HomeMy WebLinkAbout02-1398MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. o -J gr
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 for any other claim or relief requested by the Plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER 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, PA 17013
(717) ~~
Richard E. Freeburn, EsXquire
FREEBURN & HAMILTON
4415 North Front Street
Harrisburg PA 17110
(717) 671-1955
I.D. #30965
Date: 3/14/02 Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
:
NOTICE
Le han demandado a usted en la corte. Si usted quiere defenderse de estas
demandas expuestas en las paginas siguientes, usted tiene viente {20) dias cle plazo al
portir de la fecha de la demanda y la notification. Usted debe presentor ua apariencia
esrita o en persona o por abo§ado y orchivor en la corte en forma escrita sus defensas
o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted
no se defiende, la corte tomara medidas y puede entror una orden contra usted sin
previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de
demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes
para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
ic ard E Freebum, Esquire
FREEBURN & HAMILTON
4415 North Front Street
Harrisburg PA 17110
(7171 671-1955
I.D. #30965
Date: 3/14/02
Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
Vo
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes Plaintiff, Michael Walls, by his attorneys, Freeburn &
Hamilton, and who files the following Complaint:
1. Plaintiff, Michael Walls, an adult individual, resides at 650 N.
College Street, Carlisle, Cumberland County, Pennsylvania.
2. Defendant, Carlisle Area Health and Wellness Foundation,
previously known as Carlisle Hospital and Health Services, is a corporation,
organized under the laws of the Commonwealth of Pennsylvania, with a
principal place of business at 274 Wilson Street, Carlisle, Cumberland County,
Pennsylvania.
3. On September 14, 2000, Defendant owned the real property,
together with buildings and appurtenances located thereon, known and
numbered as 5 Sprint Drive, Carlisle, Cumberland County, Pennsylvania and
5A Sprint Drive, Carlisle, Cumberland County, Pennsylvania where they
conducted business as the Carlisle Surgery Center and the Carlisle Cancer
Center (hereinafter "Defendants' Property").
4. At ail times relevant hereto, the Defendants were in possession,
custody and control of Defendants' Property, either exclusively or aiong with
others.
5. On September 14, 2000, Plaintiff was performing grass cutting at
Defendants' Property.
6. At ail times relevant hereto, Plaintiff was on the Defendants'
Property for a purpose directly connected with Defendants' business.
7. At approximately 10:30 a.m., a portion of the Defendants' Property
collapsed under Plaintiff while he was operating a riding lawn mower.
8. As a result of this collapse, Plaintiff was pt/lied into a large hole in
the ground and was pinned ~nd trapped by the lawnmower that fell into the
hole on top of him.
9. After being freed from the hole, Plaintiff was airlifted by helicopter
to the Hershey Medicai Center.
10. As a result of the aforesaid incident, Plaintiff sustained painful and
severe injuries to his nerves, bones and soft tissues that include, but are not
limited to, contusions to his knees, head and back.
11. As a result of the aforesaid incident, Plaintiff suffers from emotionai
distress and depression.
12. Defendants knew, or reasonably should have known, that the
defect or dangerous condition of Defendants' Property created an unreasonable
risk of harm.
13. Defendants should have realized that a business invitee, such as
Plaintiff, would not realize the dangerous or defective cbndition or would fail to
take steps to protect himself against it.
14. The defect or dangerous condition existed for a sufficient period of
time for the Defendants to discover it;
15. The foregoing incident and all of Plaintiffs injuries and damages as
set forth hereinafter are the direct and proximate result of the following
negligent, careless, wanton and reckless manner in which Defendants
maintained the Defendants' Property on September 14, 2000:
ao
bo
go
In failing to exercise reasonable care to ensure the safety of
business invitee such as Plaintiff;
In failing to anticipate the defect or dangerous condition;
In failing to adequately anticipate the harm that the
dangerous condition would cause to business invitees such
as Plaintiff;
In failing to exercise reasonable care in inspecting the
premises in order to discover the dangerous condition;
In failing to take the reasonably prudent steps to remedy the
defect or dangerous condition.
In failing to give warning of the dangerous condition, provide
a barricade, or to take other safety precautions to prevent
injury to business invitees such as Plaintiff; and
In failing to adequately supervise and manage its employees
who were aware of the dangerous condition that caused
Plaintiffs injuries and who failed to erect the necessary
barricades or provide the required notice to Plaintiff.
16. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Wails, he has suffered a heightened possibility that he will suffer other
or additional injury in the future, and claim is made therefore.
17. The aforesaid injuries sustained by Plaintiff, Michael Walls, may
have aggravated or been aggravated by an existing infirmity, condition or
disease, resulting in a prolongation or worsening of the injuries and an
enhanced risk of future harm to Plaintiff, Michael Wails, and claim is made
therefore.
18. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he was forced to incur liability for reasonable and necessary
medical tests, medical examinations, medical treatment, medications,
hospitalizations, rehabilitation and therapies and similar expenses in an effort
to diagnose his injuries and to restore himself to health, and claim is made
therefore.
19. Plaintiff, Michael Walls has not fully recovered from his injuries
and it is reasonably likely that he will incur similar expenses in the future, and
claim is made therefore.
20. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has suffered a loss of earnings and earning capacity and is
entitled to recover the value of the time, earnings and employment benefits he
has lost and which he might reasonably have earned in the pursuit of his
ordinary calling, and claim is made therefore.
21. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has suffered a loss or impairment of future earning capacity,
and claim is made therefore.
22. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has incurred incidental costs and expenses the exact amount
of which cannot be ascertained at this time.
23. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has undergone and in the future will undergo great physical
and mental pain and suffering, great inconvenience in carrying out his daily
activities, loss of life's pleasures and enjoyment, and claim is made therefore.
24. As a result of Defendant's negligence, carelessness and
recklessness and the aforesaid injuries sustained by Plaintiff, Michael Walls, he
has been subjected to severe humiliation, embarrassment, shame, worry and
anger.
25. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has been subjected to severe mental anguish, emotional
distress, nervous shock, fright and horror.
26. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he will continue to endure great mental anguish, emotional
distress, shame, worry and anger in the future.
27. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Wails, he has been deprived his enjoyment of the pleasures of life.
28. Plaintiff, Michael Walls, continues to be plagued by persistent pain
and limitation and, therefore, avers that his injuries may be of a permanent
nature, causing residual problems for the remainder of his lifetime, and claim
is made therefore.
29. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has sustained a disfigurement that is permanent, and claim
is made therefore.
WHEREFORE, Plaintiff, Michael Walls, demands judgment in his favor,
and against Defendants in an amount in excess of TWENTY-FIVE THOUSAND
& 00/100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess
of any jurisdictional amount requiring compulsory arbitration.
Dated: 3/14/02
By:
Respectfully submitted,
FItI~I~liIJRIq I~ ~IAI~IL?OI~
Richard E. FreebOrn, ~luire
I.D. No. 30965
411 $ N. Front Street
Harrisburg, PA 17110
(717) 671-1955
Attorneys for Plaintiff
VERIFICATION
I hereby verify that the statements in the foregoing document
are true and correct. I understand that false statements herein are
made subject to the penalties of 18 Pa:C.S. Section 4904, relating
to unsworn falsification to authorities.
Dated:
MICH.kEL L. WALLS'
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
Please enter the appearance of the undersigned as counsel for Defendant, Carlisle
Health and Wellness Foundation previously known as Carlisle Hospital and Health Services,
in the above-captioned matter.
Re~ectfallysubm~ted,
FARRELL & RICCI, P.C.
Date:
.,.~'~seph A. R~i, E~quff~--
Ma~c T. Le~in v V --
Attorney I.D. No. 70294
4423 North Front Street
Harrisburg, PA 17110
(717) 230-9201
Counsel for Defendant Carlisle Health and
Wellness Foundation
CERTIFICATE OF SERVICE
AND NOW, this ]~day of April, 2002, I, Marc T. Levin, Esquire, hereby certify
that I served a true and correct copy of the foregoing Entry of Appearance upon all counsel
of record by depositing a copy of same in the United States mail, regular dehvery, postage
prepaid at Harrisburg, Pennsylvania, addressed as follows:
Richard E. Freeburn, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Marc T~ Levin, t~squire
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
TO:
Michael L. Walls, Plaintiff
cio Richard E. Freeburn, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Counsel for Plaintiff
NOTICE TO PLEAD
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE PRELIMINARY
OBJECTIONS TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS OF
SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
FARRELL & RICCI, P.C.
Marc T. Levin, Esqmre
Attorney I.D. No. 70294
4423 N. Front Street
Harrisburg, PA 17110
(717) 230-9201
Counsel for Defendant Carlisle Area Health
and Wellness Foundation
MICHAEL L. WALLS, :
Plaintiff :
CARLISLE AREA HEALTH AND :
WELLNESS FOUNDATION, previously :
known as CARLISLE HOSPITAL AND :
HEALTH SERVICES, :
Defendants :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 Civil
CIVIL ACTION. LAW
JURY TRIAL DEMANDED
ORDER
AND NOW this day of ~ 2002, upon consideration
of the foregoing Preliminary Objections of Defendant CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, it is hereby ORDERED and DECREED that Defendant's
Preliminary Objections are granted in accordance with the prayers for relief contained
therein.
BY THE COURT:
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANT
CARLISLE AREA HEALTH AND WELLNESS FOUNDATION
TO PLAINTIFF'S COMPLAINT
AND NOW, comes Defendant, CARLISLE AREA HEALTH AND WELLNESS
FOUNDATION, by and through its counsel, Farrell & Ricci, P.C., by Marc T. Levin, Esquire
and prehminarily objects to Plaintiffs Complaint as follows:
1. The above-captioned action was commenced with the service of a Complaint
upon Defendant on March 26, 2002.
2. According to the Complaint, Plaintiff, while operating a riding lawnmower and
cutting the grass on Defendant's property, was pulled into a hole in the ground and was
pinned and trapped by the lawnmower that fell into the hole on top of him. A true and correct
copy of the Complaint is attached hereto and marked as "Exhibit A".
3. Plaintiff seeks to hold Defendant hable for his alleged injuries and damages,
based upon the duty owed by a landowner to a business invitee.
I. MOTION TO DISMISS
4. Contained within Paragraphs 11, 25 and 26 of Plaintiffs Complaint, Plaintiff
employs the language "suffers from emotional distress and depression", "subjected to sever
mental anguish" and "endure great mental anguish, emotional distress...", in describing what
the Defendant has caused Plaintiff to allegedly suffer or will allegedly continue to suffer.
5. It is clear that Pennsylvania Law has never "recognized an independent tort of
negligent infliction of emotional distress." Armstrong v. Paoli, 633 A. 2d 605 (Pa. Super 1993).
6. The theory of intentional infliction of emotional distress has not been
recognized as a proper basis of recovery in Pennsylvania. (See e.g. Kazatekv v. King David
Memorial Park., 527 A. 2d 988 (Pa. 1987).
7. To the extent the aforedescribed language contained in Paragraphs 11, 25 and
26 of Plaintiffs Complaint attempt to plead a claim for intentional or negligent infliction of
emotional distress, Plaintiff has failed to state a claim upon which relief can be granted.
8. Even ff this Honorable Court were to opine that intentional and/or negligent
infliction of emotional distress are viable causes of action, Plaintiff has failed to plead a proper
factual predicate for either cause of action.
9. Further, ff it is Plaintiffs intention to state a claim for intentional and/or
negligent infliction of emotional distress, Plaintiff has improperly commingled those causes of
action within the same count.
10. Pursuant to Pa.R.C.P. 1020(a), "the plaintiff may state in the complaint more
than one cause of action against the same defendant heretofore asserted in assumpsit or
trespass. Each cause of action and any special damage related thereto shall be stated in a
separate count containing a demand for relief" (Emphasis added.)
2
11. Plaintiff, by failing to state the separate causes of action in separate counts,
greatly prejudices the Defendant as it is unsure as to what theories must be defended at the
time of trial.
12. By attempting to combine separate and distinct causes of action, Plaintiff has
violated the requirement of Pa.R.C.P. 1020(a), that each cause of action shall be stated in a
separate count containing a demand for relief and; therefore, this Honorable Court is
empowered, pursuant to Pa.R.C.P. 1028(a)(2), to strike the aforedescribed language from the
Complaint for failure to conform to law or rule of Court.
13. This Honorable Court is aiso empowered, pursuant to Pa.R.C.P. 1028(a)(4), to
dismiss the aforesaid emotional distress language for failure to state a claim upon which relief
can be granted.
14. Pursuant to the Pennsylvania Rules of Civil Procedure, it is necessary for a
party to set forth in concise and summary form all facts which support their alleged claims
of liability.
15. Inclusion of language which could be construed as an attempt to inject claims
of intentional or negligent infliction of emotional distress into a garden-variety premises
liability case, potentially allows Plaintiff to circumvent the bar of the Statute of Limitations
by amending the pleading to more particularly plead those theories of liability which were
not specifically stated at the time of the initial pleading. See Conner v. Allegheny General
Hospital, 461 A. 2d 600 (Pa. 1983).
16. Pursuant to Pa.R.C.P. 1028(a)(2), it is appropriate to strike from a pleading
those averments which fail to conform to law or rule of court by failing to specifically plead
the necessary factual predicate to support its claims.
3
WHEREFORE, it is respectfully requested that this Honorable Court strike the
aforedescribed language from Plaintiffs Complaint to the extent that it constitutes an
attempt to plead causes of action based upon intentional and/or negligent infliction of
emotional distress or, alternatively, strike the aforedesribed language from Plaintiffs
Complaint for failure to conform to law or rule of Court by commingling separate and
distinct causes of action.
Respectfully submitted,
Date:
FARRELL & RICCI, P.C.
Marc T. Levin, EsqUire
Attorney I.D. No. 70294
4423 N. Front Street
Harrisburg, PA 17110
(717) 230-9201
Counsel for Defendant Carlisle Area
Health and Wellness Foundation
4
EXHIBIT A
MICHAEL L. WALLS,
Plaintiff
Vo
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
CML 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 for any other claim or relief requested by the Plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER 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, PA 17013
(717) 27~q.-3166 /'
Richard E. Freeburn, E~quire
FREEBURN & HAMILTON
4415 North Front StreEt
Harrisburg PA 17110
{717) 671-1955
I.D. #30965
Date: 3/14/02 Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO.
:
: CIVIL ACTION - LAW
:
:
: JURY TRIAL DEMANDED
:
NOTICE
Le han demandado a usted en la corte. Si usted quiere defenderse de estas
demandas expuestas en las paginas siguientes, usted tiene viente (20} dias de plazo al
partir de la fecha de la demanda y la notification. Usted debe presentar ua apariencia
esrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas
o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted
no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de
demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes
para usted.
LLEVE ESTA DEMA.NDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ~
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DON'DE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
Richard E. Freeburn;' Esquire
FREEBURN & HAMILTON
4415 North Front Street
Harrisburg PA 17110
(717) 671-1955
I.D. #30965
Date: 3/14/02 Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02- /~? ~ "~--
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes Plaintiff, Michael Walls, by his attorneys, Freebum &
Hamilton, and who files the following Complaint:
1. Plaintiff, Michael Walls, an adult individual, resides at 650 N.
College Street, Carlisle, Cumberland County, Pennsylvania.
2. Defendant, Carlisle Area Health and Wellness Foundation,
previously known as Carlisle Hospital and Health Services, is a corporation,
organized under the laws of the Commonwealth of Pennsylvania, with a
principal place of business at 274 Wilson Street, Carlisle, Cumberland County,
Pennsylvania.
3. On
together with
September 14, 2000, Defendant owned the real property,
buildings and appurtenances located thereon, known and
numbered as 5 Sprint Drive, Carlisle, Cumberland County, Pennsylvania and
5A Sprint Drive, Carlisle, Cumberland County, Pennsylvania where they
conducted business as the Carlisle Surgery Center and the Carlisle Cancer
Center (hereinafter 'Defendants'.Property').
4. At all times relevant hereto, the Defendants were in possession,
custody and control of Defendants' Property, either exclusively or along with
others.
5. On September 14, 2000, Plaintiff was performing grass cutting at
Defendants' Property.
6. At all times relevant hereto, Plaintiff was on the Defendants'
Property for a purpose directly connected with Defendants' business.
7. At approximately 10:30 a.m., a portion of the Defendants' Property
collapsed under Plaintiff while he was operating a riding lawn mower.
8. As a result of this collapse, Plaintiff was pulled into a large hole in
the ground and was pinned aLnd trapped by the lawnmower that fell into the
hole on top of him.
9. After being freed from the hole, Plaintiff was airlifted by helicopter
to the Hershey Medical Center.
10. As a result of the aforesaid incident, Plaintiff sustained painful and
severe injuries to his nerves, bones and soft tissues that include, but are not
limited to, contusions to his knees, head and back.
11. As a result of the aforesaid incident, Plaintiff suffers from emotional
distress and depression.
12. Defendants knew, or reasonably should have known, that the
defect or dangerous condition of Defendants' Property created an unreasonable
risk of harm.
13. Defendants should have realized that a business invitee, such as
Plaintiff, would not realize the dangerous or defective condition or would fail to
take steps to protect himself against it.
2
14. The'defect or dangerous condition existed for a sufficient period of
time for the Defendants to discover it;
15. The foregoing incident and all of Plaintiffs injuries and damages as
set forth hereinafter are the direct and proximate result of the following
negligent, careless, wanton and reckless manner in which Defendants
maintained the Defendants' Property on September 14, 2000:
eo
In failing to exercise reasonable care to ensure the safety of
business invitee such a~ Plaintiff;
In failing to anticipate the defect or dangerous condition;
In failing to adequately anticipate the ha~ m that the
dangerous condition would cause to business invitees such
as Plaintiff;
In failing to exercise reasonable care in inspecting the
premises in order to discover the dangerous condition;
In failing to take the reasonably prudent steps to remedy the
defect or dangerous condition.
In failing to give warning of the dangerous condition, provide
a barricade, or to take other safety precautions to prevent
injury to business invitees such as Plaintiff; and
In failing to adequately supervise and manage its employees
who were aware of the dangerous condition that caused
Plaintiffs injuries and who failed to erect the necessary
barricades or provide the required notice to Plaintiff.
16. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has suffered a heightened possibility that he will suffer other
or additional injury in the future, and claim is made therefore.
3
17. The aforesaid injuries sustained by Plaintiff, Michael Walls, may
have aggravated or been aggravated by an existing infirmity, condition or
disease, resulting in a prolongation or worsening of the injuries and an
enhanced risk of future harm to Plaintiff, Michael Wails, and claim is made
therefore.
18. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he was forced to incur liability for reasonable and necessary
medical tests, medical examinations, medical treatment, medications,
hospitalizations, rehabilitation and therapies and similar expenses in an effort
to diagnose his injuries and to restore himself to health, and claim is made
therefore.
19. Plaintiff, Michael Walls has not fully recovered from his injuries
and it is reasonably hkely that he will incur similar expenses in the future, and
claim is made therefore.
20. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has suffered a loss of earnings and earning capacity and is
entitled to recover the value of the time, earnings and employment benefits he
has lost and which he might reasonably have earned in the pursuit of his
ordinary calling, and claim is made therefore.
21. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Wails, he has suffered a loss or impairment of future earning capacity,
and claim is made therefore.
4
22. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Wails, he has incurred incidental costs and expenses the exact amount
of which cannot be ascertained at this time.
23. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Wails, he has undergone and in the future will undergo great physicai
-and mentai pain and suffering, great inconvenience in carrying out his daily
activities, loss of life's pleasures and enjoyment, and claim is made therefore.
24. As a result of Defendant's negligence, carelessness and
recklessness and the aforesaid injuries sustained by Plaintiff, Michael Walls, he
has been subjected to severe humiliation, embarrassment, shame, worry and
anger.
25. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Wails, he has been subjected to severe mentai anguish, emotionai
distress, nervous shock, fright and horror.
26. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Wails, he will continue to endure great mentai anguish, emotionai
distress, shame, worry and anger in the future.
27. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Wails, he has been deprived his enjoyment of the pleasures of life.
28. Plaintiff, Michael Walls, continues to be plagued by persistent pain
and limitation and, therefore, avers that his injuries may be of a permanent
nature, causing residual problems for the remainder of his lifetime, and claim
is made therefore.
29. As a result of Defendant's negligence, carelessness and
recklessness and by reason of the aforesaid injuries sustained by Plaintiff,
Michael Walls, he has sustained a disfigurement that is pemxanent, and claim
is made therefore.
WHEREFORE, Plaintiff, Michael Walls, demands judgment in his favor,
and against Defendants in an amount in excess of TWENTY-FIVE THOUSAND
& 00/100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess
of any jurisdictional amount requiring compulsory arbitration.
Dated: 3/14/02
By:
Respectfully submitted,
FREEBURN ~ HAMILTON
Richard' E. FrYeburn, Esquire
I.D. No. 30965
4115 N. Front Street
Harrisburg, PA 17110
(717) 671-1955
Attorneys for Plaintiff
3RUE COPY FROM RECORD
~ Testimony wner~f, I here u~o set my ~.~c
a;:d ~h~ ~al ~ sa~d Coua ~ ~disle. ~.
VERIFICATION
I hereby verify that the statements in the foregoing document
are true and correct. I understand that fa/se statements herein are
made subject to the penalties of 18 Pa.C.S. Section 4904, relating
to unsworn falsification to authorities.
Dated:
MICHAEL L. WALLS
CERTIFICATE OF SERVICE
AND NOW, this /~day of April, 2002, I, Marc T. Levin, Esquire, hereby certify
that I served a true and correct copy of the foregoing Preliminary Objections upon all
counsel of record by depositing a copy of same in the United States mail, regular delivery,
postage prepaid at Harrisburg, Pennsylvania, addressed as follows:
Richard E. Freeburn, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Marc T. Levin, Esq~~e~'
MICHAEL L. WALLS, :
Plaintiff :
CARLISLE AREA HEALTH AND :
WELLNESS FOUNDATION, previously :
kndwn as CARLISLE HOSPITAL AND :
HEALTH SERVICES, ,,, :
Defendants :
W~LNUT BOTTOM LANDSCAPING, :
Additional Defendant :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE FOR V~RIT AND WRIT TO JOIN ADDITIONAL DEFENDANTS
TO THE PROTHONOTARY OF SAID COURT:
Issue writ to join the following as additional defendant(s) in the above-captioned
case: Walnut Bottom Landscaping, 2597 Walnut Bottom Road, Carlisle, PA 17013.
Counsel for the Defendants (Third-Party Plaintiff) is:
Marc T. Levin, Esquire
Farrell & Ricci
4423 N. Front Street
Harrisburg, PA 17110
Counsel for Additional Defendant (if known and verified)is: Unkno_o_o_o_o_o_o_o_o_~wn.~/
Date: i/~/~)~ Signatnre: ~/'~-~k~ _q-~z~--kk ~-
Print Name: Marc ~,/~in, ~squire
Address: Farrell & Ricci
4423 North Front Street
Harrisburg, PA 17110
Supreme Court ID No. 70294
Telephone No. (717) 230-9201
WRIT Ot ~ ___- TO JOIN ADDITIONAL DEFENDANT
TO: Walnut Bottom Landscaping, 2597 Walnut Bottom Road, Carlisle, PA17013,
YOU ARE NOTIFIED THAT Carlisle Area Health and Wellness Foundation,
previously known as Carlisle Hospital and Health Services HAS JOINED YOU AS AN
ADDITIONAL DEFENDANT IN THIS ACTION, WHICH YOU ARE REQUIRED TO
DEFEND.
Date:
Prothonotary
- /I~puty
CERTIFICATE OF SERVICE
AND NOW, this ay of April, 2002, I, Marc T. Levin, Esquire, hereby certify
that I served a true and correct copy of the foregoing Praecipe for Writ and Writ of
Summons to Join Additional Defendant Walnut Bottom Landscaping upon all counsel
of record by depositing a copy of same in the United States mail, regular delivery, postage
prepaid at Harrisburg, Pennsylvania, addressed as follows:
Richard E. Freeburn, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
Vo
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398
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 for any other claim or relief requested by the Plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER 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, PA 17013
(717) 249-3166
8tephc~n A.'Schneider, Esqdire
FREEBURN & HAMILTON
4415 North Front Street
Harrisburg PA 17110
(717) 671-1955
I.D. #78077
Date: 5/3/02 Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 02-1398
:
:
: CIVIL ACTION - LAW
:
: JURY TRIAL DEMANDED
:
NOTICE
Le han demandado a usted en la torte. Si usted quiere defenderse de estas
demandas expuestas en las paginas siguientes, usted tiene viente {20) dias de plazo al
partir de la fecha de la demanda y la notification. Usted debe presentar ua apariencia
esrita o en persona o por abo§ado y archivar en la corte en forma escrita sus defensas
o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted
no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de
demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes
para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
S~e p l~c~'n A.qSchn~ider, Esquir~
FREEBURN & HAMILTON
4415 North Front Street
Harrisburg PA 17110
(717) 671-1955
I.D. #78077
Date: 5/3/02 Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398 Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
AMENDED COMPLAINT
AND NOW, comes Plaintiff, Michael Walls, by his attorneys, Freeburn &
Hamilton, and who files the following Complaint:
1. Plaintiff, Michael Walls, an adult individual, resides at 650 N.
College Street, Carlisle, Cumberland County, Pennsylvania.
2. Defendant, Carlisle Area Health and Wellness Foundation,
previously known as Carlisle Hospital and Health Services, is a corporation,
organized under the laws of the Commonwealth of Pennsylvania, with a
principal place of business located at 274 Wilson Street, Carlisle, Cumberland
County, Pennsylvania.
3. On September 14, 2000, Defendant owned the real property,
together with buildings and appurtenances located thereon, known and
numbered as 5 Sprint Drive, Carlisle, Cumberland County, Pennsylvania and
5A Sprint Drive, Carlisle, Cumberland County, Pennsylvania where it
conducted business as the Carlisle Surgery Center and the Carlisle Cancer
Center (hereinafter "Defendant's Property").
4. At all times relevant hereto, the Defendant was in possession,
custody and control of Defendant's Property, either exclusively or in
conjunction with others.
5. On September 14, 2000, Plaintiff was performing grass cutting at
Defendant's Property.
6. At all times relevant hereto, Plaintiff was a business invitee on the
Defendant's Property for a
business.
7. Plaintiff believes,
purpose directly connected with Defendant's
and therefore avers, that Defendant's property
had one or more holes located on it and that the ground around the holes was
unstable.
8. Plaintiff believes, and therefore avers, that Defendant knew of the
hole or holes and the aforesaid conditions on its property or by the exercise of
reasonable care would have discovered the condition and should have realized
that it involved an unreasonable risk of hai-m to invitees such as Plaintiff.
9. Defendant knew, or reasonably should have known, that the defect
or dangerous condition of Defendant's Property created an unreasonable risk of
harm.
10. Defendant should have realized that business invitees, such as the
Plaintiff, would not realize the dangerous or defective condition or would fail to
take steps to protect themselves against it.
11. At approximately 10:30 a.m., Plaintiff was operating a riding lawn
mower on Defendants property when a portion of the Defendant's Property near
a hole collapsed under him.
12. As a result of this collapse, Plaintiff was pulled into a large hole in
the ground and was pinned and trapped by the lawnmower that fell into the
hole on top of him.
13. After being freed from the hole, Plaintiff was airlifted by helicopter
to the Hershey Medical Center.
14. As a result of the aforesaid incident, Plaintiff sustained painful and
severe injuries to his nerves, bones and soft tissues that include, but are not
limited to, contusions to his knees, head and back.
15. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, a heightened
possibility exists that the Plaintiff will suffer other or additional physical injury
in the future, and claim is made therefore.
16. The aforesaid injuries sustained by Plaintiff may have aggravated
or been aggravated by an existing infirmity, condition or disease, resulting in a
prolongation or worsening of the injuries and an enhanced risk of future harm
to Plaintiff, and claim is made therefore.
17. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff was
forced to incur liability for reasonable and necessary medical tests, medical
examinations, medical treatment, medications, hospitalizations, rehabilitation,
therapies and similar expenses in an effort to diagnose his injuries and to
restore him to health, and claim is made therefore.
18. Plaintiff has not fully recovered from his injuries and it is
reasonably likely that he will incur similar expenses in the future, and claim is
made therefore.
19. As a result of Defendant's negligence, carelessness, and
recklessness and the aforesaid injuries he sustained, Plaintiff was subjected to
severe humiliation, embarrassment, shame, worry and anger.
20. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff was
deprived his enjoyment of the pleasures of life.
21. Plaintiff continues to be plagued by persistent physical and
emotional pain and limitation and, therefore, avers that his injuries may be of a
permanent nature, causing residual problems for the remainder of his lifetime,
and claim is made therefore.
22. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff
suffered a loss of earnings and earning capacity and is entitled to recover the
value of the time, earnings and employment benefits he lost and which he
might reasonably have earned in the pursuit of his ordinary calling, and claim
is made therefore.
23. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff
suffered a loss or impaim~ent of future earning capacity, and claim is made
therefore.
24. As a result of Defendant's negligence, carelessness, and
recklessness, and by reason of the aforesaid injuries he sustained, Plaintiff
incurred incidental costs and expenses, the exact amount of which cannot be
ascertained at this time.
25. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff
underwent and in the future will undergo great physical pain and suffering,
great inconvenience in carrying out his daily activities, loss of life's pleasures
and enjoyment, and claim is made therefore, and claim is made therefore.
26. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the physical injuries, Plaintiff sustained a
physical disfigurement that is permanent, and claim is made therefore.
27. As a direct and proximate result of the Defendant's negligence the
Plaintiff suffered the above-described bodily injuries, which were accompanied
by severe mental anguish, mental suffering, emotional distress, nervous shock,
flight and horror and which mental suffering is directly traceable to the peril in
which the Defendant's negligence placed the Plaintiff.
28. As a direct and proximate result of Defendant's negligence,
carelessness, and recklessness and by reason of the aforesaid injuries he
sustained, Plaintiff will continue to endure great mental anguish, mental
suffering, emotional distress, shame, worry, and anger in the future and which
mental suffering is directly traceable to the peril in which the Defendant's
negligence placed the Plaintiff.
29. As a result of the aforesaid incident and the injuries he sustained
as a result, Plaintiff suffers from emotional distress, post-traumatic stress
disorder and depression directly traceable to the peril in which the Defendant's
negligence placed the Plaintiff.
COUNT I
Premises Liability - Dangerous Condition
30. Paragraphs 1-29 above are incorporated herein by reference as if
fully set forth at length.
31. The foregoing incident and ail of Plaintiffs injuries and consequent
damages as set forth hereinafter are the direct and proximate result of the
following negligent, careless, wanton and reckless manner in which Defendant
maintained its Property on September 14, 2000:
bo
eo
In failing to exercise reasonable care to ensure the safety of
business invitee such as Plaintiff;
In failing to anticipate the defect or dangerous condition;
In failing to adequately anticipate the hai-m that the
dangerous condition would cause to business invitees such
as Plaintiff;
In failing to exercise reasonable care in inspecting the
premises in order to discover the dangerous condition;
In failing to take the reasonably prudent steps to remedy the
defect or dangerous condition.
In failing to give warning of the dangerous condition, provide
a barricade, or to take other safety precautions to prevent
injury to business invitees such as Plaintiff; and
In failing to adequately supervise and manage its employees
who were aware of the dangerous condition that caused
Plaintiffs injuries and who failed to erect the necessary
barricades or provide the required notice to Plaintiff.
WHEREFORE, Plaintiff, Michael Wails, demands judgment in his favor,
and against Defendants in an amount in excess of TWENTY-FIVE THOUSAND
& 00/100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess
of any jurisdictional amount requiring compulsory arbitration.
COUNT II
Negligent Infliction of Emotional Distress
32. Paragraphs 1-31 above are incorporated herein by reference as if
fully set forth at length.
33. As a direct result of Defendant's negligent actions and/or failure to
act as described above, the Plaintiff suffered physical and psychological injuries
entitling him to recover damages from the Defendant, and claim is made
therefore.
WHEREFORE, Plaintiff, Michael Walls, demands judgment in his favor,
and against Defendants in an amount in excess of TWENTY-FIVE THOUSAND
& 00/100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess
of any jurisdictional amount requiring compulsory arbitration.
Respectfully submitted,
FREEBURN & HAMILTON
By:
I.D. No. 78077
4115 N. Front Street
Harrisburg, PA 17110
(717) 671-1955
Dated: 5/3/02
Attorneys for Plaintiff
VERIFICATION
I hereby verify that the statements in the foregoing document
are true and correct. I understand that false statements herein are
made subject to the penalties of 18 Pa.C.S. Section 4904, relating
to unsworn falsification to authorities.
Dated:
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
Plaintiffs Amended Comphint has been duly served on the following
this 3rd day of May, 2002, by placing the same in the U.S. First Class
Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
Marc T. Levine, Esquire
Farrell & Ricci
4423 North Front Street
Harrisburg PA 17110
BY:
~'tep~l'A. S~hnei~er, Esquire
Attorney I.D. #78077
FREEBURN & HAMILTON
4415 North Front Street
Harrisburg, PA 17110
(717) 671-1955
Dated: 5/3/02 Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. WALLS : Civil Action - Law
Plaintiff, :
vs. : No. 02-1398
:
CARLISLE AREA HEALTH AND WELLNESS :
FOUNDATION, previously known as Carlisle :
Hospital and Health Services, :
Defendant, :
:
VS. :
:
WALNUT BOTTOM LANDSCAPING, :
Additional Defendant. :
JURY TRIAL DEMANDED
PRAECI~E FOR ENTRY OF APPEARANCE PURSUANT TO Pa.R.C.P. 1012
TO THE PROTHONOTARY:
Kindly enter the appearance of Robert A. Lennan, Esquire, of Griffith, Strickler, Lemian,
Solymos & Calkins, as attorneys for Additional Defendant, Walnut Bottom Landscaping, in the
above-captioned matter and mark the docket accordingly.
GRIFFITH~RICsoi. JYMOS~LER' LEcALIcENR2~IAN'
Supreme Court ID No. 07490
Attorney for Additional Defendant, Walnut
Bottom Landscaping
110 South Northern Way
York, PA 17402
Telephone: (717) 757-7602
Date: May 7, 2002
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. WALLS
Plaintiff,
VS.
CARLISLE AREA HEALTH AND WELLNESS
FOUNDATION, previously known as Carlisle
Hospital and Health Services,
Defendant,
VS.
WALNUT BOTTOM LANDSCAPING,
Additional Defendant.
Civil Action - Law
No. 02-1398
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this 7th day of May, 2002, I, Robert A. Lerman, a member of the firm of
GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this
date served a copy of the Praecipe for Entry of Appearance by United States Mail, addressed
to the party or attorney of record as follows:
klr/walnut-prp.z
Richard E. Freebum, Esquire
Freebum & Hamilton
4115 N. Front Street
Harrisburg, PA 17110
(Counsel for Plaintiff)
Marc T. Levin, Esquire
Farrell & Ricci, P.C.
4423 N. Front Street
Harrisburg, PA 17110
(Counsel for Defendant, Carlisle Area
Heal~/~ Wellness Foundation)
GRIFFITy, ~rI?RICKLER, LER~MAN, ,,~
o/ os
Supreme Court ID No. 07490
Attorney for Additional Defendant,
Walnut Bottom Landscaping
110 S. Northern Way
York, PA 17402
(717) 757-7602
MICHAEL L. WALLS, :
Plaintiff :
:
Vo
CARLISLE AREA HEALTH AND :
WELLNESS FOUNDATION, previously :
known as CARLISLE HOSPITAL AND :
HEALTH SERVICES, :
Defendants :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
TO:
Michael L. Walls, Plaintiff
c/o Richard E. Freeburn, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Counsel for Plaintiff
NOTICE TO PLEAD
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE DEFENDANT'S
PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT WITHIN
TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED
AGAINST YOU.
Respectfully submitted,
Date:
FARRELL & RICCI, P.C.
Marc T. Levin, Esquire
Attorney I.D. No. 70294, and
Joseph A. Ricci, Esquire
Attorney I.D. No. 49803
4423 N. Front Street
Harrisburg, PA 17110
(717) 230-9201
Counsel for Defendant Carlisle Area Health
and Wellness Foundation
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
Defendant
Vo
WALNUT BOTTOM/-ANDSCAPING,
INC.,
Additional Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 CML
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFF'S AMENDED COMPLAINT
AND NOW comes Defendant, Carlisle Area Health and Wellness Foundation,
previously known as Carlisle Hospital and Health Services, by and through their counsel,
Farrell & Ricci, P.C., by Joseph A. Ricci, Esquire and Marc T. Levin, Esquire and
preliminarily objects to Plaintiffs' Amended Complaint as follows:
Complaint.
3.
1. The above-captioned action was commenced with the service of a Complaint
upon Defendant on March 26, 2002.
On April 13, 2002, Defendant filed Preliminary Objections to Plaintiffs
On or about April 24, 2002, Defendant filed a Praecipe and Writ to Join as an
Additional Defendant, Walnut Bottom Landscaping, Inc.
4. On May 3, 2002, Plaintiff filed an Amended Complaint.
5. According to the Amended Complaint, Plaintiff, while operating a riding
lawnmower and cutting the grass on Defendant's property, was pulled into a hole in the
ground and was pinned and trapped by the lawnmower that fei] into the hole on top of him.
A true and correct copy of the Amended Complaint is attached hereto and marked as
Exhibit "A."
6. Plaintiff seeks to hold Defendant liable for his alleged injuries and damages,
based upon the duty owed by a landowner to a business invitee.
7. Count II of Plaintiffs Amended Complaint is entitled "Neghgent Infliction of
Emotional Distress."
8. Contained within Paragraphs 27 and 28 of Plaintiff, s Amended Complaint,
Plaintiff employs the language "severe mental anguish, mental suffering, emotional
distress .... and mental suffering . . . ", in describing what the Defendant has caused
Plaintiff to allegedly suffer or will allegedly continue to suffer.
I. DEMURER
9. With regard to a claim for negligent infliction of emotional distress, "It is
clearly Pennsylvania law that liability can only be founded, under this theory, upon one's
personal observation of physical injury negligently inflicted by another upon a third person,
usually a close relative." Stra er v. Pet , 3 Pa. D&C 4th 299 (Cumb. 1989) citing Sinn v.
Burd, 404 A.2d 672 (Pa. 1979).
10. Further, it is clear that Pennsylvania law has never "recognized an
independent tort of negligent infliction of emotional distress." Arms~, 633 A. 2d
605 (Pa. Super 1993).
11. To the extent Count II and the aforedescribed language in Paragraphs 27 and
28 of Plaintiffs Amended Complaint attempts to plead a c]siru for negligent infliction of
emotional distress, Plaintiff has failed to state a cl~m upon which relief can be granted.
12. This Honorable Court is empowered pursuant to Pa.R.C.P. 1028(a)(4) to
dismiss the aforesaid Count II and Paragraphs 27 and 28 of Plaintiffs Amended Complaint
for failure to state a claim upon which relief can be granted.
II. MOTION TO STRIKE
13. Again, referring to Paragraphs 27 and 28 of Plaintiffs Amended Complaint
as well as Count II of Plaintiffs Amended Complaint, Plaintiff attempts to plead claims for
intentional and/or negligent infliction of emotional distress.
14. In addition to Pennsylvania law having never recognized an independent tort
of negligent infliction of emotional distress, intentional infliction of emotional distress has
not been recognized as a proper basis of recovery in Pennsylvania. (See e.g. Kazatsk¥ v.
King David Memorial Park, 527 A.2d 988 (Pa. 1987).
15. To the extent the aforedescribed language contained in Paragraphs 27 and 28
as well as Count II of Plaintiffs Amended Complaint attempt to plead a claim for
intentional and/or negligent infliction of emotional distress, Plaintiff has failed to state a
claim upon which relief can be granted.
16. Even if This Honorable Court were to opine that intentional and/or negligent
infliction of emotional distress are viable causes of action, Plaintiff has failed to plead a
proper factual predicate for either cause of action.
17. Further, if it is Plaintiffs intention to state a claim for intentional and/or
negligent infliction of emotional distress, Plaintiff has improperly comingled those causes of
action by including the emotional distress language in Paragraphs 27 and 28.
18. Pursuant to Pa.R.C.P. 1020(a), "the plaintiff may state in the complaint more
than one cause of ac~on against the same defendant heretofore asserted in assumpsit or
trespass. Each cause of action and any special damage related thereto shall be stated in a
separate count containing a demand for relief." (Emphasis added.)
19. Plaintiff, by failing to state the separate causes of action in separate counts,
greatly prejudices the Defendant as it is unsure as to what theories must be defended at the
time of trial.
20. By attempting to combine separate and distinct causes of action, Plaintiff has
violated the requirement of Pa.R.C.P. 1020(a), that each cause of action shall be stated in a
separate count containing a demand for relief and; therefore, this Honorable Court is
empowered, pursuant to Pa.R.C.P. 1028(a)(2), to strike the aforedescribed language from the
Complaint for failure to conform to law or rule of Court.
21. Pursuant to the Pennsylvania Rules of Civil Procedure, it is necessary for a
party to set forth in concise and summary form all facts which support their alleged claims
of liability.
22. Inclusion of language which could be construed as an attempt to inject claims
of intentional or negligent infliction of emotional distress into a garden-variety premises
liability case, potentially allows Plaintiff to circumvent the bar of the Statute of Limitations
by amending the pleading to more particularly plead those theories of liability which were
not specifically stated at the time of the initial pleading. See Conner v. Allegheny General
Hospital, 461 A.2d 600 (Pa. 1983).
23. Pursuant to Pa.R.C.P. 1028(a)(2), it is appropriate to strike from a pleading
those averments which fail to conform to law or rule of court by failing to specifically plead
the necessary factual predicate to support its claims.
24. Specifically pertaining to Count II of Plaintiff, s Amended Complaint, Plaintiff
only pleads that "as a direct result of Defendant's negligent actions and/or failure to act as
4
described above, the Plaintiff suffered physical and psychological injuries entitling him to
recover damages from the Defendant, and claim is made therefore." See Plaintiffs
Amended Complaint at Paragraph 33.
25. Count II fails to specifically plead the necessary factual predicate to support
a c]sl,u for negligent infliction of emotional distress.
WHEREFORE, it is respectfully requested that This Honorable Court dismiss the
aforedescribed language from Paragraphs 27 and 28 and to dismiss Count II to the extent
that it constitutes an attempt to plead causes of action based upon intentional and/or
negligent infliction of emotional distress or, alternatively, dismiss the aforedescribed
language from Plaintiffs Amended Complaint for failure to conform to law or rule of court
by comingling separate and distinct causes of action and for failing to specifically plead a
proper factual predicate for either cause of action.
Respectfully submitted,
Date:
FARRELL &~.
Joseph A. Ricci, Esquire
Attorney I.D. No. 49803
and
Marc T. Levin, Esquire
Attorney I.D. No. 70294
4423 N. Front Street
Harrisburg, PA 17110
(717) 230-9201
Counsel for Defendant Carlisle Area
Health and Wellness Foundation
EXHIBIT "A"
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERI,AND COUNTY, PENNSYLVANIA
NO. 02-1398
CML 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 Not/ce 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 TAKP. 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.
Date: 5/3/02
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
phin A. Schneider, Esqdire
FREEBURN & HAMILTON
4415 North Front Street
Hm~:isburg PA 17110
(717) 671-1955
I.D. #78077
Attorney for Plaintiff
MAY 6 2OO2
MICHAEL L. WALLS,
Plaintiff
V.
CARLISLE AREA HEALTH AND :
WELLNESS FOUNDATION, :
previously known as CARLISLE :
HOSPITAL AND HEALTH :
SERVICES, :
Defendant :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
Le l~an demandado a usted en l~ corte. Si usted quiere defenderse de estas
demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al
partir de la fecha de la demanda y la notification. Usted debe presentar ua apariencia
esrita o en persona o por abogado y archivar en la corte en fo,'ma escrita sus defensas
o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted
no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de
demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes
para usted.
LLEVE ESTA DEMAKDA A UN ABODAGO INMED~T~TE. 'SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUYA DiRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Date: 5/3/02
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
FREEBURN & HAMILTON
4415 North Front Street
Ha/-risburg PA 17110
(717) 671-1955
I.D. //78077
Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398 Civil Te~,n
CML ACTION - LAW
JURY TRIAL DEMANDED
AMI~NDED-COMPLAINT
AND NOW, comes Plaintiff, Michael Walls, by his attorneys, Freebum &
Hamilton, and who files the following Complaint:
1. Plaintiff, Michael Walls, an adult individual, resides at 650 N.
College Street, Carlisle, Cumberland County, Pennsylvania.
2. Defendant, Carlisle Area Health and Wellness 'Foundation,
previously known as Carlisle Hospital and Health Services, is a corporation,
organized under the laws of the Commonwealth of Pennsylvania, with a
principal place of business located at 274 Wilson Street, Carlisle, Cumberland
County, Pennsylvania.
3. On September 14, 2000, Defendant oWned the real property,
together with buildings and appurtenances located thereon, known and
numbered as 5 Sprint Drive, Carlisle, Cumberland County, Pennsylvania and
5A .Sprint Drive, Carlisle, Cumberland County, Pennsylvania where it
conducted business as the Carlisle Surgery Center and the Carlisle Cancer
Center (hereinafter "Defendant's Property").
4. At all times relevant hereto, the Defendant was in possession,
custody and control of Defendant's Property, either exclusively or in
conjunction with others.
5. On September 14, 2000, Plaintiff was performing grass cutting at
Defendant's Property.
6. At all times relevant hereto, Plaintiff was a business invitee on the
Defendant's Property for a purpose directly connected with Defendant's
business. -
7. Plaintiff believes, and therefore avers, that Defendant's property
had one or more holes located on it and that the ground around the holes was
unstable.
8. Plaintiff believes, and therefore avers, that Defendant knew of the
hole or' holes and the aforesaid conditions on its property or by the_exercise of
reasonable care would have discovered the condition and should have realized
that it involved an unreasonable risk of hm-m to invitees such as Plaintiff.-
9. Defendant knew, or reasonably should have known, that the defect
or dangerous condition of Defendant's Property created an unreasonable risk of
10. Defendant should have realized that business invitees, such as the
Plaintiff, would not realize the dangerous or defective condition or would fail to
take steps to protect themselves against it.
11. At approximately 10:30 a.m., Plaintiff was operating a riding lawn
mower on Defendants property when a portion of the Defendant's Property near
a hole collapsed under him.
2 ~
12, As a result of this collapse, Plaintiff was pulled into a large 'hole in
the ground and was pinned and trapped by the lawnmower that fell into the
hole on top of him.
13. After being freed from the hole, Plaintiff was airlifted by helicopter
to the Hershey Medical Center.
14. As a result of the aforesaid incident, Plaintiff sustained painful and
severe injuries to his nerves, bones and soft tissues that include, but are not
limited to,-contusions to his knees, head and back.
15. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, a heightened
possibility exists that the Plaintiff will suffer other or additional physical injury
in the future, and claim is made therefore.
16. The aforesaid injuries sustained by Plaintiff may have .aggravated
or been aggravated by an existing infirmity, condition or disease, resulting in a
prolongation or worsening of the injuries and an enhanced risk of future' harm
to Plaintiff, and claim is made therefore.
17. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff was
forced to incur liability for reasonable and necessary medical tests, medical
examinations, medical treatment, medications, hospitalizations, rehabilitation,
therapies and similar expenses in an effort to diagnose his injuries and to
restore him to health, and claim is made therefore.
18. Plaintiff has not fully recovered from his injuries and it is
reasonably likely that he will incur similar expenses in the future, and claim is
made therefore.
3
19. As a result of Defendant's negligence, carelessness, and
recklessness and the aforesaid injuries he sustained, Plaintiff was subjected to
severe humiliation, embarrassment, shame, worry and anger.
20. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff was
deprived his enjoyment of the pleasures of life.
21. Plaintiff continues to be plagued by persistent physical and
emotional pain and limitation and, therefore, avers that his injuries may be of a
permanent nature, causing residual problems for the remainder of his lifetime,
and claim is made therefore.
22. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff
suffered a loss of earnings and earning capacity and is'entitled to recover the
value of the time, earnings and employment benefits he lost and which he
might reasonably have earned in the pursuit of his ordinary calling, and-claim
is made therefore.
23. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff
suffered a loss or impairment of future earning capacity, and claim is made
therefore.
24. As a result of Defendant's negligence, carelessness, and
recklessness, and by reason of the aforesaid injuries he sustained, Plaintiff
incurred incidental costs and expenses, the exact amount of which cannot be
ascertained at this time.
4 ~
25. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the aforesaid injuries he sustained, Plaintiff
underwent and in the future will undergo great physical pain and suffering,
great inconvenience in ca~ying out his daily activities, loss of life's pleasures
and enjoyment, and claim is made therefore, and claim is made therefore.
26. As a result of Defendant's negligence, carelessness, and
recklessness and by reason of the physical injuries, Plaintiff sustained a
physical disfigurement that is pe~x~,anent,, and claim is made therefore.
27. As a direct and proximate result of the Defendant's negligence the
Plaintiff suffered the above-described bodily injuries, which were accompanied
by severe mental anguish, mental suffering, emotional distress, nervous shock,
fright and horror and which mental suffering is directly traceable to the peril in
which the Defendant's negligence placed the Plaintiff.
28. As a direct and proximate result of Defendant's negligence,
carelessness, and recklessness and by reason of the aforesaid injuries he
sustained, Plaintiff will continue to endure great mental anguish, mental
suffering, emotional distress, shame, worry, and anger in the future and which
mental suffering is directly traceable to the peril in which the Defendant's
negligence placed the Plaintiff.
29. As a result of the aforesaid incident and the injuries he sustained
as a result, Plaintiff suffers from emotional distress, post-traumatic stress
disorder and depression directly traceable to the peril in which the Defendant's
negligence placed the Plaintiff.
5 .
COUNT I
Premises Liability - Dangerous Condition
30. Paragraphs 1-29 above are incorporated herein by reference as if
fully set forth at length.
31. The foregoing incident and all of Plaintiffs injuries and consequent
damages as set forth hereinafter are the direct and proximate result of the
following negligent, careless, wanton and reckless manner in which Defendant
maintained its Property on September 14, 2000:
ao
In failing to exercise reasonable care to ensure the safety of
business invitee such as Plaintiff;
In failing to anticipate the defect or dangerous condition;
In failing to adequately anticipate the harm that the
dangerous condition would cause to business invitees such
as Plaintiff;
In failing to exercise reasonable care in inspecting the
premises in order to discover the dangerous condition;
In failing to take the reasonably prudent steps to remedy the
defect or dangerous condition.
In failing to give warning of the dangerous condition, provide
a bmAcade, or to take other safety precautions to prevent
injury to business invitees such as Plaintiff; and
In failing to adequately supervise and manage its employees
who were aware of the dangerous condition that caused
Plaintiffs injuries and who failed to erect the necessary
barricades or provide the required notice to Plaintiff.
6 ..
WHEREFORE, Plaintiff, Michael Walls, demands judgment in his favor,
and against Defendants in an amount in excess of TWENTY-FIVE THOUSAND
& 00/100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess
of any jurisdictional amount requiring compulsory arbitration.
COUNT II
Negligent Infliction of Emotional Distress
32. - Paragraphs 1-31 above a~e incorporated herein by reference as if
fully set forth at length.
33. As a direct result of Defendant's negligent actions and/or failure to
act as described above, the Plaintiff suffered physical and psychological injuries
entitling him to recover damages from the Defendant, and claim is made
therefore.
WHEREFORE, Plaintiff, Michael Walls, demands judgment in his-favor,
and against Defendants in an amount in excess of TWENTY-FIVE THOUSAND
& 00/100 ($25,000.00) DOLLARS, exclusive of interest and costs and in excess
of any jurisdictional amount requiring compulsory arbitration.
7 :
Respectfully submitted,
FREEBURN ~ HAMILTON
By:
Steph"e,d'J~. Schnefd'er, Esquir~
I.D. No. 78077
4115 N. Front Street
Hai-~isburg, PA 17110
(717) 671-1955
Dated: 5/3/02
Attorneys for Plaintiff
8 ~
VERIFICATION
I hereby verify that the statements in the foregoing document
are true a_nd correct. I understand that false statements herein are
made subject to the penalties of 18 Pa.C.S. Section 4904, relating
to unsworn falsification to authorities.
Dated:
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
Plaintiffs Amended Complaint has been duly served on the following
this 3rd day of May, 2002, by placing the same in the U.S. First Class
Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
Marc T. Levine, Esquire
Farrell & Ricci
4423 North Front Street
Ha~-i-isburg PA 17110
Dated: 5/3/02
BY:
Attorney I.D. #78077
FREEBURN & HAMILTON
4415 North Front Street
Ha~-dsburg, PA 17110
(717) 671-1955
Attorney for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, this ~day of May, 2002, I, Marc T. Levin, Esquire, hereby certify
that I served a true and correct copy of the foregoing Defendant's Preliminary Objections
to Plaintiffs Amended Complaint upon all counsel of record by hand dehvering a copy of
same to the following:
Richard E. Freeburn, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Robert A. Lerman, Esquire
Griffith, Strickler, Lerman, Solymos & Calkins
110 S. Northern Way
York, PA 17402-3737
Attorney for Additional Defendant
Marc T. Levin, Esquire
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
WALNUT BOTTOM LANDSCAPING, INC.,
Additional Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398 Civil Term
CIVIL ACTION - LAW
~LrRY TRIAL DEMANDED
ORDER
AND NOW this day of , 2002, upon consideration of the
following "Plaintiff's Answers to Defendant's Preliminary Objections to Plaintiffs Amended
Complaint," filed in the above-captioned matter by Defendant, Carlisle Health and Wellness
Foundation, previously known as Carlisle Hospital and Health Services, it is ORDERED and
DECREED that the Preliminary Objections of the Defendant, Carlisle Health and Wellness
Foundation, previously known as Carlisle Hospital and Heklth Services, are hereby
DISMISSED.
The Defendant, Carlisle Health and Wellness Foundation, previously known as Carlisle
Hospital and Health Services, is hereby ORDERED to file and Answer to Plaintiff's Amended
Complaint within twenty (20) of service of this ORDER.
BY THE COURT:
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
WALNUT BOTTOM LANDSCAPING, INC.,
Additional Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398 Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFF'S ANSWERS TO DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTII?F'S AMENDED COMPLAINT
AND NOW, comes the Plaintiff, Michael Wails, by and through his attorneys, Freeburn
& Hamilton, who files the following answers to the Defendant's Preliminary Objections to the
Plaintiff's Amended Complaint:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted. By way of further response, see Paragraph #12 of the Plaintiff's
Amended Complaint, the language of which speaks for itself.
6. Admitted. By way of further response, see Paragraph #6 of the Plaintiff's
Amended Complaint, the language of which speaks for itself.
7. Admitted.
8.. Admitted. By way of further response, see Paragraphs #27 and #28 of the
Plaintiff's Amended Complaint, the language of which speaks for itself.
I. DEMURER
9. The averments of this paragraph constitute a conclusion of law to which no
response is required. By way of further response, to the extent that the Court determines that this
paragraph does contain averments of fact to which a response is required, such averments are
specifically denied.
10. The averments of this paragraph constitute a conclusion of law to which no
response is required. By way of further response, to the extent that the Court determines that this
paragraph does contain averments of fact to which a response is required, such averments are
specifically denied.
11. The averments of this paragraph constitute a conclusion of law to which no
response is required. By way of further response, to the extent that the Court determines that this
paragraph does contain averments of fact to which a response is required, such averments are
specifically denied.
12. The averments of this paragraph constitute a conclusion of law to which no
response is required. By way of further response, to the extent that the Court determines that th/s
paragraph does contain averments of fact to which a response is required, such averments are
specifically denied.
H. MOTION TO STRIKE
13. Admitted in part and denied in part. Admitted that paragraphs #27 & #28 of the
Plaintiff's Amended Complaint plead elements of damages suffered by Plaintiff as a result of
Defendant's negligent infliction of emotional stress. Denied that paragraphs #27 & #28 of the
Plaintiff's Amended Complaint attempt to plead claims for intentional infliction of emotional
stress. By way of further response, see Paragraphs #27 and #28 of the plaintiff's Amended
Complaint, the language of which speaks for itself.
14. The averments of this paragraph constitute a conclusion of law to which no
response is required. By way of further response, to the extent that the Court determines that this
paragraph does contain averments of fact to which a response is required, such averments are
specifically denied.
15. The averments of this paragraph constitute a conclusion of law to which no
response is required. By way of further response, to the extent that the Court determines that this
paragraph does contain averments of fact to which a response is required, such averments are
specifically denied.
16. The averments of this paragraph constitute a conclusion of law to which no
response is required. By way of further response, to the extent that the Court determines that th/s
paragraph does contain averments of fact to which a response is required, such averments are
specifically denied.
17. Admitted in Part and Denied in Part. Admitted that paragraphs #27 & #28 of the
Plaintiff's Amended Complaint plead claims for negligent infliction of emotional stress. Denied
that. paragraphs #27 & #28 of the Plaintiff's Amended Complaint plead claims for intentional
infliction of emotional stress. The allegation that the "Plaintiff has improperly commingled
those causes of action by including emotional distress language in Paragraphs 27 and 28" is a
conclusion of law to which no reply is required. By way of further response, if the Court
concludes that this averment does contain averments of fact to which a response is required, such
averments are specifically denied. By way of further response, see Paragraphs #27 and #28 of
the Plaintiff's Amended Complaint, the language of which speaks for itself.
18. Admitted.
19. Denied. Plaintiff denies that he has failed to state the separate causes of action in
separate counts. By way of further response, the Plaintiff has alleged two causes of action
against the Defendant: 1) Negligence related to a dangerous condition on the Defendant's
property, and 2) Negligent infliction of emotional distress. By way of further response, the
averments of this paragraph constitute a conclusion of law to which no response is required. To
the extent that the Court determines that this paragraph does contain averments of fact to which a
response is required, such averments are specifically denied.
20. Denied. The Plaintiff denies that he has attempted to combine separate and
distinct cases of action. By way of further response, see Plaintiffs answer to Paragraph #19, the
language of which speaks for itself. The allegation that Plaintiff has "violated the requirement of
Pa.R.C.P. 1020(a)" constitutes a conclusion of law to which no response is required. By way of
further response, to the extent that the Court determines this allegation does contain averments of
fact to which a response is required, such averments are specifically denied. The allegation that
"this Honorable Court is empowered, pursuant to Pa.R.C.P. 1028(a)(2), to strike the
aforedescribed language from the Complaint for failure to conform to law or role of Court"
constitutes a conclusion of law to which no response is required. By way of further response, to
the extent that the Court determines this allegation does contain averments of fact to which a
response is required, such averments are specifically denied.
21. Admitted in part and denied in part. Admitted that according to Pennsylvania
Rules of Civil Procedure, it is necessary for a party to set forth in concise and summary form all
facts, which support their alleged claims of liability. Denied that the Claimant has failed to set
4
forth in a concise and summary form all facts supporting his allegations. By way of further
response, the averments of this paragraph constitute a conchision of law to which no response is
required. To the extent that the Court determines that this paragraph does contain averments of
fact to which a response is required, such averments are specifically denied.
22. The averments of this paragraph constitute a conclusion of law to which no
response is required. By way of further response, to the extent that the Court determines that this
paragraph does contain averments of fact to which a response is required, such averments are
specifically denied.
23. Admitted in part and denied in part. Admitted that the Pa.R.C.P 1028(a)(2) allows
for the filing of Preliminary Objections based on a "failure of a pleading to conform to law or
rule of court...." Denied that Pa.R.C.P 1028(a)(2) addresses insufficient specificity in a
pleading. By way of further response, this paragraph constitutes a conclusion of law to which no
response is required. To the extent that the Court determines that this paragraph does contain
averments of fact to which a response is required, such averments are specifically denied.
24. This paragraph contains no allegations to which a response is required. By way of
further response, see Paragraph #33 of the Plaintiff's Amended Complaint, the language of
which speaks for itself.
25. Denied. Count II of the Plaintiff's Amended Complaint incorporates all
proceeding paragraphs of the Amended Complaint, which establish the necessary factual
predicate to support a claim for negligent infliction of emotional distress. By way of further
response, this paragraph constitutes a conclusion of law to which no response is required. To the
extent that the Court determines that this paragraph does contain averments of fact to which a
response is required, such averments are specifically denied.
5
WHEREFORE, Plaintiff, Michael L. Walls, respectfully requests that this Honorable
Court dismiss the Defendant's Preliminary Objections to the Plaintiff's Amended Complaint and
direct the Defendant to file a timely Answer to the Plaintiff's Amended Complaint.
By:
Respectfully submitted,
FREEBURN & HAMILTON
i.$DD~.hNeo.~7~0S7c7~neider' ~-s~l~re~
4115 N. Front Street
Harrisburg, PA 17110
(717) 671-1955
Dated: 6/10/02
Attorneys for Plaintiff
6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Plaintiff's Answers to
Defendant's Preliminary Objections to Plaintiff's Amended Complaint has been duly served
on the following this 10th day of June, 2002, by placing the same in the U.S. First Class Mail,
postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
Marc T. Levin, Esquire
FARRELL & RICCI, P.C.
4423 N. Front Street
Harrisburg PA 17110
(Attorney for Defendant)
Robert A. Lerman, Esquire
GRIFFITH STRICKLER LERMAN SOLYMOS & CALK/NS
110 S. Northern Way
York PA 17402-3737
(Attorney for Additional Defendant)
BY:
8f'eph~,. S~fineid~, ESquire
Attorney I.D. #78077
FREEBURN & HAMILTON
4415 North Front Street
Harrisburg, PA 17110
(717) 671-1955 Ext. #5
Dated: 6/10/02 Attorney for Plaintiff
PRAECIPE FOR LIgTING CAgF. FOR ARGUMEI~
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next:
Pre-Trial Argument Court
X Argument Court
MICHAI~.I.L. WALLS,
IN THE COURT OF COMMON PLEAS
Plaintiff
V.
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
Defendant
V.
WALNUT BOTTOM LANDSCAPING,
INC.,
Additional Defendant
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
State matter to be argued (i.e. plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Preliminary Objections of Defendant Carlisle Area Health and Wellness Foundation, previously
known as Carlisle Hospital and Health Services to Plaintiffs' Amended Complaint.
2. Identify cmm~el who will argue case:
a. for Plaintiff:
Richard E. Freeburn, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
(717) 671-1955
b. for Defendant:
Marc T. Levin, Esquire
Farrell & Ricci, P.C.
4423 North Front Street
Harrisburg, PA 17110
(717) 230-9201
Co
for Additional Defendant:
Robert A. Lerman, Esquire
Griffith, Strickler, Lerman, Solymos & Calkins
110 S. Northern Way
York, PA 17402-3737
Attorney for Additional Defendant
(717) 757-76O2
I will notify all parties in writing within two days that this case has been listed for argument.
Argument Court Date: ~~-n.--~~ ~-
Marc T. Levin, Esquire
Attorney for Defendant, Carlisle Area Health
And Wellness Foundation
CERTIFICATE OF SERVICE
AND NOW, this ist day of July, 2002, I, Marc T. Levin, Esquire, hereby certify that I
served a true and correct copy of the foregoing Praecipe for Listing Case for Argument in
the Court of Common Pleas of Cumberland County upon all counsel of record by hand
delivering a copy of same to the following:
Richard E. Freeburn, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Robert A. Lerman, Esquire
Grfffith, Strickler, Lerman, Solymos & Calkins
110 S. Northern Way
York, PA 17402-3737
Attorney for Additional Defendant
Marc T./-%yin, Esq e~t~ ~
25.
Michael L. Walls
V
Carlisle Area Health and Wellness Foundation,
Previously Known as Carlisle Hospital and Health
Service
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398 CIVIL TERM
ORDER OF COURT
AND NOW, July 24, 2002, by agreement of counsel, the above-captioned matter
is continued from the July 24, 2002 Argument Court list. Counsel is directed to relist the case
when ready.
By the Court,
/~"chard E. Freebum, Esquire
/~arc T. Levin, Esquire
For the Defendant
Court Administrator
ld
PRAECIPE FOR LISTING CASE FOR ARGUMENT
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next: __Pre-Trial Argument Court X___~gument Court
MICHAEL L. WALLS,
Plaintiff
V.
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
Defendant
V.
WALNUT BOTTOM LANDSCAPING,
INC.,
Additional Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
demurrer to complaint, etc.:
Preliminary Objections of Defendant Carlisle Area Health and Wellness Foundation,
previously known as Carlisle Hospital and Health Services to Plaintiffs' Amended Complaint.
Names and addresses of all attorneys who will argue the case:
(a) Plaintiff(s): Richard E. Freeburn, Esquire
Stephen A. Schneider, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
(717) 671-1955
Co) Defendant(s): Marc T. Levin, Esquire
Farrell & Ricci, P.C.
4423 North Front Street
Harrisburg, PA 17110
(717) 230-9201
(c) Additional Defendant(s): Robert A. Lerman, Esquire
Griffith, Strickler, Lerman, Solymos & Calkins
110 S. Northern Way
York, PA 17402-3737
Attorney for Additional Defendant
(717) 757-7602
I will notify all parties in writing within two days that thi~case has been listed for argument.
Argument Court Date: October 23, 2002. ~ -~
~/~//C)o~ ~~~' 717-2___30-9201
D~te ' Marc T. Levin, Esquire Phone Number
Attorney for Defendant Carlisle Area
Health and Wellness Foundation
CERTIFICATE OF SERVICE
AND NOW, this ~c~ ~'~day of August, 2002, I, Marc T. Levin, Esquire, hereby certify
that I served a true and correct copy of the foregoing Praecipe for Re-Listing Case for
Argument in the Court of Common Pleas of Cumberland County upon all counsel of
record by hand delivering a copy of same to the following:
Richard E. Freeburn, Esquire
Stephen A. Schneider, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Robert A. Lerman, Esquire
Griffith, Strickler, Lerman, Solymos & Calkins
110 S. Northern Way
York, PA 17402-3737
Attorney for Additional Defendant
Marc T. Levin, Esquire
MICHAEL L. WALLS,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously :
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
DEFENDANT
02-1398 CIVIL TERM
IN RE: DEMURRER OF DEFENDANT TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J. AND HESS, J.
ORDER OF COURT
AND NOW, this j~::~ day of November, 2002, the demurrer of defendant
to count II in plaintiff's complaint alleging a separate tort negligent infliction of emotional
distress, IS SUSTAINED. Count II of plaintiff's complaint, IS DISMISSED.
Stephen A. Schneider, Esquire
For Plaintiff ~--~~L
Marc T. Levin, Esquire
For Defendant
:sal
MICHAEL L. WALLS,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
DEFENDANT
02-1398 CIVIL TERM
IN RE: DEMURRER OF DEFENDANT TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J. AND HESS, J
OPINION AND ORDER OF COURT
Bayley, J., November 18, 2002:--
Plaintiff, Michael L. Walls, seeks damages against defendant, Carlisle Area
Health and Wellness Foundation, previously known as Carlisle Hospital and Health
Services, as a result of an incident that occurred on September 14, 2000. Plaintiff
avers in his complaint that he was operating a riding lawn mower on defendant's
property. There was a hole on the property and the ground around the hole was
unstable. The hole collapsed under the mower. Plaintiff was pulled into the hole and
pinned by the lawn mower. Plaintiff avers that he "sustained painful and severe injuries
to his nerves, bones and soft tissues that include, but are not limited to contusions to
his knees, head and back," and that the injuries "may have aggravated or been
aggravated by an existing infirmity, condition or disease, resulting in prolongation or
worsening of the injuries and enhanced risk of future harm .... "Claiming that the
02-1398 CIVIL TERM
injury was a result of the negligence of defendant, plaintiff seeks damages for lost
earning and benefits, lost earning capacity, incidental costs of expenses, humiliation
and embarrassment, loss of enjoyment of the pleasures of life, past and future physical
pain and suffering, permanent disfigurement, and:
27. As a direct and proximate result of the Defendant's negligence
the Plaintiff suffered the above-described bodily injuries, which were
accompanied by severe mental anguish, mental suffering, emotional
distress, nervous shock, fright and horror and which mental suffering is
directly traceable to the peril in which the Defendant's negligence placed
the Plaintiff.
28. As a direct and proximate result of Defendant's negligence,
carelessness, and recklessness and by reason of the aforesaid injuries he
sustained, Plaintiff will continue to endure great mental anguish, mental
suffering, emotional distress, shame, worry, and anger in the future and
which mental suffering is directly traceable to the peril in which the
Defendant's negligence placed the Plaintiff.
29. As a result of the aforesaid incident and the injuries he
sustained as a result, Plaintiff suffers from emotional distress, post-
traumatic stress disorder and depression directly traceable to the peril in
which the Defendant's negligence placed the Plaintiff.
Count I of the complaint seeks recovery for negligence based upon premises
liability. Count II sets forth a separate claim titled "Negligent Infliction of Emotional
Distress." Plaintiff avers:
33. As a direct result of Defendant's negligent actions and/or
failure to act as described above, the Plaintiff suffered physical and
psychological injuries entitling him to recover damages from the
Defendant, and claim is made therefore.
Defendant filed a preliminary objection in the form of a demurrer to count II
alleging negligent infliction of emotional distress. The issue was briefed and argued on
October 23, 2002.
-2-
02-1398 CIVIL TERM
This is not one of the very limited cases where an independent tort of negligent
infliction of emotional distress is applicable. See Armstrong v. Paoli Memorial
Hospital, 430 Pa. Super. 36 (1993); Brown v. Philadelphia College of Osteopathic
Medical, 674 A.2d 1130 (Pa. Super. 1996). Plaintiff, however, is not precluded from
recovering for any emotional distress that is a component of any physical injury he
incurred as a result of any causal negligence of defendant. In Potere v. Philadelphia,
380 Pa. 581 (1955), the Supreme Court of Pennsylvania stated:
[w]here... a plaintiff sustains bodily injuries, even though trivial or minor
in character, which are accompanied by fright or mental suffering directly
traceable to the peril in which the defendant's negligence placed the
plaintiff, then mental suffering is a legitimate element of damages:
Applebaum v. Philadelphia Rapid Transit Co., 244 Pa. 82, 90 A. 462;
Hess v. Philadelphia Transportation Company, 358 Pa. 144, 56 A. 2d 89.
In the case sub judice, plaintiff claims he was physically impacted and injured
as a result of the negligence of defendant. Thus, he has an emotional distress claim as
a component of his claim for injury under count I of his complaint. He does not have a
separate claim that would entitled him to additional damages for negligence infliction of
emotional distress as averred in count II of his complaint. Accordingly, the following
order is entered.
ORDER OF COURT
AND NOW, this I ~ ~ day of November, 2002, the demurrer of defendant
to count II in plaintiffs complaint alleging a separate tort negligent infliction of emotional
distress, IS SUSTAINED. Count II of plaintiff's complaint, IS DISMISSED.
-3-
02-1398 CIVIL TERM
Stephen A. Schneider, Esquire
For Plaintiff
gar B. Ba~'ey~.~
Marc T. Levin, Esquire
For Defendant
:sal
-4-
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
Defendant
WALNUT BOTTOM LANDSCAPING,
INC.,
Additional Defendant
IN THE COURT OF COMMON PLEAS
CUMBERI_AND COUNTY, PENNA.
DOCKET NO. 02-1398 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PETITION FOR STATUS CONFERENCE
AND NOW comes Defendant, Carlisle Area Health and Wellness Foundation,
previously known as Carlisle Hospital and Health Services, by and through theft counsel,
Farrell & Ricci, P.C., by Marc T. Levin, Esquire and petitions this Honorable Court for a
status conference as follows:
1. The above-captioned matter is an action which seeks recovery for damages
arising from the alleged neghgent conduct of Defendant, Carlisle Area Health and Wellness
Foundation, in connection with an accident that allegedly occurred on the Defendant's
property.
2. The above-captioned action was commenced with the service of a Complaint
upon the Defendant on March 26, 2002.
3. On April 13, 2002, Defendant filed Preliminary Objections to Plaintiffs
Complaint.
Defendant filed a Praecipe and Writ to Join as an Additional Defendant,
Walnut Bottom Landscaping, Inc., on or about April 24, 2002;.
5. Plaintiff filed an Amended Complaint on May 3, 2002. On May 23, 2002,
Carlisle Area Health and Wellness Foundation filed Prelbainary Objections to Plaintiffs
Amended Complaint.
6. After oral argument on the Preliminary Objoctions was held before Judges
Bayley and Hess, The Honorable Edgar B. Bayley issued an Order sustaining the Prehminary
Objections of Defendant, Carlisle Area Health and Wellness Foundation.
7. On March 26, 2002, Plaintiff served Interrogatories and Request for Production
of Documents upon the Defendant.
8. On April 25, 2002, Defendant served Objections to Plaintiffs Interrogatories
and Request for Production of Documents upon Plaintiff.
9. On May 16, 2002, Defendant served Plaintiff with Interrogatories and Request
for Production of Documents.
10. Other than Defendant's Objections to Plaintiffs Interrogatories and Request for
Production of Documents, no substantive responses have been exchanged between the parties
to the aforementioned discovery by agreement of counsel pending the potential voluntary
discontinuance of the matter by the Plaintiff as further explained below.
11. During the pendency of these proceedings, on June 29, 2002, the Plaintiff,
Michael L. Walls, passed away as a consequence of occlusive coronary artery disease.
12. After considering whether the above-captioned lawsuit should be perpetuated
given Plaintiffs death and the elffficulties in prosecuting the lawsuit in the absence of
testimonial support, Plaintiffs counsel suggested to the three heirs of Plaintiff Michael Walls,
that they provide theft written consent to withdraw this lawsuit. (See correspondence from
Plaintiffs counsel of November 27, 2002, which is attached hereto and marked as Exhibit "A."
13. On December 5, 2002, Plaintiffs counsel infi)rmed defense counsel that he
had obtained two of the three written consents to dismiss the case and was hopeful that the
third consent would arrive in the near future.
14. On February 19, 2003, Plaintiffs counsel indicated that despite repeated
efforts, he had been unable to obtain the third consent from Michael Walls' heir in order to
enable him to discontinue the lawsuit and that Plaintiffs counsel would continue to work
on obtaining the consent. (See February 19, 2003, correspondence attached hereto and
marked as Exhibit "B.")
15. On May 13, 2003, counsel for Additional Defendant suggested that Plaintiffs
counsel file a petition requesting dismissal of the case. (See correspondence from counsel
for Additional Defendant dated May 13, 2003, which is attached hereto and marked as
Exhibit "C.")
16. In a subsequent conversation between counsel for Defendant and Plaintiffs
counsel, Plaintiffs counsel indicated that he was amenable to fihng such a petition with the
court to facihtate the eventual dismissal of this case.
17. Despite Plaintiffs counsel's apparent agreement that such a petition should
be filed with the court, to date, no such petition has been filed.
18. Due to the procedural status of this matter as well as the history as outlined
herein above, counsel for the Defendant hereby requests that this Honorable Court
schedule a status conference in the above-referenced matter to discuss details regarding the
further prosecution of this case or to discuss the issuance c~f a Rule to Show Cause which
would effectuate the dismissal of the above-referenced matter.
19. Previously, this case was before Judges Hess and Bayley for oral argument
on Preliminary Objections.
20. Petitioning Defendant has sought and received the concurrence of counsel for
Additional Defendant in this petition to request a status conference.
21. Counsel for the Defendant spoke with counsel for the Plaintiff on July 17,
2003, and requested his consent in this request for a status conference.
22. Counsel for the Plaintiff, Stephen A. Schneider, Esquire, indicated his
consent in this request for a status conference.
WHEREFORE, it is respectfully requested that this Honorable Court schedule a
status conference to discuss the status of the above-captioned matter as well as the further
prosecution or discontinuance of said matter.
Date:
Respectfully submitted,
FARRELL & RICCI, P.C.
Marc T. Levin, E~quire --
Attorney ll.D. No. 70294
4423 North Front Street
Harrisburg, Pennsylvania 17110
(717) 230-9201
Attorney for Defendant Carlisle Area
Health and Wellness Foundation
4
EXHIBIT "A"
FREEBURN & HAMILTON
PERSONAL INJURY & WORKERS' COMPENSATION ATI'ORNEYS
RICHARD E. FREEBUKN
*ROBERT D. HAMILTON
*STEPI-H~ A. SCHNEIDER
November 27, 2002
Marc T. Levin, Esquire
FARRELL & R/CCI
4423 North Front Street
Harrisburg, PA 17110
RE: Walls v. Carlisle Health and Wellness F0undation~ et al.
No.: 02-1398 Civil (CCP Cumberland County)
Dear Marc:
I write with a brief update on the above-noted case.
I recently sent out documents to the three remaining heirs of Mr. Walls requesting their
written consent to'withdraw this case.' I just receive one back yesterday and, I assume, the
parties have discussed the matter and I will soon receive the other two. Upon receipt of all of
these written consents, I plan to petition the Court to dismiss the case.
Thank you for your patience to this point. Any questions please feel fi'ee to give me a
call.
P.S. - It appears I owe you lunch. You may collect at your convenience.
EXHIBIT "B"
FREEBURN& HAMILTON
PERSONAL INJURY & WORKERS' COMPENSATION ATTORNEYS
PJCHARD E. FREEBURN
*ROBERT D. HAMILTON'
*STEPHEN A. SCHNEIDER
FACSIMILe: (717) 671-1960
F~bruary 19, 2003
Marc T. Levine, Esquire
FAKRELL & KICCI
4423 North Front Slreet
Harrisburg PA 17110
RE: Walls v. Carlisle Health and Wellness Foundation, et al.
No.: 02-1398 Civil (CCP Cumberland County)
Dear Marc:
I write in response to your recent letter concerning the discontinuance of the above-noted
case.
I currently have the written consent of two (2) out of the three (3) heirs of Michael Walls
to discontinue the suit. Unformuately, and despite my repeated efforts, I have been unable to
obtain the consent of the last heir.
I continue to work on obtainiug that consent. If you have any thoughts on a different
method for discontinuing this suit, please let me know.
Thank you for your patience.
Very/tr~:~ ye ,~o,
EXHIBIT "C"
I_AW OFFICES
GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS
110 S, NORTHERN WAY
YORK, PENNSYLVANIA 17402-3737
May 13, 2003
(Dictated May 8, 2003)
VIA FACSIMILE AND U.S. MAIL
Stephen A. Schneider, Esquire
Freebum & Hamilton
4115 N. Front Street
Harrisburg, PA 17110
Marc T. Levin, Esquire
Farrell & Rie¢i, P.C.
4423 N. Front Street
Harrisburg, PA 17110
Michael L. Wails v. Carlisle Area Health and Welluess Fo,rotation, previously known as
Carlisle Hospital and Health Services v. Walnut Bottom Lan&caving, Cumberland
County C.C.P. No. 02-1398 Civil
Gentlemen:
I have reviewed thc recent correspondence exchanged between you and most particularly, Mr.
Schneider's letter of April 30, 2003.
May I suggest that a Petition be filed by Mr. Schneider, requesting a dismissal of the case,
attaching the consents of two of the siblings and noting the ].ack of a response or consent from
the third sibling.
The Petition can request a Rule to Show Cause which can then be served on all three siblings,
with specific instructions to the non-consenting sibling to respond.
LERMAN
-ltr
CERTIFICATE OF SERVICE
AND NOW, this \~ay of July, 2003, I, Marc T. Levin, Esquire, hereby certify
that I served a true and correct copy of the foregoing Petition for Status Conference upon
all counsel of record by hand delivering a copy of same to the following:
Stephen A. Schneider, Esquire
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Robert A. Lerman, Esquire
Griffith, Strickler, Lerman, Solymos & Calkins
110 S. Northern Way
York, PA 17402-3737
Attorney for Additional Defendant
Marc T. Levin, Esquire
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. WALLS : Civil Action - Law
Plaintiff, :
:
vs. : No. 02-1398
:
CARLISLE AREA HEALTH AND WELLNESS :
FOUNDATION, previously known as Carlisle :
Hospital and Health Services, :
Defendant, :
VS. ;
:
WALNUT BOTTOM LANDSCAPING, :
Additional Defendant. :
JURY TRIAL DEMANDED
CERTIFICATE OF CONCURRENCE
The undersigned, counsel for Additional Defendant, Walnut Bottom Landscaping,
concurs in the Petition for Status Conference filed on behalf o f original defendant, Carlisle Area
Health and Wellness Foundation, previously known as Carlisle Hospital and Health Services.
GRIFFITH, STRICKLER, LERMAN, S,~Ma OS & CALKINS
Robert A. Lerman
Supreme Court ID No. 07490
Attorney for Additional Defendant, Walnut
Bottom Landscaping
110 South Northern Way
York, PA 17402
Telephone: (717) 757-7602
Date:
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL L. WALLS : Civil[ Action - Law
Plaimiff,
VS.
CARLISLE AREA HEALTH AND WELLNESS
FOUNDATION, previously known as Carlisle
Hospital and Health Services,
Defendant,
VS.
WALNUT BOTTOM LANDSCAPING,
Additional Defendant.
No. 02-1398
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this ~-~day of ~(~f ,2003, I, Robert A. Lerman, a member
of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify
that I have this date served a copy of the Certificate of Concurrence by United States Mail,
addressed to the party or attorney of record as follows:
Richard E. Freebum, Esquire
Freebum & Hamilton
4415 N. Front Street
Harrisburg, PA 17110
(Counsel for Plaintiff)
klr/walnut-cert
Marc T. Levin, Esquire
Farrell & Ricci, P.C.
4423 N. Front Street
Harrisburg, PA 17110
(Counsel for Defendant, Carlisle Area
Health and Wellness Foundation)
GRIFFITH,~CKLER, LERMAN,
BY~obe~ A.~L~ -7~/'~
Supreme Court ID No. 07490
Attorney for Additional Defendant,
Walnut Bottom Landscaping
110 S. Northern Way
York, i?A 17402
(717) '757-7602
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION, previously
known as CARLISLE HOSPITAL AND
HEALTH SERVICES,
Defendant
WALNUT BOTTOM LANDSCAPING,
INC.,
Additional Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
DOCKET NO. 02-1398 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
IN RE:
Status Conference
ORDER
AND NOW this 3~/~t day of ~ , 2003, a status conference in the
above.captioned matter is set for~~ ,/ ,2003, at ~t'~ a.m./p~n.,in
Courtroom No. ~-
,Cumberland County Courthouse, i~'~, PA.
_~rc T. Levin, Esquire
Farrell & Ricci
4423 N. Front Street
Harrisburg, PA 17110
(717) 230-9201
Counsel for Defendant
~Stephen A. Schneider, Esquire ~
Freeburn & Hamilton
4415 North Front Street
Harrisburg, PA 17110
(717) 671-1955
Counsel for Plaintiff
~obert A. Lerman, Esquire
Griffith, Strickler, Lerman, Solymos & Calkins
110 S. Northern Way
York, PA 17402-3737
(717) 757-7602
Counsel for Additional Defendant
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
WALNUT BOTTOM LANDSCAPING, INC.,
Additional Defendant
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398 Civil Term
CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
:
NOTICE OF DEATH
To the Prothonotary:
The death of Michael L. Walls, a party to the above action, during the Pendency of this
action is noted upon the record.
By:
FREEBURN & HAMII_,TON
I.D. No. 78077
4115 N. Front Street
Harrisburg, PA 17110
(717) 671-1955 Ext. #5
Dated: Attorney for the Deceased Party
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Notice of Death has been
duly served on the following this 11th day of August 2003, by placing the same in the U.S. First
Class Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
Marc T. Levin, Esquire
FARRELL & RICCI, P.C.
4423 N. Front Street
Harrisburg, PA 17110
(Attorney for Defendant)
Robert A. Lerman, Esquire
GRIFFITH STRICKLER LERI~L~dq SOLYMOS & CALKINS
110 S. Northern Way
York, PA 17402-3737
(Attorney for Additional Defendant)
BY: §~.D.C~77,q. ..
Attorney' l.~.
FREEBURN & HAMILTON
4415 North Front Street
Harrisburg, PA 17110
(717) 671-1955 Ext. #5
Dated: Attorney for Plaintiff
MICHAEL L. WALLS,
Plaintiff
CARLISLE AREA HEALTH AND
WELLNESS FOUNDATION,
previously known as CARLISLE
HOSPITAL AND HEALTH
SERVICES,
Defendant
WALNUT BOTTOM LANDSCAPING, INC.,
Additional Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1398 Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ORDER
AND NOW, this
is hereby DISMISSED)
day of
BY O~ER. TH~,co~g~ --
~ ~/~_,-Z',-2003, the above-captioned
ease
Stephen A. Schneider, Esquire _ {Q,,,.,,~ ~
FREEBURN & HAMILTON
44145 North Front Street L[q'
Harrisburg, PA 17110
!
(Core,scl for Plaintiff) ~-~1 ~..~.)
Marc T. Levin, Esquire
FARILELL & RICCI, P.C.
4423 N. Front Street
Harrisburg, PA 17110
(Counsel for Defendant)
Robert A. Lerman, Esquire
GRIFFITH STRICKLER LERMAN
SOLYMOS & CALKINS
110 S. Northern Way
York, PA 17402-3737
(Counsel for Additional Defendant)
Michelle Toth
4720 Logangate Roaff
Liberty, OH 44505
Samuel Walls, Sr.
2807 Wayne Road
Chambersburg, PA 17201
Christina McDearis
P.O. Box 92
Gillsville, GA 30453
iU:6 NV IISIt~CO