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Home My WebLink About05-3730F:\FILES0ATAFILE\Generel\Current\113062 comI Created: 2/2/05 8:05AM Revised: 7/12/05 221PM George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, IN THE COURT OF COMMON PLEAS OF SHARON BURKE, h/w CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 0,!r- 3730 ANTHONY E. SMITH, CIVIL ACTION CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants JURY TRIAL OF TWELVE DEMANDED 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 Plaintiffs. 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 REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 U'. JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0S- 3736 Cci TeA- CIVIL ACTION JURY TRIAL OF TWELVE DEMANDED COMPLAINT AND NOW, Plaintiffs John F. Burke and Sharon Burke, by and through their attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, file this complaint and aver as follows: Plaintiffs, John F. Burke and Sharon Burke, are adult individuals residing at 311 Manchester Road, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant Anthony E. Smith is an adult individual residing at 529 Shakespeare Drive, Virginia Beach, Virginia (herein, "Defendant Smith"). 3. Defendant Cedar Cliff Inn, Inc., d/b/a Gullifty's, is a Pennsylvania Business Corporation with a registered address at 157 Paxton Street, Harrisburg, Dauphin County, Pennsylvania (herein, "Defendant Cedar Cliff Inn") 4. Defendant Cedar Cliff Inn is in the restaurant business and maintains a restaurant called Gullifty's located at 1101 Carlisle Road, Camp Hill, Cumberland County, Pennsylvania (herein, "Gullifty's"). 5. Defendant Cedar Cliff Inn serves alcohol at Gullifty's and it is believed, and therefore averred, that Defendant Cedar Cliff Inn is licensed by the state of Pennsylvania to serve alcohol at Gullifty's. 6. Defendant John G. Williams is an adult individual with a place of business at the Cedar Cliff Mall, located at 1104 Carlisle Road, Camp Hill, Cumberland County, Pennsylvania (herein, "Defendant Williams"). 7. Defendant Williams is the owner of Cedar Cliff Mall. Gullifty's is located on, about, or at the Cedar Cliff Mall. 8. Defendant Cedar Cliff, L.P., is a Pennsylvania Limited Partnership with a registered address at 2555 Kingston Road, Suite 180, York, York County, Pennsylvania (herein, "Defendant Cedar Cliff") 9. Defendant Cedar Cliff is the owner of the premises at 1104 and 1108 Carlisle Road, Camp Hill, Cumberland County, Pennsylvania. 10. Defendant Cloister Shopping, Inc., a general partner to Cedar Cliff, L.P., is a Pennsylvania business corporation with an address at 2555 Kingston Road, York, York County, Pennsylvania (herein, "Cloister"). 11. On or about January 17, 2004, and at all relevant times thereto, Plaintiffs were lawful business invitees in Gullifty's restaurant. 12, The Defendants are joint tort-feasors and are jointly and severally liable to the Plaintiffs. 13. New legislation under 42 Pa.C.S.A. § 7102 was enacted in an improper and unconstitutional fashion and should beset aside. The Pennsylvania Attorney General will be notified of this proceeding in accordance with Pa.R.C.P. Rule 235 and Plaintiffs' objection to the constitutionality of 42 Pa.C.S.A. § 7102 14. In the alternative, Defendant Smith and Defendant Cedar Cliff Inn are jointly and severally liable to Plaintiffs under 42 Pa.C.S.A. § 7102(b. 1)(3)(v). COUNT I - Assault Plaintiffs v. Defendant Smith 15. The averments of paragraphs 1 through 14 are incorporated herein by reference. 16. On or about January 17, 2004, Plaintiffs were in Gullifty's and accompanied by three female friends. 17. While in Gullifty's, Plaintiffs were confronted by three men, one being Defendant Smith, who were sitting at the bar section of Gullifty's and making verbal comments to and about Plaintiffs and their three female friends. 18. The three men, including Defendant Smith, were being served alcohol by Gullifty's employees or agents. 19. The three men, including Defendant Smith, were visibly intoxicated at Gullifty's. 20. Gullifty's employee or agent continued to serve Defendant Smith alcohol even though he was visibly intoxicated. 21. Sometime thereafter, on or about January 18, 2004, the three men left Gullifty's. 22. Plaintiffs left Gullifty's approximately 10-20 minutes after the three men had exited the restaurant. 23. Plaintiffs exited Gullifty's and began walking to their vehicle, which was located in the parking lot outside of Gullifty's main entrance. 24. While in the process of walking to their vehicle through the parking lot, Plaintiffs were approached by the three men. 25. The three men, mainly Defendant Smith, attacked and assaulted Plaintiff John, slamming him into a parked car, forcing him to the ground, and repeatedly kicking and punching him while Plaintiff John lay on the ground. 26. Plaintiff John did not provoke or instigate the attackers in the parking lot. 27. Unable to provide aid to Plaintiff John, Plaintiff Sharon was forced to watch her husband be attacked in the parking lot. 28. As a direct and proximate result of Defendant Smith's assault and the remaining Defendants' negligence, Plaintiff John suffered severe physical injuries, including, but not limited to, fractured ribs, amnesia, lung contusions, chest pain, respiratory failure, and collapsed lung, and continues to suffer physical, emotional, and economic injuries, such as discomfort, pain and suffering, loss of life's pleasures, emotional trauma, medical and other expenses, loss of work, all to his detriment and loss, which are claimed herein, as well as other damages allowed by law. 29. As a direct and proximate result of Defendant Smith's assault of Plaintiff John and the remaining Defendants' negligence, Plaintiff Sharon suffered among other things, emotional trauma and loss of consortium, which is claimed as damages herein, as well as other damages allowed by law. 30. Plaintiffs have incurred medical expenses in excess of $100,000.00 and lost wages. WHEREFORE, Plaintiffs demand judgment against Defendant Smith in excess of $35,000, including costs of suit, and any other relief this court deems appropriate. COUNT II - Negligence Plaintiffs v. Defendant Cedar Cliff Inn 31. The averments of paragraphs 1 through 30 are incorporated herein by reference. 32. Defendant Cedar Cliff Inn owed a duty to all restaurant lessees, business invitees, and Plaintiffs. 33. Defendant Cedar Cliff Inn knew or should have known that there had been reports of violent crimes and general criminal activity, including, but not limited to, assault, simple assault, criminal mischief, robbery, theft, harassment, terroristic threats, and public drunkenness, occurring in the general vicinity of Gullifty's, including, but not limited to, the parking area located adjacent to or apart of Gullifty's and at the Cedar Cliff Mall (herein, the "parking area"). 34. Defendant Cedar Cliff Inn had actual or constructive notice of prior acts of crime committed on its premises and/or in the area surrounding its premises, including the parking area. 35. Defendant Cedar Cliff Inn knew or should have known that security measures had been in place prior to January 17, 2004, but were removed before the date of the assault. 36. Defendant Cedar Cliff Inn's negligence consists of, among others, the following acts and/or omissions, which substantially contributed to and were the proximate cause of the assault on Plaintiff John and the injuries suffered by Plaintiffs: a. Failing to warn all lessees, business invitees, and Plaintiffs that crimes of violence had occurred in the general vicinity of Gullifty's; b. Failing to provide adequate security on the Premises and surrounding areas; C. Failing to monitor or patrol the parking area; d. Failing to install security cameras and adequate lighting; e. Failing to warn all patrons and Plaintiffs that the parking area was not monitored or patrolled and/or that security was provided; Failing to protect all persons, including Plaintiffs, from assaults by business invitees who had used Gullifty's; g. Failing to monitor the alcohol consumption of the business invitees within Gullifty's; h. Continuing to serve alcohol to, among others, Defendant Smith, while he was visibly intoxicated at Gullifty's. Failing to designate security personnel; Failing to provide an escort plan for people leaving Gullifty's or the Cedar Cliff Mall during hours of darkness; k. Removing security or a monitor system or patrols from the parking area prior to the assault; Failing to provide robbery and assault avoidance materials to patrons of Gullifty's; and M. Failing to provide the same or similar security outside of Gullifty's that is provided inside of Gullifty's. 37. Defendant Cedar Cliff Inn violated 47 P.S. § 4-497, Liability of licensees, because its employee or agent served alcohol to Defendant Smith, who was visibly intoxicated while he was at Gullifty's. 38. As a direct and proximate result of the negligence of Defendant Cedar Cliff Inn as stated above and its violation of 47 P.S. § 4-497, Plaintiff John was brutally assaulted in the parking lot and Plaintiff Sharon had to helplessly watch her husband be attacked. 39. As a direct and proximate result of Plaintiff John's injuries, including physical and emotional injuries as stated above, he suffers and continues to suffer discomfort, pain and suffering, loss of life's pleasures, emotional trauma, all to their detriment and loss, which are claimed herein, as well as other damages allowed by law. 40. As a direct and proximate result of the assault on Plaintiff John, Plaintiff Sharon suffered among other things, emotional trauma and loss of consortium, which is claimed as damages herein, as well as other damages allowed by law. 41. Plaintiffs have incurred medical expenses in excess of $100,000.00 and lost wages. WHEREFORE, Plaintiffs demand judgment against Cedar Cliff Inn in excess of $35,000, including costs of suit, and any other relief this court deems appropriate. COUNT III - Negligence Plaintiffs v. Defendant Williams 42. The averments of paragraphs 1 through 41 are incorporated herein by reference. 43. Defendant Williams owed a duty to all restaurant lessees, business invitees, and Plaintiffs. 44. Defendant Williams knew or should have known that there had been reports of violent crimes and general criminal activity, including, but not limited to, assault, simple assault, criminal mischief, robbery, theft, harassment, terroristic threats, and public drunkenness, occurring in the general vicinity of Gullifty's, including, but not limited to, the parking area. 45. Defendant Williams had actual or constructive notice ofprior acts of crime committed on its premises and/or in the area surrounding its premises, including the parking area. 46. Defendant Williams knew or should have known that security measures had been in place prior to January 17, 2004, but were removed before the date of the assault. 47. Defendant Williams' negligence consists of, among others, the following acts and/or omissions, which substantially contributed to and were the proximate cause of the assault on Plaintiff John and the injuries suffered by Plaintiffs: a. Failing to warn all lessees, business invitees, and Plaintiffs that crimes of violence had occurred in the general vicinity of Cedar Cliff Mall; b. Failing to provide adequate security on the Premises and surrounding areas; C. Failing to monitor or patrol the parking area; d. Failing to install security cameras and adequate lighting; e. Failing to warn all patrons and Plaintiffs that the parking area was not monitored or patrolled and/or that security was provided; f. Failing to protect all persons, including Plaintiffs, from assaults by business invitees who had used Gullifty's or the Cedar Cliff Mall; g. Failing to designate security personnel; h. Failing to provide an escort plan for people leaving Gullifty's or the Cedar Cliff Mall during hours of darkness; i. Removing security or a monitor system or patrols from the parking area of Cedar Cliff Mall and/or Gullifty's prior to the assault; and j. Failing to provide robbery and assault avoidance materials to patrons of Gullifty's and/or Cedar Cliff Mall. 48. As a direct and proximate result of the negligence of Defendant Williams, Plaintiff John was brutally assaulted in the parking lot and Plaintiff Sharon had to helplessly watch her husband be attacked. 49. As a direct and proximate result of Plaintiff John's injuries, including physical and emotional injuries as stated above, he suffers and continues to suffer discomfort, pain and suffering, loss of life's pleasures, emotional trauma, medical and other expenses in excess of $100,000.00, loss of work, all to their detriment and loss, which are claimed herein, as well as other damages allowed by law. 50. As a direct and proximate result of the assault on Plaintiff John, Plaintiff Sharon suffered among other things, emotional trauma and loss of consortium, which is claimed as damages herein, as well as other damages allowed by law. 51. Plaintiffs have incurred medical expenses in excess of $100,000.00 and lost wages. WHEREFORE, Plaintiffs demand judgment against Defendant Williams in excess of $35,000, including costs of suit, and any other relief this court deems appropriate. COUNT IV - Negligence Plaintiffs v. Defendant Cedar Cliff and Defendant Cloister 52. The averments of paragraphs 1 through 51 are incorporated herein by reference. 53. Defendants Cedar Cliff and Cloister owed a duty to all restaurant lessees, business invitees, and Plaintiffs. 54. Defendants Cedar Cliff and Cloister knew or should have known that there had been reports of violent crimes and general criminal activity, including, but not limited to, assault, simple assault, criminal mischief, robbery, theft, harassment, terroristic threats, and public drunkenness, occurring in the general vicinity of Gullifty's, including, but not limited to, the parking area. 55. Defendants Cedar Cliff and Cloister had actual or constructive notice of prior acts of crime committed on its premises and/or in the area surrounding its premises, including the parking area. 56. Defendants Cedar Cliff and Cloister knew or should have known that security measures had been in place prior to January 17, 2004, but were removed before the date of the assault. 57. Defendants Cedar Cliff `s and Cloister 's negligence consists of, among others, the following acts and/or omissions, which substantially contributed to and were the proximate cause of the assault on Plaintiff John and the injuries suffered by Plaintiffs: a. Failing to warn all lessees, business invitees, and Plaintiffs that crimes of violence had occurred in the general vicinity of Cedar Cliff Mall; b. Failing to provide adequate security on the Premises and surrounding areas; C. Failing to monitor or patrol the parking area; d. Failing to install security cameras and adequate lighting; e. Failing to warn all patrons and Plaintiffs that the parking area was not monitored or patrolled and/or that security was provided; f. Failing to protect all persons, including Plaintiffs, from assaults by business invitees who had used Gullifty's or the Cedar Cliff Mall; g. Failing to designate security personnel; h. Failing to provide an escort plan for people leaving Gullifty's or the Cedar Cliff Mall during hours of darkness; i. Removing security or a monitor system or patrols from the parking area of Cedar Cliff Mall and/or Gullifty's prior to the assault; and j. Failing to provide robbery and assault avoidance materials to patrons of Gullifty's and/or Cedar Cliff Mall. 58. As a direct and proximate result of the negligence of Defendants Cedar Cliff and Cloister, Plaintiff John was brutally assaulted in the parking lot and Plaintiff Sharon had to helplessly watch her husband be attacked. 59. As a direct and proximate result of Plaintiff John's injuries, including physical and emotional injuries as stated above, he suffers and continues to suffer discomfort, pain and suffering, loss of life's pleasures, emotional trauma, medical and other expenses in excess of $100,000.00, loss of work, all to their detriment and loss, which are claimed herein, as well as other damages allowed by law. 60. As a direct and proximate result of the assault on Plaintiff John, Plaintiff Sharon suffered among other things, emotional trauma and loss of consortium, which is claimed as damages herein, as well as other damages allowed by law. 61. Plaintiffs have incurred medical expenses in excess of $100,000.00 and lost wages. WHEREFORE, Plaintiffs demand judgment against Defendants Cedar Cliff and Cloister in excess of $35,000, including costs of suit, and any other relief this court deems appropriate. MARTSON DEARDORFF WILLIAMS & OTTO Y George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: -7 - 7 2 c) 5-- A for Plaintiffs VERIFICATION The foregoing Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not our own. We have read the document and to the extent that it is based upon information which we have given to counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal Burke Y Sharon Burke O 1A a i a F'.\FILES\DATAFI LE\General\Current\ 11306 2 . pracipe C,e d 22/05 805AM Revised. 1M/05 9:40AM George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3730 CIVIL TERM ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants To the Prothonotary: CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE Please reinstate the Complaint in the above captioned action and forward a copy with attached letter to the Sheriff for Service upon Defendant Cedar Cliff Inn, Inc., d/b/a Gullifty's. MARTSON DEARDORFF WILLIAMS & OTTO By S ??-?- George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: October 3, 2005 Attorneys for Plaintiffs c> c_ W C) -?E 'C. -t SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03730 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURKE JOHN F ET AL VS SMITH ANTHONY E R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: CEDAR CLIFF INN INC D/B/A GULLIFTYS but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE County, Pennsylvania, to On August 31st , 2005 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 26.25 .00 63.25 08/31/2005 MDW&O So answers R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this day of Q41(,Wher G0? A.D. P, ono ry SHERIFF'S RETURN - NOT FOUND CASE NO: 2005-03730 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BURKE JOHN F ET AL VS SMITH ANTHONY E ET AL R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT WILLIAMS JOHN G but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT & NOTICE , the within named DEFENDANT WILLIAMS JOHN 1104 CARLISLE ROAD , NOT FOUND , as to CAMP HILL, PA 17011 DEFENDANT OWNED THE MALL ABOUT 15 YEARS AGO. CURRENT LOCATION IS UNKNOWN. Sheriff's Costs: Docketing 6.00 Service 12.00 Not Found 5.00 Surcharge 10.00 Postage 1.85 34.85 So answ_e?: > R. Thomas Kline Sheriff of Cumberland County MDW&O 08/31/2005 Sworn and subscribed to before me this day of L ff-c]?L? Protr on SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03730 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURKE JOHN F ET AL VS SMITH ANTHONY E ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: CEDAR CLIFF L P but was unable to locate Them deputized the sheriff of YORK serve the within COMPLAINT & NOTICE in his bailiwick He therefore County, Pennsylvania, to On August 31st , 2005 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep York County 32.86 .00 57.86 08/31/2005 MDW&O So answers: R .'Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this A0 day of _5ly]hL? A.D. Pro of y SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03730 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURKE JOHN F ET AL VS SMITH ANTHONY E ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT CLOISTER SHOPPING INC but was unable to locate Them deputized the sheriff of YORK serve the within COMPLAINT & NOTICE On August 31st , 2005 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 nn 08/31/2005 MDW&O Sworn and subscribed to before me in his bailiwick to wit: He therefore County, Pennsylvania, to So answers; R. Thomas Kline /: Sheriff of Cumberland County this day of "1 he"r A.D. othon-\ ary? 1?oiV-;) In , ?1 Co U v) f f& n (01tre Of r ' 2?4eriff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fm: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania BURKE JOHN F AND SHARON vs County of Dauphin CEDAR CLIFF INN INC D/B/A GULLIFTY'S Sheriff's Return No. 1340-T - - -2005 OTHER COUNTY NO. 05-3730 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for CEDAR CLIFF INN INC D/B/A GULLIFTY'S. the DEFENDANT named in the within COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, July 29, 2005 ADDRESS: 157 PAXTON ST, HBG, PA. 17104 IS A DAY CARE CENTER. DEF, CEDAR CLIFF INN INC, D/B/A GULLIFTY'S IS NO LONGER THERE. Sworn and subscribed to before me this 29TH day of JULY, 2005 NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept 1, 2006 So Answers, e;?*I? Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs:$26.25 PD 07/27/2005 RCPT NO 209085 COUNTY OF YORK 1 OF 2 OFFICE OF THE SHERIFF SERI 7196 1 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE VOTRMTMM PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASEVYIllik OIW-Y LME 1 TWU 12 DO N" MUCH ANY COPES 1 PLAINTIFF/S/ 2 COURT NUMBER John F. Burke and Sharon Burke 05- 3730 k-C1V1" d1bla 4. TYPE OF WRIT OR COMPLAINT C I CA 3 DEFENDANTIS/ n , Cedar Cliff , Inc., Gulliftys; John G. Williams, Cedar Cliff, LP, and Cloister Shy: g Civil Complaint SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Cedar Cliff, L.P. jj? 6. ADDj2E$$.(SIRETgSRtR?F,LO wITH BO%Ee A1 PI.NO ,fJOrkORO]WP, STATE AND ZIP CODE) AT LL 77?5SS 11CC 1<OaCl t 25V Y 1A 7. INDICATE SERVICE- O PERSONAL U PERSON IN CHARGE DEPUTIZE - J CEatma U 1ST CLASS MAIL U POSTED U OTHER NOW Jul 25 20 05 I, SHERIFF OF I?R COUNTY, PA, do hereby deputize the sheriff of yor COUNTY to execute thii a return ther cording to law. This deputization being made at the request and risk of the plaintiff., SHERIFF OF OUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE Please mail return of service to Cumberland County Sheriff. Thank you. ADVANCE FEE PAID BY MDW&O NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment. without liability on the part of such deputy or the sheriff to any plaintiff herein for any bas. destruction. or removal of any property before sheriffs sale thereof. Christoppier E. ce, ?cscrr. n uinnivn arm taw wyva c / 10. IELEPHUNE NUMBER 11 DATE FILED 10 East High Street, CarIisle, PA 170IS- Rp--/y !f^ 0e.- 717-243-3341 7 ?a-Q J 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW. (This area must be completed if notice rs to be maaedl /1 n brArx IMLV W PUK IU1t OF tM 5M FF - DO NOT VYRITE ElIELOW THIS LW 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15 Expiration/Hearing Date or complaint as rrmdiated above. R AHRENS 7/27/05 8/2$/05 16. HOW SERVED. PERSONAL( ) RESIDENCE ( ) POSTED( - ) POE SHERIFF'S OFFICE ( ) OTHER SEE REMARKS BELOW 17. 1 hereby cagy and return T FOUND because I am unable to locale the individual, company, etc. named above. (See remarks below.) 18. )MAE AND 7171E OF IND SERV / LIST ADDRESS E NOT SHROVE (Ijtelabonstup to Defendant) 19 Date of Service 120 Tim of Service Pot 21. ATTEMPTS] Date I yAe I Mies I Int. I Date /Time I Miles I Int I Date I Time I Miles I Inl ?Da Time I'llibles Int Date Time Miles Int Date Time Miles Inl 22 23. Advance Costs 24 Service Costs 25 N/F 26 Mileage 27. Postage 28. Sub Total 29. Pound 30 Notary 31. Surchg. 32. Td. Coals 33 Costs ear Re d eck No 200.00 ,?y_(1U LJ !?(o ?srd K) ?? rr_ 11 10,11 35. Advance Costs 1 36 41. AFFIRMED and subacnbed to before me 42. d"-&-72!S, U ST20 -053 _-, Notarial Seal ^ebecca & Mease, Notary Public Costs 37. Notary Cen 136. Maeage/Poeage/Not Found 139 50 ANSWERS W. Dep Sgnalureof SneriR 46. Signature of York a County Sheriff GIILLIAM M HOSE, SH RIFF 48. Signature of Foreign County henR or Refund ,63 45JTE 12 Cy 47 DATE /24/05 COUNTY OF YORK ON 2 r OFFICE OF THE SHERIFF SERI 7196 11. 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY UFIE 1 THRU 12 DO NOT DF-TACH.ANY COPIES I PLAINTIFF/S/ E John F. Burke and Sharon Burke 2 COU05RT - 37NUMB30R t CIWI L 3. DEFENDANTISr e. I Trt,yr yvH1I un UUMl` AlN i Anthony E. 9nith Cedar Cliff Inn Inc. dba G i ty , John G. Williams, Cedar Cliff, L.P., and Cloister Shopping, Inc. Civil Complaint SERVE 5 NAME OF INDIVIDUAL. COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Cloister Shopping, Inc. 6 ADDRESS (STREET OR RFD WITH BOX NUMBER, APT NO, CITY, BORO. TWP. STATE AND ZIP CODE) AT 2555 Kingston Road, York, PA 7. INDICATE SERVICE' Cl PERSONAL U PERSON IN CHARGE XXDEPUTIZE 'U CERT MAIL U 1ST CLASS MAIL U POSTED U OTHER NOW July 25 20_05 I, SHERIFF NTY, PA, do hereby deputize the sheriff of York COUNTY to execute ake return according to law. This deputization being made at the request and risk of the plaintiff SHERIFF OF B. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WALL ASSIST IN EXPEDITING SERVICE Cunberland Please mail return of service to Cumberland County Sheriff. Thank you. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, alter notifying person of levy or attachment. without liability on the part of such deputy or the sheriff to any plaintiff herein forNaAnyMloss. destruction, or removal of any property before sheriffs safe thereof f1Y1 SNAPE aATfEjjjMTT N€Y / OR and $LC,NATU?IE n 10. TELEPHONE NUMBER 11 DATE FILED C 10 EassOt 1H7igh! Sttt.,, Carlisle, A 17013 j 717-243-3341 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW. This area must be completed d notice is to be mailed) Ell; :it Hig ee carilsle, PA 17U13 SPACE MOW FOR USE OF THE SHEWF - DO NOT VdWE MOW Ti#S LNE 13. 1 acknovAedge receipt of the writ 14. DATE RECEIVED 15 Espuation/Hearing Date or complaint as indicated above: 7/27/05 8/ 2$/ 0 5 16. HOW SERVED: PERSONAL( ) RESIDENCE( ) POSTED( ) POE>< SHERIFF'S OFFICE ( ) OTHER SEE REMARKS BELOW 17. O I hereby certify and return a INO"V FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 16 AND TITLE OF INOIVI A D LIST ADDRESSG RE IF.NOO fiOVE (R Doff p to ant) 1,9, Dale of Service 20 Time of SemM ATTEMPTS D816 T e Mlles Int. Date f4fne Miles Int Date Time Mlles Int D *Y Time Miles Int. Time Mlles Int Dale Time Miles Int. Cly 22. REMARKS. 23. Advance Costs 24 Service Costs 25 N/F 26 Mileage 27 Postage 2e. Sub Total 29. Pound 30 Notary 31. Surchg. 32 Tot Costs 33 Costs Due w Refund Check No x. rorergn uounty costs 35. Advance Costs 36 Service Costs 37 Notary Can 36 MileagUPoslageMot Foi s 41. AFFIRMED and subscribed to before me this 24TH / u. Signature of 4.d orAUGUST20 0$3 Depsoerin ROTHY r NOTARY 46 . Signature of York County ty Sh Shenn Notarial Seal ILLIAM M HOSE, SHER Fr Rebecca E, Mease, Notary Public 46. Signature of Foreign ..___.__.- I.- v tr r'mmty County Sheriff 39 Total Costs 1 40 Casts Due or 6.5 417112- ,.r 47 DATE S 8/24/05 49 DATE SHERIFF'S RETURN - REGULAR CASE NO: 2005-03730 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURKE JOHN F ET AL VS SMITH ANTHONY E ET AL CPL TREVOR KENT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CEDAR CLIFF INN INC D/B/A GULLIFTYS the DEFENDANT at 2050:00 HOURS, on the 4th day of October , 2005 at 1101 CARLISLE ROAD CAMP HILL, PA 17011 by handing to EISENHOWER. OWNER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 15.36 Postage .37 Surcharge 10.00 .00 43.73 Sworn and Subscribed to before me this do' day of ?CY °ZA.D. Protho ar So Answers: R. Thomas Kline 10/05/2005 MDW&O By Z? o re ? Depu y Sheriff F T1LES\ ATAFILE,General\CVrrent" 13062. praerpe Created: 2/2105 8:05AM Redud'. 1025/05 959W George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, IN THE COURT OF COMMON PLEAS OF SHARON BURKE, h/w CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 05-3730 CIVIL TERM ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a : CIVIL ACTION - LAW GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants JURY TRIAL OF TWELVE DEMANDED PRAECIPE To the Prothonotary: Please reinstate the Complaint in the above captioned action. MARTSON DEARDORFF WILLIAMS & OTTO George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: October 26, 2005 Attorneys for Plaintiffs yL ? ,dl ?.. W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's in the above-referenced action. ?as? Tk? as & Hafer, LLP Date: 1(46 W. a I.D. No. 68953 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 :3891100 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's CERTIFICATE OF SERVICE I, Susan K. Rosario, an employee of Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Cedar Cliff, L.P. 2555 Kingston Road, Suite 180 York, PA 17402 Cloister Shopping, Inc. 2555 Kingston Road York, PA 17402 THOMAS, THOMAS & HAFER, LLP i ? ?Aw l !A'i a44 Susan K. Rosario Dated: I ( DS :38900930 C7 ? ?n (.?.. c,n _ y? c ?{ _L'? ? n r?i ?-- .?'? ? "O?r ?_,?'1J W =? <' - -n '„ Z7 _,• .: _. ??.._ C.? 3' 4 .. ;n '.: Q _: .;;` ? -G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, CASE NUMBER: 05-3730 h/w, Plaintiffs ISSUE NUMBER: V. PLEADING: ANTHONY E. SMITH, CEDAR CLIFF PRAECIPE FOR APPEARANCE INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., CODE AND CLASSIFICATION: Defendants FILED ON BEHALF OF: CEDAR CLIFF, L.P., Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa.ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, h/w, CASE NO: 05-3730 Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., Defendants PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter my appearance on behalf of the Defendant, CEDAR CLIFF, L.P., in the above-captioned matter. Respectfully submitted, CI N WERNER, P.C. BY: D IS J. BONETTI, ESQUIRE Attorney for the Defendant A JURY TRIAL IS DEMANDED CEDAR CLIFF, L.P. CERTIFICATE OF SERVICE That counsel for the Defendant, CEDAR CLIFF, L.P., hereby certifies that a true and correct copy of its PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the _) day of et_ 2005. George Faller Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Cedar Cliff Inn d/b/a Gullifty's 1101 Carlisle Road Camp Hill, PA 17011 Cloister Shopping, Inc. 2555 Kingston Road York, PA 17402 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Respectfully submitted, C I WERNER, P.C BY: D IS J. BONETTI, ESQUIRE Attorney for the Defendant CEDAR CLIFF, L.P. C"3 r-? °=? v h1 ?'- ?. ?,? m ? ? _? a +' ? c.a ` ' -?C -, SL - ? ci (?) ? - ' =k ' G.1 G A :? W W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 JOHN F. BURKE and SHARON BURKE, h/w, Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, V. CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. NOTICE TO PLEAD To: Plaintiffs You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. & Kafer, LLP Date: \ \ W. aen-PewefF--? I.D. No. 68953 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's JOHN F. BURKE and SHARON BURKE, h/w, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, V. CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. NOTICE TO PLEAD To: Defendants Anthony E. Smith, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. You are hereby notified to plead to the enclosed New Matter/Crossclaim within twenty (20) days from service hereof or a default judgment may be entered against you. Date: 1 \ /vglo S Thomas , as Hafer, LLP I.D. No. 68953 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn„ Inc. d/b/a Gullifty's JOHN F. BURKE and SHARON BURKE, h/w, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. CIVIL ACTION NO. 2005-3730 Civil Term AND NOW comes Defendant Cedar Cliff Inn, Inc, d/b/a Gullifty's, by and through its counsel, W. Darren Powell and Thomas, Thomas & Hafer, LLP, and files this Answer with New Matter to Plaintiff's Complaint, averring and stating as follows: 1. Denied. After reasonable investigation Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of these averments and, therefore, at the same are denied with strict proof thereof demanded. 2. Denied. After reasonable investigation Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of these averments and, therefore, at the same are denied with strict proof thereof demanded. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted only that Defendant, John G. Williams is an in adult individual. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of the remaining averments and, therefore, at the same are denied with strict proof thereof demanded. 7. Admitted in part, denied in part. It is admitted only that Gullifty's is located at the Cedar Cliff Mall. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of the remaining averments and, therefore, the same are denied with strict proof thereof demanded. 8. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of the remaining averments and, therefore, the same are denied with strict proof thereof demanded. 9. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of these averments and, therefore, the same are denied with strict proof thereof demanded. 10. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of these averments and, therefore, the same are denied with strict proof thereof demanded. 11. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined that a response hereto is necessary, the same is denied pursuant to Pa. R.C.P. 1029(e). 12. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined that a response hereto is necessary, the same is denied pursuant to Pa. R.C.P. 1029(e). 13. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined that a response hereto is necessary, the same is denied pursuant to Pa. R.C.P. 1029(e). 14. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined that a response hereto is necessary, the same is denied pursuant to Pa. R.C.P. 1029(e). COUNT I - Assault Plaintiffs v. Defendant Smith 15. Paragraphs 1 through 14 of this Answer are incorporated herein by reference as though set forth at length. 16-30. Denied. The averments contained in these paragraphs are directed to a Defendant other than Answering Defendant and, therefore, no response thereto is necessary from Answering Defendant. COUNT II - Assault Plaintiffs v. Defendant Cedar Cliff Inn 31. Paragraphs 1 through 30 of this Answer are incorporated herein by reference as though set forth at length. 32. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 33. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 34. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 35. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 36. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.G.P. 1029(e). 37. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 38. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 39. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 40. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 41. Denied. The averments contained in this paragraph are denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's, demands judgment be entered in its favor and against Plaintiffs, Plaintiffs Complaint be dismissed, with prejudice. COUNT III - Negligence Plaintiffs v. Defendant Williams 42. Paragraphs 1 through 41 of this Answer are incorporated herein by reference as though set forth at length. 43-51. Denied. The averments contained in these paragraphs are directed to a Defendant other than Answering Defendant and, therefore, no response is required from Answering Defendant. COUNT IV - Negligence Plaintiffs v. Defendant Cedar Cliff and Defendant Cloister 52. Paragraphs 1 through 51 of this Answer are incorporated herein by reference as though set forth at length. 53-61. Denied. The averments contained in these paragraphs are directed to Defendants other than Answering Defendant and, therefore, Answering Defendant is not required to respond to the same. NEW MATTER 62. Plaintiffs' claims may be barred and/or diminished by the applicable statute of limitations. 63. Plaintiffs' claims may be barred and/or diminished by the application of the doctrine of comparative and/or contributory negligence. 64. Plaintiffs have failed to state a claim against Answering Defendant. 65. The harm and damages alleged by Plaintiffs occurred as the result of conduct or omissions of third parties not under the control or supervision of Answering Defendant. 66. Plaintiffs' claims and/or damages may be diminished and/or precluded by the Pennsylvania Motor Vehicle Financial Responsibility Law. 67. Plaintiffs damages may be diminished or precluded by agreements of others to pay the same. 68. The harm and damages alleged by Plaintiff are the result of an intervening superceding act of third parties. WHEREFORE, Defendant Cedar Cliff Inn, Inc, d/b/a Gullifty's, demands judgment be entered in its favor and against Plaintiffs, with Plaintiffs Complaint being dismissed, with prejudice. NEW MATTER IN THE NATURE OF A CROSSCLAIM 69. Paragraphs 1 through 68 of this Answer are incorporated herein by reference as though set forth at length. 70. Answering Defendant incorporates herein as though fully set forth all of the allegations of Plaintiffs Complaint as they pertain to Defendants Anthony E. Smith, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. 71. Answering Defendant denies that it is liable to any party under any theory of law or facts. 72. In the event there is a judgment, verdict or award entered against Answering Defendant, then it is alleged that said judgment, award or verdict is the sole and exclusive result of the liability produce and conduct of Defendant Anthony E. Smith, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. 73. In the event that an award, judgment or verdict is entered against Answering Defendant, then it is alleged that Defendants Anthony E. Smith, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. are jointly and severally liable for such award, judgment or verdict or directly liable to Plaintiff for such award, judgment or verdict. 74. In the event that a judgment, award or verdict is entered against Answering Defendant, then it is alleged that Defendant Anthony E. Smith, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. are liable to Answering Defendant for indemnification or contribution on all claims set forth in Plaintiffs Complaint. WHEREFORE, Answering Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's, demands judgment be entered in its favor and against all other Defendants. R,LLP Date: It 12-? /65-- W. I.D. #68953 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7644 dpowell@fthlaw.com NOV-222-2005 TLIE 11.35 AM THOMAS, THOMAS, & HAFER FAX NO. 7172377105 P. 13 VERIFICATION L? Ida m )'?1 1, Lew-Sayman, hereby state and aver that I have read the foregoing ANSWER WITH NEW MATTER AND NEW MATTER IN THE NATURE= OF CROSSCLAIMS, which has been drafted with the assistance of Defendant's counsel. Language in the foregoing pleading is that of counsel and not of the undersigned. The factual statements contained therein are true and correct to the best of my knowledge, information and belief, This statement and verification is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unswom falsification to authorities. Date: f?0? L'2 L?r1? EA "N , 6 man- L eco 1<et Ah t.v% ?388971v1 CERTIFICATE OF SERVICE I, W. Darren Powell, Esquire of the law firm of Thomas, Thomas & Hafer, LLP, attorney for Defendant, Cedar Cliff, Inc. d/b/a Gullifty's hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: George B. Faller, Jr., Esquire Christopher E. Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 (Counsel for Plaintiff) Dennis J. Bonetti, Esquire 418 Lamp Post Lane Camp Hill, PA 17011 (Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc.) Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 & HAFER, LLP W. Darren Date: ?? / ui? 386508.2 r i < j '+ I i i W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. JURY TRIAL DEMANDED NOTICE OF DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's hereby demands a jury trial in the above-referenced action. Thomas, Th -ohTak& Hafer, LLP Date: 12_/6 16 5- I.D. No. 68953 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's 1 CERTIFICATE OF SERVICE I, Kate A. Wilhelm, a paralegal of Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Dennis J. Bonetti, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Cloister Shopping, Inc. 2555 Kingston Road York, PA 17402 i" Dated: ) THOMA THO AS AFER, LLP Ka e A. Wilhelm r-? ?? 1 ?.. .? , . ; 0 f?' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., Defendants CASE NO: 05-3730 REPLY OF CEDAR CLIFF, L.P. TO THE NEW MATTER IN THE NATURE OF A CROSSCLAIM FILED BY CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S 69. Denied. Cedar Cliff, L.P. incorporates its answer (when filed) to Plaintiff's Complaint as though the same were fully set forth herein at length. To the extent a further reply is required, the averments contained in paragraph 69 are denied pursuant to Pa. R.C.P. 1029(e). 70. Denied. Cedar Cliff, L.P. hereby incorporates its reply to paragraph 70 as though the same were fully set forth herein at length. 71. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 71 of Plaintiff's Complaint state conclusions of law to which no reply is required. To the extent that a further reply is required, the averments contained in paragraph 71 are denied pursuant to Pa.R.C.P. 1029(e). 72. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 72 of Plaintiff's Complaint state conclusions of law to which no reply is required. To the extent that a further reply is required, the averments contained in paragraph 72 are denied pursuant to Pa.R.C.P. 1029(e). 73. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 73 of Plaintiff's Complaint state conclusions of law to which no reply is required. To the extent that a further reply is required, the avennents contained in paragraph 73 are denied pursuant to Pa.R.C.P. 1029(e). 74. Denied. Defendant is advised by counsel and therefore avers that the allegations contained in paragraph 74 of Plaintiffs Complaint state conclusions of law to which no reply is required. To the extent that a further reply is required, the averments contained in paragraph 74 are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Cedar Cliff, L.P. demands judgment in its favor and against Plaintiff and Defendants without costs. Respectfully submitted, WERNER, P.C. BY: DEP NIS J. BONETTI, ESQUIRE orney for the Defendant, A JURY TRIAL IS DEMANDED CEDAR CLIFF, L.P. J VERIFICATION I hereby affirm that the following facts are correct: Cedar Cliff, L.P., is a Defendant in the foregoing action. The attached Reply to New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Reply to New Matter is that of counsel and not of me. I have read the Reply to New Matter and to the extent that the Reply to New Matter is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, inforrnation and belief. To the extent that the content of the Reply to 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 aforesaid Reply to New Matter is made subject to the penalties of 18 Pa.C.S. 4904 relating to unswom falsification to authorities. Dated: - )- Authorized Representative of Cedar Cliff, L.P. CERTIFICATE OF SERVICE That counsel for the Defendant, CEDAR CLIFF, L.P., hereby certifies that a true and correct copy of its REPLY OF CEDAR CLIFF, L.P. TO THE NEW MATTER IN THE NATURE OF A CROSSCLAIM FILED BY CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S has been served on all counsel of record, by first class mail, postage pre- aid, according to the Pennsylvania Rules of Civil Procedure, on the / 5 day of r 2005. George Faller, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Cedar Cliff Inn d/b/a Gullifty's 1101 Carlisle Road Camp Hill, PA 17011 Cloister Shopping, Inc. 2555 Kingston Road York, PA 17402 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Respectfully submitted, CIP NI & WERNER, P.C. BY: ?. I DENNIS J. BONETTI, ESQUIRE Attorney for the Defendant CEDAR CLIFF, L.P. C) r? Q c? -n l i . _ r? W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve a Subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party on or about November 15, 2005; 2. A copy of a letter dated November 29, 2005 of counsel for Plaintiff, George B. Faller, Jr., Esquire, indicating no objections and waiver of the Notice of Intent is attached to this Certificate; and 3. The subpoena which will be served is identical to the subpoena which is attached to this certificate. Respectfully THQMAS, THOMAS & MARTSON DEARDORFF WILLIAMS & OTTO MDW o INFORMATION • ADVICE • ADVOCACY 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FACSIMILE (717) 243-1850 INTERNET www.mdwo.com Ms. Kate A. Wilhelm Paralegal THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 ATTORNEYS & COUNSELLORS AT LAW WILLIAM F. MARTSON JOHN B. FOWLER III DANIEL K. DEARDORFF THOMAS 1. W ILLIAMS* NO V. OTTO III GEORGE B. FALLER JR.* 'BOARD CERTIFT..I CARL C. RISCH DAVID A. FITZSIMONS CHRISTOPHER E. RICE JENNIFER L. SPEARS HILLARY A. DEAN ) CIVIL TRIAL SPECIALIST November 29, 2005 RE: John F. Burke and Sharon Burke, h/w v. Anthony E. Smith, Cedar Cliff Inn, Inc. d/b/a Gullifty's, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. No. 2005-3730-Cumberland County C.C.P. Our File No. 11306.2 Dear Kate: This will acknowledge receipt of your recent Notice of Intent to Serve Subpoenas. We are certainly amenable to a waiver of the twenty day rule, as long as you agree to supply us with copies of the records, as soon as they are received. WMLLAMS & OTTO GBF/nlm cc: Mr. and Mrs. John F. Burke FTILESIDATAFILMG=aa CUr A] 13M 1W ieorge B. Faller, Jr. INFORMATION • ADVICE • ADVOCACY SM Very truly yours, W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Lower Allen Township Police Department, 1993 Hummel Avenue, Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A complete copy the police incident reportstatements photographs, supplemental reports, etc. for an incident that occurred on January 18, 2004 in the vicinity of Gullifty's with Anthony Smith and John Burke. at: Thomas, Thomas & Hafer. LLP, 305 N. Front St P.O. Box 999. Harrisburg, PA 17108- 0999. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: W. Darren Powell, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA TELEPHONE: (717) 237-7154 SUPREME COURT ID#: 68953 ATTORNEY FOR: Defendant DATE:,/?'j00..2F ? t Seal of the Court 17108-0999 BY THE COURT Prothonotary/Clerk, Civil-Di ion Deputy CERTIFICATE OF SERVICE I, Kate A. Wilhelm, a paralegal of the law firm of Thomas, Thomas and Hafer, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Dennis J. Bonetti, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Cloister Shopping, Inc. 2555 Kingston Road York, PA 17402 Dated: Tl1- , WOMAS AFER, LLP Kate A. Wilhelm C7 N c? ?? ("- ? ? 7 C? ?? { ' L C11 ? _[7 (l-, _ 1l? LL7 ; (?: Ts? --*i _4; L' ?lT{ L CJ j _ Y? ? ?1 '? F TILESIDATAFILE\Gene®1\CurreM\I 1306.2.praecipe.2 Creered; 2I2I05 8;05AM ke ,M 1110106 823AM George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3730 CIVIL TERM ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants To the Prothonotary: CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE Please reinstate the Complaint in the above captioned action. MARTSON DEARDORFF WILLIAMS & OTTO By George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: January 10, 2006 Attorneys for Plaintiffs r: r:. C:± ?.i SHERIFF'S RETURN - REGULAR CASE NO: 2005-03730 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BURKE JOHN F VS TH ANTHONY E ET AL SHARON LANTZ Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SMITH ANTHONY E the DEFENDANT , at 1545:00 HOURS, on the 10th day of January 2006 at CUMBERLAND CO COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 by handing to ANTHONY E SMITH a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service .00 Postage .39 Surcharge 10.00 .00 28.39 So Answers R. Thomas Kline 01/11/2006 MDW&O Sworn and Subscribed to before I me this dD day of JGU(_, „ A.D. F:T1LHSVDATAFILeAGenera1ACurrentAI 1306.2. response Creeted. 12/21/05 229PM Revised. 3/9/06 9.14AM George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF. L.P., and CLOISTER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3730 CIVIL TERM CIVIL ACTION - LAW SHOPPING, INC. Defendants JURY TRIAL OF TWELVE DEMANDED REPLY OF PLAINTIFFS TO DEFENDANT CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S NEW MATTER AND NEW MATTER IN THE NATURE OF A CROSSCLAIM REPLY TO NEW MATTER Plaintiffs' Complaint is incorporated herein by reference as if fully set forth below. 62-68. Denied. Denied as conclusions of law. WHEREFORE, Plaintiffs demand judgment against Defendants in an amount in excess of $35,000.00, including costs of suit, and any other relief this court deems appropriate as set forth in the Complaint. REPLY TO NEW MATTER IN THE NATURE OF A CROSSCLAIM 69-70. Plaintiffs' Complaint is incorporated herein by reference as if fully set forth below. 71. Denied. Defendant Cedar Cliff Inn, Inc, is liable to plaintiffs as set forth in the Complaint. 72-74. Denied. The averments contained in these paragraphs are directed to the Defendants and not to Plaintiffs. Therefore, no response is required from Plaintiffs. By way of further response, denied as conclusions of law. WHEREFORE, Plaintiffs demand judgment against Defendants in an amount in excess of $3 5,000.00, including costs of suit, and any other relief this court deems appropriate as set forth in the Complaint. MARTSON DEARDORFF WILLIAMS & OTTO By George h-faKer, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: March 9, 2006 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of MARTSON DEARDORFF WILLIAMS & OTTO, hereby certify that a copy of the foregoing Response to New Matter was served this date by depositing same in the Post Office at Carlisle, Pennsylvania , first class mail, postage prepaid, addressed as follows: W. Darren Powell, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Cedar Clifflnn, Inc. d1b/a Gullifty's Dennis J. Bonetti, Esquire CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 Attorney for Cedar Cliff, L,P. Cloister Shopping, Inc. 2555 Kingston Road York, PA 17402 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 MARTSON DEARDORFF WILLIAMS & OTTO By Ma Price Ten st High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 9, 2006 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, CASE NUMBER: 05-3730 h/w, ISSUE NUMBER: Plaintiffs V. PLEADING: ANTHONY E. SMITH, CEDAR CLIFF PRAECIPE FOR APPEARANCE INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., CODE AND CLASSIFICATION: Defendants FILED ON BEHALF OF: CLOISTER SHOPPING, INC., Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa.ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., Defendants CASE NO: 05-3730 PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter my appearance on behalf of the Defendant, CLOISTER SHOPPING, INC., in the above-captioned matter. Respectfully submitted, P.C. A JURY TRIAL IS DEMANDED BY: ICE- NIS J. BONETTI, ESQUIRE orney for the Defendants CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC. CERTIFICATE OF SERVICE That counsel for the Defendants, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., hereby certifies that a true and correct copy of its PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mail, postage pre- paid, according to the Pennsylvania Rules of Civil Procedure, on the ;- 3 day of 7?Zct ?t' 2006. George Faller Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 W. Darren Powell, Esquire Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Respectfully submitted, WERNER, P.C. BY: 7 lJ NNIS J. BONETTI, ESQUIRE ttomey for the Defendant CEDAR CLIFF, L.P. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs CASE NUMBER: 05-3730 ISSUE NUMBER: V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., Defendants TO: John and Sharon Burke, Anthony E. Smith, Cedar Cliff Inn, Inc. d/b/a Gullifty's, and John G. Williams, YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED ANSWER WITH NEW MATTER AND CROSSCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREQSM OR A DEFAULT JUDGMENT MAf'ft,6T,IfRYb AGAINST YOU. PLEADING: ANSWER WITH NEW MATTER AND CROSSCLAIM CODE AND CLASSIFICATION: FILED ON BEHALF OF: CLOISTER SHOPPING, INC., and CEDAR CLIFF, L.P. Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, h/w, CASE NO: 05-3730 Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., Defendants ANSWER WITH NEW MATTER AND CROSSCLAIM OF CEDAR CLIFF, L.P. AND CLOISTER SHOPPING, INC. AND NOW, come Defendants, Cedar Cliff, L.P. and Cloister Shopping, Inc. ("Defendants"), by and through their counsel, Cipriani & Werner, P.C., and hereby answers Plaintiffs' Complaint as follows: 1. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 1 of Plaintiffs' Complaint and the same are therefore denied. 2. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 2 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraph 2 are denied pursuant to Pa.R.C.P. 1029(e). 3. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 3 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraph 3 are denied pursuant to Pa.R.C.P. 1029(e). 4. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 4 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraph 4 are denied pursuant to Pa.R.C.P. 1029(e). 5. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 5 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraph 5 are denied pursuant to Pa.R.C.P. 1029(e). 6. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 6 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraph 6 are denied pursuant to Pa.R.C.P. 1029(e). 7. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 7 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraph 7 are denied pursuant to Pa.R.C.P. 1029(e). 8. Admitted. 9. Admitted. By way of further answer, Cedar Cliff, L.P., at all times relevant hereto, had leased the premises wherein Gullifty's was located to the Cedar Cliff Inn, Inc. Therefore, Cedar Cliff, L.P. did not possess said premises at any time relevant hereto. 10. Admitted. By way of further answer, Cloister Shopping, Inc. incorporates the answer to paragraph 9 as though the same were fully set forth herein at length. 11. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 11 of Plaintiffs' Complaint and the same are therefore denied. By way of further answer, the averments contained in paragraph 11 are denied pursuant to Pa.R.C.P. 1029(e). 12. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 12 state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 12 are denied pursuant to Pa.R.C.P.1029(c). 13. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 13 state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 13 are denied pursuant to Pa.R.C.P. 1029(e). 14. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 14 state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 14 are denied pursuant to Pa.R.C.P. 1029(e). COUNT I - ASSAULT PLAINTIFF v. DEFENDANT SMITH 15. Denied. Defendants hereby incorporate their answers to paragraphs 1 - 14 as though the same were fully set forth herein at length. 16-30. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraphs 16 - 30 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraphs 16 - 30 are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Cedar Cliff, L.P. and Cloister Shopping, Inc. demand judgment in their favor and against Plaintiffs without costs. COUNT II - NEGLIGENCE PLAINTIFF v. DEFENDANT CEDAR CLIFF INN 31. Denied. Defendants hereby incorporate their answers to paragraphs I - 30 as though the same were fully set forth herein at length. 32-41. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraphs 32 - 41 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraphs 32 - 41 are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Cedar Cliff, L.P. and Cloister Shopping, Inc. demand judgment in their favor and against Plaintiffs without costs. COUNT III - NEGLIGENCE PLAINTIFF v. DEFENDANT WILLIAMS 42. Denied. Defendants hereby incorporate their answers to paragraphs 1 - 41 as though the same were fully set forth herein at length. 43-51. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraphs 43 - 51 pertain to a party other than Defendants and therefore, no answer is required. To the extent a further answer is required, the averments contained in paragraphs 43 - 51 are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Cedar Cliff, L.P. and Cloister Shopping, Inc. demand judgment in their favor and against Plaintiffs without costs. COUNT IV - NEGLIGENCE PLAINTIFF v. DEFENDANT CEDAR CLIFF, L.P. AND DEFENDANT CLOISTER SHOPPING, INC. 52. Denied. Defendants hereby incorporate their answers to paragraphs 1 - 51 as though the same were fully set forth herein at length. 53. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 53 state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 53 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, Defendants incorporate their answer to paragraph 9 as though the same were fully set forth herein at length. 54. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 54 state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 54 are denied pursuant to Pa.R.C.P. 1029(e). 55. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 55 state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 55 are denied pursuant to Pa.R.C.P. 1029(e). 56. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 56 state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 56 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, pursuant to the terms of the relevant leases, the tenants were to notify Defendants if additional security was to be utilized at the Cedar Cliff Mall. As of the date of the incident in question, the tenants had not requested additional security beyond whatever security measures had been undertaken by the individual tenants. 57. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 57 including sub-paragraphs(a)through 0) inclusive state conclusions of law to which no answer is required. To the extent a further answer is required, the averments contained in paragraph 57 including sub-paragraphs (a) through 0) inclusive are denied pursuant to Pa.R.C.P. 1029(e). 58. Denied. Defendants are advised by counsel and therefore aver that the allegations contained in paragraph 58 of Plaintiffs' Complaint state conclusions of law to which no answer is required. To the extent that a further answer is required, the averments contained in paragraph 58 are denied pursuant to Pa.R.C.P. 1029(e). 59. Denied. The averments contained in paragraph 59 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiffs and the same is therefore denied. 60. Denied. The averments contained in paragraph 60 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiffs and the same is therefore denied. 61. Denied. The averments contained in paragraph 61 are denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments concerning the nature and extent of injuries suffered by Plaintiffs and the same is therefore denied. WHEREFORE, Cedar Cliff, L.P. and Cloister Shopping, Inc. demand judgment in their favor and against Plaintiffs without costs. NEW MATTER 62. Plaintiffs' claims may be barred by the applicable statute of limitations. 63. 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. 64. Plaintiffs' alleged injuries and damages, if any, which are specifically denied, may have been pre-existing, either in whole or in part and are not causally related to the accident giving rise to the present litigation. 65. Plaintiffs' claims are reduced or barred by the Comparative Negligence Act. Plaintiffs' contributory negligence consisted of, but is not limited to: a. Approaching Defendant Smith in the parking lot when it was unreasonable and unnecessary to do so; b. Failing to pay attention to his surroundings; C. Provoking and/or instigating a confrontation in the parking lot; d. Failing to take appropriate evasive maneuvers; C. Failing to leave the premises in a safe manner; and f. Failing to request assistance when leaving the premises. 66. Discovery may reveal that Plaintiffs' claims may be barred in whole or in part by one or more affirmative defenses set forth in Pa. R.C.P. 1030, which are incorporated herein by reference including, but not limited to, assumption of the risk, collateral estoppel, res judicata, release or immunity from suit. 67. As a landlord out of possession, Defendants owed no legal duty to Plaintiffs under the facts and circumstances of the present case. 68. Plaintiffs' claims may be barred by the assumption of the risk doctrine. NEW MATTER IN THE NATURE OF A CROSSCLAIM PURSUANT TO PA.R.C.P. 2252(D) 69. Cedar Cliff, L.P. and Cloister Shopping, Inc., incorporate Plaintiffs' Complaint without admission or adoption and their answer to Plaintiffs' Complaint as though the same were fully set forth herein at length. 70. In the event that any liability is found to exist on the part of Cedar Cliff, L.P. and Cloister Shopping, Inc., which liability is specifically denied, then Defendants, Anthony E. Smith, Cedar Cliff Inn, Inc. d/b/a Gullifty's, and John G. Williams, are liable over to Cedar Cliff, L.P. and Cloister Shopping, Inc. for contribution and/or indemnification or is jointly and severally liable to Plaintiffs. 71. In the event that harm, losses or damages alleged by Plaintiffs are found to exist, which are specifically denied, then Anthony E. Smith, Cedar Cliff Inn, Inc. d/b/a Gullifty's, and John G. Williams, are solely liable to Plaintiffs for the harm, losses or damages to Plaintiffs, or are liable over to Cedar Cliff, L.P. and/or Cloister Shopping, Inc. for contribution and/or indemnification, or are jointly and severally liable to Plaintiffs. 72. Pursuant to Article XVIII as amended in the fourth addendum to lease dated November 21, 1985, Cedar Cliff Inn, Inc. agreed to indemnify lessor and hold lessor harmless for any claims arising out of or from any accident or other occurrence on or about the demised premises causing injury to any person. Pursuant to said agreement, Cedar Cliff Inn, Inc. must indemnity and hold Defendants harmless under the facts and circumstances of the present case. 73. Pursuant to Article XVIII of the lease, as amended in the fourth addendum to lease dated November 21, 1985, Cedar Cliff Inn, Inc. was obligated to name lessor as an additional insured under its liability policy. Pursuant to the lease agreement, as amended, answering Defendants are entitled to coverage as an additional insured under the liability policies in effect for Cedar Cliff Inn, Inc. WHEREFORE, Cedar Cliff, L.P. and Cloister Shopping, Inc. demand judgment in their favor and against Anthony E. Smith, Cedar Cliff Inn, Inc. d/b/a Gullifty's, and John G. Williams and Plaintiffs, without costs. BY: A JURY TRIAL IS DEMANDED Respectfully submitted, C P.C. IJIXNIS J. BONETTI, ESQUIRE G6unsel for the Defendants, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC. VERIFICATION I hereby affirm that the following facts are correct: Cedar Cliff, L.P., is a Defendant in the foregoing action. The attached Answer with New Matter and Crossclaim is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Answer with New Matter and Crossclaim is that of counsel and not of me. I have read the Answer with New Matter and Crossclaim and to the extent that the Answer with New Matter and Crossclaim 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 with New Matter and Crossclaim is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer with New Matter and Crossclaim is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Dated: Authorized Representative of Cedar Cliff, L.P. VERIFICATION I hereby affirm that the following facts are correct: Cloister Shopping, Inc., is a Defendant in the foregoing action. The attached Answer with New Matter and Crossclaim is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Answer with New Matter and Crossclaim is that of counsel and not of me. I have read the Answer with New Matter and Crossclaim and to the extent that the Answer with New Matter and Crossclaim 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 with New Matter and Crossclaim is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer with New Matter and Crossclaim is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Dated: A Authorized Representative of Cloister Shopping, Inc. CERTIFICATE OF SERVICE That counsel for the Defendants, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., hereby certifies that a true and correct copy of its ANSWER WITH NEW MATTER AND CROSSCLAIM has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the 1 day of c L 2006. George Faller, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 W. Darren Powell, Esquire Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 BY: Respectfully submitted, CIPRIANI & WERNER, P.C. DE NIS J. BONETTI, ESQUIRE C nsel for the Defendants, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC. ?., ; ?? , ?? `, ?,, . ? . ,.: ?:: ... W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, v. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. Attorney for Defendant Cedar Cliff Inn, Inc. d/bia Gullifty's IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PA CIVIL ACTION NO. 2005-3730 Civil Term AND NOW, comes Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's, by and through, its counsel, W. Darren Powell, Esquire, and files this Reply to the Crossclaim of Cedar Cliff, L.P. and Cloister Shopping, Inc., stating and averring as follows: 69. Answering Defendant incorporates its Answer to Plaintiffs Complaint by reference as though same were fully set forth herein at length. 70. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 71. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 4 72. Denied. The referenced lease is a written document that speaks for itself and, therefore, all characterizations of the same are denied. 73. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. By way of further response, it is averred that the accident or occurrence did not take place on or about the demised premises but rather in the parking lot which is a common area under the responsibility of Defendants Cedar Cliff, L.P. and/or Cloister Shopping, Inc. , or others. WHEREFORE, Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's respectfully demands that judgment be entered in their favor and that the Crossclaim of Cedar Cliff, L.P. and Cloister Shopping, Inc. be dismissed, with prejudice. Respectfully submitted, & Hafer, Date: Identification No. 68953 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's CERTIFICATE OF SERVICE I, Jessica M. Lewis, an employee of Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Dennis J. Bonetti, Esquire Cipriani & Werner, P.C. 1011 Mumma Road Suite 201 Lemoyne, PA 17043 THOMAS, THOMAS & HAFER, LLP Jessica M. Lewis Dated: j ? I IJW 420974.1 ',... f11 1 e.a c•> =< F:\FILES\DATAFrLE\General\Current\ 11306.2. rep2 Created: 2/2105 8:05AM Revised: 5/16106 2:07PM George B. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY' S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-3730 CIVIL TERM : CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED PLAINTIFFS' REPLY TO DEFENDANTS CEDAR CLIFF, L.P. and CLOISTER SHOPPING INC.' S ANSWER WITH NEW MATTER and CROSSCLAIM REPLY TO NEW MATTER Plaintiffs' Complaint is incorporated herein by reference as if fully set forth below. 62. Denied as a conclusion of law. 63. Denied as a conclusion of law. By way of further response, Plaintiffs's injuries and damages occurred as a result of the acts and omissions of the Defendants. 64. Denied as a conclusion of law. Byway of further response, Plaintiffs injuries and damages occurred as a result of the acts and omissions of the Defendants. 65 (a-f) Denied as conclusions of law. By way of further response, the same are denied pursuant to Pa. R.C.P. 1029(e). 66. Denied as a conclusion of law. 67. Denied as a conclusion of law. 68. Denied as a conclusion of law. REPLY TO NEW MATTER IN THE NATURE OF A CROSSCLAIM 69. Plaintiffs' Complaint is incorporated herein by reference as if fully set forth below. 70-73. Denied. The averments contained in these paragraphs are directed to the remaining Defendants and not to Plaintiffs. Therefore, no response is required from Plaintiffs. By way of further response, denied as conclusions of law. WHEREFORE, Plaintiffs demand judgment against Defendants in an amount in excess of $35,000.00, including costs of suit, and any other relief this court deems appropriate as set forth in the MARTSON DEARDORFF WILLIAMS & OTTO By Georg-e--If. Faller, Jr., Esquire I.D. Number 49813 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: June 14, 2006 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of MARTSON DEARDORFF WILLIAMS & OTTO, hereby certify that a copy of the foregoing Reply to New Matter and Counterclaim was served this date by depositing same in the Post Office at Carlisle, Pennsylvania, first class mail, postage prepaid, addressed as follows: W. Darren Powell, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Cedar Cliff Inn, Inc. d/b/a Gullifty's Dennis J. Bonetti, Esquire CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 Attorneyfor Cedar Cliff, L.P. and Cloister Shopping, Inc. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Dated: 6// ?Y/a MARTSON DEARDORFF WILLIAMS & OTTO By 1q'1 M Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 -71 CZ') :77 W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's J014N F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve Subpoena with copies of the subpoenas attached thereto was mailed or delivered to each party at least twenty (20) days in advance of this Certificate; 2. No objection to the subpoenas have been made; and 3. The subpoenas which will be served are identical to the subpoenas which are attached to this certificate. J? Date: I C) 305 North Front Street, P.O. Box 999 Harrisburg, PA 17101 (717) 237-7154 Attorney for Defendant Thomas, Thomas & Hafer, LLP 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. W. Darren Powell, Esquire Identification No. 68953 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Orthopedic Institute of Pennsylvania, 875 Poplar Church Road, Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A complete copysf Plaintiff John Burke's (SSN: 078-44-5247) medical records correspondence, statements, diagnostic test results, photographs, reports, laboratory data and any and all documents contained in his medical records. at: Thomas, Thomas & Hafer, LLP, 305 N. Front St., P.O. Box 999, Harrisburg, PA 17108-0999. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: W. Darren Powell, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7154 SUPREME COURT ID#: 68953 ATTORNEY FOR: Defendant 3 ?p DATE: ?1 I-J4 Seal of the C urt /Ij BY THE COURT. Prothonotary/CI rk, Civ? ' i ion Deputy Thomas, Thomas & Hafer, LLP 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 W. Darren Powell, Esquire Identification No. 68953 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Richard Little, M.D./Family Physicians Association, 1900 Bridge Street, New Cumberland, PA 17070 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A complete copyaf Plaintiff John Burke's (SSN: 078-44-5247) medical records, correspondence statements, diagnostic test results, photographs, reports, laboratory data and any and all documents contained in his medical records. at: Thomas Thomas & Hafer, LLP, 305 N. Front St., P.O. Box 999, Harrisburg, PA 17108-0999. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: W. Darren Powell, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7154 SUPREME COURT ID#: 68953 ATTORNEY FOR: Defendant BY THE COURT: DATE:- (p Seal of the Co rt Prothonotary/Cler , ivil I)ivisi n Deputy / CERTIFICATE OF SERVICE I, Kate A. Wilhelm, a Paralegal for the law firm Thomas, Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing a copy of the same in the United States mail, first class mail, directed to the addressed as follows, on the date set forth below: George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Dennis J. Bonetti, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Cloister Shopping, Inc. 2555 Kingston Road York, PA 17402 THOMAS, THOMA & HAFER, LLP Kate A. Wilhelm, Paralegal Dated: 1? J?b D ?? 77 171 F: \FI LES\Clients\ 11306\ 11306.2. mot ion. comp\mav Created: 2/2/05 8:05AM Revised: 11/27/07 10: 59AM 11306.2 George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY' S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3730 CIVIL ACTION - LAW : JURY TRIAL OF TWELVE DEMANDED PLAINTIFFS' MOTION TO COMPEL RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS and ANSWERS TO INTERROGATORIES 1. On May 10, 2007, Plaintiffs' counsel wrote to Defendant's counsel requesting an address of a former employee of Defendant Cedar Cliff Inn, Inc., d/b/a Gullifty's (hereinafter "Defendant Cedar Cliff Inn") in order to depose the individual, but received no response. 2. On or about May 29, 2007, Plaintiffs deposed Defendant Cedar Cliff Inn's representative. 3. At that time, Defendant Cedar Cliff Inn's representative set forth information which was not provided to Plaintiffs' counsel through previous discovery requests. 4. At the deposition, Plaintiffs' counsel informally requested that Defendant's counsel provide Plaintiffs with documents and training materials that were referenced by the representative at the deposition along with information as to former employees, including the address of Ms. Jamie Maddox, which the representative claimed to have access to. 5. On or about July 12, 2007, Plaintiffs' counsel wrote to Defendant's counsel again requesting the information discussed at the deposition. A true and correct copy of the July 12, 2007, letter is attached hereto as Exhibit "A". 6. On or about August 14, 2007, Plaintiffs' counsel again wrote to Defendant's counsel requesting a response to the July 12, 2007, letter. A true and correct copy of the August 14, 2007, letter is attached hereto as Exhibit "B". 7. On or about September 18, 2007, Plaintiff provided to Defendant a Request for Product of Documents and set of Interrogatories. As of this date, Defendant Cedar Cliff, Inc., d/b/a Gullifty's has failed to respond to any of the correspondence and discovery requests. 8. Before filing this Motion, Plaintiffs' notified Defendant's counsel of their intent to file said Motion, but received no response. A true and correct copy of the letter dated October 19, 2007, is attached as Exhibit "C". 9. Plaintiffs then contacted Defendant's counsel by telephone and was told the information had been mailed. 10. Plaintiffs received only part of the information requested, which did not include the address of Ms. Jamie Maddox or the Response to Production of Documents. 11. Plaintiffs contacted the letter writer and left a message that all of the information had not been provided. 12. To date, no supplemental response or Response to Production of Document have ben received. 13. By way of its response, it is believed that Defendant does not concur in the filing of this Motion to Compel but has been advised of the same. 14. Plaintiffs see no other alternative but to file said Motion since they have failed to receive any response from Defendant Cedar Cliff, Inc. 15. Plaintiffs therefore request that this Court issue an Order directing Defendant Cedar Cliff, Inc. to respond to the discovery provided to them on or about September 18, 2007. Plaintiffs also request reasonable attorney fees in the amount of $850.00 for the preparation, filing and attendance required as a result of the filing of this Motion to Compel. WHEREFORE, Plaintiffs request that this Court issue an Order directing Defendant Cedar Cliff, Inc., to respond to the discovery within ten (10) days of the date of its Order and pay reasonable attorney fees in the amount of $750.00 to Plaintiffs. By MARTSON LAW OFFICES Christopher E. Rice, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs ll/g1/0-7 MA]PTSON LAW OFFICES Ill EAST HIGH STR.FJ_T 1-013 Ttt.rl?HCf?i?. 17 243-3341 ?1? 243-1350 INTF RNET v,\vw.martsonlaWCOm \l I;. i.' \t F. M., R-S' "N !x B.F,)%vTi RIII D%v1 K. Di \RUi,RrP V ?. Yrp1 III 111 rl.Rl' X. 01,RON Gr,, -P<,1 Q. F?.! 1.7_R JR.' D u A. FrrrS:`.i0 }\S E. Ri(a (I -x\;1 1 R (.. , PI ,RP SFni T. ?(h>i of JUIY 12, 2007 W. Darren Powell, Esquire THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 RE: John F. Burke and Sharon Burke v. Anthony E. Smith, Cedar Cliff Inn, Inc., d/b/a Gullifty's, John G. Williams, Cedar Cliff, L.P., and Cloister Shopping, Inc. No.: 2005-3730 - Cumberland County C.C.P. Our File No.: 11306.2 Dear Darren: As a follow-up to our conversation after the depositions in June, we are requesting an update as to the status of the additional depositions that you were going to schedule. Could you please advise us of your progress. In addition, we are also inquiring as to whether you need a formal discovery request in order to turn over the documents and training materials that we discussed at the depositions. Specifically, any documents, certifications (signed and unsigned), training manuals and videos that were provided to or viewed by the employees of Gullifty's before or during their employment. You were also going to provide us with the address of Ms. Jamie Maddox. Thank you. Very truly yours, MARTSON LAW OFFICES Christopher E. Rice CER/mmp cc: Dennis J. Bonetti, ES(lUire F TILES! i "A" , i ; ' dpo EXHIBIT "A" I N P 0 R M A r 1 0 N , A D V I C L * .% ) .- ., 4 . 3 MAPTSON LAW OFFICES Wiu.i?sm F. MARTSO JOHN B. F AXL1_R III D.vmE1. K. DI.ARINTIT THom.\s J. No V. 0-m-o III HC BERT Y. G1LROY GF( )RCa B. FALLI.R JR.` D."AD A. FITZM-NIO -S CHRIS (THI'R E. RIC): 11 ]VIEI R L. SPL.+.RS SI-TH T. MOst.m.)10 K. ST HIGH STREET C.ARLISLL, PFNNM,YA\IA 17013 TFLFPHOyF. X717; 243-3341 F_v-.si nl.l. 1717', 243-1850 IN-mR\I T %ww.martsonlawcom W. Darren Powell, Esquire THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 'BOARD C.LRTIFIED CIVIL TRIAL SPEI-IALIs'C August 14, 2007 RE: John F. Burke and Sharon Burke v. Anthony E. Smith, Cedar Cliff Inn, Inc., d/b/a Gullifty's, John G. Williams, Cedar Cliff, L.P., and Cloister Shopping, Inc. No.: 2005-3730 - Cumberland County C.C.P. Our File No.: 11306.2 Dear Darren: I am following up on my letter dated July 12, 2007. Could you please respond to the same and provide me with the address of Ms. Jamie Maddox. Thank you. CER/mmp cc: Dennis J. Bonetti, Esquire %lr. and ?lrs. Burke I 1 ILL-5' 11: ?;r.l I +'o :.ip' Very truly yours, MARTSON LAW OFFICES Christopher E. Rice EXHIBIT "B" I N F O R M A T I O N - A D V I C E - A D V O C A C Y MAD'*-IXSON LAW OFFICES WiLif.%m F. NhR1'SON JOHN B. FOwi.ia III DANIH, K. I)1;,\RD0RFF Tiiou\s J. Wii.1.iA,Nts* No V. C)ZTo III H( m.wr X. Gif Rol 'BOARD CEWrIFI Gtr.ORGE, B. FAII.FR JR.* DAV1D A. FITZST:NIONS CHRIs-C(>PHER E. RIcF. JENNIFER L. SPEARS SETH T. MOSEBEY TRi In, E. FEi'iI.INGLR :D CIVIL TRIAL SIIFCIAI.IST II) EAST HIGit STREET C:1RI.ISLE, hFNNSS 1 \' 1NL1 17()13 TEL.rPtiONE (F) 243-3341 1, V -'ANI IHl (-I- ) 243-1850 IN'IERNF..T wlxw.mart"onlau:com VIA FACSIMILE ONLY: 237-7105 W. Darren Powell, Esquire THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 October 19, 2007 RE: John F. Burke and Sharon Burke v. Anthony E. Smith, Cedar Cliff Inn, Inc., d/b/a Gullifty's, John G. Williams, Cedar Cliff, L.P., and Cloister Shopping, Inc. No.: 2005-3730 - Cumberland County C.C.P. Our File No.: 11306.2 Dear Darren: We will be filing a Motion to Compel if the responses to our Request for Production of Documents and Interrogatories sent to you on September 18, 2007, are not received by Monday, October 22, 2007. This is our third attempt to obtain information from you without a response. Very truly yours, MARTSON LAW OFFICES Christopher E. Rice CER/mmp cc: Dennis J. Bonetti, Esquire F'.FILES hentsl 1306`, 113062#9 EXHIBIT "C" I N F O R M A T I O N • A D V I C E • A D v o c :>, C Y CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Motion to Compel was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Dennis J. Bonetti, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc. W. Darren Powell, Esquire, THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Cedar Cliff Inn, Inc. d/b/a Gullifty's Mr. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Pro se Defendant MARTSON LAW OFFICES By: 7 < < O..utei M Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: ///d-1/0,7 ;,`?? ? p ?a ? ?? ?„r `Ch "`°?!?_9 7i :. ? . ;,?y C.? :? "'C ? 0 ..,, F: RLESTlients\11306\11306.2.amendment George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3730 CIVIL ACTION -LAW JURY TRIAL OF TWELVE DEMANDED AMENDMENT TO MOTION TO COMPEL 1. Plaintiffs contacted Defendant's counsel and requested the information outlined in its Motion to Compel. Plaintiffs notified Defendant's counsel that the Motion would be filed if the information was not received. Defendant's counsel did not concur in the filing of this Motion. 2. No Judge has ruled upon any other issue in this matter. WHEREFORE, Plaintiffs request that this Court issue an Order directing Defendant Cedar Cliff, Inc., to respond to the discovery within ten (10) days of the date of its Order and pay reasonable attorney fees in the amount of $750.00 to Plaintiffs. MARTSON LAW OFFICES BY ?4,4/ S )C- -Christopher E. Rice, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: f z - ?Z - 0 7 0, CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Amendment to Motion to Compel was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Dennis J. Bonetti, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc. W. Darren Powell, Esquire, THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Cedar Cliff Inn, Inc. d/b/a Gullifty's Mr. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Pro se Defendant MARTSON LAW OFFICES y p. By: . M Price Ten Elk High Street Carlisle, PA 17013 (717) 243-3341 Dated: /o?-/N,/07 ?/07 - ._,.? ---4 . _?. _ ?, ` ? ? iYY ?? n(t __ t,?• v _.7 .. ..-; i ; ,, 4 '{ s . ?.,1 ..?? JOHN F. BURKE and SHARON BURKE, h/w Plaintiffs v. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3730 CIVIL ORDER OF COURT AND NOW, this 31 s' day of December, 2007, upon consideration of the Plaintiffs' Motion to Compel Responses for Production of Documents and Answers to Interrogatories, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Defendant, Cedar Cliff Inn, Inc., d/b/a Gullifty's, to show cause why the relief requested should not be granted; 2. The defendant, Cedar Cliff Inn, Inc., d/b/a Gullifty's, will file an answer to this petition on or before January 22, 2008; 3. A copy of said answer will be filed with this Court; 4. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiffs shall be granted. If the Defendant, Cedar Cliff Inn, Inc., d/b/a Gullifty's, files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing will then be scheduled. By the Court, 'T? -? ?-a M. L. Ebert, Jr., J Z? .6 Wd 1 £ 330 LOOZ m ioNu,- is d :,'Hl JO ;01±10-031U Christopher E. Rice, Esquire Attorney for Plaintiffs Anthony E. Smith, Pro Se Defendant l.Gp £S Dennis J. Bonetti, Esquire Attorney for Cedar Cliff, L.P. and Cloister Shopping, Inc. W. Darren Powell, Esquire Attorney for Cedar Cliff Inn, Inc., d/b/a Gullifty's F: \FILES\Clients\ 11306\ 113 06.2. pra5 'L Created: 8/1/05 2:47PM Revised: 1/7108 9: 51AM George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3730 CIVIL ACTION - LAW : JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly withdraw the appearance of George B. Faller, Jr., Esquire, of Martson Law Offices on behalf of Plaintiffs in the above-captioned matter. Christopher E. Rice, Esquire, of Martson Law Offices shall remain counsel on behalf of Plaintiffs. MARTSON LAW OFFICES By Geor al#rr., quir I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 January 7, 2008 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Dennis J. Bonetti, Esquire CIPRIANI & WERNER 1011 Mumma Road Suite 201 Lemoyne, PA 17043-1145 Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc. W. Darren Powell, Esquire, THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Cedar Cliff Inn, Inc. d/b/a Gullifty's Mr. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Pro se Defendant Mr. John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Pro se Defendant MARTSON LAW OFFICES By: C Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: January 7, 2008 L"'S r-a ?"t C` cry ? ( ?, ...- ?? t? 1 ^Y' ? ' 9 ...?a C?.? W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's JOHN F. BURKE and SHARON BURKE, h/w, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, V. CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. JURY TRIAL DEMANDED REPLY OF DEFENDANT CEDAR CLIFF INN, INC. TO PLAINTIFFS' MOTION TO COMPEL AND NOW, comes Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's ("Gullifty's"), by and through its counsel, W. Darren Powell, Esquire, and Thomas, Thomas & Hafer, LLP, and hereby files this response to Plaintiffs' Motion to Compel, stating and averring as follows: Admitted in part, denied in part. It is admitted only that Plaintiffs' counsel wrote to the undersigned by correspondence dated May 10, 2007, requesting whether Defendant had a different forwarding address for Jared Webber, as Plaintiffs' counsel could not locate him at the last known address. It is denied that no response has been provided to this inquiry. Any suggestion that this letter requested the address of Jamie Maddox is denied. 562416.1 2. Admitted. It is admitted that, on or about May 29, 2007, Plaintiffs deposed Ike Eisenhower, the representative of Defendant Gullifty's, as well as other witnesses. 3. Admitted in part, denied in part. It is admitted only that, during his deposition, Ike Eisenhower may well have testified as to information which was not previously provided. Any suggestion that that the same was inappropriate, or that this information was previously specifically requested of Defendant, or that that Defendant had any obligation to otherwise provide this information, is denied. 4. Admitted in part, denied in part. It is admitted only that, during the deposition of Ike Eisenhower, Plaintiffs' counsel informally requested documents including training materials and employee files. In response, the undersigned suggested that the request was overly broad and advised Attorney Rice to issue a specific request, so that the issue could be appropriately addressed. See, Excerpts from transcript of Eisenhower at pp. 15-16, attached hereto as Exhibit "A." The remaining averments are denied. 5. Admitted, in part, denied in part. It is admitted only that Attorney Rice issued said letter and again requested information which the undersigned had advised needed to be issued through a formal discovery request. In that letter, Attorney Rice also then requested the address for Defendant's former employee, Jamie Maddox. By way of further response, this information was previously provided to Plaintiffs' counsel through the police investigative report and her statement which was part thereof. 6. Admitted. 7. Admitted in part, denied in part. It is admitted that, by correspondence dated September 18, 2007, Plaintiff issued upon Defendant their Third Request for 562416.1 2 Production of Documents and Third Set of Interrogatories. It is specifically denied that Defendant failed to respond to any of the discovery requests by the date of the filing of Plaintiffs' Motion to Compel (November 27, 2007). Indeed, by correspondence dated October 24, 2007, Attorney Faller was forwarded Defendant's Answers to Plaintiffs' Third Set of Interrogatories. A copy of the cover letter forwarding the same is attached hereto as Exhibit B. As such, the averment that Defendant "failed to respond to any of the correspondence and discovery requests" in this paragraph, is categorically denied and is a misrepresentation to the Court. 8. Admitted in part, denied in part. It is admitted only that Attorney Rice forwarded a letter dated October 19, 2007, indicating his intent to file a Motion to Compel. The remaining averments are denied. As noted above, Defense counsel's office forwarded to Attorney Faller, Defendant's Answers to Plaintiffs' Third Set of interrogatories and subsequently spoke with Attorney Rice. 9. Admitted. It is admitted that Attorney Rice and the undersigned spoke by telephone and that the undersigned advised that discovery responses had previously been mailed to Attorney Faller. 10. Admitted in part, denied in part. By way of further response, Defendant fully responded to Plaintiffs' Third Set of Interrogatories, which included the last known address for Jamie Maddox. Plaintiffs averment that it was incomplete because it did not contain the address of the former employee Jamie Maddox is denied. The response did contain the last known address of Ms. Maddox, which was the same address as listed on the police report that Defendant had previously provided to Plaintiffs. Indeed, Plaintiffs had previously subpoenaed her for a deposition. Apparently unable to locate 562416.1 her at that location, they were seeking an updated address, of which Defendant was not in possession. 11. Denied as stated. It is unknown to whom Plaintiffs' counsel refers to as the "letter writer." By way of further response, it is admitted that Plaintiffs' counsel spoke with individuals at the undersigned's office at the end of November. At that time, it was explained that the undersigned had been out of the office since Thanksgiving (and continued to be through the beginning of this year) and that his office was continuing to obtain all relevant documents with regard to responding to the Plaintiffs' Third Request for Production. Given this, Attorney Rice reported that he would not pursue the Motion to Compel. 12. Denied. By way of further response, Defendant provided its response to Plaintiffs' Third Request for Production of Documents on January 2, 2008. In addition, at the renewed request for Defendant to provide the last known phone number for Jamie Maddox, Defendant provided a formal Supplemental Response to Plaintiffs' Third Set of Interrogatories on January 18, 2008, though this response contained no new phone information other than that listed in the police report, as Defendant does not have any such information. 13. Admitted. 14. Denied. By way further Defendant has provided all information in its possession and has provided supplement discovery responses, as noted above. 15. Denied. By way of further response, the Defendant has provided discovery responses. Defendant provided answers to Plaintiffs' Third Set of Interrogatories back on October 24, 2007, well before this Motion was filed. In addition, 562416.1 4 Defendant has since provided Responses to the Third Set of Requests for Production and supplemented this discovery. However, Defendant cannot provide any additional information with regard to the current address for Jamie Maddox, as Plaintiff desires, simply because Defendant does not have this information. WHEREFORE, Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's respectfully requests that this Honorable Court enter an order denying Plaintiffs' Motion to Compel. THO AS & P By: Darren Powell, Esquire I.D. #68953 305 North Front Street, P.O. Box 999 Harrisburg, PA 17108 Date: January 22, 2008 (717) 237-7154 Attorneys for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's 562416.1 5 W a - 13 A. Yes, Q. Have you ever heard of Cedar Cliff Inn, c.? A. Yes, Q. What is that? A. That's our corporation here in Camp Hill rhich is Gullifty's. Cedar Cliff Inn, Inc., trademark 3ullifty's, trading as Gullifty's. Q. So when you say that -- and I'm going to -- I think it's Andrew owns Gullifty's, does that mean he owns Cedar Cliff Inn, Inc.? A. Yes. Q. Okay. So he doesn't own it individually. The corporation owns it. But he is the sole owner of Cedar Cliff Inn -- A. Yes. Q. -- Inc.? A. Yes. Q. And you have no ownership interest in Cedar Cliff Inn, Inc., correct? A. No. Q. No ownership interest in Gullifty's? A. No. Q. Let me restate that. So I am correct in those statements? 14 A. Yes. Q. Sorry. What is your role as manager? And what has it been in the past for Gullifty's? A. As general manager? Q. Yes. Excuse me. A. To oversee all daily operations and try to always make it a profitable entity. Q. And specifically what do you have to do with overseeing operations? A. Hire, fire, daily routine business, maintenance of the operation, cleanliness, sanitation, food ordering, customer interaction, training. Q. How about security? A. All of the security, definitely. Q. Most of these things such as training, security, maintenance you may sub out to someone else or hire someone to perform the maintenance? Or do you do it yourself? A. Do it ourselves. Q. Do you personally do it? A. Sometimes. Q. Specifically, what types of training do you do? A. We have a corporate training guy for various job duties throughout the restaurant, Hostessing, 15 1 waitressing, bussing. Being a busser, they need 2 trained, bartending, cooks, cook training. Everybody 3 gets trained. 4 Q. And you said that's in a guide that's in a 5 book, a pamphlet? 6 A. Yes. 7 Q. Do you have a copy of that with you? 8 A. No. 9 Q. Is that something you've given a copy of to 10 your counsel? 11 THE DEPONENT: Yes, I gave you some, but you 12 don't have the entire book. 13 MR. POWELL: Well, I don't know that you've 14 asked for -- 15 MR. RICE: I just wondered. 16 MR. POWELL: Obviously, a training manual 17 for a business person -- 18 MR. RICE: I'm not going anywhere with it. 19 I'm just asking if he has it. 20 MR. POWELL: Well, you've gone over a lot of 21 different operations, and he's mentioned a bunch of 22 different positions. 23 BY MR. RICE: 24 Q. Is this one booklet? Or one pamphlet? 25 A. No. 16 1 Q. So you have numerous training manuals? 2 A. And film. 3 Q. And film. Would you be able to supply those 4 to your counsel? Are those something that you have on 5 hand? 6 A. Yes, 7 Q. And is each employee responsible to read 8 this pamphlet and view the videos? 9 A. Yes. 10 Q. And, specifically, do the pamphlet or videos 11 discuss procedures with serving alcohol? 12 A. Yes. 13 Q. And those are outlined clearly within the 14 manuals and videos? 15 A. Yes. 16 Q. Okay. Do the employees have to sign any 17 sort of documentation certification that they've read 18 these documents or viewed the videos? 19 A. Yes. 20 Q. Would you be able to provide those signature 21 pages to your counsel? 22 MR. POWELL: To the extent the request is 23 specific and we find it relevant, we'll identify those 24 documents. And if you issue a request, we'll proceed. 25 I'm not going through every employee file. Page 13 to 16 of 89 4 of 31 sheets THOMAS, THOMAS & HAFERLLP ATTORNEYS AT LAW 305 North Front Street, P.O. Box 999, Harrisburg, PA 17108 Phone: (717) 237-7100 Fax: (717) 237-7105 www.tthlaw.com Kate A. Wilhelm, Paralegal (717) 237-7111 kwilhelm@tthlavi,.com October 24, 2007 George B. Faller, Jr., Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Re: Burke v. Cedar Cliff Inc., Inc., d/b/a Gullifty's. Our File No. 348-51673 Dear Attorney Faller: Enclosed please Defendant's Answer to Plaintiffs' Third Set of Interrogatories with regard to the above-captioned matter. Thank you for your cooperation. Very truly yours, Thomas, Thomas & Hafer, LLP By: Kate A. Wilhelm, Paralegal KAW Enclosures 391663.9 cc: Dennis Bonetti, Esquire Anthony Smith John Williams Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 • Fax: (412) 697-7407 CERTIFICATE OF SERVICE 1, Nora A. Starnes, a legal secretary with the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Christopher E. Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Dennis J. Bonetti, Esquire 1011 Mumma Road Lemoyne, PA 17043 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Nora A. Starnes Date: January 22, 2008 408402.3 ? ? ?) ? "'cl r? ? »? r^?.S C `..) ,. ?'? 1... `Ca G. JOHN F. BURKE and SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3730 CIVIL ORDER OF COURT AND NOW, this 25th day of January, 2008, upon consideration of the Plaintiffs' Motion to Compel Responses for Production of Documents and Answers to Interrogatories and the Defendants' Response thereto, IT IS HEREBY ORDERED AND DIRECTED that a status conference will be held in this matter on Friday, March 14, 2008, at 8:30 a.m. in chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. IT IS FURTHER ORDERED AND DIRECTED that Plaintiff shall provide the Court and the Defendants with a succinct list of discovery materials which have not been provided by the Defendant on or before the close of business 5 days before status conference. By the Court, M. L. Ebert, Jr., . Christopher E. Rice, Esquire Attorney for Plaintiffs /Anthony E. Smith, Pro Se Defendant /Dennis J. Bonetti, Esquire L" Attorney for Cedar Cliff, L.P. and Cloister Shopping, Inc. Darren Powell, Esquire Attorney for Cedar Cliff Inn, Inc., d/b/a Gullifty's bas r H° . t, F F ! w? ? Jr ? 2 W. Darren Powell, Esquire Identification No. 68953 Corey J. Adamson, Esquire Identification No. 204508 Thomas, Thomas & Hafer, LLP 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 JOHN F. BURKE and SHARON BURKE, h/w, Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, V. CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants JURY TRIAL DEMANDED DEFENDANT CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S' PETITION FOR THE ISSUANCE OF LETTERS ROGATORY TO TAKE DEPOSITION OUT OF STATE AND NOW, comes Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's, by and through its attorneys, Thomas, Thomas and Hafer, LLP, and hereby petitions the Court in accordance with 42 Pa. C.S. §5325 for the issuance of Letters Rogatory for the purpose of requesting the aid of the Courts in the state of Virginia and in support thereof avers as follows: 1. The above-captioned action is presently pending before this Honorable Court, arising out of an alleged altercation occurring outside Petitioner's restaurant. 2. The police report arising from this matter identifies Frank Bair as a witness to the alleged altercation. 3. Petitioner seeks to take the deposition of Frank Bair. Mr. Bair resides at 857 Old Cutler Road, Virginia Beach, Virginia 23454. 41 4. To be able to take the deposition of Mr. Bair, Petitioner desires to cause a Subpoena to be issued to Frank Bair at the aforementioned address, compelling him to attend a Deposition. 5. Petitioner believes and therefore avers that the taking of Mr. Bair's deposition is necessary for the proper defense of this matter, as he is believed to have information pertinent to the same regarding the alleged altercation. 6. This Honorable Court is authorized to issue the Letters Rogatory requested herein pursuant to 42 Pa. C.S. §5325. 7. Upon issuance of said Letters Rogatory, Petitioner will cause to be filed with the District Court of Virginia Beach the attached Petition for Issuance of Subpoena. 8. Petitioner will provide all parties herein with a copy of this Honorable Court's Order issuing the Letters Rogatory. 9. Pursuant to Local Rules, concurrence was sought in the instant Petition from all counsel of record, as set forth on the Certification of Concurrence Sought. WHEREFORE, Petitioner Cedar Cliff Inn, Inc. d/b/a Gullifty's, respectfully requests that the Court issue Letters Rogatory to the appropriate judicial authorities in the state of Virginia for the purpose of securing the attendance of Frank Bair at a deposition by Subpoenas to be issued by the appropriate judicial authorities in the state of Virginia and served on Frank Bair as set forth hereinabove. Respectfully submitted, Date: of - 13 "0 THOMAS, THOMAS 4 HAFER, By U quire W. Drn I.D. #br squire I. . # t, P. O. Box 999 Harrisburg, PA 17108 (717) 255-7644 CERTIFICATE OF CONCURRENCE SOUGHT: 1, Corey J. Adamson, Esquire, of the law firm of Thomas, Thomas and Hafer, LLP, hereby certify that counsel of record were contacted regarding concurrence in the preceding Petition. Attorney Dennis Bonetti (counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc.) gave his concurrence in the Petition. Attorney Chris Rice (counsel for Plaintiff) did not return phone messages regarding the Petition. Pro Se Defendants Anthony E. Smith and John G. Williams were unable to be reached regarding the preceding Petition. Date: of -(3 6 S CERTIFICATE OF SERVICE I, Sherry Hauenstein, secretary of the law firm of Thomas, Thomas & Hafer, LLP, attorney for Defendant, Cedar Cliff, Inc. d/b/a Gullifty's hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: George B. Faller, Jr., Esquire Christopher E. Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 (Counsel for Plaintiff) Dennis J. Bonetti, Esquire 418 Lamp Post Lane Camp Hill, PA 17011 (Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc.) Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP Sh Hauenstein Date: A `13 ",0 g 536464.1 HIM I _. JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. JURY TRIAL DEMANDED ORDER FOR LETTER ROGATORY TO THE APPROPRIATE AUTHORITY OF VIRGINIA BEACH. VIRGINIA On this ?.? day of e. \p i' J k r V , 2008, the Petition for Letter Rogatory to the State of Virginia of Cedar Cliff Inn, Inc. d/b/a Gullifty's comes before the Court. The Court, finds as follows: 1 Individual Frank Bair, residing in the State of Virginia, may possess information necessary and of interest to the subject litigation. 2. The deposition of Frank Bair cannot be compelled except pursuant to subpoena issued from the State of Virginia. 3. In order to secure the deposition of Frank Bair, whose last known address is 857 Old Cutler Road, Virginia Beach, Virginia 23454, this Court's commission is necessary and appropriate to procure the issuance of the subpoena in the State of Virginia. 4. It is therefore requested that Your Honorable Court assist this Court in serving the interests of justice by issuing and serving a subpoena on Frank Bair, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA 5u,lp.t-g(r not" )-r U14S )-.<-Ioltcv fj U'r- .9 VC ? ?t" ? tij ;ZeQs d ' L law s -J .9 H OZ 03A OOOZ requiring him to be present at his deposition at Your Courthouse in Virginia Beach, Virginia on June 19, 2008 at 10:00 a.m. It is therefore ORDERED, ADJUDGED, and DECREED that Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's' Petition for Letter Rogatory to the State of Virginia should be and hereby is GRANTED. It is further ORDERED, ADJUDGED, and DECREED, that this Order shall constitute this Court's commission for purposes of having a subpoena for deposition issued in the State of Virginia to Frank Bair. By the Court W. Darren Powell, Esquire Identification No. 68953 Corey J. Adamson, Esquire Identification No. 204508 Thomas, Thomas & Hafer, LLP 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 JOHN F. BURKE and SHARON BURKE, h/w, Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, V. CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants JURY TRIAL DEMANDED DEFENDANT CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S' PETITION FOR THE ISSUANCE OF UPDATED/REISSUED LETTERS ROGATORY TO TAKE DEPOSITION OUT OF STATE AND NOW, comes Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's, by and through its attorneys, Thomas, Thomas and Hafer, LLP, and hereby petitions the Court in accordance with 42 Pa. C.S. §5325 for the issuance of updated/reissued Letters Rogatory for the purpose of requesting the aid of the Courts in the state of Virginia and in support thereof avers as follows: 1. The above-captioned action is presently pending before this Honorable Court, arising out of an alleged altercation occurring outside Petitioner's restaurant. 2. The police report arising from this matter identifies Frank Bair as a witness to the alleged altercation. 3. Petitioner seeks to take the deposition of Frank Bair. Mr. Bair resides at 960 Old Cutler Road, Virginia Beach, Virginia 23454. 4. To be able to take the deposition of Mr. Bair, Petitioner desires to cause a Subpoena to be issued to Frank Bair at the aforementioned address, compelling him to attend a Deposition. 5. Petitioner believes and therefore avers that the taking of Mr. Bair's deposition is necessary for the proper defense of this matter, as he is believed to have information pertinent to the same regarding the alleged altercation. 6. This Honorable Court is authorized to issue the Letters Rogatory requested herein pursuant to 42 Pa. C.S. §5325. 7. Judge Ebert of this Honorable Court issued Letters Rogatory on February 20, 2008, a copy of which is attached hereto as Exhibit A. 8. Upon submitting the same to the appropriate Court of Virginia, Petitioner was advised that the date for the deposition could not be changed without the issuance of updated/re-issued Order for Letters Rogatory, and that Petitioner needed to submit three (3) certified copies of the same. 9. Petitioner hereby petitions this Honorable Court to issue updated/re- issued Order for Letters Rogatory. 10. Petitioner also includes three (3) additional copies of the Proposed Order, as the Virginia Beach Circuit Court has advised that Petitioner must submit three (3) certified copies of said Order. 11. Upon signing of said Orders, it is respectfully requested that the Court transmit the same to the Prothonotary for certification. 12. Upon issuance of said Letters Rogatory, Petitioner will cause to be filed with the Circuit Court of Virginia Beach the Letters Rogatory in requesting a Subpoena for Mr. Bair's deposition, to be scheduled for July 31, 2008, commencing at 10 a.m. 13. Petitioner will provide all parties herein with a copy of this Honorable Court's Order re-issuing the Letters Rogatory. 14. Pursuant to Local Rules, concurrence was sought in the instant Petition from all counsel of record, as set forth on the Certification of Concurrence Sought. WHEREFORE, Petitioner Cedar Cliff Inn, Inc. d/b/a Gullifty's, respectfully requests that the Court re-issue Letters Rogatory to the appropriate judicial authorities in the state of Virginia for the purpose of securing the attendance of Frank Bair at a deposition by Subpoenas to be issued by the appropriate judicial authorities in the state of Virginia and served on Frank Bair as set forth hereinabove. Respectfully submitted, THOMAS, THOW & D , n quire ;1D #689 e mson, Esqu ire # 508 North Front Street, P. O. Box 999 Harrisburg, PA 17108 Date: (717) 255-7644 (p CERTIFICATE OF CONCURRENCE SOUGHT: I, Corey J. Adamson, Esquire, of the law firm of Thomas, Thomas and Hafer, LLP, hereby certify that counsel of record were contacted regarding concurrence in the preceding Petition. As all counsel of record concurred in the prior Petition, it is reasonably believed that all counsel of record concur in the instant Petition, and additionally they agree upon the date for the deposition of Mr. Bair. Pro Se Defendants Anthony E. Smith and John G. Williams were unable to be reached regarding the preceding Petition. Date: 6 " /I - 0 9 CERTIFICATE OF SERVICE I, Sherry Hauenstein, secretary of the law firm of Thomas, Thomas & Hafer, LLP, attorney for Defendant, Cedar Cliff, Inc. d/b/a Gullifty's hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: George B. Faller, Jr., Esquire Christopher E. Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 (Counsel for Plaintiff) Dennis J. Bonetti, Esquire 418 Lamp Post Lane Camp Hill, PA 17011 (Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc.) Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP 6; "" 'Oib ?- S Hauenstein Date: 6-1/ -p 8 536464.2 Exh,b?? ? JOHN F. BURKE and SHARON BURKE, h/w, IN THE COURT OF COMIAON PLE/-,,S CUMBERLAND COUNTY, PA Plaintiffs. V. CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. JURY TRIAL DEMANDED ORDER FOR LETTER ROGATORY TO THE APPROPRIATE AUTHORITY OF VIRGINIA BEACH, VIRGINIA On this day of 2008, the Petition for Letter Rogatory to the State of Virginia of Cedar Cliff Inn, Inc. d/b/a Gullifty's comes before the Court. The Court, finds as follows: 1 Individual Frank Bair, residing in the State of Virginia, may possess infDrrnation necessary and of interest to the subject litigation. 2. The deposition of Frank Bair cannot be compelled except pursuant to subpoena issued from the State of Virginia. 3. In order to secure the deposition of Frank Bair, whose last known address is 857 Old Cutler Road, Virginia Beach, Virginia 23,454, this Court's commission is necessary and appropriate to procure the issuance of the subpoena in the State of Virginia. 4. It is therefore requested that Your Honorable Court assist this Court in serving the interests of justice by issuing and serving a subpoena on Frank: Bair, requiring him to be present at his deposition at Your Courthouse in Virginia Beach, Virginia on June 19, 2008 at 10.00 a.m. It is therefore ORDERED, ADJUDGED, and DECREED that Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's' Petition for Letter Rogatory to the State of Virginia should be and hereby is GRANTED. It is further ORDERED, ADJUDGED, and DECREED, that this Order shall constitute this Court's commission for purposes of having a subpoena for deposition issued in the State of Virginia to Frank Bair. By the Court # .' i -W, Mir, P-lk C ? A h.y . p . ( , r Lf?a / S y JOHN F. BURKE and SHARON BURKE, h/w, h 'OONH 2008 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, V. CIVIL ACTION NO. 2005-3730 Civil Term ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. JURY TRIAL DEMANDED ORDER FOR LETTER ROGATORY TO THE APPROPRIATE AUTHORITY OF VIRGINIA BEACH, VIRGINIA th On this $ day of SW ne.. , 2008, the Petition for Letter Rogatory to the State of Virginia of Cedar Cliff Inn, Inc. d/b/a Gullifty's comes before the Court. The Court, finds as follows: 1 Individual Frank Bair, residing in the State of Virginia, may possess information necessary and of interest to the subject litigation. 2. The deposition of Frank Bair cannot be compelled except pursuant to subpoena issued from the State of Virginia. 3. In order to secure the deposition of Frank Bair, whose last known address is 960 Old Cutler Road, Virginia Beach, Virginia 23454, this Court's commission is necessary and appropriate to procure the issuance of the subpoena in the State of Virginia. 4. It is therefore requested that Your Honorable Court assist this Court in serving the interests of justice by issuing and serving a subpoena on Frank Bair, a ? requiring him to be present at his deposition at Your Courthouse in Virginia Beach, Virginia on July 31, 2008 at 10:00 a.m. It is therefore ORDERED, ADJUDGED, and DECREED that Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's' Petition for Updated/Re-Issued Letters Rogatory to the State of Virginia should be and hereby is GRANTED. It is further ORDERED, ADJUDGED, and DECREED, that this Order shall constitute this Court's commission for purposes of having a subpoena for deposition issued in the State of Virginia to Frank Bair. By the Court ttti t 8 1 S, , C60 6Z :6 i,tiv cz r-inr sccoz 1 a 3i ?+v r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, CASE NUMBER: 05-3730 h/w, ISSUE NUMBER: Plaintiffs V. PLEADING: ANTHONY E. SMITH, CEDAR CLIFF PRAECIPE FOR INN, INC., d/b/a GULLIFTY'S, JOHN G. WITHDRAWAL/ENTRY OF WILLIAMS, CEDAR CLIFF, L.P., and APPEARANCE CLOISTER SHOPPING, INC., Defendants CODE AND CLASSIFICATION: FILED ON BEHALF OF: CLOISTER SHOPPING, INC. and CEDAR CLIFF, L.P, Defendants. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa. ID# 34329 ADAM L. SEIFERTH, ESQUIRE Pa. ID# 89073 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., Defendants CASE NO: 05-3730 PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly withdraw my appearance on behalf of the Defendant, CLOISTER SHOPPING, INC. and CEDAR.CLIFF, L.P., in the above-captioned matter. Respectfully submitted, P.C. BY: DENS J. BONETTI, ESQUIRE Attey for the Defendants A JURY TRIAL IS DEMANDED CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC. PRAECIPE FOR ENTRY OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter my appearance on behalf of the Defendant, CLOISTER SHOPPING, INC. and CEDAR CLIFF, L.P., in the above-captioned matter. Respectfully submitted, BY: CIPRIANI & WERNER, P. ADAM L. Attorney for the Defen n s A JURY TRIAL IS DEMANDED CEDAR CLIFF, L.P. a LOISTER SHOPPING, INC. CERTIFICATE OF SERVICE That counsel for the Defendants, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., hereby certifies that a true and correct copy of its PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mail, pojtage pre- paid, according to the Pennsylvania Rules of Civil Procedure, on the _73Y day of 2008. George Faller Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 W. Darren Powell, Esquire Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 John G. Williams Cedar Cliff Mall 1104 Carlisle Road Camp Hill, PA 17011 Respectfully submitted, CIPRIANI & WERNER, P.C. BY: Jill ADAM L. SEIFERT , EjWDM DENNIS J. BONETTI, E, QUIRE Attorney for the Defendan CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC. CJ s C-- "'s i LO George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON CUMBERLAND COUNTY, PEI No. 05-3730 CIVIL ACTION - LAW N 4 ? cn -P r rz C? 3 - ; r-n : JURY TRIAL OF TWELVE DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiffs certify that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MAR/TSON LAW OFFICES tz- By:_S Christopher E. Rice, Esquire I.D. No. 90916 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: `6- 3 ?G g Attorneys for Plaintiffs A "FAF1LESUientsl11306BurWl)306.2.not.subpoena.1cb\mas Created: 2/2/05 8:05AM Revised: 9/ 11 /08 10.47AM 11306.2 George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3730 CIVIL ACTION - LAW : JURY TRIAL OF TWELVE DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiffs intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. MARTSON LAW OFFICES ?` C By: Christopher E. Rice, Esquire I.D. No. 90916 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 I / 11,0e Attorneys for Plaintiffs Date: / COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND John F. Burk and Sharon Burke, hlw Plaintiffs v. File No. 05-3730 Anthony E. Smith, Cedar Cliff Inn, Inc,, ' d/b/a Gullifty's, John G. Williams, ' Cedar Cliff, L.P., and Cloister Shopping, Inc., Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: LOWER ALLEN TOWNSHIP POLICE DEPARTMENT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All investigative and other records relating to an assault upo. John F. Burke on or.about 1/17/04 at Gullifty's, Lower Allen Township, PA. All investigative, complaints, and other records relating o oli a contacts (including without limitation arrests, investigations, calls for police assistance, complaints, disturbances, intoxication, DUIs, underage drinking, fights, assaults, crimes) related to Gullifty's, Lower Allen Township, PA, between January 1, 1998 and March 1, 2004. at 10 East High Street, Carlisle, PA 17013 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Christopher E. Rice, Esquire ADDRESS: 10 East High Street rarl i0 p. PA 17013 TELEPHONE: 717-243-3341 SUPREMECOURT ID# 90916 ATTORNEY FOR: plaintiffs BY THE COURT: Prothonotary, Civil Division Date: 'Seal of the Court Deputy w ' CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Notice of Intent was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven D. Snyder, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc. Corey J. Adamson, Esquire, THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Cedar Cliff Inn, Inc. d/b/a Gullifty's Mr. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Pro se Defendant MARTSON LAW OFFICES By: tw) . Gu? M Price Ten E t High Street Carlisle, PA 17013 (717) 243-3341 Dated: George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3730 CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiffs certify that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MARTSON LAW OFFICES By: S Christopher E. Rice, Esquire I.D. No. 90916 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: ?p_ 3 _ 0 Attorneys for Plaintiffs ti r F.\FILES\Ciients\I 1306 Burke\11306.2.not.subpoena.latp\ttras Created: 2/2/05 8.05AM Revised: 9/12/08 10.58AM 11306,2 George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3730 CIVIL ACTION - LAW : JURY TRIAL OF TWELVE DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiffs intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. MARTSON LAW OFFICES Date: Cl/1 /Z1 a By: Christopher E. Rice, Esquire I.D. No. 90916 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiffs L ? COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOHN F. BURKE and SHARON BURKE, h/w Plaintiffs v. , File No. 05-3730 ANTHONY E. SMITH, CEDAR CLIFF, INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC., Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: PENNSYLVANIA LIQUOR CONTROL BOARD (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All licensing, investigative, complaints and other records relating to Cedar Cliff, Inn, Inc., d/b/a Gullifty's, 1104 Carlisle Road, Camp Hill, PA 17011.. 10 East High Street, Carlisle, PA 17013 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fad to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Christopher E. Rice, Esquire ADDRESS: 10 East Hitch Street TELEPHONE: (717) 243-x341 SUPREME COURT ID# 90916 ATTORNEY FOR: plaintiffs BY THE COURT: Prothonotary, Civil Division Date: ' Seal of the Court Deputy CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Notice of Intent was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven D. Snyder, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc. Corey J. Adamson, Esquire, THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Cedar Cliff Inn, Inc. d/b/a Gullifty's Mr. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Pro se Defendant MARTSON LAW OFFICES By: M Price Ten E 'At High Street Carlisle, PA 17013 (717) 243-3341 Dated: 00-lPfll c?- 5 lp? ra, i ca ?:, • F:\FILES\Clients\11306 Burke\t 1306.2.mtion.status conf Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3730 CIVIL ACTION -LAW : JUDGE M. L. EBERT, JR. : JURY TRIAL OF TWELVE DEMANDED MOTION FOR STATUS CONFERENCE AND NOW, come the Plaintiffs, John F. Burke and Sharon Burke, by and through their counsel, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby moves this Honorable Court to schedule a Status Conference in the above-referenced matter to schedule deadlines which include, but are not limited to, depositions and pretrial motions. 1. The Plaintiffs are John F. Burke and Sharon Burke. 2. Defendants are Anthony E. Smith, Cedar Cliff Inn, Inc., d/b/a Gullifty's, Cedar Cliff, L.P., and Cloister Shopping, Inc. The parties have determined that John G. Williams is not a proper party to this action and no further action has been taken against him. 3. Plaintiffs filed an action against the Defendants as a result of severe injuries Plaintiff John F. Burke incurred as a result of an incident on January 17, 2004. 4. Plaintiff John F. Burke had undergone over a month of treatment and was hospitalized for that time because of his injuries. It has now been over four years since the incident and Plaintiffs are requesting a status conference in order to schedule certain deadlines for, which include, but are not limited to, depositions and pretrial motions. 5. Counsel for Defendants Cedar Cliff Inn, Inc., d/b/a Gullifty's, Cedar Cliff, L.P., and Cloister Shopping, Inc., have been notified and do not object to this Motion. 6. Defendant Smith has not been located and therefore, concurrence cannot be sought. WHEREFORE, Plaintiffs request this Court schedule a status conference in the above- referenced matter to discuss the above case and schedule the appropriate deadlines in order to move forward without further delay. MARTSON LAW OFFICES Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: ///1D `0 g, CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Motion for Status Conference was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven D. Snyder, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc. Corey J. Adamson, Esquire THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Cedar Cliff Inn, Inc. d/b/a CrulliftyIs Mr. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Pro se Defendant MARTSON LAW OFFICES By: tyasi Price High Street Carlisle, PA 17013 (717) 243-3341 Dated: /( /O 0? Y t NOVA < <U08? JOHN F. BURKE and, IN THE COURT OF COMMON PLEAS OF SHARON BURKE, h/w : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. No. 05-3730 CIVIL ACTION -LAW ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY' S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER JUDGE M. L. EBERT, JR. SHOPPING, INC. Defendants JURY TRIAL OF TWELVE DEMANDED ORDER AND NOW, this ?_?ay of November, 2008, upon consideration of the within Motion, a status conference is scheduled for the day of 2002, at ?.l7 , o'clock, .m., on in Courtroom No. S By the Court, ?%\ I ? \ k J. D ribution: hristopher R. Rice, Esquire Martson Law Offices ?D1°`'en D. Snyder, Esquire Cipriani & Werner Pbwxll, LSq, orey J. Adamson, Esquire Thomas, Thomas & Hafer, LLP J w kl?E X+ir k f 2. C l % 1 ! WTI ? l AON WU JOHN F. BURKE and SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3730 CIVIL ORDER OF COURT AND NOW, this 7th day of January, 2009, after status conference in the above captioned matter in order to establish a case management order, IT IS HEREBY ORDERED AND DIRECTED that: 1. All depositions and discovery in this case are to be completed by May 1, 2009. 2. Mediation shall occur in this case on or before May 30, 2009. 3. Plaintiffs shall file all their expert witness reports in this case by June 1, 2009. 4. Defendants shall file their expert witness reports by July 15, 2009. 5. Counsel shall file all Dispositive Motions in this case on or before August 1, 2009. 6. If Dispositive Motions are filed, they shall be set down for the Argument Court list on or before September 24, 2009. Argument on any Dispositive Motions shall take place at Argument Court on October 14, 2009. By the Court, M. L. Ebert, Jr., J. ? Christopher E. Rice, Esquire Attorney for Plaintiffs ? Steven D. Snyder, Esquire Attorney for Cedar Cliff, L.P. and Cloister Shopping, Inc. ? pws h 101 W. Darren Powell, Esquire Corey J. Adamson, Esquire Attorney for Cedar Cliff Inn, Inc., d/b/a Gullifty's .. Anthony E. Smith, Pro Se Defendant 529 Shakespeare Drive Virginia Beach, VA 23452 bas 'izl Rk W. Darren Powell, Esquire Identification No. 68953 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY' S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve Subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days in advance of this Certificate; 2. No objection to the subpoena has been made; and 3. The subpoena which will be served is identical to the subpoena which is attached to this certificate. THOMAS, THOMAS & HAFER, LLP A )AVW-'41L I(Z'Akeff /&(-- W. Darren Powell, Esquire I.D. Number: 68953 305 North Front Street, P.O. Box 999 Harrisburg, PA 17101 (717) 237-7154 Date: Attorney for Defendant ( (?? Thomas, Thomas & Hafer, LLP 305 N. Front Street, P.O. Box 999 Harrisburg, PA 17108-0999 W. Darren Powell, Esquire Identification No. 68953 (717) 237-7154 Attorney for Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's JOHN F. BURKE and SHARON BURKE, h/w, Plaintiffs, V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 2005-3730 Civil Term JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: District Attorney One Courthouse Square Carlisle PA 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: A complete copy of any and all file materials with regard to Commonwealth of Pennsylvania v. Anthony Smith Docket No. CP-21 -CR-000049902005 to include but not limited to any and all investigative reports statements photographs correspondence and any and all other documents contained in your file. at: Thomas, Thomas & Hafer LLP 305 N Front St P.O. Box 999, Harrisburg PA 17108-0999 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: W. Darren Powell, Esquire ADDRESS: P.U. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 237-7154 SUPREME COURT ID#: 68953 ATTORNEY FOR: Defendant Y T COURT: DATE: 021 D .S Seal of the CoLht P honotarylCler Civ D' ion n Deputy r CERTIFICATE OF SERVICE I, Kate A. Wilhelm, a Paralegal for the law firm Thomas, Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing a copy of the same in the United States mail, first class mail, directed to the addressed as follows, on the date set forth below: Christopher E. Rice, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 John G. Williams P.O. Box 1229 Camp Hill, PA 17011 Stephen D. Snyder, Esquire Cipriani & Werner Suite 201 1011 Mumma Road Lemoyne, PA 17043-1145 Cloister Shopping, Inc. 2555 Kingston Road York, PA 17402 THOMAS, THOMAS & HAFER, LLP Kate A. Wi Dated: I 657053.1 ... C7 ^? ? c° M ? ?- " ' ? 7 ? 1 f r = JOHN F. BURKE and SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3730 CIVIL r ORDER OF COURT AND NOW, this 7th day of January, 2009, after status conference in the above captioned matter in order to establish a case management order, IT IS HEREBY ORDERED AND DIRECTED that: 1. All depositions and discovery in this case are to be completed by May 1, 2009. 2. Mediation shall occur in this case on or before May 30, 2009. 3. Plaintiffs shall file all their expert witness reports in this case by June 1, 2009. 4. Defendants shall file their expert witness reports by July 15, 2009. 5. Counsel shall file all Dispositive Motions in this case on or before August 1, 2009. 6. If Dispositive Motions are filed, they shall be set down for the Argument Court list on ?P Posr M. L. EBERT, JR. JUDGE ?l 02 1A 0004631598 JP ONE COURTHOUSE SQUARE MAILED FROM ZIPC CARLISLE, PA 17013.3387 Anthony Smith 529 Shakespear [;rive Virginia Bea& wA 7*1dr,`) NIXIE 233 CE 1 91 01 RETURN TO SENDER ATTEMPTED - NOT KNOWN UNAOLETO FORWARD MC: 17013 *0419-0009: THOMAS, THOMAS & HAFER, LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG. PA 17108 Todd B. Narvol, Esquire Attorney ID #42136 717-237-7133 Jason C. Giurintano, Esquire Attorney ID #89177 717-237-7157 Attorneys for Defendants Cedar Cliff Inn, Inc. d/b/a Gullifty's JOHN F. BURKE and IN THE COURT OF COMMON PLEAS SHARON BURKE, h/w, CUMBERLAND COUNTY, Plaintiffs, PENNSYLVANIA V. CIVIL ACTION - LAW ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants NO. 05-3730 JURY TRIAL DEMANDED MOTION TO AMEND NEW MATTER OF DEFENDANT CEDAR CLIFF INN, INC. d/b/a GULLIFTY'S Defendant, Cedar Cliff Inn, Inc., d/b/a/ Gullifty's, ("Moving Defendant") hereby files the following Motion to Amend New Matter: Plaintiffs filed an Amended Complaint on or about July 22, 2005, alleging that Plaintiff John Burke was assaulted and injured by Defendant Anthony Smith in a parking lot in the Cedar Crest shopping center, shortly after Mr. Burke and his wife exited Gullifty's. (See Complaint at Count L) 2. Plaintiffs' Complaint also asserts claims of negligence against Moving Defendant. (See id. at Counts IL IV.) 3. On or about November 28, 2005, Moving Defendant filed an Answer with New Matter denying all liability and asserting numerous affirmative defenses. (See Defendant's Answer with New Matter.) The parties subsequently commenced discovery. 4. Recent deposition testimony of two eyewitnesses to the incident-Frank Bair and Michael Meltzer, who were deposed on January 23, 2009-supports the conclusion that either (1) Plaintiff John Burke consented to a physical altercation with Defendant Smith and/or (2) Plaintiff John Burke recklessly exposed himself the harm that he allegedly suffered. Both witnesses testified that they observed Mr. Burke approaching Mr. Smith aggressively in the parking lot, and provoking Mr. Smith to fight, despite Mrs. Burke 's attempts to get her husband to refrain from such unnecessary and risky conduct. Simply put, the testimony elicited in discovery support supports the conclusion that Mr. Burke started a fight with Mr. Smith and that Mr. Smith won the fight. There were no weapons involved. CONSENT 5. Consent to being touched is an absolute defense. See Zeglen v. Miller, 2007 U.S. Dist. LEXIS 96734 (M.D. Pa. 2007) (citing Restatement (Second) of Torts § 892A). In the tortious battery context, "express consent to harmful or offensive touching may be given by words or affirmative conduct, and implied consent may be manifested when a person takes no action, indicating an apparent willingness for the conduct to occur." See Barnes v. American Tobacco Co_, 161 F.3d 127, 148 (3d Cir. 1998) (citing Restatement (Second) Torts § 892 cmt. b & c). The consent must be to the defendant's conduct rather than to its consequences. See Barnes at 148 (citing Prosser & Keeton § 18, at 118). 6. "Consent" is defined by Restatement 2d of Torts, § 892, as follows: "(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. -2- (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact." See Restatement 2d of Torts, § 892. 7. Importantly, one who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it. See Restatement 2d of Torts, § 892A. 8. Based upon the deposition testimony elicited to date, a jury may reasonably infer that any contact between Plaintiff and Defendant Smith was initiated by Plaintiff and/or Plaintiff consented to any such contact. RECKLESSNESS 9. Additionally, a plaintiff is barred from recovery for harm caused by a defendant's tort, where the plaintiff's own culpability is of higher kind than the defendant's culpability. In Elliott v. Philadelphia Transp. Co., 53 A.2d 81, 83 (Pa. 1947), the Pennsylvania Supreme Court held that a plaintiff's contributory negligence would not bar his recovery against a reckless defendant, because the parties' respective culpabilities were of a different kind. In a later case, analyzed under the Pennsylvania Comparative Negligence Act, 42 Pa.C.S. § 7102. the Superior Court held similarly that a negligent tortfeasor's culpability cannot be compared to a reckless tortfeasor's culpability. Krivijanski v. Union Railroad Co., 515 A.2d 933, 938 (Pa.Super. 1986) ('"Comparative negligence attempts to balance two equal forms of conduct and in so doing allocate the cost in terms of whose action was most responsible for the injury. To involve a comparison of unequal forms of conduct would not fit within this scheme.") It follows therefore that a reckless plaintiff could not recover from a negligent defendant. As the evidence here tends to establish (a) that Plaintiff John Burke knew or should have known that provoking a fight with -3- the substantially younger and stronger-appearing Defendant Anthony Smith likely would have resulted in harm to himself and (b) that he recklessly disregarded that risk, Mr. Burke should be barred from recovering any damages against the allegedly negligent parties, such as Gullifty's. 10. Accordingly, in light of deposition testimony describing Plaintiff John Burke's conduct on the night in question, Moving Defendant seeks leave to amend its New Matter, by adding the following paragraphs: "68.1. Based upon the information revealed in discovery, a jury may reasonably infer that any contact between Plaintiff John Burke and Defendant Smith was initiated by Plaintiff and/or Plaintiff consented to any such contact; consequently, Defendant pleads the affirmative defense of consent as a bar to Plaintiffs' recovery against Defendant." "68.2. Based upon the information revealed in discovery, a jury may reasonably infer that Plaintiff Burke knew or should have known of the danger posed to him by Defendant Smith yet recklessly disregarded it and exposed himself thereto; consequently, Defendant pleads the affirmative defense of recklessness as a bar to Plaintiffs recovery against Defendant." A copy of Moving Defendant's proposed Answer with Amended New Matter incorporating new paragraphs 68.1 and 68.2 is attached hereto as Exhibit "A." 11. Pennsylvania Rules of Civil Procedure No. 1033 provides as follows: "A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action. correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted." See Pa.R.Civ.P 1033. 12. An amendment will be denied only in those instances where the amendment will unduly prejudice the adverse party, unfairly surprise the adverse party, or where it contradicts a positive rule of law. Connor v. Allegheny Gen. Hosp.. 501 Pa. 306, 310, 461 A.2d 600, 602 (1983). -4- 13. Plaintiffs will not be prejudiced by permitting the requested amendment, as no trial date has yet been set, and discovery is still ongoing. 14. It is also well established that amendments to pleadings should be liberally permitted. Posternack v. American Casualty Co., 218 A.2d 350, 351-52 (Pa. 1966). 15. Judge Ebert issued a case management order in this case on January 7, 2009. STATEMENT OF NON-CONCURRENCE 16. Plaintiffs' counsel has indicated to undersigned counsel that he does not concur in the instant Motion. WHEREFORE, Moving Defendant respectfully requests that this Honorable Court grant its Motion to Amend New Matter to include the following paragraph: "68.1. Based upon the information revealed in discovery, a jury may reasonably infer that any contact between Plaintiff John Burke and Defendant Smith was initiated by Plaintiff and/or Plaintiff consented to any such contact; consequently, Defendant pleads the affirmative defense of consent as a bar to Plaintiffs' recovery against Defendant." "68.2. Based upon the information revealed in discovery, a jury may reasonably infer that Plaintiff Burke knew or should have known of the danger posed to him by Defendant Smith yet recklessly disregarded it and exposed himself thereto; consequently, Defendant pleads the affirmative defense of recklessness as a bar to Plaintiffs recovery against Defendant." 1 Respectfully s4bmitted, Thomas, Thomas & Hafer, LLP Date: ` J By: Tod arvol Attorne D #42136 Jason C. Giurintano Attorney ID 489177 Attornevs for Defendant -5- CERTIFICATE OF NON-CONCURRENCE On March 26, 2009 the undersigned attempted to contact counsel for Plaintiff via telephone and inform him of the Defendant's intention to file the within Motion to Amend New Matter and sought concurrence in the relief requested. Plaintiff s counsel was not unavailable at that time. Respectfully submitted, Thomas, Thomas & Hafer, LLP ' J Date: 11 By: Todd #42136 Jason C. Giurintano Attorney ID #89177 Attorneys for Defendants Cedar Cliff Inn, Inc. d/b/a Gullifty' -7- THOMAS, THOMAS & HAFEP, LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG. PA 17108 Todd B. Narvol, Esquire Attorney ID #42136 717-237-7133 Jason C. Giurintano, Esquire Attorney ID #89177 717-237-7157 Attorneys for Defendants Cedar Cliff Inn. Inc. d/b/a Gulliftv's JOHN F. BURKE and IN THE COURT OF COMMON PLEAS SHARON BURKE, h/w, CUMBERLAND COUNTY, Plaintiffs, PENNSYLVANIA V. CIVIL ACTION - LAW ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d$/a GULLIFTY'S, JOHN G. NO. 2005-3730 Civil Term WILLIAMS., CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., JURY TRIAL DEMANDED Defendants. NOTICE TO PLEAD TO: PLAINTIFFS JOHN F. BURKE and SHARON BURKE c/o Christopher E. Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 DEFENDANTS CEDAR CLIFF, L. P. AND CLOISTER SHOPPING, INC. Steven D. Snyder, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 You are hereby notified to plead to the enclosed Amended Answer with New Matter and New Matter in the Nature of Crossclaims within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully Date: ! J? v ' By: Thomas, Tfhbmas & Hafer, LLP Todd. ,Ovol Attorney #42136 tAD Jason C. Giurintano Attorney ID 989177 Attorneys for Defendants Cedar Cliff Inn, Inc. d/b/a Gullifty's THOMAS, THOMAS & HAFER, LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG. PA 17108 JOHN F. BURKE and SHARON BURKE, h/w, v. ANTHONY E. SMITH, CEDAR CLIFF INN, INC. d/b/a GULLIFTY' S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P. and CLOISTER SHOPPING, INC., Defendants ANSWER WITH NEW MATTER AND NEW MATTER IN THE NATURE OF CROSSCLAIMS AND NOW comes Defendant Cedar Cliff Inn, Inc, d/b/a Gullifty's, by and through its counsel. W. Darren Powell and Thomas, Thomas & Hafer, LLP, and files this Answer with New Matter to Plaintiff s Complaint, averring and stating as follows: 1. Denied. After reasonable investigation Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of these averments and, therefore, at the same are denied with strict proof thereof demanded. 2. Denied. After reasonable investigation Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of these averments and, therefore, at the same are denied with strict proof thereof demanded. Todd B. Narvol, Esquire Attomev ID #42136 717-237-7133 Jason C. Giurintano, Esquire Attornev ID #89177 717-237-7157 Attorneys for Defendants Cedar Cliff Inn, Inc. d/b/a Gullifty's IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, : CIVIL ACTION - LAW NO. 05-3730 JURY TRIAL DEMANDED 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted only that Defendant, John G. Williams is an in adult individual. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of the remaining averments and, therefore, at the same are denied with strict proof thereof demanded. 7. Admitted in part, denied in part. It is admitted only that Gullifty's is located at the Cedar Cliff Mall. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of the remaining averments and, therefore, the same are denied with strict proof thereof demanded. 8. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of the remaining averments and, therefore, the same are denied with strict proof thereof demanded. 9. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of these averments and, therefore, the same are denied with strict proof thereof demanded. 10. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth or veracity of these averments and, therefore, the same are denied with strict proof thereof demanded. 11. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined that a response hereto is necessary, the same is denied pursuant to Pa. R.C.P. 1029(e). -2- 12. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined that a response hereto is necessary, the same is denied pursuant to Pa. R.C.P. 1029(e). 13. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined that a response hereto is necessary, the same is denied pursuant to Pa. R.C.P. 1029(e). 14. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined that a response hereto is necessary. the same is denied pursuant to Pa. R.C.P. 1029(e). COUNT I - Assault Plaintiffs v. Defendant Smith 15. Paragraphs 1 through 14 of this Answer are incorporated herein by reference as though set forth at length. 16-30. Denied. The averments contained in these paragraphs are directed to a Defendant other than Answering Defendant and, therefore, no response thereto is necessary from Answering Defendant. COUNT II - Assault Plaintiffs v. Defendant Cedar Cliff Inn 31. Paragraphs 1 through 30 of this Answer are incorporated herein by reference as though set forth at length. 32. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). -3- 33. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 34. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 35. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 36. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 37. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 38. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 39. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). -4- 40. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. To the extent it is judicially determined the response thereto is necessary, the same are denied pursuant to Pa. R.C.P. 1029(e). 41. Denied. The averments contained in this paragraph are denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's, demands judgment be entered in its favor and against Plaintiffs, Plaintiffs Complaint be dismissed, with prejudice. COUNT III - Negligence Plaintiffs v. Defendant Williams 42. Paragraphs 1 through 41 of this Answer are incorporated herein by reference as though set forth at length. 43-5 . Denied. The averments contained in these paragraphs are directed to a Defendant other than Answering Defendant and, therefore, no response is required from Answering Defendant. COUNT IV - Negligence Plaintiffs v. Defendant Cedar Cliff and Defendant Cloister 52. Paragraphs 1 through 51 of this Answer are incorporated herein by reference as though set forth at length. 53-61. Denied. The averments contained in these paragraphs are directed to Defendants other than Answering Defendant and, therefore, Answering Defendant is not required to respond to the same. -5- NEW MATTER 62. Plaintiffs' claims may be barred and/or diminished by the applicable statute of limitations. 63. Plaintiffs' claims may be barred and/or diminished by the application of the doctrine of comparative and/or contributory negligence. 64. Plaintiffs have failed to state a claim against Answering Defendant. 65. The harm and damages alleged by Plaintiffs occurred as the result of conduct or omissions of third parties not under the control or supervision of Answering Defendant. 66. Plaintiffs' claims and/or damages may be diminished and/or precluded by the Pennsylvania Motor Vehicle Financial Responsibility Law. 67. Plaintiffs damages may be diminished or precluded by agreements of others to pay the same. 68. The harm and damages alleged by Plaintiff are the result of an intervening superseding act of third parties. "68.1. Based upon the information revealed in discovery, a jury may reasonably infer that any contact between Plaintiff John Burke and Defendant Smith was initiated by Plaintiff and/or Plaintiff consented to any such contact; consequently, Defendant pleads the affirmative defense of consent as a bar to Plaintiffs' recovery against Defendant." "68.2. Based upon the information revealed in discovery, a jury may reasonably infer that Plaintiff Burke knew or should have known of the danger posed to him by Defendant Smith yet recklessly disregarded it and exposed himself thereto; consequently, Defendant pleads the affirmative defense of recklessness as a bar to Plaintiff's recovery against Defendant." -6- WHEREFORE, Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's, demands judgment be entered in its favor and against Plaintiffs, with Plaintiffs Complaint being dismissed, with prejudice. NEW MATTER IN THE NATURE OF A CROSSCLAIM Cedar Cliff, Inn, Inc. d/b/a Guliffty's v. Anthony E. Smith, John G. Williams, Cedar Cl L.P. and Cloister Shopping, Inc. 69. Paragraphs I through 68 of this Answer are incorporated herein by reference as though set forth at length. 70. Answering Defendant incorporates herein as though fully set forth all of the allegations of Plaintiffs Complaint as they pertain to Defendants Anthony E. Smith, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. 71. Answering Defendant denies that it is liable to any party under any theory of law or facts. 72. In the event there is a judgment, verdict or award entered against Answering Defendant, then it is alleged that said judgment, award or verdict is the sole and exclusive result of the liability produce and conduct of Defendant Anthony E. Smith, John G. Williams, Cedar Cliff. L.P. and Cloister Shopping, Inc. 73. In the event that an award, judgment or verdict is entered against Answering Defendant, then it is alleged that Defendants Anthony E. Smith, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. are jointly and severally liable for such award, judgment or verdict or directly liable to Plaintiff for such award, judgment or verdict. 74. In the event that a judgment, award or verdict is entered against Answering Defendant, then it is alleged that Defendant Anthony E. Smith, John G. Williams, Cedar Cliff, L.P. and Cloister Shopping, Inc. are liable to Answering Defendant for indemnification or contribution on all claims set forth in Plaintiffs Complaint. -7- WHEREFORE, Answering Defendant Cedar Cliff Inn, Inc. d/b/a Gullifty's, demands judgment be entered in its favor and against all other Defendants. Respectfully Date: r ~ ,-ck By: Thomas, Thomhs & Hafer, LLP Todd B. grvol Attorney I #42136 Jason C. Giurintano Attorney ID #89177 Attorneys for Defendants Cedar Cliff Inn, Inc. d/b/a Gullifty's -8- VERIFICATION I, Jason G. Giurintano, Esquire, hereby certify that the facts set forth in the foregoing Amended Answer with New Matter and New Matter in the Nature of Crossclaims are true and correct to the best of my knowledge, information and belief, and that I am authorized to execute this verification on behalf of Thomas, Thomas & Hafer, LLP. Date: i -- I By: Respectfully Thomas, Thoma$ and Hafer, LLP Todd arVol Ati rn I #42136 Jason Viurintano Attorney ID #89177 Attorneys for Defendants CERTIFICATE OF SERVICE I do hereby certify that on this day I served a true and correct copy of the foregoing document by first class mail, postage prepaid, addressed to the following: Christopher E. Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Counsel for Plaintiffs Steven D. Snyder, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Counsel for Defendants Cedar Cliff, L.P. and Cloister Shopping, Inc. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Respectfully somitted, Thomas, Thpndas & Hafer, LLP Date: -0 By: Attorney 136 Todd riurii?ntano Jason C. Attorney ID #89177 Attorneys for Defendants Cedar Cliff Inn, Inc. d/b/a Gullifty's -9- CERTIFICATE OF SERVICE I do :hereby certify that on this day I served a true and correct copy of the foregoing document by first class mail, postage prepaid, addressed to the following: Christopher E. Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle. PA 17013 Counsel for Plaintiffs Steven D. Snyder, Esquire Cipriani & Werner 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Counsel for Defendants Cedar Cliff, L.P. and Cloister Shopping, Inc. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Date: cr . - C?/l By: Respectfully submitted, Thomas, ThohYas & Hafer, LLP Todd B. 1r Attorney #42136 Jason C. Giurintano Attorney ID 989177 Attorneys for Defendants Cedar Cliff Inn, Inc. d/b/a Gullifty's -6- F=i_ I 22r3 Ai`,iR 3 F l 1 (i' °'? :i-. .. .. .,1- L+- . • k JOHN F. BURKE and SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3730 CIVIL ORDER OF COURT AND NOW, this 15th day of April, 2009, upon consideration of the Defendant, Cedar Cliff Inn, Inc., d/b/a Gullifty's Motion to Amend New Matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Plaintiffs to show cause why the relief requested should not be granted; 2. The Plaintiffs will file an answer on or before April 30, 2009; 3. Said answer will be forwarded to this Court by the Prothonotary; 4. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendants file an answer to this Rule to Show Cause, the Court will determine if further order or hearing is necessary. By the Court, *t, M. L. Ebert, Jr., J. "! ' 1 d 91 888 60a AbN, It„likv? i r . 4 . ? ristopher E. Rice, Esquire Attorney for Plaintiffs 10 East High Street Carlisle, PA 17013 thony E. Smith, Pro Se Defendant 529 Shakespeare Drive Virgini Beach, VA 23452 teven D. Snyder, Esquire Attorney for Cedar Cliff, L.P. and Cloister Shopping, Inc. 1011 Mumma Road, Suite 201 Lemoyne, PA 17043 Todd B. Narvol, Esquire son C. Giurintano, Esquire Attorney for Cedar Cliff Inn, Inc., d/b/a Gullifty's 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 bas F:\FILES\Clients\11306 Burke\113062.pra6 Created: 811105 2:47PM Revised: 6117/09 2:47PM George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff JOHN F. BURKE and, SHARON BURKE, h/w Plaintiffs V. ANTHONY E. SMITH, CEDAR CLIFF INN, INC., d/b/a GULLIFTY'S, JOHN G. WILLIAMS, CEDAR CLIFF, L.P., and CLOISTER SHOPPING, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-3730 CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above-captioned matter settled and discontinued with prejudice. MARTSON LAW OFFICES Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: 647- 01 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Steven D. Snyder, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Counsel for Cedar Cliff, L.P. and Cloister Shopping, Inc. Todd B. Narvol, Esquire THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Cedar Cliff Inn, Inc. d/b/a CrulliftyIs Mr. Anthony E. Smith 529 Shakespeare Drive Virginia Beach, VA 23452 Pro se Defendant MARTSON LAW OFFICES By: M Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Date: al* o q ALED--Ot''ROE OF THE V' ?. '`OTPGY 2 009 JUN 18 P M 3.5 3