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HomeMy WebLinkAbout06-2067 STEPHEN M.KESLAR 30 Bethel Church Road Dillsburg, PA 17019, Plaintiff V. HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06 Z67 I VI T IN TRESPASS AND ASSUMPSIT Praecipe In the above-captioned action, please issue a Writ of Summons in Trespass and Assumpsit against the above-referenced Defendant. Date: 1("1'4 Respectfully submitted, Iii P Richard P. Mislitsky, Esquire Attorney ID # 28123 One West High Street P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 ? ? cy n ? d J r ? ?Y ti Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS Court of Common Pleas STEPHEN M.KESLAR 30 BETHEL CHURCH ROAD DILLSBURG, PA 17019 Plaintiff Vs. No 06-2067 CIVIL TERM HOT POINT INN 100 HOT POINT AVENUE SHIPPENSBURG, PA 17257 In CivilAction-Law Defendant To HOT POINT INN, You are hereby notified that STEPHEN M. KESLAR, the Plaintiff(s) has ( have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. Curtis R. Long (SEAL) /Prrothonotary// /- Date APRIL 12, 2006 By /(/gyp .C/ Deputy Z Attorney: Name: RICHARD P. MISLITSKY, ESQUIRE Address: ONE WEST HIGH STREET P.O.BOX 1290 CARLISLE, PA 17013 Attorney for: Plaintiff Telephone: 717-241-6363 Supreme Court ID No. 28123 Roxanne\Misc\HOt Point Inn, Praecipe COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Stephen M. Keslar, Plaintiff vs. Hot Point Inn, Defendant TO THE PROTHONOTARY: Court of Common Pleas No. 06-2067 CIVIL TERM In Civil Action - Law PRAECIPE Please enter our appearance for the Defendant. KELLER, KELLER AND BECK, LLC Sy Keller PA Supreme Court I.D. 425577 343-B South Potomac Street Waynesboro, PA 17268 (717) 762-3331 Attorney for the Defendant CERTIFICATE OF SERVICE I, John N. Keller, Esquire, attorney for the Defendant, certify that I mailed a true copy of the foregoing praecipe to the following persons at the following addresses, by depositing same in the United States mail, First Class postage prepaid: Richard P. Mislitsky, Esquire One West High Street P.O. Box 1290 Carlisle, PA 17013 Date: 1? cl6 KELLER, KELLER AND BECK, LLC 7 By Jo N. Keller Pa. Supreme Ct. I.D. #25577 343-B South Potomac Street Waynesboro, PA 17268 (717) 762-3331 Attorney for the Defendant ?: -- _, STEPHEN M. KESLAR 30 Bethel Church Road Dillsburg, PA 17019, Plaintiff V. HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL TERM IN CIVIL ACTION - LAW Motion for Pre-Complaint Discovery AND NOW, comes Plaintiff, Stephen Keslar by and through his attorneys, Richard P. Mislitsky, Esquire, and respectfully files the following Motion for Pre-Complaint Discovery: 1. Plaintiff has initiated a cause of action against the above-named Defendant by filing a Writ of Summons on the Hot Point Inn. Attached as Exhibit A. 2. This matter involves an unprovoked assault by the Defendant, its agents, servants, and/or workmen on the Plaintiff, Stephen Keslar. 3. Plaintiff filed this Motion for Pre-Complaint Discovery in order to determine and to ascertain the facts surrounding the assault, to ascertain the individuals involved, and to better identify the business entity under which Defendant operates. 4. The facts herein at issue are primarily within the control and sole dominion of the Defendant. 5. It is respectfully submitted that Plaintiff cannot properly file a Complaint without determining the facts. It is further respectfully submitted that Plaintiff cannot ascertain all of the facts unless pre-Complaint discovery is allowed by this Honorable Court. 6. In addition to the aforesaid, it is affirmatively averred that pre-Complaint discovery is necessary for the following additional reasons: In order to determine the appropriate cause of action or actions which may exist against the above-named Defendant; ii. In order to determine whether the cause of action in fact exists; iii. To determine whether or not the above-named Defendant has been properly identified and to further determine whether or not the other individuals and/or entities need to be named as Defendants; iv. In order to determine the correct business entity under which the Defendant operates; and v. To prepare and file a well-plead and factually accurate Complaint, if such is determined to be necessary. 7. It is affirmatively averred that leave of court to conduct pre-Complaint discovery will likely serve to promote judicial economy. 8. Leave of court to conduct pre-Complaint discovery will likely save all parties time and money by reducing the amount of additional documents required to be filed to amend the facts, the parties, or the causes of action. 9. It is respectfully submitted that the Plaintiff is agreeable, if this Court believes it is necessary, to establish parameters governing pre-Complaint discovery, including, but not limited to, a time deadline upon which to conduct such discovery; and limiting the areas of inquiry as the Court may deem necessary. 10. It is further respectfully requested that after conclusion of pre-Complaint discovery, the Plaintiff is given a reasonable amount of time in order to determine whether a Complaint should be filed, and if so, to file the appropriate Complaint. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order granting him leave of court to conduct pre-Complaint discovery and further granting a Stay of Proceedings for a period of not less than 60 days from the completion of pre-Complaint discovery. Date: Z b 6 Respectf y submitted, ( au ?- Richard P. Mislitsky, Esquire Supreme Court ID #28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 Counsel for Plaintiff STEPHEN N/I. KESLAR 30 Bethel Church Road Dillsburg, PA 17019, Plaintiff V. HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Q "0?0 !? V Irl 1 IN TRESPASS AND ASSUMPSIT Praecipe TO THE PROTHONOTARY: In the above-captioned action, please issue a Writ of Summons in Trespass and Assumpsit against the above-referenced Defendant. Date: Respectfully submitted, 'I e Richard P. Mislitsky, Esquire Attorney ID # 28123 One West High Street P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 a PLAINTIFF'S W EXHIBIT J Q N AAA J J Q Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS STEPHEN M. KESLAR 30 BETHEL CHURCH ROAD DILLSBURG, PA 17019 Plaintiff Vs. HOT POINT INN 100 HOT POINT AVENUE SHIPPENSBURG, PA 17257 Defendant Court of Common Pleas No 06-2067 CIVIL TERM In CivilAction-Law To HOT POINT INN, You are hereby notified that STEPHEN M. KESLAR, the Plaintiff(s) has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. Curtis R. Long (SEAL) Prothonotary Date APRIL 12, 2006 By Deputy Attorney: Name: RICHARD P. MISLITSKY, ESQUIRE Address: ONE WEST HIGH STREET P.O.BOX 1290 CARLISLE, PA 17013 Attorney for: Plaintiff Telephone : 717-241-6363 Supreme Court ID No. 28123 3 r. STEPHEN M. KESLAR 30 Bethel Church Road Dillsburg, PA 17019, Plaintiff V. HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL TERM IN CIVIL ACTION - LAW Certificate of Service I hereby certify that a copy of the foregoing Motion for Pre-Complaint Discovery has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John N. Keller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: a? JUn'(a006 Fo chard P. Mislitsky S eme Court ID # 28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 r r. ? 1 ' C --i 171 STEPHEN M.KESLAR 30 Bethel Church Road Dillsb g, PA 17019, Plaintiff V. HOT P INT INN 100 H Point Avenue Shippe sburg, PA 17257, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL TERM IN CIVIL ACTION - LAW Certificate of Effort the undersigned wrote to opposing counsel on May 9, 2006. A copy of the letter is date, counsel has not responded to my request. It is respectfully submitted that a reasonable effort has been made by the moving party. Date: 7, I 0 I ' U I Richard P. Mislitsky, Esquire Supreme Court ID # 28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 e *Richard P. Law Office of Richard P. Mislitsky One West High Street P.O. Box 1290 Carlisle, Pennsylvania 17013 Telephone (717) 241-6363 Fax (717) 249-7073 May 9, 2006 Keller, eller, and Beck, LLC John N. Keller, Esquire 343-B outh Potomac Street Waynesboro, PA 17268 Keslar v. Hot Point Inn Cumberland County No. 06-2067 CIVIL TERM Dear will be a pleasure working with you. Offices in: Carlisle Chambersburg York would like to conduct pre-complaint discovery. I would prefer to do this voluntarily. Could y u please get back to me on this. If your client cannot agree to this, please understand that I wi 1 file a petition. you get back to me as soon as possible. P. Mislitsky *Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency d M. KESLAR IN THE COURT OF COMMON PLEAS Church Road CUMBERLAND COUNTY, PENNSYLVANIA PA 17019, Plaintiff 30 V. : NO. 06-2067 CIVIL TERM TINT INN Point Avenue ;burg, PA 17257, Defendant IN CIVIL ACTION - LAW HOT 1001 Certificate of Service I hereby certify that a copy of the foregoing Certificate of Effort has been duly served following, by depositing a copy of the same in the United States Mail, first-class, upon prepaid, as follows: John N. Keller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: 0 Ju/C a/JU?o , F Richard P. Mislitsky r preme Court ID # 28123 ne West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 r.. ''> ?-_- -a ?__ .> O% G? c "7 C) _? -? =r_ -_, n, ?_: -?, ?? i ); ,? `.J STEPHEN M.KESLAR 30 Bethel Church Road Dillsburg, PA 17019, Plaintiff o? V. HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL TERM IN CIVIL ACTION - LAW Rule to Show Cause t?. AND NOW, this ?.°i day of '3UWA 2006, a Rule to Show Cause is hereby issued upon Defendant to show cause why the Motion for Pre-Complaint Discovery filed by Plaintiff should not be granted. Defendant shall have twenty (20) days from service in which to file a response to Plaintiffs Motion. Failure to do so will result in the Plaintiffs Motion being granted upon proper filing of a Rule Absolute. Counsel for Plaintiff shall cause a copy of this rule to be served on Defendant. BY THE COURT b1P 10 1?t' ?' ul \ J. C17 _,., 0 SHERIFF'S RETURN - REGULAR CASE NO: 2006-02067 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KESLAR STEPHEN M VS HOT POINT INN MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon HOT POI DEFENDANT the at 1425:00 HOURS, on the 17th day of April , 2006 at 100 HOT POINT AVENUE SHIPPENSBURG, PA 17257 by handing to LINDA WHITMER, PART OWNER, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 18.48 Postage .39 Surcharge 10.00 .00 46.87 I" S?a 1/06 Sworn and Subscribed to before me this day of A. D. So Answers: R. Thomas Kline 04/18/2006 RICHARD By: Prothonotary Roxanne\misc\Hot Point Inn, Motion, Keslar IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stephen M. Keslar, Civil Action - Law Plaintiff VS. No. 06-2067 CIVIL TERM Hot Point Inn, Defendant DEFENDANT'S MOTION FOR A PROTECTIVE ORDER PURSUANT TO PA. R.C.P. 4012 NOW comes the Defendant, by its attorney, John N. Keller, and moves Your Honorable Court for a protective order superseding the Order of Court dated June 29, 2006, filed in this case, permitting the Defendant to request and serve a Rule on the Plaintiff to file his complaint, and directing that the Plaintiff may not take further discovery until he files and serves a complaint. The Defendant sets forth the following in support of its motion: 1. This action was commenced by praecipe for writ of summons filed on April 12, 2006. 2. Although the Plaintiff has not yet filed his complaint and, therefore, his factual allegations and theories of liability are unknown, it is apparent that this case arises from injury the Plaintiff allegedly sustained on the premises of the Defendant tavern when he became engaged in a fight with Jason Allen Hopper, who was then employed at the tavern, on or about January 7, 2006. 3. The undersigned counsel entered his appearance for the Defendant on April 24, 2006. 4. On June 26, 2006, counsel for the Plaintiff filed a motion for pre- Complaint discovery. 5. This Honorable Court, by the Honorable M. L. Ebert, Jr., entered an Order dated June 19, 2006, copy of which is attached hereto and marked "Exhibit A," granting the said motion and providing, inter alia, that "...proceedings shall be stayed for a period of 60 days after Plaintiff completes his pre-Complaint discovery, which discovery shall be scheduled as soon as possible and shall NOT BE DELAYED." (Emphasis by the Court) 6. By notices dated July 25, 2006, counsel for the Plaintiff scheduled depositions of Jason Allen Hopper and Wanda Whitmer (who, with her husband, Robert Whitmer, is a shareholder of the corporation which operates the Defendant tavern) for August 17, 2006. 7. By agreement of the parties, the said depositions were postponed and rescheduled for October 19, 2006, so that the question of insurance coverage for the Defendant could be explored. 8. The depositions were again postponed because of pending criminal charges against Jason Allen Hopper arising from the incident in question which would have caused him to refuse to testify in a civil deposition. 9. Mr. Hopper's criminal trial was conducted on November 13 and 14, 2006, before the Honorable M. L. Ebert, Jr., with the result that the jury rendered a verdict of "not guilty" on the charge of Simple Assault and Judge Ebert rendered a verdict of "guilty" on the summary charge of Harassment. 10. By notices dated January 7, 2007, counsel for the Plaintiff rescheduled the depositions of Jason Allen Hopper and Wanda Whitmer for February 6, 2007. 11. On February 6, 2007, Wanda Whitmer appeared for deposition with the undersigned defense counsel. Jason Allen Hopper did not appear as he reportedly had just begun a new job and was not permitted to take off from work. 12. On February 6, 2007, counsel for the Plaintiff commenced the deposition of Wanda Whitmer, however, over the objection of defense counsel, he terminated that deposition without completing it, noting his intention to reschedule depositions. 13. By letter of February 7, 2007, copy of which is attached hereto and marked "Exhibit B," counsel for the Defendant advised counsel for the Plaintiff of Jason Allen Hopper's work schedule and recommended that the depositions Plaintiff's counsel wanted to take of Mr. Hopper and Robert Whitmer, and the continuation of Wanda Whitmer's deposition, which Plaintiff's counsel had agreed to take in Chambersburg, Pennsylvania, could be taken at the conference room of the Franklin County Bar Association. 14. Counsel for the Plaintiff made no further effort to take pre- Complaint discovery until December 4, 2007, when he sent notices scheduling depositions of Jason Allen Hopper, Robert Whitmer and Wanda Whitmer for February 21, 2008. 15. By letter of January 10, 2008, copy of which is attached hereto and marked "Exhibit C," counsel for the Defendant noted the Defendant's position that the Plaintiff had failed to comply with the aforementioned Court Order of June 21, 2006, by failing to schedule discovery as soon as possible and by delaying discovery. Defense counsel, therefore, requested that the Plaintiff's complaint be filed before any further depositions are taken. 16. The Defendant submits that the Plaintiff has failed to comply with the June 21, 2006 Order of Court in that he has failed to schedule pre- Complaint discovery as soon as possible and has, in fact, unreasonably delayed such discovery, particularly during the period between February 6, 2007 and December 4, 2007, when he made no effort whatsoever to complete or schedule discovery. 17. To require the Defendant to continue as the party Defendant in this action for nearly two years without the benefit of a complaint to advise it of the facts and theories of recovery upon which the claim against it is based and against which the Defendant must defend, subjects the Defendant to unreasonable annoyance, burden and expense which should entitle it to a protective order under Pa. R.C. 4012. WHEREFORE, the Defendant respectfully requests that Your Honorable Court enter an order granting this motion for a protective order and superseding the Order of Court dated June 29, 2006, by permitting the Defendant to request and serve a Rule on the Plaintiff to file his complaint, and directing that the Plaintiff may take no further discovery until after he files and serves a complaint. Respectfully submitted, KELLER, KELLER AND FREY, LLC By C)n?- JpA N K ler Supreme Ct. I.D. #25577 100 Walnut Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn I verify that the facts set forth in the foregoing motion are based upon my own knowledge, information and belief as attorney for the Defendant. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 3`/7/09 O hrf N. eller A ttorney for Defendant CERTIFICATE OF NONCONCURRENCE I certify that I have discussed the substance of the foregoing motion for a protective order with counsel for the Plaintiff, Richard Mislitsky, Esquire, and he noted that he does not concur in the request for a protective order stated therein. KELLER, KELLER AND FREY, LLC By ;ex2z J N. el er P Supreme Ct. I.D. 425577 100 Walnut Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn Fv ! L UV STEPHEN M. KESLAR IN THE COURT OF COMMON PLEAS 30 Bethel Church Road CUMBERLAND COUNTY, PENNSYLVANIA Dillsburg, PA 17019, Plaintiff V. : NO. 06-2067 CIVIL TERM HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant IN CIVIL ACTION - LAW Order AND NOW, this ntnday of 2006, after review of Plaintiff's Motion for Pre-Complaint Discovery and any and all responses filed thereto, it is hereby ORDERED AND DECREED as follows: 1. Plaintiff's Motion for Pre-Complaint Discovery is Granted. 2. All proceedings shall be stayed for a period of 60 days after Plaintiff completes his pre-Complaint discovery, which discovery shall be scheduled as soon as possible and shall NOT BE DELAYED. 3. Plaintiff shall file his Complaint with thirty (30) days of completion of said discovery. BY THE COURT Isle ?N? i- a . J. EXHIBIT A KELLER, KELLER AND BECK, LLC ATTORNEYS AT LAW JOHN N. KELLER- DAVID S. KELLER+ J. EDWARD BECK, JR. OF COUNSEL DAVID C. CLEAVER 343-B SOUTH POTOMAC STREET WAYNESBORO, PA 17268 TEL (717) 762-3331 FAX (717) 762-1810 E-MAIL law@kkfb.com 1035 WAYNE AVENUE CHAMBERSBURG, PA 17201 TEL (717) 264-1110 FAX (717) 264-5135 February 7, 2007 Richard P. Mislitsky, Esquire One West High Street P.O. Box 1290 Carlisle, PA 17013 RE: Keslar v. Hot Point Inn Cumberland County No. 06-2067 Civil Term Dear Rich: Direct E-Mail Address: jkeller@kkfb.com Jason Hopper left a telephone message for me last night advising that, on February 20, 2007, he begins work on second shift, 3:00 p.m. to 11:00 p.m. I understand that you intend to reschedule his deposition and continue the deposition of Wanda Whitmer (over my objection) and, in addition, schedule the deposition of Bob Whitmer. I also understand that you will take these depositions in Chambersburg. Please let me know if you would like to take them at the Franklin County Bar Association conference room which, as a member, I can reserve at no charge, and call me to discuss a convenient date. As previously requested, please also let me know your client's demand. Very truly yours, KELLER, KELLER AND BECK, LLC John N. Keller JNK:rom EXHIBIT B * Certified Civil Trial Advocate by National Board of Trial Advocacy +Certified Criminal Trial Advocate by National Board of Trial Advocacy The National Board of Trial Advocacy is a Pennsylvania Supreme Court Accredited Agency. JOHN N. KELLER* DAVID S. KELLER+ J. EDWARD BECK, JR. OF COUNSEL DAVID C. CLEAVER KELLER, KELLER AND BECK, LLC ATTORNEYS AT LAW 343-B SOUTH POTOMAC STREET WAYNESBORO, PA 17268 TEL (717) 762-3331 FAX (717) 762-1810 E-MAIL law@kkfb.com 1035 WAYNE AVENUE CHAMBERSBURG, PA 17201 TEL (717) 264-1110 FAX (717) 264-5135 January 10, 2008 r- r Richard P. Mislitsky, Esquire One West High Street P.O. Box 1290 Carlisle, PA 17013 RE: Keslar v. Hot Point Inn Cumberland County No. 06-2067 Civil Term Dear Rich: Direct E-Mail Address: jkeller@kkfb.com To respond to.your letter of January 2, 2008, I will advise the insurance carrier that your client's settlement demand continues to be $110,000.00. With regard to your assertion that Jason Hopper has "skipped the state," to the best of my knowledge he is under no legal obligation to remain in Pennsylvania. He was certainly still here back on February 7, 2007, when I wrote to you and suggested that you could depose him at the Franklin County Bar Association conference room in Chambersburg. To the extent that he is unavailable at trial, his testimony at his criminal trial will be admissible under Pa. R.E. 804(b)(1). Judge Ebert's order of June 21, 2006, permitted the Plaintiff to take pre- complaint discovery but emphasized such discovery was to be scheduled as soon as possible and was to not be delayed. I suggest that the Plaintiff has not complied with those provisions and, therefore, ask that you file your complaint before taking any additional depositions. If you are not willing to do this, please let me know so that I can present an appropriate motion. Very truly yours, KELLER, KELLER AND BECK, LLC John N. Keller JNK:rom EXHIBIT C • Certified Civil Trial Advocate by National Board of Trial Advocacy +Certified Criminal Trial Advocate by National Board of Trial Advocacy The National Board of Trial Advocacy is a Pennsylvania Supreme Court Accredited Agency. Y . . . CERTIFICATE OF SERVICE I, John N. Keller, Esquire, attorney for Defendant Hot Point Inn, certify that I mailed a true copy of the foregoing motion and proposed order of Court to the following persons at the following addresses, by depositing same in the United States mail, First Class postage prepaid: Richard P. Mislitsky, Esquire One West High Street P.O. Box 1290 Carlisle, PA 17013 Date: 31171019 KELLER, KELLER AND FREY, LLC By JAdA W. Ke`l ler 4A Supreme Ct. I.D. #25577 100 Walnut Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn c?Y -n ` T7 73 cx? , i STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, DEFENDANT NO. 06-2067 CIVIL ORDER OF COURT AND NOW, this 26th day of March, 2008, upon consideration of Defendant's Motion for a Protective Order pursuant to Pa.R.C.P. 412; IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule shall issue upon the Plaintiff to show cause why the relief requested by the Defendant should not be granted; 2. The Plaintiff shall file an Answer to the Defendant's Motion on or before April 18, 2008; 3. A status conference on this matter shall be held on Thursday, May 29, 2008, at 3:30 p.m. in chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, 1?" A "--\z - M. L. Ebert, Jr., J. ichard P. Mislitsky, Esquire Attorney for Plaintiff 1df 1 onn N. Keller, Esquire Attorney for Defendant bas t ,w 1,' ? l St}??7,? }.? z r 5 STEPHEN M. KESLAR, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, DEFENDANT NO. 06-2067 CIVIL PLAINTIFF'S RESPONSE TO MOTION FOR A PROTECTIVE ORDER AND NOW comes the Plaintiff, by his attorney Richard P. Mislitsky, Esquire and responds to Defendant's Motion for Protective Order asking this Honorable Court to deny Defendant's motion upon the following: Admitted. By way of further response the Pennsylvania Rules of Civil Procedure specifically permit discovery for purposes of preparing a complaint. Contemporaneous with filing the Summons in this matter, Plaintiff petitioned this Honorable Court for leave to conduct pre-complaint discovery. Plaintiff's request was granted. The Motion for Pre-Complaint Discovery and Order are attached hereto and marked Exhibit "A" and Exhibit "B" respectively. The averments set forth in Plaintiff's Motion for Pre-Complaint discovery are incorporated herein. 2. Neither admitted nor denied. Plaintiff does not know how to respond to paragraph 2. If the Defendant is saying that Defendant does not know Plaintiff's theories of liability,and Plaintiff should be made to file a Complaint because it is apparent (to everyone) the Plaintiff was injured because Plaintiff "engaged in a fight" with Defendants bouncer, Plaintiff responds as follows: i. Counsel for Plaintiff is not sure of the facts, specifically the events and verbal communication occurring prior to Plaintiff's injury. However, counsel does not believe the encounter between Plaintiff and Defendant's bouncer can be properly characterized as a "fight" between Plaintiff and the bouncer, Jason Allen Hopper. Because the precise facts are unknown to Plaintiff and counsel, pre-complaint depositions were requested by Plaintiff and granted by the Court. ii. If Defendant believes this Honorable Court should rescind its prior order permitting pre-complaint depositions because the facts of this matter are "apparent", then applying the same logic, Defendant should not complain about this Court's prior Order, because if the facts are so "apparent" to the Defendant, then Defendant should know what, if any, theories of liability exist. For this, and the other, more significant, reasons hereinafter set forth, Plaintiff respectfully submits that the need for pre-complaint discovery is no less necessary now as the need was at the time of the Court's Order. In fact, the Statute of Limitations has now expired, making pre-complaint discovery more imperative. 3. Admitted. 4. Admitted. 5. Admitted in part. By way of further answer, Plaintiff has not delayed Discovery. To the contrary, depositions have not been taken as a result of Defendant's actions and inactions such as: i. Plaintiff scheduled depositions on July 25, 2006. The depositions were postponed at the request of Defendant so that Defendant had an opportunity to verify insurance coverage. -2- ii. Plaintiff attempted to schedule deposition several times. However, the criminal attorney for Defendant's employee, Jason Hopper, instructed Jason Hopper not to appear for depositions. Accordingly, Plaintiff was denied the opportunity to depose the employee of the Defendant who inflicted the injury on the Plaintiff. Plaintiff's efforts to schedule the depositions with defense counsel herein were not successful; and numerous calls to the criminal defense attorney were never returned. iii. Plaintiff was led to believe that the owner of the named Defendant, Hot Point Inn, was Wanda Whitmer. (please refer to the second paragraph of counsel's letter to Attorney Keller dated August 16, 2006 - attached as Exhibit "C") Counsel for the Plaintiff proceeded under this inaccurate information from April 24, 2006 to February 6, 2007 when the presumed owner appeared for deposition. It was not until February 6, 2007 that Plaintiff learned that Wanda Whitmer was not the owner, or even the sole owner of the corporation which owns the Hot Point Inn ("Inn"). The Inn is, upon information and belief owned by R&W Whit/co., Inc. Wanda Whitmer and Robert Whitmer are the sole shareholders and only people on the Board of Directors. Plaintiff respectfully submits that the owner of the Inn and the business entity having ownership was/is important in determining whether Plaintiff has a viable cause of action. This issue was brought to the Court's attention when Plaintiff petitioned the court for pre-complaint discovery. The Court's attention is -3- directed to paragraphs 6(iii) and 6(iv) of Plaintiff s Motion for Pre-complaint Discovery. iv. In addition, the prejudice suffered by Plaintiff as a result of this incorrect information would have been minimized to some degree had both owners appeared for testimony on February 6, 2007. However, only one "owner" appeared, and the more knowledgeable of the two "owners", Robert Whitmer, did not appear for the testimony. It is therefore respectfully submitted that the failure of the persons with knowledge of the facts of January 7, 2006 and the facts and other information prior thereto, Jason Hopper and Robert Whitmer, did not appear for the scheduled depositions. The Court should also note that the bouncer, Jason Hopper, has never been made available for deposition. Hopper's refusal to appear was not conveyed to Plaintiff's counsel until the day of the deposition. 6. Admitted. By way of further response: i. Plaintiff was not aware of the Corporate-Owner entity, or that Wanda Whitmer was not the only "owner" of the corporation, (or even the owner capable of providing factual information at deposition) until the deposition of Wanda Whitmer began. ii. Jason Hopper has never been made available for deposition. This Honorable Court should also be aware that the Defendant's delays have resulted in significant prejudice to the Plaintiff. Plaintiff is now unable to depose Jason Hopper. Defense counsel has now advised counsel that Mr. Hopper has relocated -4- out-of-state and that he is no longer under the control of the Defendant. Attached as Exhibit "D" is correspondence dated February 18, 2008. The Court's attention is directed to page 2. 7. Admitted. By way of further response, Plaintiff agreed to Defendant's "suaaestion" that the scheduled depositions be postponed until questions concerning Defendant's insurances coverage could be answered. 8. Admitted. By way of further response, Jason Hopper, was never made available for deposition, even after the conclusion of the criminal trial. 9. Admitted. 10. Admitted. Plaintiff incorporates herein his response to paragraph 5, specifically 5 (iii) and 5 (iv). 11. Denied as stated. Plaintiff intended to take the deposition of the "owner" of the Hot Point Inn and Jason Hopper. The "owner" with little, if any, knowledge of the relevant facts accompanied defense counsel on February 6, 2007. Robert Whitmer was not present. Jason Hopper did not appear. Therefore, the claim that defendant "appeared" for deposition is only partially true, and certainly misleading. By way of further answer, counsel for Plaintiff submits as an Officer of the Court, that two co-workers of Jason Hopper informed counsel that Hopper's employer did not have any policy prohibiting employees from attending legal matters and in fact, employees regularly and frequently missed work for legal matters such as providing testimony. -5- 12. Admitted, in part. The deposition of Wanda Whitmer was not terminated because of counsel's "intention to reschedule depositions" at a later time. To the contrary, the deposition was terminated because the relevant parties did not appear. 13. Admitted that defense counsel sent Plaintiff's attorney a letter dated February 7, 2007. Statements in said correspondence are denied. Upon information provided to Plaintiff's counsel, Jason Hopper was neither prohibited from appearing at deposition, nor was Hopper working the "second shift", that is, 3:00 p.m. -11:00 p.m. 14. Denied. It is categorically denied that counsel for the Plaintiff made no further efforts to schedule depositions. To the contrary, Plaintiff's counsel was to receive dates when it would be convenient for all three deponents to appear at the same time. No dates were provided. In fact, it is counsel's recollection that during the time period in question there was disagreement between counsel on the issue of scheduling depositions on different days. Counsel for the Defendant insisted that the witnesses be deposed on different days. 15. Denied. It is admitted that defense counsel sent correspondence dated January 10, 2008 and that the letter contained accusations of fault. It is denied that depositions were delayed by Plaintiff. Plaintiff incorporates his response to paragraphs 5, 6, 8 and 14 herein. 16. Denied. If Plaintiff can be said to have "failed to comply" with the Court's Order, then it can be stated with greater conviction that any such "failure" was the direct result of defendant's actions as set forth herein. By way of further answer, Defendant never provided Plaintiff with dates when all three deponents could, or more accurately, would appear for deposition. -6- 17. Denied. Plaintiff incorporates herein his responses to paragraphs 1-16 hereof. By way of further answer, whatever "harm" was suffered by Defendant is the consequence of Defendant's own actions. By way of additional response, Plaintiff respectfully submits that Plaintiff is the only party who has been prejudiced, such prejudice being the result of Defendant's conduct. Plaintiff again points to the prejudice, perhaps irreparable, arising from the re-location of Hopper. In addition, the Statue of Limitations has now expired. It is respectfully submitted that pre-complaint discovery has become more important that it was when this Honorable Court permitted discovery. WHEREFORE, Plaintiff prays this Honorable court to deny Defendant's Motion for Protective Order and to compel Defendant to produce Robert Whitmer, Wanda Whitmer and Jason Hopper for depositions on one date convenient to all three deponents and counsel. Respectfully submitted, G?d P. (M I Richard P. Mislitsky Pa Supreme Court ID #28123 1 West High Street, Suite 208 PO Box 1290 Carlisle, PA 17013 (717) 241-6363 Attorney for Plaintiff -7- STEPHEN M. KESLAR 30 Bethel Church Road Dillsburg, PA 17019, Plaintiff V. HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL TERM _ IN CIVIL ACTION - LAW = Motion for Pre-Complaint Discovery AND NOW, comes Plaintiff, Stephen Keslar by and through his attorneys, Richard P. Mislitsky, Esquire, and respectfully files the following Motion for Pre-Complaint Discovery: 1. Plaintiff has initiated a cause of action against the above-named Defendant by filing a Writ of Summons on the Hot Point Inn. Attached as Exhibit A. 2. This matter involves an unprovoked assault by the Defendant, its agents, servants, and/or workmen on the Plaintiff, Stephen Keslar. 3. Plaintiff filed this Motion for Pre-Complaint Discovery in order to determine and to ascertain the facts surrounding the assault, to ascertain the individuals involved, and to better identify the business entity under which Defendant operates. 4. The facts herein at issue are primarily within the control and sole dominion of the Defendant. 5. It is respectfully submitted that Plaintiff cannot properly file a Complaint without determining the facts. It is further respectfully submitted that Plaintiff cannot ascertain all of the facts unless pre-Complaint discovery is allowed by this Honorable Court. EXHIBIT A 6. In addition to the aforesaid, it is affirmatively averred that pre-Complaint discovery is necessary for the following additional reasons: In order to determine the appropriate cause of action or actions which may exist against the above-named Defendant; ii. In order to determine whether the cause of action in fact exists; iii. To determine whether or not the above-named Defendant has been properly identified and to further determine whether or not the other individuals and/or entities need to be named as Defendants; iv. In order to determine the correct business entity under which the Defendant operates; and v. To prepare and file a well-plead and factually accurate Complaint, if such is determined to be necessary. 7. It is affirmatively averred that leave of court to conduct pre-Complaint discovery will likely serve to promote judicial economy. 8. Leave of court to conduct pre-Complaint discovery will likely save all parties time and money by reducing the amount of additional documents required to be filed to amend the facts, the parties, or the causes of action. 9. It is respectfully submitted that the Plaintiff is agreeable, if this Court believes it is necessary, to establish parameters governing pre-Complaint discovery, including, but not limited to, a time deadline upon which to conduct such discovery: and limiting the areas of inquiry as the Court may deem necessary. 10. It is further respectfully requested that after conclusion of pre-Complaint discovery, the Plaintiff is given a reasonable amount of time in order to determine whether a Complaint should be filed, and if so, to file the appropriate Complaint. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an Order granting him leave of court to conduct pre-Complaint discovery and further granting a Stay of Proceedings for a period of not less than 60 days from the completion of pre-Complaint discovery. J Date: IV Respectf y r Richard P. Mislitsky, Esquire Supreme Court ID #28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 Counsel for Plaintiff STEPHEN M. KESLAR 30 Bethel Church Road Dillsburu. PA 17019, Plaintiff HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 1727, Defendant TO THE PROTHONOTARY: IN THE COURT OF COVINION PLEAS CUiNIBERLAND COUNTY. PENNSYLVANIA NO. D Co -020 Ld 7 C. _ r V I °i uY IN TRESPASS AND ASSUMPSIT Praecipe In the above-captioned action, please issue a Writ of Summons in Trespass and Assumpsit against the above-referenced Defendant. Date: Respectfully submitted, iZ C .6 k?2?t.Z.-c Richard P. Mislitsky, Esquire Attorney ID # 28123 One West High Street P. 0. Box 1290 Carlisle, PA 17013 (717) 241-6363 PLAINTIFF'S 2 EXHIBIT Q J Q Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS Court of Common Pleas STEPHEN NI. KESLAR 30 BETHEL CHURCH ROAD DILLSBURG, PA 17019 Plaintiff Vs. No 06-2067 CIVIL TERM HOT POINT INN 100 HOT POINT AVENUE SHIPPENSBURG, PA 17257 In CiviiAction-Law Defendant To HOT POINT INN, You are hereby notified that STEPHEN M. KESLAR, the Plaintiff(s) has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment maybe entered against you. Curtis R. Long (SEAL) Prothonotary Date APRIL 12, 2006 By G2L?-Lc? Deputy Attorney: Name: RICHARD P. MISLITSKY, ESQUIRE Address: ONE NEST HIGH STREET P.O.BOX 1290 CARLISLE, PA 17013 Attorney for: Plaintiff Telephone: 717-241-6363 Supreme Court ID No. 28123 .y.. STEPHEN M. KESLAR 30 Bethel Church Road Dillsburg, PA 17019, Plaintiff V. HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL TERM IN CIVIL ACTION - LAW Certificate of Service I hereby certify that a copy of the foregoing Motion for Pre-Complaint Discovery has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John N. Keller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: ) & ju"? < )CC? 6, III O;t-tC Fo ichard P. Mislitsky S eme Court ID # 28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 STEPHEN M. KESLAR 30 Bethel Church Road Dillsburg, PA 17019, Plaintiff v.. HOT POINT INN 100 Hot Point Avenue Shippensburg, PA 17257, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL TERM IN CIVIL ACTION - LAW RECEIVED J U f_ n 3 2006 Order AND NOW, this day o 2006, after review of Plaintiff's Motion for Pre-Complaint Discovery and any and all responses filed thereto, it is hereby ORDERED AND DECREED as follows: 1. Plaintiffs Motion for Pre-Complaint Discovery is Granted. 2. All proceedings shall be stayed for a period of 60 days after Plaintiff completes his pre-Complaint discovery, which discovery shall be scheduled as soon as possible and shall NOT BE DELAYED. 3. Plaintiff shall file his Complaint with thirty (30) days of completion of said discovery. BY THE COURT n J. EXHIBIT B Law Office of Richard P. Mislitsky One West High Street P.O. Box 1290 Carlisle, Pennsylvania 17013 *Richard P. Mislitsky Telephone (717) 241-6363 Fax (717) 249-7073 Offices in: Carlisle Chambersburg York August 16, 2006 Via fax and U.S. mail John N. Keller, Esquire Keller, Keller, and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 RE: Keslar v. Hot Point Inn Cumberland County No. 06-2067 CIVIL TERM Dear John: It was a pleasure speaking with you. Let me first reiterate my request to say hello to your father for me. The os' ions for A gust 17, 2006 will be cancelled. I'm willing to cancel the depositi of t owner on t e belief that there is a question as to whether there is insurance coverage. As understa it, the owners do not carry dram shop coverage but do have a liability policy. It is my request that you contact the carrier through the insurance agent/broker and get some guidance from them. As I see it, it seems that they can refuse to give you an opinion until pre-complaint discovery is taken and a complaint filed; they can agree to participate in the deposition; or they can assume defense of the owners under Reservation of Rights. Of course, they could acknowledge that there is liability coverage. I explained to you that I cannot file a complaint without pre-complaint discovery. You agreed. In addition, you will provide me with a copy of all applicable insurance policies. If the owners have a dram shop policy, I will need to see that as well as the liability policy. With respect to the deposition of the agent, it was my intention, had the depositions gone on as scheduled, to place a statement on the record that the deposition was noticed but that he did not appear as a result of the criminal charges pending against him. However, I do believe that he is your client's agent and under normal circumstances, you have an obligation to produce him. If anything in this letter does not conform to your understanding of our conversation, please let me know. I would like to move this along as soon as possible. Could you please make all efforts to contact the insurance company and secure their guidance? 'Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency EXHIBIT C I look forward to hearing from you. RPM/jcm cc: Stephen M. Keslar Si cer y, Richa d P. Mislitsky Irv i J01A N KLLL11,- DAA 11) - Ki 1A.1 R J- EDlvARD BE( 1, IR OF ll?LV?P.L DA\I1t tiLf.\u KELLER, KELLER AND BECK, LL,c ATTC)f,',NL'YS AT LAW 343-B SOUTH P0T'OMAC STREET WAYNESBORO, PA 17263 TEL (717) 7(,2-,3',] FAX (717) 762-1 »111 E-MAIL law(:1,kkfb.com VIA FACSIMILE & U.S. MAIL February 18, 2008 Richard P. Mislitsky, Esquire One 1•7cst H "h St -et P.O. Box 1290 Carlisle, PA 17013 RE: Keslar v. Hot Point Inn Cumberland County No. 06-2067 Civil Term Dear Rich: I Il'„ \NAYNE ?A E.NL E CHAMBLRSBL'RG, PA 172111 l Et. f?l'1 2t,4 -I 110 Direct E-Mail Address: kel_erwkkfb.cc)m I was on vacation last week and just read your letter of February 11, 2008. I had not been aware of your shoulder surgery and hope your recovery is going well. You are correct that Jason Hopper did not appear for the deposition you had scheduled for February 6, 2007, because he had just started a new job. He was no longer employed by my client at that time. As I noted in my letter to you of February 7, 2007, however, he remained available in Pennsylvania and I suggested that you could depose him at the Franklin Count, D _ Ass=at?Cn confer -ence room Iii C'_rialrLhersh-ur" 'fo a' f course, terminated the deposition of Wanda Whitmer over my objection the previous day. You made no effort to reschedule depositions until December, 2007, by which time Jason Hopper had moved away. It is my position, as noted in my letter of January 10, 2008, that the Plaintiff's complaint should be filed before any additional depositions are taken. More than a year and a half has passed since Judge Ebert entered his order permitting the Plaintiff to take pre-complaint discovery but directing that the discovery be scheduled as soon as possible and not be delayed. Please let me know whether it will be necessary for me to file a motion for a protective order in this regard. * Certified Civil Trial Advocate by National Board of Trial Advocac v EXHIBIT D Certified Criminal Trial Advo. ite hv National Board of Trial Advocacy the National Board of Ir;. .\d v??, ire r , Pro,wh: nia L-l,rrmr Lou rt Acr n•di p•d ;\?.cn cv. Page 2 February 18, 2008 Richard P. Mislitsky, Esquire Since I last wrote to you, my client has obtained what is said to be current contact information for Jason Hopper. The mailing address is P.O. Box 2419, Crystal Beach, TX 77650. The telephone number is 409-370- 9408, however, when I tried to call it I got a recording that the number is "not reachable." I am not able to produce Mr. Hopper for deposition, however, I do not know whether he would cooperate with you in scheduling his deposition. Please give me a call so that we can discuss these procedural issues. In any event, the depositions scheduled for February 21, 2008, should be postponed. I relayed your client's settlement demand to the insurance carrier on each occasion when you conveyed it, however, I have not been authorized to provide a response. Very truly yours, KELLER AND BECK, LLC JNK:rom CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Plaintiff s Response to Motion for Protective Order has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John N. Keller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: r 1 -/ Q p For Richard P. ky Supreme Court ID # 28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY„ PENNSYLVANIA V. HOT POINT INN, DEFENDANT NO. 06-2067 CIVIL ORDER OF COURT AND NOW, this 21St day of April, 2008, upon consideration of Defendant's Motion for a Protective Order pursuant to Pa.R.C.P. 4012 and the Plaintiff's Response thereto; IT IS HEREBY ORDERED AND DIRECTED that: 1. The Defendant's Motion for Protective Order is GRANTED; 2. This Order supersedes the previous Order of Court entered in this case on June 29, 2006; 3. The Defendant may request and serve a Rule on the Plaintiff to file his complaint; 4. The Plaintiff may conduct no further discovery until after he files and serves a complaint. 5. The status conference previously scheduled for May 29, 2008 at 3:30 p.m. is CANCELLED. By the Court, chard P. Mislitsky, Esquire Attorney for Plaintiff ?ohn N. Keller, Esquire Attorney for Defendant bas M. L. Ebert, Jr., J. . r 0 C) 6 ( -w 'ill ra 1 ?. z9it'y 0z {{}} f Roxanne\misc\Hot Point Inn, Praecipe, Keslar IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stephen M. Keslar, Plaintiff vs. Hot Point Inn, Defendant TO THE PROTHONOTARY: Civil Action - Law No. 06-2067 CIVIL TERM Please issue a rule upon the Plaintiff to file his complaint within twenty (20) days of service of said rule or suffer judgment of non pros. KELLER, KELLER AND BECK, LLC By 2?P4 J ller A Supreme Ct. I.D. #25577 343-B South Potomac Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn June 2, 2008-, Rule to file the complaint issued. is R. Lo t notary CERTIFICATE OF SERVICE I, John N. Keller, Esquire, attorney for Defendant Hot Point Inn, certify that I mailed a true copy of the foregoing praecipe to the following persons at the following addresses, by depositing same in the United States mail, First Class postage prepaid: Richard P. Mislitsky, Esquire One West High Street P.O. Box 1290 Carlisle, PA 17013 Date: 09 KELLER, KELLER AND BECK, LLC By j en ller A Supreme Ct. I.D. #25577 343-B South Potomac Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, : DEFENDANT NO. 06-2067 CIVIL NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue, Carlisle, 17013 (717) 249-3166 J Ric and P. Mislitsky, Esquire Attorney ID #28123 One West High Street P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 ( 4 STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, : DEFENDANT NO. 06-2067 CIVIL COMPLAINT 1. Plaintiff, Stephen M. Keslar is an adult individual residing at 30 Bethel Church Road, Dillsburg, PA 17019. 2. The above named Defendant, Hot Point Inn ("Inn"), is believed and therefore averred to be a fictitious name or trade name for a business conducted at the Inn and situate at 100 Hot Point Avenue, Shippensburg, PA 17257. 3. Upon information and belief, Plaintiff avers that ownership of the Inn and the business is in the name of a corporation believed to be R. & W. Whit-Co., Inc., ("Corporation"), a Pennsylvania corporation. 4. The address of the Corporation is 100 Hotpoint Avenue, Shippensburg, PA 17257. 5. Plaintiff believes and therefore avers that said Corporation is owned, operated and under the control of Robert Whitmer and Wanda Whitmer, husband and wife, citizens of the Commonwealth of Pennsylvania residing at 117 Walnut Dale Road, Shippensburg, PA. 6. Plaintiff believes and therefore avers that the Whitmer(s) own all stock of the Corporation; are the only directors; and only officers of the Corporation. 7. As the only shareholders, directors and officers of the Corporation, all decisions actions and all business of the Corporation is/are made, performed and conducted by and through the Whitmers. 8. The Corporation and the Whitmer(s) are hereinafter referred to collectively as 'Owners'. 9. At all times material hereto the Owners operated the Inn as a bar/tavern selling intoxicating alcoholic beverages for profit. 10. At all times material hereto the Inn is open to the public who are invited to the Inn for the purpose of purchasing intoxicating alcoholic beverages and other items sold for the profit of the Owners. 11. At all times material hereto Stephen M. Keslar was a business invitee, a member of the general public, invited to purchase intoxicating alcoholic beverages sold at the Inn. 12. At all times material hereto the Owners of the business conducted at the Inn had an affirmative duty to keep its business invitees both inside and outside the premises safe from injury and harm and to prevent and protect its business invitees from injury and harm. 13. The Owners, as hereinafter set forth, breeched the duty owned to Stephen M. Keslar. 14. The Owners and operators of the business and the Inn hire, employ, and otherwise use individuals to perform various services at the Inn which further the business conducted at the Inn for the benefit of the Owners. 15. All such individuals hired, employed and used in the operation of the business are the agents, servants, workmen and employees of the Owners. -2- 16. As the Owners of the business and as those responsible for choosing which individuals to hire and/or employ to perform services at the Inn, the Owners are responsible for the actions, inaction and other conduct of those hired to perform services in the operation of the business conducted at the Inn. 17. It is believed and therefore averred that in addition to using individuals for other specific purposes, the Owners hire, employ and otherwise use certain individuals for the primary purpose of protecting the premises, business and business invitees, from damage and injury to persons and property. 18. It is believed and therefore averred that the Owners did hire, employ and use Jason Allen Hopper for the purpose and reason(s) set forth in the preceding paragraph hereof. 19. The Owners had an affirmative duty to hire, employ, select and otherwise use only individuals who, under all circumstances, possess sufficient maturity, self-control, and temperament to avoid and prevent confrontations with those invited upon the premises to conduct business. 20. The Owners had an affirmative duty not to hire, employ and otherwise use individuals who may present a danger to those invited to do business at the Inn or in the alternative had a duty not to assign such individuals to tasks and duties that would increase the likelihood of confrontations with the public. 21. On January 8, 2006, Stephen M. Keslar was a business invitee at the Inn. 22. At or about 1:50 a.m., Stephen M. Keslar and others were leaving the Inn intending to go home. -3- 23. During the evening hours of January 7, 2006, Stephen M. Keslar and friends were business invitees of the Owners. 24. At or about 1:30 a.m., January 8, 2006, as the bar was closing Stephen M. Keslar and friends along with other business invitees, were leaving the premises as instructed by those individuals who, that evening, were designated by the Owners as being responsible for the operation of the business. 25. In order to leave the Inn, Stephan M. Keslar and other business invitees had to pass Jason Allen Hopper who was positioned near the inside door of the premises. 26. Plaintiff, Stephen M. Keslar, passed Jason Allen Hopper, and exited through the inside door and outside door of the premises. 27. As Stephen M. Keslar was leaving the premises, Jason Allen Hopper moved from the position he previously occupied and followed Stephen M. Keslar through the inside door, the vestibule, and through the outside door of the premises. 28. Just after Stephen M. Keslar exited the premises, Jason Allen Hopper, the agent, servant, workman and employee of the Owners, without good, proper, sufficient and/or adequate reason attacked, repeatedly struck and punched, and otherwise beat the Plaintiff. 29. At all times material hereto, Jason Allen Hopper was the agent, servant, workman and employee of the Owners who was acting within the course and scope of his employment with the Owners and in furtherance of the business of the Owners. 30. As a result of the attack as previously set forth, the Plaintiff, Stephen M. Keslar, sustained serious injuries to his face, head, eyes, and left knee. -4- 31. As a result of the aforesaid attack, in addition to injuries as herein before set forth, Stephen M. Keslar sustained injury to the soft tissue structures in and around the left knee which required surgical intervention. 32. Plaintiff continues to suffer from the sequelae of his injuries and Plaintiff has been advised that he is likely to continue such suffering into the future. 33. The aforesaid attack and beating and the resulting injuries would not have occurred but for the negligence and carelessness of the Owners and their disregard for the safety and well being of those invited to the Inn for the profit of the Owners. 34. Plaintiff affirmatively avers that the attack upon his person and the injuries sustained as a result of the attack and beating would not have occurred if the owners had not been negligent and exercised due care in the operation of the business, including hiring and permitting Jason Allen Hopper to perform tasks and duties assigned to him which increased the likelihood of confrontation with the public. 35. The negligence, carelessness and failure to exercise due care is as follows: Hiring, employing and allowing a person with violent tendencies to work in furtherance of the Owners' business; ii. Hiring, employing and allowing a person to deal with the public when that person did not possess the temperament and demeanor to do so. iii. Failing to perform an adequate investigation of the background and criminal tendencies of its employees, including but not limited to Jason Allen Hopper. -5- iv. Hiring, employing and/or permitting Jason Allen Hopper to work in furtherance of the Owners' business when it was known or should have been known that he had a criminal record. V. Hiring, employing and/or permitting Jason Allen Hopper to work in furtherance of the Owners' business when it was known or should have been known that he had a criminal record including crimes reflective of violent tendencies and/or disregard for the rights and well being of others. vi. Failing to adequately and/or properly train, educate and/or provide instructions to employees. vii. Assigning employees to job duties and/or tasks which employees were not suited to perform due to the temperament, tendencies, and/or the lack of training and experience of the employee. viii. Failing to provide adequate and proper supervision to employees while performing the duties and tasks to which they were assigned. ix. Failing to personally supervise employees while performing the duties and tasks to which they were assigned. X. Improperly and negligently delegating supervisory and other responsibilities to others when it was known or should have been known that such delegation of responsibilities was not being properly performed. xi. Failing to prepare, compile and/or develop written policies and procedures to guide, instruct and/or direct employees on how to properly perform the tasks and duties to which employees were assigned. -6- xii. Failing to supervise, observe or otherwise determine whether the policies, procedures and rules governing the conduct of employees and how employees were to perform the tasks to which they were assigned were being carried out. xiii. Creating and/or fostering an atmosphere among or attitude in its employees which was inconsistent with the duty to provide for the safety, security and will-being of those invited to do business at the Inn. xiv. Permitting, allowing and/or failing to prevent employees from assaulting those invited to do business at the Inn. xv. Permitting, allowing and/or failing to prevent employees from harassing those invited to do business at the Inn. 36. As a result of the negligence and disregard for the rights of the Plaintiff herein, and the injuries sustained by Stephen M. Keslar, the Plaintiff was forced to incur medical bills and expenses which he is/was personally responsible for paying. 37. Plaintiff continues to suffer pain and discomfort which were not present prior to the incident at issue and continues to be prevented from doing and performing activities which he was able to do prior to the incident herein at issue. 38. Plaintiff has been advised and therefore avers that he will require continued medical care and will continue to incur expenses for the care and treatment to the injuries herein set forth. 39. Plaintiff believes and therefore avers that he is entitled to compensation from the Owners for the pain, suffering, injuries and expenses arising from the incident involving the Owners' agent, servant and employee, Jason Allen Hopper. -7- WHEREFORE, Plaintiff demands judgment in his favor and against the Owners in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted, "i P, A R chard P. Mislitsky n Og' Pa Supreme Court ID #28123 1 West High Street, Suite 208 PO Box 1290 Carlisle, PA 17013 (717) 241-6363 Attorney for Plaintiff -8- ATTORNEY'S VERIFICATION I Richard P. Mislitsky, attorney for Stephen M. Keslar, believe, based on the best information provided, that the averments set forth in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: li D 0 j RICHARD P. MISLITSKY, ESQUIRE CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Complaint has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John N. Keller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: & - 02 ? - For Richard P. Misl'ts (f Supreme Court ID # 28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 C y w STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, DEFENDANT NO. 06-2067 CIVIL Praecipe TO: CUMBERLAND COUNTY PROTHONOTARY Kindly attach this verification to the Complaint filed with this Court on June 23, 2008. Date: 1 /0 0 k - Res fully Submitted, Richard P. Mislitksy, Esquire Supreme Court No. 28123 1 West High St, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, DEFENDANT NO. 06-2067 CIVIL Verification I verify that the statements made in the Complaint in the above captioned matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date: p Steph M. Keslar STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, DEFENDANT NO. 06-2067 CIVIL Certificate of Service I hereby certify that a copy of the foregoing Praecipe has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John N. Keller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: a Ode J (? ?'l - 911'U I 1_? ?? Yo Richard P. Mislitsky ?qpreme Court ID # 28123 ne West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 ?' m?, . , , ?r ? ?,.. a ?_ '"C:' _ ?- °i' ,y> C.. CV :R .>^ ?..,6 Roxanne\misc\Hot Point Inn, Answer, Keslar IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stephen M. Keslar, Plaintiff vs. Hot Point Inn, Defendant TO THE PLAINTIFF: Civil Action - Law No. 06-2067 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the within New Matter within twenty (20) days from service hereof or a judgment may be entered against you. KELLER, KELLER AND BECK, LLC By hn eller a. Supreme Ct. I.D. #25577 343-B South Potomac Street Waynesboro, PA 17268 (717) 762-3331 Attorney for the Defendant Roxanne\misc\Hot Point Inn, Answer, Keslar IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stephen M. Keslar, Plaintiff vs. Hot Point Inn, Defendant Admitted. Civil Action - Law No. 06-2067 CIVIL TERM JURY TRIAL DEMANDED ANSWER 1.-6. 7. Denied. To the contrary, the Corporation employs persons other than the Whitmers who also make decisions, act and conduct business of the Corporation. 8. While the Plaintiff may refer to the Corporation and the Whitmers collectively as "Owners," the Hot Point Inn is, in fact, operated by the Corporation, R & W Whit-Co., Inc. 9.-10. Denied as stated. The content of paragraph 8, supra, is incorporated herein by reference. 11. Denied. To the contrary, Stephen M. Keslar remained on the Hot Point Inn property and refused to leave after being lawfully instructed to do so by an employee of the Corporation in defiant trespass and in violation of 18 Pa. C.S. Section 3503 of the Pennsylvania Crimes Code. After being instructed to leave the property and refusing to do so, Mr. Keslar was no longer a business invitee. 12.-13. Denied. The allegations contained in these paragraphs of the complaint are conclusions of law to which no response is required. The allegations of duty are specifically denied and the content of paragraph 11, supra, is incorporated herein by reference. 14.-15. Admitted in part and denied in part. It is admitted that R & W Whit-Co., Inc. hires and employs individuals as alleged for the benefit of the Corporation. The content of paragraphs 8-10, supra, is incorporated herein by reference. It is specifically denied that R & W Whit-Co., Inc. "otherwise uses" individuals in any capacity. 16. Denied. The content of paragraphs 8-10, supra, is incorporated herein by reference. The allegations of responsibility contained in this paragraph of the complaint are conclusions of law to which no response is required. 17.-18. Denied. The content of paragraphs 8-10, supra, is incorporated herein by reference. 19.-20 Denied. The content of paragraphs 8-10 and 14-15, supra, is incorporated herein by reference. The allegations of duty contained in these paragraphs of the complaint are conclusions of law to which no response is required. 21.-22. Denied. The content of paragraph 11, supra, is incorporated herein by reference. 23. The allegations contained in this paragraph of the complaint are conclusions of law to which no response is required. 24.-27. Denied in accordance with Pa. R.C.P. 1029(e). 28.-29. Admitted that Jason Allen Hopper was an employee of R & W Whit-Co., Inc. The content of paragraphs 8 through 10, supra, is incorporated herein by reference. The remaining allegations contained in these paragraphs of the complaint are denied in accordance with Pa. R.C.P. 1029(e). After the Plaintiff initiated an altercation with Mr. Hopper as is described hereafter, Mr. Hopper acted reasonably and in his own self- defense. 30.-32. Denied in accordance with Pa. R.C.P. 1029(e). 33.-35. Denied in accordance with Pa. R.C.P. 1029(e). The content of paragraphs 8 through 10, supra, is also incorporated herein by reference. 36.-38. Denied in accordance with Pa. R.C.P. 1029(e). 39. Denied in accordance with Pa. R.C.P. 1029(e). In addition, the content of paragraphs 8-10, 14-15 and 28, supra, is incorporated herein by reference. WHEREFORE, the Defendant demands judgment in its favor, together with costs. 40. The altercation which occurred between the Plaintiff and Jason Allen Hopper on January 28, 2006, occurred after the Plaintiff was instructed to leave the Hot Point Inn property and refused to do so. 41. The said altercation was initiated by the Plaintiff when he raised his hands as if to strike Jason Hopper after Mr. Hopper told him to leave and, after Hopper pushed the Plaintiff back, the Plaintiff lunged at him and grabbed him by the shirt. 42. Any contact initiated by Mr. Hopper in the course of the said altercation with the Plaintiff was in the course of self-defense and was justified by the Plaintiff's conduct. 43. The Defendant reserves those affirmative defenses, specifically including contributory negligence, comparative negligence and assumption of the risk, which, under the Pennsylvania Rules of Civil Procedure, need not be pleaded. KELLER, KELLER AND FREY, LLC By J N. K ler Supreme Ct. I.D. #25577 100 Walnut Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn I verify that I am attorney for the Defendant and that the facts set forth in the foregoing answer with new matter are true and correct based upon information I have obtained in the course of investigation of this case and to the best of my belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: fl g 0 Keller CERTIFICATE OF SERVICE I, John N. Keller, Esquire, attorney for Defendant Hot Point Inn, certify that I mailed a true copy of the foregoing answer with new matter to the following persons at the following addresses, by depositing same in the United States mail, First Class postage prepaid: Richard P. Mislitsky, Esquire One West High Street P.O. Box 1290 Carlisle, PA 17013 KELLER, KELLER AND FREY, LLC Date: By Jo N. K ler Supreme Ct. I.D. #25577 100 Walnut Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn U-3 Via.. UjCa c;:,? -> Roxanne\misc\Hot Point Inn, Praecipe, Keslar IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stephen M. Keslar, Plaintiff VS. Hot Point Inn, Defendant TO THE PROTHONOTARY: Civil Action - Law No. 06-2067 CIVIL TERM JURY TRIAL DEMANDED Please file the attached verification pertaining to the Defendant's answer with new matter in substitution for the attorney verification included with the original pleading. KELLER, KELLER AND BECK, LLC By 2A??7 J N ler I?V Supreme Ct. I.D. #25577 343-B South Potomac Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn • I verify that I am authorized to execute this verification on behalf of the Defendant, Hot Point Inn, and that the facts set forth in the foregoing answer with new matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. HOT POINT INN Date: By Z/2? Wanda Whitmer CERTIFICATE OF SERVICE I, John N. Keller, Esquire, attorney for Defendant Hot Point Inn, certify that I mailed a true copy of the foregoing praecipe and verification to the following persons at the following addresses, by depositing same in the United States mail, First Class postage prepaid: Richard P. Mislitsky, Esquire One West High Street P.O. Box 1290 Carlisle, PA 17013 Date: KELLER, KELLER AND FREY, LLC (2 By J ler A Supreme Ct. I.D. #25577 100 Walnut Street Waynesboro, PA 17268 (717) 762-3331 Attorney for Defendant Hot Point Inn i ..?.? f'--3 S?._•'> l wF (( f am, "-? . ?. .v -_ `? i .._ } C,'? . ?? - e_r. ? t ??? +V - STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, DEFENDANT NO. 06-2067 CIVIL Answer to New Matter 40. Denied. It is specifically denied that the Plaintiff refused to leave the premises. Plaintiff incorporates by reference thereto the averments set forth in Plaintiff's Complaint. 41. Denied. It is specifically denied that Plaintiff initiated the altercation and at no time did Plaintiff attack Jason Hopper. To the contrary, Plaintiff's conduct was entirely in defense of his person. 42. Denied. It is specifically denied that Jason Hopper acted in self-defense and his beating of the Plaintiff was justified. To the contrary, Jason Hopper attacked the Plaintiff for no reason. 43. The averments contained in paragraph 43 are conclusions of law which require no responsive pleading pursuant to the Pennsylvania Rules of Civil Procedure. Date: ? p ji Respectfully Submitted, Richard P. Mislitsky, Esquire Supreme Court No. 28123 1 West High St, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 STEPHEN M. KESLAR, PLAINTIFF V. HOT POINT INN, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL Certificate of Service I hereby certify that a copy of the foregoing Answer to New Matter has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John N. Keller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: r Richard P. Mislitsky preme Court ID # 28123 'One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 c.. ? Ca i, C ?- 'r- $I STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, DEFENDANT : NO. 06-2067 CIVIL Praecipe TO: CUMBERLAND COUNTY PROTHONOTARY Kindly attach this verification to the Answer to New Matter filed with this Court on July 31, 2008. Date: Carlisle, PA 17013 717-241-6363 Richard P. Mislitsky, Esquire Supreme Court No. 28123 1 West High St, Suite 208 P.O. Box 1290 STEPHEN M. KESLAR, PLAINTIFF V. HOT POINT INN, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2067 CIVIL Verification I verify that the statements made in the Answer to New Matter in the above captioned matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities. Date: Ci AL, A - Stephen . Keslar f / STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, DEFENDANT NO. 06-2067 CIVIL Certificate of Service I hereby certify that a copy of the foregoing Praecipe has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John N. Keller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: C d r Richard P. Mislitsky preme Court ID # 28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 "'°' ;f` :.? -s ;-;-, _. ?- r_::: ;..? - "" ?:? ? '! { _? - ;-. :.? ,. W •-? STEPHEN M. KESLAR, PLAINTIFF V. HOT POINT INN, DEFENDANT TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL PRAECIPE Pursuant to the Stipulation Permitting Amendment of the Caption, please change the caption in the above matter to read as follows: STEPHEN M. KESLAR, PLAINTIFF v. HOT POINT INN, and, R & W WHIT-CO, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2067 CIVIL Also pursuant to the Stipulation Permitting Amendment of the Caption, please file of record the Complaint reflecting the amended caption which is being filed of record contemporaneous with the Stipulation and this Praecipe. Date: D $ 9 Og Richard P. Mi itsky Supreme Court ID #28123 One West High Street, Suite 208 PO Box 1290 Carlisle, PA 17013 717-241-6363 c? ? c? , ? ?? o _ :. `?.P. f ivy i f f ` ?:.. i -;? _' r4,. ?_ ?,,.? `? c? --? ? --? STEPHEN M. KESLAR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HOT POINT INN, and, R & W Whit-co, Inc., DEFENDANT :NO. 06-2067 CIVIL NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue, Carlisle, PA 17013 (717) 249-3166 11 lk Richard P. Mislitsky, squire Attorney ID #28123 One West High Street P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 STEPHEN M. KESLAR, PLAINTIFF V. HOT POINT INN, and, R & W Whit-co, Inc., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA :NO. 06-2067 CIVIL COMPLAINT 1. Plaintiff, Stephen M. Keslar is an adult individual residing at 30 Bethel Church Road, Dillsburg, PA 17019. 2. The above named Defendant, Hot Point Inn ("Inn"), is believed and therefore averred to be a fictitious name or trade name for a business conducted at the Inn and situate at 100 Hot Point Avenue, Shippensburg, PA 17257. 3. Upon information and belief, Plaintiff avers that ownership of the Inn and the business is in the name of a corporation believed to be R. & W. Whit-Co., Inc., ("Corporation"), a Pennsylvania corporation. 4. The address of the Corporation is 100 Hotpoint Avenue, Shippensburg, PA 17257. 5. Plaintiff believes and therefore avers that said Corporation is owned, operated and under the control of Robert Whitmer and Wanda Whitmer, husband and wife, citizens of the Commonwealth of Pennsylvania residing at 117 Walnut Dale Road, Shippensburg, PA. 6. Plaintiff believes and therefore avers that the Whitmer(s) own all stock of the Corporation; are the only directors; and only officers of the Corporation. 7. As the only shareholders, directors and officers of the Corporation, all decisions actions and all business of the Corporation is/are made, performed and conducted by and through the Whitmers. The Corporation and the Whitmer(s) are hereinafter referred to collectively as "Owners". 9. At all times material hereto the Owners operated the Inn as a bar/tavern selling intoxicating alcoholic beverages for profit. 10. At all times material hereto the Inn is open to the public who are invited to the Inn for the purpose of purchasing intoxicating alcoholic beverages and other items sold for the profit of the Owners. 11. At all times material hereto Stephen M. Keslar was a business invitee, a member of the general public, invited to purchase intoxicating alcoholic beverages sold at the Inn. 12. At all times material hereto the Owners of the business conducted at the Inn had an affirmative duty to keep its business invitees both inside and outside the premises safe from injury and harm and to prevent and protect its business invitees from injury and harm. 13. The Owners, as hereinafter set forth, breeched the duty owned to Stephen M. Keslar. 14. The Owners and operators of the business and the Inn hire, employ, and otherwise use individuals to perform various services at the Inn which further the business conducted at the Inn for the benefit of the Owners. 15. All such individuals hired, employed and used in the operation of the business are the agents, servants, workmen and employees of the Owners. -2- 16. As the Owners of the business and as those responsible for choosing which individuals to hire and/or employ to perform services at the Inn, the Owners are responsible for the actions, inaction and other conduct of those hired to perform services in the operation of the business conducted at the Inn. 17. It is believed and therefore averred that in addition to using individuals for other specific purposes, the Owners hire, employ and otherwise use certain individuals for the primary purpose of protecting the premises, business and business invitees, from damage and injury to persons and property. 18. It is believed and therefore averred that the Owners did hire, employ and use Jason Allen Hopper for the purpose and reason(s) set forth in the preceding paragraph hereof. 19. The Owners had an affirmative duty to hire, employ, select and otherwise use only individuals who, under all circumstances, possess sufficient maturity, self-control, and temperament to avoid and prevent confrontations with those invited upon the premises to conduct business. 20. The Owners had an affirmative duty not to hire, employ and otherwise use individuals who may present a danger to those invited to do business at the Inn or in the alternative had a duty not to assign such individuals to tasks and duties that would increase the likelihood of confrontations with the public. 21. On January 8, 2006, Stephen M. Keslar was a business invitee at the Inn. 22. At or about 1:50 a.m., Stephen M. Keslar and others were leaving the Inn intending to go home. -3- 23. During the evening hours of January 7, 2006, Stephen M. Keslar and friends were business invitees of the Owners. 24. At or about 1:30 a.m., January 8, 2006, as the bar was closing Stephen M. Keslar and friends along with other business invitees, were leaving the premises as instructed by those individuals who, that evening, were designated by the Owners as being responsible for the operation of the business. 25. In order to leave the Inn, Stephan M. Keslar and other business invitees had to pass Jason Allen Hopper who was positioned near the inside door of the premises. 26. Plaintiff, Stephen M. Keslar, passed Jason Allen Hopper, and exited through the inside door and outside door of the premises. 27. As Stephen M. Keslar was leaving the premises, Jason Allen Hopper moved from the position he previously occupied and followed Stephen M. Keslar through the inside door, the vestibule, and through the outside door of the premises. 28. Just after Stephen M. Keslar exited the premises, Jason Allen Hopper, the agent, servant, workman and employee of the Owners, without good, proper, sufficient and/or adequate reason attacked, repeatedly struck and punched, and otherwise beat the Plaintiff. 29. At all times material hereto, Jason Allen Hopper was the agent, servant, workman and employee of the Owners who was acting within the course and scope of his employment with the Owners and in furtherance of the business of the Owners. 30. As a result of the attack as previously set forth, the Plaintiff, Stephen M. Keslar, sustained serious injuries to his face, head, eyes, and left knee. -4- 31. As a result of the aforesaid attack, in addition to injuries as herein before set forth, Stephen M. Keslar sustained injury to the soft tissue structures in and around the left knee which required surgical intervention. 32. Plaintiff continues to suffer from the sequelae of his injuries and Plaintiff has been advised that he is likely to continue such suffering into the future. 33. The aforesaid attack and beating and the resulting injuries would not have occurred but for the negligence and carelessness of the Owners and their disregard for the safety and well being of those invited to the Inn for the profit of the Owners. 34. Plaintiff affirmatively avers that the attack upon his person and the injuries sustained as a result of the attack and beating would not have occurred if the owners had not been negligent and exercised due care in the operation of the business, including hiring and permitting Jason Allen Hopper to perform tasks and duties assigned to him which increased the likelihood of confrontation with the public. 35. The negligence, carelessness and failure to exercise due care is as follows: i. Hiring, employing and allowing a person with violent tendencies to work in furtherance of the Owners' business; ii. Hiring, employing and allowing a person to deal with the public when that person did not possess the temperament and demeanor to do so. iii. Failing to perform an adequate investigation of the background and criminal tendencies of its employees, including but not limited to Jason Allen Hopper. -5- iv. Hiring, employing and/or permitting Jason Allen Hopper to work in furtherance of the Owners' business when it was known or should have been known that he had a criminal record. V. Hiring, employing and/or permitting Jason Allen Hopper to work in furtherance of the Owners' business when it was known or should have been known that he had a criminal record including crimes reflective of violent tendencies and/or disregard for the rights and well being of others. vi. Failing to adequately and/or properly train, educate and/or provide instructions to employees. vii. Assigning employees to job duties and/or tasks which employees were not suited to perform due to the temperament, tendencies, and/or the lack of training and experience of the employee. viii. Failing to provide adequate and proper supervision to employees while performing the duties and tasks to which they were assigned. ix. Failing to personally supervise employees while performing the duties and tasks to which they were assigned. X. Improperly and negligently delegating supervisory and other responsibilities to others when it was known or should have been known that such delegation of responsibilities was not being properly performed. xi. Failing to prepare, compile and/or develop written policies and procedures to guide, instruct and/or direct employees on how to properly perform the tasks and duties to which employees were assigned. -6- xii. Failing to supervise, observe or otherwise determine whether the policies, procedures and rules governing the conduct of employees and how employees were to perform the tasks to which they were assigned were being carried out. xiii. Creating and/or fostering an atmosphere among or attitude in its employees which was inconsistent with the duty to provide for the safety, security and will-being of those invited to do business at the Inn. xiv. Permitting, allowing and/or failing to prevent employees from assaulting those invited to do business at the Inn. xv. Permitting, allowing and/or failing to prevent employees from harassing those invited to do business at the Inn. 36. As a result of the negligence and disregard for the rights of the Plaintiff herein, and the injuries sustained by Stephen M. Keslar, the Plaintiff was forced to incur medical bills and expenses which he is/was personally responsible for paying. 37. Plaintiff continues to suffer pain and discomfort which were not present prior to the incident at issue and continues to be prevented from doing and performing activities which he was able to do prior to the incident herein at issue. 38. Plaintiff has been advised and therefore avers that he will require continued medical care and will continue to incur expenses for the care and treatment to the injuries herein set forth. 39. Plaintiff believes and therefore avers that he is entitled to compensation from the Owners for the pain, suffering, injuries and expenses arising from the incident involving the Owners' agent, servant and employee, Jason Allen Hopper. -7- WHEREFORE, Plaintiff demands judgment in his favor and against the Owners in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted, Richard P. Mislitsky Pa Supreme Court ID #28123 1 West High Street, Suite 208 PO Box 1290 Carlisle, PA 17013 (717) 241-6363 Attorney for Plaintiff -8- ATTORNEY'S VERIFICATION I Richard P. Mislitsky, attorney for Stephen M. Keslar, believe, based on the best information provided, that the averments set forth in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Date: A??P' 99 RICHARD P. MISLITSKY, ESQUIRE CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Complaint has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: John N. Yeller, Esquire Keller, Keller and Beck, LLC 343-B South Potomac Street Waynesboro, PA 17268 Date: / 'L 0A4 Z For Richard P. Mislits Supreme Court ID # 28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 Ca P-O ? CD -7) F -7) f CT W ? T"?7 IN THE COURT OF COMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA Stephen M. Keslar, Civil Action - Law Plaintiff VS. Hot Point Inn, and R&W Whit-Co, Inc., Defendant TO THE PROTHONOTARY: . No. 06-2067 JURY TRIAL DEMANDED DVAVr1TDV Please mark this case "settled prejudice." discontinued with By VWV wr V (AIX Ric and P. Misl'tsky, Esq. Attorney I.D. No. 28123 Attorney for the Plaintiff 20!39 i `'9!-- 13 pi E : !.. -?