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Home My WebLink About05-6101G 1 PAGE 1 REPORT : ZDRDOCT First Judicial District RUN DATE 10/13/05 USER ID: BTP CIVIL DOCKET REPORT RUN TIME 03:46 PM CASE ID 050300533 o r ??fT -------------------------------------------------------------------------------- CASE NUMBER CASE CAPTION 050300533 HARRIS VS CARLISLE SPORTS EMPORIUM ETAL FILING DATE COURT LOCATION JURY 09-MAR-2005 AR AC N CASE TYPE: PERSONAL INJURY - OTHER STATUS: TRANSFER TO OTHER JURISDICTION Seq # Assoc Expn Date Type ID 1 APLF A41629 Party Name / Address & Phone No. WEINSTEIN, FREDERICK I 1334 WALNUT ST. 5TH FLOOR, PHILADELPHIA PA 19107 (000)546-7399 2 1 PLF 05168260 HARRIS, KELLY 3041 N 26TH ST PHILADELPHIA PA 19132 3 4 DFT @5168261 CARLISLE SPORTS EMPORIUM INC 29 S MIDDLESEX RD CARLISLE PA 17013 AKA- SPORTS EMPORIUM FASTRACK 4 ADFT A76957 ASHER III, JOHN T SPECTOR GADON & ROSE PC SEVEN PENN CENTER 1635 MARKET STREE, 7TH FLOOR PHILADELPHIA PA 19103 (215)241-8888 (215)241-8844 - FAX Filing Date / Time Docket Entry Date Entered 09-MAR-05 11:14:29 COMMENCEMENT OF CIVIL ACTION 10-MAR-05 WEINSTEIN, FREDERICK I 09-MAR-05 11:14:29 SHERIFF'S SURCHARGE 1 DEFT 10-MAR-05 WEINSTEIN, FREDERICK I 09-MAR-05 11:14:29 PRAE TO ISSUE WRIT OF SUMMONS 10-MAR-05 WEINSTEIN, FREDERICK I PRAECIPE TO ISSUE WRIT OF SUMMONS FILED. WRIT OF SUMMONS ISSUED.ASSESSMENT REQUIRED REPORT : ZDRDOCT First Judicial District USER ID: BTP CIVIL DOCKET REPORT CASE ID 050300533 Filing Date / Time Docket Entry 09-MAR-05 14:50:59 ACTIVE CASE 10-MAR-05 10:57:45 ARBITRATION HEARING SCHEDULED PAGE 2 RUN DATE 10/13/05 RUN TIME 03:46 PM Date Entered 09-MAR-05 10-MAR-05 20-MAY-05 14:06:00 COMPLAINT FILED NOTICE GIVEN 20-MAY-05 WEINSTEIN, FREDERICK I COMPLAINT WITH NOTICE TO DEFEND WITHIN TWENTY (20) DAYS AFTER SERVICE IN ACCORDANCE WITH RULE 1018.1 FILED. 15-JUN-05 16:17:23 ENTRY OF APPEARANCE FILED 16-JUN-05 ASHER III, JOHN T ENTRY OF APPEARANCE OF JOH T. ASHER, III FILED ON BEHALF OF DFT CARLISLE SPORTS EMPORIUM INC. 15-JUN-05 16:17:23 PRELIMINARY OBJECTIONS FILED 16-JUN-05 ASHER III, JOHN T PRELIMINARY OBJECTIONS TO PLAINTIFF(S) COMPLAINT FILED BY DEFENDANT CARLISLE SPORTS EMPORIUM INC. 28-JUN-05 14:04:50 SHERIFF'S SERVICE 29-JUN-05 DEPUTIZED SERVICE OF SUMMONS UPON CARLISLE SPORTS EMPORIUM INC DBA SPORTS EMP FASTRACK DBA BY SHERIFF OF CUMBERLAND COUNTY ON 18-MAR-05. 22-SEP-05 13:17:14 TRANSFER TO OTHER JURISDICTION 22-SEP-05 STIPULATION TO TRANSFER VENUE TO CUMBERLAND COUNTY. APPROVED, JUDGE DYCH 9-21-05 22-SEP-05 13:17:15 NOTICE GIVEN UNDER RULE 236 22-SEP-05 11-OCT-05 16:16:00 PRAECIPE/TRNSFER OUT OF COUNTY 13-OCT-05 ASHER III, JOHN T PRAECIPE TO TRANSFER THE ABOVE CAPTIONED MATTER to CUMBERLAND COUNTY COURT FILED. BTP * * * End of Docket * * * NOV 2 2005 OOUMY BY: COURT OF COMMON PLEAS PHILADELPHIA COUNTY PROTHONOTARY'S OFFICE Phila. Case Number: 533 MARCH 2005 Dear Sir/Madam: By order of the FIRST JUDICIAL DISTRICT, Philadelphia County, COURT OF COMMON PLEAS, the enclosed case(s) are transferred to the COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. Accordingly, I am enclosing all related filings. I would appreciate the return of the attached green receipt addressed to the attention of: THE PROTHONOTARY'S OFFICE CERTIFICATION UNIT ROOM 266 CITY HALL PHILADELPHIA, PA 19107 ATTENTION: JOSEPH MANGINI If you have any questions, please call 215-686-6663. Very truly yours, Joseph Mangini 10-279W SPECTOR GADON & ROSEN, P.C:PESE47En (Ca By: John T. Asher, III, Esquire y005 OCT I 1 PM 3 16 Identification No. 76957 1635 Market Street, 7th Floor a r' of Philadelphia, PA 19103 (215) 241-8840 Attorneys for Defendant Carlisle Sports Emporium, Inc. KELLY HARRIS, V. CARLISLE SPORTS EMPORIUM, INC. COURT OF COMMON PLEAS PHILADELPHIA COUNTY MARCH TERM, 2005 1 NO. 533 PRAECIPE TO TRANSFER TO THE PROTHONOTARY: Please transfer the above-captioned case to Cumberland County pursuant to the Stipulation of the parties, which was approved by Judge Dych on September 22, 2005. A true and correct copy of which is attached hereto as Exhibit "A". GADON & ROSEN, P.C. BY: 0 T. ASHER, III, ESQUIRE ff).pf ndant zjR o t rt VI -z N G o$A S y N c X? bl+ # SPECTOR GADON & ROSEN, P.C. By: John T. Asher, III, Esquire Identification No. 76957 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840 Attorneys for the defendant Carlisle Sports Emporium, Inc. KELLY HARRIS, V. CARLISLE SPORTS EMPORIUM, INC. FILED PRO PROTHY SEP 2 2 2005 R. WEISS COURT OF COMMON PLEAS PHILADELPHIA COUNTY March Term, 2005 r No. 533 ..h i? 9 STIPULATED ORDER WHEREAS, this action arises from an incident that occurred at the Carlisle Sports Emporium on March 9, 2003; WHEREAS, the Carlisle Sports Emporium is a business entity located at 29 S. Middlesex Road, Carlisle, Cumberland County, Pennsylvania; WHEREAS, Plaintiff initiated this action by Writ of Summons on March 9, 2005 in the Philadelphia County Court of Common Pleas with Carlisle Sports Emporium, Inc. d/b/a Sports Emporium Fastrack as the named defendant; WHEREAS, service was made upon the Writ of Summons on March 18, 2005; WHEREAS, the plaintiff filed her Complaint on May 20, 2005, and forwarded same to Carlisle Sports Emporium, Inc. via certified mail; WHEREAS, Carlisle Sports Emporium preliminarily objected to the Plaintiffs Complaint for improper service, improper venue, and forum non conveniens; WHEREAS, counsel for plaintiff, Frederick Weinstein, Esquire, and counsel for Carlisle Sports Emporium, John T. Asher, III, Esquire, have agreed to resolve the defendant's Preliminary Objections by transferring this matter to Cumberland County Court of Common Pleas where it will be listed in the arbitration program. Upon transfer to the Cumberland County Court of Common Pleas, Carlisle Sports Emporium, Inc. will file an Answer with New Matter to Plaintiffs Complaint. AND NOW, this day of 1 2005, intending to be legally bound, counsel for the parties, Frederick Weinstein, Esquire and John T. Asher, III, Esquire, hereby agree as follows: 1. The matter of Harris V. Carlisle Snorts Emporium is hereby transferred from the Philadelphia County Court of Common Pleas to the Cumberland County Court of Common Pleas; 2. The plaintiff shall file a Complaint within 20 days of the date of the transfer requesting that the matter be listed in the arbitration program; 3. Carlisle Sports Emporium, Inc. shall have 20 days after service of the Complaint on defendant's counsel to file an Answer with New AFred&jick I. Weinstein, Esquire Attorney for Plaintiff to Plaintiffs Complaint. ,sher, III, Esquire for Defendant BY THE COURT: J. SPECTOR GADON & ROSEN, P.C. By: John T. Asher, III, Esquire Identification No. 76957 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840 Attorneys for the defendant Carlisle Sports Emporium, Inc. KELLY HARRIS, V. CARLISLE SPORTS EMPORIUM, INC. COURT OF COMMON PLEAS PHILADELPHIA COUNTY- March Term, 2005 No. 533 STIPULATED ORDER 1 :3 WHEREAS, this action arises from an incident that occurred at the Carlisle Sports Emporium on March 9, 2003; WHEREAS, the Carlisle Sports Emporium is a business entity located at 29 S. Middlesex Road, Carlisle, Cumberland County, Pennsylvania; WHEREAS, Plaintiff initiated this action by Writ of Summons on March 9, 2005 in the Philadelphia County Court of Common Pleas with Carlisle Sports Emporium, Inc. d/b/a Sports Emporium Fastrack as the named defendant; WHEREAS, service was made upon the Writ of Summons on March 18, 2005; WHEREAS, the plaintiff filed her Complaint on May 20, 2005, and forwarded same to Carlisle Sports Emporium, Inc. via certified mail; WHEREAS, Carlisle Sports Emporium preliminarily objected to the Plaintiffs Complaint for improper service, improper venue, and forum non conveniens; WHEREAS, counsel for plaintiff, Frederick Weinstein, Esquire, and counsel for Carlisle Sports Emporium, John T. Asher, III, Esquire, have agreed to resolve the defendant's r -ti Preliminary Objections by transferring this matter to Cumberland County Court of Common Pleas where it will be listed in the arbitration program. Upon transfer to the Cumberland County Court of Common Pleas, Carlisle Sports Emporium, Inc. will file an Answer with New Matter to Plaintiffs Complaint. AND NOW, thisli day of ` 2005, intending to be legally bound, counsel for the parties, Frederick Weinstein, Esquire and John T. Asher, III, Esquire, hereby agree as follows: 1. The matter of Harris v. Carlisle Snorts Emporium is hereby transferred from the Philadelphia County Court of Common Pleas to the Cumberland County Court of Common Pleas; 2. The plaintiff shall file a Complaint within 20 days of the date of the transfer requesting that the matter be listed in the arbitration program; 3. Carlisle Sports Emporium, Inc. shall have 20 days after service of the Complaint on defendant's counsel to file an Answer with New Maur to Plaintiff s Complaint. Fred rick I. Weinstein, Esquire John T. Asher, III, Esquire Attorney for Plaintiff me for Defendant BY THE COURT: I 1 SPECTOR GADON & ROSEN, P.C. By: John T. Asher, III, Esquire Identification No. 76957 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840 Attorneys for the defendant Carlisle Sports Emporium, Inc. KELLY HARRIS, V. CARLISLE SPORTS EMPORIUM, INC. FILED PRO PROTHY SEP 2 2 2005 R. WEISS COURT OF COMMON PLEAS PHILADELPHIA COUNTY March Term, 2005 No. 533 S. STIPULATED ORDER WHEREAS, this action arises from an incident that occurred at the Carlisle Sports _ Emporium on March 9, 2003; WHEREAS, the Carlisle Sports Emporium is a business entity located at 29 S. Middlesex Road, Carlisle, Cumberland County, Pennsylvania; WHEREAS, Plaintiff initiated this action by Writ of Summons on March 9, 2005 in the Philadelphia County Court of Common Pleas with Carlisle Sports Emporium, Inc. d/b/a Sports Emporium Fastrack as the named defendant; WHEREAS, service was made upon the Writ of Summons on March 18, 2005; WHEREAS, the plaintiff filed her Complaint on May 20, 2005, and forwarded same to Carlisle Sports Emporium, Inc. via certified mail; WHEREAS, Carlisle Sports Emporium preliminarily objected to the Plaintiff's Complaint for improper service, improper venue, and forum non conveniens; WHEREAS, counsel for plaintiff, Frederick Weinstein, Esquire, and counsel for Carlisle Sports Emporium, John T. Asher, III, Esquire, have agreed to resolve the defendant's Preliminary Objections by transferring this matter to Cumberland County Court of Common Pleas where it will be listed in the arbitration program. Upon transfer to the Cumberland County Court of Common Pleas, Carlisle Sports Emporium, Inc. will file an Answer with New Matter to Plaintiff's Complaint. / AND NOW, this day of \ 2005, intending to be legally bound, counsel for the parties, Frederick Weinstein, Esquire and John T. Asher, III, Esquire, hereby agree as follows: 1. The matter of Harris v Carlisle Sports Emporium is hereby transferred from the Philadelphia County Court of Common Pleas to the Cumberland County Court of Common Pleas; 2. The plaintiff shall file a Complaint within 20 days of the date of the transfer requesting that the matter be listed in the arbitration program; 3. Carlisle Sports Emporium, Inc. shall have 20 days after service of the Complaint on defendant's counsel to file an Answer with New < Fred ick I. Weinstein, Esquire Attorney for Plaintiff to Plaintiff's Complaint. Asher, III, Esquire ? for Defendant BY THE COURT: rf5"? . t `-? ; 2i PPESDITEp Fo 3 Eb'IEuI 05 MAY 20 P,4 21 06 PRO PROTHY GOLDBERG & ASSOCIATES, P.C. BY: FREDERICK I. WEINSTEIN, ESQUIRE Attorney I.D. Number: 41629 1334 Walnut Street Fifth Floor Philadelphia, PA 19107 (215) 732-2000 ARBITRATION ASSESSMENT OF DAMAGES HEARING IS REQUIRED Attorney for Plaintiff KELLY HARRIS 3041 N. 26th Street Philadelphia, PA 19132 V. CARLISLE SPORTS EMPORIUM, INC. D/B/A SPORTS EMPORIUM FASTRACK D/B/A SPORTS EMPORIUM 29 S. Middlesex Road Carlisle, PA 17013 COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY CIVIL TRIAL DIVISION MARCH TERM, 2005 NO. 000533 CIVIL ACTION - COMPLAINT 20 - OTHER PERSONAL INJURY NOTICE You have been sued in court. It you Wien 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 TARE 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 PIND OUT WHERE YOU CAN GET LEGAL HELP. PHILADELPHIA COUNTY BAR ASSOCIATION Lawyer Referral i Information Service 1101 Market Street, 11th F1. Philadelphia, PA 19107 (215) 239-6333 v. t L ?;: cL AV1a0 Le ban demandado a usted an Is torte. Si listed qulere defenderse de eetae demandas expuestas an lac paginae siquientes, usted tiene veinte (20) dial de plato al partir de la fecha de la demanda y Is notification. Baca falta asentar una comparencia escrlta o an persona o con un abogado y entragar a Is torte an forma eecrita sue defenses o sus objeciones a lac demandas an contra de Su persona. Sea avlsado qua si usted no se defiende, la come tomara medidas y puede continuer Is demands an contra Buys sin previo aviso o notification. Ademas, la come puede decidir a favor del demandante y requiere qua usted cumpla con today Las provisione5 do seta demands. Voted puede perder dlnero o Sue prooiedades o otrce derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. ST NO TIENE ABOGADO O $I NO TIENE EL DINERO SUPICIENTE DE PAGAR TAL SERVICIO, VAYA IN PERSONA O LLAME ?OR TELEFONO A LA OFICINA CUYA DIRECCION BE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONOR SE PUEDE CONSEGUIR ASISTENCIA LEGAL, ASOCIACION DE LICENCIADOS DE FILADELFIA Servicio De Referencia E Information Legal 1101 Market Street, 11th F1. Filadelfia, PA 19107 (215) 239-6333 GOLDBERG & ASSOCIATES, P.C. BY: FREDERICK I. WEINSTEIN, Attorney I.D. Number: 41629 1334 Walnut Street Fifth Floor Philadelphia, PA 19107 (215) 732-2000 KELLY HARRIS 3041 N. 26th Street Philadelphia, PA 19132 v. ESQUIRE CARLISLE SPORTS EMPORIUM, INC. D/B/A SPORTS EMPORIUM FASTBACK D/B/A SPORTS EMPORIUM 29 S. Middlesex Road Carlisle, PA 17013 ARBITRATION ASSESSMENT OF DAMAGES HEARING IS REQUIRED Attorney for Plaintiff COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY CIVIL TRIAL DIVISION MARCH TERM, 2005 NO. 000533 CIVIL ACTION - COMPLAINT 20 - OTHER PERSONAL INJURY 1. Plaintiff, Kelly Harris, is an individual maintaining a place of residence at the above stated address. 2. Defendant, Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, and during all times herein was the owner of the above business located at 29 South Middlesex Road, Carlisle, PA 17013. 3. On March 9, 2003, and some time prior thereto, defendant was a business that provided year round interactive family entertainment that included go-cart racing at its facility. 4. On March 9, 2003, at approximately 10 a.m., defendant was responsible for maintaining the condition of the go-cart track and for providing a safe environment for its patrons to participate in this activity. 5. On the aforesaid date and time, defendant provided employees to run said go-cart facility, whose purpose among other things was to provide a safe environment for patrons to participate in this activity. 6. On the aforesaid date and time, plaintiff, Kelly Harris, was a patron at defendant's business and was riding in one of the go-carts at this location on the go-cart track. 7. On the aforesaid date and time, defendant provided personnel to run and supervise said go-cart track. 8. On the aforesaid date and time, while plaintiff was riding in one of the go-carts, there were a number of other individuals also riding in separate cars on said track as well. 9. On the aforesaid date and time, when said go-cart ride was operating, all go-carts were required to travel in the same direction. 10. On the aforesaid date and time, defendant and its employees had the power and ability to disconnect power to the track and to the vehicles in the event of a problem, for the safety of its patrons. 11. On the aforesaid date and time, while plaintiff was operating one of the go-carts, a separate go-cart got spun around and began to travel in the opposite direction of all of the other go-carts and said patron was allowed to continue to travel in the opposite direction for a considerable amount of time. 12. On the aforesaid date and time, while plaintiff was operating the go-cart on said track, the go-cart traveling in the opposite direction came around the curve and struck the go-cart that plaintiff was traveling in head-on, causing serious injuries to her. 13. On the aforesaid date and time at the aforesaid property, defendant negligently, carelessly and/or willfully and wantonly created the condition which caused the injury to plaintiff and/or maintained or possessed the area of said go-cart in a dangerous condition which caused the injury to plaintiff; and the specific acts of negligence include, but are not limited to defendant's failure to: a) Design and/or construct said go-cart track so as to protect against and prevent injury to persons lawfully using said track; b) Maintain the go-cart track so as to protect against and prevent injury to persons lawfully using said track; c) Inspect the go-cart track and its equipment so as to protect against and prevent injury to persons lawfully using said track; d) Adequately warn persons lawfully using said go-cart track of the dangerous and hazardous conditions; e) Adequately and properly warn its patrons to maintain the correct travel direction while using said go-cart track; f) Immediately shut off the power to the go-carts and to the track when they discovered the person traveling in the opposite direction; g) Immediately shut off the power to the go-carts and the track so as to protect against and prevent injury to persons lawfully using said go-cart track. h) Conform to federal, state and local codes, ordinances, regulations and standards regarding design, construction, inspection, maintenance and warning of conditions located on said go-cart track. 14. By reason of the aforesaid negligence, plaintiff sustained or may have sustained injuries to the bones and/or discs, joints, organs, nerves, muscles, ligaments and/or soft tissues of the body, limbs and head, including but not limited to, chondromalacia/meniscal tear of the right knee, cervical, dorsal and lumbar spine sprain and strain encompassing bilateral L4-L5 radiculopathy; plaintiff further sustained or may have sustained psychological and emotional injuries, all of which have caused and/or may in the future continue to cause physical pain, emotional distress, loss of enjoyment of life activities and/or impairment of earning capacity. 15. As the result of the aforesaid injuries, plaintiff has been and may in the future be obliged to expend money for medical care and treatment, medicines, medical appliances, x-rays, hospitals, transportation and other related items, and plaintiff claims reimbursement from defendant. WHEREFORE, plaintiff seeks demand judgment against defendant in an amount not in excess of the jurisdictional limits of compulsory arbitration. GOLDBERG & ASSOCIATES, P.C. By: ao FREDERICK I. WEINSTEIN, Attorney for Plaintiff VERIFICATION The undersigned, having read the attached pleading, verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he/she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleadings are that of counsel, verifier has relied upon counsel in taking this verification. This verification is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. X Y,) Q A ), Wl?_ KELLY HARRIS DATED: S ?? ?? ;'ourt 'of Common Pleas of Philadelphia County For Prothonotary Use Only (Docket Number) Trial Division 000533 Civil Cover Sheet MARCH 2005 PLAINTIFFS NAME DEFENDANTS NAMECARLI SLE SPORTS EMPORIUM, INC. KELLY HARRIS /b/a SPORTS EMPORIUM FASTRACK d/b/a ----- - -- -- - SPORTS EMPORIUM PLAINT I FF S ADDRESS DE( ENDANTS ADDRESS 3041 N. 26th Street 29 S. Middlesex Road Philadelphia, PA 19132 Carlisle, PA 17013 PLAINTIFFS NAME -- -- -- - -- DCI C NDANI 5 NAME --- - - - -- --- --- PLAINTIFF'S ADDRESS DE FE NpgNTSApDRESS Ir n1I AIIU me PLAINIIFF'S ADDRESS TOTAL NUMBER OF PLAINTIFFS DEFENDANT S NAME DEFENDANT'S ADDRESS L_ TTO1 AI. rvp OF DEFENOAMS COMMENCEMENT OF ACTION ? c, plain( ? Pei ( 1-no11 ? N Fic If Appeal 1 ? N t IfSwnmons ? T..... fcl f' m 0(h J 11 CIII(Ions AMOUNT IN CONTROVERSY COVRT PROGRAMS 850.000.00 or les± ® AF6ib; T.11 ? Mass Tort ? Mort Than Ago 00000 ? July ? Savings Action ? Non-Jan' ? Pe(i(iun ? Olhcr CASE TYPE AND CODE (SEE INSTRVCTION51 20 OTHER PERSONAL INJURY STATUTORY OA515 FOR CAUSE OF ACTION (SEE INSTRVCTIONS) n/a RELATED PENDING CASES (LIST BY CASE CAPTION AND DOCKET N UMBER) none TOTHGPROTHONOTARY_ Kindly enter my appearance on behalf of Plaintiff/Petitioner/Appettant: Papers may be served at the address set forth below. IS EASE SUBJECT TO COORDINATION ORDER? yes Nc NAME OF PLAINTIFF'S/PETITIONER'S/APPELLANT'S ATTORNEY ADDRESS (SEE INSI RUCTIONS) FREDERICK I. WEINSTEIN, ESQUIRE 1334 Walnut Street FlBh Floor PHIXIENUMBEN IFA%NUMBER PhiledNphle,PA19107 (215) Sdti_7Qaa I(215) 732-4940 SUPREME COURT IDENTIFICATION NO. ? COILLLTEILC ? Minor Coup Appcal ? Smanory Appcal, ? Seulemalu ? Minors n WIDISarvlvaf E-MAIL ADDRESS DATC 3/8/05 . Tff S MATIY? . VVILL l3L H LAKU BY f. COARD OF <AR3tTR.ATORS A111f IiC7F hAT$AND PLACE ?Tf u?? r U1 ICNEOR 6IC+...: a.lT__._ !.:',+ T i=^EScNfA'T ?? , ? N T off, UU?'S ' YC A TkIAL GLr ? -?,RF.UISt(;N FN f ?'.) d + I i`F ILf. C!1=f1/F?vn ?9?po 150- i S - l rj 111 E W, $TUT apaV A ORE JrdPLi R „ ON I I AV150 nRA DEFEN?F!5?,,... GOLDBERG & ASSOCIATES, P.C. BY: FREDERICK I. WEINSTEIN, ESQUIRE Attorney I.D. Number: 41629 1334 Walnut Street Fifth Floor Philadelphia, PA 19107 (215) 732-2000 KELLY HARRIS 3041 N. 26th Street Philadelphia, PA 19132 v. ARBITRATION AN ASSESSMENT OF DAMAGES HEARING IS REQUIRED Attorney for Plaintiff COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY CIVIL TRIAL DIVISION CARLISLE SPORTS EMPORIUM, INC. D/B/A SPORTS EMPORIUM FASTBACK D/B/A SPORTS EMPORIUM 29 S. Middlesex Road Carlisle, PA 17013 NO MARCH 2005 TERM, 2005 000533 PRAECIPE TO ISSUE WRIT OF SUMMONS 20 - OTHER PERSONAL INJURY .TO,r,TH , PROTHONOTARY: ,lease issue a Writ of Summons against the above captioned defenc{ants. FRED RICK I. WEINSTEI UIRE Attorney for Plaintiff v1 ? CIN 1 _ a. J 41 t V' O W o Q= N C._ ?I V Q O i2 ?r JG _ ? a Q ' N 11 1 A C P. 9] (IT ,Uammaniacalt4 of Pennsl2faantax CITY AND COUNTY OF PHILADELPHIA KELLY HARRIS COURT OF COMMON PLEAS MARCH 2005 No To") vs. CARLISLE SPORTS SPORTS EMPORIUM SPORTS EMPORIUM EMPORIUM, INC. d/b/a FASTRACK d/b/a SUMMONS CITACION Term, 20 CARLISLE SPORTS EMPORIUM, INC. d/b/a SPORTS EMPORIUM FASTRACK d/b/a SPORTS EMPORIUM 29 S. Middlesex Road Carlisle, PA 17013 You are notified that the Plaintiff 2) Usted esta avisado que el demandante(2) KELLY HARRIS Has (have) commenced an action against you. Ha (han) iniciado una accion en contra suya. 000533 JOSEPH H. EVERS Prothonotary (1( Name(s) of Defendant(s) (2) Name(s) of Plaintiff(s) 10-200 (Rev. 6/00( r-?, sL By Date (!a Z.ZJZ)?j roL?> C) j ?f-r w H3 0 (n r ? O d V aF- EZro? --J (D O W M z?O " ? N R7 ? u I ?:r G H ti Q. N F° rt • ;a o 0 C7 Hp o ? U) - nm o rt 4L xcn hd ry • • 0 X, (D H n (D H _ rr p rn M M O N H En cn H ro t9 H ('] z• r? b C H t+] n N CO En n 0) ?d ?o DU ? H OO:U r co ?o ;V ti P. - qHH N cn cn (n r 3: ti (D wt9 M t+7 ?rorom ror00ro ay(D ,OW0 to H H z (D C: a 13 ?Ik 3x cn Oho ??4 zwa v,ro v a H O ? H n Q x? aH cr z ?n SL a tr w rowx ]' o ti] w k (aD z x r Dy rrtH w ? cn m rort ?D rt w N n T N O 3 N O z 0 O O N W Cl) (7 O C O Oil n O O z b a rn I hereby certify that I have served a copy of thispaper upon all other parties or [h attorneys by: To: Plaintiff You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days om service hereof or a default judgment ay be entered gli sisnu._ Vigo OT}?y JUN 16 2005 )N & ROSEN, P.C. BY: John T4 Asher, ID, Esquire v Identification No. 76957 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8840/(215 241-8844 (Facsimile) Attorneys for the defendant Carlisle Sports Emporium, Inc., d/b/a Sports Emporium d/b/a Sports Emporium KELLLY HARRIS, Plaintiff, COURT OF COMMON PHILADELPHIA COUI -o V. CARLISLE SPORTS EMPORIUM, INC., D/B/A SPORTS EMPORIUM FASTBACK, D/B/A SPORTS EMPORIUM, Defendants. MARCH TERM, 2005 NO. 000533 D. GRAHQ PRELIMINARY OBJECTIONS OF THE DEFENDANT CARLISLE SPORTS EMPORIUM, INC. TO THE PLAINTIFF'S COMPLAINT The defendant Carlisle Sports Emporium ("Sports Emporium"), by and through its counsel, Spector Gadon & Rosen, P.C. hereby preliminarily objects to the complaint of the Plaintiff Kelly Harris (the "Plaintiff") and in support thereof avers as follows: g4 1. This matter arises from an incident which allegedly occurred on M ry0'§ m mm q 6 when the Plaintiff allegedly sustained injuries while operating a go-kart at the entegpaxifgl P ??++?fn F: m La & --? i' facility operated by Sports Emporium in Carlisle, Pennsylvania. t(2 r ?f J 3 (?,vJ p 2. The Plaintiff initiated this action by writ of summons on March 9, 2905. x: 0 docket entries attached hereto as Exhibit "A." r 3. The Plaintiff subsequently filed her complaint (the "Complaint") on May 20, 2005. See the Plaintiffs Complaint, a true and correct copy of which is attached hereto as Exhibit "B." 4. The docket entries do not reflect that personal service of the Writ was made upon Sports Emporium. See Exhibit "A." 5. The Complaint was forwarded to Sports Emporium by certified mail on May 20, 2005, and was forwarded to counsel on June 1, 2005. 6. Sports Emporium is a Pennsylvania Corporation with a registered office for service of process located at 36 Kelly Drive, Carlisle, Pennsylvania 17013. See Corporate Records Application from the Pennsylvania Department of State attached hereto as Exhibit "C." Sports Emporium's primary business address is located at 29 South Middlesex Road in Carlisle, Cumberland County, Pennsylvania 17013. 1. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO DISMISS FOR IMPROPER SERVICE AND LACK OF JURISDICTION PURSUANT TO PA.R.C.P. NO. 1028(A)(1). 8. Sports Emporium hereby incorporates paragraphs 1 through 7 above as though were more fully set forth herein at length. 9. There is no indication on the docket that the writ or the complaint were personally served upon Sports Emporium. See Exhibit "A." 10. Pursuant to Pa.R,C.P. No. 424, service of original process upon a corporation shall be made in the following manner: "handing a copy of the original process to any of the following persons provided that person is not a plaintiff in the action: (1) an executive officer, partner or trustee of the corporation or a similar entity; or -2- (2) the manager, the clerk or other person for the time being in charge of any regular place of business or activity of the corporation or any similar entity, or (3) an agent authorized by the corporation or similar entity in writing to receive service of process for it. Pa.R.C.P. No. 424. 11. There is no indication on the docket that Sports Emporium was ever properly served with either the Writ or the Complaint. See Exhibit "A." 12. Service by certified mail does not constitute proper service of original process. 13. Sports Emporium does not have any knowledge at this time of being personally served with either the Writ or the Complaint in this action. 14. The Plaintiffs service of the Complaint upon Sports Emporium is accordingly defective and must be stricken. 15. Since service was not effectuated in accordance with Pa.R.C.P. No. 424, this Court has no jurisdiction over Sports Emporium. WHEREFORE, Sports Emporium respectfully requests that its preliminary objection in the nature of a motion to dismiss for improper service and lack of jurisdiction be sustained, and this action be dismissed as to Sports Emporium with prejudice. II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO DISMISS THE PLAINTIFF'S COMPLAINT FOR IMPROPER VENUE PURSUANT TO PA.R.C.P. NO. 1028(A)(1). 16. Sports Emporium hereby incorporates paragraphs 1 through 15 above as though were more fully set forth herein at length. 17. Venue is improper is Philadelphia County and therefore this action must be dismissed and/or transferred to the proper venue. 18. Plaintiff is a resident of Philadelphia, Pennsylvania. See Exhibit "B," at ¶ 1. -3- r 19. Sports Emporium does not does not maintain a registered office or principal place of business in Philadelphia County. See Exhibit "C." See also Affidavit attached hereto as Exhibit "D." 20. Sports Emporium does not regularly conduct business in Philadelphia County. See Exhibit "D." 21. The incident from which this action arises allegedly occurred at the Sports Emporium's place of business, 29 South Middlesex Road in Carlisle, Pennsylvania, which is located in Cumberland County. See Exhibit "B," at ¶2. See also Exhibit "D." 22. No activity giving rise to the Plaintiffs alleged causes of action against Sports Emporium occurred in Philadelphia County. 23. Pursuant to Pa.R.C.P. No. 2179 venue in a suit against a corporation or similar entity may be brought in and only in: (a) A county where its registered office or principal place of business is located; or, (b) the county where it regularly conducts business; (c) the county where the cause of action arose; or, (d) the county where a transaction or occurrence took place out of which the cause of action arose. See Pa.R.C.P. No. 2179(a). 24. The Plaintiff has failed to establish that venue lies in Philadelphia pursuant to Pa.R.C.P. No. 2179. 25. The proper venue for this action is the Cumberland County Court of Common Pleas. -4- WHEREFORE, Sports Emporium respectfully requests that this Honorable Court sustain its Preliminary Objection to the Plaintiffs Complaint in the nature of a motion to dismiss for improper venue and dismiss the Plaintiffs Complaint with prejudice, or in the alternative, transfer this action from the Philadelphia County Court of Common Pleas to the Cumberland County Court of Common Pleas. III. PRELIMINARY OBJECTION IN THE NATURE OF A PETITION TO TRANSFER FOR FORUM NON CONVENIENS PURSUANT TO PA.R.C.P. NO. 1006(D)(1). 26. Sports Emporium hereby incorporates paragraphs 1 through 25 above as though same were more fully set forth herein at length. 27. The Plaintiff has brought this action in the Philadelphia County Court of Common Pleas for injuries she sustained in an incident which allegedly occurred on March 9, 2003 at the Sports Emporium in Carlisle, Pennsylvania. See Exhibit "B," at ¶2. 28. The Plaintiff is an individual residing in Philadelphia County. 29. The incident giving rise to this action occurred in Cumberland County. 30. No activity giving rise to the Plaintiffs alleged causes of action occurred in Philadelphia County. 31. This case has absolutely no relationship with Philadelphia County whatsoever other than the fact that Plaintiff resides in Philadelphia. 32. Upon information and belief none of the fact witnesses, other than the Plaintiff and potentially her family members, reside in Philadelphia County. 33. Any inspection of the Sports Emporium will take place in Cumberland County. 34. Upon information and belief, all documents relative to this matter in the possession of Sports Emporium are located in Cumberland County. -5- 35. The only connection this case has with Philadelphia County are that 1) the Plaintiff resides in Philadelphia County, and 2) the Plaintiffs counsel is located in Philadelphia County. The Plaintiff is clearly forum shopping. 36. If this Court were to grant the Sports Emporium's Petition to transfer for forum non conveniens, the Plaintiff would not be out of Court. On the contrary, the Plaintiff may proceed in the proper forum, Cumberland County. 37. Pursuant to 42 Pa.C.S.A. § 5322(e), as well as Pa.R.C.P. No. 1006(d)(1), this Court is permitted to dismiss a matter when it finds that, in the interest of substantial justice, the matter should be heard in another forum. 38. In this case, due to the location of Sports Emporium, the location of the witnesses, and evidence, all of which are located in Cumberland County, it would extremely inconvenient to litigate this matter in Philadelphia County. 39. This matter should accordingly be transferred to the Court of Common Pleas of Cumberland County, Pennsylvania. WHEREFORE, Sports Emporium respectfully requests that its petition to transfer this action to the Cumberland County Court of Common Pleas on the basis of forum non-conveniens be granted, and this action be dismissed and transferred to the Court of Common Pleas of Cumberland County, Pennsylvania. submitted, GADON & ROSEN, P.C. Asher, III s for the defendant Carlisle Sports im, d/b/a Sports Emporium Fastrack, d/b/a Sports -6- I CERTIFICATE OF SERVICE I, John T. Asher, III, Esquire, hereby certify that on this 15th day of June, 2005, I served a true and correct copy of the Preliminary Objections of Defendant, Carlisle Sports Emporium, Inc., to Plaintiff's Complaint on plaintiff's counsel by first class, U.S. mail, postage prepaid, addressed as follows: Frederick I. Weinstein, Esquire 1334 Walnut Street 5th Floor Philadelphia, PA 19107 SHERIFF'S RETURN - REGULAR CASE NO: 2005-00216 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HARRIS KELLY VS CARLISLE SPORTS EMPORIUM INC RONALD E. HOOVER ??LCEI 20? s' -n i 9 J?- Qool'3l Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon CARLISLE SPORTS EMPORIUM INC D/B/A SPORTS EMP FASTRACK DBA the DEFENDANT at 0015:13 HOURS, on the 18th day of March , 2005 at SPORTS EMPORIUM CARLISLE, PA 17013 JULIE FULLMER (SUPERVISOR) a true and attested copy of WRIT OF SUMMONS by handing to together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: PPOP11 Docketing x,8.00 Service ??//? 3'1 .0a6s50 Affidavit 2 2 . 0 POSTAGE Q,U4+e .37 . 0 0 24.57 Sworn and Subscribed to before me this CZ?LIay of Wt,(.l I Notary 9 S. MIDDLESEX ROAD By. L?? Deputy Sheriff NOTe IALSE"L ! ,a "t'A A- BREWBAKER, NOTARY PUBLIC Car isle Boro, Cumrerlarid County 'AyComm ssior? Expires April 5, 2005 So Answers: R. Thomas Kline 03/21/2005 GOLDBERG & ASSOCIATES r., ?) '.1 p _.? I .J J ? l ? ?, ..? __ ,. w ?, .. ? U ? ? ?.': ?, ? ? C c? r.? ,. n ?.' + ?? '^"`'se._. mot., I hereby certify that I have served a copy of this paper upon all other parties or their attorneys by: X Re ular Mail Ce fied Mail Ot : GADON & ROSEN, PC By: Jbn T. Asher, III, Esquire Attorney I.D. 76957 7 Penn Center 1635 Market Street, Suite 700 Philadelphia, PA 19103 (215) 241-8888 Fax: (215) 241-8844 To: Plaintiffs You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a efault judgment may be entered ag st you. BY: Attorney for Defendant, Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium KELLY HARRIS Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 2005 - 6101 V. CARLISLE SPORTS EMPORIUM, INC., d/b/a SPORTS EMPORIUM FASTRACK, d/b/a SPORTS EMPORIUM Defendants. ANSWER OF DEFENDANT, CARLISLE SPORTS EMPORIUM, INC. d/b/a SPORTS EMPORIUM FASTRACK. d/b/a SPORTS EMPORIUM TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NOW, comes the defendant, Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium ("Sports Emporium") by and through their counsel, John T. Asher, III, Esquire and the law firm of Spector Gadon & Rosen, P.C, who by way of an Answer to plaintiff's Complaint say that: Denied. Sports Emporium denies paragraph 1 of plaintiff s Complaint pursuant to Pa.R.C.P. No. 1029(e). 2. Admitted. 3. Admitted. 4. Denied. Sports Emporium denies paragraph 4 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 5. Denied. Sports Emporium denies paragraph 5 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 6. Denied. Sports Emporium denies paragraph 6 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 7. Denied. Sports Emporium denies paragraph 7 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 8. Denied. Sports Emporium denies paragraph 8 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 9. Denied. Sports Emporium denies paragraph 9 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 10. Denied. Sports Emporium denies paragraph 10 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 11. Denied. Sports Emporium denies paragraph 11 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 12. Denied. Sports Emporium denies paragraph 12 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 13. Denied. Sports Emporium denies paragraph 13, and subparagraphs (a) through subparagraph (h) therein, of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 14. Denied. Sports Emporium denies paragraph 14 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 2 15. Denied. Sports Emporium denies paragraph 15 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). WHEREFORE, defendant Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium demands that judgment be entered in its favor and against plaintiff, that plaintiff's Complaint be dismissed with prejudice, and that the defendant be awarded costs, attorney's fees and such other relief as the Court deems appropriate. NEW MATTER 16. Plaintiff s Complaint fails to state a cause or causes of action against answering defendant upon which relief can be granted. 17. Plaintiff s claims are barred by the applicable Statute of Limitations and/or the Doctrine of Laches. 18. The incident alleged in plaintiffs Complaint was caused by the conduct and/or omissions of persons or entities other than answering defendants, their agents, servants, workmen and/or employees. 19. The incident alleged in plaintiff s Complaint was caused by persons and/or entities over whom answering defendant exercised no control or right to control. 20. The incident alleged in plaintiffs Complaint was caused by the abnormal and unforeseeable misuse of the product by plaintiff or others over whom answering defendant neither exercised control or had any duty to control. 21. Answering defendant gave all warnings required by law to those individuals to whom it was required to provide such warnings. 22. Plaintiff s claims are barred by the "sophisticated user" and "learned intermediary" defenses. 23. Plaintiff was comparatively negligent so as to totally bar her recovery in this case under the applicable provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S. § 7102; in the alternative, plaintiffs recovery is to be reduced in accordance with the amount of comparative negligence attributed to her. 24. Plaintiff assumed the risk or risk of injury under the circumstances thereby barring her from any recovery under the applicable law. 25. The plaintiff failed to heed warnings and operated the go :kart in a reckless and dangerous fashion. WHEREFORE, defendant Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium demands that judgment be entered in its favor and against plaintiff, that plaintiff s Complaint be dismissed with prejudice and that defendant be awarded costs, attorneys' fees and such other relief that the Court deems just and equitable. GADON & ROSEN, P.C. vTOH . ASHER, III A me for defendant Carlisle Sports Emporium, Inc., /a Sports Emporium Fastrack, d/b/a Sports Emporium VERIFICATION I, John T. Asher, III, Esquire, am the attorney for Carlisle Sports Emporium, Inc. and am authorized to make this verification on its behalf. I have read the foregoing Answer of the Defendant to the Plaintiffs Complaint with New Matter and hereby verify that the statements or denials contained therein are true and correct to the best of my personal knowledge, information and belief. I understand that the statements made therein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to at Dated: ?? SPECTOR GADON & ROSEN, P.C. By: John T. Asher, III, Esquire Identification No. 76957 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8888 Attorney for Defendants, Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium KELLY HARRIS Plaintiff, V. CARLISLE SPORTS EMPORIUM, INC., d/b/a SPORTS EMPORIUM FASTRACK, d/b/a SPORTS EMPORIUM Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 05-6101 - CIVIL TERM PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the Verification of George Seeger of Carlisle Sports Emporium, Inc. for the Verification of John T. Asher, III, Esquire originally attached to the Answer of the Defendant Carlisle Sports Emporium, Inc. with New Matter to Plaintiff's Complaint. Respectfully submitted, GADON & ROSEN ASHER, III, ESQUIRE for Defendants Carlisle-Vorts Emporium and Sports Emporium Fastrack DATED: January 13, 2006 VERIFICATION I, George Seeger, am manager of Carlisle Sports Emporium, Inc. and I am authorized to take this Verification on its behalf. I have reviewed the enclosed Answer to plaintiff's Complaint with New Matter and hereby verify that the facts set forth therein are true and correct to my knowledge, information and belief. I understand that the statements made therein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. ?EEZ EIF GEORGE _, `. r? ( ? ._ vt c - " - -, s J,-1 f? GOLDBERG & ASSOCIATES, P.C. BY: FREDERICK I. WEINSTEIN, ESQUIRE Attorney I.D. Number: 41629 1334 Walnut Street Fifth Floor Philadelphia, PA 19107 (215) 732-2000 KELLY HARRIS Plaintiff, V. CARLISLE SPORTS EMPORIUM, INC. d/b/a SPORTS EMPORIUM FASTRACK d/b/a SPORTS EMPORIUM Defendants Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-6101 PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER 16-25. DENIED. The allegations in paragraphs 16-25 of Defendants' New Matter are conclusions of law to which no response is required under the applicable rules of civil procedure. WHEREFORE, Plaintiff hereby respectfully requests This Honorable Court enter an Order in accordance with the prayer in her Complaint. GOLDBERG & ASSOCIAT P.C. BY: FREDERICK I. WEINSTEIN, ESQUIRE Attorney for Plaintiff, Kelly Harris VERIFICATION The undersigned, having read the attached pleading, verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he/she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleadings are that of counsel, verifier has relied upon counsel in taking this verification. This verification is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. DATED: (O I C? X KELLY HARRIS r• r THE E, l ; ? OY 2063 €U ? 22 Pi" 1: 2 SPECTOR GADON & ROSEN, P.C. By: John T. Asher, III, Esquire Identification No. 76957 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8847 (215) 241-8844 (Fax) KELLY HARRIS V. Attorney for Defendants, Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium Plaintiff, CARLISLE SPORTS EMPORIUM, INC., d/b/a SPORTS EMPORIUM FASTRACK, d/b/a SPORTS EMPORIUM Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 05-6101 - CIVIL TERM PRELIMINARY OBJECTIONS OF THE DEFENDANT, CARLISLE SPORTS EMPORIUM, INC. d/b/a SPORTS EMPORIUM FASTRACK, TO THE PLAINTIFF'S REPLY TO THE DEFENDANT'S NEW MATTER AND NOW, comes the Defendant, Carlisle Sports Emporium, Inc. d/b/a Sports Emporium Fastrack ("Sports Emporium"), by and through its counsel, John T. Asher, III, Esquire and the law firm of Spector Gadon & Rosen, P.C., who preliminarily objects to the Plaintiffs Reply to the Defendant's New Matter as follows: 1. This action arises from an incident which allegedly occurred at the Carlisle Sports Emporium on March 9, 2003 when the Plaintiff, Kelly Harris ("Plaintiff') claims she was injured while operating a go cart at the Sports Emporium. 2. The Plaintiff initiated this action by Writ of Summons on March 9, 2005 in the Court of Common Pleas of Philadelphia under March Term, 2005, No. 533, and subsequently filed her Complaint on May 20, 2005. 691623_1 3. Sports Emporium preliminarily objected to the Plaintiffs Complaint for improper service, improper venue and forum non conveniens. 4. The parties thereafter agreed to transfer the action to Court of Common Pleas of Cumberland County by Stipulation which was filed on August 2, 2005. 5. Thereafter, the action proceeded in the Court of Common Pleas of Cumberland County, with Sports Emporium filing its Answer to the Plaintiffs Complaint with New Matter on December 15, 2005. A true and correct copy of Sports Emporium's Answer with New Matter to the Plaintiffs Complaint is attached hereto as Exhibit "A." 6. The Answer with New Matter was endorsed with a Notice to Plead which directed the Plaintiff to respond to Sports Emporium's New Matter within twenty (20) days in accordance with Pa.R.C.P. No. 1026. See Exhibit "A." 7. Sports Emporium's Answer was served upon counsel for the Plaintiff on December 20, 2005 by letter of same date. A true and correct copy of the transmittal letter is attached hereto as Exhibit "B." 8. Pursuant to Pa.R.C.P. No. 1026, a response to every pleading subsequent to a complaint shall be filed within twenty (20) days of receipt of the preceding pleading. 9. Despite being served with Sports Emporium's Answer with New Matter on December 20, 2005, the Plaintiff filed her Reply three and one-half (3 ''/2) years later, on or about June 18, 20091. A true and correct copy of the Plaintiffs Reply to the Defendant's New Matter is attached hereto as Exhibit "C." It is not clear exactly when the Reply was filed, but it was sent to the Prothonotary on June 18, 2009 according to the transmittal letter. 2 10. Plaintiffs Reply to New Matter is untimely and violates Pa.R.C.P. No. 1026. 11. Not only has the Plaintiff waited three and half (3 ''/2) years to file her Reply, but she has taken no action whatsoever in this case over the course of the last three (3) years. 12. The Plaintiffs failure to prosecute this case and delay in responding to the New Matter of the Defendant has prejudiced the Defendant, since the individuals that were working at the facility on March 9, 20032 are no longer employed by the Sports Emporium and the Sports Emporium believes it will have a difficult time in locating them. 13. Moreover, the general manager, George Seegar, who was employed at the Sports Emporium at the time of the incident and who would have the most knowledge concerning the operation of the go cart track where the incident allegedly occurred, is no longer employed by Sports Emporium. 14. The Defendant has accordingly suffered prejudice by the inaction of the Plaintiff, and as a result, the Plaintiffs Reply to New Matter should be stricken as untimely, and all averments contained in the Sports Emporium's New Mater shall be deemed admitted pursuant to Pa.R.C.P. No. 1029. WHEREFORE, Defendant, Carlisle Sports Emporium, Inc. d/b/a Sports Emporium Fastrack, respectfully requests that the Plaintiffs Reply to the Defendant's New Matter be stricken as untimely. R GADON & ROSEN -w-. H T7AH R, At yfendant, Carli mporium, Inc. d/b/a Sports Empor ck Taylor Hess, Steve Romanoski, Alex Willingham, Adrienne Sheaffer and William Treichler. 3 " ? xhrbiL ]I Fl I hereby certify that 1 have served a copy of this paper upon all other parties or their attorneys by: X Regular Mail Cedified Mail SPE?GADON & ROSEN, PC By: T. Asher, III, Esquire Attorney I.D. 76957 7 Penn Center 1635 Market Street, Suite 700 Philadelphia, PA 19103 (215) 241-8888 Fax: (215) 241-8844 To: Plaintiffs You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a efault judgment may be entered ag st you. BY: Attorney for Defendant, Carlisle Sport s"oriM, Inc., d/b/a Sports Emporium Fastrack, d/(%4 Spans Emporium KELLY HARRIS COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. No. 2005 - 6101 CARLISLE SPORTS EMPORIUM, INC., d/b/a SPORTS EMPORIUM FASTRACK, d/b/a SPORTS EMPORIUM Defendants. ANSWER OF DEFENDANT, CARLISLE SPORTS EMPORIUM, INC. d/b/a SPORTS EMPORIUM FASTRAC d/b/a SPORTS EMPORIUM TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NOW, comes the defendant, Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium ("Sports Emporium") by and through their counsel, John T. Asher, III, Esquire and the law firm of Spector Gadon & Rosen, P.C, who by way of an Answer to plaintiff's Complaint say that: 1. Denied. Sports Emporium denies paragraph 1 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 2. Admitted. 3. Admitted. 4. Denied. Sports Emporium denies paragraph 4 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 5. Denied. Sports Emporium denies paragraph 5 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). 6. Denied. Sports Emporium denies paragraph 6 of plaintiff s Complaint pursuant to Pa.R.C.P. No. 1029(e). 7. Denied. Sports Emporium denies paragraph 7 of plaintiffs Complaint pursuant to Pa.R.C.P. No. 1029(e). 8. Denied. Sports Emporium denies paragraph 8 of plaintiff s Complaint pursuant to Pa.R.C.P. No. 1029(e). 9. Denied. Sports Emporium denies paragraph 9 of plaintiff s Complaint pursuant to Pa.R.C.P. No. 1029(e). 10. Denied. Sports Emporium denies paragraph 10 of plaintiff s Complaint pursuant to Pa.R.C.P. No. 1029(e). 11. Denied. Sports Emporium denies paragraph 11 of plaintiffs Complaint pursuant to Pa.R.C.P. No. 1029(e). 12. Denied. Sports Emporium denies paragraph 12 of plaintiffs Complaint pursuant to Pa.R.C.P. No. 1029(e). 13. Denied. Sports Emporium denies paragraph 13, and subparagraphs (a) through subparagraph (h) therein, of plaintiffs Complaint pursuant to Pa.R.C.P. No. 1029(e). 14. Denied. Sports Emporium denies paragraph 14 of plaintiff s Complaint pursuant to Pa.R.C.P. No. 1029(e). 2 15. Denied. Sports Emporium denies paragraph 15 of plaintiff's Complaint pursuant to Pa.R.C.P. No. 1029(e). WHEREFORE, defendant Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium demands that judgment be entered in its favor and against plaintiff, that plaintiff's Complaint be dismissed with prejudice, and that the defendant be awarded costs, attorney's fees and such other relief as the Court deems appropriate. NEW MATTER 16. Plaintiff's Complaint fails to state a cause or causes of action against answering defendant upon which relief can be granted. 17. Plaintiff's claims are barred by the applicable Statute of Limitations and/or the Doctrine of Laches. 18. The incident alleged in plaintiff's Complaint was caused by the conduct and/or omissions of persons or entities other than answering defendants, their agents, servants, workmen and/or employees. 19. The incident alleged in plaintiff's Complaint was caused by persons and/or entities over whom answering defendant exercised no control or right to control. 20. The incident alleged in plaintiffs Complaint was caused by the abnormal and unforeseeable misuse of the product by plaintiff or others over whom answering defendant neither exercised control or had any duty to control. 21. Answering defendant gave all warnings required by law to those individuals to whom it was required to provide such warnings. 22. Plaintiff's claims are barred by the "sophisticated user" and "learned intermediary" defenses. 3 23. Plaintiff was comparatively negligent so as to totally bar her recovery in this case under the applicable provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S. § 7102; in the alternative, plaintiff's recovery is to be reduced in accordance with the amount of comparative negligence attributed to her. 24. Plaintiff assumed the risk or risk of injury under the circumstances thereby barring her from any recovery under the applicable law. 25. The plaintiff failed to heed warnings and operated the go kart in a reckless and dangerous fashion. WHEREFORE, defendant Carlisle Sports Emporium, Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports Emporium demands that judgment be entered in its favor and against plaintiff, that plaintiff's Complaint be dismissed with prejudice and that defendant be awarded costs, attorneys' fees and such other relief that the Court deems just and equitable. SPEC`TOR GADON & ROSEN, P.C. OHN . ASHER, III A me for defendant Carlisle Sports Emporium, Inc., /a Sports Emporium Fastrack, d/b/a Sports Emporium 4 VERIFICATION I, John T. Asher, III, Esquire, am the attorney for Carlisle Sports Emporium, Inc. and am authorized to make this verification on its behalf. I have read the foregoing Answer of the Defendant to the Plaintiffs Complaint with New Matter and hereby verify that the statements or denials contained therein are true and correct to the best of my personal knowledge, information and belief. I understand that the statements made therein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsification to at Dated: ?? ll - I-- xhj,bj,E )J SPECTOR GADON cot ROSEN, P.C. ATTORNEYS AT LAW NEW JERSEY OFFICE: SEVEN PENN CENTER FLORIDA OFFICE: 1000 LENOLA ROAD 1635 MARKET STREET 360 CENTRAL AVENUE P.O. BOX 1001 SEVENTH FLOOR SUITE 1550 MOORESTOWN, NJ 08057 PHILADELPHIA, PENNSYLVANIA 19103 ST. PETERSBURG, FL 33701 [856] 778-8100 f2151241-8888 [727] 896-4600 FAX: [856] 722-5344 FAx: [215] 241-8844 FAX: [727] 896-4604 W W W.LAWSGR.COM John T. Asher, III E-MAIL jashe ,lawsgr.com December 20, 2005 Frederick I. Weinstein, Esquire 1334 Walnut Street, 5th Floor Philadelphia, PA 19107 RE: Harris v. Carlisle Sports Emporium, Inc., et al Cumberland County Court of Common Pleas No. 2005 - 6101 Our File No. 45688-001 Dear Mr. Weinstein: DIRECT DIAL NUMBER [215]241-8847 Enclosed herewith please find the Answer of the Defendant Carlisle Sports Emporium Inc. to the plaintiffs Complaint with New Matter. Kindly respond to the New Matter within twenty (20) days pursuant to the Pennsylvania Rules of Civil Procedure. If you have any questions or concerns, please contact me. truly yours, JgHN T. ASHER, III JTA/slg Enclosure xhjfbir C LAW OFFICES Goldberg & Weinstein LLC Fifth Floor 1334 Walnut Street Philadelphia, PA 19107 Telephone: 215.732.2000 Fax: 215.732.4940 June 18, 2009 Prothonotary/Clerk of Court Court of Common Pleas - Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Harris v. Carlisle Sports Emporium, Inc., et al Cumberland County Court of Common Pleas No. 2005-6ioi Dear Sir or Madam: Enclosed please find original and 3 copies of Plaintiff s Reply to Defendant's New Matter regarding the above captioned claim. Kindly file the original and return the time stamped copies to my attention in the envelope provided for your convenience. Thank you for your anticipated cooperation. Very truly yours, FRED RICK I. WEINSTEIN FIW/so Enclosures cc John T. Asher, III, Esquire GOLDBERG & ASSOCIATES, P.C. BY: FREDERICK I. WEINSTEIN, ESQUIRE Attorney I.D. Number: 41629 1334 Walnut Street Fifth Floor Philadelphia, PA 19107 (215) 732-2000 Attorney for Plaintiff &hLL Y' HARRIS Plaintiff, V. CARLISLE SPORTS EMPORIUM, INC. d/b/a SPORTS EMPORIUM FASTRACK d/b/a SPORTS EMPORIUM Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-6101 PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER 16-25. DENIED. The allegations in paragraphs 16-25 of Defendants' New Matter are conclusions of law to which no response is required under the applicable rules of civil procedure. WHEREFORE, Plaintiff hereby respectfully requests This Honorable Court enter an Order in accordance with the prayer in her Complaint. GOLDBERG &ASSOCIAT P.C. BY: FREDERICK I. WEINSTEIN, ESQUIRE Attorney for Plaintiff, Kelly Harris VERIFICATION The undersigned, having read the attached pleading, verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he/she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleadings are that of counsel, verifier has relied upon counsel in taking this verification. This verification is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. DATED: (O I C? X L? KELLY HARRIS Jul 07 09 04:13p Sports Emporium 7172588858 P•1 VERIFICATION I, KEITH PLASTERER, am the President of Carlisle Sports Emporium, In:. d!b/a Sports Emporium Fastrack, and am authorized to make this verification on its behk If. I have read the foregoing Preliminary Objections and hereby verify that the facts sei forth therein are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are made subject to the penalties of Pa, C.S.A. § 4904 relating to unsworn falsification to authorities. G iITH PLASTERER Dated: 7 CERTIFICATE OF SERVICE I, John T. Asher, III, hereby certify that a true and correct copy of the foregoing Preliminary Objections of the Defendant to the Plaintiffs Reply to New Matter was served upon the following via U.S. mail, postage prepaid on the date set forth below: Frederick I. Weinstein, Esquire GOLDBERG & WEINSTEIN, LLC 1334 Walnut Stree?5th Floor Philadelphia, PA 19107 JOHN "HER, III G t7) DATED: ? 6916231 1109 JuL -a r ,: T?. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) KELLY HARRIS V. vs. CARLISLE SPORTS EMPORIUM, INC. No. 05-6101 CIVIL Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Frederick I. Weinstein, Esquire ' (Name and Address) 1334 Walnut Street, 5th Floor Philadelphia, PA 19107 (b) for defendants: John T. Asher, III, Esquire SPECTOR GADON & ROSEN, P.C. 7th Floor, 1635 Market Strepfame and Address) Philadelphia, PA 19103 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 9, 2009 . Asher, III, Esquire Print yoN name Carlisle Sports Emporium, Inc. 7/8/09 Attorney for Date: INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ALED- 2009 JU -9 Ail I1: 1 GOLDBERG & WEINSTEIN, LLC. BY: FREDERICK I. WEINSTEIN, ESQUIRE Attorney I.D. Number: 41629 1334 Walnut Street Fifth Floor Philadelphia, PA 19107 (215) 732-2000 Attorney for Plaintiff KELLY HARRIS COURT OF COMMON PLEAS Plaintiff V. CARLISLE SPORTS EMPORIUM, INC. d/b/a SPORTS EMPORIUM FASTRACK d/b/a SPORTS EMPORIUM Defendant CUMBERLAND COUNTY NO. 2005-6101 PLAINTIFF'S RESPONSES TO PRELIMINARY OBJECTIONS OF THE DEFENDANT CARLISLE SPORTS EMPORIUM, INC., d/b/a SPORTS EMPORIUM FASTRACK TO PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff, Kelly Harris, by and through her counsel, FREDERICK 1. WEINSTEIN, ESQUIRE and the law firm of Goldberg & Weinstein, LLC who files these e responses to the preliminary objections of defendant as follows: 1. Admitted 2. Admitted 3. Admitted 4. Admitted 5. Admitted 6. Admitted in part. It is admitted that defendant's Answer with New Matter was endorsed with a Notice to Plead. However, Pa.R.C.P. No. 1029(a) and (d) state as follows: (a) A responsive pleading shall admit or deny each averment of fact (emphasis added) in the preceding pleading... (d) Averments in a pleading to which no responsive pleading is required shall be deemed to be denied. The allegations in defendant's New Matter contained no averments of fact. The allegations in defendant's New Matter are all conclusions of law to which no response is required under the Pa Rules of Civil Procedure. Pursuant to Pa.R.C.P. No. 1029 all allegations in defendant's New Matter, by law, are deemed to be denied. (See Defendant's Exhibit A) 7. Admitted 8. Denied. See response to paragraph 6 above. 9. Admitted in part. It is admitted that Plaintiff filed her Reply on or about June 18, 2009, however, see response to paragraph 6 above. (See Defendant's Exhibit C) 10. Denied. She response to paragraph 6 above. 11. Denied 12. Denied. On June 29, 2005, Plaintiff's counsel provided Defense counsel with a videotape of the entire incident. The videotape shows another patron driving in the wrong direction and shows the defendant's employees failing to act promptly to prevent the violent collision with the Plaintiff, which caused the serious injuries she sustained. Furthermore, defendant was not only aware of this claim, but in all likelihood obtained statements from any and all of its employees. In addition, if there were any policies or procedures to be followed by patrons, any employee including the owner, would be capable of testifying on behalf of defendant. The videotape of the incident is quite clear and speaks for itself. (Plaintiff's counsel is prepared to show the Court the videotape should the Court wish view it.) 13. Denied. See response to paragraph 12 above. 14. Denied. Defendant has suffered no prejudice and pursuant to Pa.R.C.P. No. 1029(d) "Averments in a pleading to which no responsive pleading is required shall be deemed to be denied." WHEREFORE, Plaintiff, Kelly Harris, respectfully requests that Defendant's Preliminary Objections be denied. GOLDBERG & WEINSTEIN, LLC. FREDERICK 1. WEINSTEIN, ESQUIRE Attorney for Plaintiff Kelly Harris /"iLt'f F ? Ivy. OF THE OTMY 2009 SEP -3 PH 1: G4 )??Ty KELLY HARRIS, Plaintiff Plaintiff V. CARLISLE SPORTS EMPORIUM, INC., d/b/a SPORTS EMPORIUM FASTRACK, d/b/a SPORTS EMPORIUM, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005 - 6101 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HESS, OLER, JR., GUIDO, JJ ORDER OF COURT AND NOW, this 15TH day of SEPTEMBER, 2009, by agreement of the parties argument on the Defendants' Preliminary Objections is continued generally, to be relisted by either party. By the Co, .,- Frederick I. Weinstein, Esquire 1334 Walnut Street, 5 h floor Philadelphia, Pa. 19107 ?John T. Asher, III, Esquire Seven Penn Center 1635 Market Street, 7`h floor Philadelphia, Pa. 19103 Court Administrator ?/1 Co/0? tzm Edward E. Guido, J. ALED- -,, -=?;.E OF THE , ; `'-`,- "-T'A'Y 2009 SEP 16 AN 11: 0 6 r is -ra SPECTOR GADON & ROSEN, P.C. By: John T. Asher, III, Esquire Identification No. 76957 1635 Market Street, 7th Floor Attorney for Defendants, Carlisle Sports Emporium, Philadelphia, PA 19103 Inc., d/b/a Sports Emporium Fastrack, d/b/a Sports (215) 241-8847 Emporium (215) 241-8844 (Fax) KELLY HARRIS COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, NO. 2005-6101 V. CIVIL TERM CARLISLE SPORTS EMPORIUM, INC., d/b/a SPORTS EMPORIUM FASTRACK, d/b/a SPORTS EMPORIUM Defendant. PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above matter settled, discontinued and ended as to all defendants. GOLDBERG & WEINSTEIN, LLC DATED: 6 11:?:L" -- ?. ?k FREDERICK I. WEINSTEIN, ESQUIRE 1334 Walnut Street, 5th Floor Philadelphia, PA 19107 (215) 732-2000 Attorney for Plaintiff, Kelly Harris 7166071 FILED O;FIC.E OF T rE PI TS-nN 71ARY 2009 OCT -2 PM 2: 4 4 CUk._?ry1, u_!UTY PENNSYLVr%IA