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HomeMy WebLinkAbout14-4581 a 3 Supreme Court of Pennsylvania Court`of Co'mmo'n'.Pleas For Prothonotary Use Only: Civil Cover.Sheet Docket No: 1Spl Cumberland County )q V The infurniation collected ori this form is used solely for court administration purposes. This form does not supplement or replace rhe filing and service of pleadings or other papers cis required by law or rules of'courl. Commencement of Action: S 0 Complaint 0 Writ of Summons 0 Petition Transfer from Another Jurisdiction 0 Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Peter Kemery Carlisle Sports Emporium, INc. Dollar Amount Requested: Owithin arbitration I limits Are money damages requested? 0 Yes 0 No (check one) Ox outside arbitration limits O N Is this a Class Action Suit? Yes es No Is this an MDJAppeal? ® Yes El No A Name of Plaintiff/Appellant's Attorney: James J. Franklin, Esquire Check here if you have no sett:€rpcy (Etta;a self-Represented 1111-0 Sel t it k ant) 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 0 Intentional 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution 0 Debt Collection:Credit Card 0 Board of Assessment 0 Motor Vehicle 0 Debt Collection:Other 0 Board of Elections 0 Nuisance 0 Dept.of Transportation ;x Premises Liability ® Statutory Appeal:Other S 0 Product Liability (does not include E mass tort) 0 Employment Dispute: 0 Slander/Libel/Defamation Discrimination C Other: 0 Employment Dispute:Other 0 Zoning Board T Other: I 0 Other: O MASS TORT 0 Asbestos N 0 Tobacco 0 Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Toxic Waste 0 Other: 1:1 Ejectment E] Common Law/Statutory Arbitration B 0 Eminent Domain/Condemnation 0 Declaratory Judgment 0 Ground Rent 0 Mandamus 0 Landlord/Tenant Dispute 0 Non-Domestic Relations 0 Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial 0 Quo Warranto 0 Dental 0 Partition 0 Replevin 0 Legal 0 Quiet Title 0 Other: 0 Medical 0 Other: 0 Other Professional: Updated 1/1/2011 17, GB No.uy H. 9672 Pa;'rooks S YL V CD. OtJNT , James J. Franklin �` } VA I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff PETER KEMERY, IN THE COURT OF COMMON PLEAS 111 North Old Stonehouse Rd., CUMBERLAND COUNTY, PENNSYLVANIA Carlisle, PA, 17015 Plaintiff V. CASE NO. "�' J Civil Term CARLISLE SPORTS EMPORIUM, INC., CIVIL ACTION — LAW 29 South Middlesex Road, Carlisle, PA 17015 JURY TRIAL DEMANDED Defendant PRAECIPE FOR WRIT OF SUMMONS To: PROTHONOTARY OF CUMBERLAND COUNTY Please issue a Writ of Summons against Defendant in the above-captioned action. Writ of Summons shall be issued and forwarded to the Attorney for service. McNEES WALLACE & NURICK LLC By Guy H. Brooks, I.D. No. 49672 James J. Franklin, I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street , P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: August ' 2014 Attorneys for Plaintiff Q� �k )%H 3a9 383 PETER KEMERY, IN THE COURT OF COMMON PLEAS 111 North Old Stonehouse Rd., CUMBERLAND COUNTY, PENNSYLVANIA Carlisle, PA, 17015 Plaintiff � _ Vygl- v. CASE NO. Civil Term CARLISLE SPORTS CIVIL ACTION — LAW EMPORIUM, INC., 29 South Middlesex Road, Carlisle, PA 17015 Defendant WRIT OF SUMMONS To: CARLISLE SPORTS EMPORIUM, INC., Defendant YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Prothonotary Deputy Dated: August ' 2014 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY H tPROi4 CNU. ; 2 R AUG 13 PM 3: 19 CUMBERLAND COUNTY PENNSYLVANIA Peter Kemery vs. Carlisle Sport Emporium, Inc. Case Number 2014-4581 SHERIFF'S RETURN OF SERVICE 08/06/2014 12:43 PM - Deputy Jamie DiMartle, being duly sworn according to law, served the requested Writ of Summons by handing a true copy to a person representing themselves to be Michael Bear- Manager, who accepted as "Adult Person in Charge" for Carlisle Sport Emporium, Inc. at 29 South Middlesex Road, Middlesex Township, Carlisle, PA 17015. kku IE DIMARTLE, DEPUTY SHERIFF COST: $35.27 SO ANSWERS, August 07, 2014 RONNY R ANDERSON, SHERIFF (c) CountySuite Sheriff, Teleosoft, Inc. SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No.: 39766 1515 Market Street — 19th Floor Philadelphia, Pennsylvania 19102 (215) 563-9811 OI- . t[ ELPROTHGNf j . gait, AUG 21 P( 1:4.7 Attorney for: DefendantUMBER L 4 NO COuN y r' r SYLVANIA Carlisle Sports Emporium, n . PETER KEMERY v. CARLISLE SPORTS EMPORIUM, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW CASE NO.: 14-4581 — Civil Term ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Carlisle Sports Emporium, Inc., in regard to the above -captioned matter. Defendant, Carlisle Sports Emporium, Inc., request a jury at the time of trial of this matter. SWEENEY & S EEHAN, P.C. Guy er"ogl:ie Attorney for Defendant, Carlisle Sports Emporium, Inc., By. DATE: GA -1231 SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No.: 39766 1515 Market Street— 19`h Floor Attorney for: DefeA' J Philadelphia, Pennsylvania 19102 Carlisle Sports Empoi (215) 563-9811 ' PETER KEMERY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION—LAWS- 4.ra CARLISLE SPORTS EMPORIUM, INC. CASE NO.: 14-4581 —Civil Term:' _] PRAECIPE FOR RULE TO FILE COMPLAINT C7 77 TO THE PROTHONOTARY: _ Kindly enter a Rule upon Plaintiff, Peter Kemery, to file a Complaint in the above matter within twenty(20) days from the date hereof SWEENEX& EEHAN d By. Guy Mercogliano Attorney for Defendant, Carlisle Sports Emporium, Inc. RULE TO FILE COMPLAINT AND NOW, this 0,10 day of 6211.1 2014 , a Rule is hereby granted upon Plaintiff, Peter Kemery, to file a Complaint within twenty(20) days after service hereof, or suffer a judgment of non pros. PROTHONOTARY Guy H. Brooks I.D. No. 49672 James J. Franklin I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 FILED- OFFICE-. OF THE PRO -MONO TATO. 2131'1 SEP 16 Altill: CUP AND COUNTY PENNS YLV/-`,NIA Attorneys for Plaintiff PETER KEMERY, 111 North Old Stonehouse Rd., Carlisle, PA, 17015 Plaintiff v. CARLISLE SPORTS EMPORIUM, INC., 29 South Middlesex Road, Carlisle, PA 17015 Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CASE NO. 14-4581 Civil Term : CIVIL ACTION — LAW : JURY TRIAL DEMANDED 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 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 (717) 249-3166 (800) 990-9108 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 Ia notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por Ia 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 OFICNNA. 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 (717) 249-3166 (800) 990-9108 Date: September 15, 2014 McNEES WALLACE & NURICK LLC By Guy H. Brooks I.D. No. 49672 James J. Franklin I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street , P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiffs -2- Guy H. Brooks I.D. No. 49672 James J. Franklin I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff PETER KEMERY, 111 North Old Stonehouse Rd., Carlisle, PA, 17015 Plaintiff V. CARLISLE SPORTS EMPORIUM, INC., 29 South Middlesex Road, Carlisle, PA 17015 Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CASE NO. 14-4581 Civil Term : CIVIL ACTION LAW : JURY TRIAL DEMANDED COMPLAINT Plaintiff Peter Kemery, by and through his attorneys, McNees Wallace & Nurick LLC, makes the following Complaint against Defendant Carlisle Sports Emporium, Inc., and avers as follows: Parties 1. Plaintiff Peter Kemery ("Mr. Kemery") is an adult individual currently residing at 111 North Old Stonehouse Road, Carlisle, PA 17015. 2. Defendant Carlisle Sports Emporium, Inc. ("Defendant") is a Pennsylvania corporate entity with a registered business address of 29 South Middlesex Road, Carlisle, PA 17015. 3. Defendant is the corporate owner and operator, for profit, of Carlisle Sports Emporium ("Sports Emporium"), also located at 29 South Middlesex Road, Carlisle, PA 17015. 4. Defendant controls and is responsible for the premises located at 29 South Middlesex Road, Carlisle, PA 17015. 5. The Sports Emporium is a popular recreational entertainment center that markets and advertises itself to families and particularly children, Jurisdiction and Venue 6. The Court has jurisdiction over Defendant because it resides in Pennsylvania. 7. Venue in this Court is appropriate pursuant to Pennsylvania Rule of Civil Procedure 1006 because a transaction or occurrence out of which the cause of action arises took place in Carlisle, Cumberland County, Pennsylvania. Factual Background 8. The events which give rise to the allegations complained of in this Complaint occurred on April 17, 2009, in Carlisle, Cumberland County, Pennsylvania. 9. On that date, Mr. Kemery, then age 14, was a business invitee of Defendant, properly participating in the entertainment activities offered by Defendant to its business invitees. 10. On that same date, Mr. Kemery and a friend were waiting in the Sports Emporium's parking lot — part of Defendant's premises — for his mother to arrive. 2 11. Mr. Kemery and his friend were waiting at an eastern portion of the parking lot next to an abandoned entrance, again still part of Defendant's premises. 12. At this location was a heavy, yellow, tubular steel gate that was unsecured and no longer in use by Defendant. 13. Upon information and belief, at the time of Mr. Kemery's accident, the steel gate served no useful purpose or function and was allowed to be free swinging. 14. At the time of Mr. Kemery's accident, Defendant knew that families, and particularly children, frequented the premises' buildings and surrounding area, including the area around and including the location of the free -swinging steel gate. 15. While he was waiting for his mother, Mr. Kemery sat on the steel gate, when suddenly and unexpectedly, through no fault of his own, the unsecured steel gate began to move and swing out from underneath him. 16. The sudden and unexpected movement of the steel gate caused Mr. Kemery to fall backward from the steel gate to the ground. 17. As Mr. Kemery fell backwards and lay on the ground, the steel gate continued to swing forward. 18. The steel gate then, without any prior warning, suddenly rebounded back towards Mr. Kemery's position and violently struck Mr. Kemery squarely in the face and mouth. 19. The impact with the steel gate caused severe injuries to Mr. Kemery, as described below. 20. At all material times to this Complaint, Mr. Kemery was acting as Defendant's business invitee and was located in areas held open by Defendant to its business invitees. 21. Following the accident, Mr. Kemery required emergency dental treatment for his resulting injuries, followed by other necessary and painful dental, orthodontic, and surgical treatment of his injuries. 22. The injuries suffered by Mr. Kemery were caused solely and exclusively by the negligent acts and omissions of Defendant. 23. As a direct and proximate result of the negligence, carelessness, and recklessness of Defendant, Mr. Kemery suffered severe and permanent injuries resulting in serious impairment of bodily functions, as well as other personal injuries which are currently not apparent but which will arise in the future. 24. As a direct and proximate result of the negligence, carelessness, and recklessness of Defendant and the steel gate striking Mr. Kemery, Mr. Kemery has suffered severe and serious bodily and mental injuries and was forced to undergo painful medical procedures, including but not limited to: a. Multiple facial and dental injuries; b. Dislocated tooth; c. Fractured and sheered teeth; d. Endodontic therapy; e. Multiple root canals, requiring use of prefabricated posts and crowns; f. Radiologic and growth scans; 4 g. Chronic pain; and, h. Oral surgeries. 25. This accident on April 17, 2009 and Mr. Kemery's resulting medical treatments have left him with severe and permanent injuries, pain, and suffering. 26. As a direct and proximate result of the negligence, carelessness, and recklessness of Defendant, Mr. Kemery has incurred significant dental and medical expenses, and will continue to incur dental, medical, and other incidental expenses in the future. 27. As a direct and proximate result of the negligence, carelessness, and recklessness of Defendant, Mr. Kemery has suffered extreme emotional injuries, including but not limited to mental anguish, embarrassment, humiliation, anxiety, and diminished ability to enjoy the pleasures of life. 28. Solely and directly as a result of the negligence, carelessness, and recklessness of Defendant, Mr. Kemery expects to require future medical procedures and treatment and to incur future medical expenses in the treatment of his injuries. 29. Mr. Kemery's losses exceed the limit required for compulsory arbitration in Cumberland County, Pennsylvania. COUNT I Negligence 30. Paragraphs 1 through 29 are incorporated herein by reference and made a part of this Complaint as if fully set forth herein. 5 31. Defendant owned, controlled, operated, and/or was responsible for the Sports Emporium and the premises located at 29 South Middlesex Road, Carlisle, PA 17015 on April 17, 2009, where and when the injuries to Mr. Kemery occurred. 32. Mr. Kemery was Defendant's business invitee at all relevant times on April 17, 2009. 33. As the owner and/or operator of the premises, Defendant owed duties of care to its business invitees, here Mr. Kemery, which duties Defendant violated. 34. At all relevant times, the steel gate at Defendant's Sports Emporium was an artificial, non -obvious dangerous condition on its premises and was held open to business invitees. 35. Defendant owed a duty of care to Mr. Kemery to warn him of and make safe or remove the steel gate artificial condition present at the Sports Emporium because it created an unreasonable risk of injury to Mr. Kemery that was unlikely to be discovered by him. 36. Defendant owed a duty to Mr. Kemery to make reasonable inspections in and of the Sports Emporium premises in order to discover non -obvious dangerous conditions at the Sports Emporium such as the steel gate that struck Mr. Kemery in the face on April 17, 2009 as more fully described above, and to make the steel gate safe or to remove the steel gate. 37. Defendant breached it duties owed to Mr. Kemery by failing to warn him of and make safe or remove the steel gate artificial condition present at the Sports Emporium and by failing to make reasonable inspections in and of the Sports Emporium 6 and its premises in order to discover non -obvious dangerous conditions such as the steel gate so as to avoid injuring Mr. Kemery. 38. Defendant owed a duty to Mr. Kemery to maintain, oversee, and operate its premises, specifically including the steel gate, in a safe and competent manner so as to avoid injuring Mr. Kemery. 39. Defendant breached its duty owed to Mr. Kemery by failing to maintain, oversee, and/or operate its premises, specifically including the steel gate, in a safe and competent manner so as to avoid injuring Mr. Kemery. 40. Through its negligent, careless, and reckless actions and inaction, Defendant's breaches of its duties owed to Mr. Kemery so as to avoid injuring Mr. Kemery are the actual, direct, and proximate causes of Mr. Kemery's injuries and damages as aforesaid. 41. All of Mr. Kemery's aforesaid injuries and damages were reasonably foreseeable to Defendant. 7 WHEREFORE, Plaintiff Peter Kemery respectfully requests that this Honorable Court enter judgment in his favor and against Defendant Carlisle Sports Emporium, Inc. in a sum in excess of local arbitration limits, plus interest, costs of suit, and all other appropriate relief. McNEES WALLACE & NURICK LLC By Guy H. Brooks, I.D. No. 49672 James J. Franklin, I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: September 15, 2014 Attorneys for Plaintiff VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, I hereby certify that I am Peter Kemery, and am authorized to verify the foregoing document on its behalf. I further certify that I have read the foregoing document and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. Dated: CERTIFICATE OF SERVICE I certify that on this date, I am serving a true and correct copy of the foregoing document upon the following persons, by depositing the copy in the United States mail, first class postage prepaid, addressed as follows: Gaetano Mercogliano, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia, PA 19102 Dated: September 15, 2014 mes J. Franklin PETER KEMERY, 111 North Old Stonehouse Rd., Carlisle, PA, 17015 Plaintiff v. : CASE NO. 14-4581 Civil Term : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL CARLISLE SPORTS EMPORIUM, INC., : CIVIL ACTION — LAW 29 South Middlesex Road, Carlisle, PA 17015 : JURY TRIAL DEMANDED Defendant STIPULATION AND NOW, come the parties, by and through their attorneys, who state: 1. On or about September 15, 2014 Plaintiff, Peter Kemery ("Plaintiff'), filed a Complaint ("Complaint") alleging negligence by Carlisle Sports Emporium, Inc. ("Defendant") (Plaintiff and Defendant are collectively referred to herein as the "Parties"). 2. The Parties acknowledge that, at this time, the Complaint does not include a demand for punitive damages. 3. Plaintiff acknowledges that, under Pennsylvania law, there are no known facts existing as of the filing of the Complaint to warrant an award of punitive damages. 4. The Parties hereby acknowledge and agree that Plaintiff may amend his Complaint to assert a demand for punitive damages against Defendant should the Parties discover facts through the prosecution of this matter that would support such a claim for punitive damages. 5. Accordingly, with Defendant's consent, Plaintiff reserves the right to request an award of punitive damages against Defendant in the future should grounds for making such a request exist at a later time. 6. Subject to Paragraphs 4-5 of this Stipulation, the Parties hereby agree that nothing in Plaintiff's current Complaint, including any allegation of or reference to "recklessness" or "reckless" conduct, shall include or be interpreted to include a demand for punitive damages against Defendant in this matter. Respectfully submitted, SWEENY & 'SHEEN By G. = ano Mercogliano, I.D. No. 39766 John M. Corcoran 19th Floor, 1515 Market Street Philadelphia, PA 19102 (215) 563-9811 Attorneys for Defendant Date: October lJ , 2014 -2- McNEES WALLACE & NURICK LLC By uy H. Brooks, I.D. No. 49672 James J. Franklin, I.D. No. 306458 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Attorneys for Plaintiff SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No.: 39766 1515 Market Street — 19th Floor Philadelphia, Pennsylvania 19102 Phone: (215) 563-9811 Facsimile: (215- 557-0999 PETER KEMERY v. CARLISLE SPORTS EMPORIUM, INC. TO: PLAINTIFF YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Attorney for: Defendant, Carlisle Sports Emporium, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW JURY TRIAL DEMANDED CASE NO.: 14-4581 — Civil Term ANSWER OF DEFENDANT, CARLISLE SPORTS EMPORIUM, INC., TO PLAINTIFF'S COMPLAINT WITH NEW MATTER Answering Defendant, Carlisle Sports Emporium Inc., by and through their attorneys, Sweeney & Sheehan, hereby answers Plaintiff's Complaint as follows: The Parties 1. Answering Defendant is without sufficient knowledge to form a reasonable belief concerning the truth of this allegation and therefore neither admits nor denies the allegation contained in this paragraph but leaves the complaining parties to their proofs with respect to same. 2. Admitted. 3. Admitted. 4. Denied as stated. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil Procedure 5. Answering Defendant is without sufficient knowledge to form a reasonable belief concerning the truth of this allegation and therefore neither admit nor denies the allegation contained in this paragraph but leaves the complaining parties to their proofs with respect to same. Jurisdiction and Venue 6. The averments contained in this paragraph state conclusions of law to which no response is required, and Answering Defendant neither admits nor denies the allegation contained in this paragraph but leaves the complaining parties to their proofs with respect to same. 7. The averments contained in this paragraph state conclusions of law to which no response is required, and Answering Defendant neither admits nor denies the allegation contained in this paragraph but leaves the complaining parties to their proofs with respect to same. Factual Background 8. Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and are, therefore, denied. Strict proof thereof is demanded at trial. 9. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil. 10. Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and are, therefore, denied. Strict proof thereof is demanded at trial. 11. Denied. 12. Denied as stated. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendants are without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph, and therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 13. Denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and are, therefore, denied. Strict proof thereof is demanded at trial. 18. Denied. Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and are, therefore, denied. Strict proof thereof is demanded at trial 19. Denied. 20. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil Procedure. 21. Denied. Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and are, therefore, denied. Strict proof thereof is demanded at trial 22. Denied. 23. Denied. 24. Denied. 25. Denied. Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and are, therefore, denied. Strict proof thereof is demanded at trial. 26. Denied. 27. Denied. 28. Denied. 29. Denied. Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and are, therefore, denied. Strict proof thereof is demanded at trial. COUNT I, Negligence 30. Answering Defendant, Carlisle Sports Emporium Inc., incorporate by reference, the averments contained in paragraphs 1-29 of its Answer, above, as if the same were set forth more fully at length herein. 31. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil Procedure. 32. See answer to Paragraph 9. 33. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil Procedure. 34. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil Procedure. 35. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 36. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil Procedure. 37. Denied. 38. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil Procedure. 39. Denied. 40. Denied. • 41. Denied. The averments contained in this paragraph state conclusions of law to which no response is required. Should any of these allegations be deemed factual, however, they are denied, since after reasonable investigation, the Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or falsity of the averments contained in this paragraph and, therefore, denies same and demands strict proof thereof at trial. By way of further reply, to the extent a reply is required to this paragraph; and to the extent that it is directed at Answering Defendant, such averments contained in this paragraph are denied pursuant to Rule 1029 (e) of the Pennsylvania Rules of Civil Procedure. WHEREFORE, Answering Defendant demands judgment in its favor and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. NEW MATTER PURSUANT TO PA.R.C.P. 1031 Answering Defendant, Carlisle Sports Emporium Inc., incorporate by reference, the averments contained in paragraphs 1-41 of their Answer, above, as if the same were set forth more fully at length herein. 1. Plaintiff's injuries, if any, were caused by the negligence and/or liability producing acts or omissions of parties or other entities over whom Answering Defendant neither has control nor the ability to control. 2. Plaintiffs Complaint fails to state a cause of action upon which relief can be granted. 3. At the time of the alleged incident, Answering Defendant did not have actual or constructive knowledge of the existence of any dangerous condition at the premises discussed in the Complaint. 4. Any danger or hazard encountered by Plaintiff at the premises discussed in the Complaint at the time of the alleged incident was open and obvious. 5. No act and/or omission by Answering Defendant was the proximate cause of any injury or damages allegedly suffered by Plaintiffs. 6. Plaintiff's claims are barred, in whole or in part, because Plaintiff assumed the risk of injuries, damages, or losses which were allegedly sustained or may be sustained in the future as a result of the alleged injuries. The Complaint is, therefore, barred or otherwise limited by the doctrine of assumption of the risk. 7. Plaintiffs claims are barred, in whole or in part, because Plaintiff failed to mitigate the claimed damages. 8. Plaintiff's alleged injuries and damages were the result, in whole or in part, of pre- existing or subsequent medical, genetic, or environmental conditions or illnesses that are unrelated to the injuries alleged here. 9. If Plaintiff suffered any injury or damages, which is denied, the same were caused, in whole or in part, by Plaintiff's own negligence and fault and, therefore, Plaintiff's recovery, if any, should be diminished in proportion to any fault chargeable to Plaintiff under principals of comparative fault and contributory negligence. 10. To the extent Plaintiff has settled or will in the future settle with any person or entity with respect to the injuries asserted in the Complaint, Answering Defendant's liability, if any, should be reduced accordingly and/or Answering Defendant is entitled to contribution and/or indemnification from such other parties. 11. Answering Defendant is entitled to a set-off for the full amount of worker's compensation and/or disability benefits paid to Plaintiff or to be paid to Plaintiff in the future. WHEREFORE, foregoing considered, Answering Defendant, Carlisle Sports Emporium, Inc., demands judgment to be entered in their favor and against the Plaintiff, together with all reasonable interest, expense of counsel fees and costs. SWEENEY & SHEEHAN By: DATE: October 28, 2014 JMC Guy Mercogliano John Corcoran Attorneys for Defendant, Carlisle Sports Emporium, Inc. VERIFICATION GUY MERCOGLIANO verifies and says that he is an attorney-at-law in the offices of SWEENEY & SHEEHAN; that he is authorized to make this Verification; and, that the facts set forth in the foregoing ANSWER OF DEFENDANT, CARLISLE SPORTS EMPORIUM, INC., TO PLAINTIFF'S COMPLAINT WITH NEW MATTER are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 PA. C. S. Section 4904 relating to unsworn falsification to authorities. GUY MERCOGLIANO DATE: October 28, 2014 SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No.: 39766 1515 Market Street — 19th Floor Philadelphia, Pennsylvania 19102 Phone: (215) 563-9811 Facsimile: (215- 557-0999 Attorney for: Defendant, Carlisle Sports Emporium, Inc. PETER KEMERY v. CARLISLE SPORTS EMPORIUM, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW JURY TRIAL DEMANDED CASE NO.: 14-4581 — Civil Term CERTIFICATION OF SERVICE I hereby certify that I caused a true and correct copy of the ANSWER OF DEFENDANT, CARLISLE SPORTS EMPORIUM, INC., TO PLAINTIFF'S COMPLAINT TOGETHER WITH NEW MATTER was made upon the below listed counsel in the above matter by the United States First Class Mail on October 28, 2014. James J. Franklin, Esquire McNees, Wallace, and Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, Pennsylvania 17108-1166 SWEENEY & SHEEHAN By: Guy Mercogliano Attorney for Defendant, Carlisle Sports Emporium, Inc. Guy H. Brooks I.D. No. 49672 James J. Franklin I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 r• iLEu-0F r r•'^FICE CF THE PROTHONOTARI 2014 NOV-5 PM 12: 23 GU PENN YLVIAN COUNTY TY Attorneys for Plaintiff PETER KEMERY, 111 North Old Stonehouse Rd., Carlisle, PA, 17015 Plaintiff v. CARLISLE SPORTS EMPORIUM, INC., 29 South Middlesex Road, Carlisle, PA 17015 Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CASE NO. 14-4581 Civil Term : CIVIL ACTION — LAW : JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER Plaintiff Peter Kemery ("Plaintiff'), by and through his attorneys, McNees Wallace & Nurick LLC, files this Reply to Defendant Carlisle Sports Emporium, Inc.'s ("Defendant") New Matter.1 In support thereof, Plaintiff avers as follows: 1-11. Denied. Plaintiff incorporates by reference the averments of his Complaint as if set forth in full herein, specifically including but not limited to his averments as to Defendant's possession, ownership, and/or control over the subject premises and 1 Defendant entitled its responsive pleading as "New Matter Pursuant to PA.R.C.P. 1031." Defendant's counsel subsequently confirmed that this title was in error, and instead refers to PA.R.C.P. 1030, the Pennsylvania Rule of Civil Procedure governing New Matter. Plaintiff replies to Defendant's New Matter based upon Defendant's clarification. Defendant's liability for the accident that occurred on its premises. Further responding, these paragraphs contain conclusions of law to which no response is required. To the extent that a response is required, Plaintiff specifically denies each averment, and strict proof thereof is demanded. WHEREFORE, Plaintiff Peter Kemery respectfully requests that this Honorable Court enter judgment in his favor and against Defendant Carlisle Sports Emporium, Inc. in a sum in excess of local arbitration limits, plus interest, costs of suit, and all other appropriate relief. McNEES WALLACE & NURICK LLC By Guy H. Brooks, I.D. No. 49672 James J. Franklin, I.D. No. 306458 McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: November 4, 2014 Attorneys for Plaintiff 2 CERTIFICATE OF SERVICE I certify that on this date, I am serving a true and correct copy of the foregoing document upon the following persons, by depositing the copy in the United States mail, first class postage prepaid, addressed as follows: Gaetano Mercogliano, Esquire Sweeney & Sheehan 19th Floor 1515 Market Street Philadelphia, PA 19102 1 1;:mes J. Franklin Dated: November 4, 2014 SWEENEY & SHEEHAN, P.C. 0; - By: -By: Guy Mercogliano, Esquire Identification No.: 39766 1515 Market Street —19th Floor Philadelphia, Pennsylvania 19102 (215) 563-9811 li I. 4 g P. 2 PM 2: 32 E , Attorney for: PE SYLVAN!A Defendant, Carlisle Sports Emporium, Inc. PETER KEMERY v. CARLISLE SPORTS EMPORIUM, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW CASE NO.: 14-4581 — Civil Term PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification for the Verification originally submitted with the following pleading: Defendant, Carlisle Sports Emporium, Inc.'s Answer to Plaintiff's Complaint With New Matter DATE: November 21, 2014 SWEENEY & SHEEHAN By: Guy ogliano John Corcoran Attorneys for Defendant, Carlisle Sports Emporium, Inc. VERIFICATION Jamie Plasterer, deposes and says that she is of Defendant, Carlisle Sports Emporium, Inc., that she is authorized to make this Verification on its behalf; and, that the facts set forth in the foregoing Defendant, Carlisle Sports Emporium, Inc.'s Answer to Plaintiff's Complaint are true and correct to the best of her knowledge, information and belief. This statement is made subject to the penalties of 18 PA. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: ti s -Ad .444'4-"2" IE PLASTERER (GA -1231) SWEENEY & SHEEHAN, P.C. By: Guy Mercogliano, Esquire Identification No.: 39766 1515 Market Street — 19th Floor Philadelphia, Pennsylvania 19102 (215) 563-9811 Attorney for: Defendant, Carlisle Sports Emporium, Inc. PETER KEMERY V. CARLISLE SPORTS EMPORIUM, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW CASE NO.: 14-4581 — Civil Term CERTIFICATION OF SERVICE I hereby certify that I caused a true and correct copy of the PRAECIPE TO SUBSTITUTE VERIFICATION FOR THE VERIFICATION FILED WITH THE ANSWER OF DEFENDANT, CARLISLE SPORTS EMPORIUM, INC., TO PLAINTIFF'S COMPLAINT TOGETHER WITH NEW MATTER was made upon the below listed counsel in the above matter by the United States First Class Mail on November 21, 2014. James J. Franklin, Esquire McNees, Wallace, and Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, Pennsylvania 17108-1166 SWEENEY & SHEEHAN By: / Guy Mercogliano