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HomeMy WebLinkAbout05-1339 Kurt A. Gardner, Esquire Attorney I. D. No: 49812 Gibble and Gardner, P.c. 109 West Main Street Ephrata, PA 17522 (717) 733-3330 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LA W DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs vs. : No. OS' - /239 CIU:l ~~ JURY TRIAL DEMANDED JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVESTMENTS Defendants NOTICE TO DEFEND 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 defense or objections to the claims set forth against you. You are warned that if you fail to so do, 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs vs. No. JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVESTMENTS JURY TRIAL DEMANDED Defendants COMPLAINT I. Plaintiffs Dennis Fassnacht and Heather Fassnacht, husband and wife, are adult individuals residing at 722 Wollups Hill Road, Stevens, Pennsylvania 17578. 2. Defendants James Balkovic and Linda Balkovic, husband and wife, are adult individuals residing at 704 Bridge Street, New Cumberland, Pennsylvania 17070. 3. Defendants are doing business under the fictitious name LMB Investments, which business consists of owning and/or managing investment properties in Pennsylvania. 4. Defendants own investment property located at 1111 Apple Drive, Mechanicsburg, Cumberland County, Pennsylvania. Said property consists of multiple rental residential apartments and/or condominiums. 5. On October 4, 2003, Plaintiff Dennis Fassnacht was helping his mother-in-law move into a rental apartment located at I1I1 Apple Drive, Mechanicsburg, Pennsylvania. 6. While Plaintiff Dennis Fassnacht was helping another individual move a sofa down the concrete steps leading to the apartment area, the steps gave way under his foot causing him to fall down approximately seven steps with the sofa falling on top of him. 7. The steps being used by Plaintiff Dennis Fassnacht were the only method of accessing his mother-in-Iaw's apartment. 8. Plaintiff Dennis Fassnacht was wearing appropriate footwear. 9. PlaintitI Dennis Fassnacht did not commit any act or failure to act which contributed to the fall in any way. 10. As a result of the fall, Plaintiff Dennis Fassnacht sustained injuries that include, but are not limited to, a sprained right ankle, pain and limitation of motion in his back and hips. numbness and tingling in his hands and legs and pain and limitation of motion in his arms. II. PJaintiffDennis Fassnacht's fall and the injuries described above were caused solely by the negligence of Defendants, which consisted of the following: a. Failure to keep the concrete steps leading to the apartment in good repal r; b. Failure to timely and/or adequately inspect the steps; c. Failure to adequately warn individuals using the concrete steps that a dangerous condition existed; d. Failure to adequately and properly repair prior damage to the steps; and e. Such other acts of negligence which may be revealed during discovery. COUNT I - DENNIS FASSNACHT VS. JAMES BALKOVIC AND LINDA BALKOVIC INDVIIDUALL Y AND D/B/A LMB INVESTMENTS 12. Plaintiff Dennis Fassnacht incorporates by reference the allegations set forth in Paragraphs I through II. 13. As a direct result of the negligence of Defendants, Plaintiff Dennis Fassnacht has sustained serious injuries as set forth above. 14. As a result of the fall, Plaintiff Dennis Fassnacht has been unable to return to gainful employment and has been forced to apply for and receive medical assistance. IS. Plaintiff Dennis Fassnacht has undergone in the past and will continue in the future to endure severe pain and suffering as a result of which he has been unable to attend to his usual household duties, social activities and occupational duties. 16. As a direct result of negligence of Defendants, Plaintiff Dennis Fassnacht has suffered lost wages, medical expenses and may suffer a loss of future eaming capacity, as set forth below: a. Lost wages in the amount of approximately $30,000.00 as of the date of this Complaint; b. Lost fringe benefits in the form of health insurance, retirement benefits and vacation pay; c. Medical expenses in the approximate amount of$7,275.25 as of the date of this Complaint, plus ongoing medical expenses; d. Cost of vocational retraining; e. Ongoing lost wages and possible lost earning capacity; f. Ongoing monthly prescription costs of approximately $515.00 per month; g. A claim for loss of consortium; and h. Severe and ongoing pain and suffering. WHEREFORE, Plaintiff Dennis Fassnacht demands judgment against Defendants in excess of the arbitration limits, plus interest and costs. COUNT II - HEATHER FASSNACHT VS. JAMES BALKOVIC AND LINDA BALKOVIC INDIVIDUALLY AND D/B/A LMB INVESTMENTS - LOSS OF CONSORTIUM ] 7. Plaintiff Heather Fassnacht incorporates by reference the allegations set forth in Paragraphs I through 16. 18. As a direct result of the negligence of Defendants, Plaintiff Heather Fassnacht has suffered loss of society, services and companionship due to her husband's injuries. WHEREFORE, Plaintiff Heather Fassnacht demands judgment against Defendants in excess of the arbitration limits, plus interest and costs. By: VERIFICATION I, Dennis Fassnacht, have read the foregoing and hereby affirm that it is true and correct to the best of my personal knowledge, or infonnation and belief. This verification and statement is made subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities. I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa. C.S. 94904. ~~ ff~1* ENNIS F ASS ACHT VERIFICATION I, Heather Fassnacht, have read the foregoing and hereby affirn1 that it is true and correct to the best of my personal knowledge, or information and belief. This verification and statement is made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities. I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa. C.S. 94904. ~~ ( .~~~~~t- HEATHER FASSNACHT N P "q, !l 1[ ~ .~ ""- ....... r-- .....t Ci( \ ~ () -(: 0 p::! \Y fl .~g &,-........c. o ~ CI1 r- C'') r-~' {'" c> (J ~,>~ --'1 :-;3 ;-/1 :~l --'- C./i G . .~..) C,) .~~. ; Kurt A. Gardner, Esquire Attorney I. D. No: 49812 Gibble and Gardner, P.C. 109 West Main Street Ephrata, PA 17522 (717) 733-3330 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs vs. No. 05-1339 JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVESTMENTS JURY TRIAL DEMANDED Defendants PRAECIPE To the Prothonotary: Kindly reinstate the Complaint in the above-referenced case. Kindly forward re- instated copies to the Sherifffor service. DATE: 4111105 :;::~ Cj r:;:> ~-n r......'1 ~.. "'" -.,". (>). r: - SHERIFF'S RETURN - REGULAR ."" CASE NO: 2005-01339 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FASSNACHT DENNIS ET AL VS BALKOVIC JAMES ET AL CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BALKOVIC JAMES the DEFENDANT , at 1618:00 HOURS, on the 26th day of April at 2509 GETTYSBURG ROAD , 2005 CAMP HILL, PA 17011 by handing to ANGELA LLOYD, ADM SUP, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Additional Comments SERVICE WAS ALSO ATTEMPTED AT 704 BRIDGE ST NEW CUMBERLAND. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 37.00 .37 10.00 .00 65.37 So Answers: //a,:(::~x.j./ // -I O"..::.,."r'-'---&'~:"" .f-~ R. Thomas Kline 04/27/2005 GIBBLE & GARDNER Sworn and Subscribed to before BY:,T~q- eputy She ff me this J. M.AL. day of Itt;.d-()(:){ A.D. l -b;u.- 0 f1..u'OO,. /~ ~ othonotary . I-i -- SHERIFF'S RETURN - REGULAR .~ CASE NO: 2005-01339 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FASSNACHT DENNIS ET AL VS BALKOVIC JAMES ET AL CPL. TIMOTHY REITZ Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, was served upon says, the within COMPLAINT & NOTICE BALKOVIC LINDA the DEFENDANT , at 1618:00 HOURS, on the 26th day of April , 2005 at 2509 GETTYSBURG ROAD CAMP HILL, PA 17011 ANGELA LLOYD, ADULT IN CHARGE by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Additional Comments SERVICE WAS ALSO ATTEMPTED AT 704 BRIDGE ST NEW CUMBERLAND. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 Sworn and Subscribed to before me this -Z/I'\..<-\. day of ~ 3..005' _ A.D. C \b-LL., 0 ~,~O'AJ ."'O~ "---I Prothonotary 1 So Answers: //,..:;~ ",'-" ...-;/ ? J/ ,[.c........~:r('...t .,<i : R. Thomas Kline 04/27/2005 GIBBLE & GARDNER By: ~:--~ D~ Sh iff .- SHERIFF'S RETURN - REGULAR ,.J CASE NO: 2005-01339 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FASSNACHT DENNIS ET AL VS BALKOVIC JAMES ET AL CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, was served upon says, the within COMPLAINT & NOTICE the BALKOVIC LINDA D/B/A LMB INVESTMENTS , at 1618:00 HOURS, on the 26th day of April at 2509 GETTYSBURG ROAD DEFENDANT CAMP HILL, PA 17011 ANGELA LLOYD, ADULT IN CHARGE 2005 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 Sworn and Subscribed to before me thi s J. "^- day of ~ . ~ . 6"0 A.D. .~;h 0 )~uOD,.) AJA rothonotary I So Answers: ..~~ "A-- --:>'t" . R. Thomas Kline 04/27/2005 GIBBLE & GARDNER BY'~~ Duty -She 'ff DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA DOCKET NO: 05-1339 v. CIVIL ACTION - LAW JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVEST- MENTS, JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD To: Plaintiffs, Dennis Fassnacht and Heather Fassnacht c/o Kurt A. Gardner, Esquire Gibble and Gardner, P.C. I 09 West Main Street Ephrata, Pennsylvania 17522 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. Peters & Wasilefski (l ~-t i 1'1 f By: ',~ yj!;[;'i Thomas' A. L g,~squire Attorney ID #52610 2931 North Front Street Harrisburg, PA 17110 717-238-7555 III .,'/,~ -" i-; , ;' Dated: '71f49 16. 2005 Attorney for Defendants, James and Linda Balkovic, Individually and d/b/a LMB Investments DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 05-1339 v. CIVIL ACTION - LAW JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVEST- MENTS, JURY TRIAL DEMANDED Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT IN THE NATURE OF A MOTION TO STRIKE PURSUANT TO Pa. R.C.P.I028 AND NOW, come Defendants, James Balkovic and Linda Balkovic, husband and wife, individually and d/b/a LMB Investments ("Defendants"), by and through their attorneys, Peters & Wasilefski, and interpose the following Preliminary Objections to the Complaint filed by Plaintiffs, Dennis Fassnacht and Heather Fassnacht, husband and wife ("Plaintiffs"), based upon the following: 1. Plaintiffs commenced this action by Complaint filed on March 15,2005. 2. Plaintiffs' Complaint was served upon Defendants on April 26, 2005. 3. In their Complaint, Plaintiffs contend that Plaintiff, Dennis Fassnacht was injured on October 4, 2003 while attempting to move a sofa on or about premises located at 11119 Apple Drive, Mechanicsburg, Cumberland County, Pennsylvania, allegedly owned by Defendants. 4. In paragraph II ofthe Complaint, Plaintiffs alleged, inter alia, the following: 11. Plaintiff Dennis Fassnacht's fall and injuries described above were caused solely by the negligence of Defendants, which consisted of the following: e. Such other acts of negligence which may be revealed during discovery. 5. Paragraph 1 I (e) of Plaintiffs' Complaint fails to conform to law and the Rules of Court since said allegations are vague and do not state material facts. 6. Paragraph II(e) of Plaintiffs' Complaint fails to advise Defendants of the acts of commission or omission which constitute the alleged negligence of which Plaintiffs contend in that paragraph. 7. The general allegations contained in paragraph II (e) of Plaintiffs' Complaint fail to inform Defendants of the issues that Plaintiffs are contending in that paragraph that Defendants must meet at trial. 8. The general allegations of Plaintiffs' Complaint as set forth in paragraph ll(e) further prevent Defendants from forming a proper answer to that paragraph of Plaintiffs' Complaint. 9. Specifically, without identifying how Defendants allegedly engaged in "other acts of negligence", Defendants cannot begin to frame an Answer to said allegations, nor can they begin to prepare a proper defense to said allegations. 10. The aforesaid improper allegations of negligence severely prejudice Defendants in that, if permitted to remain in the Complaint, Plaintiffs would have the opportunity to amend the Complaint to introduce new causes of action after the applicable statute of limitations has run. See, Conner v. Alle2heny General Hospital, 501 Pa. 306,461 A.2d 600 (1983), and its progeny. 11. Based upon the foregoing, it is abundantly clear that paragraph II(e) must be stricken from Plaintiffs' Complaint. 12. In Count I of their Complaint, Plaintiffs set forth a cause of action on behalf of the allegedly injured Plaintiff, Dennis Fassnacht. 13. Specifically, in paragraph 16(g) Plaintiffs have alleged "a claim for loss of consortium" on behalf of Plaintiff, Dennis Fassnacht himself, who was the allegedly injured spouse. 14. In Count II of their Complaint, Plaintiffs allege a cause of action on behalf of Plaintiff, Heather Fassnacht, for her loss of consortium as a result of Plaintiff, Dennis Fassnacht allegedly being injured in the incident in question. 15. There is no cause of action recognized in this Commonwealth for one's own loss of consortium. 16. It has long been established in this Commonwealth that an action for loss of consortium is derivative of the injured spouse's claim. Linebaugh v. Lehr, 505 A.2d 303,304 (1986). 17. The cause of action for loss of consortium as recognized in Pennsylvania "includes loss of society, companionship and services resulting from disabling injury to the spouse", and not as a result of one's own injuries. Sturtz v. Ludy, 15 Pa. D. & C.3d 289, 290 (1979). 18. The rationale for considering the loss consortium claim as only derivative of the main personal injury claim is that, "the consortium plaintiff... has suffered no direct injury ... [His] right to recover is derived, both in a literal and legal sense, from the injury suffered by [his] spouse." (citation omitted). Scattaregia v. Shin Shen Wu, 495 A.2d 552, 554 (1985). 19. In light of the fact that there is no cause of action recognized in the Commonwealth of Pennsylvania for an injured party's alleged own loss of consortium, paragraph 16(g) of Plaintiffs must be stricken. WHEREFORE, based upon all of the foregoing, Defendants respectfully request this Court to enter an appropriate Order therein sustaining Defendants' Preliminary Objections in the Nature of a Motion to Strike, and specifically indicating that paragraphs II (e) and 16(g) are deemed to be stricken from Plaintiffs' Complaint. Respectfully submitted, Peters & Wasilefski ./!/f\ f U J \ \ ;.1- .7, r .. By: X ,1/1 .'~ (: /.~;f?~ Thomas A. I)lingi,EsqUlre '/ Attorney ID #52670 .. 2931 North Front Street Harrisburg, PA 17110 717-238-7555 Dated: ~ 16. 2005 Attorney for Defendants, James and Linda Balkovic, Individually and d/b/a LMB Investments DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 05-1339 v. CIVIL ACTION - LAW JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVEST- MENTS, WRY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Preliminary Objections of Defendants to Plaintiffs' Complaint in the Nature of a Motion to Strike Pursuant to Pa. R.C.P. 1028, has been served on all parties of interest by placing the same in the United States mail, first- class postage pre-paid, at Harrisburg, Pennsylvania on this 16th day of May, 2005, and addressed as follows: Kurt A. Gardner, Esquire Gibble and Gardner, P.C. 109 West Main Street Ephrata, Pennsylvania 17522 Peters & Wasilefski , (( \ 0.h.l..Q-- COOlL.- .------ ,,"> ':.:;'\ ~" \ ",-, ;,,) f--~ c."] ~ Kurt A. Gardner, Esquire Attorney I. D. No: 49812 Gibble and Gardner, P.C. 109 West Main Street Ephrata, PA 17522 (717) 733-3330 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION - LAW DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs vs. : No. 05-1339 JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVESTMENTS JURY TRIAL DEMANDED Defendants NOTICE TO DEFEND 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 defense or objections to the claims set forth against you. You are warned that if you fail to so do, 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 (717) 249-3166 Docket No. 05-1339 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION - LAW DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs vs. No. 05-1339 JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVESTMENTS JURY TRIAL DEMANDED Defendants AMENDED COMPLAINT 1. Plaintiffs Dennis Fassnacht and Heather Fassnacht, husband and wife, are adult individuals residing at 722 Wollups Hill Road, Stevens, Pennsylvania 17578. 2. Defendants James Balkovic and Linda Balkovic, husband and wife, are adult individuals residing at 704 Bridge Street, New Cumberland, Pennsylvania 17070. 3. Defendants are doing business under the fictitious name LMB Investments, which business consists of owning and/or managing investment properties in Pennsylvania. 4. Defendants own investment property located at 1111 Apple Drive, Mechanicsburg, Cumberland County, Pennsylvania. Said property consists of multiple rental residential apartments and/or condominiums. 5. On October 4, 2003, Plaintiff Dennis Fassnacht was helping his mother-in-law move into a rental apartment located at 1111 Apple Drive, Mechanicsburg, Pennsylvania. Docket No. 05-1339 6. While Plaintiff Dennis Fassnacht was helping another individual move a sofa down the concrete steps leading to the apartment area, the steps gave way under his foot causing him to fan down approximately seven steps with the sofa falling on top of him. 7. The steps being used by Plaintiff Dennis Fassnacht were the only method of accessing his mother-in-law's apartment. 8. Plaintiff Dennis Fassnacht was wearing appropriate footwear. 9. Plaintiff Dennis Fassnacht did not commit any act or failure to act which contributed to the fan in any way. 10. As a result of the fan, Plaintiff Dennis Fassnacht sustained injuries that include, but are not limited to, a sprained right ankle, pain and limitation of motion in his back and hips, numbness and tingling in his hands and legs and pain and limitation of motion in his arms. 11. Plaintiff Dennis Fassnacht's fan and the injuries described above were caused solely by the negligence of Defendants, which consisted of the fonowing: a. Failure to keep the concrete steps leading to the apartment in good repair; b. Failure to timely and/or adequately inspect the steps; c. Failure to adequately warn individuals using the concrete steps that a dangerous condition existed; and d. Failure to adequately and properly repair prior damage to the steps; Docket No. 05-1339 COUNT I - DENNIS FASSNACHT VS. JAMES BALKOVIC AND LINDA BALKOVIC INDVIIDUALL Y AND D/B/A LMB INVESTMENTS 12. Plaintiff Dennis Fassnacht incorporates by reference the allegations set forth in Paragraphs 1 through 11. 13. As a direct result of the negligence of Defendants, Plaintiff Dennis Fassnacht has sustained serious injuries as set forth above. 14. As a result of the fall, Plaintiff Dennis Fassnacht has been unable to return to gainful employment and has been forced to apply for and receive medical assistance. 15. Plaintiff Dennis Fassnacht has undergone in the past and will continue in the future to endure severe pain and suffering as a result of which he has been unable to attend to his usual household duties, social activities and occupational duties. 16. As a direct result of negligence of Defendants, Plaintiff Dennis Fassnacht has suffered lost wages, medical expenses and may suffer a loss of future earning capacity, as set forth below: a. Lost wages in the amount of approximately $30,000.00 as of the date of this Complaint; b. Lost fringe benefits in the form of health insurance, retirement benefits and vacation pay; c. Medical expenses in the approximate amount of $7,275.25 as of the date of this Complaint, plus ongoing medical expenses; d. Cost of vocational retraining; e. Ongoing lost wages and possible lost earning capacity; Docket No. 05-1339 f. Ongoing monthly prescription costs of approximately $515.00 per month; and g. Severe and ongoing pain and suffering. WHEREFORE, Plaintiff Dennis Fassnacht demands judgment against Defendants in excess of the arbitration limits, plus interest and costs. COUNT II - HEATHER FASSNACHT VS. JAMES BALKOVIC AND LINDA BALKOVIC INDIVIDUALLY AND D/BfA LMB INVESTMENTS - LOSS OF CONSORTIUM 17. Plaintiff Heather Fassnacht incorporates by reference the allegations set forth in Paragraphs 1 through 16. 18. As a direct result of the negligence of Defendants, Plaintiff Heather Fassnacht has suffered loss of society, services and companionship due to her husband's injuries. WHEREFORE, Plaintiff Heather Fassnacht demands judgment against Defendants in excess ofthe arbitration limits, plus interest and costs. Respectfully submitted, i GIBBLE & GA,'.h... .~R. .,P../C, ! J, II ! " .(' By' i "I",,' . )' / ~! I' , Kurt A. Gardner Attorney r'.D. No. 49812 109 West Main Street Ephrata,'PA 17522 (717) 733-3330 Docket No. 05-1339 VERIFICATION I, DENNIS FASSNACHT, have read the foregoing and hereby affirm that it is true and correct to the best of my personal knowledge, or information and belief. This verification and statement is made subject to the penalties of 18 Pa. C.S. {l4904 relating to unsworn falsification to authorities. I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa. C.S. ~4904. /7 ~ ~. lttc ~ (IfIv\ ~~ IS FA SNACHT Docket No. 05-1339 CERTIFICATION OF SERVICE I hereby certify that I have on sj dY j[)5 served a copy of the foregoing document on the person and in the manner indicated below which satisfies the requirement of Pa. R.C.P. 440. By first class mail postage prepaid as follows: Thomas A. Lang, Esquire Peters & Wasilefski 2931 North Front Street Harrisburg, PA 17110-1250 Respectfully submitted, I GIBBLE ANI}J~..' ~.. N..';E...R, P.c. IT/illl I,"', By: .. I. ,. (i Kurt A. "GarClner .' Attorney!. D. No: 49812 109 West Main Street Ephrata, P A 17522 (717) 733-3330 -;1 .-, .J r._, DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 05-1339 v. CIVIL ACTION - LAW JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVEST- MENTS, JURY TRIAL DEMANDED Defendants ANSWER AND NEW MATTER OF DEFENDANTS TO AMENDED COMPLAINT AND NOW, come Defendants, James Balkovic and Linda Balkovic, husband and wife, individually and d/b/a LMB Investments ("Defendants"), by and through their attorneys, Peters & Wasilefski, and answer the Amended Complaint of Plaintiffs, Dennis Fassnacht and Heather Fassnacht, husband and wife ("Plaintiffs"), and aver New Matter thereto, as follows: 1. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of said allegations, and the same are therefore deemed denied and strict proof thereof is demanded. 2. Denied as stated. Defendants James Balkovic and Linda Balkovic, husband and wife, are adult individuals residing at 2509 Gettysburg Road, Camp Hill, P A 17011. 3. Admitted. 4. Admitted. 5. Denied. After reasonable investigation Defendants are without knowledge or information sufficient to form a belief as to the truth of said allegations, and the same are therefore deemed denied and strict proof thereof is demanded. By way of additional response, said allegations are specifically denied in accordance with Pa. R.C.P. l029(e). 6. Denied, Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of said allegations, and the same are therefore deemed denied and strict proof thereof is demanded. By way of further response, said allegations are specifically denied in accordance with Pa. R.C.P. l029(e). 7. Denied. Said allegations are specifically denied in accordance with Pa. R.C.P. l029(e). 8. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of said allegations, and the same are therefore deemed denied and strict proof thereof is demanded. By way of further response, said allegations are specifically denied in accordance with Pa. R.C.P. l029(e). 9. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of said allegations, and the same are therefore deemed denied and strict proof thereof is demanded. By way of further response, said allegations are specifically denied in accordance with Pa. R.C.P. l029(e). 2 10. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of said allegations, and the same are therefore deemed denied and strict proof thereof is demanded. By way of further response, said allegations are specifically denied in accordance with Pa. R.C.P. 1 029( e). 11. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). COUNT I DENNIS FASSNACHT v. JAMES BALKOVIC AND LINDA BALKOVIC INDIVIDUALLY AND d/b/a LMB INVESTMENTS 12. Defendants incorporate paragraphs 1 through 11 above by reference thereto as though set forth herein at length. 13. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). 14. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 3 To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). 15. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). 16. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). WHEREFORE, Defendants demand that judgment be entered in their favor and against Plaintiffs. 4 COUNT II HEATHER FASSNACHT v. JAMES BALKOVIC AND LINDA BALKOVIC INDIVIDUALLY AND d/b/a LMB INVESTMENTS - LOSS OF CONSORTIUM 17. Defendants incorporate paragraphs 1 through 16 above by reference thereto as though set forth herein at length. 18. Denied. Defendants are advised by counsel and therefore aver that said allegations state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response may be required, said allegations are specifically denied in accordance with Pa. R.C.P. 1029(e). WHEREFORE, Defendants demand that judgment be entered in their favor and against Plaintiffs. NEW MATTER 19. Defendants incorporate paragraphs 1 through 18 above by reference thereto as though set forth herein at length. 20. Plaintiffs' claims may be barred either in whole or in part by the applicable statute of limitations. 21. Plaintiffs' alleged injuries and damages if any, which are specifically denied, may have been caused either in whole or in part by the acts or omissions of third parties other than Defendants. 5 22. Plaintiffs' alleged injuries and damages, if any, which are specifically denied, may have pre-existed the incident in question, either in whole or in part, which are not causally related to the incident giving rise to the present litigation. 23. Plaintiffs' claims are reduced or barred by the Comparative Negligence Act. 24. The contributory negligence of Plaintiff, Dennis Fassnacht consisted of, but IS not limited to: (a) Failing to keep a proper lookout to where he was walking; (b) Failing to pay attention to an open and obvious condition directly in his intended path; (c) Failing to care for his own safety under the facts and circumstances then and there existing; (d) Failing to take an available alternative route; (e) Failing to take appropriate precautions while traveling upon the premises in question; (f) Failing to appropriately observe the conditions then and there existing; (g) Wearing inappropriate or worn footwear; (h) Failing to look where he was walking; (i) Failing to utilize the steps in the manner in which they were intended; G) Failing to have adequate, able and competent assistance in the attempted moving of the sofa in question; (k) Failing to step over, around or next to an open and obvious condition; 6 (1) Failing to utilize the readily available different portion of the steps in question; (m) Engaging in an unsafe act upon the steps in question immediately prior to the incident; and (n) Failing to take all reasonable measures to insure that he could safely move the sofa in question at the time in question. 25. Any injuries or damages allegedly suffered by Plaintiffs, which are specifically denied, were solely the direct and proximate result of the negligence of Plaintiff, Dennis Fassnacht 26. Plaintiffs' claims are barred by the doctrine of assumption of risk since Plaintiff. Dennis Fassnacht knowingly and voluntarily encountered the open and obvious condition then and there existing. 27. The injuries and damages alleged suffered by Plaintiffs, which are specifically denied, may have been due in whole or in part to the negligence of individuals or entities over whom Defendants had no duty of control. 28. Defendants were not negligence or careless in any manner whatsoever with regard to the facts and circumstances set forth in Plaintiffs' Complaint 29. Defendants owed no duty of care to Plaintiff, Dennis Fassnacht under the facts and circumstances as set forth in Plaintiffs' Complaint, and as they existed at the time of the incident in question. 30, Defendants had no duty to insure or guarantee the safety of Plaintiff, Dennis Fassnacht. 31. Plaintiffs have failed to state a cause of action against Defendants upon which relief may be granted. 7 32. Discovery may reveal that Plaintiffs' claims may be barred in whole or in part by one or more affirmative defenses as set forth in Pa. R.C.P. 1030, which are incorporated herein by reference thereto, including but not limited to, assumption of risk, collateral estoppel, res judicata, release or immunity from suit. WHEREFORE, Defendants demand that judgment be entered III their favor and against Plaintiffs. Peters & Wasilefski BY:~ Dated:~ / t>J aOO S- Attorney for Defendants, James and Linda Balkovic, Individually and d/b/a LMB Investments 8 VERIFICATION I hereby affirm that the following facts are correct: I am a Defendant and am authorized to make this Verification on behalf of all of the Defendants; the attached Answer and New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in the preparation of the lawsuit. The language of the Answer and New Matter is that of counsel and not of me. I have read the Answer and New Matter and to the extent that the same is based upon information, which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer and New Matter is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the Answer and New Matter are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Q.\6~~ lkovic, Individually, on behalf of his wife, Lin lkovic, and in their capacity as d/b/a LMB Investments Date: I " DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: 05-1339 v. CIVIL ACTION - LAW JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVEST- MENTs, JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer and New Matter, has been served on all parties of interest by placing the same in the United States mail, first- class postage pre-paid, at Harrisburg, Pennsylvania on this lfllt day of June, 2005, and addressed as follows: Kurt A. Gardner, Esquire Gibble and Gardner, P.c. 1 09 West Main Street Ephrata, Pennsylvania 17522 Peters & Wasilefski -Th D-^-(l- ~ (1 (;,~ ~~ f}. <-::: ~c: ~ .-1 ..,., ::f:; .:;:::. {'1'"1"\ -rj ~-) ";', '{3 s;; -<"~~ (,;~ (fn o '.-\ ,-,':'7* ~2. -1:"} ::~ ~ .- 0) \.J:) - v' Kurt A. Gardner, Esquire Attorney I. D. No: 49812 Gibble and Gardner, P.c. 109 West Main Street Ephrata, P A 17522 (717) 733-3330 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LA W DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs vs, No, 05-1339 JAMES BALKOVIC and LINDA BALKOVlC, Husband and Wife, Individually and d/b/a LMB INVESTMENTS JURY TRIAL DEMANDED Defendants PLAINTIFFS' REPLY TO NEW MATTER 19, No response required, 20, Denied, Plaintiffs' claims are not barred either in whole or in part by the applicable Statute Limitations, 21, Denied, Plaintiffs' injuries and damages were not caused either in whole or in part by the acts or omissions of third parties other than Defendants, 22. Denied. Plaintiffs' injuries and damages did not pre-exist the incident in question, either in whole or in part, and are causally related to the incident giving rise to the present litigation. 23. Denied. Plaintiffs' claims are not reduced or barred by the Comparative Negligence Act. No. 05-1339 24. Denied. There was no contributory negligence on the part of Plaintiff, Dennis Fassnacht, specifically: a. Plaintiff did not fail to keep a proper lookout as to where he was walking; b. Plaintiff did not fail to pay attention to an open and obvious condition; c. Plaintiff did not fail to care for his own safety under the facts and circumstances then and there existing; d. Plaintiff did not fail to take an available alternative route, as none was available; e. Plaintiff did not fail to take appropriate precautions while traveling upon the premises in question; f. Plaintiff did not fail to appropriately observe the conditions then and there existing; g. Plaintiff wore appropriate footwear that was in good condition; h. Plaintiff did look where he was walking; L Plaintiff utilized the steps in the manner in which they were intended; J. Plaintiff did have adequate, able and competent assistance in the attempt at moving the sofa in question; k. Plaintiff was unable to step over, around or next to the stairs utilized; l. Plaintiff was unable to utilize a different portion of the steps in question; No. 05-1339 m. Plaintiff did not engage in an unsafe act upon the steps in question immediately prior to the incident; and n. Plaintiff took all reasonable measures prior to moving the sofa in question. 25. Denied. The injuries and damages suffered by Plaintiffs were not the direct and proximate result of the negligence of Plaintiff, Dennis Fassnacht. 26. Denied. Plaintiffs' claims are not barred by the doctrine of assumption of risk, as there was no other available way to gain entrance into the premises. 27. Denied. The injuries and damages suffered by Plaintiffs were not due in whole or in part to the negligence of individuals or entities over whom Defendants had no duty of control. 28, Denied. Defendants were negligent and careless as set forth in Plaintiffs' Amended Complaint. 29. Denied. Defendants owed a duty of care to Plaintiff, Dennis Fassnacht, under the facts and circumstances as set forth in Plaintiffs' Amended Complaint and as they existed at the time of the incident in question. 30. Denied. Defendants had a duty to insure that the premises they owned were Cor the purpose intended and safe and owed a duty to Plaintiff, Dennis Fassnacht as set forth in Plaintiffs' Amended Complaint. 3 I. Denied. Plaintiffs have stated a cause of action against Defendants upon which relief may be granted. ----. No. 05-1339 32. Denied. Discovery will not reveal that Plaintiffs' claims are barred in whole or in part by one or more affirmative defenses as set forth in Pa. R.C.P. 1030. WHEREFORE, Plaintiffs demand that judgment be entered in their favor and against Defendants. Respectfully submitted, By: No. 05-1339 VERIFICATION I, DENNIS FASSNACHT, have read the foregoing and hereby affirm that it is true and correct to the best of my personal knowledge, or information and belief. This verilication and statement is made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsilication to authorities. I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa. C.S. 94904. ()~~ DENNIS FASSNACHT No. 05-1339 CERTIFICATION OF SERVICE I hereby certify that I have on 0- {' -os- served a copy of the foregoing document on the person and in the manner indicated below which satisfies the requirement of Pa. R.c.P. 440. By first class mail postage prepaid as follows: Thomas A. Lang, Esquire Peters & Wasilefski 2931 North Front Street Harrisburg,PA 17110-1250 Respectfully submitted, By: Kurt Atto (") ...., ~ c:> ('... c;:;l en ,-- --I :r: :n l: %-::1 .,. . r--" m '" '.1 0 ::i) C> ~:.) , C) r: "j-, C1 i{~~ -\, ('::~. -'7.'" =< ~ c~J 0"' '< - .... Kurt A. Gardner, Esquire Attorney I. D. No: 49812 Gardner and Stevens, P.c. 109 West Main Street Ephrata, PA 17522 (717) 733-3330 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS FASSNACHT and HEATHER FASSNACHT, Husband and Wife, Plaintiffs vs. No. 05-1339 JAMES BALKOVIC and LINDA BALKOVIC, Husband and Wife, Individually and d/b/a LMB INVESTMENTS JURY TRIAL DEMANDED Defendants PRAECIPE To the Prothonotarv: Kindly mark the docket in the above-referenced matter settled, discontinued, dismissed with prejudice and all costs paid. Date: I - L, -N i/ By: - . . 4, Docket No. 05-1339 CERTIFICATION OF SERVICE I hereby certify that I have on t - \., -.CJ- served a copy of the foregoing document on the person and in the manner indicated below which satisfies the requirement ofPa. R.C.P. 440. By first class mail postage prepaid as follows: Thomas A. Lang, Esquire Peters & Wasilefski 2931 North Front Street Harrisburg, PA 17110-1250 Respectfully submitted, / GARDNER VE ~ By: C.:> -n :;;:! ,.\.- ;-rI .r,.i_ , G" c,) '1.:;)