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Home My WebLink About06-1696IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.Oto -1(,gla CIVIL ACTION - LAW FRANCES LEE BENNETT, an Adult BOROUGH OF NEW CUMBERLAND Individual, 1120 Market Street 12 Haldeman Court New Cumberland, PA 17070 New Cumberland, PA 17070 Plaintiff KEN'S PLUMBING, INC. 260 Old York Road New Cumberland, PA 17070 V. E. K. SERVICES, INC. 260 Old York Road New Cumberland, PA 17070 PENNSYLVANIA AMERICAN WATER COMPANY 800 West Hershey Drive Hershey, PA 17033, Defendants PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue Writs of Summons in the above-captioned action. Said Writs of Summons shall be issued and returned to counsel for Plaintiff for service on Defendants, BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E. K. SERVICES, INC., and PENNSYL W/ AMERICAN WATER COMPANY, by certified mail. TUCKER DATE: 3 ?216 4 By: Attorney's I.D. No. PA-368U3 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF G A L/ t o ? ccaa J` 4J> 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. nC - JLg6 arm, L? CIVIL ACTION - LAW FRANCES LEE BENNETT, an Adult BOROUGH OF NEW CUMBERLAND Individual, 1120 Market Street 12 Haldeman Court New Cumberland, PA 17070 New Cumberland, PA 17070 Plaintiff KEN'S PLUMBING, INC. 260 Old York Road New Cumberland, PA 17070 V. E. K. SERVICES, INC. 260 Old York Road New Cumberland, PA 17070 PENNSYLVANIA AMERICAN WATER COMPANY 800 West Hershey Drive Hershey, PA 17033, Defendants WRIT OF SUMMONS TO THE ABOVE-NAMED DEFENDANTS: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMM NCED AN ACTION AGAINST YOU. S L/d?!<. r DATE: 0La&r__ a 3 ) a UOL 95677.1 J THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 7171237-7132 Attorneys for Defendant Borough of New Cumberland FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, IN., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned as attorneys for Defendant Borough of New Cumberland in the above matter. THOM S, THOMAS & HAFER, LLP By: ?' ?? ' 1 .? ?- DATE: S/r/96 Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717)237-7132 Attorneys for Defendant Borough of New Cumberland 425091-1 1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the s,. United States mail, postage prepaid, on the day of 2006: Stephen Greecher, Esquire TUCKER ARENSBERG, P.C. 111 North Front Street Harrisburg, PA 17108 Ken's Plumbing, Inc. 260 Old York Road New Cumberland, PA 17070 E.K. Services, Inc. 260 Old York Road New Cumberland, PA 17070 Pennsylvania American Water Company 800 West Hershey Drive Hershey, PA 17033 THOMAS, THOMAS & HAFER, LLP By: If W ? • Kevin C. McNamara, Esquire 425097-1 ?''> CT ?^ ? ?. .A T C` %, ?? `%, ? !?? ?J {]? ? {? THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 7171237-7132 Attorneys for Defendant Borough of New Cumberland FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, IN., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule on Plaintiff to file a Complaint in the above case within twenty (20) days of service of said Rule, or suffer a judgment of non pros pursuant to Pa.R.C.P. 1037(a). DATE: S/`-y/OCo THO??MAS, THOMAS & HAFER, LLP By: L C VV7 !6 A. v?o?- Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant Borough of New Cumberland 425976-1 THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 7171237-7132 Attorneys for Defendant Borough of New Cumberland FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, IN., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL TERM JURY TRIAL DEMANDED RULE TO FILE A COMPLAINT TO: Plaintiff You are hereby ruled to file a Complaint against Defendants within twenty (20) days of service of this Rule or a judgment of non pros will be entered against Plaintiff pursuant to Pa.R.C.P. 1037(a). Prory DATE: / -av S' a o'06 425976-1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the 41 day of 2006: Stephen Greecher, Esquire TUCKER ARENSBERG, P.C. 111 North Front Street Harrisburg, PA 17108 Ken's Plumbing, Inc. 260 Old York Road New Cumberland, PA 17070 E.K. Services, Inc. 260 Old York Road New Cumberland, PA 17070 Pennsylvania American Water Company 800 West Hershey Drive Hershey, PA 17033 THOMAS, THOMAS & HAFER, LLP By: L- Kevin C. McNamara, Esquire 425976-1 t . 4 O om rn s M M u n .,v 44 en 0 Tucker Arensberg, P.C. BY: Stephen M. Greecher, Jr. (I.D. No. PA-36803) ATTORNEYS FOR PLAINTIFFS FRANCES LEE BENNETT, an adult individual, Plaintiff V. BOROUGH OF NEW CUMBERLAND, a municipal corporation; KEN'S PLUMBING, INC., a Pennsylvania Corporation; E.K. SERVICES, INC., a Pennsylvania Corporation; and PENNSYLVANIA AMERICAN WATER COMPANY, a Pennsylvania Corporation, Defendants 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED CIVIL ACTION COMPLAINT "NOTICE" You have been sued in court. If you wish to defend against the claims set forth in the following pages, you most take action within twenty (2o) 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 buy 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 of other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERENCE SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 - Toll Free (Soo) ggo-9108 "AVISO" "Le hm demandado on corte. Si usted desea defender contra las demandas dispuestas en [as pdginas siguientes, usted debe tomar la acci6n en cl plazo de veinte (20) dias despuds de esta queja y se simc el aviso, incorporando an aspecto escrito personalmente o y archivando en escribir con la cone sus defensas u objeciones a Ins demandas dispuestas contra usted el abogado le advierte que que si usted no puede hacer asl que el caso puede proceder sin usted y un juicio se puede incorporar contra usted compra la corte sin aviso adicional Para cualquier dinero demandado en la queja o pare cualquier otra demanda o relevaci6n pedida por el demandante. Usted puede perder el dinero o is cawcteristica de otra endereva importante a usted. USTED DEBE LLEVAR ESTE PAPEL SU ABOGADO INMEDIATAMENTE. SI USTED NO HACE QUE UN ABOGADO VAYA A O LLAME POR TEL$FONO La OFICINA DISPUESTA ABAJO. ESTA OFICINA PUEDE PROVEER DE USTED LA INFORMACIbN SOBRE EMPLEAR A UN ABOGADO. SI USTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, ESTA OFICINA PUEDE PODER PROVEER DE USTED LA INFORMACIbN SOBRE LAS AGENCIAS QUE LOS SERVICIOS JURIDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO O NINGUN HONORARIO SERVICIO DE REFERENCIA LEGAL Cumberland County Bar Association 3a South Bedford Carlisle, Pennsylvania 17013 (717) 249-3166 - Toil Free (Soo) 9go-9103 FRANCES LEE BENNETT, an adult individual, Plaintiff V. BOROUGH OF NEW CUMBERLAND, a municipal corporation; KEN'S PLUMBING, INC., a Pennsylvania Corporation; E.K. SERVICES, INC., a Pennsylvania Corporation; and PENNSYLVANIA AMERICAN WATER COMPANY, a Pennsylvania Corporation, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT 1. The Plaintiff, Frances Lee Bennett, is an adult individual, who resides at 12 Haldeman Court; New Cumberland, Cumberland County, Pennsylvania 17070. 2. Defendant, Borough of New Cumberland, is a municipal corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with an address of 1120 Market Street, New Cumberland, Cumberland County, Pennsylvania 17070. 3. Defendant, Ken's Plumbing, Inc., is a Pennsylvania Corporation with a registered office address of 260 Old York Road; New Cumberland, York County, Pennsylvania 17070. 4. Defendant, E.K. Services, Inc., is a Pennsylvania Corporation with a registered office address of 260 Old York Road; New Cumberland, York County, Pennsylvania 17070. 5. Defendant, Pennsylvania American Water Company, is a Pennsylvania Corporation with a registered office address of 800 West Hershey Park Drive; Hershey, Dauphin County, Pennsylvania 17033. 6. Defendant, Ken's Plumbing, Inc., and Defendant, E.K. Services, Inc., are believed to be related entities or the same entity. Hereinafter, Defendants, Ken's Plumbing, Inc. and E.K. Services, Inc., are collectively referred to as E.K. Services, Inc., and all allegations made in this Complaint against E.K. Services, Inc., refer to Ken's Plumbing, Inc., and E.K. Services, Inc., individually, jointly, and collectively. 7. Defendants, Ken's Plumbing, Inc. and/or E.K. Services, Inc., were hired by Pennsylvania American Water Company to install new water lines in the area of Haldeman Court, where Plaintiff Bennett resides and elsewhere in New Cumberland. Work began on the water lines in November of 2004. 8. As part of the work being done on the water lines, the macadam in the cul-de-sac named Haldeman Court was excavated in early January 2005, the water lines were replaced, the excavation was refilled and asphalt was placed over the excavation, all in the same day. There were deep ruts in the surface of the new asphalt due to the heavy machinery being driven over top of it by Ken's Plumbing, Inc. or E.K. Services, Inc., or otherwise due to the manner in which the asphalt was put down. 9. On or about March 2, 2005, at approximately 7:30 a.m., as Plaintiff Bennett walked to her car on her way to work, she crossed over the area that had been excavated, refilled, and over which the asphalt had been placed. 10. Plaintiff Bennett tripped over the raised area of the asphalt and then slipped on ice that had formed in the ruts in the asphalt overnight which caused Plaintiff Bennett to slip and fall, landing with the majority of her weight on her right side. 11. As a result of the above described fall, Plaintiff Bennett suffered personal injuries, was required to undergo medical care, incurred medical expenses, suffered lost earnings and lost earning capacity. -2- COUNTI - NEGLIGENCE FRANCES LEE BENNETT, Plaintiff, V. KEN'S PLUMBING, INC., AND E.K. SERVICES, INC., Defendants 12. Incorporated herein by reference are all prior paragraphs and all subsequent paragraphs of this Complaint. 13. At all times mentioned herein, Ken's Plumbing, Inc. and/or E.K. Services, Inc. were engaged, pursuant to contract with Defendant Pennsylvania American Water Company, in replacing water lines located under Haldeman Court and elsewhere in New Cumberland. 14. On or about early January, 2005, Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc., through their agents, servants and employees, excavated the macadam in the cul-de-sac named Haldeman Court in order to replace the water lines beneath the surface. The Defendants did the excavation, replaced the lines, then refilled the excavated area and asphalt was placed over the excavation, all in the same day. That same day, heavy machinery was driven over top of the asphalt by Ken's Plumbing, Inc. and/or E.K. Services, Inc. The asphalt was left by Defendants, Ken's Plumbing, Inc., and/or E.K. Services, Inc., with deep ruts in it as a result of the actions of Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc. 15. The negligence of the Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc., consisted of negligently demolishing, excavating, repairing and/or replacing the water lines and replacing the macadam in the cul-de-sac named Haldeman Court and allowing the uneven asphalt to remain for an extended period of time without taking any remedial measures or resurfacing the excavated area with a smooth finished asphalt surface so that the asphalt in the cul-de-sac presented a hazard to Plaintiff and others living along Haldeman Court or entering upon Haldeman Court. -3- 16. Ken's Plumbing, Inc. and/or E.K. Services, Inc. knew, had reason to know, or should have known of the dangerous condition Ken's Plumbing, Inc. and/or E.K. Services, Inc. created and failed to correct. 17. Ken's Plumbing, Inc. and/or E.K. Services, Inc. knew, had reason to know or should have known that Ken's Plumbing, Inc. and/or E.K. Services, Inc. failed to correct the dangerous condition and that the dangerous condition continued to exist for an unreasonable time. 18. As a result of Defendants' Ken's Plumbing, Inc., and/or E.K. Services, Inc., negligence, Plaintiff sustained the following personal injuries, which include: a. Injury to her right arm; b. Injury to her right wrist; C. Injury to her right elbow; and d. Injury to her left shoulder. 19. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which incident was the result of the negligence of Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc., Plaintiff Bennett has undergone medical care, including multiple surgeries on her right arm, elbow and wrist, and surgery on her left shoulder. Plaintiff Bennett will require further medical care in the future. 20. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which incident was the result of the negligence of Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc., Plaintiff Bennett has incurred medical and related expenses and will, in the future, incur additional medical and related expenses with respect to the treatment of the injuries that she suffered for all of which she claims herein. 21. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which was the result of the negligence of Defendants Ken's Plumbing, Inc., -4- and/or E.K. Services, Inc., Plaintiff Bennett has suffered a loss of earnings and earning capacity for which she claims herein. 22. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which was the result of the negligence of Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc., Plaintiff Bennett has and will continue to endure scarring, pain, suffering, a loss of life's pleasures, mental anguish, emotional distress, humiliation and embarrassment. 23. The injuries at issue in this case suffered by Plaintiff Bennett were serious and some or all of said injuries are permanent. 24. The negligence of Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc., was the legal cause of the injuries and damages suffered by Plaintiff Bennett and said negligence of Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc., increased the risk of harm of Plaintiff Bennett suffering the injuries and damages that she has suffered and will suffer as a result of the above described incident. WHEREFORE, Plaintiff Bennett demands judgment be entered in her favor in an amount in excess of the limits for compulsory arbitration pursuant to the local rules of court, plus interest, delay damages and costs of suit. COUNT II - NEGLIGENCE FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND, Defendant 25. Incorporated herein by reference are all prior paragraphs and all subsequent paragraphs of this Complaint. 26. At all times mentioned herein, Haldeman Court in the Borough of New Cumberland Borough, Cumberland County, Pennsylvania, was a public road. -5- 27. According to 42 Pa.C.S.A. § 8542(b)(6)(i), a local agency is negligent if a dangerous condition creates a reasonably foreseeable risk of the kind of injury which has incurred and that the agency had actual notice or could reasonable be charged with notice under the circumstances of the dangerous condition in a sufficient amount of time prior to the event causing the injury to have taken measures to protect against the dangerous condition. 28. At all times relevant hereto, Defendant Borough of New Cumberland had under its ownership, care, direction and responsibility the supervision, control and maintenance of the cul-de-sac within its borough limits. 29. The conditions at issue in this case are a dangerous condition of a street, Haldeman Court, owned by the Borough of New Cumberland, which conditions created a reasonably foreseeable risk of the kind of injuries suffered by Plaintiff Bennett, and the Borough of New Cumberland, actually or can reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the events at issue herein to have taken measures to protect against the dangerous condition. 30. It was the duty of Defendant Borough of New Cumberland to properly maintain the cul-de-sac for the protection of individuals traveling thereon, including the Plaintiff Bennett. 31. Defendant Borough of New Cumberland had or should have had knowledge or notice of the existence of the defective condition of the cul-de-sac. 32. Defendant Borough of New Cumberland breached its duty owed to Plaintiff Bennett by its negligent conduct as set forth herein. 33. The negligence of Defendant Borough of New Cumberland, through its agents, servants, and employees, consisted of the following: (a) failing to inspect, correct or have corrected the defective condition on the public cul-de-sac, said condition having existing for a long time prior to the date of the accident; -6- (b) failing to properly inspect, correct or have corrected the negligent asphalt repair and/or replacement work done by the Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc.; and (c) allowing a defective condition to exist which the Defendant Borough of New Cumberland knew or should have known created a dangerous hazard to individuals. 34. On August 31, 2005, Plaintiff Bennett filed a written statement concerning the accident in the office of the Borough Manager, as required by 42 Pa.C.S.A. § 5522(a). 35. As a result of Defendant Borough of New Cumberland's negligence, Plaintiff Bennett sustained the personal injuries, as previously indicated. 36. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which incident was the result of the negligence of Defendant Borough of New Cumberland, Plaintiff Bennett has undergone medical care, including multiple surgeries on her right arm, elbow and wrist and surgery on her left shoulder. Plaintiff Bennett will require further medical care in the future. 37. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which incident was the result of the negligence of Defendant Borough of New Cumberland, Plaintiff Bennett has incurred medical and related expenses and may, in the future, incur additional medical and related expenses with respect to the treatment of the injuries that she suffered for all of which she claims herein. 38. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which was the result of the negligence of Defendant Borough of New Cumberland, Plaintiff Bennett has suffered a loss of earnings and earning capacity for which she claims herein. -7- 39. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which was the result of the negligence of Defendant Borough of New Cumberland, Plaintiff Bennett has and will continue to endure scarring, pain, suffering, a loss of life's pleasures, mental anguish, emotional distress, humiliation and embarrassment. 40. The injuries at issue in this case suffered by Plaintiff Bennett were serious and some or all of said injuries are permanent. 41. The negligence of Defendant Borough of New Cumberland, was the legal cause of the injuries and damages suffered by Plaintiff Bennett and said negligence of Defendant Borough of New Cumberland, increased the risk of harm of Plaintiff Bennett suffering the injuries and damages that she has suffered and will suffer as a result of the above described incident. WHEREFORE, Plaintiff Bennett demands judgment be entered in her favor in an amount in excess of the limits for compulsory arbitration pursuant to the local rules of court, plus interest, delay damages and costs of suit. COUNT III • NEGLIGENCE FRANCES LEE BENNETT, Plaintiff, V. PENNSYLVANIA AMERICAN WATER COMPANY, Defendant 42. Incorporated herein by reference are all prior paragraphs and all subsequent paragraphs of this Complaint. 43. At all times mentioned herein, Defendant Pennsylvania American Water Company was engaged, pursuant to contract with Defendants Ken's Plumbing, Inc., and E.K. Services, Inc., in replacing water lines located under Haldeman Court and elsewhere in the Borough of New Cumberland. 44. Defendant Pennsylvania American Water Company had or should have had knowledge or notice of the existence of the defective condition of the cul-de-sac. -8- 45. Defendant, Pennsylvania American Water Company, is a public utility. It breached its duty owed to Plaintiff Bennett by its negligent conduct as set forth herein and its duty as a public utility with respect to the condition of Haldeman Court that it caused to be excavated as part of the work to replace the water lines of Defendant, Pennsylvania American Water Company, located under Haldeman Court. 46. The negligence of Defendant Pennsylvania American Water Company, through its agents, servants, and employees, consisted of the following: (a) failing to inspect, correct or have corrected the defective condition on the public cul-de-sac, said condition having existing for a long time prior to the date of the accident; (b) failing to properly inspect, correct or have corrected the negligent asphalt repair and/or replacement work done by the Defendants Ken's Plumbing, Inc., and/or E.K. Services, Inc.; and (c) allowing a defective condition to exist which the Defendant Pennsylvania American Water Company knew or should have known created a dangerous hazard to individuals. 47. As a result of Defendant Pennsylvania American Water Company's, negligence, Plaintiff sustained the following personal injuries, as previously indicated. 48. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which incident was the result of the negligence of Defendant Pennsylvania American Water Company, Plaintiff Bennett has undergone medical care, including multiple surgeries on her right arm, elbow and wrist, and surgery on her left shoulder. Plaintiff Bennett will require further medical care in the future. 49. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which incident was the result of the negligence of Defendant Pennsylvania -9- American Water Company, Plaintiff Bennett has incurred medical and related expenses and may, in the future, incur additional medical and related expenses with respect to the treatment of the injuries that she suffered for all of which she claims herein. 50. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which was the result of the negligence of Defendant Pennsylvania American Water Company, Plaintiff Bennett has suffered a loss of earnings and earning capacity for which she claims herein. 51. With respect to the injuries suffered by Plaintiff Bennett as a result of the above described incident, which was the result of the negligence of Defendant Pennsylvania American Water Company, Plaintiff Bennett has and will continue to endure scarring, pain, suffering, a loss of life's pleasures, mental anguish, emotional distress, humiliation and embarrassment. 52. The injuries at issue in this case suffered by Plaintiff Bennett were serious and some or all of said injuries are permanent. 53. The negligence of Defendant Pennsylvania American Water Company, was the legal cause of the injuries and damages suffered by Plaintiff Bennett and said negligence of Defendant Pennsylvania American Water Company, increased the risk of harm of Plaintiff Bennett suffering the injuries and damages that she has suffered and will suffer as a result of the above described incident. WHEREFORE, Plaintiff Bennett demands judgment be entered in her favor in an amount in excess of the limits for compulsory arbitration pursuant to the local rules of court, plus -10- interest, delay damages and costs of suit. DATE: s/ 1,7 b 85159.1 f TUCKER By: -11- St AGc¢k!jl of Jr. Attorney's I.D. No. PA-36803 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF VERIFICATION I, FRANCES LEE BENNETT, Plaintiff, acknowledge that the facts stated in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unworn falsification to authorities. M /Z ) /iVYI o.V? Frances Lee Bennett CERTIFICATE OF SERVICE AND NOW, this i r day of , 2006, I, Kim A. Sakosky, Paralegal to Stephen M. Greecher, Jr., Esquire, for the firm o Tucker Arensberg, P.C., hereby certify that I have this day served a copy of the within document, by mailing same by first class mail, postage prepaid, addressed as follows: Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP. P.O. Box 999 Harrisburg, PA 17108 Ken's Plumbing, Inc. 260 Old York Road New Cumberland, PA 17070 E.K. Services, Inc. 260 Old York Road New Cumberland, PA 17070 Pennsylvania American Water Company 800 West Hershey Drive Hershey, PA 17033 N c=> r,^ ca ? ? fl ?C T co L -1 -!t r4' I ^]In `D C,J / Johnson, Duffle, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 crw@jdsw.com Attorneys for Defendant Ken's Plumbing, Inc. FRANCES LEE BENNETT, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-1696 V. CIVIL ACTION - LAW BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. JURY TRIAL DEMANDED SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants APPEARANCE AND NOW, this 14 day of June, 2006, enter the appearance of C. ROY WEIDNER, JR., I.D. 19530, on behalf of Defendant Ken's Plumbing, Inc. in the above captioned suit. JOHNSON, DUFFIE, STEWART & W NER B C. Roy Weidner, Jr. :276839 22740-2102 i CERTIFICATE OF SERVICE AND NOW, this F&day of June, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen M. Greecher, Jr., Esquire Tucker Arensberg, P.C. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 E.K. Services, Inc. 260 Old York Road New Cumberland, PA 17070 Pennsylvania American Water Company 800 West Hershey Drive Hershey, PA 17033 JOHNSON, DUFFIE, STEWART & WEIDNER By: %/'?i??e// . ;fll Michelle H- Spangler c, ^' ?' c ?' . . _y ?; -,., ; ? , _ , ?--, ,? -_` :i. .t < ? ; .. L t. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-01696 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BENNETT FRANCES VS NEW CUMBERLAND BOROUGH OF ETAL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: KEN'S PLUMBING INC but was unable to locate Them deputized the sheriff of YORK in his bailiwick. He therefore serve the within WRIT OF SUMMONS County, Pennsylvania, to On May 1st , 2006 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep York County 47.91 Postage .39 ^ „ 73.30 1.•?' 05/01/2006 TUCKER ARENSBERG Sworn and subscribed to before me this 14"b day of 1-"(. A.D. So an R. Thomas Kline Sheriff of Cumberland County Prothonotary SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-01696 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BENNETT FRANCES VS NEW CUMBERLAND BOROUGH OF ETAL R. Thomas Kline , sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: E K SERVICES INC but was unable to locate Them deputized the sheriff of YORK in his bailiwick. He therefore serve the within WRIT OF SUMMONS County, Pennsylvania, to On May 1st , 2006 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 r? 16.00 ?I 05/01/2006 TUCKER ARENSBERG Sworn and subscribed to before me this /q day of 01 ?? A.D. So answe R. Thomas Kline Sheriff of Cumberland County Prothonotary SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-01696 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BENNETT FRANCES LEE VS NEW CUMBERLAND BOROUGH OF ETAL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: PENNSYLVANIA AMERICAN WATER COMPANY but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On May 1st , 2006 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 37.25 Postage .39 62.64 Cr 05/01/2006 TUCKER ARENSBERG Sworn and subscribed to before me this l9?'- day of h4y 022 a01- A. D. So answers R. Thomas Kline Sheriff of Cumberland County Prothonotary SHERIFF'S RETURN - REGULAR CASE NO: 2006-01696 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BENNETT FRANCES LEE VS NEW CUMBERLAND BOROUGH OF ETAL MARK CONKLIN , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon NEW CUMBERLAND BOROUGH OF the DEFENDANT , at 1105:00 HOURS, on the 5th day of April 2006 at 1120 MARKET STREET NEW CUMBERLAND, PA 17070 by handing to STEPHEN C SHULTZABERGER, BOROUGH SECRETARY a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 / Service 14.96nr Postage .39 Surcharge 10.00 R. Thomas Kline .00 43.35 5/01/2006 TUCKER ARENSBERG Sworn and Subscribed to before By: me this /96?- day of Dep y heriff A.D. Prothonotary In The Court of Common Pleas of Cumberland County, Peninsylvai iia Frances Lee Bennett VS. Borough of New Cumberland et al 06-1696 civil SERVE: Pennsylvania American Water Canpany No. Now, April 4, 2006, I SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to - a 20_, at o'clock M. served the copy of the original and made known to So answers, Sheriff of Sworn and subscribed before me this day of 20, the contents thereof. COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA of t4je,?$4rxiff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania BENNETT FRANCES LEE Vs County of Dauphin PENNSYLVANIA AMERICAN WATER COMPANY Sheriff's Return No. 0585-T - - -2006 OTHER COUNTY NO. 06-1696 CIVIL AND NOW:April 10, 2006 at 10:30AM served the within WRIT OF SUMMONS upon PENNSYLVANIA AMERICAN WATER COMPANY by personally handing to YINGST TERESSA SEC 1 true attested copy(ies) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 800 WEST HERSHEY DR HERSHEY, PA 17033-0000 Sworn and subscribed to before me this 11TH day of APRIL, 2006 A2?? NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, leAl(- Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs:$37.25 PD 04/06/2006 RCPT NO 216519 SCHAEFF I OF 2 COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN 1 Borough of New Cumberland et al SERVE 5 NAME OF INDIVIDUAL, COMPANY. CORPORA SERVICE CALL (717) 771-9601 4. TYPE OF WRIT OR COMPLAINT Writ of Su coons WO SUM OF Ken's Plurnbing Inc 6. ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO.. CITY. BORO. TWP. STATE AND ZIP CODE) AT 260 Old York Road New Cumberland, PA 17070 7. INDICATE SERVICE: O PERSONAL U PERSON IN CHARGE DEPUTIZE U CE T. MAIL O 1ST CLASS MAIL U POSTED U OTHER NOW ?Api r; l 4 2006 I, SHERIFF OFD COUNTY, PA, d hereby deputi e e sheriff a York COUNTY to execute thi itwl aka rat rn t ;M rding to law. This deputization being made at the request and risk of the plaintiff.. } SHERIFF O CDUMTY It. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WALL ASSIST IN EXPEDITING SMITE. D F C 0 U N T Y ADVANCE FEE PAID BY CUMBERLAND COUNTY SHERIFF Please mail return of service to Cunberland County Sheriff. Thank you. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave/sam without a watchman, in custody of whomever is found in possession, after notifying person of levy or amachment, wittout Rabidity on the part of such deputy or the sherm to any plaintiff heroin for arty Ions, destruction. or removal of any property before sherilrs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER tt. DATE FILED CUMBERLAND COUNTY SHERIFF 3/23/20C 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW (This area must be completed d notice is to be mailed) CUMBERLAND COUNTY SHERIFF 1& laGna+bdgerecmptofglewrn 14. DATE RECEIVED 15. E7;/WNHeanng orcompurtasindiatedabove. MJ MCGILL YCSO 4/7/2006 4/22/2006 16. MOW SERVED: PERSONAL( ) RESIDENCE ( ) POSTED( ) POE (,Q SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BE 17. O 1 hereby oera(y, and retain a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) nT F 1 NID ED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) t 9 Da of 7N 20. Time of Semi y ?/ 21. ATTEM Date Time Miles Int. Date Time Miles Int. Dale Time Mae* Int. Dale Tens Miles Int. Date Time Miles Int. Date Time Miles 22. REMARKS: O F?i /1't q? DGN,,L4 !see f?k??, , . 24. Service Costs 125 . 36. Service Costs 137 42. day of _ DeD. Sham v NOTARIAL NOTARY 46. SpnaWro of Y•?(„ l/ BOWMAN, NOTARY PUBLIC LISA L CounySharal . CITY OF YORK, YORK COUNTY WILLIAM (1 HOSE, SHERIFF to MY COMMISSION EXPIRES AUG.12,2009 46. Signature of Foreign `• + County Shamir 50. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Iss arV ALOorily 2. PINK - Attorney 3. CANARY - Shenfrs Office 4. BLUE - Shentrs 01fce Pound 130 . Notary 131 . 39. Total Costs 140 . 51. or 5 2 OF 2 COUNTY OF YORK OFFICE OF THE SHERIFF S(R,IC19601 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN Frances L.. Bennett 2 3. DEFENDANT/S/ 4. TYPE OF WRIT OR COMPLAINT Borough of New Cumberland et al Writ of S anions W O S U M 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD SERVE E.K. Services Inc 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO., CITY, BORO, TWP, STATE AND 21P CODE) AT 260 Old York Road New Cumberland, PA 17070 7. INDICATE SERVICE. U PERSONAL U PERSON IN CHARGE DEPUTIZE 'J RT MAI andU'ST CLASS MAIL U POSTED U OTHER NOW April 4 20 06 I, SHERIFF OF COUNTY, PA, do hereby deputize the sheriff of - 111 York . COUNTY to execute t fi make retur6Paccording to law. This deputization being made at the request and risk of the plaintiff., ?? SHERIFF OF f COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING S"JE' OF COUNTY r anADVANCE FEE PAID BY CUMBERLAND CO. SHERIFF Please mail return of service to Cumberland County Sheriff. Thank you. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave same wthout a watchman, in woody of whomever is found in possession, after notifying person of levy or attachment, without liability on the pan of such deputy or Me sheriff to any plaintiff herain for any toss, destruction, or removal of any property before mantra sets thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED CUMBERLAND COUNTY SHERIFF 3/23/2006 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW. (This area must be completed O mbw is tobe maned) CUMBERLAND COUNTY SHERIFF or complain as ndiraaed above. 23. Advance Costs 35. Advance 41. AFFIRMED and subscribed to 42. day of APxI?.?LIr 410 M.1 Mrrti I 26. Mileage 36. Service Costs 137 . NOTARIAL SEAL LISA L. BOWMAN, NOTARY PUBLIC CITY OF YORK, YORK COUNTY MY COMMISSION EXPIRESAUG. 12, 2009 28. Sub Total 129. Pound 130. 44. Signature of Dep. Sheriff 46. Signature of I Count' Sheriff dTT.T.TAM 48. Signahure of F County Sheriff 39. Total Costs 140 . Costs Due or Refund 1 47. DATE 15. Expiration/Hearing Date No. 50. I ACKN ' RETURN SIGNATURE 51. --- -'-ot7ED ISSUING AUTHORITY AND TITLE --MARY - ShenRs Office 4. BLUE - SNOWS ORre to. MUW xRYGU: rtKbl.lQ ( ) KL51UENCE ( ) POSTED( ) POE (y SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW IT O 1 hereby, certify and feturn a NO FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) .i8.-IMM TITILQE IN ERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Dat ice 20. Time of Service ? Time M2r?,z? offlc. rt' ? /orsy 21 A }g Dab Time Mlles InL_ Dale les Int Date Time Mies Int. Dale Time Miles Int. Dab Time Miles Int. Dale Time Mass Ink. THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant Borough of New Cumberland FRANCES LEE BENNETT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY, NO. 06-1696 CIVIL TERM JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD TO: Plaintiff and Counsel: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. THOMAS, THOMAS & HAFER, LLP By: c C (N1 Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant Borough of New Cumberland DATE: 7/7/0 G 432338-1 THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant Borough of New Cumberland FRANCES LEE BENNETT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY, NO. 06-1696 CIVIL TERM JURY TRIAL DEMANDED Defendants DEFENDANT BOROUGH OF NEW CUMBERLAND'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT 1. It is admitted the Plaintiff is who she says she is. 2. Admitted. 3-5. These allegations are directed to a party other than Answering Defendant and, therefore, no response is required. 6. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 7. Denied as stated. Answering Defendant approved a Street Opening Application and issued a permit to Pennsylvania American Water Company on November 18 2004, for the purpose of replacing a one inch line and extending eight inch line to residences. Answering Defendant is aware that work commenced thereafter but is not aware of the exact date. As to the balance of the allegations, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 8. Admitted in part and denied in part. It is admitted that work was undertaken by Pennsylvania American Water in and around the vicinity of Haldeman Court after the issuance of the permit. To the best of Answering Defendant's knowledge, the work was within the scope of the permit and for the purposes set forth in the Application. As to the balance of the allegations, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 9-11. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. COUNT I - NEGLIGENCE FRANCES LEE BENNETT V. KEN'S PLUMBING, INC. AND E.K. SERVICES, INC. 12. Answering Defendant hereby incorporates its answers to Paragraphs 1 through 11 as if fully set forth herein. 13-24. These allegations are directed to parties other than Answering Defendant and, therefore, no response is required. 432338-1 2 COUNT H - NEGLIGENCE FRANCES LEE BENNETT V. BOROUGH OF NEW CUMBERLAND 25. Answering Defendant hereby incorporates its answers to Paragraphs 1 through 24 as if fully set forth herein. 26. Admitted with qualification. It is admitted that Haldeman Court is a street under the jurisdiction of the Borough of New Cumberland. 27. Denied. These allegations represent conclusions of law to which no response is required. Any factual allegations in this paragraph are denied pursuant to Pa.R.C.P. 1029(e). 28. Admitted in part and denied in part. It is admitted that Haldeman Court is a street under the jurisdiction of the Borough of New Cumberland and that, generally, the Borough has a responsibility for the care and maintenance of this road. It is denied that the Borough has the responsibility of exclusive care, direction, control, supervision or maintenance of this street as, from time to time, it is necessary to permit others to perform work on and below the street. 29. Denied. These allegations represent conclusions of law to which no response is required. To the extent there are factual allegations in this paragraph, all such allegations are denied other than the allegation that Haldeman Court is a Borough street. 30. Denied. This allegation represents a conclusion of law to which no response is required. 31. Denied pursuant to Pa.R.C.P. 1029(e). 432338-1 3 32. Denied. This allegation represents a conclusion of law to which no response is required. 33(a)-(c). Denied pursuant to Pa.R.C.P. 1029(e). 34. Admitted with qualification. It is admitted that the Borough Manager received notice of a potential claim. 35. Denied. This allegation represents a conclusion of law to which no response is required. 36-41. Denied. These allegations represent conclusions of law to which no response is required. As to the injuries and damages alleged in these paragraphs, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in these paragraphs and proof thereof is demanded. WHEREFORE, Answering Defendant respectfully requests that Count II of Plaintiff's Complaint be dismissed without cost to it. COUNT III - NEGLIGENCE FRANCES LEE BENNETT V. PENNSYLVANIA AMERICAN WATER COMPANY 42. Answering Defendant hereby incorporates its answers to Paragraphs 1 through 41 as if fully set forth herein. 43-53. These allegations are directed to parties other than Answering Defendant and, therefore, no response is required. 432338-1 4 NEW MATTER 54. The Borough of New Cumberland is or may be immune from some or all of the claims raised in the Plaintiff's Complaint. 55. The Plaintiff's claims against the Borough of New Cumberland are subject to the provisions of the Pennsylvania Political Subdivision Tort Claims Act and limitations on liability and damages contained therein. 56. The conditions alleged by the Plaintiff were caused or brought about by the conduct of others over whom the Answering Defendant had no control. 57. No acts or failures to act on the part of the Borough of New Cumberland were a substantial factor or factual cause in bringing about the incident set forth in the Plaintiffs Complaint. 58. If, indeed, a dangerous condition or conditions did exist on the road as the Plaintiff alleged, those conditions were or should have been known to the Plaintiff or were or should have been obvious to her and, therefore, the Answering Defendant owed her no duty. 59. Prior to the occurrence of the incident set forth in Plaintiff's Complaint, the Answering Defendant had no notice of said conditions. NEW MATTER PURSUANT TO PA.R.C.P. 2252(d) DIRECTED TO ALL OTHER DEFENDANTS 60. Without admitting the truth thereof, the allegations in Plaintiff's Complaint directed to all other Defendants are incorporated herein by reference. 61. If the allegations contained in Plaintiff's Complaint are proven to be true, Pennsylvania American Water, its agents, servants, employees or subcontractors did 432338-1 5 not or may not have complied with the terms and conditions of the Street Opening Permit issued by the Borough. A copy of the Application and Permit is attached hereto and marked Exhibit A. 62. Pennsylvania American Water Company is bound by the terms and conditions of the Permit to indemnify and save the Borough harmless from any liability in this case. 63. If the Plaintiff is able to prove that the incident set forth in her Complaint was due to other than her own negligence and carelessness, the other named Defendants are solely liable for all of the injuries that the Plaintiff can prove or, in the alternative, said Defendants are jointly and severally liable with the Borough, liable over to the Borough, or liable to the Borough for contribution or indemnification. WHEREFORE, The Borough of New Cumberland demands judgment in its favor. Respectfully submitted, DATE: -7(-7 10(o THOMAS, THOMAS & HAFER, LLP By: t - (M v I a?•?-a.?.c?.- Kevin C. McNamara, Esquire I . D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant Borough of New Cumberland 432338-1 6 Exhi.bt+ A N? BOROUGH OF NEW CUMBERLAND STREET OPENING APPLICATION- AND PERMIT t. Appucant s [vame PA #' RrA1.4 WAT E R. 3. Starting Date 4. Comppletion Date (Mo/Dy/Yr) (MONYI/Yr) October 22, 2004 October 22, 2005 6. Nearest Intersecting Street To Opening Bridge St. (west) Warren Street (east) S. Size of Opening .........2.,.5.'..Width ......... ....Depth ....LAID ....Length 10. Purpose of Opening Replace 1" line and extend 8" water line to residences. 11. FLuu Approved By I-W Th 1s "Foe G30T_ SC IT TO 104,_O, GC T 2 5 2004 Vi?u u 2. Business Address and Telephone Number 852 Wesley Drive, Mechanicsburg, PA 717-691-2102 5. Name of Street To Be. Opened Haldeman Avenue / Haldeman Court 7. Street Numbers of Abutting Properties See Street Numbe a on Plans 9. Distance of Opening From Curb or Pavement Edge (Feet) Variable 15. Dates of Inspections and By Whom Made 12. Date Application Approved (Mo/Dy/Yr) A..\ 18. Reason Permit Revoked . t .a'1 13. Deposit Informati Permi Fee on $40. 0 @ .. ................»........... ............. Receipt No. ........................... clcfill ........SY Paving @ .................................. Total Deposit .................................. By Whom 14. Restoration Date (\•fo/Dy/Yr) Date Revoked (\lo/Dy/Yr) I (We) hereby agree to be bound by the provisions of the ordinance, specifications, and regulations of the Borough governing openings in or under municipal 'streets and to such . I conditions, restric- tions, and regulations as may be impo y the gineer. SEE INSTRUCTIONS ON REVERSE .............................. ............. ......... ............ ...... ........... SIDE OF APPLICATION - PERMIT Ronald N. Felket&pphcant's Signature FORM. Operat October 15, 2004 ............................................................... _.................... Date. of Application The applicant is hereby authorised to make an opening in or under the above named street at the location designated; provided, how. ever, all work is performed in accordance with the applicant's plans, the Borough's ordinance, specifications, and regulations governing street openings, and the following special conditions ........................ ------ ----------- or such special conditions as may be imposed during the performance of the authorized work. Date Application Approved: .._.... . ...... `_...(_.. ......... ........... ....... . ................ .........e ._................................ Permit Number En ................................................. Supervisor S' ?•or %Illllpl? 2 S?, M J . ?o 3 ]y ZYa" io v ?ae+oe ? w 1 E-", V I c-_- - ??G?Nr? o mac , Gt?.aSS ? pE c-,?-?- AT -j tz? t-,4 U DRAWN 6y AppROVED Sy: REVISED SCALE: DAIL COU ' DRAWING NUMIER ?J1 ? slJ ? of Pennsylvania AmCOCan Water 4475 - Mechanicsburg. pA 17055- B52 Wesley Drive ?y• t CO? I ?j ??O ?o la9l?CA*A 33 i lla, M J, o? 1 Ro@iE?RT \ C/A 3 ?,b. VERIFICATION I, r,r • -i L-7U AI tate that I am an `nib authorized representative of NEW CUMBERLAND BOROUGH, that I make this Verification on behalf of NEW CUMBERLAND BOROUGH and that I am familiar with the facts set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification is made pursuant to 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. NEW CUMBERLAND BOROUGH By: DATE: 61d!//?j? 1571-1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the ?j day of J 2006: Stephen Greecher, Esquire TUCKER ARENSBERG, P.C. 111 North Front Street Harrisburg, PA 17108 C. Roy Weidner, Esquire JOHNSTON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 E.K. Services, Inc. 260 Old York Road New Cumberland, PA 17070 Pennsylvania American Water Company 800 West Hershey Drive Hershey, PA 17033 THOMAS, THOMAS & HAFER, LLP By: C M " Kevin C. McNamara, Esquire 432338-1 7 -``? " '"] --- E :_ .. ?, i .. FRANCES LEE BENNETT, Plaintiff v BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC. E.K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT. BOROUGH OF NEW CUMBERLAND 54. The allegations of Paragraph 54 state legal conclusions to which no response is required. To the extent the allegations are deemed to be factual, they are denied pursuant to Rules of Civil Procedure. 55. The allegations of Paragraph 55 state legal conclusions to which no response is required. 56. Denied. The Borough of New Cumberland, along with other Defendants, is responsible for the conditions alleged as set forth in the Complaint. 57. Denied. As forth in the Complaint, acts and failures to act on the part of the Borough of New Cumberland were a substantial factor and factual cause of the incident and the harm suffered by Plaintiff. 58, Conditions did exist as set forth in the Complaint. The remainder of the allegations of Paragraph 58 state legal conclusions to which no response is required. To the extent the allegations are deemed to be factual, they are denied pursuant to Rules of Civil Procedure. 59. Denied pursuant to Rules of Civil Procedure. Attorney's I.D. No. PA-36803 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF DATE: July 24, 2006 88396.1 -2- I, FRANCES LEE BENNETT, Plaintiff, acknowledge that the facts stated in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities. Fria ices Lee Bennett 88401.1 CERTIFICATE OF SERVICE AND NOW, this a4 h( day of JULY, 2006, I, Jacquelyn Zettlemoyer, Secretary to Stephen M. Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P.C., attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 ATTORNEYS FOR DEFENDANT, BOROUGH OF NEW CUMBERLAND C. Roy Weidner, Esquire Johnston, Duffle, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 ATTORNEYS FOR DEFENDANTS, KEN'S PLUMBING, INC. AND E. K. SERVICES, INC. Pennsylvania American Water Company 800 West Hershey Drive Hershey, PA 17033 Jacquelyn Ziettlemoyer 88402.1 n ?.? ?:; T? -.., -; :; r.> r., f, Johnson, Duffle, Stewart & Weidner By: C. Roy Weidner, Jr. I. D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 crw@jdsw.com Attorneys for Defendant Pennsylvania America Water Company FRANCES LEE BENNETT, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-1696 V. CIVIL ACTION - LAW BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. JURY TRIAL DEMANDED SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants APPEARANCE AND NOW, this /ay of August, 2006, enter the appearance of C. ROY WEIDNER, JR., I.D. 19530, on behalf of Defendant Pennsylvania American Water Company in the above captioned suit. JOHNSON, DUFFIE, STEWART & WEIDNER 0010110 B' C. Roy Weidner, Jr. :261697 22740-2102 ? , v CERTIFICATE OF SERVICE AND NOW, this /?V, day of August, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen M. Greecher, Jr., Esquire Tucker Arensberg, P.C. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 JOHNSON, DUFFIE, STEWART & WEIDNER ichelle H. Spangler ?% N ? G 21 P c T m? - m ._ ? , .gy q j? ?L Tr W ? Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 Kelly L. Bonanno I.D. No. 200811 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 crw@jdsw.com klb@jdsw.com FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND NO. 06-1696 CIVIL ACTION - LAW KEN'S PLUMBING, INC., E.K. JURY TRIAL DEMANDED SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, : Defendants NOTICE TO PLEAD TO: Frances Lee Bennett c/o Stephen M. Greecher, Jr., Esquire Borough of New Cumberland c/o Kevin C. McNamara, Esquire AND NOW, this 25?ay of October, 2006, you are hereby notified to plead responsively within twenty (20) days of the date of service hereof, or judgment may be entered against you. JOHNSON, DUFFIE, STEWART & WEIDNER By: Kelly L. no :282119 22740-2102 Attorneys for Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 Kelly L. Bonanno I.D. No. 200811 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 crw@jdsw.com klb@jdsw.com FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants NO. 06-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS KEN'S PLUMBING, INC., EX SERVICES, INC. AND PENNSYLVANIA AMERICAN WATER COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT WITH CROSS CLAIM AND NOW, this Zay of October, 2006, come Defendants Ken's Plumbing, Inc., E.K. Services, Inc., and Pennsylvania American Water Company through their undersigned attorneys, and answer Plaintiff's complaint as follows: 1. Denied. After a reasonable investigation, answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment. 2. - 5. Admitted. 6. Admitted in Part. Denied in Part. Ken's Plumbing, Inc. and E. K. Services, Inc. are different corporations. In case of the work referred to in Plaintiff's complaint, Ken's Plumbing, Inc. had contracted with Pennsylvania American Water Company to install the new water lines and subcontracted portions of that work to E. K. Services, Inc. Attorneys for Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 7. Admitted in Part. Denied in Part. Ken's Pluming, Inc. contracted with Pennsylvania American Water Company to install new water lines in the area of Haldeman Court in New Cumberland and subcontracted portions of that work to E. K. Services, Inc. It is admitted that the work began in November of 2004. 8. Denied in Part. Admitted in Part. The date of the excavation is denied in that after a reasonable investigation, answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment. That there were deep ruts in the new asphalt due to the use of heavy machinery or otherwise is specifically denied. The remainder of this averment is admitted. Denied. After a reasonable investigation, answering Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. COUNT/ - NEGLIGENCE Frances Lee Bennett v. Ken's Plumbing, Inc. and E. K. Services, Inc. 12. Admitted in Part. Denied in Part. Paragraphs 1 - 11 hereof are incorporated by reference herein. 13. Admitted. It is admitted that Ken's Plumbing, Inc. contracted with Pennsylvania American Water Company to replace the water lines and that it subcontracted portions of that work to E. K. Services, Inc. 14. Denied in Part. Admitted in Part. The date of the excavation is denied in that after a reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of said averment. That there were deep ruts in the new asphalt due to the use of heavy machinery by answering Defendants or otherwise is specifically denied. The remainder of this averment is admitted. 15.-24. Denied. Any negligence on the part of Defendants Ken's Plumbing, Inc. and/or E. K. Services, Inc. is specifically denied as is any notice of or responsibility for a condition dangerous to Plaintiff or others. On the contrary, they performed their contract in a reasonable and good and workmanlike manner under the circumstances. That Plaintiff fell and suffered any injuries is denied in that after a reasonable investigation, answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment. WHEREFORE, Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company demand that Plaintiffs complaint against them be dismissed. COUNT Il - NEGLIGENCE Frances Lee Bennett v. Borough of New Cumberland 25.-41. Denied. These averments are deemed denied as ones to which no responsive pleading is required on the part of Defendants Ken's Plumbing, Inc., E. K. Services, Inc. and Pennsylvania American Water Company. WHEREFORE, Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company demand that Plaintiffs complaint against them be dismissed. COUNT 111- NEGLIGENCE Frances Lee Bennett v. Pennsylvania American Water Company 42. Admitted in Part. Denied in Part. Paragraphs 1 - 41 hereof are incorporated by reference herein. 43. Admitted. It is admitted that Ken's Plumbing, Inc. contracted with Pennsylvania American Water Company to replace the water lines and that it subcontracted portions of that work to E. K. Services, Inc. 44. Denied. Any negligence on the part of Defendant Pennsylvania America Water Company is specifically denied as is any notice of or responsibility for a condition dangerous to Plaintiff or others. On the contrary, they performed their contract in a reasonable and good and workmanlike manner under the circumstances. That Plaintiff fell and suffered any injuries is denied in that after a reasonable investigation, answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment. 45. Admitted in part. Denied in part. Any duty to Plaintiff on the part of Defendant Pennsylvania American Water Company is specifically denied, as is any breach of a duty to Plaintiff. Any negligent conduct by Defendant Pennsylvania American Water Company is also denied. Moreover, Defendant Pennsylvania American Water Company fulfilled any alleged duty to Plaintiff by completing their contract in a reasonable and good and workmanlike manner under the circumstances. The remaining portions of paragraph 45 is admitted. 46. Denied. Any negligence on the part of Defendant Pennsylvania American Water Company is specifically denied. By way of further answer it is specifically denied: (a) That Defendant failed to inspect, correct or have corrected any alleged defective condition on the public cul-de-sac or that any such condition existed for any period of time. (b) That Defendant failed to inspect, correct or have corrected the asphalt repair and/or replacement work done by Defendants Ken's Plumbing, Inc. and/or E.K. Services, Inc. or that any of Defendants conduct with regard to said work was negligent; and (c) That Defendants either knew or should have known about an allegedly dangerous condition existed and allowed it to exist. 47. Denied. Any negligence on the part of Defendant Pennsylvania American Water Company is specifically denied. Furthermore, that Plaintiff fell and suffered any injuries is denied in that after a reasonable investigation, answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment. 48. Denied. Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment relating to Plaintiff's injuries or any resulting and/or future medical care that may have been necessary or will be necessary in the future. 49. Denied. Answering Defendants are without sufficient knowledge or information sufficient to form a belief as to the truth of said averment relating to Plaintiff's injuries and any resulting medical or other related expenses that Plaintiff may have incurred or will incur in the future. 50. Denied. Answering Defendants are without sufficient knowledge or information sufficient to form a belief as to the truth of said averment relating to Plaintiffs injuries and any resulting loss of earnings or earning capacity that Plaintiff may have experienced or will experience in the future. 51. Denied. Answering Defendants are without sufficient knowledge or information sufficient to form a belief as to the truth of said averment relating to Plaintiff's injuries and any resulting pain, suffering, scarring, loss of life's pleasures, mental anguish, emotional distress, embarrassment and/or humiliation that Plaintiff may have endured or will endure in the future. 52. Denied. Answering Defendants are without sufficient knowledge or information sufficient to form, a belief as to the truth of said averment relating to Plaintiff's injuries and the serious or permanence of any such alleged injuries. 53. Denied. Answering Defendants specifically deny that Pennsylvania American Water Company caused any injuries alleged by Plaintiff or in any way increased the alleged risk of harm to Plaintiff. By way of further answer, Defendants are without knowledge or information sufficient to form a belief as to the truth of the portions of Paragraph 53 relating to Plaintiff's alleged injuries and damages. WHEREFORE, Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company demand that Plaintiffs complaint against them be dismissed. CROSSCLA/M PURSUANT TO PA. R.C.P. NO. 2252(d) Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company v. Borough of New Cumberland 54. In the event that Plaintiff was injured as complained of in her complaint, which is denied, then Plaintiffs injuries were the result of acts and omissions of Co-Defendant as set forth in the averments of Plaintiffs complaint against said Defendants, which are incorporated for reference herein only, but neither admitted or denied, except as set forth above. WHEREFORE, Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company demand that Defendant Borough of New Cumberland be found solely liable to Plaintiff, that it be found jointly and severally liable, or that it be found liable over for contribution and indemnification. JOHNSON, DUFFIE, STEWART & WEIDNER By: Kelly nno :282119 22740-2102 VERIFICATION The undersigned says that the facts set forth in the foregoing document are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsifications to authorities. KEN'S PLUMBING, INC. and E.K. SERVICES, INC. BY: c Kenneth Beinhower, Sr. Dated: VERIFI CA TION The undersigned says that the facts set forth in the foregoing document are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsifications to authorities. PENNSYLVANIA AMERICAN WATER COMPANY BY: ?'k C n ?Ja r'celor- Loss C.od" Dated: ?? ?b CERTIFICATE OF SERVICE AND NOW, this O( day of October, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen M. Greecher, Jr., Esquire Tucker Arensberg, P.C. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 JOHNSON, DUFFIE, STEWART & WEIDNER By: W, ?ezl-x' ';v 'Michelle H. Spangler r-; ^v T- I t CTl y b THOMAS, THOMAS & HAFER, LLF Anthony T. Lucido, Esquire Identification Number: 76583 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant Borough of New Cumberland FRANCES LEE BENNETT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY, NO. 06-1696 CIVIL TERM JURY TRIAL DEMANDED Defendants DEFENDANT BOROUGH OF NEW CUMBER]LAND'S REPLY TO NEW MATTER CROSS-CLAIM 54. Denied as a legal conclusion to which no responsive pleading is required. a WHEREFORE, Defendant Borough of New Cumberland demands judgment in its favor and requests that the Crossclaim of Defendant Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company be dismissed, with prejudice. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: ,.,211< (//t>-7 482030.1 By. Anthony T. Lucido I.D.# 76583 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7154 ..` CERTIFICATE OF SERVICE I, Tammie L. Berkheimer, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the day of , 2007: Stephen Greecher, Esquire TUCKER ARENSBERG, P.C. 111 North Front Street Harrisburg, PA 17108 C. Roy Weidner, Esquire Kelly L. Bonanno, Esquire JOHNSTON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 THOMAS, THOMAS & B3?--- Tammie L. Ber er Cl N' C'L7 i .. t. . , CIVIL TERM JURY TRIAL DEMANDED STIPULATION The parties hereto, by their respective counsel, stipulate that the Plaintiffs Complaint is amended by adding the following allegations to the allegations heretofore made in the Complaint, and that upon the filing of the Stipulation, the Complaint is amended. It is further stipulated that each Defendant denies the allegations directed to that Defendant, and no further answer is required on the part of Defendants. Defendants, Ken's Plumbing, Inc. and/or E. K. Services, Inc., failed to properly backfill the excavation in Haldeman Court and failed to properly finish or top off the excavation with cold patch or other material, thereby creating a dangerous condition in Haldeman Court. 2. Defendants, Ken's Plumbing, Inc. and E. K. Services, Inc., failed to properly and timely inspect, maintain, and repair the excavation and its surface after the new water main was installed in Haldeman Court, permitting a dangerous condition to exist that was the result of the initial work, subsequent work or damage or deterioration to the area excavated in Haldeman Court. 3. Defendant, the Borough of New Cumberland, failed to properly and timely inspect, maintain, and repair the area excavated in Haldeman Court after the new water main was installed FRANCES LEE BENNETT, V. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC. E.K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants in Haldeman Court, and failed to properly and timely maintain and repair any damage or deterioration to the excavation or its surface occurring after the new water main was installed in Haldeman Court, thereby permitting the existence of a defective and DATE: 0 -7 DATE: DATE: -V-2- 7/(D7 92599.1 SfeWe-K fI: Greechef, Jr. Attorney's I.D. No. PA-36803 Tucker Arensberg, P.C. 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF condition. oy Weidner, Jr. Attorney's I.D. # (q!UO Johnson Duffle Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANTS, KEN'S PLUMBING, INC., E. K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER CO. C Anthony T. Lucido Attorney's I.D. # 765"T3 Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 ATTORNEYS FOR DEFENDANT, BOROUGH OF NEW CUMBERLAND -2- -4%. CERTIFICATE OF SERVICE AND NOW, this / ST day of MARCH, 2007, I, Jacquelyn Zettlemoyer, Secretary to Stephen M. Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P.C., attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 ATTORNEYS FOR DEFENDANTS, KEN'S PLUMBING, INC., E. K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY Anthony T. Lucido, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 ATTORNEYS FOR DEFENDANT, BOROUGH OF NEW CUMBERLAND Jacqu lyn ettle oyer 88402.1 t-J C=nl , 1 Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 crw@jdsw.com FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants Attorneys for Defendants Ken's Plumbing, Inc E.K. Services, Inc. and Pennsylvania America Water Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS KEN'S PLUMBING, INC. AND E. K. SERVICES, INC.'S REPLY TO NEW MATTER OF DEFENDANT BOROUGH OF NEW CUMBERLAND AND NOW, this 16th day of October, 2007, come Defendants Ken's Plumbing, Inc. and E.K. Services, Inc., through their undersigned attorneys, and reply to the new matter of Defendant Borough of New Cumberland as follows: 54.-55. Denied. These averments are deemed denied as conclusions of law to which no responsive pleading is required. 56.-57. Denied. After a reasonable investigation, replying Defendants are without knowledge or information sufficient to form a belief as to the truth of said averments. 58. Admitted. 59. Denied. After a reasonable investigation, replying Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment. NEW MATTER PURSUANT TO PA. R.C.P. 2252(d) DIRECTED TO ALL OTHER DEFENDANTS 60. Admitted in Part Denied in Part. Replying Defendants' answer to Plaintiff's complaint is incorporated by reference herein. 61. Denied. 62.-63. Denied. These averments are deemed denied generally and as conclusions of law to which no responsive pleading is required. WHEREFORE, replying Defendants demand judgment in their favor. JOHNSON, DUFFIE, STEWART & WEIDNER B: Roy Weidner, Jr. :279945 22740-2102 VERIFICATION The undersigned says that the facts set forth in the foregoing document are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsifications to authorities. Kenneth Beinhower, Sr. Dated: 5 G 7 CERTIFICATE OF SERVICE AND NOW, this lb d y of October, 2007, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen M. Greecher, Jr., Esquire Tucker Arensberg, P.C. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 JOHNSON, DUFFIE, STEWART & WEIDNER By: helle H. Spangler ` ' -' ?: C r 71 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: 0 for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) FRANCES LEE BENNETT, (check one) x Civil Action -Law ? Appeal from arbitration (Plaintiff) VS. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, (Defendants) (other) The trial list will be called on August 19, 2008 Trials commence on September 15, 2008 Pretrials will be held on August 27, 2008 (Briefs are due S days before pretrials) No. 06-1696 , Civil Term Indicate the attorney who will try case for the party who files this praecipe: C Roy Weidner Jr Esguire Indicate trial counsel for other parties if known: Stephen M Greecher Jr Esquire for Plaintiff and Anthony T. Lucido Esquire for Defendant This case is ready for trial. Date: 6'1 q (I ae) Signed: Print Name: C. Roy Weidner, Jr. Attorney for: Defendants Ken's Plumbing, Inc. E.K. Services, Inc. and Pennsylvania American Water Company 332059 ? qu 4& 0 ° -ca a ,. L trr FRANCES LEE BENNETT, Plaintiff, V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC., AND PENNSYLVANIA AMERICAN WATER COMPANY, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of Subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) a Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed or delivered to each party. The twenty-day notice period has been waived. (2) a copy of the Notice of Intent, including the proposed Subpoena, is attached to this certificate; (3) Defendants have no objection to the Subpoena being served; and (4) the Subpoena which will be served is identical to the subpoena which is attached to the Notice of Intent to serve the Subpoena. E Attorney I.D. No. 36803 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF DATE: _? 102078.1 FRANCES LEE BENNETT, Plaintiffs, V. BOROUGH OF NEW CUMBERLAND, KENS' PLUMBING, INC., E.K. SERVICES, INC., AND PENNSYLVANIA AMERICAN WATER COMPANY, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company c/o C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Borough of New Cumberland c/o Anthony T. Lucido, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 You are hereby notified that the Plaintiff, Frances Lee Bennett, intends to serve a Subpoena identical to the one that is attached to this Notice upon the Pennsy Supply, Inc. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Subpoena. If no objection is made, the Subpoena may be served. DATE: July 3, 2008 102074.1 TUCKER ARENSBERG, P.C. By: n Ge er,Jr. Attorney's I.D. No. PA-36803 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE AND NOW, this 3`d day of July, 200, I, Dawn T. Heilman, Secretary for the law firm, Tucker Arensberg, P.C., attorney for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: C. Roy Weidner, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants, Ken's Plumbing, Inc., E.K. Services, Inc., and Pennsylvania American Water Company Anthony T. Lucido, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendant, Borough of New Cumberland Dawn T. Heilman FRANCES LEE BENNETT, Plaintiffs, V. BOROUGH OF NEW CUMBERLAND, KENS' PLUMBING, INC., E.K. SERVICES, INC., AND PENNSYLVANIA AMERICAN WATER COMPANY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL ACTION - LAW : I JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Pennsy Supply, Inc., 1001 Paxton Street, Harrisburg, PA 17104 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records reports summaries and memorandums regarding the dates of operation of the asphalt plants located in Mechanicsburg PA and Harrisburg PA within the time period of December 15, 2004 and March 15, 2005 at Tucker Arensberg P.C., 111 North Front Street P.O. Box 889, Harrisburg. PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: ADDRESS: TELEPHONE: SUPREME COURT ID # ATTORNEY FOR: BY THE COURT: Prothonotary, Civil Division Stephen M. Greecher, Jr. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 36803 PLAINTIFF Date: Seal of Court Deputy CERTIFICATE OF SERVICE AND NOW, this /I * ' day of July, 2008, I, Jacquelyn Zettlemoyer, Secretary to Stephen M. Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P.C., attorney for Plaintiff, hereby certify that I have this day served the within document by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company Anthony T. Lucido, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Borough of New Cumberland (??c4u? ??? Jacque yn ttlemoyer s`° _? ° fi ca'' ? - n r te- ?? r ,; ? _ ? ?= , 'T'a i ?c.? "? s"j'r -? O _... ..? I" Gordon A. Einhorn, Esquire I.D. 59006 THOMAS, THOMAS & HAFT ER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7054 geinhorn@tthlaw.com Attorneys for Defendant Borough of New Cumberland I FRANCES LEE BENNETT, IN THE COURT OF COMMON PLEAS OF PI intiff CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF NEW KEN'S PLUMBING, If SERVICES, INC. and AMERICAN WATER UMBERLAND, :., E.K. ENNSYLVANIA )MPANY, 'endants NO. 06-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECfPE FOR ENTRY OF APPEARANCE To: Prothonotary Please enter the appearance of the undersigned as counsel of record for Defendant Borough of New Cumberland in the above matter. THOMAS, THOMAS & HAFER, LLP rdon A. Einhorn, Esquire I.D. No. 59006 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7054 geinhorn@tthlaw.com Date: 8/21/08 CERTIFICATE OF SERVICE I, Gordon A. Einlhorn, Esquire, of the law firm of Thomas, Thomas & Hafer, LLP, attorney for Defendant Borough of correct copy of the for going placing a copy of same in the Pennsylvania addressed as follows: Stephen Greecher, Esquire Tucker Arensberg, P.C 111 North Front Street, Harrisburg, PA 17108 C. Roy Weidner, Esqui e Johnston, Duffle, Stew rt & Weidner P.O. Box 109 Lemoyne, PA 17043-0109 New Cumberland, hereby certify that a true and document was sent to the following counsel of record by United States mail, postage prepaid, at Harrisburg, THOMAS, THOMAS & HAFER, LLP s • G on A. Einhom, Esquire .D. No. 59006 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7054 geinhorn@tthlaw.com Date: 8/21/08 619405.1 7 ? S y m. 3 e FRANCES LEE BENNETT, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-1696 BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC. CIVIL TERM E.K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER JURY TRIAL DEMANDED COMPANY, Defendants STIPULATION The parties hereto, by their respective counsel, hereby stipulate as follows: 1. As a result of the fall of March 2, 2005, Ms. Bennett sustained a fracture to her right wrist. She was seen at the Holy Spirit Hospital Emergency Room and then came under the care of Dr. Curtis Goltz of the Orthopedic Institute of Pennsylvania, who performed surgery on Ms. Bennett's right wrist on March 16, 2005, in the nature of an open reduction internal fixation with a plate and screws. 2. As a result of the fall, Ms. Bennett developed symptoms of median nerve entrapment at the wrist and ulnar nerve entrapment of the elbow with stiffness and pain, ring and small finger numbness and incomplete mobility of the hand. As a result, she underwent surgery performed by Dr. Robert J. Maurer on July 21, 2005, on her right wrist and right elbow consisting of a right carpal tunnel release and a right ulnar nerve release. 3. As a result of the fall, Ms. Bennett injured her left shoulder by aggravating a pre- existing condition in her left shoulder. In the past, Ms. Bennett had suffered laxity and instability of the left shoulder. As a result of the fall, the instability of the left shoulder returned and Ms. Bennett suffered an extension of a torn muscle within the shoulder. Ms. Bennett came under the treatment of Dr. Armstrong at the Milton Hershey Medical Center and was seen by Dr. Armstrong on September 12, 2005. At that examination, Dr. Armstrong found similar laxity of both of Ms. Bennett's shoulders diagnosing instability of the left shoulder. Ms. Bennett underwent elective arthroscopic surgery performed by Dr. Armstrong at the Hershey Medical Center on November 15, 2005, for treatment of the injury to her left shoulder suffered in the fall. 4. As a result of the injuries suffered in the fall, Ms. Bennett is now left with a contracture of her right hand, such that only with great effort can she bring the fingertips of her right hand in contact with her palm and make a tight fist. No additional treatment is recommended and her prognosis is poor. 5. Ms. Bennett does not have any signs of instability at the wrist, elbow or shoulder, nor is there any evidence of ongoing nerve entrapment at the wrist or elbow. 6. The medical expenses incurred for the medical care of Ms. Bennett as a result of the injuries she suffered in the fall are $21,601.02, which amount is fair and reasonable. Note, this is PEBTF's lien. 7. Liability for any injuries, medical expenses incurred or any damages claimed by Ms. Bennett as a result of the fall is expressly denied by the Defendants in this case. S4pn MJr. Attorney's I.D. No. PA-36803 Tucker Arensberg, P.C. 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF DATE: 14:220e- C. Roy Weidner, Jr. Attorney's I.D. #19530 Johnson Duffle Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043 ATTORNEYS FOR DEFENDANTS, KEN'S PLUMBING, INC., E. K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER CO. DATE: don A. Einhorn Attorney's I.D. #59006 Thomas, Thomas & Hafer, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 ATTORNEYS FOR DEFENDANT, BOROUGH OF NEW CUMBERLAND DATE: 21 ?v 103144.1 -2- w r z t., r- ..,r i Cl- Tr tq?L LP - t FRANCES LEE BENNETT, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E. K. SERVICES, INC., and PA AMERICAN WATER COMPANY, DEFENDANTS NO. 06-1696 CIVIL IN RE: PRE-TRIAL CONFERENCE ORDER OF COURT AND NOW, this 27th day of August, 2008, after Pre-Trial Conference in the above referenced case, IT IS HEREBY ORDERED AND DIRECTED that: 1. Trial counsel in this case shall be Stephen M. Greecher, Jr., Esquire for Plaintiff, Gordon A. Einhorn, Esquire, for New Cumberland Borough, and C. Roy Weidner, Jr., Esquire for Ken's Plumbing, Inc., E. K. Services Inc., and Pennsylvania American Water Company. 2. Counsel have indicated that trial will take approximately four days. 3. Each party will be granted four peremptory challenges. 4. Given the brief nature of the case, all counsel have agreed that jurors will not be allowed to take notes. 5. Rather than having it filed and made part of the pleadings, the parties have stipulated that the "pro rata joint tort-feasor release" executed by the Plaintiff in favor of the Borough of New Cumberland will be admitted to the record and the Court will then be allowed to mold the verdict as needed. 6. All parties have been directed to prepare an exhibit list pursuant to the example attached. Two copies of this exhibit list shall be provided to the Court prior to 'TO IJ OS C d 3- d3S 8601 j 1r + 7 the commencement of trial. All visual aids used in the case shall be disclosed to the opposing party. 7. Counsel for each party is directed to file with the Court on or before 12:00 p.m. on September 12, 2008, a list of the numbered standard jury instructions the party is requesting. If a party is proposing a unique jury instruction or requesting significant modification of a standard instruction, it shall provide the full text of the proposed instruction to the Court. 8. On or before 12:00 p.m. on September 12, 2008, the parties will provide a proposed verdict slip to the Court for review. By the Court, M. L. Ebert, Jr., J. Xtephen M. Greecher, Jr., Esquire 111 North Front Street Harrisburg, PA 17108 Attorney for Plaintiff Xordon A. Einhorn, Esquire P. O. Box 999 Harrisburg, PA 17108-0999 1 Attorney for New Cumberland Borough /C Roy Weidner, Jr., Esquire P. O. Box 109 Lemoyne, PA 17043-0109 Attorney for Ken's Plumbing, E And PA American Water Co. K. Services, Inc;. Court Administrator - tsp S e(W oV bas FRANCES LEE BENNETT, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY, DEFENDANTS : NO. 06-1696 CIVIL ORDER OF COURT AND NOW, this 12th day of September, 2008, upon consideration of the "pro rata joint tort-feasor release" executed by the Plaintiff in favor of the Borough of New Cumberland in this case and with the concurrence of counsel, IT IS HEREBY ORDERED AND DIRECTED that Gordon Einhorn, Esquire, Counsel for Defendant Borough of New Cumberland, does not need to appear for trial in this case. /Stephen Greecher, Jr., Esquire /Attorney for Plaintiff / Gordon A. Einhorn, Esquire Attorney for Defendant XC. Borough of New Cumberland Roy Weidner, Esquire Attorney for Defendants bas Cv ?'>ES' n-z? t &CL By the Court, -? S4? ', M. L. Ebert, Jr., J. y?! s/vg t C .g WV S 1 03S BUZ J4?#.tE?tvv . Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 crw@jdsw.com FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' KEN'S PLUMBING, INC., EX SERVICES, INC. AND PENNSYLVANIA AMERICAN WATER COMPANY'S REQUESTED JURY INSTRUCTIONS AND NOW, this ? A= day of September, 2008, Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company request that the following points be included in the charge to the jury: Appendix "N'- Standard Instructions Appendix "B° -Additional Instructions Defendants request the opportunity to submit supplemental instruction requests based on the evidence adduced at trial. JOHNSON, DUFFIE, STEWART & WEIDNER Roy Weidner, Jr. ? :344189 22740-2102 Attorneys for Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company FILE Copy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 71 L C40 p X ? laz, APPENDIX "A" PENNSYLVANIA SUGGESTED STANDARD JURY INSTRUCTIONS CIVIL Instruction Title Intr. No. Stipulation of Fact 2.11 Given Refused Covered Withdrawn Issues in the Case 3.00 Given Refused Covered Withdrawn Contributory Negligence (referring to Plaintiff's choice of parking by the ditch 3.21 and failing to see and avoid any asphalt pieces, depressions and ice knowing that they had been there for some time) Given Refused Covered Withdrawn Number of Witnesses 5.03 Given Refused Covered Withdrawn Conflicting Testimony 5.04 Given Refused Covered Withdrawn Cautionary Charge: Jury Not To Assume Judge Has Expressed an Opinion on the Evidence 5.40 Given Refused Covered Withdrawn APPENDIX "B" REQUESTED POINT NO. 1 Directed Verdict Under the law and facts of this case, you must find against Plaintiff and in favor of Defendants. Given Refused Covered Withdrawn REQUESTED POINT NO. 2 Plaintiffs Burden of Proof - Negligence & Causation In order to establish liability of any Defendant, a Plaintiff must prove that the Defendant acted negligently or negligently failed to act, and that such negligence was a substantial factor in bringing about harm to Plaintiff. CITATION OF AUTHORITY: Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Frangis v. Duquesne Light Co., 232 Pa. Super. 420, 335 A.2d 796 (1975); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) Given Refused Covered Withdrawn REQUESTED POINT NO.3 Plaintiffs Burden of Proof To establish a cause of action for negligence, the Plaintiff must demonstrate that the Defendant owed a duty of care to the Plaintiff, the Defendant breached that duty, the breach resulted in injury to the plaintiff, and the Plaintiff suffered an actual loss or damage. Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances. The mere occurrence of an accident does not establish negligent conduct. Rather, the Plaintiff has the burden of establishing, by a preponderance of the evidence, that the Defendant engaged in conduct that deviated from the general standard of care expected under the circumstances, and that this deviation proximately caused actual harm. CITATION OF AUTHORITY: Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998) (internal citation omitted) Given Refused Covered Withdrawn REQUESTED POINT NO.4 Plaintiff's Burden of Proof -Causation The mere existence of negligence on the part of Defendant and the occurrence of the accident or injury are insufficient to impose liability on Defendant. Plaintiff has the burden of proving that the negligence was the proximate or legal cause of the accident or injury. CITATION OF AUTHORITY: Ostrowski v. Crawford Door Sales Co. of Scranton, 207 Pa. Super. 424, 431, 217 A.2d 758, 762 (1966). Given Refused Covered Withdrawn REQUESTED POINT NO. 5 Negligence - Foresight The law does not hold Defendants such as Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company to infallibility of judgment. No Defendant's foresight is required to equal his critic's hindsight. CITATION OF AUTHORITY: Richardson v. Pennsylvania Railroad, 338 Pa. 155, 12 A.2d 583 (1940) Given Refused Covered Withdrawn REQUESTED POINT NO. 6 Mere Happening - Not Negligence Negligence is never presumed, and the mere happening of Plaintiff's accident or injury, unfortunate as it may be, does not mean that Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company are liable. Indeed, the mere happening of Plaintiff's accident is no evidence of negligence on the part of Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company. CITATION OF AUTHORITY: Miller v. Hickey, 368 Pa. 317, 81 A.2d 910 (1951); Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. 641, 359 A.2d 440 (1976); Melendez By Melendez v. City of Philadelphia, 320 Pa. Super. 59, 466 A.2d 1060 (1983) Given Refused Covered Withdrawn REQUESTED POINT NO. 7 Negligence - Standard of Tradesman No Defendant is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence for a tradesman is the same, and however strongly you may be convinced that there is a better or less dangerous way, it cannot be found that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. CITATION OF AUTHORITY: Cool v. Curtis-Wright, Inc., 362 Pa. 60, 64, 66 A.2d 287, 289 (1949) Given Refused Covered Withdrawn REQUESTED POINT NO. 8 Contributory Negligence - May Come From Plaintiff Proofs Even though a Defendant may be said to have the burden of proving contributory negligence, it is sufficient for you to find contributory negligence if Plaintiff, in presenting her case, reveals factors which indicate contributory negligence on the part of Plaintiff and Defendant presents no evidence. CITATION OF AUTHORITY: Matteo v. Sharon Hill Lanes, Inc., 216 Pa. Super. 188, 263 A.2d 910 (1970) Given Refused Covered Withdrawn REQUESTED POINT NO. 9 Contributory Nectliaence Contributory negligence is conduct on the part of a Plaintiff which falls below the standard of care to which she should conform for her own protection and which is a legally contributing cause, cooperating with the negligence of a Defendant, in bringing about the Plaintiff's harm. Contributory fault may stem either from a Plaintiff's careless exposure of herself to danger or from her failure to exercise reasonable diligence for her own protection. CITATION OF AUTHORITY Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002) (internal citation omitted) Given Refused Covered Withdrawn REQUESTED POINT NO. 10 Negligence or Inattentiveness of Plaintiff - Causation You may consider the negligence or inattentiveness of the Plaintiff in determining the cause of her accident and injuries. CITATION OF AUTHORITY: Foley v. Clark Equipment Co., 361 Pa. Super. 599, 523 A.2d 379, allocatur denied, 516 Pa. 614, 531 A.2d 780 and 516 Pa. 641, 533 A.2d 712 (1987) Given Refused Covered Withdrawn REQUESTED POINT NO. 11 Plaintiffs Duty to Look at Surface Under Pennsylvania law, Plaintiff had a duty to look at the surface upon which she was walking and see that which was obvious. CITATION OF AUTHORITY: Villano v. Security Savings Association, 268 Pa. Super. 67, 70, 407 A.2d 440, 441 (1979); Larson, et al. v. N. Snellenburg & Co., 154 Pa. Super. 63, 65-66, 35 A.2d 540,541 (1944). Given Refused Covered Withdrawn REQUESTED POINT NO. 12 Intervening or Superseding Cause It is well settled that a Defendant, in this case, Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company, may be relieved of their responsibility for their negligent conduct from an intervening act of a third party, such as plowing by the Borough of New Cumberland, if that intervening act constitutes a "superseding cause." A "superseding cause" is an act of a third person or other force which, by its intervention, prevents the negligent party from being liable for harm to another caused by his or her antecedent negligent conduct. CITATION OF AUTHORITY Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1060 (Pa. Super. 2003) (internal citations omitted) Given Refused Covered Withdrawn REQUESTED POINT NO. 13 Causation - Other Sources of Causation In arriving at your decision as to the cause of the Plaintiffs fall, you may consider the acts or omissions of Plaintiff, herself, as well as the acts or omissions of the Borough of New Cumberland. Such actions are relevant in determining the cause of the accident. When considering the claims of Plaintiff, you may properly find that something other than the manner in which the ditch was paved caused Plaintiffs fall. CITATION OF AUTHORITY Foley v. Clark Equipment Co., 361 Pa. Super. 599, 523 A.2d 379, 394 (1987) Given Refused Covered Withdrawn REQUESTED POINT NO. 14 Liability for Negligence of Independent Contractor As a general rule, the employer of an independent contractor, such as Pennsylvania American Water Company, is not liable for the physical harm caused to another by an act or omission of the contractor or its employees. CITATION OF AUTHORITY: Motter v. The Meadows Limited Partnership, 451 Pa. Super. 520, 526, 680 A.2d 887, 890 (1996) (internal citations omitted) Given Refused Covered Withdrawn REQUESTED POINT NO. 15 Plaintiff Burden of Proof - Damages It is Plaintiffs burden to establish by evidence such facts as will furnish the basis for your assessment of damages; the law requires not merely conjecture, but rather, sufficient information from which the damages may be assessed with reasonable certainty. CITATION OF AUTHORITY: Magar v. Lifetime, Inc., 187 Pa. Super. 143, 144 A.2d 747 (1958); Gordon v. Trovato, 234 Pa. Super. 279, 338 A.2d 653 (1975) Given Refused Covered Withdrawn REQUESTED POINT NO. 16 Future Consequences of Injuries - Speculation Not Permitted You may not estimate damages based on conjecture or speculation about what might happen in the future. CITATION OF AUTHORITY: Lorch v. Elgin, 369 Pa. 314, 320, 85 A.2d 841, 844 (1952) Given Refused Covered Withdrawn REQUESTED POINT NO. 17 Damages - Pain and Suffering Damages for pain and suffering are compensatory in nature and may not be arbitrary, speculative, or punitive, and must be reasonable. CITATION OF AUTHORITY: Haines v. Raven Arms, 536 Pa. 452, 458, 640 A.2d 367, 370 (1994) Given Refused Covered Withdrawn REQUESTED POINT NO. 18 Sympathy Your verdict is not to be based on sympathy or partiality for the Plaintiff, or prejudice against the Defendants. These would be improper influences for you to consider in your deliberations. CITATION OF AUTHORITY: Lewis v. Pruitt, 337 Pa. Super. 419, 431, 487 A.2d 16, 22 (1985) Given Refused Covered Withdrawn REQUESTED POINT NO. 19 Assessment of Damages - Function of Jury In determining what, if any, damages should be awarded to Plaintiff, it is your function to resolve inconsistencies and contradictions, to believe or disbelieve all or part of the testimony of the witnesses and thereafter to compromise the verdict or establish an amount which you determine would justly compensate the Plaintiff for her loss. Indeed, it is within your province to assess the worth of testimony and accept or reject the testimony of damages given by witnesses. CITATION OF AUTHORITY: Fiennan v Southeastern Pennsylvania Transportation Authority, 277 Pa. Super. 252, 255, 419 A.2d 757, 759 (1980) Given Refused Covered Withdrawn ?h r7l ?, v Ctl ??---- .J ms's . a -V FRANCES LEE BENNETT, PLAINTIFF V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL IN RE: POINTS FOR CHARGE ORDER OF COURT AND NOW, this 17th day of September, 2008, the Court having reviewed all of the Proposed Points for Charge filed by the respective parties IT IS HEREBY ORDERED AND DIRECTED: 1. Plaintiffs Proposed Points for Charge 1. Refused as unnecessary at this time. 2. Given. 3. Given. 4. Refused. 5. Given. 6. Denied. 7. Given. 8. Given. 9. Given. 10. Given. 11. Given. 12. Given. Y ? 13. Given. 14. Given. 15. Given. 16. Given. 17. Given. 18. Given. 19. Given. 20. Covered. 21. Generally covered. II. Defendants - Ken's Plumbing, E. K. Services and Pennsylvania American Water Companies Proposed Points for Charge 1. Refused. 2. Given. 3. Generally covered. 4. Generally covered. 5. Refused. 6. Generally covered. 7. Refused. 8. Refused. 9. Generally covered. 10. Refused. 11. Refused. 12. Refused. 4' • 13. Generally covered. 14. Generally covered. 15. Generally covered. 16. Generally covered. 17. Generally covered. 18. Generally covered. 19. Generally covered. Standard Jury Instructions 2.11, 3.00, 3.21, 5.03, 5.04, Given Standard Jury Instruction 5.40 Refused (the Court did not invite the jury's attention to any evidence in the case). By the Court, * -A, ?,al\ M. L. Ebert, Jr., J. Stephen M. Greecher, Jr., Esquire Attorney for Plaintiff C. Roy Weidner, Jr., Esquire Attorney for Defendants Ken's Plumbing, Inc., E. K. Services, Inc. Pennsylvania American Water Co. 11)0 bas ViNWASA N- 93d } Jl,LN,tnf`n ? , -51 {ono 0 £ :01 WV C I d3S 8OOZ AdVIQ?v?H. OIW 4U ?Q FRANCES LEE BENNETT, PLAINTIFF V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC., and PENNSYLVANIA AMERICAN WATER COMPANY DEFENDANTS Nealigence Question 1: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1696 CIVIL VERDICT Do you decide that any of the Defendants were negligent? Ken's Plumbing, Inc. E. K. Services, Inc. Pennsylvania American Water Company Borough of New Cumberland Yes No L.," Yes No Yes No Yes _4G No If you answer Question 1 "Yes" as to any Defendants, go to Question 2. If you answered Question 1 "No" as to all Defendants, the Plaintiff cannot recover and you should not answer any further questions and should return to the Courtroom. Question 2: Was the negligence of those Defendants you have found to be negligent a factual cause of any harm to the Plaintiffs? Ken's Plumbing, Inc. E. K. Services, Inc. Pennsylvania American Water Company Borough of New Cumberland V" Yes No L,-' Yes No --L,,-/Yes No Yes No if you answered Question 2 "Yes" to any Defendants, you should proceed to answer Question 3. If you answered Question 2 "No" as to all Defendants you have found to be negligent, the Plaintiff cannot recover and you should not answer any further questions and you should return to the Courtroom. Question 3: Was the Plaintiff negligent? Yes No If you answered Question 3 "Yes," go to Question 4. If you answered Question 3 "No," go to Question 5. Question 4: Was the Plaintiffs negligence a factual cause of any harm to her? V"' Yes No Go to Question 5. Question 5: If you have found more than one party causally negligent, you must apportion the negligence among those parties. Taking the combined negligence that was a factual cause of any harm as 100%, what percentage of that causal negligence was attributable to each of the Defendants you have found to be causally negligent and, what percentage was attributable to the Plaintiff if you have found Plaintiff causally negligent? Your percentages must total one hundred percent (100%). A. Percentage of causal negligence attributable to Ken's Plumbing, Inc.? (Answer only if you have answered "Yes" to both Questions 1 and 2 for Ken's Plumbing, Inc.). 12.% B. Percentage of causal negligence attributable to E. K. Services, Inc.? (Answer only if you have answered "Yes" to both Questions 1 and 2 for E. K. Services, Inc.). 12 % C. Percentage of causal negligence attributable to Pennsylvania American Water Company? (Answer only if you have answered "Yes" to both Questions 1 and 2 for Defendant Pennsylvania American Water Company). D. Percentage of causal negligence attributable to Borough of New Cumberland? (Answer only if you have answered "Yes" to both Questions 1 and 2 for Defendant Borough of New Cumberland). % E. Percentage of causal negligence attributable to Plaintiff? (Answer only if you have answered "Yes" to both Questions 3 and 4). 51 % TOTAL 100% If you have found the Plaintiffs causal negligence to be greater than 50 percent, then the Plaintiff cannot recover and you should not answer Question 6 and should return to the Courtroom. If you have found the Plaintiffs causal negligence to be less than 50 percent, go to Question 6. Damages Question 6: State the amount of damages, if any, sustained by the Plaintiff as a result of the occurrence; do not reduce the amount of damages by the percentage of causal negligence, if any, that you have attributed to the Plaintiff. After you return your answers to these questions on the verdict form, signed by the jury foreperson, l will decide the amount awarded to the plaintiff by reducing the amount of damages found by you in proportion to the percentage of the plaintiffs causal negligence, if any. Do not reduce the amount of the plaintiffs damages on your own. G!,ft 15ate % Foreperso CASE NO.: I COU RTRO OM NO.. fr/'Qga-S' Zee Adf',7,V5? VS &LOZL 54 9 ?I / G l / or A ko eum.d e-^h,,?2` ?T rlf : a " A? DOCKET NO DATE -Ylls -D . : r juror # Name Random No. 2 126 HARRISON, DEBORAH -1880312656 3- 72 r e Arn?.rrFi IN T 4 98 STOUFFER, EDDIE E. -1347044841 5 129 ERNO, AMY E -1292770575 1 j -123 U27 J? 9 112 WOLFE, STEVEN -929924410 10 116 HEYMAN, EUGENE F III -798682318 11 114 BRANDT, MEGAN E -551012764 12 90 BRENNEMAN, VINCENT L. JR. -443796990 13 94 PATTERSON, GERALD 417714176 L--? 16 97 EVELHOCH, DAVID L. 178689582 1.8 60 RHINEHART, FRANKLIN S JR 575233174 19 96 BURNS, BILLY H. 649752577 20 113 RENTSCHLER, MARGARET 797800655 21 - 1(]39 HILLEGAS, CAROL 961653773 1158846943 23 59 KOPCHO, SUSAN M. 1221490953 24 135 GERMAN, AMANDA N 1574446727 2 5 111 ETTER, SHARON A. 1829608953 26 82 ZIMMERMAN, MICHAEL 1930898612 27 108 ROBSON, KEVIN A 2011493658 28 99 SHIMMEL, EDGAR 2061656076 29 110 CAVALATI, KATHLEEN 2109868248 Monday, September 15, 2008 Page 1 of 1 Johnson, Duffle, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 crw@jdsw.com FRANCES LEE BENNETT, Plaintiff V. BOROUGH OF NEW CUMBERLAND, KEN'S PLUMBING, INC., E.K. SERVICES, INC. and PENNSYLVANIA AMERICAN WATER COMPANY, Defendants NO. 06-1696 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO ENTER JUDGMENT AND NOW, this ? d y of September, 2008, no motions for post trial relief from the jury's verdict of September 17, 2008 having been filed, enter judgment in favor of Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company and against Plaintiff on the jury's verdict. JOHNSON, DUFFIE, STEWART & WEIDNER Attorneys for Defendants Ken's Plumbing, Inc., E.K. Services, Inc. and Pennsylvania American Water Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA By: Roy Weidner, Jr. JURY'S VERDICT AND NOW, this 30* day of _ &,Dt 2008, judgment is entered against Plaintiff as above requested. URTIS R. L G, P THONOTARY By: Deputy :346003 r El CERTIFICATE OF SERVICE AND NOW, this o? day of September, 2008, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Stephen M. Greecher, Jr., Esquire Tucker Arensberg, P.C. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 Gordon A. Einhorn, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 JOHNSON, DUFFIE, STEWART & WEIDNER By: ichelle H. Spangler -f- t ? `-? a Q - ?,? F? v 91 , -'CJ 17 ( V IV? ? v1 ? ul