case it is the responsibility of the owner to remove the horse from the premises with in fourteen days of such written notice and payment of all fees incurred during Horse's period of board. 5. The undersigned agrees to hold harmless and indemnify "Stone Hill, Ltd" its employees, farm owners or agents, from any and all claims, suits, judgements, or any costs whatsoever, including attorneys' fees arising from any bodily injury or property damage caused by the Horse to any person, horse, or property. 6. The board fee is due and payable in advance for the entire month, or part thereof, on the first day of each calendar month. "Stone Hill, Ltd." reserves the right to charge a late fee of $ 5.00 per day for any bills or fees not paid by the tenth of that month. 7. In the event that the Board fee is not received within 60 days of the due date, "Stone Hill, Ltd." may exercise a lien against the Horse for all unpaid boarding fees and other a=ued charges including attorneys' fees and shall be entitled to enforce the lien and sell of the Horse for the amount due in accordance with the appropriate laws of the State of Pennsylvania. Removal of the Horse from the premises may not occur prior to all debts to "Stone Hill, Ltd." being satisfied in full. 8. The Owner agrees that "Stone Hill, Ltd.", its employees, agents, and farm owners are not liable for the illness, accidental injury, or death occurring to the Horse by any cause whatsoever, except if caused by the willful and gross negligence by "Stone Hill, Ltd", its employees or agents. 9. "Stone Hill, Ltd." is not responsible for any personal property. It is the responsibility of each Owner to secure personal property and to carry full insurance, including coverage on the Horse and all personal property. 10. "Stone Hill, Ltd." reserves the right to terminate this agreement within thirty days of written notice to the Owner. All debts to "Stone Hill, Ltd." shall be satisfied prior to removal of the Horse from the premises and termination of the agreement. Owner must give thirty days written notice prior to the termination of this agreement. 11. This agreement represents the entire agreement between the parties. All terms and conditions of the agreement shall be binding upon "Stone Hill, Ltd." and on the Owner and their heirs, agents, successors, and assigns. Amendments to the terms of the agreement may only be made by written agreement to the parties. This agreement and any disputes concerning the construction or effect of this contract shall be interpreted and governed according to the laws of the State of Pennsylvania. "Stone Hill, Ltd." representative Date 10116101 Owner of the Horse signature 1 Date Name (print) Address (current) Phone (home)y w Sc? (work) 9 01 • ?Q?C? Release Farm L P T LIE- hereby release Nicole C. Estep, her employees, owners, agents, and representatives, from any and all liability for injuries or other loss sustained by me or my horse resulting from riding lessons. I understand and fully assume all risks associated with horseback riding and lessons given therefore. II ''?,?? ,.ff n Date: I I ?9`o I Signature:V?l`?/`PJU? A 7Dg Name: L , F1. T\ Address: I iJJ ©CJ, A - T ] PA 1-7 cl Phone: (home) Z • Z ZZSZ (work) 9()1- I Z-0-0 ?..1 / "' ;? t f'..? ` J? CW ,iY t .? ? ? J _ . i. , SHERIFF'S RETURN - REGULAR t CASE NO: 2004-05696 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINZEL WENDY L ET AL VS STONE HILL LTD ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ESTEP NICOLE the DEFENDANT , at 1955:00 HOURS, on the 18th day of November-, 2004 at 6962 WERTZVILLE ROAD ENOLA, PA 17025 NICOLE ESTEP a true and attested copy of WRIT OF SUMMONS by handing to together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this day of ?l ^k,???.?,UVJI A.D. othonotary So Answers: R. Thomas Kline 11/19/2004 JOHNSON DUFFIE STEWART WEIDNER 13y: Deputy Sheriff CASE NO: 2004-05696 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINZEL WENDY L ET AL VS STONE HILL LTD ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS STONE HILL LTD D/B/A STONE HILL INC the DEFENDANT , at 1955:00 HOURS, on the 18th day of November-, 2004 at 6962 WERTZVILLE ROAD ENOLA, PA 17025 NICOLE C ESTEP was served upon by handing to ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.40 Affidavit .00 Surcharge 10.00 .00 35.40 So Answers: R. Thomas Kline 11/19/2004 JOHNSON DUFFIE STEWART WEIDNER Sworn and Subscribed to before me this t, day of Joy A.D. ' 11rothonotary By: Deputy Sheriff . &1 CASE NO: 2004-05696 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINZEL WENDY L ET AL VS STONE HILL LTD ET AL DAVID MCKINNEY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ESTEP NICOLE C D/B/A STONE HILL INC the DEFENDANT , at 1955:00 HOURS, on the 18th day of November-, 2004 at 6962 WERTZVILLE ROAD ENOLA, PA 17025 NICOLE C ESTEP by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 nn So Answers: R. Thomas Kline 11/19/2004 JOHNSON DUFFIE STEWART WEIDNER Sworn and Subscribed to before me this day of A. D. P othonotary By: 12, Deputy Sheriff ABOM&KUTULAKIS, LLP 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 WENDY L. FINZEL AND ERNEST C. IN THE COURT OF COMMON FINZEL, Husband and Wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : DOCKET NO.: 04-5696 CIVIL STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually And d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually Defendants NOTICE TO PLEAD TO: Mark C. Duffle Attorney for the Plaintiff 301 Market Street P.O. Box 109 Lemoyne, PA 17043 DAYS OF THE DATE OF SERVICE OF THIS PLEADING. ABOM & KUTULMUS, LLP 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 WENDY L. FINZEL AND ERNEST C. FINZEL, Husband and Wife, IN THE COURT OF COMMON PLEA CUMBERLAND COUNTY, PENNSYL ANIA Plaintiffs V. DOCKET NO.: 04-5696 CIVIL TERM STONE HILL, Ltd d/b/a "STONE HILL, INC." and NICOLE C. ESTEP, Individually And d/b/a STONE HILL INC., and DAVID CRAWFORD, Individually Defendants DEFENDANTS' PRELIMINARY OBJECTIONS Defendants, Stone Hill, Ltd d/b/a "Stone Hill Inc." (hereinafter "Stone Hill") and (hereinafter "Estep"), by and through Abom & Kutulakis, LLP, preliminarily object to Complaint pursuant to Pa.R.C.P. 1028 as follows: 1. On January 21, 2005 Plaintiffs filed their original Complaint. 2. On February 10, 2005, Defendants filed Preliminary Objections to Plaintiffs' 3. On March 3, 2005, Plaintiffs filed an Amended Complaint making Defendants' Preliminary Objections moot. By letter dated March 7, 2005, Plaintiffs served Defendants the Amended Complaint. 1. LEGAL INSUFFICIENCY OF PLAINTIFFS' COMPLAINT (DEMU. COUNTS I & II- GROSS NEGLIGENCE AND NEGLIGENCE. 4. Plaintiffs' Complaint fails to state a cause of action against the Stonehill and gross negligence and negligence. 5. Plaintiffs have asserted a cause of action against Stone Hill and Estep based on C. Estep Amended set of a copy of for both negligence and negligence. 6. The elements necessary to plead an action in negligence are: (1) the existence of?a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a casual conn4ction between the defendant's breach and the resulting injury; and (4) actual loss or damage suffered by th? complainant. Peters v. Sidorov, 855 A.2d 894, 898 (Pa. Super. 2004). 7. In addition to proving these elements, in a gross negligence claim, a plaintiff mu* prove that such breach was willful or wanton. 8. The Complaint failed to adequately establish that Stonehill and Estep owed a dut of care to Plaintiffs. 9. The Complaint failed to aver that Stone Hill and Estep acted willfully or wantonly in a manner that caused them to breach their duty of care to the Plaintiffs. 10. The Complaint failed to aver a causal connection between Stone Hill and Estep?s alleged breach and the resulting injury to the Plaintiffs. 11. Injury to the horse alone is not sufficient because the horse is not a Plaintiff to }hese causes of action. 12. The Complaint failed to aver that the Plaintiffs suffered actual loss or damage a? a direct and proximate cause of Stone Hill and Estep. 13. The Plaintiff failed to aver facts necessary to establish a claim for gross negligence or negligence. WHEREFORE, due to Plaintiffs' failure to establish a legally sufficient claim in gr+ negligence and negligence, Stone Hill and Estep respectfully request that Plaintiffs' Gross Negligence a d Negligence claim be stricken. II. LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAINT (DED DEFENDANT ESTEP IS PROTECTED BY THE CORPORATE 14. Defendants incorporate by reference paragraphs 1 through 13 as though set for?h at length. 15. Estep is protected from liability by Stone Hill's corporate veil. 16. All actions and/or inactions the Complaint alleges were taken by Estep, if raked by Estep, were taken by Estep while in the course and scope of her affiliation with Stone Hill. 17. Stone Hill is a Pennsylvania corporation duly formed and organized under the lows of the Commonwealth of Pennsylvania. 18. Estep is an adult individual who signed the Board Agreement as a "Stone Hill, representative. 19. Estep is protected by Stone Hill's corporate veil. 20. Factors which may, at times, justify disregarding the corporate form include intermingling of corporate and personal affairs, undercapitalization, failure to adhere to formalities, and using a corporate form to perpetrate a fraud. Knoll v. Butler, 675 A.2d 1308, 1314 (Pa. Cmwlth. 1996) 21. There is a strong presumption in Pennsylvania against piercing the corporate veil. Good v. Holstein, 787 A.2d 426, 430 (Pa. Super. 2001). 22. The Complaint fails to allege sufficient factors that could pierce Stone Hill's corporate veil. WHEREFORE, Estep respectfully requests that she be dismissed as a defendant dee to the fact that she is protected from liability by the corporate veil of Stone Hill, Ltd. III. LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAINT (D DEFENDANTS STONE HILL AND ESTEP ARE NOT LIABLE FOR CRAWFORD'S ACTIONS AND/OR INACTIONS. 23. Defendants incorporate by reference paragraphs 1 through 22 as though set fo4h at length. 24. The Complaint failed to aver v by Stone Hill and Estep would be held responsible for the actions taken by David Crawford (hereinafter "Crawford").. 25. It is believed and therefore averred that Defendant Crawford was hired as an Independent contractor by the Plaintiffs for the services he provided during the time Plaintiffs' cause of action is alleged to have arisen. 26. Plaintiffs directly paid Defendant Crawford $125.00 via check #3673 for his on the date at issue. 27. Therefore, at the time of this alleged incident a contractual agreement existed bI ?tween the Plaintiffs and Defendant Crawford, separate and apart from the Boarding Agreement entered into by Stonehill and Plaintiffs. 28. It is believed and therefore averred that Defendant Crawford was acting in the ckourse and scope of his contractual agreement with the Plaintiffs at the time of this alleged incident. 29. The services being performed at or near the time of the alleged incident were nit being conducted through a contractual agreement with Stone Hill or Estep. 30. Defendant Crawford was acting as an independent contractor on the date in qu?stion, and Stone Hill and Estep are therefore not responsible for Crawford's actions and/or 31. Generally, "the employer of an independent contractor is not liable for physical harm caused to another by an action or omission of the contractor or his servants." Pennsylvania Transportation Authority, 708 A.2d 145, 148 (Pa. Cmwlth. 1998). 32. Defendant Crawford is not and was not at the time of this alleged incident, actng as an employee of Stone Hill or Estep. 33. Additionally, the Complaint failed to aver sufficient facts that establish such relationship that would hold Stone Hill and Estep legally responsible for Defendant Crawf? d's actions and/or inactions. 34. In order to determine whether one is an independent contractor, or an employl e; one must consider the following factors: control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for If whether one employed is engaged in a distinct occupation or business; which party supplie?, the tools; whether payment is by the time or by the job; whether work is part of the regular businessbf the 4 employer, and also the right to terminate the employment at any time. LP., 797 A.2d 1051, 1055 (Pa. Cmwlth. 2002). WHEREFORE, given the Plaintiff's failure to establish that Stone Hill and Estep responsibility for Defendant Crawford's actions and/or inactions, they respectfully request be dismissed. IV. LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAINT (D. DEFENDANTS STONE HILL AND ESTEP ARE NOT LIABLE FOR CRAWFORD'S INTENTIONAL ACTS. 35. Defendants incorporate by reference paragraphs 1 through 34 as though set 36. Even if Defendant Crawford were acting within the scope of his employment, force used by Defendant Crawford against the horse was exercised in manner that would Defendants Stone Hill and Estep not responsible as a matter of law. WHEREFORE, even if Defendant Crawford was acting within the scope of his intentional use of force was exercised in a manner that would make Defendants Stonehill responsible as a matter of law. V. LEGAL INSUFFICIENCY OF A PLEADING (DAMAGES) 37. Defendants incorporate by reference paragraphs 1 through 36 as though set 38. The allegations in the Complaint that Plaintiffs attributed directly to Defendant Estep do not rise to the level of egregiousness that would warrant the award of damages. 39. Pennsylvania has adopted Section 908(2) of the Restatement (Second) of Torts imposition of punitive damages and permits punitive damages only for conduct that is " because of the defendant's evil motives or his reckless indifference to the rights of others." Merriam, 485 A.2d 742 (1984) (quoting Restatement (Second) of Torts ? 908(2)). 40. A court may award punitive damages only if the described conduct was legal Complaint at length. amount of his Estep not at length. Hill and the wanton, reckless, willful, or oppressive." Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963). 41. The proper focus is "on the act itself together with all the circumstances inclu*g the motive of the wrongdoer and the relations between the parties..." Id. 42. The Complaint failed to adequately plead that Stone Hill and Estep physically i*jured and/or condoned such behavior. 43. The Complaint failed to adequately plead the basis for which Plaintiffs were punitive damages. VI. LACK OF CAPACITY TO SUE PURSUANT TO RULE 10280)(5) 44. Defendants incorporate by reference paragraphs 1 through 43 as though set 45. The Complaint lists Wendy L. Finzel and Ernest C. Finzel as Plaintiffs. 46. Plaintiffs Complaint references a Board Agreement. 47. The Board Agreement shows Wendy L. Finzel as the sole owner of the horse. at length. Board Agreement attached hereto as Exhibit "A." As owner of the horse, only Wendy L. Itinzel has capacity to sue. WHEREFORE, Stonehill and Estep respectfully request this Court dismiss Ernest 1C. Finzel for lack of capacity to sue. Respectfully submitted, ABOM&KUTULA"S,LLP Michael T. Traxler, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Defendants 6 VERIFICATION Michael T. Traxler, states that he is the attorney for the party filing the foregoing he makes this affidavit as an attorney, because the party he represents lacks sufficient know information upon which to make a verification and/or because he has greater personal knc the information and belief than that of the party for whom he makes this affidavit; and/or party for whom he makes this affidavit is outside the jurisdiction of the court, and verificati of them can be obtained within the time allowed for the filing of the document; and that he sufficient knowledge or information and belief, based upon his investigation of the matters denied in the foregoing document; and that this statement is made subject to the penalties < 4904, relating to unswom falsification of authorities. Date: 3 ?S Michael T. Traxler, Esquire :utnent; that edge or ivledge of ecause the m of none has iverred or f 18 Pa.C.S. CERTIFICATE OF SERVICE AND NOW, I, Michael T. Traxler, of ABOM & KUTULAKIS, certify that I did serve or cause to be served a true and correct copy of the Defendants' Preliminary Objections by First Class U.S. Mail at the Mark C. Duffle Attorney for the Plaintiff 301 Market Street P. 0. Box 109 Lemoyne, PA 17043 DATE nY n3"- Respectfully submitted, ABOM & KUTULA"S, LLP Michael T. Traxler, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 hereby r1 r;^i ? rn ?Z -., rh z r h - ('rl TES ? -_=. ;-7 ? _.;Cr7 -'7 ,? w . 4 i . -; r 7 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffie I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 WENDY L. FINZEL and ERNEST C. FINZEL, husband and wife, Plaintiffs V. STONE HILL, LTD., d/b/a "STONE HILL, INC., at ABC Farm" and Stone Hill Stables and NICOLE C. ESTEP, individually and d/b/a "STONE HILL, INC., at ABC Farm" and Stone Hill Stables and DAVID CRAWFORD, individually, Defendants Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 04-5696 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION PURSUANT TO PENNSYLVANIA R C P 230.2(d)(1) & (2) AND NOW, comes the Plaintiffs/Petitioners, Wendy L. Finzel and Earnest C. Finzel, husband and wife, by and through their attorneys, Johnson, Duffie, Stewart and Weidner, and files this Petition Pursuant to P.R.C.P.230.2(d)(1) & (2) and in support thereof, avers as follows: 1. The undersigned counsel received a Notice of Proposed Termination of court case with a required response on or before October 28, 2008. 2. The Prothonotary entered an order terminating the matter on October 29, 2008. 3. P.R.C.P. 203.2(d)(2) provides that if this Petition is filed within thirty (30) days after the entry of the Order of Termination on the docket, the Court shall grant the Petition and reinstate the action. 4. This Petition is filed within thirty (30) days after the entry of the Order of Termination and therefore by rule shall be granted. WHEREFORE, the Petitioners respectfully request this honorable Court to reinstate the above- captioned matter pursuant to P.R.C.P. 230.2(d)(2). Respectfully submitted, JOHNSON, DUFF F, ST RT WEIDNER By: ?-?? Mark C. Duffie Attorney I.D. o. 75906 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorney for Plaintiffs 351537 CERTIFICATE OF SERVICE AND NOW, this 26th day of November, 2008, the undersigned does hereby certify that he did this date serve a copy of the foregoing upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: Mark C. Duffle C? C ..? --w --i ~ „E S` ?.} C.r? ? -? , . _ Q-,, J : . Curtis R. Long Prothonotary Offire of the i3rotbonotarp 11 Renee K. Simpson Cumberranb Countp Deputy Prothonotary John E. Slike Solicitor d" l - 91.9L CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 WENDY L. FINZEL and ERNEST C. FINZEL, husband and wife, Plaintiffs V. STONE HILL, LTD., d/b/a "STONE HILL, INC., at ABC Farm" and Stone Hill Stables and NICOLE C. ESTEP, individually and d/b/a "STONE HILL, INC., at ABC Farm" and Stone Hill Stables and DAVID CRAWFORD, individually, Defendants Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 04-5696 CIVIL ACTION - LAW JURY TRIAL DEMANDED AMENDMENT TO PETITION PURSUANT TO PENNSYLVANIA R.C.P. 230.2(d)(1) & (2) AND NOW, comes the Plaintiffs/Petitioners, Wendy L. Finzel and Earnest C. Finzel, husband and wife, by and through their attorneys, Johnson, Duffle, Stewart and Weidner, and files this Amendment to Petition Pursuant to P.R.C.P.230.2(d)(1) & (2) and in support thereof, avers as follows: 1. No judge has ruled on this or any other issue in this or any related matter. 2. Concurrence of opposing counsel, Jason Kutalakis, was sought to which he replied that "he takes no position on the matter" 3. This Petition is filed within thirty (30) days after the entry of the Order of Termination and therefore by rule shall be granted. WHEREFORE, the Petitioners respectfully request this Honorable Court to reinstate the above- captioned matter pursuant to P.R.C.P. 230.2(d)(2). Respectfully submitted, JOHNSON, DUFFS, STEW & W)ZIDNER By: Mafk C. Duffie Attorney I.D. No. 06 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorney for Plaintiffs 351537 CERTIFICATE OF SERVICE AND NOW, this 14th day of January, 2009, the undersigned does hereby certify that he did this date serve a copy of the foregoing upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis 36 South Hanover Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART &)NE49NER By: / Mark C. Duffle CZZ ti' w "T7 -77 F-Irl ' 77 r 1 t i WENDY L. FINZEL and ERNEST C. FINZEL, husband and wife, Plaintiffs V. STONE HILL, LTD., d/b/a "STONE HILL, INC., at ABC Farm" and Stone Hill Stables, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW and NICOLE C. ESTEP, individually and d/b/a `STONE HILL, INC., at ABC Farm" and Stone Hill Stables and DAVID CRAWFORD, individually, Defendants NO. 04-5696 CIVIL TERM IN RE: PETITION PURSUANT TO PENNSYLVANIA R.C.P. 230.2(d)(1) & (2) and AMENDMENT TO PETITION PURSUANT TO PENNSYLVANIA R.C.P. 230.2(d)(1)&(2) ORDER OF COURT AND NOW, this 3rd day of February, 2009, upon consideration of the above matters, a Rule is hereby issued upon all other interested parties to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. SERVICE OF THIS RULE is to be made by Plaintiffs' counsel. Mark C. Duffie, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Plaintiffs ? Jason P. Kutulakis Esq. 36 South Hanover Street Carlisle, PA 17013 Attorney for Defendants :rc M;a ELL 44i/o? BY THE COURT, ( 1 Z Wd ?- 933 6002 3HI JO 301A? C)-? MA