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HomeMy WebLinkAbout05-4214W. Scott Henning, Esquire I.D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax : (717) 233-3029 E-mail: Henning@HHRLow.com KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL D. MITCHELL, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. O S - "/d 14/ v. DELORES FAILOR and ROSS FAILOR, CIVIL ACTION - LAW Defendants NOTICE 01OLLT- l JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 AVISO LISTED HA SIDO DEMANDADOIA EN CORTE. Si usted desea defenderse de las demandas qua se presentan mas adelante an )as siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dies despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando an la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de qua si usted falla de tomar acci6n Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada an la demanda o cualquier otra reclamaci6n o remedio solicitado por at demandante puede set dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes pare usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. St USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 HAN By: W. Scott Henning, Esquire I.D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL D. MITCHELL, Plaintiff V. DELORES FAILOR, and ROSS FAILOR, Defendants Attorney for Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. OS- t_"iv?h CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Kendra C. Mitchell, a minor by and through her natural Parent and Guardian, Michael D. Mitchell, by and through their attorneys, HANDLER, HENNING & ROSENBERG, LLP, by W. Scott Henning, Esquire, and makes the within Complaint against the Defendants, Delores Failor and Ross Failor, and in support thereof aver the following: 1. Plaintiff, Kendra C. Mitchell, is a minor child currently residing with Michael D. Mitchell, her natural parent and guardian at 1893 Ester Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Delores Failor, is a competent adult individual currently residing at 201 Sheaffer Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Ross Failor, is a competent adult individual currently residing at 201 Sheaffer Road, Carlisle, Cumberland County, Pennsylvania 17013. 4. At all times material hereto, Defendants were the owners of and/or had control and possession of a dog that attacked and bit Plaintiff, Kendra C. Mitchell, causing serious and permanent bodily injury. 5. At all times material hereto Defendants maintained a stable for horses and provided horse riding lessons upon their premises. 6. On or about June 15, 2004, Plaintiff, Kendra C. Mitchell, was on the Defendants' premises with her mother for the purposing taking a horse riding lesson, when without provocation, Defendants' dog attacked and bit Plaintiff, Kendra C. Mitchell, on the face above the right eye, causing serious and permanent injuries. 7. As a direct and proximate result of the negligence of Defendants, Delores Failor and Ross Failor, Plaintiff, Kendra C. Mitchell, sustained severe puncture wounds and lacerations above her right eye requiring sutures and a protracted course of medical treatment, which may include plastic surgery procedures in the future. 8. The occurrence of the aforesaid incident and the resultant injuries sustained by Plaintiff, Kendra C. Mitchell, were caused directly and proximately bythe negligence of Defendants, Delores Failor and Ross Failor, generally and more specifically as set forth below: -2- a. In failing to properly secure the dog and in otherwise failing to restrain and control the animal, when the Defendants knew, or should have known, that the dog had a dangerous nature and vicious propensities; b. In failing to provide warning by posting signs that the dog was present on said premises and to be wary of the dog, when the Defendants knew, or should have known of the dog's vicious tendencies; C. In failing to take adequate precautions which may have prevented injury to the Plaintiff, Kendra C. Mitchell, as a result of the dog's actions; d. In failing to secure the dog in an area where anyone near or about the Defendants' premises would not be harmed or affected by the dog's actions, when the Defendants knew, or should have known of the dog's dangerous propensities; and e. In violating the various provisions of the Pennsylvania Dog Law, 3 P.S.§ 459- 101 to 551 and 3 P. S. § 459.502A; § 459-504A; and § 459-505A. 9. As a direct and proximate result of the negligence of Defendants, Plaintiff, Kendra C. Mitchell, suffered serious injuries including, but not limited to, severe puncture wounds and lacerations above her right eye which required immediate medical attention, including sutures. 10. As a direct and proximate result of the negligence of Defendants, Plaintiff, Kendra C. Mitchell, has undergone great physical pain, discomfort, and mental anguish, and she may continue to endure the same for an indefinite period of time in the future to her great physical, emotional, and financial detriment and loss. -3- 11. As a direct and proximate result of the negligence of Defendants, Plaintiff, Kendra C. Mitchell, has been hindered from attending to her daily activities and duties to her great detriment, loss, humiliation, and embarrassment. 12. As a direct and proximate result of the negligence of the Defendants, Plaintiff, Kendra C. Mitchell, and her guardian and parent, Plaintiff Michael D. Mitchell, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention. 13. As a direct and proximate result of the negligence of Defendants, Plaintiff, Kendra C. Mitchell, has suffered a loss of life's pleasures, and may continue to suffer the same in the future to her great detriment and loss. 14. Plaintiff, Kendra C. Mitchell, believes, and therefore avers, that her injuries are permanent in nature, including permanent scarring. WHEREFORE, Plaintiff, Kendra C. Mitchell, a minor by and through her natural Parent and Guardian, Michael D. Mitchell, seeks damages from the Defendants, Delores Failor and Ross Failor, in an amount in excess of the compulsory arbitration limits of Cumberland County, plus costs and such further relief as this Court deems just. Respectfully submitted, Date: 9 - / 'S-k 4-5 -4- HANDLER, HENNING & ROSENBERG, LLP VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the hest of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 1 ?? J I p\ N c> ?3 C 1 uy L_ ?'J (77 r. TIT 17? t o f t c_,3 J - 1 .{ n -- cn ORIGINAL BENNETT, BRICKLIN & SALTZBURG LLP ATTORNEYS FOR DEFENDANTS BY: Paul F. Lantieri, Esquire I.D. No. 22241 222 E. Orange Street Lancaster, PA 17602 (717) 393-4400 KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL E. MITCHELL, vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DELORES FAILOR and ROSS FAILOR DOCKET No. 05-4214 JURY TRIAL DEMANDED ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter our appearance as counsel on behalf of defendants, Delores Failor and Ross Failor on whose behalf a jury trial is demanded. BENNETT, BRICKLIN & SALTZBURG LLP BY: PAUL F. LANTIERI, ESQUIRE Attorney for Defendants, Delores Failor and Ross Failor Dated: September 6, 2005 BENNETT, BRICKLIN & SALTZBURG LLP AT T O R N E YS F O R DEFENDANTS BY: Paul F. Lantieri, Esquire I.D. No. 22241 222 E. Orange Street Lancaster, PA 17602 (717) 393-4400 KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL E. MITCHELL, Vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DELORES FAILOR and ROSS FAILOR DOCKET No. 05-4214 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Paul F. Lantieri, Esquire, hereby certify that a true and correct copy of the foregoing Entry of Appearance and demand for jury trial has been served this date upon all interested counsel by way of United States First Class Mail, postage prepaid, addressed as follows: W. Scott Henning, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 (Counsel for Plaintiffs) 6 141-1 ?j - PAUL F. LANTIERI, ESQUIRE Dated: September 6, 2005 ( l ?? ..) L} . .n r/t _ ?: _ ?;,, , ? . i i. .. G S. ?? i '.; i f1 i ,J .? °.'.7 -< SHERIFF'S RETURN - REGULAR CASE NO: 2005-04214 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MITCHELL KENDRA C ET AL VS FAILOR DELORES 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 FAILOR DELORES DEFENDANT the , at 1625:00 HOURS, on the 24th day of August , 2005 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 by handing to DELORES FAILOR a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service .00 Affidavit .00 Surcharge 10.00 .00 28.00 Sworn and Subscribed to before me this day of oZ o S I A . D . fP otho ry l So Answers: R. Thomas Kline 08/25/2005 HANDLER HENNING ROSENBERG By Sheritt SHERIFF'S RETURN - REGULAR CASE NO: 2005-04214 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MITCHELL KENDRA C ET VS FAILOR DELORES 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 ROSS the DEFENDANT , at 1625:00 HOURS, on the 24th day of August , 2005 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE by handing to ROSS FAILOR 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this _t day of () A.D. rothon y So Answers: R. Thomas Kline 08/25/2005 HANDLER HENNING ROSENBERG By Le?,.C Deputy Sheriff ORIGINAL BENNETT, BRICKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire I.D. No. 22241 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 ATTORNEY FOR DEFENDANTS Delores Failor and Ross Failor KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL D. MITCHELL vs. DELORES FAILOR and ROSS FAILOR COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET No. 2005-04214 JURY TRIAL DEMANDED PRAECIPE TO ISSUE WRIT TO JOIN TO THE PROTHONOTARY: Kindly issue Writ of Summons - Civil Action against Caren Mitchell, 1993 Esther Drive, Carlisle, PA 17013, as an additional defendant in the above-captioned matter. BENNETT, BRICKLIN & SALTZBURG LLP BY: PAUL F. LANTIERI, ESQUIRE Attorney for Defendants, Delores Failor and Ross Failor Dated: October 19, 2005 1 BENNETT, BRICKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire I.D. No. 22241 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL D. MITCHELL vs. DELORES FAILOR and ROSS FAILOR ATTORNEY FOR DEFENDANTS Delores Failor and Ross Failor COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET No. 2005-04214 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE 1, Paul F. Lantieri, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe to Issue Writ of Summons has been served this date upon all interested counsel by way of United States First Class Mail, postage prepaid, addressed as follows: W. Scott Henning, Esquire HANDLER, 14ENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 (Counsel for Plaintif PAUL F. LANTIERI, ESQUIRE Dated: October 19. 2005 2 fJ L: ? C l _ ? ".,J CI: [;..) 1{ ?, Cumberland County, ss : The Commonwealth of Pennsylvania to CAREN MI=LL 1893 ESTHER DRIVE (Name of Additional Defendant) PA 17013 You are notified that DELORES FAILOR AND ROSS FAILOR (Name (s) of Defendant (s) ) has (have) joined you as an additional defendant in this action, which you are re- quired to defend. Date OCTOBER 24, 2005 /? tlhnn By Deputy (SEAL) 0 H ? NN O7 W ?! W ?CC''?7g77 H N O ? O ? ? H r•O? f]H O HenZz Y O o, w z-H J H t" OHa,? ?z a a o' m 0 I H CC t' to 3 ? ??- C1 a P H C H H . H ? ? `Ll r H H I LC ro SHERIFF'S RETURN - REGULAR CASE NO: 2005-04214 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MITCHELL KENDRA C ET AL VS FAILOR DELORES ET AL DOUGLAS RUZANSKI , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT TO ADD'L DEFEN MITCHELL CAREN was served upon the ADD'L DEFENDANT, at 2056:00 HOURS, on the 7th day of November , 2005 at 1893 ESTHER DRIVE CARLISLE, PA 17013 CAREN MITCHELL by handing to a true and attested copy of WRIT TO ADD'L DEFEN. together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge So Answers: 18.00 4.80 .37 10.00 R. Thomas Kline nn Sworn and Subscribed to before me this 16 ? day of Yl?ruaw.Fi-<? it /IA. Prot o ary 11/09/20 BENNETT By: ORIGINAL BENNETT, BRICKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire I.D. No. 22241 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL D. MITCHELL vs. DELORES FAILOR and ROSS FAILOR To the within named parties, you are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. `& j(-?L4?c PAUL F. LAN'rIERI, ESQUIRE ATTORNEY FOR DEFENDANTS Ross and Delores Failor COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET No. 2005-04214 JURY TRIAL DEMANDED ANSWER OF DEFENDANTS DELORES FAILOR AND ROSS FAILOR TO COMPLAINT WITH NEW MATTER 1. Admitted in part and denied in part. It is admitted that Kendra C. Mitchell is a minor. As to the remaining averments, answering defendants are without knowledge or information sufficient to form a belief as to the truth of same and if relevant, proof is demanded. 2, 3. Admitted. 4. Admitted in part and denied in part. It is admitted only that answering defendants owned and possessed a 17 year old Australian shepherd dog. It is admitted that the minor plaintiff stated that the dog bit her. It is denied that the dog attacked the minor plaintiff. 5. Admitted in part and denied in part. It is admitted only that answering defendants maintained a stable for horses. It is denied that they provided horse riding lessons upon their premises. 6. Denied as stated. On the date stated, the minor plaintiff's mother, Karen Mitchell, was on defendants' premises for her own purposes which included taking care of her horses. Mrs. Mitchell arranged to have someone provide her with a riding lesson and Mrs. Mitchell either directed the minor plaintiff into a stable or allowed her to go there. Answering defendants did not arrange Mrs. Mitchell's horse riding lesson. It is denied that defendants' dog attacked the minor plaintiff. As to the remaining averments, they are denied and at issue pursuant to Pennsylvania Rule of Civil Procedure 1029. 7-14, inclusive. Denied. The averments of these paragraphs are deemed to be denied and at issue pursuant to Pennsylvania Rule of Civil Procedure 1029 and if relevant, proof is demanded. Defendants specifically deny any and all negligence on their part and further deny that any act or omission on their part caused the minor plaintiff's injuries. WHEREFORE, defendants Ross Failor and Delores Failor respectfully request that judgment be entered in their favor. NEW MATTER 15. Plaintiffs' claims are barred or limited under the Pennsylvania Comparative Negligence Act. 16. Plaintiffs' claims are barred to the extent the evidence establishes that plaintiffs assumed the risk of the injuries alleged. 17. On information and belief, it is averred that at all times material hereto, the minor plaintiff was in the joint custody and control of Karen Mitchell and Michael D. Mitchell. 18. On information and belief, it is averred that at all times material hereto, Karen Mitchell and Michael D. Mitchell were husband and wife and natural parents and guardians of Kendra C. Mitchell. 2 t9. By virtue of his joint custody of Kendra Mitchell with Karen Mitchell, plaintiff Michael D. Mitchell is chargeable with and responsible for any negligence on the part of Karen Mitchell in the care and control of Kendra Mitchell and accordingly, Michael Mitchell's claims are barred or reduced under the Pennsylvania Comparative Negligence Act. 20. Moreover, or in the alternative, Michael Mitchell was negligent in permitting the minor plaintiff to go with her mother to defendants' premises when he knew or should have known that Karen Mitchell would not be able to observe their child at all times and for this additional reason, Michael Mitchell's claims are barred or reduced pursuant to the Pennsylvania Comparative Negligence Act. 21. Plaintiffs' claims are barred or reduced to the extent the evidence establishes that the plaintiffs, or either of them, failed to properly or adequately mitigate damages. 22. Plaintiffs' complaint fails to set forth a duty or a cause of action against answering defendants. WHEREFORE, defendants Ross Fai for and Delores Failor respectfully request that j udgment be entered in their favor. BENNETT, BRICKLIN & SALTZBURG LLP BY: k ?,- " PAUL F. LANTIERI, ESQUIRE Attorney for Defendants, Ross and Delores Failor Dated: November 15, 2005 3 VERIFICATION I, Delores Failor, verify that I am a defendant in this action, that I am authorized to make this verification to the foregoing Answer of Defendants Delores Failor and Ross Failor to Complaint with New Matter, and that the facts set forth therein are true and correct to the best of my knowledge, information, and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsifications to authorities. DELORES FAILOR Dated: C O VERIFICATION I, Ross Failor, verify that I am a defendant in this action, that I am authorized to make this verification to the foregoing Answer of Defendants Delores Failor and Ross Failor to Complaint with New Matter, and that the facts set forth therein are true and correct to the best of my knowledge, information, and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsifications to authorities. 7 /rC??o ?CZ CAL ROSS FAILOR Dated: /? S GSA BENNETT, BRICKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire I.D. No. 22241 222 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL D. MITCHELL vs. DELORES FAILOR and ROSS FAILOR VS. CAREN MITCHELL ATTORNEY FOR DEFENDANTS Ross and Delores Failor COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET No. 2005-04214 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Paul F. Lantieri, Esquire, hereby certify that a true and correct copy of the foregoing Answer of Defendants Delores Failor and Ross Failor to Complaint with New Matter has been served this date upon all interested counsel by way of United States First Class Mail, postage prepaid, addressed as follows: W. Scott Henning, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 (Counsel for Plaintiff) Ms. Caren Mitchell 1893 Esther Drive Carlisle, PA 17013 J"( PAUL F. LANTIERI, ESQUIRE Dated: November 15, 2005 6 (?) ?i ;J C ?; -rt _''(:: -? - ? I1= '- +J _,.? _? v ??-: _. -. W. Scott Henning, Esquire I.D.#32298 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238.2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: Henning@hhrlaw.com KENDRA C. MITCHELL, a minor by IN THE COURT OF COMMON PLEAS and through her natural Parent and CUMBERLAND COUNTY, PENNSYLVANIA Guardian, MICHAEL D. MITCHELL, Plaintiff V. No. 05-4214 DELORES FAILOR, and CIVIL ACTION - LAW ROSS FAILOR, Defendants JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Kendra C. Mitchell, a minor by and through her natural Parent and Guardian, Michael D. Mitchell, by and through their attorneys, HANDLER, HENNING & ROSENBERG, LLP, by W. Scott Henning, Esquire, and reply to Defendants' New Matter as follows: 15. Denied. The allegation set forth in Paragraph 15 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that minor Plaintiff, Kendra C. Mitchell, can be deemed to have been contrbutorily or comparatively negligent as a matter of law. By way of further answer, the Plaintiff denies that she was in any way contributorily or comparativelly negligent, and proof to the contrary is demanded at the trial in this matter. 16. Denied. The allegation set forth in Paragraph 16 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiffs deny that their cause of action should be barred by the Doctrine of the Assumption of the Risk. By way of further answer, the Plaintiffs denythatthe minor Plaintiff can be bound by the Assumption of the Risk Doctrine. Further, the Plaintiffs assert that the minor Plaintiff did not knowingly and voluntarily assume the risk of injury. 17. Admitted. 18. Admitted. 19. Denied. The allegation set forth in Paragraph 19 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that Michael D. Mitchell is chargeable with and responsible for any negligence on the part of Karen Mitchell. By way of further answer, it is denied that Kendra Mitchell's claim should be or can be barred or reduced under the Pennsylvania Comparative Negligence Act because of any negligence on the part of Karen Mitchell, and proof to the contrary is demanded at the trial in this matter. 20. Denied. The allegation set forth in Paragraph 20 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that Michael Mitchell was negligent in permitting the minor Plaintiff to go with her mother to the Defendant's premises, and proof to the contrary is demanded at the trial in this matter. It is specifically denied that minor Plaintiff, Kendra Mitchell's claim for compensatory damages is barred or should be reduced pursuant to the Pennsylvania Comparative Negligence Act, and proof to the contrary is 2 demanded at the trial in this matter. 21. Denied. The allegation set forth in Paragraph 21 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs failed to mitigate their damages, and proof to the contrary is demanded at the trial in this matter. 22. Denied. It is denied that the Plaintiffs' Complaint fails to set forth a duty or cause of action against the Defendants, and proof to the contrary is demanded at the trial in this matter. WHEREFORE, Plaintiffs demand judgment against the Defendants, Delores Failor and Ross Failor, for the relief set forth in their Complaint. DATE Respectfully submitted, HANDLER,H ROSENBERG,LLP W. Scott Henri fg`, t7sgL I.D. #32298 1300 Linglestown Road Harrisburg, PA 17110 717-238-2000 Attorney for Plaintiffs 3 KENDRA C. MITCHELL, a minor by : IN THE COURT OF COMMON PLEAS and through her natural Parent and : CUMBERLAND COUNTY, PENNSYLVANIA Guardian, MICHAEL D. MITCHELL, Plaintiff V. DELORES FAILOR, and ROSS FAILOR, No. 05-4214 CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On the 26" day of January, 2006, 1 hereby certify that a true and correct copy of Plaintiffs Complaint was served upon the following by depositing in U.S. Mail; Paul F. Lantieri, Esq. Bennett, Bricklin & Saltzburg, LLP 222 East Orange Street Lancaster, PA 17602-2915 DATE Respectfully submitted, HANDLER,HE & ROSENBERG, LLP W. Scott Hbn'frthg, Es?( I.D. #32298 1300 Linglestown Road Harrisburg, PA 17110 717-238-2000 Attorney for Plaintiffs VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (cl W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. C Date: W. SCOTT HENNING?. EZQUIRE ? ^' G7 a _ ?R ^ . u^ ? .? (11 - N ..,} ?? ? ? c ?; ' ?:r < ? h} d--' -4 KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL D. MITCHELL, Plaintiff V. DELORES FAILOR, and ROSS FAILOR, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. 05-4214 CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE 1312.1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: W. Scott Henning, Esquire, of Handler, Henning & Rosenberg, LLP, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. The counterclaim of the defendant in the action is N/A The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: W. Scott Henning, Esq., Handler, Henning & Rosenberg, LLP, 1300 Linglestown Road, Harrisburg, PA 17110 and Paul F. Lantieri, Esq., Bennett, Bricklin & Saltzburg, LLP, 222 East Orange Street, Lancaster, PA 17602-2915 WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP By W. Cott H nfiin q I.D. #32298 1300 Lingles wn Roa Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff KENDRA C. MITCHELL, a minor by : IN THE COURT OF COMMON PLEAS and through her natural Parent and : CUMBERLAND COUNTY, PENNSYLVANIA Guardian, MICHAEL D. MITCHELL, Plaintiff V. DELORES FAILOR, and ROSS FAILOR, Defendants No. 05-4214 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On the 7th day of September, 2006, 1 hereby certify that a true and correct copy of the Petition for Appointment of Arbitrators was served upon the following by depositing in U.S. Mail; Paul F. Lantieri, Esq. Bennett, Bricklin & Saltzburg, LLP 222 East Orange Street Lancaster, PA 17602-2915 - - Y: I -?? DATE Respectfully submitted, HANDLER, HEN & ROSENBERG, LLP W. Scott Ii s I.D. #32298 1300 Linglestown R911 Harrisburg, PA 17110 717-238-2000 Attorney for Plaintiffs 7 J- 75, ??? M KENDRA C. MITCHELL, a minor by : IN THE COURT OF COMMON PLEAS and through her natural Parent and : CUMBERLAND COUNTY, PENNSYLVANIA Guardian, MICHAEL D. MITCHELL, Plaintiff V. DELORES FAILOR, and ROSS FAILOR, Defendants : No. 05-4214 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ORDER OF COURT AND NOW,4& 2006, in consideration of the foregoing petition, Esq., & Esq., and ?7. , I/ V C/ 61 Esq., are appointed arbitrators in the above-captioned action as prayed for. By t ourt, J. c? t-- CL- LLJ j i!J `I L;_ ? CV U KENDRA C. MITCHELL, a minor by and: IN THE COURT OF COMMON PLEAS OF through her natural Parent and CUMBERLAND COUNTY, PENNSYLVANIA Guardian, MICHAEL D. MITCHELL, PLAINTIFFS V. DELORES FAILOR and ROSS FAILOR, DEFENDANTS 05-4214 CIVIL TERM ORDER OF COURT I? AND NOW, this I day of October, 2006, the appointment of Roger B. Irwin, Esquire, as chairman on the Board of Arbitrators in the above-captioned case, IS VACATED. Charles H. Stone, Esquire, is appointed in his place. By the C v1 G? Edgar B. Bayley, J. L?Xarles H. Stone, Esquire Court Administrator sal 1 - t dlP.nd-ra C?. d?J +che?l Plaintiff De- (oas Fa+ (or- c4,af Cass Fce I o r- Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania NoC7 - a) y Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. (2 ;?1?1 Signature C?\&Y-i e? j? N?Lbu P- Name (Chairman) Law Firm Addr s City, Zip 4 I a co 701 4: t Signatur Name J.I 0Jf ?o(¢ ) Law Firm 10 WQ_s-? 44 S+. Address Cox &1e, Pft 1-1013 City, zip # 143aa Award ignature P4 t. r& 9 wit l ? A. Name Jo-yass!t. D4??,? Sr?rw..?r Law Firm 3 of /Y.4*XdFr .5'7-0 .087, Address 1".crWX A 17 013 City, Zip * 11431 We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the f//o//llowi award: (Note: If damages for delay are awarded, they shall be separately stated.) Uk r nk A ?LLl,t-.?r o(- -f ? dD6rd?4-,e- . . Arbitrator, dissents. (Insert name if applicable.) Date of Hearing: 7 /? (Chairman) Date of Award: 13 ?P /0 Notice of Entry of Aw rd Now, the day of M jjMh , 20A7__, at : 00 , p.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ 0 35'0.00 By: A I& Prothonotary Deputy oil's M& C= 0 "(. r .., - --i M tiL ? ?? CZ) ORIGINAL BENNETT, BRICKLIN & SALTZBURG LLP BY: Paul F. Lantieri, Esquire 222 EAST ORANGE STREET I.D. No. 22241 LANCASTER, PA 17602 (717) 393-4400 KENDRA C. MITCHELL, a minor by and through her natural Parent and Guardian, MICHAEL D. MITCHELL vs. DELORES FAILOR and ROSS FAILOR VS. CAREN MITCHELL ATTORNEY FOR DEFENDANTS Ross and Delores Failor COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET No. 2005-04214 JURY TRIAL DEMANDED NOTICE OF JUDGMENT TO THE PROTHONOTARY: Kindly enter judgment on the award of the arbitrators entered on March 22, 2007, in favor of Defendants and against Plaintiffs in the captioned action. BENNETT, BRICKLIN & SALTZBURG LLP BY: /I.IAA ?/ [i?lAL LIA PAUL F. LANTIERI, ESQUIRE Attorney for Defendants, Delores and Ross Failor Dated: April 26, 2007 1 aC ?, 44?r'a 0 • i +c?el Plaintiff 1 o re.s Fa+ (or ard Cass R ? ?o r Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania NoOg-,o0-5-- ty a I y Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. Signature C'1 ?V,l e? j?6LJ e- Name (Chairman) Law Firm / Addr s / zc?_7 G ? City, Zip =W a?7a Signatur Name I.Volf (5 W(4 Law Firm 10 w Q s? I? ?G?? ?`?. Address Ca Vs[e. ?fl 1 013 City, Zip # 1?3aa Award r / 7 ? 0 V0,V111f ignature ?-Aas& & ??R1C*? J,4, Name Law Firm {? f E j pA/?R 3 01 IYwOCK&y ST,eer&T• Address x-&d NX P, 4 17 0 V.? City, T Zip * 11431 We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the followiiRg award: (Note: If damages for delay are awarded, they shall be separately stated.) a+(-rtab iA r of +4-L 04'-Pr?- . Arbitrator, dissents. (Insert name if applicable.) Date of Hearing:0 7 Date of Award: J/& /O 7 Notice of I Now, the a? day of M&mh , 20A7 , at : 00 , P.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ jV 350. 00 ?,)/z ?A Z'? - By: Prothonotary Deputy lla !/r ?Q 4?'?i /(Aj t IDh CPO$ W P go. ?ea Qf C? F ' q l c `YQ"y 4d - Y`;