HomeMy WebLinkAbout05-0387Johnson, Duffle, Stewart & Weidner
By: Mark C. Duffie
I.D. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
mcd@jdsw.com
WENDY L. FINZEL and ERNEST C.
FINZEL, husband and wife, individually
and on behalf of their minor child,
LYNDSEY M. M. FINZEL
13 West Locust Street
Enola, PA 17025
Plaintiffs
V.
STONE HILL, LTD., d/b/a "STONE
HILL, INC., at ABC Farm" and Stone Hill
Stables
6962 Wertzville Road
Enola, PA 17025
and
NICOLE C. ESTEP, individually and
d/b/a "STONE HILL, INC., at ABC Farm
and Stone Hill Stables
6962 Wertzville Road
Enola, PA 17025
and
DAVID CRAWFORD, individually
Attorneys for Plaintiffs
IN THE COURT OF COMMON
PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Docket No. C' _ 3 97 7
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Ltd
Defendants
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 Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone: (717) 249-3166
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de
las demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accion dentro de los proximos veinte (20) dias despues de la 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, [as demandas presentadas aqui en contra suya. Se le advierte de que si
usted falls de tomar acci6n como se describe anteriormente, el caso puede proceder sin
usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra
reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya
por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros
derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE. SI 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 Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone: (717) 249-3166
243294
Johnson, Duffle, Stewart & Weidner
By: Mark C. Duffie
I.D. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
mcd@jdsw.com
WENDY L. FINZEL and ERNEST C.
FINZEL, husband and wife, individually
and on behalf of their minor child,
LYNDSEY M. M. FINZEL
13 West Locust Street
Enola, PA 17025
Plaintiffs
V.
STONE HILL, LTD., d/b/a "STONE
HILL, INC., at ABC Farm" and Stone Hill
Stables
6962 Wertzville Road
Enola, PA 17025
and
NICOLE C. ESTEP, individually and
d/b/a "STONE HILL, INC., at ABC Farm
and Stone Hill Stables
6962 Wertzville Road
Enola, PA 17025
and
DAVID CRAWFORD, individually
Attorneys for Plaintiffs
IN THE COURT OF COMMON
PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Docket No.
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendants
COMPLAINT
AND NOW, comes the Plaintiffs, by and through their attorneys, Johnson, Duffie,
Stewart & Weidner, and files this Complaint and in support thereof avers as follows:
1. Plaintiff, Wendy L. Finzel, an adult individual, currently resides and at all
times relevant hereto resided at 13 West Locust Street, Enola, Cumberland County,
Pennsylvania 17025.
2. Plaintiff, Ernest C. Finzel, an adult individual, currently resides and at all
times relevant hereto resided at 13 West Locust Street, Enola, Cumberland County,
Pennsylvania 17025. He is married to Wendy L. Finzel, Co-Plaintiff herein.
3. Defendant, Lyndsey M. M. Finzel, is a minor child, currently resides and at
all times relevant hereto resided at 13 West Locust Street, Enola, Cumberland County,
Pennsylvania 17025. Lyndsey is the minor child of Wendy L. Finzel and Ernest C. Finzel.
4. Defendant, Stone Hill, Ltd., is a Pennsylvania corporation duly formed and
organized under the laws of the Commonwealth of Pennsylvania, on or about September
5, 2001, and having a registered address of 6962 Wertzville Road, Enola, Cumberland
County, Pennsylvania 17025. Defendant, Stone Hill, Ltd., trades and does business as
Stone Hill Stables and/or Stone Hill, Inc., at ABC Farm (hereinafter "Stone Hill").
5. Defendant, Nicole C. Estep, is an adult individual residing at 6962 Wertzville
Road, Enola, Cumberland County, Pennsylvania 17025 (hereinafter "Estep").
6. Defendant, David Crawford, is an adult individual who previously resided in
Pennsylvania and is now believed to be residing in Florida (hereinafter "Crawford"). At all
times relevant to the present pleading and the events outlined herein, it is believed and
therefore averred that Crawford, was employed by and under the direct supervision of
Stone Hill and/or Estep.
7. Prior to October 30, 2001, Ernest C. Finzel and Wendy L. Finzel acquired a
horse for their minor child, Lyndsey M. M. Finzel. The horse was named "Around the
Benn" or just "Kenn" for short.
8. On or about October 30, 2001, Wendy L. Finzel entered into a "Board
Agreement" with Stone Hill and Estep, individually, wherein Stone Hill and Estep,
individually, agreed to board Benn. A true and correct copy of said Board Agreement is
attached hereto and incorporated herein as Exhibit "A".
9. In the Board Agreement, Stone Hill and Estep, individually, agreed to
provide "full care" which included "general look after and care for the horse's well-
being...".
10. Said Board Agreement provides in paragraph 8 language with respect to
liability as follows:
The Owner [Wendy L. Finzel] agrees that "Stone Hill, Ltd.", its employees,
agents, and farm owners are not liable for the illness, accidental injury, or
death occurring to the horse by any cause whatsoever, except if caused
by the willful and gross negligence by "Stone Hill, Ltd.", its employees
or agents.
11. On Sunday, November 17, 2002, Plaintiffs Wendy L. Finzel and Lyndsey M.
M. Finzel arrived at the property of Stone Hill and Estep, where Benn was boarded for the
purpose of having Benn clipped.
12. During the clipping, Benn was in the care, custody, and control of all and
the actual clipping of Benn was performed by Defendant Crawford and supervised by
Defendants Estep and Stone Hill.
13. During the clipping, Defendant Crawford punched or struck Benn in the face
approximately three (3) times. After having beaten Benn about the face with his fists,
Defendant Crawford beat Benn with a blue metal-handled broom on his face and neck
repeatedly until the metal-handled broom broke. After the broom broke, Defendant
Crawford beat Benn repeatedly and extensively all over his body with an aluminum
shovel. At all times during the course of the abuse, Defendants Estep and Stone Hill
were present and made no indication that she did anything but condone the outrageous
conduct and behavior of Defendant Crawford.
14. At all times relevant hereto, Defendant Crawford was an employee of,
and/or under the immediate supervision of Stone Hill and Estep, individually.
15. At all times relevant hereto, and during the course of the egregious conduct
described herein, all Defendants, representatives, employees, and agents of Defendants
were aware that the owner of Benn, Plaintiff, Wendy L. Finzel, and her 14 year old minor
child, Lyndsey M. M. Finzel, were present on the property and, at various times,
witnessing the conduct causing the harm and damage described herein.
16. Benn suffered a number of injuries including bruising and lacerations on
various areas of his body, as well as, a severely bruised withers.
17. Lyndsey M. M. Finzel, the primary rider of Benn, was unable to ride Benn
for several months while Benn recovered from the beating administered by the
Defendants.
COUNT I: GROSS NEGLIGENCE
Plaintiffs vs. Stone Hill, Ltd., Nicole C. Estep and David Crawford
18. Paragraphs 1 through 17 are incorporated herein as if set forth fully.
19. The actions of each of the Defendants were wanton, reckless and
intentional either by their action or inaction.
20. As individuals and entities operating in the business of boarding and caring
for horses, the Defendants, either by virtue of their relationship or by contract, are
obligated to exhibit a level of care for Benn during the time Bann is in their care, custody
and control.
21. The Defendants, each by their actions or inactions, breached the duty or
standard of care with respect to the Plaintiffs and Benn.
22. Not only did the actions and inactions of the Defendants fall short of what is
reasonably expected under the circumstances, but their misconduct was intentional,
wanton, reckless and egregious.
23. The actions or inactions of the Defendants herein, were the direct cause of
the injuries and damages sustained by Benn and the Plaintiffs.
WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter
judgment in their favor and against the Defendants and award damages not in excess of
the mandatory arbitration limit.
COUNT II: NEGLIGENCE
Plaintiffs vs. Stone Hill, Ltd., Nicole C, Estep and David Crawford
24. Paragraphs 1 through 23 are incorporated herein as if set forth fully.
25. As individuals and entities operating in the business of boarding and caring
for horses, the Defendants, either by virtue of their relationship or by contract, are
obligated to exhibit a level of care for Benn during the time Benn is in their care, custody
and control.
26. The Defendants, each by their actions or inactions, breached the duty or
standard of care with respect to the Plaintiffs and Benn.
27. Not only did the actions and inactions of the Defendants fall short of what is
reasonably expected under the circumstances, but their misconduct was intentional,
wanton, reckless and egregious.
28. The actions or inactions of the Defendants herein, were the direct cause of
the injuries and damages sustained by Benn and the Plaintiffs.
WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter
judgment in their favor and against the Defendants and award damages not in excess of
the mandatory arbitration limit.
COUNT III: PUNITIVE DAMAGES
Plaintiffs vs. Stone Hill, Ltd., Nicole C. Estop and David Crawford
29. Paragraphs 1 through 28 are incorporated herein as if set forth fully.
30. Of the actions and inactions of the Defendants were committed willfully,
maliciously and so carelessly that they could indicate nothing but a wanton disregard for
the rights of the Plaintiffs.
31. The conduct of physically beating and condoning such behavior is so
outrageous as to warrant punitive damages, especially in light of the fact that damages
based upon infliction of emotional distress are unavailable under the facts set forth herein.
32. Punitive damages would be appropriate in this case as they are damages
purely penal in nature which would appropriately prevent this from future reoccurrences.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter
judgment in their favor and award damages not in excess of the arbitration limit to include
appropriate punitive damages.
Respectfully submitted,
JOHNSON, DUFFIE, STEV9ART4 WEIDNER
Date: 1126)05 By:
Attorneys for
VERIFICATION
I, Mark C. Duffie, attorney for Plaintiffs, hereby certify that the matters asserted
herein constitute matters of record, legal arguments and matters within the direct
knowledge of counsel. The statements contained herein are true and correct to the best
of the knowledge of the undersigned. This verification is made pursuant to the
provisions of 18 Pa.C.S.A. §4904.
L
Mar C. Duffie, quire
lo5
Date: /14&
239777
CERTIFICATE OF SERVICE
AND NOW, this A I day of January, 2005, the undersigned does hereby certify
that she did this date serve a copy of the foregoing document upon the other parties of
record by causing same to be deposited in the United States Mail, first class postage
prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Jason P. Kutulakis, Esquire
Abom & Kutulakis
36 South Hanover Street
Carlisle, PA 17013
JOHNSON, DUFFIE, STEWART & WEIDNER
1
14u i
By: Deborah Ziesn?5
"Stone Hill, Ltd. "
Nicole C. Estep
620 Willow Mill Pk RD
Mechanicsburg, PA 17055
Board Acreement
"Stone Hill, Inc at ABC farm" and/or Nicole C. Estep hereby agrees to board
the 16- ? hand, 4y (color), a (sex), 1_ (age) year old horse,
known as, (name) hereinafter referred to as the "Horse" and owned by
1' E-L (owner), of ?1J. ?-7h? rl l ?
L 1 i C_)1??1?T zip address), telephone (home)
-9)2-. Z n2 (work) 90 - '2_0 v For the sum of $ -4 )O °O per month "Board"
under the following terms:
1. Full Care Includes
A. stall cleaning
B. turnout in maintained paddocks (weather permitting),
C. two feedings daily, morning and evening,
D. general look after and care for the Horse's well-being including arrangements for annual,
semi-annual or quarterly vaccinations and worming,
2. All medical care will be provided by a veterinarian and all shoeing provided by a Farrier, and will
be the expense of the Owner. In case of major illness or injury, "Stone Hill, Inc at ABC farm"
will attempt to contact the Owner of the horse at the telephone numbers contained in this
agreement. "Stone Hill, Ltd-" reserves the right to calla veterinarian if, at its sole discretion, such
action is in the Horse's best interest, and to authorize such emergency treatment as the
veterinarian advises. The Horse shall be free from infections and contagious or transmissible
diseases. The following documents are required:
A. Veterinarian's Health Certificate
B. Current Negative Coggin Test certificate
C. Immunization record
D. Worming record
"Stone Hill, Ltd." reserves the right to terminate this agreement within seven days of arrival or
execution of this agreement, whichever is earlier, if the above documents are not received.
3. "Stone Hill, Ltd." reserves the right to notify the Owner if the Horse in "Stone Hill, Ltd's"
opinion is deemed dangerous or otherwise undesirable for the boarding stable. In such case, the
Owner is responsible for removing the Horse from the premises within fourteen days of such
written notice and payment of all fees incurred during Horse's period of board After all fees have
been paid, this agreement is terminated.
4. The undersigned and anyone associated with the undersigned agrees to comply with all barn rules
and regulations in accordance with "Stone Hill, Ltd.". Failure to observe these
rules and regulations will result in immediate termination of this agreement. In this case it is the
responsibility of the owner to remove the horse from the premises with in fourteen days of such
written notice and payment of all fees incurred during Horse's period of board.
5. The undersigned agrees to hold harmless and indemnify "Stone Hill, Ltd." its employees, farm
owners or agents, from any and all claims, suits, judgements, or any costs whatsoever, including
attorneys' fees arising from any bodily injury or property damage caused by the Horse to any
person, horse, or property.
6. The board fee is due and payable in advance for the entire month, or part thereof, on the first day
of each calendar month. "Stone Hill, Ltd" reserves the right to charge a late fee of $ 5.00 per day
for any bills or fees not paid by the tenth of that month.
7. In the event that the Board fee is not received within 60 days of the due date, "Stone Hill, Ltd."
may exercise a lien against the Horse for all unpaid boarding fees and other accrued charges
including attorneys' fees and shall be entitled to enforce the lien and sell of the Horse for the
amount due in accordance with the appropriate laws of the State of Pennsylvania. Removal of
the Horse from the premises may not occur prior to all debts to "Stone Hill, Ltd." being satisfied
in M.
8. The Owner agrees that "Stone Hill, Ltd.", its employees, agents, and farm owners are not liable
for the illness, accidental injury, or death occurring to the Horse by any cause whatsoever, except
if caused by the willful and gross negligence by "Stone Hill, Ltd.", its employees or agents.
9. "Stone Hill, Ltd." is not responsible for any personal property. It is the responsibility of each
Owner to secure personal property and to carry full insurance, including coverage on the Horse
and all personal property.
10. "Stone Hill, Ltd." reserves the right to terminate this agreement within thirty days of written
notice to the Owner. All debts to "Stone Hill, Ltd." shall be satisfied prior to removal of the
Horse from the premises and termination of the agreement. Owner must give thirty days written
notice prior to the termination of this agreement.
11. This agreement represents the entire agreement between the parties. All terms and conditions of
the agreement shall be binding upon "Stone Hill, Ltd." and on the Owner and their heirs, agents,
successors, and assigns. Amendments to the terms of the agreement may only be made by written
agreement to the parties. This agreement and any disputes concerning the construction or effect
of this contract shall be interpreted and governed according to the laws of the State of
Pennsylvania.
"Stone Hill, Ltd." representative
Date a l9
Owner of the Horse signatureJ
Name (print)
L.
Address (current)
Date 0 Wn i
Phone (home) 0 P, 5 ca (work) 1?) C
Release Farm
I, ?' UV? LPL 1 L r ] _(J Z- a , hereby release Nicole C.
Estep, her employees, I" owners, agents, and representatives, from any and all
liability for injuries or other loss sustained by me or my horse resulting from riding
lessons. I understand and fully assume all risks associated with horseback riding and
lessons given therefore.
i
Date: Signature. ? Ul? L^ Y 1
Address: d 1 ,
Phone: (home) 3 2. -2- Z_SZ (work) 9
G Z
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Johnson, Duffle, Stewart & Weidner
By: Mark C. Duffie
I.D. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
WENDY L. FINZEL and ERNEST C.
FINZEL, husband and wife, individually and
on behalf of their minor child, LYNDSEY
M.M. FINZEL
13 West Locust Street
Enola, PA 17025
Plaintiffs
V.
STONE HILL, LTD., d/b/a "STONE HILL,
INC., at ABC Farm" and Stone Hill Stables
6962 Wertzville Road :
Enola, PA 17025
and
NICOLE C. ESTEP,
"STONE HILL, INC.,
Stone Hill Stables
6962 Wertzville Road
Enola, PA 17025
and
individually and d/b/a
at ABC Farm and
DAVID CRAWFORD, individually
Defendants
Attorneys for Plaintiffs
IN THE COURT OF
COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Docket No. 05-387
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PETITION PURSUANT TO PENNSYLVANIA R.C.P. 230.2(d)(1) & (2)
AND NOW, comes the Plaintiffs/Petitioners, Wendy L. Finzel and Earnest C. Finzel, husband and
wife, individually and on behalf of their minor child, Lindsay M. M. Finzel, by and through their attorneys,
Johnson, Duffie, Stewart and Weidner, and files this Petition Pursuant to P.R.C.P.230.2(d)(1) & (2) and in
support thereof, avers as follows:
1. The undersigned counsel received a Notice of Proposed Termination of court case with a
required response on or before October 28, 2008.
2. The Prothonotary entered an order terminating the matter on October 29, 2008.
3. P.R.C.P. 203.2(d)(2) provides that if this Petition is filed within thirty (30) days after the entry
of the Order of Termination on the docket, the Court shall grant the Petition and reinstate the action.
4. This Petition is filed within thirty (30) days after the entry of the Order of Termination and
therefore by rule shall be granted.
WHEREFORE, the Petitioners respectfully request this honorable Court to reinstate the above-
captioned matter pursuant to P.R.C.P. 230.2(d)(2).
Respectfully submitted,
JOHNSON, DU IE, STEWART & WEIDNER
By:
Mark C. Duffi
Attorney I.D. No. 75906
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
Attorney for Plaintiffs
351539
CERTIFICATE OF SERVICE
AND NOW, this 26th day of November, 2008, the undersigned does hereby certify that he did this
date serve a copy of the foregoing upon the other parties of record by causing same to be deposited in the
United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Jason P. Kutulakis, Esquire
Abom & Kutulakis
36 South Hanover Street
Carlisle, PA 17013
JOHNSON, DUFFIE, STEWART & WEIDNER
By:
Mark C. Duffle
:351539
?a
_. _i
_:.
_- ; ?,
,, _.
,a;
`c;
_• -,
.__
,.
.,
Curtis R. Long
Prothonotary
(Office of the Protbonotarp
CCumberfalab CCountp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
bs- - 31P7 CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717)')dn_,<c'7'2
WENDY L. FINZEL and
ERNEST C. FINZEL,
husband and wife,
Plaintiffs
V.
STONE HILL, LTD.,
d/b/a "STONE HILL,
INC., at ABC Farm" and
Stone Hill Stables,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
and
NICOLE C. ESTEP,
individually and d/b/a
`STONE HILL, INC.,
at ABC Farm" and Stone
Hill Stables
and
DAVID CRAWFORD,
individually,
Defendants
NO. 05-0387 CIVIL TERM
IN RE: PETITION PURSUANT TO PENNSYLVANIA
R.C.P. 230.2(d)(1) & (2)
ORDER OF COURT
AND NOW, this 3`d day of February, 2009, upon consideration of the above
matters, a Rule is hereby issued upon all other interested parties to show cause why the
relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
SERVICE OF THIS RULE is to be made by Plaintiffs' counsel.
,/Mark C. Duffle, Esq.
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Attorney for Plaintiffs
/Jason P. Kutulakis, Esq.
36 South Hanover Street
Carlisle, PA 17013
Attorney for Defendants
rc
L.p(? i'F.S m? i lEcl?
a?s?oq
BY THE COURT,