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HomeMy WebLinkAbout06-1271IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Basil Pittman Brenda Pittman Plaintiffs No. VS. Corey L. Boyd Mindy J. Boyd Defendant Civil Action-Law JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR 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 COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA (717) 249-3166 H. AN S ATTORNEY AT LAW SUPREME COURT ID NO. 25502 49 WEST ORANGE STREET, SUITE 3 SHIPPENSBURG,PA 17257 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Basil Pittman Brenda Pittman Plaintiffs VS. Corey L. Boyd Mindy J. Boyd Defendant No. C)(o- 1),7) Civil Action-Law JURY TRIAL DEMANDED COMPLAINT AND NOW, come Plaintiffs, Basil Pittman and Brenda Pittman, by and through their Attorney, H. Anthony Adams, and set forth the following: 1. Plaintiffs are Basil Pittman and Brenda Pittman, adult individuals, who reside at 354 Hill Top Road, Newburg, Cumberland County, Pennsylvania. 2. Defendants are Corey L. Boyd and Mindy J. Boyd, adult individuals, who reside at 348 Hill Top Road, Newburg, Cumberland County, Pennsylvania. 3. Defendants on or about October 2004 began to keep 4 Rotweiler dogs on their property. The dogs were caged in an outside run from which they often and readily escaped. 4. Since the Rotweiler dogs were not confined on the property of the Defendants and would enter upon Plaintiffs property, take and destroy boots, baseball gloves and other items of personal property. 1 5. Since the Rotweiler dogs were not confined on the property of the Defendants that would enter the Plaintiffs property and show a vicious propensity such that: a. Plaintiffs children would have to call on a cell phone upon returning home to avoid attack by the dogs. Guests of the children would also sit in their car and call on the cell phone to avoid attack by the dogs. b. Plaintiffs children were on numerous occasions pinned in the garage, house or cars while the pack of dogs circled to attack. Guests of the children were also pinned in the garage, house or cars while the pack of dogs circled to attack in the driveway, the front and back yard and at the front door of the Plaintiffs home. c. One of Plaintiffs children was chased into the garage by the pack of dogs while riding her bicycle. d. Plaintiffs had a rural mailbox and had to drive their car down the driveway to the box to avoid attack. e. Plaintiff, Basil Pittman, was when mowing his lawn on a riding mower required to carry a baseball bat as protection from the dog pack. f. The Plaintiffs were not able to take prom photographs of their daughter because the dogs were loose and running on their property in a pack. g. Plaintiffs were not able to leave or enjoy the outside of their dwelling having to be wary of an attack by the dogs. h. Plaintiffs had to on many occasions when the pack of dogs were loose, bring their dog into a room of their home because the pack of dogs would viciously bark and circle around their dog to attack her. 6. On September 2, 2005, a pack of 3 of the Defendants dogs attacked the dog of Plaintiffs requiring the Plaintiffs to fight off the pack. State Police were contacted as a result of the attack. 7. on or about September 20, 2005 a pack of 3 of the Defendants dogs again attacked the dog of Plaintiffs. During the attack the Plaintiffs dog, a Labrador Retriever, was on its chain in Plaintiffs' yard. 8. The Plaintiffs were not able on this occasion to reach their dog in time and it died from the numerous (over 100) wounds inflicted by the vicious attack of the pack of rotweilers. 9. The Defendants were given verbal warnings about their dogs by Plaintiffs; were the subject of a petition signed by at least 35 residents and were asked by Plaintiffs on numerous occasions to contain their dogs. They also were told by the Plaintiffs that their dogs were vicious. They were also informed by the Pennsylvania State Police to control their dogs. 10. The acts of the Defendants in keeping vicious dogs on their property and then allowing the dogs to roam freely on the Plaintiffs property makes them strictly liable for the damages caused by their dogs. 11. The Defendants failure to control the pack of dogs created a nuisance and interfered with the Plaintiffs use and enjoyment of their property caused them loss of enjoyment of life and gave emotional suffering and harm. The care exercised in the control of the vicious dogs was profoundly below the standard that would be employed by a reasonable person. 12. As a result of the acts of the Defendants, the Plaintiffs lost the use and enjoyment of their property, loss of enjoyment of life, suffered severe emotional distress and trauma and lost the joy and companionship of their pet. 13. The acts of the Defendants were egregious andoutrageous. They Defendants displayed a total disregard for the welfare of others in a willful and wanton manner. WHEREFORE, Plaintiffs pray you Honorable Court enter judgment in their favor and against Defendants in an amount not less than $100,000.00 together with punitive damages and cost of suit. Respectfully submitted, H. Anthony Adams, Esquire Attorney for Plaintiffs 49 W. Orange Street, Suite 3 Shippensburg, PA 17257 (717)-532-3270 VERIFICATION We verify that the statements made in this Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. a \ ?? Date: BASIL PITTMAN Date: ?d-)- /c L, LPi a d kaA / BRENDA PITTMAN I? ?_ C ?1 G ?- Johnson, Duffie, Stewart & Weidner By: Wade D. Manley I.D. No. 87244 Attorneys for Defendants 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com BASIL PITTMAN and BRENDA PITTMAN, Plaintiffs V. COREY L. BOYD and MINDY J. BOYD, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Defendants NOTICE TO PLEAD NO. 06-1271 CIVIL ACTION - LAW JURY TRIAL DEMANDED TO: BASIL PITTMAN and BRENDA PITTMEN, Plaintiffs c/o H. ANTHONY ADAMS, ESQUIRE 49 West Orange Street, Suite 3 Shippensburg, PA 17257 AND NOW, this Z;day of March, 2006, you are hereby notified to file a written response to the enclosed Preliminary Objections within 20 days of the date of service hereof or judgment may be entered against you. By: uyl?? Wade D. Manle Attorney I.D. No. 244 Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043 Johnson, Duff ie, Stewart & Weidner By: Wade D. Manley I. D, No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@idsw.com BASIL PITTMAN and BRENDA PITTMAN, Plaintiffs V. COREY L. BOYD and MINDY J. BOYD, Defendants NO. 06-1271 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTIONS TO THE PLAINTIFFS' COMPLAINT AND NOW, come the Defendants, Corey L. Boyd and Mindy J. Boyd, by and through their counsel, Johnson, Duffie, Stewart & Weidner, P.C. and file these Preliminary Objections to the Plaintiffs' Complaint by respectfully stating the following: 1. This matter was commenced in this Court via the filing of a Complaint on March 7, 2006. A copy of the Plaintiffs' Complaint is attached hereto as Exhibit "A". 2. The Plaintiffs allege that the Defendants own four Rottweiler dogs that, at some point in time, have destroyed items of personal property including boots, baseball gloves and the Plaintiffs' Labrador Retriever. See, Exhibit "A", 1¶4, 7 & 8. 3. Additionally, the Plaintiffs allege several other instances when the Defendants' dogs, over the course of time, allegedly affected their ability to perform routine, daily activities. Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA See, Exhibit "A", ¶5. 4. Paragraph 10 of the Plaintiffs' Complaint appears to set forth a cause of action alleging that the Defendants are strictly liable for the damages caused by their dogs. See, Exhibit "A", ¶10. 5. Paragraph 11 of the Plaintiffs' Complaint appears to set forth four (4) separate causes of action against the Defendants, including nuisance, negligence, intentional infliction of emotional distress and/or negligent infliction of emotional distress. See, Exhibit "A", ¶11. 6. Paragraph 12 of the Plaintiffs' Complaint also appears to possibly set forth a claim of intentional and/or negligent infliction of emotional distress against the Defendants. See, Exhibit "A", ¶12. 7. As a result of the allegations set forth against the Defendants, it appears as though the Plaintiffs demands damages for personal property damage, personal injury, as well as punitive damages. See, Exhibit "A", T$4, 8, 11, 12 & 13. 8. All well and clearly-pleaded facts must be generally accepted as true when ruling on Preliminary Objections, but not a pleader's conclusions or averments of law. Santiago v. Pennsylvania National Mutual Casualty Insurance Company, 418 Pa.Super. 178, 613 A.2d 1235 (1992). 9. When ruling on Preliminary Objections, the Court is limited to a review of the allegations set forth in the challenge pleading. Bradford County Citizens in Action v. Board of Commissioners of Bradford County, 64 Pa.Cmwlth. 349, 439 A.2d 1346 (1982). 1. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(2) - FAILURE OFA PLEADING TO CONFORM TO LAW OR RULE OF COURT 10. Paragraphs 1-9 of the Defendants' Preliminary Objections are incorporated herein by reference. 11. Pennsylvania Rule of Civil Procedure 1028(a)(2) states, "Preliminary Objections maybe filed by any party to any pleading and are limited to the following grounds:...(2) Failure of a pleading to conform to Law or Rule of Court for inclusion of scandalous or impertinent matter." Pa.R.C.P. 1028(a)(2). 12. Pennsylvania Rule of Civil Procedure 1022 states, "Every pleading shall be divided into paragraphs numbered consecutively. Each paragraph shall contain, as far as practicable, only one material allegation." Pa.R.C.P. 1022. 13. Paragraph 9 of the Plaintiffs' Complaint states, "The Defendants were given verbal warnings about their dogs by Plaintiffs; were the subject of a Petition signed by at least 35 residents and were asked by Plaintiffs on numerous occasions to contain their dogs. They also were told by the Plaintiffs that their dogs were vicious. They were also informed by the Pennsylvania State Police to control their dogs." See, Exhibit "A", ¶9. 14. The Plaintiffs' Complaint also states in Paragraph 11, "The Defendants' failure to control the pack of dogs created a nuisance and interfered with the Plaintiffs use and enjoyment of their property caused them loss of enjoyment of life and gave emotional suffering and harm. The care exercised by the control of the vicious dogs was profoundly below the standard that would be employed by a reasonable person." See, Exhibit "A", ¶11. 15. Both paragraphs 9 and 11 of the Plaintiffs' Complaint set forth several material allegations that are prohibited by Pa.R.C.P. 1022. WHEREFORE, the Defendants' respectfully request that this Honorable Court strike paragraphs 9 and 11 of Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading in order to comply with Pa.R.C.P. 1022 by pleading one material allegation per numbered paragraph. It. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(2) - FAILURE OFA PLEADING TO CONFORM TO LAW OR RULE OF COURT 16. The Defendants incorporate by reference herein paragraphs 1-15 of their Preliminary Objections as though set forth herein at length. 17. Pa.R.C.P. 1020(a) states, "Each cause of action and any special damage related thereto shall be stated in a separate Count stating a demand for relief." Pa.R.C.P. 1020(a). 1 S. The Plaintiffs' Complaint sets forth no separate Counts for any cause of action they have alleged. See, Exhibit "A". 19. As pled, the Plaintiffs' Complaint does not put the Defendants on notice of the specific cause of action or claims brought against them nor what causes of action they will be required to defend. 20. Paragraphs 10, 11 and 12 of the Plaintiffs' Complaint appear to allege causes of action sounding in strict liability, negligence, nuisance, intentional infliction of emotional distress and/or negligent infliction of emotional distress, but those causes of action are not specifically pled, nor are they set forth in separate counts. WHEREFORE, the Defendants' respectfully request that this Honorable Court strike the Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading complying with Pa.R.C.P. 1020(a) and file each cause of action in a separate Count. Ill. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(2) - 21. The Defendants incorporate by reference herein paragraphs 1-20 of their Preliminary Objections as though set forth herein at length. 22. Pa.R.C.P. 1019(a) states, "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.C.P. 1019(a). 23. The Plaintiffs have failed to aver with specificity the factual basis upon which the Plaintiffs rely in support of unspecified claims for which they seek damages. WHEREFORE, the Defendants' respectfully request that this Honorable Court strike the Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading. IV, PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(2) - FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT 24. The Defendants incorporate by reference herein paragraphs 1-23 of their Preliminary Objections as though set forth herein at length. 25. Pa.R.C.P. 1019(f) requires that averments of special damage be specifically stated. 26. Additionally, the Plaintiffs simply demand judgment in an amount greater than $100,000.00, but fail to aver with specificity the factual basis to support what damages they have actually sustained. WHEREFORE, the Defendants' respectfully request that this Honorable Court strike the Plaintiffs' Complaint with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading. V. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) - LEGAL INSUFFICIENCY OFA PLEADING (DEMURRER) 27. The Defendants incorporate by reference herein paragraphs 1-26 of their Preliminary Objections as though set forth herein at length. 28. Pennsylvania Rule of Civil Procedure 1028(a)(4) states, "Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds: ...(4) legal insufficiency of a pleading (demurrer)." Pa.R.C.P. 1028(a)(2). 29. As previously stated herein, Plaintiffs' Complaint, as drafted, fails to place the Defendants on notice of the causes of action for which they are claiming damages and additionally fails to put the Defendants on notice of the actual categories of damages they seek. 30. However, based on the facts as alleged, Plaintiffs have solely identified certain items of property damaged that were allegedly destroyed by the Defendants' dogs, including, boots, baseball gloves, the Plaintiffs' Labrador Retriever and other items of personal property. 31. The Plaintiffs' claims essentially boil down to the alleged fact that the Defendants' dogs caused the death of the Plaintiffs' dog and destruction of other personal property, and that the Defendants' failure to contain their dogs has disrupted their daily activities. See, Exhibit "A". 32. The Plaintiffs' have not alleged any facts necessary to support a personal injury claim regardless of what cause of action they have improperly pled, including private nuisance, strict liability, negligence, intentional infliction of emotional distress or negligent infliction of emotional distress. 33. Additionally, the Plaintiffs have failed to set forth the appropriate elements necessary to sustain an intentional or negligent infliction of emotional distress claim. WHEREFORE, the Defendants' respectfully request that this Honorable Court strike the Plaintiffs' demand for personal injury damages and their claim for intentional infliction of emotional distress or negligent infliction of emotional distress with prejudice, or in the alternative, require the Plaintiffs to file a more specific pleading. VI. PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4) - LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 34. The Defendants incorporate by reference herein paragraphs 1-33 of their Preliminary Objections as though set forth herein at length. 35. Punitive damages can not be awarded where a defendant's alleged conduct merely constitutes ordinary or even gross negligence. Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d (1988). Therefore, a Plaintiff is required to plead that a defendant's conduct was malicious, willful, wanton, reckless or oppressive. Id. 36. Even though punitive damages are not a separate cause of action, the Plaintiffs are still required to plead the facts they claim support their claim for punitive damages. Schock v. T.J. Care. Inc., 65 Pa. D. & C. 4th 517, 20D4 WL 1570109 (Fay. Cty. C.P. 2004). 37. It is essential for the Plaintiffs to allege each and every element that constitutes the nature of their claim, including their claim of punitive damages. Nido v. Chambers, 70 Pa.D.& C. 2d 129, 1975 WL 16621 (Law. Cty. C.P. 1975). 38. Plaintiffs' Complaint fails to allege the required elements to support a claim for punitive damages, requiring the Plaintiffs' demand for punitive damages to be stricken. 39. The Plaintiffs have failed to allege a single fact that the Defendant possessed the knowledge required to elevate the Defendant's actions to being malicious, willful, wanton, reckless or oppressive. 40. In determining whether punitive damages are appropriate, the court must determine the nature of the tortfeasor's act, together with his motive, the relationship between the parties, and other attendant circumstances. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). 41. Punitive damages are awarded to punish a Defendant and are only appropriate when the conduct is especially grievous and must not be allowed when mere negligence in the form of inadvertence, mistake or errors in judgment is alleged. Id. 42. Plaintiffs' Complaint alleges nothing more than the Plaintiffs' belief that the Defendants were negligent. The Plaintiffs set forth no facts regarding the maliciousness, willfulness, wantonness or oppressive nature of the Defendants' conduct. WHEREFORE, the Defendants respectfully request that this Honorable Court strike the Plaintiffs' demand for punitive damages with prejudice. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By. ?t f?- Wade D. Manley Attorney I.D. No. 872,14 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 DATE: 3231 b :271476 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Defendants' Preliminary Objections to Plaintiffs' Complaint upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 23'%I day of 2006, addressed to the following: H. Anthony Adams, Esquire 49 West Orange Street Suite 3 Shippensburg, PA 17257 JOHNSON, DUFFIE, STEWART & WEIDNER ?" 7 By: Wade D. Manley, Es ire Attorney I.D. No. 8724 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants _, -, =?, ' .? ;z- __, -; ?.? >>,. _, ;; -:, -; ,< Johnson, Duffle, Stewart & Weidner By: Wade D. Manley I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com BASIL PITTMAN and BRENDA PITTMAN, Plaintiffs V. COREY L. BOYD and MINDY J. BOYD, Defendants NO. 06-1271 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court State matter to be argued: Defendants' Preliminary Objections to the Plaintiffs' Complaint. 2. Identify counsel who will argue case: a) For Plaintiffs: H. Anthony Adams, Esquire Address: 49 West Orange Street, Suite 3 Shippensburg, PA 17257 3. 4. b`• For Defendants: Wade D. Manley, Esquire Address: 301 Market Street, Lemoyne, PA 17043 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: Call of Argument List Date: Date: ? Mft :273819 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA May 17, 2006 April 27, 2006 kA '), N"k Wade D. Manley, squi e Attorney I.D. No. 87244 Attorneys for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe For Listing Case For Argument upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the ZA* day of Ape; 2006, addressed to the following: H. Anthony Adams, Esquire 49 West Orange Street, Suite 3 Shippensburg, PA 17257 JOHNSON, DUFFIE, STEWART $ WEIDNER By: UV7v?t i Wade D. Manly, Esc re Attorney I.D. No. 87 44 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants BASIL PITTMAN AND BRENDA PITTMAN, PLAINTIFFS V. COREY L. BOYD AND MINDY J. BOYD, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-1271 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this tQ day of May, 2006, it appearing that plaintiffs' complaint states more than one cause of action, IT IS ORDERED that plaintiffs shall re- plead within twenty (20) days of this date in compliance with Pa. Rule of Civil Procedure 1020(a). X. Anthony Adams, Esquire For Plaintiffs ?4ade D. Manley, Esquire For Defendants :sal J By the Court, UJQ ( w Z O 4 U IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Basil Pittman Brenda Pittman Plaintiffs : No. O6 - 1aZ VS. : Civil Action-Law Corey L. Boyd Mindy J. Boyd : JURY TRIAL DEMANDED Defendant NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR 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 COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA (717) 249-3166 H. ANTHONY ADAMS ATTORNEY AT LAW SUPREME COURT ID NO. 25502 49 WEST ORANGE STREET, SUITE 3 SHIPPENSBURG, PA 17257 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Basil Pittman Brenda Pittman Plaintiffs : No. 06-1271 VS. : Civil Action-Law Corey L. Boyd Mindy]. Boyd : JURY TRIAL DEMANDED Defendants FIRST AMENDED COMPLAINT AND now, come Plaintiffs, Basil Pittman and Brenda Pittman, by and through their attorney, H. Anthony Adams, and set forth the following: FACTS 1. Plaintiffs are Basil Pittman and Brenda Pittman, adult individuals, who reside at 354 Hill Top Road, Newburg, Cumberland County, Pennsylvania. 2. Defendants are Corey L. Boyd and Mindy J. Boyd, adult individuals, who reside at 348 Hill Top Road, Newburg, Cumberland County, Pennsylvania. 3. Defendants on or about October 2004 began to keep 4 Rotweiler dogs on their property. The dogs were caged in an outside run from which they often and readily escaped. 4. Since the Rotweiler dogs were not confined on the property of the Defendants, they would enter upon Plaintiffs property, take and destroy boots, baseball gloves and other items of personal property. 5. Since the Rotweiler dogs were not confined on the property of the Defendants that would enter the Plaintiffs property and show a vicious propensity such that: a. Plaintiffs' children would have to call on a cell phone upon returning home to avoid attack by the dogs. Guests of the children would also sit in their car and call on the cell phone to avoid attack by the dogs. b. Plaintiffs' children were on numerous occasions pinned in the garage, house or cars while the pack of dogs circled to attack. Guests of the children were also pinned in the garage, house or cars while the pack of dogs circled to attack in the driveway, the front and back yard and at the front door of the Plaintiffs' home. c. One of Plaintiffs' children was chased into the garage by the pack of dogs while riding her bicycle. d. Plaintiffs' had a rural mailbox and had to drive their car down the driveway to the box to obtain their mail to avoid attack. e. Plaintiff, Basil Pittman, was when mowing his lawn on a riding mower required to carry a baseball bat as protection from the dog pack. The Plaintiffs were not able to take prom photographs of their daughter because the dogs were loose and running on their property in a pack. g. Plaintiffs were not able to leave or enjoy the outside of their dwelling having to be wary of an attack by the dogs. h. Plaintiffs had to on many occasions when the pack of dogs were loose, bring their dog into a room of their home because the pack of dogs would viciously bark and circle around their dog to attack her. 6. On September 2, 2005, a pack of 3 of the Defendants dogs attacked the dog of Plaintiffs requiring the Plaintiffs to fight off the pack. State Police were contacted as a result of the attack. 7. On or about September 20, 2005 a pack of 3 of the Defendants' dogs again attacked the dog of Plaintiffs. During the attack the Plaintiffs' dog, a Labrador Retriever, was on its chain in Plaintiffs' yard. 8. The Plaintiffs were not able on the September 20, 2005 occasion to reach their dog in time and the dog died from the numerous (over 100) wounds inflicted by the vicious attack of the pack of rotweilers. 9. The Plaintiffs' on numerous occasions warned the Defendants about their dogs vicious propensities. 10. The Defendants were on at least one occasion prior to the killing of Plaintiffs Labrador told by the Pennsylvania State Police to control their dogs. NEGLIGENCE 11. Paragraph 1 through 10 are incorporated herein by reference as fully as if set forth at length. 12. Defendants knew or should have known that the pack of dogs were vicious. 13. Defendants knew or should have known that the pack of dogs were intruding onto the land of Plaintiffs. 14. Defendants knew or should have known that the intrusion of the pack of vicious dogs onto the land of Plaintiffs was causing Plaintiffs significant loss of their enjoyment of life, use of property and grave emotional stress and harm. 15. The Defendants care and control of their pack of dogs was substantially below the standard of care that would be exercised by a reasonable person. 16. As a direct result of the Defendants deviation from a reasonable standard of care, the Plaintiffs suffered loss of personal property, loss of enjoyment of life and grave emotional stress and harm. STRICT LIABILITY 17. Paragraphs 1 through 16 are incorporated herein by reference. 18. The Defendants knew or should have known that their dog pack was vicious and had a propensity to attack both pets and humans. 19. The Defendants kept the animals upon their property knowing that the dogs in a pack had a vicious disposition. 20. On numerous occasions the dog pack escaped the control of the Defendants and entered upon the property of the Plaintiffs. 21. The Defendants are strictly liable for the harm caused by the dog pack since they knew that they possessed dangerous animals and failed to keep the animals upon their property. 22. As a result of the Defendants failure to keep the animals upon their property the Plaintiffs lost personal property, loss of enjoyment of life and grave emotional stress and harm. TRESPASS 23. Paragraphs 1 through 22 are incorporated herein by reference as fully as if set forth at length. 24. Defendants dogs entered upon the property of the Plaintiffs. 25. Plaintiffs had requested that Defendants keep their dogs off of Plaintiffs property. 26. As a direct result of the entry of Defendants dogs onto the property of Plaintiffs, Plaintiffs lost personal property, the use and enjoyment of life and grave emotional harm and stress. NUISANCE 27. Paragraphs 1 through 26 are incorporated herein by reference as fully as if set forth at length. 28. The dogs of the Defendants were not controlled by them but roamed freely onto Plaintiffs property. 29. The activities of the dogs were noxious, harmful, injurious, annoying, and interfered with Plaintiffs enjoyment and use of their property. 30. As a result of the Defendants creation of the nuisance the Plaintiffs lost personal property, loss of enjoyment of life, loss of the use and enjoyment of their property and grave emotional stress and harm. DAMAGES 31. Paragraphs 1 through 30 are incorporated herein by reference as fully as if set forth at length. 32. The acts of the Defendants were egregious and outrageous demonstrating a total disregard for the welfare of Plaintiffs all in a willful and wanton manner. 33. Plaintiffs are entitled to damages for the loss of personal property, loss of enjoyment of life, loss of use and enjoyment of their property and grave emotional stress and harm in excess of $50,000.00 together with cost of suit. Plaintiffs are further entitled to punitive damages. Respectfully submitted, ony Adams, Esquire Attorney for Plaintiffs 49 W. Orange Street, Suite 3 Shippensburg, PA 17257 (717)-532-3270 VERIFICATION We verify that the statements made in this Amended Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: ?/0 6 Date: ,06 BASIL PITTMAN &-? JLL Z- BRENDA PITTMAN C7 v r O ( c' 'tl r C-1 Ca SHERIFF'S RETURN - REGULAR i CASE NO: 2006-01271 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PITTMAN BASIL ET AL VS BOYD COREY L ET AL BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BOYD COREY L the DEFENDANT at 1742:00 HOURS, on the 17th day of March 2006 at 348 HILL TOP ROAD NEWBURG, PA 17240 by handing to MINDY BOYD, WIFE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 17.60 Postage .39 Surcharge 10.00 .00 45.99 Sworn and Subscribed to before me this )7 day of a&D A. D. So Answers: ?'R,,o R. Thomas Kline 03/20/20 H ANTHON By: Prothonotary SHERIFF'S RETURN - REGULAR CASE NO: 2006-01271 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PITTMAN BASIL ET AL VS BOYD COREY L ET AL BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BOYD the DEFENDANT , at 1742:00 HOURS, on the 17th day of March 2006 at 348 HILL TOP ROAD NEWBURG, PA 17240 by handing to MINDY BOYD a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this )IS day of Dh4,,, a "(. A.D. Prothonotary So Answers: R. Thomas Kline 03/20/2006 H ANTHONY ADAMS By: Deputy Sheriff Johnson, Duffle, Stewart & Weidner By: Wade D. Manley I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com Attorneys for Defendants BASIL PITTMAN and IN THE COURT OF COMMON PLEAS OF BRENDA PITTMAN, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 06-1271 V. CIVIL ACTION - LAW COREY L. BOYD and JURY TRIAL DEMANDED MINDY J. BOYD, Defendants NOTICE TO PLEAD TO: BASIL PITTMAN and BRENDA PITTMAN, Plaintiffs c/o H. ANTHONY ADAMS, ESQUIRE 49 West Orange Street, Suite 3 Shippensburg, PA 17257 AND NOW, this 2741G ( day of June, 2006, you are hereby notified to file a written response to the enclosed document within 20 days of the date of service hereof or judgment may be entered against you. By: W 7A Wade D. Wnley/ / Attorney I.D. N 7244 Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043 Johnson, Duffle, Stewart & Weidner By: Wade D. Manley I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com Attorneys for Defendants BASIL PITTMAN and IN THE COURT OF COMMON PLEAS OF BRENDA PITTMAN, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 06-1271 V. CIVIL ACTION - LAW COREY L. BOYD and JURY TRIAL DEMANDED MINDY J. BOYD, Defendants DEFENDANTS, COREY L. BOYD and MINDY J. BOYD'S, ANSWER WITH NEW MATTER TO THE PLAINTIFFS' FIRST AMENDED COMPLAINT AND NOW, come the Defendants, Corey L.. Boyd and Mindy J. Boyd, by and through their counsel, Johnson, Duffle, Stewart & Weidner, P.C., and file the following Answer with New Matter to the Plaintiffs' First Amended Complaint, and in support thereof, aver as follows: FACTS 1. Admitted. 2. Admitted. 3. Admitted in part; Denied in part. It is admitted that the Defendants own four Rotweiler dogs at their place of residence, and that the dogs were caged outside on their property. It is also admitted that there were times when the dogs escaped from the confined area located on the Defendants' property. The remainder of the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 4. Denied. The Defendants' dogs were confined on the property of the Defendants. After reasonable investigation, the Defendants lack the information or knowledge sufficient to form a belief as to the truth or falsity of the remaining averments contained in this paragraph. Therefore, the remaining averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 5. Denied. The Defendants' dogs were confined on the property of the Defendants. After reasonable investigation, the Defendants lack the information or knowledge sufficient to form a belief as to the truth or falsity of the remaining averments contained in this paragraph. Therefore, the remaining averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 6. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to either confirm or deny the averments in this paragraph, and therefore the averments are specifically denied and strict proof thereof is demanded at the time of trial. 7. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to either confirm or deny the averments in this paragraph, and therefore the averments are specifically denied and strict proof thereof is demanded at the time of trial. 8. Admitted in part; Denied in part. It is admitted that the Plaintiffs' dog died on or about September 20, 2005. After reasonable investigation, the Defendants lack the information or knowledge sufficient to form a belief as to the truth or falsity of the remaining averments contained in this paragraph. Therefore, the remaining averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. By way of further response, the remaining averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the remaining averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 9. Denied. The averments contained in this paragraph are denied generally pursuant to Pa.R.C.P. 1029(e). 10. Admitted. NEGLIGENCE 11. The Defendants incorporate their responses in paragraphs 1 through 10 as if fully incorporated herein by reference. 12. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 13. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 14. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 15. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 16. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. STRICT LIABILITY 17. The Defendants incorporate their responses in paragraphs 1 through 16 as if fully incorporated herein by reference. 18. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 19. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 20. Admitted in part; Denied in part. It is admitted that Defendants are aware that the dogs escape the confined area located on the Defendants' property. The remainder of the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial. 21. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 22. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. TRESPASS 23. The Defendants incorporate their responses in paragraphs 1 through 22 as if fully incorporated herein by reference. 24. Admitted. 25. Admitted. 26. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. NUISANCE 27. The Defendants incorporate their responses in paragraphs 1 through 26 as if fully incorporated herein by reference. 28. Denied. It is specifically denied that the dogs were not controlled and allowed to roam free beyond the Plaintiffs' property. By way of further answer, Defendants' dogs were placed in a confined area on the Defendants' property. 29. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 30. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. DAMAGES 31. The Defendants incorporate their responses in paragraphs 1 through 30 as if fully incorporated herein by reference. 32. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. 33. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied, and strict proof thereof is demanded at the time of trial. NEW MATTER 34. The Plaintiffs' Complaint fails to state a claim upon which relief may be granted. 35. In no way did any act, or inaction, by the Defendants contribute to the happening of the events alleged in the Plaintiffs' Complaint. 36. The Plaintiffs' cause of action is frivolous and vexatious. 37. The Plaintiffs may have failed to mitigate their damages, if any, with any liability or responsibility on the part of the Defendants being expressly denied. 38. The Plaintiffs' claims and/or alleged losses may be barred by the Doctrine of the Assumption of the Risk. 39. The alleged actions or inactions by the Defendants were not a substantial factor in causing the Plaintiffs' alleged injuries. 40. The Plaintiffs failed to exercise reasonable care for their own safety under the circumstances then and there existing. 41. The Plaintiffs may have voluntarily encountered an obvious danger. 42. The Plaintiffs' failure to exercise reasonable care for their own safety was a substantial factor in the happening of their alleged damages, that if the Plaintiffs' alleged damages were caused by the Defendants, which is denied, the Defendants aver that the Defendants did not have actual knowledge of the dogs alleged vicious propensities. The Plaintiffs' injuries and alleged damages, if any, were not caused by the acts, omissions, or breaches of duty by the Defendants. 43. If it should be found that there was any negligence on the part of the Defendants, which negligence is expressly denied, any such negligence was not a proximate cause of the Plaintiffs' alleged damages. WHEREFORE, the Defendants, Corey L. Boyd and Mindy J. Boyd, respectfully request that the Plaintiffs' Complaint be dismissed with prejudice, and that judgment be entered in their favor. DATE: U b Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: tj a Wa de D. M nle Attorney I.D. No. 7244 301 Market Stree P.O. Box 109 Lemoyne, PA 17043-0109 :277194 VERIFICATION The undersigned confirms that the facts set forth in the foregoing Answer and New Matter are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsifications to authorities. ? Cor Cor L. Boyd Dated: Li -15 N n VERIFICATION The undersigned confirms that the facts set forth in the foregoing Answer and New Matter are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsifications to authorities. Mindy 6. Boyd U DatedJ 2 -1612- Fyn CERTIFICATE OF SERVICE AND NOW, this y7-day of June, 2006, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: H. Anthony Adams, Esq. 49 West Orange Street Suite 3 Shippensburg, PA 17257 JOHNSON, DUFFIE, STEWART & WEIDNER By. N Wade D. Ms iley ?, , ;, _ .? ;m ?`..D __ _ t_, - ri __ i ?, ? -c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Basil Pittman Brenda Pittman Plaintiffs : No. 06-1271 VS. : Civil Action-Law Corey L. Boyd Mindy J. Boyd : JURY TRIAL DEMANDED Defendants ANSWER TO NEW MATTER AND NOW, come Plaintiffs, Basil Pittman and Brenda Pittman, by and through their Attorney, H. Anthony Adams, and set forth the following: 34. Defendants' new matter at paragraph 34 is a conclusion of law to which no response is required. 35. Denied, Defendants failed to exercise reasonable and prudent caution in the care and custody of their animals and further acted with wanton disregard and disdain far beyond the norm required in civilized society regarding the property and welfare of Plaintiffs. 36. Defendants' new matter at paragraph 36 is a conclusion of law and also is not correct. 37. Denied, Plaintiffs made reasonable attempts including frequent requests to Defendants to alleviate the harm being caused by the Rotweiler dogs. 4 38. Defendants' paragraph 38 is a conclusion of law to which no response is required. 39. Denied, the actions and inaction of Defendants as set forth in the Plaintiffs' complaint were the direct and proximate cause of the harm set forth. 40. Denied, at all times relevant to the matters set forth in their complaint the Plaintiffs exercised reasonable and due care. 41. Denied, Plaintiffs resided at their property long before the Defendants moved to the neighborhood and long before the Defendants accumulated 4 vicious dogs. After the dog pack was formed, the Plaintiffs took numerous precautions to not encounter the danger posed daily by the vicious pack. 42. Denied, the Defendants had actual and specific knowledge of the vicious propensity of their dogs and the Plaintiffs injuries and damages were the direct and proximate result of the lack of reasonable care by the Defendants. Further, the Plaintiffs aver that they acted in a reasonable manner to protect themselves and their property. 43. Denied, the acts and inaction of the Defendants were the direct and proximate cause of the harm to Plaintiffs. WHEREFORE, Plaintiffs pray you Honorable Court dismiss the New Matter of the Defendants and enter judgment in their favor and against Defendants in an amount not less than $50,000.00 together with punitive damages and cost of suit. Respectfully submitted, H. Anthony Adams, Esquire Attorney for Plaintiffs 49 W. Orange Street, Suite 3 Shippensburg, PA 17257 (717)-532-3270 VERIFICATION We verify that the statements made in this Amended Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. Date: Al BASIL PITTMAN Date: BRENDA PITTMAN ? t Johnson, Duffle, Stewart & Weidner By: Wade D. Manley I.D. No. 87244 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com BASIL PITTMAN and BRENDA PITTMAN, Plaintiffs V. COREY L. BOYD and MINDY J. BOYD, Defendants NO. 06-1271 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' PARTIAL MOTION FOR SUMMARY JUDGMENT AND NOW, come the Defendants, Corey L. Boyd and Mindy J. Boyd, by and through their counsel, Johnson, Duffle, Stewart & Weidner, P.C. and file these Preliminary Objections to the Plaintiffs' Complaint by respectfully stating the following: 1. This matter was commenced in this Court via the filing of a Complaint on March 7, 2006. After the filing of Preliminary Objections, the Plaintiffs filed an Amended Complaint. A copy of the Plaintiffs' Amended Complaint is attached hereto as Exhibit "A". 2. The Plaintiffs allege that the Defendants owned four Rottweiler dogs that, at some point in time, destroyed items of personal property including boots, baseball gloves and Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA the Plaintiffs' Labrador Retriever. See, Exhibit "A", IM4, 7 & 8. 3. Additionally, the Plaintiffs allege several other instances when the Defendants' dogs, over the course of time, allegedly affected their ability to perform routine, daily activities. See, Exhibit "A", 15. 4. The Plaintiffs have set forth four (4) theories of liability against the Defendants for allegedly failing to restrain their dogs. The four theories of liability are: (1) Negligence; (2) Strict Liability; (3) Trespass and (4) Nuisance. See, Exhibit "A", ¶¶11-30. 5. The Plaintiffs have also claimed that they are entitled to punitive damages and damages for "grave emotional stress and harm." See, Exhibit "A", ¶¶14, 16, 22, 26, 30, 32-33. 6. The Defendants file the instant Partial Motion for Summary Judgment seeking to dismiss Plaintiffs' Strict Liability and Negligence causes of action and dismiss their claim for punitive damages and emotional stress and harm. 7. Pennsylvania Rule of Civil Procedure 1035.2 governs Motions for Summary Judgment: ... any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2. 8. Moreover, summary judgment is generally warranted if, on review of the entire record, the trial court determines that there is no genuine issue of material fact. Snyder v. Specialty Glass Products, Inc., 441 Pa.Super. 613, 658 A.2d 366 (1995). 9. As stated by our Supreme Court in Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996): Allowing non-moving parties to avoid summary judgment where they have no evidence to support an issue on which they bear the burden of proof runs contrary to the spirit of Rule 1035. We have stated that the "mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial." Curran v. Philadelphia Newspapers. Inc., 497 Pa. 163, 176, 439 A. 2d 652, 658 (1981) (citations omitted). Id. at 100, 674 A.2d 1042. !. PLAINTIFFS' STRICT LIABILITY CAUSE OF ACTION MUST BE DISMISSED WITH PREJUDICE 10. Defendants incorporate paragraphs 1-9 of this Motion as though fully set forth at length herein. 11. The Plaintiffs seek to impose strict liability on the Defendants for harm caused by the Defendants' dogs simply because they owned the dogs, essentially to impose liability without the need for a determination as to fault. McCloud v. McLaughlin, 837 A.2d 541 (Pa. Super. 2003). 12. It is well-settled case law in Pennsylvania that strict liability on a dog owner is not imposed for dog attacks. McCloud, 837 A.2d 541, 544 (Pa.Super. 2003)("the Commonwealth does not impose absolute liability on the owner for dog attacks. As we have stated in previous cases: "we are convinced that proof of negligence, in contrast to holding one absolutely liable, is the vehicle by which accountability for injury sustained because of a dog bite is to be established." Id., at 544. (quoting Deardorff v. Burger. 414 Pa.Super. 45, 606 A.2d 489, 493 (1992))). 13. This precedent has long been established in Pennsylvania case law. ("The Court explicitly rejected imposing absolute liability upon the dog owner: 'We find it improvident and unnecessary to effect such a monumental change without legislative action.'" Villaume v. Kaufman, 379 Pa.Super. 561, 565, 550 A.2d 793, 795 (1988)(quoting Miller v. Hurst, 302 Pa.Super. 235, 244, 448 A.2d 614, 618-19 (1982)). 14. Because Pennsylvania Courts fail to recognize Plaintiffs' strict liability cause of action, it must be dismissed with prejudice. ll. PLAINTIFFS' NEGLIGENCE CAUSE OF ACTION MUST BE DISMISSED WITH PREJUDICE 15. Defendants incorporate paragraphs 1-14 of this Motion as though fully set forth at length herein. 16. Plaintiffs' negligence cause of action seeks to impose liability for "Defendants' deviation from a reasonable standard of care" in that the "care and control of their pack of dogs was substantially below the standard of care that would be exercised by a reasonable person." See, Exhibit "A", IM15-16. 17. The Pennsylvania Superior Court has adopted the statutory requirements of the Pennsylvania Dog Law, 3 P.S. §459-305, as the standard applied to determining whether a dog owner has exercised due care in the supervision of his dog. Villaume v. Kaufman, 379 Pa.Super. 561, 564-65, 550 A.2d 793, 795 (1988). 18. The Dog Law requires an owner to keep dogs firmly secured by a devise so that the dog cannot stray beyond the premises on which it is secured. 3 P.S. §459-305. 19. Pennsylvania law also completely absolves a dog owner from any liability for alleged negligent conduct if a dog owner can "show that the dog escaped despite the exercise of due care." Villaume, 379 Pa.Super. 561, 565, 550 A.2d 793, 795 (1988) (citing Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614, (1982)). 20. Both of the Plaintiffs admitted that the Defendants confined their dogs in an outside run, described as a 10' x 8' cage with a wire fence. See, Basil Pittman transcript, attached hereto as Exhibit "B", p.20. See, Brenda Pittman transcript, attached hereto as Exhibit "C", p.27. 21. Although there were times that the Defendants' dogs were able to get out of the cage, Defendant, Corey Boyd, testified that he repaired the fence to the cages if he learned that the dogs had gotten out of the cage. See, Corey Boyd transcript, attached hereto as Exhibit "D", p.27. 22. Plaintiffs have failed to offer any evidence that the Defendants failed to exercise due care in keeping the dogs confined to the cage, despite the Defendants' dogs escaping the cage on occasion. 23. Because Plaintiffs have failed to offer any evidence that the Defendants failed to exercise due care in keeping the dogs confined to the cage, despite the Defendants' dogs escaping the cage on occasion, Plaintiffs' cause of action for negligence must be dismissed with prejudice. Ill. PLAINTIFFS' CLAIM FOR RECOVERY FOR EMOTIONAL STRESS AND HARM MUST BE DISMISSED WITH PREJUDICE 24. Defendants incorporate paragraphs 1-23 of this Motion as though fully set forth at length herein. 25. Plaintiffs seek recovery after each of the four (4) counts asserted for "grave emotional stress and harm. See, Exhibit "A", ¶¶14, 16, 22, 26, and 30. 26. In Pennsylvania, "'[t]here can be no recovery for humiliation, disappointment, anxiety, or mental suffering or emotional distress when unconnected with physical injury or physical impact."Bosley v. Andrews, 184 Pa.Super. 396, 400, 135 A.2d 101, 103 (1957) (quoting Gefter v. Rosenthal, 384 Pa. 123, 125, 119 A. 2d 250, 251(1956)). 27. Additionally, there can be no recovery for fright alone or the consequences of fright. Id., 184 Pa.Super. 396, 401, 135 A.2d 101, 104 (citing Reardon v. Phila. Rapid Transit Co., 43 Pa. Super 344, (1910)). 28. In the case at issue, both Plaintiffs again admitted that they have not suffered any physical injury or physical impact. 29. Plaintiffs answered Interrogatories posed to them by saying that they never suffered any injuries or diseases to any part of their bodies as a result of any incident alleged in their Complaint, nor did they ever seek medical treatment for any injuries or diseases as a result of any incident alleged in their Complaint. See, Plaintiffs' Answers to Interrogatories, attached hereto as Exhibit "E", nos. 16-17. 30. Likewise, Plaintiffs deny being afflicted, receiving or suffering the effects of any injury, illness or disability due to the incidents alleged in their Complaint. See, Plaintiffs' Answers to Interrogatories, attached hereto as Exhibit "E", no. 25. 31. The Plaintiff and their family never sought any medical attention for any acts by the Defendants' dogs. See, Brenda Pittman transcript, attached hereto as Exhibit "C", p. 51. 32. Because Plaintiffs have failed to offer any evidence that they sustained any physical injury or impact to any part of their bodies as a result of any incident alleged in their Complaint, Plaintiff's claim for emotional stress and harm must be dismissed with prejudice. 1V. PLAINTIFFS' CL IM FOR PUNITIVE DAMAGES MUST BE DISMISSED WITH PREJUDICE 33. Defendants incorporate paragraphs 1-32 of this Motion as though fully set forth at length herein. 34. Under Pennsylvania law, in order to recover punitive damages, a plaintiff must prove that a defendant's conduct was of such an egregious nature to warrant the imposition of punitive damages. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980). 35. The law concerning pleading a claim for punitive damages is well set forth in Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980): An essential fact needed to support a claim for punitive damages is that the defendant 's conduct must have been outrageous. Outrageous conduct is an 'act done with bad motive or with a reckless indifference to the interests of others.' Focht v. Ra ada, 217 Pa.Super. 35, 38, 268 A.2d 157 (1970)(citing comment (b) to section 908 of the Restatement of Torts.) 'Reckless indifference to others', or as it is sometimes referred to, 'wanton misconduct', means that 'the actor has intentionally done an act of unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.' Evans v. Philadelphia Transportation Company, 418 Pa. 567, 574, 212 A. 2d 440, 443 (1965). Smith, 423 A.2d at 745 (1980). 36. Plaintiff needs to show some evil motive or outrageous conduct so that the trier of fact can properly consider the character of the defendant's act and nature and the extent of the harm that the defendant caused or intended to cause. Restatement (Second) of Torts §908. 37. Pennsylvania law regarding the issue of punitive damages requires evidence of conduct that is outrageous, specifically showing the defendant acted with evil motive or was recklessly indifferent to the rights of others. Hutchinson v. Luddv, 870 A.2d 766 (Pa. 2005) (quoting Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984)). 38. Punitive damages are not awarded for misconduct, which constitutes ordinary negligence such as inadvertence, mistake or errors of judgment. Restatement (Second) of Torts §908, comment (b). Punitive damages are not recoverable for negligent conduct. Hutchinson v. Luddv, 870 A.2d 766 (Pa. 2005) (quoting Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984)). 39. Plaintiffs have failed to prove the facts necessary to support a claim for punitive damages and it is proper for this Court to dismiss Plaintiffs' claim for punitive damages. The Plaintiffs' punitive damages claim must fail because, when examining all of the evidence in the light most favorable to the Plaintiffs, (1) the Defendants' culpability at most equates to negligence, not gross negligence, and certainly not intentional, malicious, willful, wanton, recklessly indifferent or with an evil motive. 40. The factual record reveals that the there was no risk of harm known to the Defendants that they failed to address, let alone that the Defendants willfully, recklessly or outrageously disregarded. 41. Plaintiffs admit that they never saw the Defendants' dogs attack a human being and that they were not aware of any instance when the Defendants' dogs attacked a human being. See, Brenda Pittman transcript, attached hereto as Exhibit "C", pp. 34-35. 42. The Defendants' dogs never attacked the Plaintiffs and no one ever told them that one of the Defendants' dogs had attacked them. See, Basil Pittman transcript, attached hereto as Exhibit "B", pp. 46. 43. In fact, the Plaintiff, Basil Pittman, clamed that even when he was discussing an instance when the Defendants' dogs were chasing his daughter on her bike, the dogs were not actually attacking her. See, Basil Pittman transcript, attached hereto as Exhibit "B", pp. 46. 44. The extent of the Plaintiffs' claims are that the Defendants' dogs caused harm to their property and that they didn't like them. They never claimed that the dogs would attack them, therefore it is impossible to impose punitive damages on the Defendants for willfully, recklessly or outrageously failing to alleviate a risk of harm, because there was no known risk of harm to the Plaintiffs that was expressed to the Defendants. 45. Whenever it was brought to the Defendants' attention that one of their dogs had escaped from the cage, the uncontradicted testimony of Corey Boyd reveals that Defendants would repair the cage to stop them from escaping again. 46. Because Plaintiffs have failed to offer any evidence that would support the imposition of punitive damages, Plaintiffs' claim for punitive damages must be dismissed with prejudice. WHEREFORE, Defendants respectfully request that this Honorable Court grant their Partial Motion for Summary Judgment and dismiss with prejudice Plaintiffs' strict liability and negligence causes of action and dismiss their claim for punitive damages and emotional stress and harm. JOHNSON, DUFFIE, STEWART & WEIDNER By. / v "! Wade D. an y, Esquire Attorney I. o. 87244 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 :310480 22740-2065 CERTIFICATE OF SERVICE AND NOW, this day of September, 2007, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: H. Anthony Adams, Esq. 49 West Orange Street, Suite 3 Shippensburg, PA 17257 JOHNSON, DUFFIE, STEWART & WEIDNER By: ? -JI "- WL: Ca n S. Jensen rw Q 'Z_. n.".. CA f 4'`t -?TiI4' L •? f'? • 1 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. ************************************************************************************************* CAPTION OF CASE (entire caption must be stated in full) BASIL PITTMAN and BRENDA PITTMAN (Plaintiff) NO. 06-1271 vs. COREY L. BOYD and MINDY J. BOYD, (Defendants) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court 1. State matter to be argued: Defendants' Motion for Partial Summary Judgment. 2. Identify counsel who will argue case: a) For Plaintiffs: H. Anthony Adams, Esquire Address: 49 West Orange Street, Suite 3 Shippensburg, PA 17257 b) For Defendants: Wade D. Manley Address: 301 Market Street, Lemoyne, PA 17043 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 21, 2007 Call of Argument List Date: Npovember 1, 2007 Uv e D. Manley, Esquire Att ney . D. No. 87244 Attor s for Defendants Date: :313641 % • 4. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe For Listing Case For Argument upon all parties or counsel of record by depositing a copy of same in the United States Mail at , 2007, Lemoyne, Pennsylvania, with first-class postage prepaid on the ? day of L?? addressed to the following: H. Anthony Adams, Esquire 49 West Orange Street, Suite 3 Shippensburg, PA 17257 JOHNSON, DUFFIE, STEWART & WEIDNER By: ?? t"A Wa . anley, Esquire Attorne i I D. No. 87244 301 Ma et Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants C'? ' G , f CD 1.s7 BASIL PITTMAN AND IN THE COURT OF COMMON PLEAS OF BRENDA PITTMAN, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. COREY L. BOYD AND MINDY J. BOYD, DEFENDANTS 06-1271 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR PARTIAL SUMMARY JUDGMENT BEFORE BAYLEY, J. AND HESS, J. ORDER OF COURT AND NOW, this I"Z - day of December, 2007, IT IS ORDERED: (1) Summary judgment is granted on plaintiffs' count based on strict liability.' (2) The remainder of the motion for partial summary judgmenqj?YlED. By thq eburt, Edgar B. ?n. Anthony Adams, Esquire For Plaintiffs ?VNade D. Manley, Esquire For Defendants :sal , J. ' A violation of the Dog Law sounds in negligence and an unexcused violation of the Dog Law constitutes negligence per se, not strict liability. Miller v. Hurst, 302 Pa. Super. 235 (1982). LL.1 C) G LL- } 0 ? t"f e /TL r Tf r ?`' r( 3It, PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ?X for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) BASIL PITTMAN and BRENDA PITTMAN June 1, 2010 The trial list will be called on and (other) VS. COREY L. BOYD and MINDY J. BOYD vs. (Plaintiff) (Defendant) June 21, 2010 Trials commence on June 9, 2010 Pretrials will be held on (Briefs are due S days before pretrials No. 06-1271 Indicate the attorney who will try case for the party who files this praecipe: H. Anthony Adams Term Indicate trial counsel for other parties if known: Wade D. Manley of Johnson, Duffie,Stewart and Weidner This case is ready for trial. Signed: -L N H. Anthony Adams Print Name: Date: Attorney for: Plaintiff *as.00 PO '%1W Ck,* QW8 PT*-amM 2010 NA, C Um WTI/ (check one) ?X Civil Action - Law ? Appeal from arbitration IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Basil Pittman Brenda Pittman Plaintiffs vs. Corey L. Boyd Mindy J. Boyd Defendants TO THE PROTHONOTARY: No. 06-1271 Civil Action-Law PRAECIPE _ t ,~, om: ._ ;.~ ~ _ ; --r~ -'"" --- ' , v •rz. ~ .~ N Q~ ~~~ The above captioned matter having been settled, please mark the docket as settled and the action discontinued with prejudice. Respectfully, Date: i/v `~ H. Anthony Adams, Esquire Attorney for Plaintiff 49 W. Orange Street, Suite 3 Shippensburg, PA 17257 Attorney ID No. 25502 (717)-532-3270