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HomeMy WebLinkAbout13-4845 r c Supreme Court of Pennsylvania Cou ` Coom Pleas P et For Prothonotary Use Only: Docket No: Jt11V ST`t Cu ;rJ V County �r 1 %" , 00 V// 7 0 L lr The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as rewired by law or rules of court. Commencement of Action: S El Complaint Writ of Summons El Petition El Notice of Appeal ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking �E C Lead Plaintiff's Name: _ Lead Defendant's Name: I I T Mitzi M. Price, Administrator Carlisle Diner, Inc. I 0 Check here if you are a Self- Represented (Pro Se) Litigant 0 Name of Plaintiff/Appellant's Attorney: W. Scott Henning I Are money damages requested?: ❑X Yes ❑ No Dollar Amount Requested: ❑ within arbitration limits (Check one) �_ outside arbitration limits Is this a Class Action Suit? ❑ Yes ❑x No Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your + PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. i TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt C_ ollection: Other ❑ Board of Elections ❑ Nuisance r _ _ ❑ Dept. of Transportation ❑X Premises Liability ❑ Zoning Board S ❑ Product Liability (does not include ❑ Statutory Appeal: Other_ _ E mass tort) ❑ Employment Dispute: -- ❑ Slander/Libel/ Defamation Discrimination C ❑ Other: _ - ❑ Employment Dispute: Other - Judicial Appeals T ❑ MDJ - Landlord/Tenant I ❑ Other: ❑ MDJ - Money Judgment O MASS TORT - - ❑ Other: _ ❑ Asbestos N Tobacco HToxic Tort - DES ❑ Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Ejectment ❑ Common Law /Statutory Arbitration B ❑ Other: _ - _ El Eminent Domain/Condemnation El Declaratory Judgment { - - - ❑ Ground Rent ❑ Mandamus I ` ❑ Landlord/Tenant Dispute ❑ Non - Domestic Relations ❑ Mortgage Foreclosure Restraining Order PROFESSIONAL LIABLITY ❑ Partition ❑ Quo Warranto ❑ Dental ❑ Quiet Title ❑ Replevin ❑ Legal ❑ Medical ❑ Other _ _ ❑ Other: ❑ Other Professional: Pa.R.CPP, 205.5 212010 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N o.13 - Civil Action - ( ) Law ( ) Equity MITZI M. PRICE, Administrator of the CARLISLE DINER, INC. d /b /a CARLISLE DINER ESTATE OF OMER J. MCFALLS 800 W. High Street 521 S. Pitt Street, Carlisle, PA 17013 Carlisle, PA 17013 1800 HIGH STREET CORPORATION, d /b /a CARLISLE DINER 800 W. High Street Carlisle, PA 17013 -, wY C CARLISLE DINER°' - 800 W. High Street Carlisle, PA 17013 -<I" versus;. Plaintiff(s) & Defendant(s) & - -� Addresses Addresses PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue a Writ of Summons in the above captioned action. Writ of Summons shall be issued and forwarded to (x rney W. Scott Henning, Esquire 1300 Linglestown Road - Suite 2 Signature of Attorne Harrisburg, PA 17110 Supreme Court ID #3 8 (J (717)238-2.000 ?S'�c� 1� Date: T C ,3e, WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE -NAMED PLAINTIFF(S) HAS /HAVE COMMENCED AN ACTION AGAINST YOU. i D. f.^ A I ", A ^ Prothonotary Deputy Date: it 3� SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson �Lft ; 1 1• Sheriff Jody S Smith T ,� 2013 AUG 23 Pik 2= 26 . Chief Deputy Richard W Stewart CUMBERLA140 COUNTY Solicitor OFPCEE')FTir Sl,'Rt€= r-ENN5 i�J LVARIA Mitzi M Price,Adminsitrator of the Estate of Omer J. McFalls Case Number vs. 2013-4845 Carlisle Diner, Inc. d/b/a Carlisle Diner(et al.) SHERIFF'S RETURN OF SERVICE 08/16/2013 10:42 AM - Deputy Jeff Kolodzi, being duly sworn according to law, served the requested Writ of Summons by handing a true copy to a person representing themselves to be Tiffany Stoudt, who accepted as"Adult Person in Charge"for Carlisle Diner, Inc. d/b/a Carlisle Diner at 800 W. High Street, Carlisle Borough, Carlisle, PA 17013. J K ODZI, DEPUTY 08/16/2013 10:42 AM - Deputy Jeff Kolodzi, being duly sworn according to law, served the requested Writ of Summons by handing a true copy to a person representing themselves to be Tiffany Stoudt, who accepted as"Adult Person in Charge"for 1800 High Street Corporation d/b/a Carlisle Diner at 80 W. High Street, Carlisle Borough, Carlisle, PA 17013. s J F LODZI, DEPUTY 08/16/2013 10:42 AM- Deputy Jeff Kolodzi, being duly sworn according to law, served the requested Writ of Summons by handing a true copy to a person representing themselves to be Tiffany Stoudt, Manager, who accepted as"Adult Person in Charge"for Carlisle Diner at 800 W. High Street, Carlisle Boro , Carlisle, PA 17013. (� J= J F KtLODZI, DEPUTY SHERIFF COST: $67.24 SO ANSWERS, August 20, 2013 RbNW R ANDERSON, SHERIFF (c)County&!te Sheriff,Te!eosoit,Inc. i Stephen E.Geduldig,Esquire f, THE PROTIQNDTARY 'Attorney I.D.No.43530 (717)237-7119 2013 AUG 27 PH .1: IS E-Mail: seeduldiga,tthlaw.com Stephanie L.Hersperger,Esquire CUMBERLAND COUNTY Attorney I.D.No.78735 PENNSYLVANIA (717)255-7239 E-mail: shersperger(a�tthlaw.com THOMAS,THOMAS&HAFER,LLP 305 North Front Street PO Box 999 Harrisburg,Pennsylvania 17108-0999 Attorneys for Defendant: FAX (717)237-7105 Carlisle Diner MITZI M. PRICE, Administrator of the IN THE COURT OF COMMON PLEAS ESTATE OF OMER J. MCFALLS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. 13-4845 Civil CARLISLE DINER, INC. d/b/a CARLISLE DINER 1800 HIGH STREET CORPORATION, d/b/a CARLISLE DINER CARLISLE DINER, JURY TRIAL DEMANDED Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Stephen E. Geduldig, Esquire, Stephanie L. Hersperger, Esquire, and Thomas, Thomas &Hafer, LLP, as attorneys for Defendant, Carlisle Diner, in the above-captioned matter, reserving our right to answer or otherwise plead to Plaintiff's Complaint. Respectfully submitted, THOMAS, THOMAS & HAFER,'LLP Date: August ' 2013 ' 1340413.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 ST P A E L: HERSPERGER, ESQUIRE Attorney I.D.No. 78735 Attorneys for Defendant, CARLISLE DINER CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing PRAECIPE FOR ENTRY OF APPEARANCE was served by depositing the same in the United States Mail, First Class, postage prepaid, at Harrisburg, Pennsylvania, on all counsel of record as follows: W. Scott Henning, Esquire HANDLER, HENNING &ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg PA 17110 (Attorneys for Plaintiff) THOMAS, THOMAS & HAFER,LLP Date: August , 2013 1340413.1 Stephen E. Geduldig, Esquire r MITZI.M. PRICE, Administrator of the IN THE COURT OF COMMON PLEAS ESTATE OF OMER J. MCFALLS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. 13-4845 Civil CARLISLE DINER, INC. d/b/a CARLISLE DINER 1800 HIGH STREET CORPORATION, d/b/a CARLISLE DINER CARLISLE DINER, JURY TRIAL DEMANDED Defendant RULE TO FILE A COMPLAINT TO: W. Scott Henning, Esquire HANDLER, HENNING &ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg PA 17110 AND NOW, this A day of September, 2013, a Rule is hereby issued upon the Plaintiff to file a Complaint herein within twenty (20) days after service hereof, or suffer the entry of a Judgment of Non Pros pursuant to Pa.R.C.P. 1037(a). DATE? . �. 1J PROTHONOTARY Stephen E.Geduldig,Esquire Attorney I.D.No.43530TJ ��©i (717)237-7119 E-Mail: seeduldi tthlaw.com �FP Stephanie L.Hersperger,Esquire 717r 255I.D.9n0 .78735 pe� s y Ct(��f�/1 E-mail: sherspergertthlaw.com f�/A THOMAS,THOMAS&,HAFER,LLP 305 North Front Street PO Box 999 Harrisburg,Pennsylvania 17108-0999 Attorneys for Defendant: FAX (717)237-7105 Carlisle Diner MITZI M. PRICE, Administrator of the IN THE COURT OF COMMON PLEAS ESTATE OF OMER J. MCFALLS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. 13-4845 Civil CARLISLE DINER, INC. d/b/a CARLISLE DINER : 1800 HIGH STREET CORPORATION, d/b/a CARLISLE DINER CARLISLE DINER, JURY TRIAL DEMANDED Defendant PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule on Plaintiff to file a Complaint in the above case within twenty (20) days of service of said Rule, or suffer a judgment of non pros pursuant to Pa.R.C.P. 1037(a). Respectfully submitted, THOMAS,THOMAS & HAFER, LLP Date: September t , 2013 1351984.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D.No. 43530 Attorneys for Defendant, CARLISLE DINER CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing PRAECIPE FOR RULE TO FILE A COMPLAINT was served by depositing the same in the United States Mail, First Class, postage prepaid, at Harrisburg, Pennsylvania, on all counsel of record as follows: W. Scott Henning, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg.PA 17110 (Attorneys for Plaintiff) THOMAS, THOMAS & HAFER, LLP Date: September , 2013 1351984.1 Stephen E. Geduldig, Esquire THE PRO T HO'WTAR 201: 13 P: t 2 .�UcJ OCT t.i w� cLi'`rERLAND COUNTY FENP SYL VAN1A W. Scott Henning Attorney 1D#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717)238-2000 Attorney for Plaintiff(s) Fax : (717)233-3029 E-mail: Henning @hhrlaw.com Mitzi M.Price, Administrator of the Estate of : IN THE COURT OF COMMON PLEAS Omer J. McFalls, CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff(s) v. : NO. No. 2013-4845 : CIVIL ACTION- LAW Carlisle Diner,Inc. d/b/a Carlisle Diner et al., . Defendant(s) NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 717-249-3166 W. Scott Henning Attorney ID#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717)238-2000 Attorney for Plaintiff(s) Fax : (717)233-3029 E-mail: Henning @hhrlaw.com Mitzi M. Price,Administrator of the Estate of : IN THE COURT OF COMMON PLEAS Omer J. McFalls, CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff(s) v. : NO. No. 2013-4845 : CIVIL ACTION- LAW Carlisle Diner, Inc. d/b/a Carlisle Diner et al., . Defendant(s) • AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan alas adelante en las siguientes paginas,debe tomar accion dentro de los proximos veinte(20)dias despues de Ia notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en Ia demanda o cualquier otra reclamacion 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 USTED NO TIENE UN ABOGADO, LLAME 0 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 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 717-249-3166 W. Scott Henning(PA 32298) HANDLER,HENNING&ROSENBERG,LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Ph. 717.238.2000 Fax 717.233.3029 henning @hhrlaw.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MITZI M. PRICE, Administrator of the ESTATE OF OMER J. MCFALLS, NO.:2013-4845 Civil Plaintiff, v. CARLISLE DINER, INC. d/b/a CARLISLE CIVIL ACTION—LAW DINER, 1800 HIGH STREET CORP. d/b/a CARLISLE DINER, and CARLISLE DINER, Defendants. COMPLAINT AND NOW comes the Plaintiff, Mitzi M. Price ("Plaintiff'), as administrator of the Estate of Omer J. McFalls ("Mr. McFalls"), by and through their attorneys, HANDLER, HENNING & ROSENBERG, LLP, by W. Scott Henning, Esq., and brings forth this Complaint against Defendants, Carlisle Diner, Inc. d/b/a Carlisle Diner ("Carlisle Diner, Inc."), 1800 High Street Corp. d/b/a Carlisle Diner ("High Street"), and Carlisle Diner ("Carlisle Diner")(collectively, "Defendants"), and, in support thereof, aver as follows: 1. Plaintiff is an adult individual currently residing at 521 S. Pitt Street, Carlisle, Cumberland County, Pennsylvania. 2. Mr. McFalls died of unrelated causes prior to this action. 3. Plaintiff is Mr. McFalls' Estate's duly appointed administrator. 4. Carlisle Diner, Inc. is a corporation organized and existing under the laws of this Commonwealth, with a registered address of 800 W. High Street, Carlisle, Cumberland County, Pennsylvania. 5. High Street is a corporation organized and existing under the laws of this Commonwealth, with a registered address of 800 W. High Street, Carlisle, Cumberland County, Pennsylvania. 6. Carlisle Diner is a corporation organized and existing under the laws of this Commonwealth, with a registered address of 800 W. High Street, Carlisle, Cumberland County, Pennsylvania. 7. Plaintiff believes and therefore avers that at all times material hereto, Defendants were either jointly or alternately in ownership, possession, management, and/or control of real property located at 800 W. High Street, Carlisle, Cumberland County, Pennsylvania ("the Premises"). 8. Plaintiff believes and therefore avers that at all times material hereto, Defendants were either jointly or alternatively responsible for the maintenance and condition of the Premises. 9. At all times material hereto, Mr. McFalls was lawfully upon the Premises as a business invitee. 2 10. At all times material hereto, Defendants, who had joint or alternative control of said Premises, were aware, or should have been aware, of the fact that the carpet/mat/mat by the entrance to the diner had been crumpled, overlapped or moved in such a way that it was not lying flat and flush to the floor, thereby creating a tripping hazard. 11. At all times material hereto, there were no warning signs posted warning of the dangerous condition of the carpet/mat, nor were there any conspicuous markings to alert visitors to the dangerous condition of the carpet/mat. 12. On or about August 17, 2011, at approximately 2:30 p.m., Mr. McFalls was on the Premises to purchase and consume a meal. 13. Mr. McFalls tripped over the fold in the carpet/mat, and was caused to fall harshly upon his head. COUNT I —NEGLIGENCE Mitzi M. Price, as administrator of the Estate of Omer J. McFalls v. Carlisle Diner, Inc. d/b/a Carlisle Diner 14. All prior paragraphs are incorporated herein as if set forth fully below. 15. The occurrence of the aforementioned incident and the resulting injuries to Mr. McFalls were caused directly and proximately by Carlisle Diner, Inc.'s negligence and/or by the negligence of its agents, servants, workmen, or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In allowing the carpet/mat to become folded or crumpled, such that it was not lying flat and flush to the floor; (b) In positioning the carpet/mat such that the carpet/mat could become folded or crumpled such that it could become a tripping hazard; 3 (c) In failing to make a reasonable inspection of the Premises which would have revealed the existence of the dangerous condition posed by the condition of the carpet/mat and thereby allowing the same to be and remain a dangerous condition when Carlisle Diner, Inc. knew or should have known of the condition; (d) In failing to ensure the Premises was maintained in a safe condition, so as to prevent injury to Mr. McFalls and other persons lawfully upon the Premises; (e) In failing to purchase and utilize a carpet/mat that would not slip, slide, move, so as to become crumpled and folded over; (0 In failing to post a warning sign or device in the area to notify of the dangerous condition of the carpet/mat, or to otherwise mark the area so as to alert visitors to the dangerous condition of the carpet/mat; (g) In failing to repair or replace the carpet/mat, or to otherwise remedy the dangerous condition prior to Mr. McFalls' fall; and (h) In failing to maintain the Premises in a reasonably safe condition that would prevent a lawfully present individual from falling as a result of the dangerous condition of the carpet/mat. 16. Carlisle Diner, Inc. had actual knowledge, or should have known through the exercise of ordinary care and diligence, of the dangerous condition of the carpet/mat. 17. As a direct and proximate result of Carlisle Diner, Inc.`s negligence, Mr. McFalls has: 4 (a) Sustained injuries, including, but not limited to, head injuries; (b) Underwent medical treatment for said injuries; (c) Suffered physical pain, discomfort, and mental anguish to his detriment and loss, physically, emotionally, and financially; (d) Had been hindered from attending to his daily duties and activities to his detriment, loss, humiliation, and embarrassment; (e) Had suffered a loss of life's pleasures, to his detriment and loss; and (f) Had been compelled, in order to effect a cure for the aforesaid injuries, to expend money for medicine and medical attention, to his detriment and loss. WHEREFORE, Plaintiff, Mitzi M. Price, as administrator of the Estate of Omer J. McFalls, seeks damages from Defendant, Carlisle Diner, Inc. d/b/a Carlisle Diner, in an amount in excess of the compulsory arbitration limits of Cumberland County exclusive of interest and costs. COUNT II —NEGLIGENCE Mitzi M. Price, as administrator of the Estate of Omer J. McFalls v. 1800 High Street Corp. d/b/a Carlisle Diner 18. All prior paragraphs are incorporated herein as if set forth fully below. 19. The occurrence of the aforementioned incident and the resulting injuries to Mr. McFalls were caused directly and proximately by High Street's negligence and/or by the negligence of its agents, servants, workmen, or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: 5 • (a) In allowing the carpet/mat to become folded or crumpled, such that it was lying flat and flush to the floor; (b) In positioning the carpet/mat such that the carpet/mat could become folded or crumpled such that it could become a tripping hazard; (c) In failing to make a reasonable inspection of the Premises which would have revealed the existence of the dangerous condition posed by the condition of the carpet/mat and thereby allowing the same to be and remain a dangerous condition when High Street knew or should have known of the condition; (d) In failing to ensure the Premises was maintained in a safe condition, so as to prevent injury to Mr. McFalls and other persons lawfully upon the Premises; (e) In failing to purchase and utilize a carpet/mat that would not slip, slide, move, so as to become crumpled and folded over; (f) In failing to post a warning sign or device in the area to notify of the dangerous condition of the carpet/mat, or to otherwise mark the area so as to alert visitors to the dangerous condition of the carpet/mat; (g) In failing to repair or replace the carpet/mat, or to otherwise remedy the dangerous condition prior to Mr. McFalls' fall; and 6 • (h) In failing to maintain the Premises in a reasonably safe condition that would prevent a lawfully present individual from falling as a result of the dangerous condition of the carpet/mat. 20. High Street had actual knowledge, or should have known through the exercise of ordinary care and diligence, of the dangerous condition of the carpet/mat. 21. As a direct and proximate result of High Street's negligence, Mr. McFalls has: (a) Sustained injuries, including, but not limited to, head injuries; (b) Underwent medical treatment for said injuries; (c) Suffered physical pain, discomfort, and mental anguish to his detriment and loss, physically, emotionally, and financially; (d) Had been hindered from attending to his daily duties and activities to his detriment, loss, humiliation, and embarrassment; (e) Had suffered a loss of life's pleasures, to his detriment and loss; and (f) Had been compelled, in order to effect a cure for the aforesaid injuries, to expend money for medicine and medical attention, to his detriment and loss. WHEREFORE, Plaintiff, Mitzi M. Price, as administrator of the Estate of Omer J. McFalls, seeks damages from Defendant, 1800 High Street Corp. d/b/a Carlisle Diner, in an amount in excess of the compulsory arbitration limits of Cumberland County exclusive of interest and costs. COUNT III —NEGLIGENCE Mitzi M. Price, as administrator of the Estate of Omer J. McFalls v. Carlisle Diner 7 • 22. All prior paragraphs are incorporated herein as if set forth fully below. 23. The occurrence of the aforementioned incident and the resulting injuries to Mr. McFalls were caused directly and proximately by Carlisle Diner's negligence and/or by the negligence of its agents, servants, workmen, or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In allowing the carpet/mat to become folded or crumpled, such that it was not lying flat and flush to the floor; (b) In positioning the carpet/mat such that the carpet/mat could become folded or crumpled such that it could become a tripping hazard; (c) In failing to make a reasonable inspection of the Premises which would have revealed the existence of the dangerous condition posed by the condition of the carpet/mat and thereby allowing the same to be and remain a dangerous condition when Carlisle Diner knew or should have known of the condition; (d) In failing to ensure the Premises was maintained in a safe condition, so as to prevent injury to Mr. McFalls and other persons lawfully upon the Premises; (e) In failing to purchase and utilize a carpet/mat that would not slip, slide, move, so as to become crumpled and folded over; (f) In failing to post a warning sign or device in the area to notify of the dangerous condition of the carpet/mat, or to otherwise mark the 8 • • area so as to alert visitors to the dangerous condition of the carpet/mat; (g) In failing to repair or replace the carpet/mat, or to otherwise remedy the dangerous condition prior to Mr. McFalls' fall; and (h) In failing to maintain the Premises in a reasonably safe condition that would prevent a lawfully present individual from falling as a result of the dangerous condition of the carpet/mat. 24. Carlisle Diner had actual knowledge, or should have known through the exercise of ordinary care and diligence, of the dangerous condition of the carpet/mat. 25. As a direct and proximate result of Carlisle Diner's negligence, Mr. McFalls has: (a) Sustained injuries, including, but not limited to, head injuries; (b) Underwent medical treatment for said injuries; (c) Suffered physical pain, discomfort, and mental anguish to his detriment and loss, physically, emotionally, and financially; (d) Had been hindered from attending to his daily duties and activities to his detriment, loss, humiliation, and embarrassment; (e) Had suffered a loss of life's pleasures, to his detriment and loss; and (f) Had been compelled, in order to effect a cure for the aforesaid injuries, to expend money for medicine and medical attention, to his detriment and loss. 9 WHEREFORE, Plaintiff, Mitzi M. Price, as administrator of the Estate of Omer J. McFalls, seeks damages from Defendant, Carlisle Diner, in an amount in excess of the compulsory arbitration limits of Cumberland County exclusive of interest and costs. Respectfully submitted, HANDLER,HENNING & ROSENBERG,LLP Date: Oct. //, 2013 By: W. Scott Henning (P x/298) 1300 Linglestown R.a., Suite Harrisburg, PA 17111 Ph. 717.238.2000 Fax 717.233.2039 henning@hhrlaw.com Attorneys for Plaintiff 10 VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 1.74,r / _. / /11 Mitzi M. P'Sce, admin trator of the Estate of Omer J. McFalls W. Scott Henning Attorney ID#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717)238-2000 Attorney for Plaintiff(s) Fax : (717)233-3029 E-mail: Henning @hhrlaw.com Mitzi M. Price, Administrator of the : IN THE COURT OF COMMON PLEAS Estate of Omer J. McFalls, CUMBERLAND COUNTY, PENNSYLVANIA • • • Plaintiff(s) • NO. No. 2013-4845 Carlisle Diner, Inc. d/b/a Carlisle Diner : et al., • CIVIL ACTION - LAW Defendant(s) CERTIFICATE OF SERVICE On, October 17, 2013, I hereby certify that a true and correct copy of Complaint was served upon the following by depositing same in the United States Mail, in Harrisburg, Pennsylvania: Stephen E. Geduldig, Esq. Thomas, Thomas & Hafer, LLP 305 N. Front Street P 0 Box 999 Harrisburg, PA 17108-0999 HAN 7, R,H "OSENBERG, LLP Dated: ) O' ( 7 r"0.0/ W. Scott Henn' s F F ICE - ' -i Stephen E.Geduldig,Esquire � T 1 JJONO TAM. Attorney I.D.No.43530 E-Mail: sgeduldig @tthlaw.com 701,3 OCT 24 PIA, Stephanie L.Hersperger,Esquire L Attorney I.D.No.78735 CUMBERLAND COUNTY E-Mail: sherspergerAtthlaw.com PENNSYLVANIA THOMAS,THOMAS&HAFER,LLP 305 North Front Street Post Office Box 999 Harrisburg,Pennsylvania 17108-0999 (717)237-7119 Attorneys for Defendants: FAX (717)237-7105 Carlisle Diner,Inc.d/b/a Carlisle Diner,et al. Mitzi M. Price,Administrator of the IN THE COURT OF COMMON PLEAS Estate of Omer J. McFalls, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2013-4845 CIVIL ACTION -- LAW Carlisle Diner, Inc., d/b/a Carlisle Diner, et al., Defendant JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Stephen E. Geduldig, Esquire, Stephanie L. Hersperger, Esquire, and Thomas, Thomas & Hafer LLP as counsel for Defendants, Carlisle Diner, Inc., d/b/a Carlisle Diner, et al, in the above-captioned matter, reserving our right to answer or otherwise plead to Plaintiff's Complaint. Respectfully submitted, THOMAS, THOMAS & HAFER,LLP Date: October V� , 2013 1381892.1 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D.No. 43530 1 Date: October L3 , 2013 STEMANIL L. HERS ERGER,ESQUIRE Attorney I.D.No. 78735 Attorneys for Defendants, Carlisle Diner,Inc. d/b/a Carlisle Diner, et al 2 CERTIFICATE OF SERVICE I, Stephen E. Geduldig, Esquire, hereby certify that a true and correct copy of the foregoing Entry of Appearance was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on all counsel of record as follows: W. Scott Henning, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg PA 17110 Attorneys for Plaintiff THOMAS, THOMAS & HAFER, LLP Date: October 3, 2013 1381892.1 Stephen E. Geduldig 3 • LIT PROMOI4OTARy 2013 DEC !O Ph 1: 4p CUMBERLAND COUNTY PENNSYLVANIA Stephen E.Geduldig,Esquire Attorney I.D.No.43530 (717)237-7119 E-mail:ggeduldig @tthlaw.com Stephanie L.Hersperger,Esquire Attomey I.D.No.78735 (717)255-7239 E-mail:shersperger@tthlaw.com THOMAS,THOMAS&HAFER,LLP 305 North Front Street PO Box 999 Attorneys for Defendant: Harrisburg,Pennsylvania 17108-0999 Carlisle Diner,Inc.d/b/a/ FAX(717)237-7105 Carlisle Diner,1800 High Street Corporation d/b/a Carlisle Diner and Carlisle Diner MITZI M. PRICE, Administrator of the : IN THE COURT OF COMMON PLEAS ESTATE OF OMER J. MCFALLS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : 13-4845 Civil CARLISLE DINER, INC. d/b/a • CARLISLE DINER 1800 HIGH STREET CORPORATION, • d/b/a CARLISLE DINER • CARLISLE DINER, : JURY TRIAL DEMANDED Defendant NOTICE TO PLEAD To: Mitzi M. Price,Administrator of the Estate of Omer J. McFalls, Plaintiff do W. Scott Henning, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg PA 17110 • You are hereby notified to plead to the enclosed Answer and New Matter of Defendant to Plaintiffs Complaint, within twenty (20) days of service hereof or the relief requested may be entered against you. THOMAS, THOMAS & HAFER, LLP Date: December 5 , 2013 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 STEPHANIE L. HERSPERGER, ESQUIRE Attorney I.D. No. 78735 Attorneys for Defendants, Carlisle Diner, Inc. d/b/a/ Carlisle Diner, 1800 High Street Corporation d/b/a Carlisle Diner and Carlisle Diner Stephen E.Geduldig,Esquire Attorney I.D.No.43530 (717)237-7119 E-mail:ggeduldig @tthlaw.com Stephanie L.Hersperger,Esquire Attorney I.D.No.78735 (717)255-7239 E-mail:sherspergerna,tthlaw.com THOMAS,THOMAS&HAFER,LLP 305 North Front Street PO Box 999 Attorneys for Defendant: Harrisburg,Pennsylvania 17108-0999 Carlisle Diner,Inc.d/b/a/ FAX(717)237-7105 Carlisle Diner,1800 High Street Corporation d/b/a Carlisle Diner and Carlisle Diner MITZI M. PRICE, Administrator of the : IN THE COURT OF COMMON PLEAS ESTATE OF OMER J. MCFALLS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : 13-4845 Civil • CARLISLE DINER, INC. d/b/a CARLISLE DINER 1800 HIGH STREET CORPORATION, • d/b/a CARLISLE DINER CARLISLE DINER, : JURY TRIAL DEMANDED Defendant ANSWER AND NEW MATTER OF DEFENDANT TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Carlisle Diner, Inc. d/b/a Carlisle Diner, 1800 High Street Corporation d/b/a Carlisle Diner and Carlisle Diner("Answering Defendant"), by and through its undersigned counsel, Stephen E. Geduldig, Esquire and Stephanie L. Hersperger, Esquire, of Thomas, Thomas & Hafer LLP, and responds to Plaintiff's Complaint, as follows: 1. Denied pursuant to Pa.R.C.P. 1029 (e). 2. Denied pursuant to Pa.R.C.P. 1029 (e). 3. Denied pursuant to Pa.R.C.P. 1029 (e). 4. Denied. That corporation, if it still exists, does not have a registered address of 800 W. High Street. 5. Denied. That corporation does not have a registered address of 800 W. High Street. 6. Denied. "Carlisle Diner" is not a corporation. 7. Admitted in part, denied in part. It is admitted only that 1800 High Street Corporation owned the subject property. However, at all times material hereto, Kief, Inc. was in possession and control of the real property located at 800 W. High Street, Carlisle, Cumberland County, Pennsylvania, at which the Carlisle Diner is located. 8. The allegations contained in paragraph 8 are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. 1029(e). Kief, Inc., not a defendant hereto, was in possession and control of the interior of the subject diner, including possession of the mat or mats on which the Plaintiff's decedent allegedly fell. 9. The allegations contained in paragraph 9 are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. 1029(e). 10. The allegations contained in paragraph 10 are conclusions of law to which no response is required. To the extent a response is deemed to be required,the allegations are denied pursuant to Pa.R.C.P. 1029(e), in that none of answering defendants owned, controlled or possessed the subject carpets/mats. 11. Denied as legal conclusions and pursuant to Pa.R.C.P. 1029(e). 12. Denied pursuant to Pa.R.C.P. 1029(e). 2 13. Denied pursuant to Pa.R.C.P. 1029(e). COUNT I—NEGLIGENCE Mitzi M. Price, as administrator of the Estate of Omer J. McFalls v. Carlisle Diner, Inc. d/b/a/Carlisle Diner 14. This is a paragraph of incorporation to which no response is required. By way of further response, Answering Defendant incorporates by reference all foregoing paragraphs of this Answer with New Matter as if the same were set forth fully at length herein. 15 (a)-(h). The allegations contained in paragraph 15 and subparagraphs (a)-(h) are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. 1029(e). 16. Denied as legal conclusions and pursuant to Pa.R.C.P. 1029(e). 17 (a)-(f). The allegations contained in paragraph 17 and subparagraphs (a)—(f) are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. No. 1029(e) WHEREFORE, Answering Defendant respectfully requests that Plaintiff's Complaint be dismissed in its entirety and judgment entered in their favor. COUNT II—NEGLIGENCE Mitzi M. Price, as administrator of the Estate of Omer J. McFalls v. 1800 High Street Corp. d/b/a/Carlisle Diner 18. This is a paragraph of incorporation to which no response is required. By way of further response, Answering Defendant incorporates by reference all foregoing paragraphs of this Answer with New Matter as if the same were set forth fully at length herein. 19 (a)-(h). The allegations contained in paragraph 19 and subparagraphs (a)-(h) are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. 1029(e). 3 20. Denied as legal conclusions and pursuant to Pa.R.C.P. 1029(e). 21 (a)-(f). The allegations contained in paragraph 21 and subparagraphs (a)-(f) are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Answering Defendant respectfully requests that Plaintiff's Complaint be dismissed in its entirety and judgment entered in their favor. COUNT III—NEGLIGENCE Mitzi M. Price, as administrator of the Estate of Omer J. McFalls v. Carlisle Diner 22. This is a paragraph of incorporation to which no response is required. By way of further response, Answering Defendant incorporates by reference all foregoing paragraphs of this Answer with New Matter as if the same were set forth fully at length herein. 23 (a)-(h). The allegations contained in paragraph 23 and subparagraphs (a)-(h) are conclusions of law to which no response is required. To the extent a response is deemed to be required, the allegations are denied pursuant to Pa.R.C.P. No. 1029(e). 24. Denied as legal conclusions and pursuant to Pa.R.C.P. 1029(e). 25(a)-(f). The allegations contained in paragraph 25 and subparagraphs (a)-(f) are conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Pa.R.C.P.1029(e). WHEREFORE, Answering Defendant respectfully requests that Plaintiff's Complaint be dismissed in its entirety and judgment entered in their favor. 4 NEW MATTER 26. Paragraphs 1 through 25 of Answering Defendant's Answer are incorporated herein by reference and made a part thereof as if set forth in full. 27. No act or omission on the part of any Answering Defendant caused or contributed to Plaintiffs alleged harm. 28. Kief, Inc., was in possession and control of the restaurant and, specifically in possession of the carpets/mats alleged to have caused decedent's fall. 29. No answering Defendant was in possession or control of the subject carpets/mats. 30. Plaintiffs Complaint fails to state a cause of action against Additional Defendants upon which relief can be granted. 31. Plaintiffs claims against Kief, Inc., are barred by the statute of limitations. 32. No dangerous condition by virtue of any conduct on the part of any Answering Defendant caused the premises to be hazardous. 33. No unreasonably dangerous condition existed at the location where Plaintiff claims the incident occurred. 34. All Answering Defendants acted reasonably at all times material hereto. 35. No Answering Defendant owed any duty to the Plaintiff or decedent. 36. Any dangerous condition, denied as aforesaid, was open and obvious and was known or knowable by the Plaintiff and decedent and avoidable by exercise of reasonable care. 37. It a hazardous condition existed, same being denied, the Plaintiff was well aware of said condition, or should have been aware of said condition by virtue of its open and 5 obvious and conspicuous nature, as alleged, and any alleged injuries and/or harm are a result of his own negligence and carelessness. 38. In the alternative, even if a dangerous condition existed, which is denied as aforesaid, Answering Defendant did not have notice of, nor have any reason to know of, any alleged dangerous condition in a time sufficient to have taken corrective action. 39. Plaintiff's alleged injuries may not be the result of any alleged incident. 40. Plaintiff's other claims may be barred by the statute of limitations. 41. Plaintiff may have failed to mitigate his damages, if any. 42. The injuries, losses and damages or occurrences alleged in the Complaint may have been the result of the assumption of the risk thereof by the Plaintiff 43. Plaintiffs Complaint is barred by the Choice of Ways Doctrine. 44. Plaintiffs Complaint is barred by the Trivial Defect Doctrine. 45. As discovery may support, Answering Defendant asserts that this action may be barred by the doctrine of res judicata and/or collateral estoppel, which are asserted herein. 46. As discovery may support, Answering Defendant provisionally pleads the defenses of release, waiver, estoppel, credit and offset. 6 WHEREFORE, Answering Defendant respectfully requests that Plaintiff's Complaint be dismissed in its entirety and judgment entered in their favor. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP fr Date: December , 2013 1381190.3 STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. No. 43530 STEPHANIE L. HERSPERGER, ESQUIRE Attorney I.D. No. 78735 Attorneys for Defendants, Carlisle Diner, Inc. d/b/a/ Carlisle Diner, 1800 High Street Corporation d/b/a Carlisle Diner and Carlisle Diner 7 CERTIFICATE OF SERVICE I, Stephen E. Geduldig, Esquire, hereby certify that on this date a true and correct copy of the foregoing ANSWER AND NEW MATTER OF DEFENDANT TO PLAINTIFF'S COMPLAINT was served by depositing the same in the United States Mail, First Class, postage prepaid, at Harrisburg, Pennsylvania, on all counsel of record as follows: W. Scott Henning, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg PA 17110 (Attorneys for Plaintiff) THOMAS, THOMAS & HAFER, LLP Date: December y , 2013 1381190.3 Stephen E. Geduldig, Esquire 8 Dec 0413 02:59p Carlisle Diner 17172400383 p.2 VERIFICATION I hereby verify that the averments made in the foregoing Answer and New Matter to Plaintiffs Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. relating to unsworn falsification to authorities. ir9,- - 1 ,S Atiti" Date Sue Lemus . i l C2111�113ERLAND P:0 PE NS YLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MITZI M. PRICE,Administrator of the ESTATE OF OMER J. MCFALLS, NO.:2013-4845 Civil Plaintiff, v. CARLISLE DINER, INC.d/b/a CARLISLE DINER, CIVIL ACTION—LAW 1800 HIGH STREET CORP.d/b/a CARLISLE DINER, and CARLISLE DINER, Defendants. PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Mitzi M. Price, Administrator of the Estate of Omer J. McFalls, by and through her attorney, HANDLER, HENNING & ROSENBERG, LLP, by W. Scott Henning, Esq., and responds to the Defendants' allegations of New Matter as follows: 26. Paragraph 26 is an incorporation paragraph to which no responsive pleading is required. 1 27. Denied. It is denied that there were not any acts or omissions on the part of the Defendants that were not the cause of the Plaintiff's fall and resulting harm, and proof to the contrary is demanded at the trial in this matter. 28. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment set forth in Paragraph 28, and therefore, proof of the same is demanded at the trial in this matter. By way of further answer, the Plaintiff asserts that the name of the business identified on the premises upon which the Plaintiff sustained his fall is "Carlisle Diner". The most recent deed for the premises identifies the owner of the premises as 1800 High Street Corporation. A search of the records of the Pennsylvania Department of State under the name Carlisle Diner identifies an entity known as "Carlisle Diner, Inc.", with a registered office of 800 West High Street, Carlisle, Pennsylvania, 17013, which is the address that coincides with the premises upon which the Plaintiff sustained his fall. There are not any records on file with the Pennsylvania Department of State that identify Kief, Inc., as being identified or affiliated with the Carlisle Diner. Moreover, all correspondence received from the insurance company who entered the picture after a Letter of Representation was forwarded to the Carlisle Diner, references the Insured as the "Carlisle Diner", rather than Kief, Inc. 29. Denied. After reasonable investigation, Plaintiff is without information or knowledge as to the truth of the averment set forth in Paragraph 29, and therefore, said allegation is denied,with proof demanded. By way of further answer,the Plaintiff incorporates her response to Paragraph 28 as though fully set forth herein. 2 30. Denied. The allegation set forth in paragraph 30 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff's Complaint fails to state a cause of action against the Defendants upon which relief can be granted, and proof to the contrary is demanded at the trial in this matter. By way of further answer,the Plaintiff incorporates her response to Paragraph 28, as though fully set forth herein. 31. Denied. The allegation set forth in paragraph 31 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary,the Plaintiff acknowledges that a period of two years from the date of the Plaintiffs fall has transpired. The Plaintiff has not identified Kief, Inc., as a Defendant, since the Plaintiff had no knowledge and could not have reasonably gained knowledge, despite reasonable and appropriate efforts,that Keif, Inc. is purportedly the owner and/or in possession of the premises known as the Carlisle Diner. 32. Denied. It is denied that there was not a dangerous condition upon the premises of the Carlisle Diner that was the direct and proximate cause of the fall sustained by the Plaintiff's Decedent, and proof to the contrary is demanded at the trial in this matter. 33. Denied. It is denied that there was not an unreasonably dangerous condition that existed on the premises of the Carlisle Diner on the date upon which the Plaintiff's Decedent sustained a fall, thereby causing the injuries and harm set forth in the Plaintiff's Complaint. 3 34. Denied. It is denied that the Answering Defendants acted reasonably, and with lack of negligence andjor carelessness at the times pertinent to the allegations set forth in the Complaint. 35. Denied. The allegation set forth in paragraph 35 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that the Answering Defendants did not owe a duty to the Plaintiff's Decedent, and proof to the contrary is demanded at the trial in this matter. By way of further answer, the Plaintiff incorporates her response to Paragraph 28 as though fully set forth herein. 36. Denied. The allegation set forth in paragraph 36 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the dangerous condition asserted by the Plaintiff was an open and obvious condition that was known or knowable by the Plaintiff. By way of further answer, it is denied that the Plaintiff's Decedent failed to exercise reasonable care. 37. Denied. The allegation set forth in paragraph 37 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that the dangerous condition asserted by the Plaintiff was an open and obvious condition that was known or knowable by the Plaintiff. By way of further answer, it is denied that the Plaintiff's Decedent failed to exercise reasonable care. 4 fi• 38. Denied. It is denied that the Answering Defendants did not have notice of or should have reason to know of the dangerous condition upon the premises of the Carlisle Diner, as asserted in the Plaintiff's Complaint, and proof to the contrary is demanded at the trial in this matter. 39. Denied. It is denied that the injuries sustained by Plaintiff's Decedent were not the result of the incident set forth in the Plaintiff's Complaint, and proof to the contrary is demanded at the trial in this matter. 40. Denied. The allegation set forth in paragraph 40 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff's claims are barred by the applicable Statute of Limitations, and proof to the contrary is demanded at the trial in this matter. 41. Denied. The allegation set forth in paragraph 41 is a'conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that Plaintiff's Decedent failed to mitigate his damages, and proof to the contrary is demanded at the trial in this matter. 42. Denied. The allegation set forth in paragraph 42 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that Plaintiff's Decedent voluntarily and knowingly assumed the risk of sustaining a fall and the resulting injuries, and proof to the contrary is demanded at the trial in this matter. 5 • 43. Denied. The allegation set forth in paragraph 43 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff's cause of action is barred by the Choice of Ways Doctrine, and proof to the contrary is demanded at the trial in this matter. By way of further answer, it is denied that there was any other means of ingress or egress to the premises that were available to and accessible by the business invitees of the Carlisle Diner. 44. Denied. The allegation set forth in paragraph 44 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff's cause of action is barred by the Trivial Defect Doctrine, assuming such a Doctrine is properly recognized by the Courts within the Commonwealth of Pennsylvania, and proof to the contrary is demanded at the trial in this matter. 45. Denied. Theallegation set forth in paragraph 45 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff's cause of action is barred by the Doctrine of Res Judicata and/or Collateral Estoppel, and proof to the contrary is demanded at the trial in this matter. 46. Denied. The allegation set forth in paragraph 46 is a conclusion of law to which no responsive pleading is required, however,to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff's cause of action is subject to the defenses of release, waiver, estoppel, credit or offset. 6 WHEREFORE, Plaintiff, Mitzi M. Price,the Administrator of the Estate of Omar J. McFalls, respectfully requests the Honorable Court to enter judgment in favor of the Estate and against the Defendants for the relief set forth in her Complaint. Respectfully submitted HANDLER, HENNING ROSENBERG, LLP W.Scott Henning, Esq. (32298) 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 717-238-2000 henning@hhrlaw.com 7 • a VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) W. Scott Henning, Esquire, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. W. Scott Henning, --s► = Date: 2/18/2014 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MITZI M. PRICE,Administrator of the ESTATE OF OMER J. MCFALLS, NO.:2013-4845 Civil Plaintiff, v. CARLISLE DINER, INC. d/b/a CARLISLE DINER, CIVIL ACTION—LAW 1800 HIGH STREET CORP. d/b/a CARLISLE DINER, and CARLISLE DINER, Defendants. CERTIFICATE OF SERVICE On the 19th day of February, 2014, I hereby certify that a true and correct copy of Plaintiff's Reply to New Matter was served upon the following by depositing in U.S. Mail: Stephen E. Geduldig, Esq. Thomas,Thomas & Hafer, LLP 305 N. Front Street P 0 Box 999 Harrisburg, PA 17108-0999 HANDLER, HENNING & ROSENBERG, LLP d 4! W. Scott Henning THOMAS, THOMAS & HAFER, LLP Gordon A. Einhorn, Esquire 1.D. 59006 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7054 gqinhorn@tthlaw.com FILED -OFFICE CI' TEE PRrHONOTARY 20111 OCT 1 Li kill: 34 CUMBERLAND COUNTY PENNSYLVA, Attorneys for Defendant MITZI M. PRICE, Administrator of the ESTATE OF OMER J. MCFALLS, Plaintiff vs, CARLISLE DINER, INC. d/b/a CARLISLE DINER Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA 13-4845 Civil : JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoena to produce documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve Subpoena with a copy of the subpoena attached thereto was mailed to counsel for Plaintiff on September 23, 2014; 2. A true and correct copy of the Notice of Intent to include copies of the proposed subpoena is attached to this Certificate. 3. Plaintiff's counsel has not objected to the Subpoena and the twenty -day (20) notice period has expired. 4. The subpoena to be served is identical to the subpoenas attached to this Certificate. Date: /a/./.4'y By: 1276971-1 Respectfully submitted, Thomas, Thomas & Hafer, LLP �rdA. Einhom, Esquire Amey LD. No. 59006 305 North Front Street, P.O. Box 999 Harrisburg, PA 17108 (717) 237-7100 Attorneys for Defendant Gordon A. Einhorn, Esquire I.D. 59006 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7054 geinhorn@tthlaw.com Attorneys for Defendant MITZI M. PRICE, Administrator of the ESTATE OF OMER J. MCFALLS, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. : 13-4845 Civil CARLISLE DINER, INC. d/b/a CARLISLE DINER : JURY TRIAL DEMANDED Defendant NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Defendant intends to serve the subpoena identical to the Subpoena attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas will be served. Date: THOMAS, THOMAS & HAFER., LLP Gordo Einhorn, Esquire Att 1.D. No. 59006 305 North Front Street, PO Box 999 Harrisburg, PA 17108 (717) 237-7100 MITZI M. PRICE, Administrator of the ESTATE OF OMER J. MCFALLS, Plaintiff vs. CARLISLE DINER, INC. d/b/a CARLISLE DINER Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : 13-4845 Civil : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Carlisle Hospital Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records, including inpatient, outpatient, emergency room, clinic records, consultations, physisican reports, diagnostic reports, lab reports, therapy records, and correspondence (including any records stored in a computer database or otherwise in electronic form) pertaining to Omer J. McFalls, DOB: 08/24/1931, SS#XXX-XX-8774 from August 1, 2006 to the Present date. at: Thomas, Thomas & Hafer, LLP, 305 N. Front St., P.O. Box 999, Harrisburg, PA 17108-0999. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You. have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Gordon A. Ei.nhorn, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) - 441-7054 SUPREME COURT ID#: 59006 ATTORNEY FOR: Defendants DATE: BY THE COURT: Seal of the Court Prothonotary/Clerk, Civil Division. Deputy 1265185-1 CERTIFICATE OF SERVICE 1, C. Andrea Gadd, Pa.C.P. of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that 1 served the foregoing document on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: W. Scott Henning, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP C. Andrea, Gadd, Paralegal Date: 4-- 1265185-1 CERTIFICATE OF SERVICE I, C. Andrea Gadd, Pa.C.P., paralegal and employee of Thomas Thomas & Hafer, do certify that I served the foregoing document on the following person(s), by depositing the same in the United States 1st Class Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: W. Scott Henning, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Date: l�=c//:'f 1276971-1 THOMAS, THOMAS & HAFER, LLP C. Andrea Gadd, Pa.C.P. Paralegal to Gordon A. Einhorn, Esquire 305 North Front Street, P.O. Box 999 Harrisburg, PA 17108