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HomeMy WebLinkAbout13-6247 Supreme C n nsylvania COUA'. Of ,Co�m O leas For Prothonotary Use Only: �t Docket No: ,Mr Sj� CU n7B t -Nb Count �' l3 6��� C , v The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. Commencement of Action: S xi Complaint ® Writ of Summons ® Petition E ® Transfer from Another Jurisdiction Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T MICHAEL T. BURKE JOSEPH HUMMER Y Are money damages requested? El Yes No Dollar Amount Requested: x1 within arbitration limits O 1 (check one) Eloutside arbitration limits N Is this a Class Action Suit? ® Yes No Is this an MDJAppeal? []Yes n No A Name of Plaintiff /Appellant's Attorney: JOHN M. KERR. ESQ. Check here if you have no attorney (are a Self - Represented [Pro Se] Litigant) 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. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Intentional ® Buyer Plaintiff Administrative Agencies ® Malicious Prosecution r-1 Debt Collection: Credit Card Board of Assessment © Motor Vehicle © Debt Collection: Other Board of Elections ® Nuisance ® Dept. of Transportation S n Premises Liability n Statutory Appeal: Other Product Liability (does not include Employment Dispute: E mass tort) Slander/Libel/ Defamation Discrimination C El Other: Employment Dispute: Other © Zoning Board , VIOLATION OF DOG STATb' Other: I F1 Other: O MASS TORT Asbestos N [3 Tobacco El Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Other: © Ejectment © Common Law /Statutory Arbitration B ® Eminent Domain /Condemnation Declaratory Judgment ® Ground Rent Mandamus 171 Landlord/Tenant Dispute Non - Domestic Relations Ll Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ® Mortgage Foreclosure: Commercial ® Quo Warranto [I Dental El Partition ® Replevin El Legal E] Quiet Title © Other: El Medical Other: Other Professional: Updated 1/1/2011 MICHAEL T. BURKE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA N O. V. CIVIL ACTION - LAW JOSEPH HUMMER, rq � Defendant Z r co � w f? 7l f"4 t� co C y A C �� t i NOTICE ' °e7 1yl r'7 You have been sued in court. If you wish to defend against the claims set forth in the e 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 ►►►//////��� ohn PC ELIGIBLE PERSONS AT REDUCED FEE OR NO FEE. \` �err v 502 5Ui�te104 ad CUMBERLAND COUNTY BAR ASSOCIATION Mechanicsburg, PA 17055 Pr1oNE: 717.766.4008 32 South Bedford Street FAx: 717.766.4066 Carlisle, Pennsylvania 17013 -3308 (717) 249 -3166 MICHAEL T. BURKE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. V. CIVIL ACTION — LAW JOSEPH HUMMER, Defendant COMPLAINT Parties 1. Plaintiff is Michael T. Burke (hereinafter, "Burke "), an adult individual residing at 5840 Spring Tree Court, Enola, Cumberland County, Pennsylvania 17025. 2. Defendant is Joseph Hummer (hereinafter, "Hummer "), an adult individual residing at 5830 Spring Tree Court, Enola, Cumberland County, Pennsylvania 17025. Background 3. Defendant Hummer is the owner of a dog, named "Britta ( "hereinafter, "the Hummer dog ")," who has a history of acting aggressively and in a threatening manner to those individuals living in the immediate neighborhood. 4. For example, in September, 2010, the Hummer dog bolted out when the front door was opened and pursued two small dogs owned by neighbors, Dave and Debby Farver. Shortly thereafter, the Farvers put their home up for sale because of the aggressive tendencies of the Y Hummer dog. 4 Y oh rerr , ,4aw. Pc 5. In August, 2009, the Hummer dog reached through a fence and bit a dog owned by 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 PHor4E: 717.766.4008 plaintiff Michael Burke. FAX. 717.766.4066 7 C elo2 17 6. On or about August, 2009 Burke was relegated to having a conversation with Hummer concerning the aggressive actions of his dog. During this conversation, the Hummer dog bit Plaintiff Burke on the foot. 7. On August 12, 2012, someone at Hummer's residence left the gate door open, resulting in the Hummer dog escaping from Hummer's property; coming onto Plaintiff Burke's property to the edge of his garage, within ten feet of Burke; acting menacing toward Plaintiff Burke and confining Burke to the four corners of his garage. The dog eventually retreated, but returned a second time to threaten Plaintiff Burke. 8. On September 14, 2012, undersigned counsel forwarded a letter to Defendant Hummer, calling his attention to these issues and incidents, and warning that if his dog continued to threaten or menace Plaintiff Burke, that further legal action would be taken (see, Exhibit "A" to Complaint, copy of correspondence dated September 14, 2012). 9. It is believed, and therefore averred, that the Hummer dog is a "dangerous dog" within the meaning of the relevant Pennsylvania statute relating to confinement of dogs, 3 P.S. §459- 305, et al. 10. On Monday, July 8, 2013, the Hummer dog once again acted in a threatening and menacing manner, charging the fence and attempting to inflict injury on Plaintiff Burke and his four year old son, Ryan Burke. 11. This action frightened Burke and his four year old son, putting them under apprehension of serious bodily injury. lyohnerr PC Vl/ 5020 Ritter Road 12. As a consequence, undersigned counsel forwarded a second letter to Defendant State 104 Mechanicsburg, PA 17055 P FAx: : 177.766.4066 Hummer dated Jul 12 2013 alleging that Hummer was not ke his do see, Fnx: 717.766.4066 � Y , , g� g p� g g under control Exhibit "B" to Complaint, copy of said correspondence). 13. Despite these attempts to amicably resolve this matter, Defendant Hummer has acted arrogantly and with deliberate indifference to to the fact that his animal terrorizes Plaintiff Burke and his four year old son. 14. Recently, Hummer and an acquaintance on his property accosted Plaintiff Burke.with the acquaintance, believed to be one Christopher Bonifacino, calling Burke "a pussy." 15. On or about August 13, 2013, the Cumberland County Dog Warden, Officer Hockley, visited the Hummer residence and discovered that, a) no paperwork existed for the Hummer dog; and b) should the dog be determined to be "dangerous" under the law, the fence protecting neighbors like Burke from the dog would have failed investigation. 16. In September, 2013, while Defendant Hummer was walking on the "boardwalk" bordering their properties, the Hummer dog escaped, entering Plaintiff Burke's property and acted in an aggressive manner. COUNT I — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 17. Paragraphs 1 -16 of the Complaint are incorporated by reference, as if fully set forth in their entirety. 18. The actions of Defendant Hummer have been outrageous and calculated to terrorize Plaintiff Burke and his son. 19. Plaintiff Burke and his son have suffered great emotional distress and apprehension as a result of the actions of the Hummer dog, which have included imprisoning Plaintiff Burke in his garage as described above; attacking Burke's own dog[s] and causing injury to them; mocking � ohn J<err Pc Plaintiff Burke; and allowing the Hummer dog to crash the fence and place Plaintifff in 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 PHorie: 717.766.4008 apprehension of serious physical injury. FAx: 717.766.4066 WHEREFORE, it is requested that judgment be entered against Defendant Hummer and in favor of Plaintiff Burke as to Count I of the Complaint. COUNT II —VIOLATION OF PENNSYLVANIA DOG LAW 20. Paragraphs 1 -16 of the Complaint are incorporated by reference, as if fully set forth in their entirety. 21. Defendant Hummer has failed to control his dog so that it cannot stray beyond his own premises in violation of 3 P.S. §459- 305(2). 22. Defendant Hummer has violated §305(a)(1) in that the incursions by his dog did not represent a de minimus infraction. 23. The Hummer dog is a "dangerous" dog as that term is understood under the relevant statute. 24. The fence utilized by Defendant Hummer is not sufficient to properly confine his dog, which is a "dangerous" dog. WHEREFORE, it is requested that judgment be entered in favor of Plaintiff Burke and against Defendant Hummer as to Count II of the Complaint. Respectfully submitted, Jo fn M. Kerr, Esquire Attorney I.D.# 26414 John Kerr Law, P.C. 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 /////////��� (717) 766 -4008 ohn err aw. PC a 5020 Ritter Road Suite 104 Mecharucsburg, PA 17055 PHoNF: 717.766.4008 Dated: October 23, 2013 FAx: 717.766.4066 VERIFICATION The undersigned, Michael T. Burke, hereby states I am the Plaintiff in the foregoing action and, as such, am authorized to execute this Verification, and that any factual statement contained in the preceding Complaint is true and correct to the best of my knowledge, information, and belief. I understand that false statements are subject to the penalties prescribed at 18 Pa. C.S. §4904, relating to unsworn falsification made to authorities. Michael T. Bu e C OPY c>ltrr <. rr �tw, I C .k)h1'1 M. Karr, f'S(IMI 1). F ("esc, I ( i \SSiSl�tnl September 14, 2012 Joseph Hummer 5830 Spring Tree Court Enola, PA 17025 Re: Michael Burke Dear Mr. Hummer: By way of introduction, I have been retained by Michael Burke with regard to certain events which have occurred in your neighborhood. As you are aware, on August 21, 2012, my client informed you that he would be contacting an attorney as a result of aggressive actions by your dog, Britta. On that date, someone at your residence left the gate door open and your dog acted menacingly toward Mr. Burke by coming to the edge of his garage, within ten feet of my client, and acting in a threatening manner. Your dog retreated and returned a second time. As a result, until your dog was retrieved or left, my client was unnecessarily confined to the four corners of his garage. This is not the first time that your pet has acted aggressively in the neighborhood. In August, 2009, this same animal reached through the fence and bit my client's dog. In October, 2009, my client was relegated to have a discussion with you about the aggressive actions of your dog. In September, 2012, your dog bolted out when the front door was opened and went after two small dogs owned by Dave and Debby Farner. Shortly thereafter, the Farners put their home up for sale. They left the neighborhood because of fear of your dog. Title 3 of Pennsylvania's Consolidated Statutes, 3 Pa. C.S. §459- 305(a), provides in part that "[i]t shall be unlawful for the owner or keeper of any dog to fail to keep at all times the dog ... 1) confined within the premises of the owner, [or] 2) firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured ..." (emphasis added) The purpose of this letter is to place you on notice that in the future should your dog stray beyond your property line or otherwise menace /threaten my client, that further legal action will be taken. This is not a question of "[w]hat do you want me to about it," as you stated to my client after the August 21 incident. Instead, you will act to comply with the law or suffer serious legal ramifications. Also I would place you on notice, as well, concerning some intemperate comments you have made concerning my client and relating to children. The statements you made are defamatory, and Mr. Burke has instructed me to institute a lawsuit unless they immediately cease. Exhibit "A" 5020 Ritter Rc><ui, St iitc 104 • M(xI larljcsh irk, ! ,A 17055 717.766.4008 • l ;\x: 717.766.4066 ��v��n %jctl'tr�l:carl�t�w.cc�r�� Joseph Hummer September 14, 2012 Page 2 Thank you for your attention to these matters. Respectfully yours, '- 1w John M. Kerr cc: Michael Burke �0 0 1OI 111 Nl. 1y(�I "1 t.S( It div .• \Il�;(.'1�1 1 ). 1= ('('S('., l..('4.;ill /\�;Sl�ltlCll July 12, 2013 Joseph Hummer 5830 Spring Tree Court Enola, PA 17025 Re: Michael Burke Dear Mr. Hummer: As you know, I wrote to you on September 14, 2012 regarding the aggressive tendencies of your dog, Britta. Unfortunately, nothing seems to have changed in the last year. It is my understanding that you have also been warned by the Homeowners Association. As recently as Monday, July 8, 2013, your dog charged the fence in a very vicious manner, frightening my client and, more significantly, his four year old son, Ryan. This was not an isolated occurrence. Your dog is not being kept under control. It frequently acts in a menacing manner toward my client and his son. Please place your liability carrier /homeowner's insurance on notice that my client intends to file a lawsuit and possibly an injunctive action against you unless you act immediately to restrain your pet from such threatening behavior. Thank you for your attention to this matter. Respectfully yours, j� v John M. Kerr cc: Michael Burke Ex hibit "B" 5020 I �itt(T lio i l( 1. St tit(' 104- 1'/\ 17 055 )>, ) 1 ) 11( ) \I.: 7 1 • 1': \X: 7 1 7.766.4066 • I'a \I, \II.: IBC %I "I "1..i1 \\ (!r''('0111('i15t.11('t • SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy ., Richard W Stewart Solicitor ,..r.�J .�-E��,ERIF.= ; -FNS 41SY� Michael Burke vs. Case Number Joseph Hummer 2013-6247 SHERIFF'S RETURN OF SERVICE 10/25/2013 08:00 PM- Deputy Ronald Hoover, being duly sworn according to law, served the requested Complaint& Notice by"personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Joseph Hummer at 5830 Spring Tree Court, Hampden Township, Enola, PA 17025. RONALD HOOVER, DEPUTY SHERIFF COST: $45.41 SO ANSWERS, October 28, 2013 RON 1 R ANDERSON, SHERIFF ou^'y u;©Shsnf': jYs -/ _ ».n..� .`� - - m.. ..._ ,e.. _. _ r.mi��6 ilia. .... � >_ .• ... • I... 14,E 4J- UHE PRE �>'v Louis J.Capozzi,Jr.,Esquire `� Attorney ID No.46559 2013110V 13 A1110: 53 Matthew A.Thomsen Attorney ID: 307388 CUMBERLAND COUNTY Capozzi Adler,P.C. PENNSYLVANIA 1200 Camp Hill Bypass Camp Hill,PA 17011 Attorney for Defendant MICHAEL T. BURKE, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : No. 2013-6247 CIVIL JOSEPH HUMMER, • • Defendant : CIVIL ACTION—LAW NOTICE TO PLEAD TO: PLAINTIFF, MICHAEL T. BURKE c/o John M. Kerr, Esq.,John Kerr Law, P.C., 5020 Ritter Road, Suite 104, Mechanicsburg, PA 17055 (Attorney for Plaintiff) You are hereby notified to file a written response to the enclosed PRELIMINARY OBJECTIONS within twenty (20) days from service hereof or a judgment may be entered against you. DATE: li/I ?..�'" /t;'1‘7.4' Louis J. Capozzi, Jr., Esquire Attorney ID No. 46559 Matthew A. Thomsen, Esquire Attorney ID No. 307388 Capozzi Adler, P.C. P.O. Box 5866 Harrisburg, PA 17110 (717) 233-4101 (Attorney for Defendant) • Louis J.Capozzi,Jr.,Esquire Attorney ID No.46559 Matthew A. Thomsen Attorney ID: 307388 Capozzi Adler,P.C. 1200 Camp Hill Bypass Camp Hill,PA 17011 Attorney for Defendant MICHAEL T. BURKE, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : No. 2013-6247 CIVIL • JOSEPH HUMMER, Defendant : CIVIL ACTION—LAW PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW, comes Defendant Joseph Hummer (the "Defendant"), by and through its Attorneys, Capozzi Adler, P.C., to file Preliminary Objections to Respondent's Complaint pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure, and in support thereof avers as follows: FIRST PRELIMINARY OBJECTION—CONFORMITY TO RULES UNDER Pa. R.C.P. §1028(A)(2) 1. On October 23, 2013, Plaintiff initiated this action by filing a Complaint. 2. Service of said Complaint was received by Defendant's Attorneys on October 30, 2013. 3. Pennsylvania Rule of Civil Procedure 1021 requires that"[a]ny pleading demanding relief shall specify the relief sought." 2 4. The October 23, 2013 Complaint avers two counts against Defendant relating to the behavior of Defendant's dog, Britta, a 35 pound beagle mix. 5. The ad damnum clause of Count I states "WHEREFORE, it is requested that judgment be entered against Defendant Hummer and in favor of Plaintiff Burke as to Count I of the Complaint." 6. The ad damnum clause of Count II states "WHEREFORE, it is requested that judgment be entered in favor of Plaintiff Burke and against Defendant Hummer as to Count II of the Complaint." 7. In neither count, nor in any other portion of the Complaint, does Plaintiff specify the relief sought against Defendant. 8. The lack of specific relief sought is in violation of Pa. R.C.P. 1021. WHEREFORE, Defendant respectfully requests that Plaintiffs Complaint against Defendant Joseph Hummer be dismissed or that Plaintiff be directed to file an Amended Complaint which conforms to Pennsylvania's Rules of Civil Procedure. SECOND PRELIMINARY OBJECTION—LEGAL INSUFFICIENCY(DEMURRER) OF COUNT I OF THE COMPLAINT UNDER Pa. R.C.P. 41028(A)(4) 9. Defendant incorporates all preceding paragraphs as though fully set forth herein. 10. Our courts have held that: "[a] preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. `Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.' All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true." Weiley v. Albert Einstein Med. Ctr., 2012 PA Super 106, 51 A.3d 202, 208 (Pa. Super. Ct. 2012) (internal citations omitted). 3 11. In Count I of the Complaint, Plaintiff seeks relief against Defendant for Intentional Infliction of Emotional Distress (hereinafter"HOED"). 12. Currently, the question of whether or not the tort of HOED has been adopted by Pennsylvania has not yet been addressed by the Supreme Court of Pennsylvania. See Kazatsky v. King David Mem'l Park, Inc., 515 Pa. 183, 185, 527 A.2d 988 (1987); Fewell v. Besner, 444 Pa. Super. 559, 569, 664 A.2d 577, 581 (1995); and Swisher v. Pitz, 2005 PA Super 56, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005). 13. Our courts have, however, stated that if HOED were to be adopted in Pennsylvania, that the elements would include extreme and outrageous conduct, and medically diagnosed severe emotional distress. See Kazatsky at 995; Fewell at 582; and Swisher at 1230. 14. Plaintiff has not averred in Count I or in any other part of the Complaint that any doctor or other medical professional has diagnosed him with"severe emotional distress." 15. Additionally, with respect to "extreme and outrageous conduct," our courts have stated that: It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Kazatsky v. King David Mem'l Park, Inc., 515 Pa. 183, 190-91, 527 A.2d 988, 991-92 (1987) (citing Restatement (Second) of Torts § 46 comment d. (1965)) 4 16. No averment by Plaintiff of Defendant's actions rises to the level of"extreme and outrageous conduct." 17. Because Plaintiff has failed to plead one or more necessary elements of HOED, and because HOED may not even be a recognized tort in Pennsylvania, Count I of the Complaint is legally insufficient. WHEREFORE, Defendant respectfully requests that Count I of Plaintiff's Complaint against Defendant Joseph Hummer be dismissed with prejudice. THIRD PRELIMINARY OBJECTION—LEGAL INSUFFICIENCY(DEMURRER) OF COUNT II OF THE COMPLAINT UNDER Pa. R.C.P. 41028(A)(4) 18. Defendant incorporates all preceding paragraphs as though fully set forth herein. 19. In Count II of the Complaint, Plaintiff avers that Defendant is in violation of Pennsylvania dog law. 20. Though it is unclear what, if any, relief is sought by Plaintiffs in Count II, it is believed that Plaintiffs seek a declaration by this Court that Defendant's dog is a "dangerous dog" as defined by 3 P.S. § 459-502-A. 21. As explained more fully below in the Fourth Preliminary Objection, Plaintiff has failed to exhaust his statutory remedy with respect to such a declaration. 22. However, if this Court finds that Plaintiff has exhausted their statutory remedy, a finding that a dog is a"dangerous dog" requires a finding beyond a reasonable doubt of the following three elements: (1) The dog has done any of the following: (i) Inflicted severe injury on a human being without provocation on public or private property. (ii) Killed or inflicted severe injury on a domestic animal, dog or cat without provocation while off the owner's property. (iii) Attacked a human being without provocation. 5 (iv) Been used in the commission of a crime. (2) The dog has either or both of the following: (i) A history of attacking human beings and/or domestic animals, dogs or cats without provocation. (ii) A propensity to attack human beings and/or domestic animals, dogs or cats without provocation. A propensity to attack may be proven by a single incident of the conduct described in paragraph(1)(i), (ii), (iii) or(iv). (3) The defendant is the owner or keeper of the dog. 3 Pa. Stat. Ann. § 459-502-A (West). 23. With respect to element 1 of 3 P.S. § 459-502-A: a. No severe injury is averred in any portion of the Complaint. b. It is not averred in the Complaint that any domestic animal has been killed. c. It is not averred in the Complaint that the dog bite averred in paragraph 6 of the Complaint was done without provocation of the dog. d. It is not averred in the Complaint that the dog was used in the commission of a crime. 24. With respect to element 2 of 3 P.S. § 459-502-A: a. It is not averred in the Complaint that the two bites (one on an animal in¶5 of the Complaint, and one on a human in¶6 of the Complaint) were unprovoked. b. The averment in paragraph 4 that the dog in question pursued the dogs of third party neighbors is hearsay unsupported by affidavit or other evidence. 25. It is admitted that Defendant is the owner of the dog in question. 26. Because Plaintiff has failed to aver facts necessary to support one or more of the above stated elements, Count II of the Complaint is legally insufficient. WHEREFORE, Defendant respectfully requests that Count II of Plaintiff's Complaint against Defendant Joseph Hummer be dismissed with prejudice. 6 FOURTH PRELIMINARY OBJECTION—FAILURE TO EXERCISE A STATUTORY REMEDY UNDER Pa. R.C.P. 41028(A)(7) 27. Defendant incorporates all preceding paragraphs as though fully set forth herein. 28. Under 3 P.S. § 459-502-A, "[a]ny person who has been attacked by one or more dogs, [or] ... a person whose ... dog ... has been ... injured without provocation ... may file a complaint before a magisterial district judge, charging the owner or keeper of the a dog with harboring a dangerous dog." 29. Based on this statute, the appropriate court to determine whether or not a dog should be deemed dangerous is a magisterial district court. 30. There is no averment in the Complaint that a"dangerous dog" determination has been reached with regard to Defendant's dog by a magisterial district court. 31. As a result, a statutory remedy available to Plaintiff has not been exercised and Plaintiff's Complaint before this Court is premature. WHEREFORE, Defendant respectfully requests that Count II of Plaintiff's Complaint against Defendant Joseph Hummer be dismissed. Respectfully submitted, DATE: 11/ 1 3 / /‘`41'7‘ C)Nea Louis J. Capozzi, Jr., Esquire Attorney ID No. 46559 Matthew A. Thomsen, Esquire Attorney ID No. 307388 Capozzi Adler, P.C. P.O. Box 5866 Harrisburg, PA 17110 (717) 233-4101 (Attorney for Defendant) 7 Louis J. Capozzi,Jr.,Esquire Attorney ID No.46559 Matthew A. Thomsen Attorney ID: 307388 Capozzi Adler, P.C. 1200 Camp Hill Bypass Camp Hill,PA 17011 Attorney for Defendant MICHAEL T. BURKE, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. : No. 2013-6247 CIVIL • • JOSEPH HUMMER, • Defendant : CIVIL ACTION—LAW ORDER AND NOW, this day of November, 2013, upon the Preliminary Objections filed by Defendant Joseph Hummer, and after consideration of the responses and arguments submitted with respect thereto, finding good cause for the objections submitted, such Preliminary Objections are SUSTAINED. Both counts of Plaintiff's Complaint are dismissed with prejudice as legally insufficient. BY THE COURT: J. Distribution List: Louis J. Capozzi, Jr., Esq. and Matthew A. Thomsen, Esq., Capozzi Adler, P.C., P.O. Box 5866, Harrisburg, PA 17110 (Attorney for Defendant) John M. Kerr, Esq., John Kerr Law, P.C., 5020 Ritter Road, Suite 104, Mechanicsburg, PA 17055 (Attorney for Plaintiff) 8 1 ti Louis J.Capozzi,Jr., Esquire Attorney ID No.46559 Matthew A. Thomsen Attorney ID: 307388 Capozzi Adler,P.C. 1200 Camp Hill Bypass Camp Hill,PA 17011 Attorney for Defendant MICHAEL T. BURKE, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. : No. 2013-6247 CIVIL • • JOSEPH HUMMER, • Defendant : CIVIL ACTION—LAW ORDER AND NOW, this day of November, 2013, upon the Preliminary Objections filed by Defendant Joseph Hummer, and after consideration of the responses and arguments submitted with respect thereto, finding good cause for the objections submitted, such Preliminary Objections are SUSTAINED. Plaintiff may file amended pleadings within twenty (20) days of the date of this order. BY THE COURT: J. Distribution List: Louis J. Capozzi, Jr., Esq. and Matthew A. Thomsen, Esq., Capozzi Adler, P.C., P.O. Box 5866, Harrisburg, PA 17110 (Attorney for Defendant) John M. Kerr, Esq., John Kerr Law, P.C., 5020 Ritter Road, Suite 104, Mechanicsburg, PA 17055 (Attorney for Plaintiff) 9 Louis J. Capozzi,Jr.,Esquire Attorney ID No.46559 Matthew A. Thomsen Attorney ID: 307388 Capozzi Adler,P.C. 1200 Camp Hill Bypass Camp Hill,PA 17011 Attorney for Defendant MICHAEL T. BURKE, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. : No. 2013-6247 CIVIL • JOSEPH HUMMER, • Defendant : CIVIL ACTION—LAW CERTIFICATE OF SERVICE I hereby certify that I have, this date, mailed a true and correct copy of the foregoing pleading by United States mail, first-class, postage prepaid, addressed to the following individual(s): John M. Kerr, Esquire John Kerr Law, P.C. 5020 Ritter Road, Suite 104 Mechanicsburg, PA 17055 (Attorney for Plaintiff) DATE: V 1 --' Louis J. Capozzi, Jr., Esquire Attorney ID No. 46559 Matthew A. Thomsen, Esquire Attorney ID No. 307388 Capozzi Adler, P.C. P.O. Box 5866 Harrisburg, PA 17110 (717) 233-4101 (Attorney for Defendant) 10 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the ne , '' Argument Court.) '. <-4,_ CAPTION OF CASE (entire caption must be stated in full) .° L e' -0 Michael T. Burke . ,.0 C:� _ vs. y w " Joseph Hummer .._ No. 6247 2013 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: John M. Kerr, Esquire, 5020 Ritter Road, Suite 104, Mechanicsburg, PA 17055 (Name and Address) (b) for defendants: Matthew A. Thomsen, Esquire, P.O. Box 5866, Harrisburg, PA 17011 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 14,2014 Signature A / Print your name Defendant Date: December 20, 2013 Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3.The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)after the case is relisted. Djv� SyDd I MICHAEL T. BURKE, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2013 -6247 • v. . : CIVIL ACTION - LAW Fri JOSEPH HUMMER, . Defendant u) — • ._„ — MOTION TO WITHDRAW AS COUNSEL TO PLAINTIFF, MICHAEL T. BURKE AND NOW,comes John M. Kerr, Esquire and John Kerr Law, P.C.,counsel to Plaintiff Michael T. Burke, and moves to withdraw as counsel to Plaintiff, based upon the following: BACKGROUND 1. Undersigned counsel has represented Plaintiff Michael Burke (hereinafter, "Plaintiff") since August 31, 2012 2. On October 23, 2013, pursuant to the request of Plaintiff, undersigned counsel filed a civil action relating to a dangerous dog owned by Defendant,Joseph Hummer. 3. On or about November 13, 2013, Preliminary Objections were filed by counsel representing Defendant Hummer. 4. These Objections have been listed by Defendant's counsel for Argument Court on y ohn err�aw PC 5020 Ritter Road Friday, February 14, 2014. Suite 104 Mechanicsburg,PA 17055 PHONE: 717.766.4005 5. Plaintiff Burke has notified undersigned counsel that he no longer wishes him to FAX: 717.766.4066 g g represent him in the matter. 6. In addition, plaintiff and undersigned counsel have a fundamental disagreement as to how to proceed in light of the preliminary objections which have been filed. 7. Undersigned counsel has since forwarded the Praecipe To List Case For Argument to Plaintiff Burke,with an explanation of the responsibilities of a party opposing preliminary objections under the Cumberland County Local Rules. APPLICATION OF LAW 8. Rule 1.16 of the Rules of Professional Conduct provides in relevant part: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or where representation has commenced, shall withdraw from the representation of a client if: ... (3)the lawyer is discharged. (emphasis added) 9. Moreover, even if he has not been discharged,the Rules are clear that"[a] lawyer must comply with the applicable law requiring notice to or permission of a tribunal when terminating a representation." Rule 1.16(c) of the Rules of Professional Conduct. Clearly, under the above facts, a withdrawal motion is necessary. 10. In addition, Rule 1.16(b) also provides that a lawyer may withdraw where (4)the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement." 11. Undersigned counsel has not sought the concurrence of opposing counsel since he has been terminated by Plaintiff and has no choice in filing the Motion. 20h1 rripw PC 5020 Ritter Road Suite 104 Mechanicsburg,PA 17055 PHONE: 717.766.4008 Fnx: 717.766.4066 WHEREFORE, it is requested that the Court grant the within Motion as undersigned counsel has been discharged from representation of the Plaintiff in the instant matter. Respectfully submitted, I,/ Jr n M. Kerr 'attorney I.D. #26414 John Kerr Law, P.C. 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 (717)766-4008 Dated: January 16, 2014 20hfl err a" PC 5020 Ritter Road Suite 104 Mechanicsburg,PA 17055 PHONE: 717.766.4008 FAx: 717.766.4066 • CERTIFICATE OF SERVICE The undersigned hereby states that he has served a copy of the foregoing, "Motion To Withdraw As Counsel To Plaintiff, Michael Burke," on the below-identified individuals in the manner indicated: First Class Mail, Postage Pre-Paid Matthew A.Thomsen Michael T. Burke Capozzi Adler, P.C. 5840 Spring Tree Court P.O. Box 5866 Enola, PA 17025 Harrisburg, PA 17110 Jo M. Kerr, Esquire 5 0 Ritter Road Suite 104 Mechanicsburg, PA 17055 (717)766-4008 Dated:January 16, 2014 2 PC 5020 Ritter Road Suite 104 Mechanicsburg,PA 17055 PHONE: 717.766.4008 FAx: 717.766.4066 r • MICHAEL T. BURKE, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2013-6247 -;: v. • ;7,• : CIVIL ACTION - LAW hnr". JOSEPH HUMMER, Defendant • • �„♦r M ;} • _...r M..✓ .ry ORDER ro” AND NOW,after review of the Motion To Withdraw as Counsel to Plaintiff. Michael Burke, and considering that Plaintiff has terminated counsel's representation, it is ORDERED and DECREED that John M. Kerr, Esquire and John Kerr Law, P.C. may withdraw as counsel to Michael T. Burke in the captioned proceeding. BT THE COURT: f J. Distribution: ✓J n M. Kerr, Esq., 5020 Ritter Road, Suite 104, Mechanicsburg, PA 17055 thew A.Thomsen, Esq., Capozzi Adler, P.O. Box 5866, Harrisburg, PA 17110 ../ ■ ichael T. Burke, 5840 Spring Tree Court, Enola, PA 17025 Cc I p 'es fl?a Lg.cL 02.py =r71 `y r , LJ-L' r fC L PRO-LHONO ,.:�,. ,�.. 2Q14 FEB -7 PM 2; CUMBERLAND COUNTY PENNSYI IN THE COURT MON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA MICHAEL T. BURKE, Plaintiff, CIVIL ACTION - LAW V. No. 2013-6247 JOSEPH HUMMER, Defendant. Jury Trial Demanded PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please discontinue the above captioned civil action. Thank you. Respectfully submitted, `7 Date: Micha T. Bur 5840 Spring Tree Court Enola, PA 17025 (Plaintiff) 1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day I have served a true and correct copy of the foregoing Praecipe to Discontinue the case upon the following by first class mail: Matthew A. Thomsen,Esquire P.O. Box 5866 Harrisburg,PA 17011 DATE: ael Burke 2 #5 MICHAEL T. BURKE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. JOSEPH HUMMER, : NO. 2013 —6247 CIVIL TERM Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE GUIDO,EBERT, PECK, JJ. ORDER OF COURT AND NOW, this 21ST day of FEBRUARY, 2014, it appearing that Defendant's counsel was granted leave to withdraw and that notice of argument was given to him rather than Defendant, Plaintiff is directed to relist this matter for argument with appropriate notice to Defendant. By the Court f Edward E. Guido, J. ✓ Michael T. Burke John M. Kerr, Esquire tthew A. 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