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HomeMy WebLinkAbout05-5082COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT appellee(s) COMMON PLEAS No. 05-5082 CIVIL TERM NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAME OF APPELLANT MAG. DIST. NO. OR NAME OF D.J. ADDRESS OF APPELLANT CITY STATE ZIP CODE , 30 U - l &ree;? s r? n vac MiA) ?1 l/ Pry l 7 all/ DATE OF/JUDGMENT IN THE CASE OF (PLAINTIFF F) j l? C ?f(DEFENDANT) S 13 CLAIM NO. SIGNATURE OF APPELLANT OR HIS ATTORNEY O ENT CV YEAR f.- LT YEAR This block will be signed ONLY when this notation is required under PA. If appellant was Claimant (s e PA R.C.P.J.P. R.C.P.J.P. No. 1008B. No. 1001(6)) in action before district Justice, he This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. I Signature of Prothonotary or Deputy I PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) inaction before District Justice IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. 19SX91991 within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or his attorney or agent RULE: To Name of appellees) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: SEPT 28, __, Year 2005 White Prothonotary Copy Green - Court File Copy Yellow Appelant's Copy Pink Appellee Copy Gold D. J. Copy NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT Signature of Prothonotary or Deputy Proth. - 76 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF _ _ _; ss AFFIDAVIT: I hereby swear or affirm that I served ? a copy of the Notice of Appeal, Common Pleas No. upon the District Justice designated therein on (date of service) year ? by personal service E] by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name on year __, ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. ? and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on _ year ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF YEAR Signature of Affient Signature of official before whom affidavit was made Title of official ra 0 My commission expires on _ year -t i J - CO (Y? COMMONWEALTH OF PENNS' 'ANIA (-nl INTY nF- CDMBERLAND Mag. Dist. No.: 09-3-01 NOTICE 4. JUDGMENT)ITRANSCRIF CIVIL CASE PLAINTIFF: NAME and ADDRESS s" FWHISLER, KENNETH & GWEN <J 366 1 GREENSPRING NZWVILLE, PA 17241 L VS DEFENDANT: NAME and ADDRESS 5KING, DAVID 65 PINE KNOB RD NEWVILLE, PA 17241 MDJ Name: Hon. HAROLD E. BENDER Address: 35 W ORANGE ST SHIPPENSBURG, PA Telephone: (717 ) 532-7676 17257-0361 ATTORNEY FOR PLAINTIFF : MICHAEL T. TRAXLER 36 S HANOVER ST CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: Judgment: Fil Judgment was entered for: ® Judgment was entered against: (Name) xTNGs nAVrn in the amount of $ 134 _ oS on F1 Defendants are jointly and severally liable. F] Damages will be assessed on: This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 $ Portion of Judgment for physical damages arising out of residential lease $ (Date of Judgment) swan/ns (Date & Time) Amount of Judgment $ .00 Judgment Costs $ 134.08 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 134.08 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Z3/-a 5 Date Z71Zt-e-41 ?e"°'?"?- , Magisterial District Judge I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date , Magisterial District Judge L Docket No.: CV-0000221-05 Date Filed: 7/12/05 asg (Name) WBIar,1CIR, 'iCEAfl Z7% z c_mttxN My commission expires first Monday of January, 2006 . SEAL AOPC 315-05 DATE PRINTED: 8/31/05 10:23:03 AM 7 O-n ,;?. '. . , iti l am " , . y ? -?? t s CERTIFICATE OF SERVICE AND NOW, I, Emily Filiberti, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Notice of Appeal by Certified Mail at the following: Mag. District Judge Harold E. Bender 35 West Orange Street P.O. Box 361 Shippensburg, PA 17257 David King 65 Pine Knob Road Newville, PA 17241 Date Emily J. b ? ?'' --a _ -r -,-s ? ? `... , ?;?'? ? _. ; , ' t'r3 , ? ,`, ?, _ ,:`? { ? ? ?? PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF _ y?tAAI-n ss AFFIDAVIT: I hereby swear or affirm that I served c- _ _ ___, upon the District Justice designated therein on a copy of the Notice of Appeal, Common Pleas No. ?S Ut___ _____,upon ?J (date of service) l'1? TR year Z11 Qt bly personal service Qby (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name _ U iu !c-'( or &c? iao-r 21 year , ? by personal service aby (certified) (registered) mail, sender's receipt attached hereto. F1 and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on year ? by personal service n by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS ??A DAY OF 1<fYEAR Sgnafure o/o/{Mial a/ore whom allitlavit was matle CA f. IL/ A 1-1 - Slgnalure o{Alfiant t rile o/o/lbol My commission expires on year "MMONWEA TH OF PENNSYLVANIA Notarial Seal Angela F. Unger, Notary Public Onstown Boro, Franklin County My Commission Expires Oct 7, 2008 Member Pennsylvania As,x,lihn of Notaries r °? C7 c i, - -1 - r'(7 ?1 t m '^ ?C ? COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT NOTICE OP APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. I)!,_ ;0;}.: I_VIL TERM NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAME OF APPELLANT MAG. DIST. NO. OR NAME OF D.J. 1 i ADDRESS OF APPELLANT/ CITY STATE ZIP CODE l I L I I I. -I t/ i i r9 el 44 DATE OF JUDGMENT IN THE C VF OF (PLAINTIFF) (DEFENDANT) , rCf v. r '/. CLAI NO. CV YEAR SIGNATURE OF APPELLANT OR HIS ATTORNEY OR T LT YEAR This block will be signed ONLY when this notation is required under PA. If appellant was Claimant (se PA R.C.P.J.P. R.C.P.J.P. No. 1008B. No. 1001(8)) inaction before district Justice, he This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. Sgnatwe of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J,P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon appellees), to file a complaint in this appeal Name of appellants) (Common Pleas No. XRXXHX% -j within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or his attorney or agent RULE: To , appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: gg 2Ry _, Year 7005 Signature of Prothonotary or Deputy White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink - Appellee Copy Gold - D. J. Copy Proth. - 76 ¦ Complete Items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece,.. or on the front if space permits. 1. Article Addressed to: `(?)C la V-1 (I 65 Pine. 1"a '0d. NC'VDvMe,PA RLL41 A. Signature B. Received by D Agent ? Addressee a of livery 91 _. I D. Is delivery address'Qifferent from aem 11) ? Yes elf YES enter del a ! 'veryaddres below 13 No r l? Qy 3. Service Type a Cl Xertlfied Mail ? Expre53Yv1all ? Registered 15?6etum RecelptfeFA9axbmN@e I ? Insured mail ? C.O.D. 4. Restricted Dellvery4 Fwe Fee) ? yes 2. Article Number (transfer fromseMce labeq PS Form 3811, February 2004 Domestic Return Receipt f02595-02-M-1540 rn - • r . - - Mrlnn?IM FFIG IAL US E r ur) POMP ?- GaNaed Fee 13 - ° C3 ttz W, ° ? R:ehVIc Dellwry Fee (F.rMOreed Mrs Required) M Total Postage & Fees $ `/9Jn JJJ 3 M , ° ° [SOW °Da?d k•n _ j - --------- .... ¦ Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Att h this card to the back of the mailplece, or a front if space permits. 1. Anil messed to: Mai; 35 ,r zst Ora??e St. F.D ',- BoX 3Col shiPP'01-'SbOc?, PA 1-7257 A. Si nat re X _, _/ Agent ssee ? ???J ? Addre B. Received by (Printed Name) COatp of Deliv D. Is delivery address i4t? niiterrl,t? ?Yes If YES, enter deliver address' 1'. ," PNo 6, y < ? i 3. Service Type ?ExpressMail OCer ified Mall , O Registered yrioeturn Receiptfcr%4mhdndise ? Insured Mall ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number (transfer from service (abeo PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M4540I D - t . (Domestic No Insurance Cov erage Provided) M1 to Postage Z $ ^ J 7 C3 CMMed Fee C3 C3 Return Reclept Fee (Endorsement Required) -is ?? .. 1 O Restricted Delivery Fee . SfP f rR (Endorsement Required) ra 7g (1 fr9 Total Postage 8 Fees s t Mln r / o IM D 3 IAAro ld 6 . ?enc? Jsa M1 Sheet, iipt:n6::____ ............................................. oraoearnm. Sj li\,.A- Orrxnoc,.1 *PO- `'3141 KENNETH L. WHISLER and IN THE COURT OF COMMON PLEAS GWEN Y. WHISLER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Docket No. 05-5082 V. CIVIL ACTION - LAW DAVID KING Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice, for any money claimed in the Complaint or for any other claim for relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTYBAR ASSOCIATION 32 SOUTH BEDFORD CARLISLE, PA 17013 (717) 249-3166 OR (800)990-9108 KENNETH L. WHISLER and IN THE COURT OF COMMON PLEAS GWEN Y. WHISLER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Docket No. 05-5082 V. CIVIL ACTION -LAW DAVID KING Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiffs, by and through their attorneys, Abom & Kutulakis, L.L.P., and file this Complaint and in support thereof aver as follows: 1. Plaintiffs, Kenneth Whisler and Gwen Whisler are adult individuals currently residing at 40 Brandt Lane, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant, David King is an adult individual currently residing at 65 Pine Knob Road, Newville, Cumberland County, Pennsylvania 17241. 3. On or about May 30, 2005, Defendant directed his minor child to shoot Plaintiffs' dog. 4. On or about May 30, 2005, acting on Defendant's directive, Defendant's minor child shot Plaintiffs' dog. 5. Plaintiffs' dog did not die immediately after being shot by Defendants' minor child. 6. After Defendant's minor child failed to kill Plaintiffs' dog, Defendant shot Plaintiffs' dog a second time and killed Plaintiffs' dog. 7. Plaintiffs' dog was not on Defendant's property when it was killed. 8. Plaintiffs' dog was standing on a state route at the time it was shot and killed. 9. Defendant directed his minor child and actively participated in the shooting and killing of Plaintiffs' dog. 10. Plaintiffs' dog was not harming or threatening harm to Defendant's person, property, livestock, domestic animals, children or other family at the time Defendant killed Plaintiffs' dog. 11. Defendant shot and killed Plaintiffs' dog without lawful justification. COUNT I: CONVERSION 12. Paragraphs 1 through 11 are incorporated herein as if set forth in full. 13. The dog killed by Defendant was the property of Plaintiffs. 14. Plaintiffs paid a sum of money to acquire ownership of their dog. 15. Defendant knew or had reason to know that the dog he killed was the property of somebody at the time Defendant killed Plaintiffs' dog. 16. Defendant's directives and actions have deprived the Plaintiffs of their rights, use, or possession of their property. 17. Defendant's deprivation of Plaintiffs' rights, use, or possession of their property was done without Plaintiffs' consent. 18. Defendant's deprivation of Plaintiffs' rights, use, or possession of their property was done without lawful justification. 19. The directives and actions of Defendant were the direct cause of the injuries and damages sustained by the Plaintiffs. The nature of the injuries sustained by Plaintiffs include, but are not limited to the loss of use of their dog, property damage, and foreseeable circumstantial damages. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against the Defendant and award damages not in excess of the mandatory arbitration limit. -2- COUNT II: TRESPASS TO CHATTEL 20. Paragraphs 1 through 19 are incorporated herein as if set forth in full. 21. Defendant intentionally dispossessed Plaintiffs of their property by directing his minor child to shoot Plaintiffs' dog and actively shooting the Plaintiffs' dog. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against the Defendant and award damages not in excess of the mandatory arbitration limit. COUNT III: NEGLIGENCE 22. Paragraphs 1 through 21 are incorporated herein as if set forth in full. 23. Defendant has a duty of care not to shoot an animal owned by another person unless Defendant had lawful justification to shoot an animal owned by another person. Defendant owed a duty of care to the Plaintiffs. 24. Defendant's directives and actions fall below the standard of reasonable care under the circumstances. 25. Defendant failed to exercise a reasonable standard of care under the circumstances. 26. Defendant breached the duty or standard of care owed to Plaintiffs as owners of the dog shot and killed by Defendant. 27. Not only did the directives and actions of Defendant fall short of what is reasonably expected under the circumstances, but Defendant's misconduct was intentional, wanton, reckless and egregious. 28. The directives and actions of Defendant were the direct cause of the injuries and damages sustained by the Plaintiffs. The nature of the injuries sustained by Plaintiffs include, -3- but are not limited to the loss of use of their dog, property damage, and foreseeable circumstantial damages. 29. But for the directives and actions of Defendant, Plaintiffs would not have suffered the injuries as described herein. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against the Defendant and award damages not in excess of the mandatory arbitration limit. COUNT IV: GROSS NEGLIGENCE 30. Paragraphs 1 through 29 are incorporated herein as if set forth in full. 31. Not only did the directives and actions of Defendant fall short of what is reasonably expected under the circumstances, but Defendant's directives, actions and misconduct was intentional, wanton, reckless and egregious. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against the Defendant and award damages not in excess of the mandatory arbitration limit. COUNT V: PUNITIVE DAMAGES 32. Paragraphs 1 through 31 are incorporated herein as if set forth in full. 33. The directives and actions of the Defendant were committed willfully, maliciously and so carelessly that they could indicate nothing but a wanton disregard for the rights of the Plaintiffs. 34. The conduct of killing the dog of another without lawful justification is so outrageous as to warrant punitive damages, especially in light of the fact that damages based upon infliction of emotional distress are unavailable under the facts set forth herein. -4- 35. Punitive damages would be appropriate in this case as they are damages purely penal in nature and would appropriately prevent this from future reoccurrences. WHEREFORE, the Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against the Defendant and award damages not in excess of the mandatory arbitration limit to include appropriate punitive damages. Date Respectfully Submitted, ABOM & KUTULAKIS, L.L.P. Michael T. Traxler, Esquire/ Attorney I.D. No. 90961 36 South Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiffs -5- YEW !° ON I, Kenneth L. Whisler, hereby t : 7Fy that the facts set forth in the foregoing Civil Complaint against Vm 1 i King are true and correct to the best of my knowledge, information tnd be i I# I understand that false smtm mts herein ate made subject to the yoWdi ; of 18 Pa.C.S. $4904, relating to unworn falsification to authoddes. Date _' - Kenneth L. Whisler CERTIFICATE OF SERVICE ON THIS, the 18th day of October, 2005, I, Michael T. Traxler, Esquire, counsel for Plaintiff, do hereby certify that I have caused a copy of Plaintiffs Complaint to be served upon the following individuals, by Certified U.S. mail: David King 65 Pine Knob Road Newville, PA 17241 Michael T. Traxler -? ??, <_ ,`., i., _?s ".? ,'i ?? _ ,.j, '. ... ,-. N .,.? LEE ANN WERNER, Plaintiff' v. MICHAEL R. WERNER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5127 CIVIL TERM : CIVIL ACTION -LAW : IN DIVORCE AFFIDAVIT OF ACCEPTANCE OF SERVICE I, Michael R. Werner acknowledge that I received a true and correct copy of a time stamped Complaint in Divorce filed on September 30, 2005 in the above captioned action by first class mail on the // day of October, 2005. Date. /0 - /i - ° Michael R. Werner tv? `. ? -n ;i9;^ ,- r; ; ?. L. -. 4, __ ,? z?; -? KENNETH L. WHISLER and IN THE COURT OF COMMON PLEAS GWEN Y. WHISLER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Docket No. 05-5082 V. CIVIL ACTION - LAW DAVID KING Defendant JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE On October 19, 2005, defendant, David King, accepted service of Plaintiffs' complaint in the above-captioned matter by signing a Certified Mail Receipt. Attached as Exhibit "A" is a copy of the Return Receipt signed by David King on October 19, 2005. O ra ? ?? /?(JK'h? ?? i!A Date Michael T. Traxler, Esquire Exhibit A ¦ Complete items 1, 2, and Also complete item 4 if Restricted Delivery ry is desired. X Signature ? n n 13 i Agent ¦ Print your name and address on the reverse +4/ ? Addressee so that we can return the card to you. S. Received by (Printed Name) C. Dat of D livery ¦ Attach this card to the back of the mailpiece, ds or on the front if space permits . iff f i 1? ? es D. Is delivery address d erent rom tem 1. Article Addressed to: if YES, enter delivery address below: ? No b 2d. (n5 ??rle? o N???I I IGv P"` / 24 I 3 Se Ice T e . yp ! CCertlfied Mail ? Express Mal ? Registered 7I Retum Recelp t7orMmehendise, ? Insured Mail Tj C.O.D. 4. Restricted Delivery! (Extra Fee) ? Yes 2. Article Number (lrensferfrom service label) . PS Forth 3811, February 2004 Domestic Return Receipt 102595-02-M-1640 CERTIFICATE OF SERVICE ON THIS, the 25 h day of October, 2005, I, Michael T. Traxler, Esquire, counsel for Plaintiff, do hereby certify that I have caused a copy ofthe Affidavit of Service to be served upon the following individuals, by Certified U.S. mail: David King 65 Pine Knob Road Newville, PA 17241 Michael T. Traxler ,, ,, ° r T ?? . , 4 ? KENNETH L. WHISLER and GWEN Y. WHISLER, Plaintiffs V. DAVID KING, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-5082 : CIVIL ACTION - LAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT COMES NOW Defendant, David King, by and through his attorney, Sally J. Winder, and files the following preliminary objections to Plaintiffs' complaint: DEMURRER TO COUNT I: CONVERSION, COUNT II: TRESPASS TO CHATTEL, COUNT III, NEGLIGENCE, COUNT IV: GROSS NEGLIGENCE, COUNT V: PUNITIVE DAMAGES 1. Plaintiffs have filed a civil action against defendant, averring that defendant was responsible for shooting and killing their dog. 2. In their complaint, plaintiffs aver that they suffered injuries including loss of use of their dog, property damage, and foreseeable circumstantial damages. 3. It is clear from the types of injury alleged to have been caused by defendant that the damages suffered were liquidated damages, that is, damages capable of determination as to amount, by some measure of calculation, or by some allegation of value of the dog which defendant allegedly shot and killed. 4. Rule 1019(f). Pa. R.C.P., states that "Averments of time, place and items of special damage shall be specifically stated." 5. It is elementary, under Pennsylvania law, that a cause of action cannot stand without a specification of the relief sought. 6. In a cause of action for loss of personal property, there cannot be an element of unliquidated damages. 7. In Counts I through IV of their complaint, plaintiffs fail to aver any real damages; plaintiffs fail to aver any value of the dog shot and killed; plaintiffs fail to aver any value of their loss of use of the dog; plaintiffs fail to aver any value of the foreseeable circumstantial damages they have suffered. 8. For failure to specify what relief they are seeking, plaintiffs' complaint (Counts I through IV) fails to state a claim upon which relief may be granted. 9. Plaintiffs' complaint (Counts I through IV) should be dismissed. 10. Count V of plaintiffs' complaint claims punitive damages against defendant. 11. For plaintiffs to be able to plead and recover punitive or exemplary damages against defendant, they must be able to show that they have suffered real damages through the actions of defendant. 12. Plaintiffs have not shown through their pleadings that they have suffered any real damages at the hands of defendant. 13. Because their complaint nowhere shows that plaintiffs have suffered any real damages at the hands of defendant, plaintiffs' claim for punitive damages (Count V) fails to state a claim upon which relief may be granted. 14. Plaintiffs' complaint (Count V) should be dismissed. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 15. Defendant incorporates by reference herein paragraphs 1 through 14 of these preliminary objections as though set out at length. 16. Rule 1021(a), Pa. R.C.P., specifies that "Any pleading demanding relief shall specify the relief sought." 17. By not specifying in their complaint the amount of damages allegedly caused by defendant's actions, plaintiffs have violated Rule 1021(a). 18. Plaintiffs' complaint should be dismissed. 19. Rule 1019(f), Pa. R.C.P., specifies that "Averments of time, place and items of special damages shall be specifically stated." 20. By not stating the specific amount of monetary damages allegedly caused by defendant's destruction of plaintiffs' personal property, plaintiffs have violated Rule 1019(f). 21. Plaintiffs' complaint should be dismissed. WHEREFORE, for the foregoing reasons, defendant David King requests the Court to dismiss all counts of plaintiffs' complaint. Res ctfully submitted, I Sally J. W' r Attorney fo defendant David King 9974 Molly Pitcher Highway Shippensburg, PA 17257 (717) 532-9476 n} n ?? G , - --, KENNETH L. WHISLER and GWEN Y. WHISLER Plaintiffs V. DAVID KING Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 05-5082 CIVIL ACTION - LAW : JURY TRIAL DEMANDED TO THE PROTHONOTARY OF SAID COURT: PRAECIPE TO WITHDRAW APPEARANCE Please withdraw my appearance on behalf of the Plaintiffs, Kenneth L. Whisler and Gwen Y. Whisler, in the above-captioned matter. Respectfully submitted, DATE 3 ?- o oC?MKX ( Michael T. Traxler, Esquire ID No. 90961 36 South Hanover Street Carlisle, PA 17013 PRAECIPE OF ENTRY OF APPEARANCE Please withdraw my appearance on behalf of the Plaintiffs, Kenneth L. Whisler and Gwen Y. Whisler, in the above-captioned matter. Respectfully submitted, DATE S k4 ABOM& SUTUL4JUS,LLP Kutulakis, Esquire 36 5. Hanover Street Carlisle, PA 17013 ID No. 80411 CERTIFICATE OF SERVICE AND NOW, this -l 4b day of May, 2006, I, Emily J. Filiberti, of ABOM & KUTULAKIS, UP, hereby certify that I did serve a true and correct copy of the foregoing Praecipe to Withdraw Appearance and Ptaecipe of Entry of Appearance by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: David King 65 Pine Knob Road Newville, PA 17241 DATE 5 Z,9/10 (le) L ?• :?7 LCi(,ci `.''tom Emily J. Filib c gi - =r tl MW M v,1 w a co 0 o Curtis R. Long Prothonotary office of the vrotbonotarp CumbPrranb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor nL5 ?4-' CVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573