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HomeMy WebLinkAbout06-4031Bryan Long, FX6543 PO Box 200, SCI-Camp Hill Camp Hill, PA 17001-0200 Phone Number: NONE Attorney(s) for Plaintiff NOTE: Plaintiff is currently representing himself Pro-Se. COMMON PLEAS COURT IN FOR THE COUNTY OF CUMBERLAND NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA BRYAN LONG, Plaintiff VS. CASE NO. 06 /031 ? Civ, COMPLAINT DONALD KELCHNER, individually and in his official capacity as Super- intendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institu- tion at Camp Hill, Defendants \\1 Civil Action - Law (Personal Injury) Jury trial demanded PRAECIPE FOR WRIT OF SUMMONS (Pursuant to Pa. R.C.P. No. 1351) To the Prothonotary: Kindly issue a writ of summons in the above-captioned action. ---6 _ ©(0- _- -- ---; ----- B Long P-aintiff, Pro-Se Bryan Long, FX6543 PO Box 200, SCI-Camp Hill Camp Hill, PA 17001-0200 Phone Number: NONE Attorney(s) for Plaintiff NOTE: Plaintiff is currently representing himself Pro-Se. COMMON PLEAS COURT IN FOR THE COUNTY OF CUMBERLAND NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA BRYAN LONG, Plaintiff CASE NO. L, ?63 / VS. DONALD KELCHNER, individually and in his official capacity as Super- intendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institu- tion at Camp Hill, Defendants COMPLAINT Civil Action - Law (Personal Injury) Jury Trial Demanded WRIT OF SUMMONS (Pursuant to Pa. R.C.P. No. 1351) To: Ms. Eloise Magee You are hereby notified that BRYAN LONG has commenced an action against you. Date: ------- TRUE COPY FROM RECORD to Testrnrr , .hereof, t hero unto set my hand and the semi said Cou ar te, Pa. This ......?..... Jay _ ........................................... .. (Name of Prothonotfi* of(/ Clerk) By: (Deputy) Bryan Long, FX6543 PO Box 200, SCI-Camp Hill Camp Hill, PA 17001-0200 Phone Number: NONE Attorney(s) for Plaintiff NOTE: Plaintiff is currently representing himself Pro-Se. COMMON PLEAS COURT IN FOR THE COUNTY OF CUMBERLAND NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA BRYAN LONG, Plaintiff vs DONALD KELCHNER, individually and in his official capacity as Super- intendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institu- tion at Camp Hill, Defendants NOTICE CASE NO. 0y _VD- 31 COMPLAINT Civil Action - Law (Personal Injury) Jury Trial Demanded 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 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. Pennsylvania Lawyer Referral Service Pennsylvania Bar Association PO Box 186 100 South Street Harrisburg, PA 17108 Telephone Number Date: __-?- 2 I_ Oj?---- (717) 238-6807 -------- --- --- - --7Se B Lon Plai tiff, Pro I Bryan Long, FX6543 PO Box 200, SCI-Camp Hill Camp Hill, PA 17001-0200 Phone Number: NONE Attorney(s) for Plaintiff NOTE: Plaintiff is currently representing himself Pro-Se. COMMON PLEAS COURT IN FOR THE COUNTY OF CUMBERLAND NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA BRYAN LONG, Plaintiff VS. DONALD KELCHNER, individually and in his official capacity as Super- intendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institu- tion at Camp Hill, Defendants CASE NO.: OG - y'"t COMPLAINT Civil Action - Law (Personal Injury) Jury Trial Demanded PLAINTIFF BRYAN LONG ALLEGES: I. 1. That the true names and capacities, whether individual, or defendants sued under fictitious names are unknown to plaintiff; that when their true names and capacities are ascertained, leave will be asked to amend this complaint accordingly. II. JURISDICTION AND VENUE 2. This is a tort claims action authorized by the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. Sections 8501 to 8564 to redress the personal injury negligent claim under color of state law. The court has jurisdiction under 42 Pa. Cons. Stat. Ann. Section 931(a). Plaintiff seeks compensatory relief pursuant to Section 8545 of the Tort Claims Act. 3. The Ninth Judicial District Commonwealth of Pennsylvania Common Pleas Court in for the County of Cumberland is an appropriate venue under 42 Pa. Cons. Stat. Ann. Section 8523(a) because it is where the events giving rise to this claim occurred. III. PLAINTIFF 4. Plaintiff, BRYAN LONG, is and was at all times mentioned herein a prisoner of the Commonwealth of Pennsylvania in the custody of the Pennsylvania Department of Corrections. Plaintiff is currently confined in the State Correctional Institution at Camp Hill, in Lower Allen Township, Cumberland County, Pennsylvania. 5. Plaintiff was assigned to the Kitchen 2 work detail as an inmate cook. IV. DEFENDANTS 6. Defendant DONALD KELCHNER is the Superintendent of the State Correctional Institution at Camp Hill. He is legally responsible for the operation of the State Correctional Institution at Camp Hill and for the welfare and safety of all inmates and employees of that prison. 7. Defendant ELOISE MAGEE is the Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill. She is respons- ible for the operation of the Corrections Food Service Kitchens 1 8 2 and for the welfare and safety of all inmates assigned to Kitchens 1 8 2. I 8. Defendant FRANCIS KENNEDY is the Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill. He is responsible for the operation of the Corrections Food Service Kitchen 2 and for the welfare and safety of all inmates assigned to Kitchen 2. 9. Each defendant is sued individually and in his or her official capacity. At all times mentioned in this complaint each defendant acted under the color of state law. V. STATEMENT OF FACTS 10. That on January 5, 2006 at or about 0600 Hours (6:00 A.M.) at Kitchen 2, SCI-Camp Hill, plaintiff was cooking hard-boiled eggs in a large cooking kettle when some eggs lodged into the draw valve. While plaintiff attempted to dislodge the eggs hot water shot out of the draw valve onto plaintiff's left foot causing a third degree thermal burn. 11. Upon information and belief, the defendants ELOISE MAGEE and FRANCIS KENNEDY were aware that the kettle used at the time of the accident is antiquated and over 30 years old and in constant need of repair, that the gears on kettles #2 and #3 were not functioning properly (the gears are used for tilting the kettle). Also, upon information and belief, defendants MAGEE and KENNEDY were aware that the proper strainers have not been used for a period of time and still are not being used. As a result, inmate cooks are forced to use the kettles in an unsafe condition. 12. That plaintiff suffered personal injury of third degree thermal burns that caused considerable pain and suffering and was slow heal- ing and will leave a permanent disfiguring scar. 13. Defendant KENNEDY threatened to have the plaintiff written up b with a misconduct report for improper usage of the kettle and for causing the accident. Kitchen 2 staff verified that plaintiff was not at fault for causing the accident. COUNT 1 NEGLIGENCE PLAINTIFF LONG V. DEFENDANTS MAGEE AND KENNEDY 14. Plaintiff incorporates the allegations and facts set forth in paragraphs 1 through 13, above, as if here set forth at length. (a) The defendants MAGEE and KENNEDY acted negligently and carelessly by failing to provide foreseeable safeguards to prevent the above-described accident; (b) Failing to warn of the foreseeable and unreasonable risk of harm created by the condition of the improper working kettle and the lack of usage of strainers; (c) Exposing plaintiff to a foreseeable and unreasonable risk of harm or bodily injury; (d) Creating a foreseeable and unreasonable risk of harm or bodily injury to plaintiff. WHEREFORE, plaintiff demands judgment against defendants MAGEE and KENNEDY for a sum (not) in excess of $50,000.00 plus interest and costs. COUNT 2 NEGLIGENCE PLAINTIFF LONG V. DEFENDANT KELCHNER 15. Defendant KELCHNER failed in his duties to care of inmates by not replacing the antiquated equipment with modern equipment. 16. The state and its employees owe inmates a duty of care and this duty of care was breached. 17. This breach of duty of care did in fact cause harm to the plain- tiff. 18. The plaintiff suffered personal injury damage as a result of the faulty equipment. WHEREFORE, plaintiff demands judgment against defendant KELCHNER for a sum (not) in excess of $50,000.00 plus interest and costs. VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES 19. Plaintiff used the prisoner grievance procedure available at the State Correctional Institution at Camp Hill to try and solve the prob- lem for personal injury. On January 26, 2006, plaintiff presented the facts relating to this complaint. On February 21, 2006, plaintiff was sent an Initial Review response from defendant MAGEE stating that the grievance had been without merit and was denied. On March 8, 2006, plaintiff filed an Appeal of Grievance's Initial Review to Facility Manager and on March 27, 2006, the Appeal to Superintendent of Grie- vance No. 143030 was denied. On April 10, 2006, plaintiff filed a Final Review Appeal to the Pennsylvania Department of Corrections Secretary's Office of Inmate Grievance's and Appeals and on May 12, 2006, the Final Review Appeal was denied. VII. LEGAL CLAIMS 20. Plaintiff realleges and incorporates by reference paragraphs 1 through 19, above, as if here set forth at length. 21. That tortious conduct is deemed to be "negligent" when it is demonstrated that the tort-feasor had a responsibility to protect, oversee or care for plaintiff and failed to take reasonable care in carrying out that responsibility to plaintiff. 22. The tort-feasor usually is held liable for acting with an in- tention that the law treats as unjustified, or acting in a way that departs from a reasonable standard of care. 23. State employees owed plaintiff a duty not to be negligent, i.e., was required to take reasonable care of plaintiffs person. 24. Personal injury damages arising out of any act done or the fail- ure to perform any act within the scope of employment and in the dis- charge of the duties of any officer or employee of the Pennsylvania Department of Corrections a remedy for relief should be made avail- able to the injured party. 25. The plaintiff has no plain, adequate or complete remedy at law to redress the wrongs described herein. 26. Plaintiffs claim of allegations of negligence as a cause for the accident meets the essential elements of cause standards. VIII. PRAYER FOR RELIEF 27. WHEREFORE, plaintiff respectfully prays that this court enter judgment granting plaintiff: (1) Compensatory damages in the amount of $50,000.00 against each defendant, jointly and severally; (2) Plaintiffs costs in this tort claim; (3) A jury trial on all issues triable by jury; (4) Any additional relief this court deems just, proper, and equitable. Date: ---?- 2g- _©,___ _ Respectfully submitted, Bryan Long, FX6543 PO Box 200, SCI-Camp Hill Camp Hill, PA 17001-0200 B L la ntiff, Pro- Plaintiff demands jury trial VERIFICATION I have read the foregoing complaint and hereby verify that the matters alleged therein are true, except as to matters alleged on information and belief, and, as to those, I believe them to be true. I certify under penalty of perjury that the foregoing is true and correct. Executed at Camp Hill, Pennsylvania on ---? _ Z _0 b Signature - ---4n1aitiff, ----- -- ------------- LONG Pro-Se r7 c Z 2 G? -11 0 0 0 C3 w Ir ?- Ir r D Bryan Long, FX6543 PO Box 200, SCI-Camp Hill Camp Hill, PA 17001-0200 Phone Number: NONE Attorney(s) for Plaintiff NOTE: Plaintiff is currently representing himself Pro-Se. COMMON PLEAS COURT IN FOR THE COUNTY OF CUMBERLAND NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA BRYAN LONG, Plaintiff VS. DONALD KELCHNER, individually and in his official capacity as Super- intendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institu- tion at Camp Hill, Defendants CASE NO. 06-4031 COMPLAINT Civil Action - Law (Personal Injury) Jury Trial Demanded PRAECIPE TO REINSTATE COMPLAINT To The Prothonotary: Pursuant to Pa.R.C.P. No. 401(b)(1), please reinstate the Complaint in the above-captioned Date: _i/a??Q? T matter. y n Long ----- --- -------- ----- 1 ntiff, Pro-Se PO Box 200, SCI-Camp Hill Camp Hill, PA 17001-0200 c3 C ^? O ° Q ? T m m? co. v r - 1'C r ?rn a cn -c . .h IN THE COMMONWEALTH COURT OF PENNSYLVANIA BRYAN LONG, Plaintiff, : V. Case NO.: 06-4031 : CIVIL ACTION - LAW DONALD KELCHNER, SUPERINTENDENT, (Personal Injury) et.al. : Defendant. R E Q U E S T T O P R O C E E D I N F O R M A P A U P E R I S I, Bryan Long, state, under penalties provided by 18 Pa. C.S.A. §4904 that: 1. I am the Plaintiff in the above-captioned matter and because of my financial condition I am unable to retain counsel and to pay the fees and costs of said filings, reproduction of records and briefs and service on defendants. 2. I have represented myself pro-se. 3. I have not received, within the past twelve (12) months, any income from a business, profession or other form of self-employment, or in the form of rent payments, interest, dividends, pensions, annuities, social security payments, support payments or any other source of income. 4. Since my incarceration on December 25, 2003, I am unaware of any significant balance in any checking or savings accounts. 5. I do not own any real estate, stocks, bonds, notes, automobiles, or other valuable property. 6. Presently, I am in debt at $15,000 for child support, $10,000 for outstanding student loan, over $1,000 in fines and - 1 - costs and I have two children who depend on me for support. 7. I understand that if there is any significant change in my financial status, I am obligated to inform the Court. I understand that a false statement or answer to any questions in this statement will subject me to the penalties provided by law. Respectfu 1y s mitted, 0 Dated ?1aintiff, n it . ong, Pro-se Inmate No.: FX-6543 Case No.: 06-4031 SCI-Camp Hill P.O. Box 200 Camp Hill, Pa 17001 - 2 - IN THE COMMONWEALTH COURT OF PENNSYLVANIA BRYAN LONG, Plaintiff, V. Case NO.: 06-4031 CIVIL ACTION - LAW DONALD KELCHNER, SUPERINTENDENT, (Personal Injury) et.al. Defendant. SWORN VERIFICATION I, Bryan K. Long; Inmate Number FX-6543, swear and/or affirm and verify that the statements, made in the foregoing Petition/Motion are true and correct to the best of my knowledge, information and/or belief under the penalties of perjury under 18 Pa. C.S.A. §4904, relating to Unsworn Falsifications to Authorities. 1 - . • /-307 Dated Respectfully s mitted, -?i? ,An K. ng P intiff, Pr,-se Inmate No.: FX-6543 Case No.: 06-4031 SCI-Camp Hill P.O. Box 200 Camp Hill, Pa 17001 IN THE COMMONWEALTH COURT OF PENNSYLVANIA BRYAN LONG, Plaintiff, : • Case NO.: 06-4031 : CIVIL ACTION - LAW DONALD KELCHNER, SUPERINTENDENT, (Personal Injury) et.al Defendant. PROOF OF SERVICE I, Bryan Long, Plaintiff, in the above captioned matter, hereby certifies that a true and correct copy of the foregoing Petition/Motion was filed on the parties listed below by mailing the same to the below address by first-class mail. Defendants : / . . .3_(1_1 Dated Respectfully submitted, an K. Long , intif, f , Pr -se Inmate No.: FX-6543 Case No.: 06-4031 SCI-Camp Hill P.O. Box 200 Camp Hill, Pa 17001 ?. ''?'?4 ,,, . .! ,,;'., ^? F " " ?7 ? ?? ? . BRYAN LONG, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DONALD KELCHNER, ET AL., DEFENDANTS :06-4031 CIVIL TERM ORDER OF COURT AND NOW, this day of February, 2007, plaintiff may proceed in forma pauperis as he is unable to pay the sheriff service fee. Bryan Long, FX-6543 SCI Camp Hill P.O. Box 200 Camp Hill, PA 17001 Department of Corrections 55 Utley Drive Camp Hill, PA 17011 llt? -7 7.07 (4- :sal Edgar B. Bayley, J. j Ci 7 ci co `=P C? ° j N t,U 0 Bryan Long, FX6543 PO Box 200, SCI-Camp Hill Camp Hill, PA 17001-0200 Phone Number: NONE Attorney(s) for Plaintiff NOTE: Plaintiff is currently representing himself Pro-Se. COMMON PLEAS COURT IN FOR THE COUNTY OF CUMBERLAND' NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA BRYAN LONG, ) Plaintiff ) CASE NO. 06-4031' vs. ) DONALD KELCHNER, individually and in his official capacity as Super- intendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institu- tion at Camp Hill, Defendants COMPLAINT Civil Action - Lav4 (Personal Injury) Jury Trial Demand PRAECIPE TO REINSTATE COMPLAINT To The Prothonotary: Pursuant to Pa.R.C.P. No. 401(b)(1), please reinstate tale Complaint in the above-captioned matter. A Date: 01 ry ong I'i Pl ntiff, ro-Se PO Box 200, SCI-Camp Hi Camp Hill, PA 17001-02 ± rrl 4'i t . ?` ` _ tom. rte" T4 nil THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BRYAN LONG - Plaintiffs, - VS. DONALD L. KELCHNER, et. al. - Defendants, CIVIL ACTION NO. 06-4031 PLAINTIFFS' MOTION FOR APPOINTMENT OF COUNSEL Pursuant to 28 U.S.C. §1915(e)(1), plaintiff moves for an order appointing counsel to represent him in this case. In support of this motion, plaintiff states: 1. Plaintiff cannot afford to hire a lawyer. He has requested leave to proceed in forma pauperis in this case. 2. Plaintiff's imprisonment will greatly limit his ability to litigate this case. This case will likely involve substantial investigation and discovery. 3. The issues in this case are complex. A lawyer would help plaintiff to apply the law properly in briefs and before the Court. Plaintiff has never before been a party to a civil legal proceeding. 4. A trial in this case will likely involve conflicting testimony. A lawyer would assist plaintiff in the presentation of evidence and the cross-examination of opposing witnesses. 5. Plaintiff has made repeated efforts to obtain a lawyer, with no success to date. WHEREFORE, plaintiff requests that the Court appoint counsel to represent him in this case. Respectfully submitted, this 9th day of April, 2007. Bryan Long FX6543 ; ., -- ^,1 ? °?? _ -_- __ _ `t_ ? ' ^ ,,.,,? _ ; ;.=_ -- s..? ` ?- , ._., ? ,y .... 1 Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 151h Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants ENTRY OF APPEARANCE Please enter my appearance on behalf of Defendants, Donald Kelchner, Eloise Magee and Francis Kennedy, in the above-captioned matter. Respectfully submitted, THOMAS W. CORBETT, JR. ATTORNEY GENERAL By: /-STeven C. Gould, T.D.# 80156 Senior Deputy Attorney General Dated: April 19, 2007 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Entry of Appearance upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. BOX 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOULD, #80156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: April 19, 2007 ° n G ° c-n 4 BRYAN LONG, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DONALD KELCHNER, ET AL., DEFENDANTS : 06-4031 CIVIL TERM ORDER OF COURT AND NOW, this day of April, 2007, the motion of plaintiff for the appointment of counsel, IS DENIED. ryan Long, FX-6543 SCI Camp Hill P.O. Box 200 Camp Hill, PA 17001 sal 3 By the Court, €.n LO ' . " -- ti- } O Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG V. Plaintiff DONALD KELCHNER, individually and in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4031 NOTICE TO PLEAD TO PLAINTIFF: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. Respectfully submitted, , JR. By: STEVEN C. GOULD, ID 40156 Senior Deputy Attorney General DATED: May 14, 2007 Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants COMMONWEALTH DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendants, Donald Kelchner, Eloise Magee, and Francis Kennedy (hereinafter collectively, "Commonwealth Defendants"), by and through the Office of the Attorney General, and files the following Answer and New Matter to Plaintiff s Complaint: 1. Denied. The allegations set forth in Paragraph 1 of Plaintiff's Complaint, including are denied generally pursuant to 1029(e) of the Pennsylvania Rules of Civil Procedure. 2.-3. Denied. The allegations set forth in these paragraphs of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of these paragraphs could be construed as factual allegations, said allegations are deemed to be denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Donald Kelchner is the Superintendent at SCI-Camp Hill. The remaining allegations set forth in Paragraph 6 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. By way of further answer, Paragraph 6 is denied generally pursuant to Pa.R.C.P. 1029(e). 7. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Eloise Magee is the Food Service Manager 2 at SCI-Camp Hill. The remaining allegations set forth in Paragraph 7 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that remaining allegations could be construed as factual allegations, it is specifically denied that the Commonwealth Defendant, Eloise Magee, is responsible for the welfare and safety of all inmates assigned to Kitchens I & 2. By way of further answer, the Commonwealth Defendants affirmatively aver that Commonwealth Defendant Eloise Magee has only those responsibilities prescribed to her as Administrator of the food service department at SCI-Camp Hill. By way of further answer, Paragraph 7 is denied generally pursuant to Pa.R.C.P. 1029(e). 8. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Francis Kennedy is the Food Service Manager 1 at SCI-Camp Hill. The remaining allegations set forth in Paragraph 8 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that remaining allegations could be construed as factual allegations, it is specifically denied that the Commonwealth Defendant, Francis Kennedy, is responsible for the welfare and safety of all inmates assigned to Kitchens 2. By way of further answer, the Commonwealth Defendants affirmatively aver that Commonwealth Defendant Francis Kennedy has only those responsibilities prescribed to him as assistant to the Administrator of the food service department at SCI-Camp Hill. By way of further answer, Paragraph 8 is denied generally pursuant to Pa.R.C.P. 1029(e). 9. Denied. The allegations set forth in Paragraph 9 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 9 could be construed as factual allegations, it is specifically denied that the Commonwealth Defendants can be sued in their individual capacity. By way of further answer, Paragraph 9 is denied generally pursuant to Pa.R.C.P. 1029(e). 10. Admitted in part, denied in part. It is admitted only that on January 5, 2006, Plaintiff was cooking in Kitchen 2, at SCI-Camp Hill. As to the remaining allegations, after reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of these averments,' and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 10 is denied generally pursuant to Pa.R.C.P. 1029(e). 11. Denied. The averments of this Paragraph 11 are deemed to be denied and at issue pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the kettle used at the time of the accident was antiquated and in constant need of repair. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the gears on the kettle used at the time of the accident were not functioning properly. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the proper strainers have not been used for a period of time and still are not being used. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that inmates cooks are force to use the kettles in an unsafe condition. Strict proof of same is demanded at the time of trial. 12. Denied. After reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 12 is denied generally pursuant to Pa.R.C.P. 1029(e). 13. Admitted in part, denied in part. It is admitted that Plaintiff was not using the kettle properly and caused this accident. It is specifically denied that Commonwealth Defendant Kennedy threatened to have Plaintiff written up with a misconduct report. As to the remaining allegations, after reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of the averment regarding a "kitchen 2 staff verified that Plaintiff was not at fault for causing the accident", and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 13 is denied generally pursuant to Pa.R.C.P. 1029(e). COUNT 1 NEGLIGENCE Plaintiff Long v. Defendants Magee and Kennedy 14. Denied. The Commonwealth Defendants incorporates herein by reference their answers to Paragraphs 1 through 13 of Plaintiffs Complaint as though fully set forth herein at length. The allegations set forth in Paragraph 14 of Plaintiff's Complaint, including subparagraphs "(a)" through "(d)", constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 14, including subparagraphs "(a)" through "(d).", could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants Magee and Kennedy were careless and negligent in any manner with respect to Plaintiff's alleged cause of action or that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiff's alleged injuries. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 14, including subparagraphs "(a)" through "(d)", are denied generally pursuant to Pa.R.C.P. 1029(e). WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. COUNT 2 NEGLIGENCE Plaintiff Long v. Defendant Kelchner 15. Denied. The allegations set forth in Paragraph 15 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 15 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant Kelchner failed in his duties to care for inmates. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 15 is denied generally pursuant to Pa.R.C.P. 1029(e). 16. Denied. The allegations set forth in Paragraph 16 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 16 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants breached a duty of care owed to Plaintiff. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 16 is denied generally pursuant to Pa.R.C.P. 1029(e). 17. Denied. The allegations set forth in Paragraph 17 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 17 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants breached a duty of care owed to Plaintiff. It is specifically denied that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiffs alleged injuries. Strict proof of same is demanded at the time of trial. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 17 is denied generally pursuant to Pa.R.C.P. 1029(e). 18. The allegations set forth in Paragraph 18 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 18 could be construed as factual allegations, it is specifically denied that Plaintiff suffered personal injury damage as a result of faulty equipment. Strict proof thereof is hereby demanded at the time of trial. By way of further answer, the Commonwealth Defendants affirmatively aver that kettle was in a safe operating condition for use by reasonable prudent operators. By way of further answer, Paragraph 18 is denied generally pursuant to Pa.R.C.P. 1029(e). WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. 19. It is admitted only that Plaintiff has used the prisoner grievance procedure available at SCI-Camp Hill, but denies, as a legal conclusion, whether Plaintiff has exhausted the administrative remedies procedures. By way of further answer, the Commonwealth Defendants state that Plaintiff's grievances and responses thereto speak for themselves. By way of further answer, Paragraph 19 is denied generally pursuant to Pa.R.C.P. 1029(e). 20. The Commonwealth Defendants incorporate herein by reference their answers to Paragraphs 1 through 19 of Plaintiff's Complaint as though fully set forth herein at length. 21. Denied. The allegations set forth in Paragraph 21 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 21 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 21 is denied generally pursuant to Pa.R.C.P. 1029(e). 22. Denied. The allegations set forth in Paragraph 22 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 22 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 22 is denied generally pursuant to Pa.R.C.P. 1029(e). 23. Denied. The allegations set forth in Paragraph 23 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 23 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 23 is denied generally pursuant to Pa.R.C.P. 1029(e). 24. Denied. The allegations set forth in Paragraph 24 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 24 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 24 is denied generally pursuant to Pa.R.C.P. 1029(e). 25. Denied. The allegations set forth in Paragraph 25 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 25 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 25 is denied generally pursuant to Pa.R.C.P. 1029(e). 26. Denied. The allegations set forth in Paragraph 26 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 26 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants were negligent in any manner with respect to Plaintiffs alleged cause of action or that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiffs alleged injuries. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 26 is denied generally pursuant to Pa.R.C.P. 1029(e). 27. The Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. By way of further answer, the Commonwealth Defendants affirmatively state that the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. NEW MATTER The Commonwealth Defendants hereby raise the following New Matter: 28. The present action is controlled by the provisions of 1 Pa. C.S. §2310 and Act No. 1980-142, set forth in 42 Pa. C.S. §§8501, et seq., which Acts are incorporated herein and pled by reference. The Commonwealth Defendants assert all the defenses contained therein. 29. Liability on the part of the Commonwealth Defendants is specifically denied. 30. The Commonwealth Defendants are specifically entitled to the defenses set forth in 42 Pa. C.S.A. §8524, which section is incorporated herein and pled by reference. 31. The Commonwealth Defendants invoke any and all common law defenses available to it pursuant to 42 Pa. C.S. §8524. 32. The Commonwealth Defendants are immune from suit, and therefore Plaintiff's action is barred. 33. Plaintiff's Complaint fails to state a claim upon which relief can be granted against the Commonwealth Defendants. 34. This action is not within any of the exceptions to immunity as set forth in 42 Pa. C.S. §8522, and therefore is barred. 35. The Commonwealth Defendants did not have notice, written or otherwise, of the allegedly dangerous condition, or in the alternative, if said notice was received, it was not received in sufficient time prior to the alleged accident for the Commonwealth Defendants to have corrected or to have warned the Plaintiff of the allegedly dangerous condition. 36. The Commonwealth Defendants is not liable for negligence related to discretionary acts, and therefore this action is barred. 37. The Commonwealth Defendants are not liable for the exercise or non-exercise of authorized discretion. 38. If the accident occurred as alleged, then the condition complained of did not cause the accident or the damages, injuries and/or losses complained of. 39. Should liability be found on the part of the Commonwealth Defendants, the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. 40. The Judicial Code at 42 Pa. C.S. §5522(a), which section is incorporated herein and pled by reference, provides that the Commonwealth and the Attorney General must have received written notice of intent to sue within six (6) months from the date the cause of action accrues. In the absence of such notice, this action is barred. 41. The alleged conduct of the Commonwealth Defendants, standing alone, did not cause the Plaintiff's alleged harm, therefore, the Commonwealth Defendants cannot be held liable for the Plaintiff's alleged damages and/or losses. 42. The Commonwealth Defendants aver that if negligence is found to exist on its part, said negligence was not the proximate cause of Plaintiffs alleged damages, injuries and/or losses. 43. If the accident occurred as alleged, then the condition complained of did not create a reasonably foreseeable risk of the accident or the injuries complained of. 44. The Commonwealth Defendants are absolved from liability because any negligence alleged on their part merely facilitated the Plaintiff s alleged damages, injuries and/or losses injuries. 45. There is no cause of action based upon a failure to inspect or improper inspection in that sovereign immunity has not been waived for such claims. 46. The causal negligence of the Plaintiff was greater than any negligence on the part of the Commonwealth Defendants, and Plaintiff's recovery is therefore barred, or, in the alternative, must be diminished in accordance with the Pennsylvania Comparative Negligence Act, pursuant to 42 Pa. C.S.A. §7102. 47. If Plaintiff sustained injuries as alleged, which injuries are specifically denied, then the injuries were caused by the failure of the said Plaintiff to exercise reasonable care under the circumstances, and Plaintiffs claims are entirely barred or reduced under the provisions of the Pennsylvania Comparative Negligence Statute, 42 Pa. C.S.A. §7102. 48. Plaintiff was contributorily negligent and/or failed to mitigate the claimed damages, thereby limiting and/or barring any recovery. 49. If the accident occurred as alleged, then the accident was caused by the negligent and careless conduct of, Plaintiff, which included the following: (a). Failing to use due care; (b). Removing the drain valve assemble; (c). Failing to use safety equipment; (d). Failing to follow operating and safety procedures; and (e). Failing to use the kitchen equipment properly. 50. Plaintiffs claim are barred by the Doctrine of Assumption of the Risk. 51. All affirmative defenses under Pa. R.C.P. §1030 are asserted and incorporated by reference as if set forth herein at length. 52. The Commonwealth Defendants are entitled to official immunity from the Plaintiff's claims. 53. At all times relevant hereto any actions or inactions of the Commonwealth Defendants were done within the scope of their authority in good faith and without malice. 54. Any actions or inactions committed by the Commonwealth Defendants were done pursuant to duties required by statute, regulation or directive and therefore, the Commonwealth Defendants are immune. 55. The Commonwealth Defendants are immune from claims grounded upon negligent supervision or employment. 56. At all times relevant, Commonwealth Defendants acted with due care and diligence and in accordance with all applicable laws and policies. 57. Employees of an agency of the Commonwealth of Pennsylvania cannot be vicariously liable for the acts of others lower in the chain of command of the agency. 58. The Commonwealth Defendants' conduct was neither negligent nor careless. 59. The Commonwealth Defendants cannot be sued in their individual capacity. 60. If the kettle referred to in the Plaintiffs Complaint was not in the care, custody or control of the Commonwealth Defendants. 61. The Commonwealth Defendants are absolved from liability because the kettle referred to in the Plaintiff's Complaint merely facilitated the Plaintiff's alleged damages, injuries and/or losses injuries. 62. The alleged dangerous condition(s) does not "derive, originate from, or have as its source Commonwealth realty," and therefore, the Commonwealth Defendant is immune from suit. WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. Respectfully submitted, THOMAS W. CORBETT, JR. Attorney General By: Steven C. Gould, ID 0156 Senior Deputy Attorney eneral DATED: May 14, 2007 VERIFICATION I, FRANCIS KENNEDY, hereby verify that the foregoing statements are true and correct to the best of my knowledge, information and belief. To the extent that any of the foregoing statements are based upon an understanding or an application of law, I have relied upon counsel in making this verification. I understand that I am subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities for any false statements knowingly made herein. DATED: FRAN CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Answer and New Matter to Plaintiffs Complaint upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. BOX 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOULD ID #80156 Senior Deputy Attorne General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: May 14, 2007 c..a r?'' ? - ?--? ' t ... ?=,?? i,J?. ..X":7 `..?? 'i ".. i `?. 1 e.,?.? `•. S '_) ??^ .,,1 1., - .. • ? ?,^'w+ SHERIFF'S RETURN - REGULAR CASE NO: 2006-04031 P • COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KELCHNER DONALD the DEFENDANT , at 1020:00 HOURS, on the 30th day of March at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERYL GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.40 Affidavit .00 Surcharge 10.00 .00 `lbgly-l 4- V 42.40 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 00/00/0000 2007 By: Deputy She f A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04031 P • COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KELCHNER DONALD SUPERINTENDENT OF SCI CAMP HILL the DEFENDANT , at 1020:00 HOURS, on the 30th day of March , 2007 at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERYL GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 9169161 Q- So Answers: 6.00 y .00 .00 10.00 R. Thomas Kline .00 16.00 00/00/0000 Sworn and Subscibed to before me this of By. day Deputy Sh iff A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04031 P r COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MAGEE ELOISE the DEFENDANT , at 1020:00 HOURS, on the 30th day of March 2007 at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERYL GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 1410 ©1 V 16.00 Sworn and Subscibed to before me this day of , So Answers,: R. Thomas Kline 00/00/0000 By. 4A14 Deputy S riff A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04031 P • COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MZ,r_FF WT,nTgW Aq C'' PPRrTTnNq Fnnn gRRVIC R MANAGER 2 the DEFENDANT , at 1020:00 HOURS, on the 30th day of March 2007 at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERYL GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge yf 04107 So Answers: 6.00 7? --e .00 00 10.00 R. Thomas Kline .00 16.00 00/00/0000 Sworn and Subscibed to before me this of By day Deputy She ff A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04031 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KENNEDY FRANCIS the DEFENDANT , at 1020:00 HOURS, on the 30th day of March 2007 at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERY GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 q)vqI ai 16.00 00/00/0000 Sworn and Subscibed to By: before me this day Deputy Sh ff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04031 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KENNEDY FRANCIS AS CORRECTIONS FOOD SERVICE MANAGER 1 the DEFENDANT , at 1020:00 HOURS, on the 30th day of March 2007 at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERYL GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 ?Ioy+oll 116.00 Sworn and Subscibed to before me this day of So Answers: R. Thomas Kline 00/00/0000 By. Deputy Sh kf A. D. CURTIS R. LONG Prothonotary " U Cumberland County One Courthouse Square Carlisle, PA 17013 Mr. Bryan Long FX-6543 i F. o-Ps pc?%F +, PITNT 02 1A $ 0 0004631598 JUN MAILED FROM ZIP CO R? s NIXIE 106 CC 1 74/ 01 RETURN TO SENDER REFUSED UNABLE TO FORWARD ac: 1{{701;)!3 + ]?r? 4? 9-jjO43 319j' 111MI)i J??1/1I11)?1J1?'J?l J?l (/liJr711 J1lJJ 111.iit Jllii/J i Bryan Long FX6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001 June 01, 2007 Office of the Prothonotary of Cumberland County Curtis R. Long, Prothonotary Civil Division Cumberland County Courthouse Carlisle, PA 17013-3387 RE: Written Notice of Intention to File Praecipe for ntr of Default Judgment Pa. R.C.P. 237.1) Common Pleas Court for the County of Cumberland Ninth Judicial District Commonwealth of Pennsylvania Bryan Long Plaintiff Case No. 06-4031 V19. Complaint Donald Kelchner, et al. Civil Action-Law Defendants (Personal Injury) TO: Donald Kelchner, Superintendent of SCI-Camp Hill Eloise Magee, Corrections Food Service Manager 2 Francis Kennedy, Corrections Food Service Manager 1 SCI-Camp Hill P.O. Box 8837 2500 Lisburn Rd. Camp Hill, PA 17001-8837 DATE OF NOTICE: MAY 30, 2007 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A TIMELY PLEADING TO A COMPLAINT, WHICH CONTAINED A NOTICE TO DEFEND, PERSONALLY OR BY AN ATTORNEY AND FILED IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A 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 CAN PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE. Pennsylvania Lawyer Referral Service Pennsylvania Bar Association P.O. Box 186 100 South Street Harrisburg, PA 17108 Telephone Number: (717) 238-6807 -/-07 Dated Bry Long Plaintiff, Pro-se Inmate No. FX6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001 C r9 _ `te ,«.: a c?a Bryan Long FX-6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 August 31, 2007 Office of the Prothonotary of Cumberland County Curtis R. Long, Prothonotary Civil Division Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: PRAECIPE FOR ENTRY FOR A DEFAULT JUDGMENT Common Pleas Court for the county of Cumbe j"d Ninth Judicial District Commonwealth of Pennsylvanhr Bryan Long Plaintiff, . Can No. 064031 Vs. Donald L. Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants COMPLAINT Civil Action-Law • (Personal Injury) E FOR E-MY OF DEFAU T JCmrNIENT To the PROTHONOTARY: Please enter a judgment of default in favor of plaintiff BRYAN LONG and against defendant's DONALD L. KELCIINER, ELOISE MAGEE, AND FRANCIS KEMWDY for defendants failure to plead to the Complaint in this action within the required time-The Complaint contains a notice to defend within twenty (20) days from the date of service thereof. Defendant was served with a Complaint on March 30, 2807, and the defendant's answer was due to be filed on April 27,2007. No prior extension of time or written agreement between parties exists. I _'? i, W Bryan Long FX6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001 August 3, 2007 Office of the Prothonotary of Cumberland County Curtis R. Long, Prothonotary Civil Division Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 RE: Written Notice of Intention to File Praecipe for Entry of Default Judgment (Pa. R.C.P. 237.1) Common Pleas Court for the County of Cumberland Ninth Judicial District Commonwealth of Pennsylvania Bryan Long Plaintiff Case No. 06-4031 VS. Complaint Donald Kelchner, . Superintendent Civil Action-Law Eloise Magee, Food Service Manager 2 (Personal Injury) Francis Kennedy, Food Service Manager 1 Defendants TO: Donald Kelchner, Superintendent of SCI-Camp Hill Eloise Magee, Corrections Food Service Manager 2 Francis Kennedy, Corrections Food Service manager 1 SCI-Camp Hill P.O. Box 8837 2500 Lisburn Rd. Camp Hill, PA 17001-8837 DATE OF NOTICE: MAY 30, 2007 IMPORTANT.NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A TIMELY PLEADING TO A COMPLAINT, WHICH CONTAINED A NOTICE TO DEFEND, 4kb, 6, ? /,-'- PERSONALLY OR BY AN ATTORNEY AND FILED IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS. NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A 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 CAN PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE. Pennsylvania Lawyer Referral Service Pennsylvania Bar Association P.O. Box 186 100 South Street Harrisburg, PA 17108 Telephone Number: (717) 238-6807 ?- 3 - o -7 Dated Bryan Long Plaintiff, Pro- e Inmate No. FX6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001 SHERIFF'S RETURN - REGULAR CASE NO: 2006-04031 P COMMONWEALTH OF PENNSYLVANIA : }C?i / / t ?? COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KELCHNER DONALD SUPERINTENDENT OF SCI CAMP HILL the DEFENDANT at 1020_00 HOURS, on the 30th day of March 2007 at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERYL GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 00/00/0000 ByL4=1eputyMh iff of A. D. SHERIFF'S RETURN - REGULAR. CASE NO: 2006-04031 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MAGEE ELOISE AS CORRECTIONS FOOD SERVICE MANAGER 2 the DEFENDANT at 1020:00 HOURS, on the 30th day of March 2007 at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERYL GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service Affidavit .00 ? •- .00 -..e -. T Surcharge 10.00 R. Thomas Kline .00 16.00 00/00/0000 Sworn and Subscibed to before me this day By: Deputy She ff of A. D. SHERIFF'S.RETURN - REGULAR CASE NO: 2006-04031 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LONG BRYAN VS KELCHNER DONALD ET AL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KENNEDY FRANCIS AS CORRECTIONS FOOD SERVICE MANAGER 1 the DEFENDANT at 1020:00 HOURS, on the 30th day of March , 2007 at SCI CAMP HILL 2501 LISBURN ROAD CAMP HILL, PA 17011 by handing to CHERYL GEE, SUPERINTENDENT'S SECRETARY, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service Affidavit .001 .00 Surcharge 10.00 R. Thomas Kline .00 16.00 00/00/0000 Sworn and Subscibed to By; before me this day Deputy Sh iff of A.D. TOM CORBE17 ATTORNEY GENERAL May 14, 2007 ahs? Torts Litigation Section 15'h Floor, Strawberry Sq. Harrisburg, PA 17120 7.17-783-8035 - Direct Dial FAX: 717-705-7241 Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re: Long v. Kelchner,, et al. No. 06-4031 Dear Prothonotary: c Enclosed for filing please :find the Commonwealth Defendants' Answer and New Matter to Plaintiff's Complaint in the above-referenced matter. By copy of this correspondence, a true and correct copy of this document is being forwarded to all parties of record. Thank you for your assistance. V Senior 4A61 COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL SCG/pg Enc. cc: Bryan Long o ar- 4 W Bryan Long FX6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001 August 3, 2007 Office of the Prothonotary of Cumberland County Curtis R. Long, Prothonotary Civil Division Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 RE: NOTICE OF ENTRY OF DEFAULT JUDGMENT (In Accordance with Pa. R.C.P. 1037(b) and 237.1) TO: Donald Kelchner, Superintendent of SCI-Camp Hill Eloise Magee, Corrections Food Service Manager 2 Francis Kennedy, Corrections Food Service Manager 1 SCI-Camp Hill P.O. Box 8837 2500 Lisburn Rd. Camp Hill, PA 17001-8837 Common Pleas Court For The County Of Cumberland Ninth Judicial District Commonvealth of Pennsylvania Bryan Long Plaintiff VS. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 . Francis Kennedy, Food Service Manager 1 . Defendants Case No. 06-4031 Complaint Civil Action-Law (Personal Injury) NOTICE Pursuant to PA. R.C.P.. 236, you are hereby notified that a JUDGMENT BY DEFAULT has been entered against you in the above proceeding. .,Q 7 D to Prothonotary IN THE COMMONWEALTH COURT OF PENNSYLVANIA Bryan Long Plaintiff VS. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants Case No. 06-4031 Complaint Civil Action-Law (Personal Injury) CERTIFICATE OF SERVICE I hereby certify that I am this day serving the PLAINTIFF'S PRAECIPE FOR ENTRY OF JUDGMENT OF DEFAULT upon the persons and in the manner indicated below: SERVICE BY CERTIFIED MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Donald Kelchner, Superintendent of SCI-Camp Hill Eloise Magee, Corrections Food Service Manager 2 Francis Kennedy, Corrections Food Service Manager 1 SCI-Camp Hill P.O. Box 8837 2500 Lisburn Rd. Camp Hill, PA 17001-8837 Steve Gould, ID #80156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Dated 7-3-0-7 By: Bry Long P1 ntiff, /ro-Se Inmate No. FX6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001 l'1 0 e? tr m ? F w - w - cx) IN THE COMMONWEALTH COURT OF PENNSYLVANIA Bryan Long Plaintiff VS. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager l Defendants Respectfully submitted, Case No. 06-4031 Complaint Civil Action-Law (Personal Injury) SWORN VERIFICATION I, Bryan Long, Inmate Number FX-6543, swear and/or affirm and verify that the statements made in the foregoing motion are true and correct to the best of my knowledge, information and/or belief under penalties of perjury under 18 Pa. C.S.A. §4904, relating to unsworn falsifications to Authorities. -3-©7 Dated C 1Q 1i 1A- iLL, YLU-bike Inmate No. FX6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001 C`) C: ^' p ? ti?r? i cra _ t W .A! IN THE COMMONWEALTH COURT OF PENNSYLVANIA Bryan Long Plaintiff VS. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants Case No. 06-4031 Complaint Civil Action-Law (Personal Injury) CERTIFICATE OF SERVICE I hereby certify that I am this day serving the PLAINTIFF'S NOTICE OF ENTRY OF DEFAULT JUDGMENT upon the persons and in the manner indicated below: SERVICE BY CERTIFIED MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Office of the Prothonotary of Cumberland County Curtis R. Long, Prothonotary Civil Division Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Dated By: b ryan Lang Plai tiff, Pro-S Inmate No. FX65 3 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001 C ra ? t? P't' ? trs r ; z v=- t7't -0 tv C W 930 Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants COMMONWEALTH DEFENDANTS' PETITION PURSUANT TO RULE 237.3 TO OPEN DEFAULT JUDGMENT AND NOW, comes the Defendants, Donald Kelchner, Eloise Magee, and Francis Kennedy (hereinafter collectively, "Commonwealth Defendants"), by and through their attorney, Steven C. Gould, Senior Deputy Attorney General, hereby moves this Honorable Court for relief from a judgment of by default pursuant to the Pennsylvania Rules of Civil Procedure, Rule 237.3, and in support thereof, avers as follows: 1. Plaintiff, Bryan Long, (hereinafter, "Plaintiff'), inmate at the SCI-Camp Hill, commenced the instant action against the Commonwealth Defendants by filing a Praecipe of Writ of Summons on June 29, 2006. 1 2. On July 17, 2006, Plaintiff filed a Writ of Summons and a Complaint. 3. On September 1, 2006, Plaintiff filed a Praecipe to Reinstate his Complaint. 4. By Order dated February 20, 2007, the Honorable Judge Bayley, granted Plaintiff permission to proceed in forma pauperis, as he was unable to pay for the sheriff fee. 5. On March 23, 2007, Plaintiff filed another Praecipe to Reinstate his Complaint'. 6. According to the Cumberland County Sheriffs Affidavit of Return of Service, Plaintiff s Complaint was served upon Cheryl Gee, Superintendent's Secretary at SCI-Camp Hill on March 30, 2007. 7. Plaintiff did not effectuate proper service on the Commonwealth Defendants since he failed to served the Office of Attorney General with Original process as required by the Pennsylvania Code, 37 Pa. Code §111.1 and Pa.R.C.P. §422(a). 8. The Commonwealth Defendants, for the sake of judicial economy, did not respond by objecting to the defective service, but filed an Answer and New Matter to Plaintiffs Complaint on May 16, 2007. A true and correct copy is attached hereto as Exhibit "A", and by reference, incorporated herein. 9. On July 20, 2007, sixty-five (65) days after the filing of the Commonwealth Defendants' Answer and New Matter, Plaintiff filed a Notice of Intention to File Praecipe for Entry of Default Judgment, pursuant to 237.1. 10. After receiving Plaintiff s Notice of Intention to File Praecipe for Entry of Default Judgment, counsel for the Commonwealth Defendants contacted the Cumberland County Prothonotary's Office and was informed that a default judgment would not be entered since an Answer was filed by the Commonwealth Defendants. ' The Complaint served upon the Commonwealth Defendants does not appear to be reinstated by the Prothonotary on or about March 23, 2007. If Plaintiff's Complaint was not reinstated, process of the Complaint would not be effective. See, Rule 401 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. 401. 2 11. On September 25, 2007, the Cumberland Countv Prothonotary entered a judgment by default against the Commonwealth Defendants. 12. While Pa.R.C.P. 237.1 permits a prothonotary to enter judgment by default for failure to plead, a default judgment can only be entered if a responsive pleading has not been filed prior to its taking. SEPTA v. DMntonio, 618 A.2d 1182 (Pa. Cmwlth. 1992); See also, Pa.R.C.P. 1037(b). 13. The prothonotary lacks the authority to enter a default judgment where the defendant has filed its answer. DL4ntonio, supra. at 1184 citing Lippin v. Aliprando, 518 A.2d 856 (Pa. Super. 1986). 14. The entry of a default judgment by the prothonotary after an answer has been filed is patently defective and should be stricken. Allison v. Merris, 493 A.2d 738 (Pa. Super. 1985). 15. Since the record clearly reveals that the Commonwealth Defendants' Answer and New Matter was filed prior to the Plaintiff's praecipe for entry of a judgment by default, the default judgment entered by the Cumberland County Prothonotary on September 25, 2007, is defective on its face and should be stricken. WHEREFORE, the Commonwealth Defendants respectfully request this Honorable Court to enter an Order opening and vacating the default judgment of July 25, 2007, against the Commonwealth Defendants, and for any other relief this Court deems appropriate. Respectfully submitted, THOMAS W. CORBETT, JR. AT EY By: Steven C. Gould, I.D. #80156 Senior Deputy Attorney General Dated: October 2, 2007 3 Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants NOTICE TO PLEAD TO PLAINTIFF: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. Respectfully submitted, By: THOS TT, JR. Atto ev neral STEVEN C. GOULD, ID #80156 Senior Deputy Attorney General DATED: May 14, 2007 ! y Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG Plaintiff V. DONALD KELCHNER, individually and in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4031 COMMONWEALTH DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendants, Donald Kelchner, Eloise Magee, and Francis Kennedy (hereinafter collectively, "Commonwealth Defendants"), by and through the Office of the Attorney General, and files the following Answer and New Matter to Plaintiff's Complaint: I . Denied. The allegations set forth in Paragraph 1 of Plaintiffs Complaint, including are denied generally pursuant to 1029(e) of the Pennsylvania Rules of Civil Procedure. 1-3. Denied. The allegations set forth in these paragraphs of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of these paragraphs could be construed as factual allegations, said allegations are deemed to be denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Donald Kelchner is the Superintendent at SCI-Camp Hill. The remaining allegations set forth in Paragraph 6 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. By way of further answer, Paragraph 6 is denied generally pursuant to Pa.R.C.P. 1029(e). 7. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Eloise Magee is the Food Service Manager 2 at SCI-Camp Hill. The remaining allegations set forth in Paragraph 7 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that remaining allegations could be construed as factual allegations, it is specifically denied that the Commonwealth Defendant, Eloise Magee, is responsible for the welfare and safety of all inmates assigned to Kitchens 1 & 2. By way of further answer, the Commonwealth Defendants affirmatively aver that Commonwealth Defendant Eloise Magee has only those responsibilities prescribed to her as Administrator of the food service department at SCI-Camp Hill. By way of further answer, Paragraph 7 is denied generally pursuant to Pa.R.C.P. 1029(e). 8. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Francis Kennedy is the Food Service Manager 1 at SCI-Camp Hill. The remaining allegations set forth in Paragraph 8 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that remaining allegations could be construed as factual allegations, it is specifically denied that the Commonwealth Defendant, Francis Kennedy, is responsible for the welfare and safety of all inmates assigned to -Kitchens 2. By way of further answer, the Commonwealth Defendants affirmatively aver that Commonwealth Defendant Francis Kennedy has only those responsibilities prescribed to him as assistant to the Administrator of the food service department at SCI-Camp Hill. By way of further answer, Paragraph 8 is denied generally pursuant to Pa.R.C.P. 1029(e). 9. Denied. The allegations set forth in Paragraph 9 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 9 could be construed as factual allegations, it is specifically denied that the Commonwealth Defendants can be sued in their individual capacity. By way of further answer, Paragraph 9 is denied generally pursuant to Pa.R.C.P. 1029(e). 10. Admitted in part, denied in part. It is admitted only that on January 5, 2006, Plaintiff was cooking in Kitchen 2, at SCI-Camp Hill. As to the remaining allegations, after reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of these averments; and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 10 is denied generally pursuant to Pa.R.C.P. 1029(e). 11. Denied. The averments of this Paragraph 11 are deemed to be denied and at issue pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the kettle used at the time of the accident was antiquated and in constant need of repair. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the gears on the kettle used at the time of the accident were not functioning properly. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the proper strainers have not been used for a period of time and still are not being used. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that inmates cooks are force to use the kettles in an unsafe condition. Strict proof of same is demanded at the time of trial. 12. Denied. After reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 12 is denied generally pursuant to Pa.R.C.P. 1029(e). 13. Admitted in part, denied in part. It is admitted that Plaintiff was not using the kettle properly and caused this accident. It is specifically denied that Commonwealth Defendant Kennedy threatened to have Plaintiff written up with a misconduct report. As to the remaining allegations, after reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of the averment regarding a "kitchen 2 staff verified that Plaintiff was not at fault for causing the accident", and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 13 is denied generally pursuant to Pa.R.C.P. 1029(e). COUNT 1 NEGLIGENCE Plaintiff Long v. Defendants Magee and Kennedy 14. Denied. The Commonwealth Defendants incorporates herein by reference their answers to Paragraphs 1 through 13 of Plaintiffs Complaint as though fully set forth herein at length. The allegations set forth in Paragraph 14 of Plaintiff's Complaint, including subparagraphs "(a)" through "(d)", constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 14, including subparagraphs "(a)" through "(d).", could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants Magee and Kennedy were careless and negligent in any manner with respect to Plaintiffs alleged cause of action or that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiff s alleged injuries. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 14, including subparagraphs "(a)" through "(d)", are denied generally pursuant to Pa.R.C.P. 1029(e). , WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. COUNT 2 NEGLIGENCE Plaintiff Long v. Defendant Kelchner 15. Denied. The allegations set forth in Paragraph 15 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 15 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant Kelchner failed in his duties to care for inmates. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 15 is denied generally pursuant to Pa.R.C.P. 1029(e). 16. Denied. The allegations set forth in Paragraph 16 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 16 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants breached a duty of care owed to Plaintiff. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 16 is denied generally pursuant to Pa.R.C.P. 1029(e). 17. Denied. The allegations set forth in Paragfaph 17 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 17 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants breached a duty of care owed to Plaintiff. It is specifically denied that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiffs alleged injuries. Strict proof of same is demanded at the time of trial. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 17 is denied generally pursuant to Pa.R.C.P. 1029(e). 18. The allegations set forth in Paragraph 18 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 18 could be construed as factual allegations, it is specifically denied that Plaintiff suffered personal injury damage as a result of faulty equipment. Strict proof thereof is hereby demanded at the time of trial. By way of further answer, the Commonwealth Defendants affirmatively aver that kettle was in a safe operating condition for use by reasonable prudent operators. By way of further answer, Paragraph 18 is denied generally pursuant to Pa.R.C.P. 1029(e). WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. 19. It is admitted only that Plaintiff has used the prisoner grievance procedure available at SCI-Camp Hill, but denies, as a legal conclusion, whether Plaintiff has exhausted the administrative remedies procedures. By way of further answer, the Commonwealth Defendants state that Plaintiff's grievances and responses thereto speak for themselves. By way of further answer, Paragraph 19 is denied generally pursuant to Pa.R.C.P. 1029(e). 20. The Commonwealth Defendants incorporate herein by reference their answers to Paragraphs 1 through 19 of Plaintiff's Complaint as though fully set forth herein at length. 21. Denied. The allegations set forth in Paragraph 21 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 21 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 21 is denied generally pursuant to Pa.R.C.P. 1029(e). 22. Denied. The allegations set forth in Paragraph 22 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 22 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 22 is denied generally pursuant to Pa.R.C.P. 1029(e). 23. Denied. The allegations set forth in Paragraph 23 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 23 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 23 is denied generally pursuant to Pa.R.C.P. 1029(e). 24. Denied. The allegations set forth in Paragraph 24 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 24 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 24 is denied generally pursuant to Pa.R.C.P. 1029(e). 25. Denied. The allegations set forth in Paragraph 25 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 25 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 25 is denied generally pursuant to Pa.R.C.P. 1029(e). 26. Denied. The allegations set forth in Paragraph 26 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 26 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants were negligent in any manner with respect to Plaintiffs alleged cause of action or that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiffs alleged injuries. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 26 is denied generally pursuant to Pa.R.C.P. 1029(e). 27. The Commonwealth Defendants. respectfully request that judgment be entered in their favor and against Plaintiff. By way of further answer, the Commonwealth Defendants affirmatively state that the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. NEW MATTER The Commonwealth Defendants hereby raise the following New Matter: 28. The present action is controlled by the provisions of 1 Pa. C.S. §2310 and Act No. 1980-142, set forth in 42 Pa. C.S. §§8501, et seq., which Acts are incorporated herein and pled by reference. The Commonwealth Defendants assert all the defenses contained therein. 29. Liability on the part of the Commonwealth Defendants is specifically denied. 30. The Commonwealth Defendants are specifically entitled to the defenses set forth in 42 Pa. C.S.A. §8524, which section is incorporated herein and pled by reference. 31. The Commonwealth Defendants invoke any and all common law defenses available to it pursuant to 42 Pa. C.S. §8524. 32. The Commonwealth Defendants are immune from suit, and therefore Plaintiffs action is barred. 33. Plaintiff's Complaint fails to state a claim upon which relief can be granted against the Commonwealth Defendants. 34. This action is not within any of the exceptions to immunity as set forth in 42 Pa. C.S. §8522, and therefore is barred. 35. The Commonwealth Defendants did not have riotice, written or otherwise, of the allegedly dangerous condition, or in the alternative, if said notice was received, it was not received in sufficient time prior to the alleged accident for the Commonwealth Defendants to have corrected or to have warned the Plaintiff of the allegedly dangerous condition. 36. The Commonwealth Defendants is not liable for negligence related to discretionary acts, and therefore this action is barred. 37. The Commonwealth Defendants are not liable for the exercise or non-exercise of authorized discretion. 38. If the accident occurred as alleged, then the condition complained of did not cause the accident or the damages, injuries and/or losses complained of. 39. Should liability be found on the part of the Commonwealth Defendants, the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. 40. The Judicial Code at 42 Pa. C.S. §5522(a), which section is incorporated herein and pled by reference, provides that the Commonwealth and the Attorney General must have received written notice of intent to sue within six (6) months from the date the cause of action accrues. In the absence of such notice, this action is barred. 41. The alleged conduct of the Commonwealth Defendants, standing alone, did not cause the Plaintiff's alleged harm, therefore, the Commonwealth Defendants cannot be held liable for the Plaintiff's alleged damages and/or losses. 42. The Commonwealth Defendants aver that if negligence is found to exist on its part, said negligence was not the proximate cause of Plaintiff's alleged damages, injuries and/or losses. 43. If the accident occurred as alleged, then the condition complained of did not create a reasonably foreseeable risk of the accident or the injuries complained of. 44. The Commonwealth Defendants are absolved from liability because any negligence alleged on their part merely facilitated the Plaintiffs alleged damages, injuries and/or losses injuries. 45. There is no cause of action based upon a failure to inspect or improper inspection in that sovereign immunity has not been waived for such claims. 46. The causal negligence of the Plaintiff was greater than any negligence on the part of the Commonwealth Defendants, and Plaintiffs recovery is therefore barred, or, in the alternative, must be diminished in accordance with the Pennsylvania Comparative Negligence Act, pursuant to 42 Pa. C.S.A. §7102. 47. If Plaintiff sustained injuries as alleged, which injuries are specifically denied, then the injuries were caused by the failure of the said Plaintiff to exercise reasonable care under the circumstances, and Plaintiffs claims are entirely barred or reduced under the provisions of the Pennsylvania Comparative Negligence Statute, 42 Pa. C.S.A. §7102. 48. Plaintiff was contributorily negligent and/or failed to mitigate the claimed damages, thereby limiting and/or barring any recovery. 49. If the accident occurred as alleged, then the accident was caused by the negligent and careless conduct of, Plaintiff, which included the following: (a). Failing to use due care; (b). Removing the drain valve assemble; (c). Failing to use safety equipment; (d). Failing to follow operating and safety procedures; and (e). Failing to use the kitchen equipment properly. 50. Plaintiffs claim are barred by the Doctrine of Assumption of the Risk. 51. All affirmative defenses under Pa. R.C.P. §1030 are asserted and incorporated by reference as if set forth herein at length. 52. The Commonwealth Defendants are entitled to official immunity from the Plaintiff, s claims. 53. At all times relevant hereto any actions or inactions of the Commonwealth Defendants were done within the scope of their authority in good faith and without malice. 54. Any actions or inactions committed by the Commonwealth Defendants were done pursuant to duties required by statute, regulation or directive and therefore, the Commonwealth Defendants are immune. 55. The Commonwealth Defendants are immune from claims grounded upon negligent supervision or employment. 56. At all times relevant, Commonwealth Defendants acted with due care and diligence and in accordance with all applicable laws and policies. 57. Employees of an agency of the Commonwealth of Pennsylvania cannot be vicariously liable for the acts of others lower in the chain of command of the agency. 58. The Commonwealth Defendants' conduct was neither negligent nor careless. 59. The Commonwealth Defendants cannot be sued in their individual capacity. 60. If the kettle referred to in the Plaintiffs Complaint was not in the care, custody or control of the Commonwealth Defendants. 61. The Commonwealth Defendants are absolved from liability because the kettle referred to in the Plaintiffs Complaint merely facilitated the Plaintiff s alleged damages, injuries and/or losses injuries. 62. The alleged dangerous condition(s) does not "derive, originate from, or have as its source Commonwealth realty," and therefore, the Commonwealth Defendant is immune from suit. WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. Respectfully submitted, THOMAS W. CORBETT, JR. Attorney General By: Steven C. Gould, ID 5 6 Senior Deputy Attorney ?01 neral DATED: May 14, 2007 VERIFICATION I, FRANCIS KENNEDY, hereby verify that the foregoing statements are true and correct to the best of my knowledge, information and belief. To the extent that any of the foregoing statements are based upon an understanding or an application of law, I have relied upon counsel in making this verification. I understand that I am subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities for any, false statements knowingly made herein. DATED: j /'o / FRANCISMENNEDY CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Answer and New Matter to Plaintiffs Complaint upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOULD ID #80156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: May 14, 2007 Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG Plaintiff V. DONALD KELCHNER, individually and in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4031 NOTICE TO PLEAD TO PLAINTIFF: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. Respectfully submitted, By: THO?TT, JR. Atto ev al . STEVEN C. GOULD, ID #80156 Senior Deputy Attorney General DATED: May 14, 2007 Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants COMMONWEALTH DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendants, Donald Kelchner, Eloise Magee, and Francis Kennedy (hereinafter collectively, "Commonwealth Defendants"), by and through the Office of the Attorney General, and files the following Answer and New Matter to Plaintiff s Complaint: 1. Denied. The allegations set forth in Paragraph 1 of Plaintiffs Complaint, including are denied generally pursuant to 1029(e) of the Pennsylvania Rules of Civil Procedure. 1-3. Denied. The allegations set forth in these paragraphs of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of these paragraphs could be . a construed as factual allegations, said allegations are deemed to be denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Donald Kelchner is the Superintendent at SCI-Camp Hill. The remaining allegations set forth in Paragraph 6 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. By way of further answer, Paragraph 6 is denied generally pursuant to Pa.R.C.P. 1029(e). 7. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Eloise Magee is the Food Service Manager 2 at SCI-Camp Hill. The remaining allegations set forth in Paragraph 7 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that remaining allegations could be construed as factual allegations, it is specifically denied that the Commonwealth Defendant, Eloise Magee, is responsible for the welfare and safety of all inmates assigned to Kitchens 1 & 2. By way of further answer, the Commonwealth Defendants affirmatively aver that Commonwealth Defendant Eloise Magee has only those responsibilities prescribed to her as Administrator of the food service department at SCI-Camp Hill. By way of further answer, Paragraph 7 is denied generally pursuant to Pa.R.C.P. 1029(e). 8. Admitted in part, denied in part. It is admitted only that Commonwealth Defendant Francis Kennedy is the Food Service Manager 1 at SCI-Camp Hill. The remaining allegations set forth in Paragraph 8 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that remaining allegations could be construed as factual allegations, it is specifically denied that the Commonwealth Defendant, Francis Kennedy, is responsible for the welfare and safety of all inmates assigned to Kitchens 2. By way of further answer, the Commonwealth Defendants affirmatively aver that Commonwealth Defendant Francis Kennedy has only those responsibilities prescribed to him as assistant to the Administrator of the food service department at SCI-Camp Hill. By way of further answer, Paragraph 8 is denied generally pursuant to Pa.R.C.P. 1029(e). 9. Denied. The allegations set forth in Paragraph 9 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 9 could be construed as factual allegations, it is specifically denied that the Commonwealth Defendants can be sued in their individual capacity. By way of further answer, Paragraph 9 is denied generally pursuant to Pa.R.C.P. 1029(e). 10. Admitted in part, denied in part. It is admitted only that on January 5, 2006, Plaintiff was cooking in Kitchen 2, at SCI-Camp Hill. As to the remaining allegations, after reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of these averments; and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 10 is denied generally pursuant to Pa.R.C.P. 1029(e). 11. Denied. The averments of this Paragraph 11 are deemed to be denied and at issue pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the kettle used at the time of the accident was antiquated and in constant need of repair. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the gears on the kettle used at the time of the accident were not functioning properly. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that the proper strainers have not been used for a period of time and still are not being used. Strict proof of same is demanded at the time of trial. By way of further answer, it is specifically denied that inmates cooks are force to use the kettles in an unsafe condition. Strict proof of same is demanded at the time of trial. 12. Denied. After reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of these averments, and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 12 is denied generally pursuant to Pa.R.C.P. 1029(e). 13. Admitted in part, denied in part. It is admitted that Plaintiff was not using the kettle properly and caused this accident. It is specifically denied that Commonwealth Defendant Kennedy threatened to have Plaintiff written up with a misconduct report. As to the remaining allegations, after reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief as to the truth of the averment regarding a "kitchen 2 staff verified that Plaintiff was not at fault for causing the accident", and therefore, said averments are denied. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 13 is denied generally pursuant to Pa.R.C.P. 1029(e) COUNT 1 NEGLIGENCE Plaintiff Long v. Defendants Magee and Kennedy 14. Denied. The Commonwealth Defendants incorporates herein by reference their answers to Paragraphs 1 through 13 of Plaintiff's Complaint as though fully set forth herein at length. The allegations set forth in Paragraph 14 of Plaintiff's Complaint, including subparagraphs "(a)" through "(d)", constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 14, including subparagraphs "(a)" through "(d).", could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants Magee and Kennedy were careless and negligent in any manner with respect to Plaintiffs alleged cause of action or that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiff's alleged injuries. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 14, including subparagraphs "(a)" through "(d)", are denied generally pursuant to Pa.R.C.P. 1029(e). WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. COUNT 2 NEGLIGENCE Plaintiff Long v. Defendant Kelchner 15. Denied. The allegations set forth in Paragraph 15 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 15 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendant Kelchner failed in his duties to care for inmates. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 15 is denied generally pursuant to Pa.R.C.P. 1029(e). 16. Denied. The allegations set forth in Paragraph 16 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 16 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants breached a duty of care owed to Plaintiff. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 16 is denied generally pursuant to Pa.R.C.P. 1029(e). 17. Denied. The allegations set forth in Paragfaph 17 of Plaintiffs Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 17 could be construed as factual allegations, said allegations are specifically denied, and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants breached a duty of care owed to Plaintiff. It is specifically denied that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiffs alleged injuries. Strict proof of same is demanded at the time of trial. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 17 is denied generally pursuant to Pa.R.C.P. 1029(e). 18. The allegations set forth in Paragraph 18 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 18 could be construed as factual allegations, it is specifically denied that Plaintiff suffered personal injury damage as a result of faulty equipment. Strict proof thereof is hereby demanded at the time of trial. By way of further answer, the Commonwealth Defendants affirmatively aver that kettle was in a safe operating condition for use by reasonable prudent operators. By way of further answer, Paragraph 18 is denied generally pursuant to Pa.R.C.P. 1029(e). WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. 19. It is admitted only that Plaintiff has used the prisoner grievance procedure available at SCI-Camp Hill, but denies, as a legal conclusion, whether Plaintiff has exhausted the administrative remedies procedures. By way of further answer, the Commonwealth Defendants state that Plaintiff's grievances and responses thereto speak for themselves. By way of further answer, Paragraph 19 is denied generally pursuant to Pa.R.C.P. 1029(e). 20. The Commonwealth Defendants incorporate herein by reference their answers to Paragraphs 1 through 19 of Plaintiff s Complaint as though fully set forth herein at length. 21. Denied. The allegations set forth in Paragraph 21 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 21 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 21 is denied generally pursuant to Pa.R.C.P. 1029(e). 22. Denied. The allegations set forth in Paragraph 22 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 22 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 22 is denied generally pursuant to Pa.R.C.P. 1029(e). 23. Denied. The allegations set forth in Paragraph 23 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 23 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 23 is denied generally pursuant to Pa.R.C.P. 1029(e). 24. Denied. The allegations set forth in Paragraph 24 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 24 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 24 is denied generally pursuant to Pa.R.C.P. 1029(e). 25. Denied. The allegations set forth in Paragraph 25 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 25 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. By way of further answer, Paragraph 25 is denied generally pursuant to Pa.R.C.P. 1029(e). 26. Denied. The allegations set forth in Paragraph 26 of Plaintiffs Complaint, constitute conclusions of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 26 could be construed as factual allegations directed at the Commonwealth Defendants, said allegations are specifically denied and strict proof thereof is hereby demanded at the time of trial. In further answer, it is specifically denied that the Commonwealth Defendants were negligent in any manner with respect to Plaintiffs alleged cause of action or that the Commonwealth Defendants were a cause, cause and effect or proximate cause of Plaintiffs alleged injuries. Strict proof of same is demanded at the time of trial. By way of further answer, Paragraph 26 is denied generally pursuant to Pa.R.C.P. 1029(e). 27. The Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. By way of further answer, the Commonwealth Defendants affirmatively state that the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. NEW MATTER The Commonwealth Defendants hereby raise the following New Matter: 28. The present action is controlled by the provisions of 1 Pa. C.S. §2310 and Act No. 1980-142, set forth in 42 Pa. C.S. §§8501, et seq., which Acts are incorporated herein and pled by reference. The Commonwealth Defendants assert all the defenses contained therein. 29. Liability on the part of the Commonwealth Defendants is specifically denied. 30. The Commonwealth Defendants are specifically entitled to the defenses set forth in 42 Pa. C.S.A. §8524, which section is incorporated herein and pled by reference. 31. The Commonwealth Defendants invoke any and all common law defenses available to it pursuant to 42 Pa. C.S. §8524. 32. The Commonwealth Defendants are immune from suit, and therefore Plaintiff's action is barred. 33. Plaintiffs Complaint fails to state a claim upon which relief can be granted against the Commonwealth Defendants. 34. This action is not within any of the exceptions to immunity as set forth in 42 Pa. C.S. §8522, and therefore is barred. 35. The Commonwealth Defendants did not have notice, written or otherwise, of the allegedly dangerous condition, or in the alternative, if said notice was received, it was not received in sufficient time prior to the alleged accident for the Commonwealth Defendants to have corrected or to have warned the Plaintiff of the allegedly dangerous condition. 36. The Commonwealth Defendants is not liable for negligence related to discretionary acts, and therefore this action is barred. 37. The Commonwealth Defendants are not liable for the exercise or non-exercise of authorized discretion. 38. If the accident occurred as alleged, then the condition complained of did not cause the accident or the damages, injuries and/or losses complained of. 39. Should liability be found on the part of the Commonwealth Defendants, the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. 40. The Judicial Code at 42 Pa. C.S. §5522(a), which section is incorporated herein and pled by reference, provides that the Commonwealth and the Attorney General must have received written notice of intent to sue within six (6) months from the date the cause of action accrues. In the absence of such notice, this action is barred. 41. The alleged conduct of the Commonwealth Defendants, standing alone, did not cause the Plaintiffs alleged harm, therefore, the Commonwealth Defendants cannot be held liable for the Plaintiff s alleged damages and/or losses. 42. The Commonwealth Defendants aver that if negligence is found to exist on its part, said negligence was not the proximate cause of Plaintiffs alleged damages, injuries and/or losses. 43. If the accident occurred as alleged, then the condition complained of did not create a reasonably foreseeable risk of the accident or the injuries complained of. 44. The Commonwealth Defendants are absolved from liability because any negligence alleged on their part merely facilitated the Plaintiff s alleged damages, injuries and/or losses injuries. y 45. There is no cause of action based upon a failure to inspect or improper inspection in that sovereign immunity has not been waived for such claims. 46. The causal negligence of the Plaintiff was greater than any negligence on the part of the Commonwealth Defendants, and Plaintiffs recovery is therefore barred, or, in the alternative, must be diminished in accordance with the Pennsylvania Comparative Negligence Act, pursuant to 42 Pa. C.S.A. §7102. 47. If Plaintiff sustained injuries as alleged, which injuries are specifically denied, then the injuries were caused by the failure of the said Plaintiff to exercise reasonable care under the circumstances, and Plaintiffs claims are entirely barred or reduced under the provisions of the Pennsylvania Comparative Negligence Statute, 42 Pa. C.S.A. §7102. 48. Plaintiff was contributorily negligent and/or failed to mitigate the claimed damages, thereby limiting and/or barring any recovery. 49. If the accident occurred as alleged, then the accident was caused by the negligent and careless conduct of, Plaintiff, which included the following: (a). Failing to use due care; (b). Removing the drain valve assemble; (c). Failing to use safety equipment; (d). Failing to follow operating and safety procedures; and (e). Failing to use the kitchen equipment properly. 50. Plaintiffs claim are barred by the Doctrine of Assumption of the Risk. 51. All affirmative defenses under Pa. R.C.P. § 1030 are asserted and incorporated by reference as if set forth herein at length. it v t 52. The Commonwealth Defendants are entitled to official immunity from the Plaintiff s claims. 53. At all times relevant hereto any actions or inactions of the Commonwealth Defendants were done within the scope of their authority in good faith and without malice. 54. Any actions or inactions committed by the Commonwealth Defendants were done pursuant to duties required by statute, regulation or directive and therefore, the Commonwealth Defendants are immune. 55. The Commonwealth Defendants are immune from claims grounded upon negligent supervision or employment. 56. At all times relevant, Commonwealth Defendants acted with due care and diligence and in accordance with all applicable laws and policies. 57. Employees of an agency of the Commonwealth of Pennsylvania cannot be vicariously liable for the acts of others lower in the chain of command of the agency. 58. The Commonwealth Defendants' conduct was neither negligent nor careless. 59. The Commonwealth Defendants cannot be sued in their individual capacity. 60. If the kettle referred to in the Plaintiffs Complaint was not in the care, custody or control of the Commonwealth Defendants. 61. The Commonwealth Defendants are absolved from liability because the kettle referred to in the Plaintiffs Complaint merely facilitated the Plaintiff s alleged damages, injuries and/or losses injuries. 62. The alleged dangerous condition(s) does not "derive, originate from, or have as its source Commonwealth realty," and therefore, the Commonwealth Defendant is immune from suit. , WHEREFORE, the Commonwealth Defendants, respectfully request that judgment be entered in their favor and against Plaintiff. Respectfully submitted, THOMAS W. CORBETT, JR. Attorney General By: Steven C. Gould, ID 0156 Senior Deputy Attorney General DATED: May 14, 2007 r ? VERIFICATION I, FRANCIS KENNEDY, hereby verify that the foregoing statements are true and correct to the best of my knowledge, information and belief. To the extent that any of the foregoing statements are based upon an understanding or an application of law, I have relied upon counsel in making this verification. I understand that I am subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities for any false statements knowingly made herein. DATED: 5 FRANCISNENNEDY Y ? ? y CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Answer and New Matter to Plaintiff s Complaint upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOULD Senior Deputy Attorni Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial ID #80156 General DATED: May 14, 2007 V • CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Petition Pursuant to Rule 237.3 to Open Default Judgment upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. BOX 200 Camp Hill, PA 17001-0200 (Pro-se) By: - STEVEN C. GOULD, ID #80156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: October 2, 2007 r BRYAN LONG, PLAINTIFF V. DONALD KELCHNER, individually and in his official capacity as Superintendent of the State Correctional : Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-4031 CIVIL TERM ORDER OF COURT AND NOW, this 1/ day of October, 2007, the timely motion of defendants to open a default judgment entered by the Prothonotary on September 25, 2007, IS GRANTED.' The default judgment, IS STRICKEN. By the Court, Edgar B. Bayley,, J. ' The default judgment is stricken, rather than opened, because the defect in its entry is clear on the face of the record. Defendants filed an answer and new matter, containing a certificate of service, on May 16, 2007. On September 25, 2007, a default judgment was entered on the praecipe of plaintiff asserting that defendants failed to plead to the complaint "within the required time" in Pa. Rule of Civil Procedure 1037(b). The default judgment must be stricken because "Once a responsive pleading is filed, even if untimely, a default judgment cannot thereafter be entered because the responding party if no longer in default. State Farm Insurance Company v. Barton, 905 A.2d 993 (Pa. Super. 2006). Y? CC) Ift 06-4031 CIVIL TERM Bryan Long, FX-6543, Pro se SCI Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 Steven C. Gould, Esquire For Defendants sal -2- 06F I £5 /Y2 ?P- L LL ev y167 Bryan Long Fx-6543 SCI- Camp Hill P.O.Box 200 Camp Hill, Pa. 17001 December 10, 2007 Office of the Prohtonotary of Cumberland County Curtis R. Long, Prohtonotary Civil Division Cumberland County Courthouse One Courthouse Square Carlisle, Pa. 17013 RE: MOTION FOR EXTENSION OF TIME AND MOTION TO COMPEL IN THE COURT OF COMMON PLEAS OF CUMBRELAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, Case No. 064031 V. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants, Dear Mr. Long: Complaint Civil Action-Law (Personal Injury) Enclosed are copies of my Motion for an Extension of Time to Respond and a Motion to Compel, I have to yet receive any records or copies of the reports that I have requested. I also would like a copy of the Local Court Rules in Civil Procedures. I thank you for your time and assistance in this matter. Res ectfully sub tted, ry ng FX- 543 SCI-Camp Hill IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, V. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants, Case No. 064031 COMPLAINT Civil Action-Law (Personal Injury) MOTION FOR AN EXTENSION OF TIME TO RESPOND TO DEFENDANTS PRODUCTION OF DOCUMENTS, INTERROGATORIES AND NEW MATTERS AND NOW, comes Plaintiff, Bryan Long, Pro-Se, who hereby moves this Court for an Extension of Time and in support thereof represent: 1. On or about March, 2007 Plaintiff re-instated a Civil Action Complaint within this court naming the above-entitled individuals as Defendants 2. On March 30, 2007 the Defendant's were served via the Sheriff's Office with a copy of the Plaintiffs Complaint. 3. On or about May 17, 2007 the Defendant's served Plaintiff with a copy of the following documents: Request for Production of Documents, Expert Interrogatories, and Answer and New Matter to Plaintiff's complaint, and provided Plaintiff with twenty (20) days to respond to said documents. 4. The documents requested by the Defendant's which expected Plaintiff to provide are within the possession of the Department of Corrections, specifically, Medical Department. 5. On May 19, 2007 Plaintiff issued a request slip to staff (Medical Department) at SCI- Camp Hill, requesting copies of his medical records and pictures to attach as required to his answer to the Defendants documents. Simultaneously, Plaintiff issued a request to staff (Security) on May 19, V. 2007 requesting copies of the investigation conducted regarding the incident, which gave rise to this instant litigation.. 6. To no avail, Medical and Security failed to respond to Plaintiff's request and/or provide Plaintiff with necessary documents. 7. Again, on May 24, 2007 Plaintiff issued another request to Staff, this time to one, Teresa Law, CHCA and the other to Security Captain seeking to obtain for the second time copies of his medical records and the investigation report, to no avail. Each was ignored. 8. In order for Plaintiff to comply and complete as well as answer the Defendants pleadings, he is in need of the documents haven been requested through individuals. 9. Note should be taken that Plaintiff's excuse for failing to respond to the Defendant's pleadings are reasonably excusable since he has no control over the circumstances. WHEREFORE, for the reasons indicated above and obvious others, Plaintiff requests that this Honorable Court grant him instant motion and grant an Extension of Time. Date /Z-oeC-07 Respectfully su itted, '. ry ng FX-6543 SCI-Camp Hill P.O. Box 200 Camp Hill, Pa. 17001 ?r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, V. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants, Case No. 064031 COMPLAINT Civil Action-Law (Personal Injury) MOTION TO COMPEL AND NOW, comes Plaintiff, Bryan Long, Pro-Se, who hereby moves this Honorable Court for a Compelling Order ordering Teresa Law, CHCA and Security Captain at SCI-Camp Hill, to provide Plaintiff with requested documents, and in support thereof represents: 1. On or about March 2007, Plaintiff filed a Civil Action Complaint with in this Honorable Court naming the above-entitled individuals as Defendants 2. On March 30, 2007, the Defendant's were served via Sheriff with a copy of the Plaintiffs Complaint. 3. On or about May 17, 2007, the Defendant's served upon the Plaintiff with a copy of the following documents: Request for Production of Documents, Expert Interrogatories, Answer and New Matters to Plaintiffs Complaint. 4. The documents requested by Defendant's which Plaintiff is expected to provide to the Defendant's, are within the Department Of Corrections, specifically Medical and Security. r_ . 5. On two (2) separate occasions, Plaintiff issued requests upon Medical and Security seeking to obtain copies of his medical records and investigation report, but to no avail. Plaintiff received no response; this indicated that they are denying Plaintiff access to the requested documents. WHEREFORE, for the reasons indicated above, and obvious others Plaintiff respectfully request that this Honorable Court issue an Order upon Teresa Law, CHCA, SCI-Camp Hill, and Security Captain, SCI-Camp Hill. Compelling them to supply Plaintiff with copies of his medical records, and the investigation report for the incident which took place on January 5, 2006, at SCI-Camp Hill involving Plaintiff, Bryan Long. Date c 7 Respectfully submitted, fsryan ng FX-6 43 ` SCI-Camp Hill P.O.Box 200 Camp Hill, Pa. 17001 . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, Case No. 064031 V. Complaint Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Civil Action-Law Defendants, (Personal Injury) SWORN VERIFICATION I, Bryan Long; Inmate Number FX-6543, swear and/or affirm and verify that the statements made in the foregoing Motion are true and correct to the best of my knowledge, information and/or belief under penalties of perjury under 18 Pa. C.S.A §.4909, relating to unworn falsifications to Authorities. Date I Z-10--c-7 Respectfully submitted, I zz 'f- ? -, - - FX6543 f ng SCI-Camp Hill P.O.Box 200 Camp Hill, Pa. 17001 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Rrcran 1 ,??R Plaintiff, Case No. 06-4031 V. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants, : Complaint Civil Action-Law (Personal Injury) CERTIFICATE OF SERVICE i herby certify that i am on tins tidy serving the rimnan s with Lms 1401 IN r01M tuv EXTENSION OF TIME TO RESPOND, and MOTION TO COMPEL, upon the persons and in the manner indicated below: CRFvICF. RV FIRST CLASS MATT , POSTAGE PREPAID ADDRESSED AS FOLLOWED Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 SCI- Camp Hill P.O. Box 8837 2500 Lisburn Rd. Camp Hill, Pa. 17001-8837 Steven Gould, ID # 80156 Senior Deputy Attorney General Torts Litigation Section 15 th Floor, Strawberry Square Harrisburg, Pa. 17120 T??tA• ? Z - cr ? 7 R??' r ryan ng FX65 3 SCI- Camp Hill ?}'?„ q-r`? C • : C"3t ? ? ?? ??.; . ._.t ?- -?v ; ? f?' ?: , .?' ..? ?= Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS : KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants : COMMONWEALTH DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO RESPOND TO THE COMMONWEALTH DEFENDANTS' REQUEST FOR PRODUCTION OF DOCUMENTS INTERROGATORIES AND NEW MATTERS AND NOW, comes the Defendants, Donald Kelchner, Eloise Magee, and Francis Kennedy (hereinafter collectively, "Commonwealth Defendants"), by and through their attorney, Steven C. Gould, Senior Deputy Attorney General, and hereby files the following Response in opposition to Plaintiffs Motion for an Extension of time to respond to the Commonwealth Defendants' Request for Production of Documents, Interrogatories and New Matter, as follows: 1. Denied, based upon information and belief, since the Complaint served upon the Commonwealth Defendants does not appear to be reinstated by the Prothonotary. 2. The allegations set forth in Paragraph 2 of Plaintiff's Motion for Extension constitute conclusions of law to which no responsive pleading is required pursuant to Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 2 could be construed as factual allegations, it is admitted only that according to the Cumberland County Sheriff's Affidavit of Return of Service, Plaintiff's Complaint was served upon Cheryl Gee, Superintendent's Secretary at SCI-Camp Hill on March 30, 2007. The Commonwealth Defendants affirmatively state that Plaintiff did not effectuate proper service on the Commonwealth Defendants since he failed to served the Office of Attorney General with Original process as required by the Pennsylvania Code, 37 Pa. Code §111.1 and Pa.R.C.P. §422(a). 3. Admitted in part, denied in part. It is admitted only that the Commonwealth Defendants served Plaintiff with their Answer and New Matter to Plaintiff's Complaint, Request for Production of Documents, and Expert Interrogatories. It is denied that Plaintiff was provided with twenty (20) days to respond to the written discovery. By way of further response, Plaintiff was required to respond to the written discovery in a timely and appropriate manner, in accordance with the Pennsylvania Rules of Civil Procedure. 4. Denied. The Commonwealth Defendants requested only the production of documents in "Plaintiffs custody or control ... to which Plaintiff has or have had access". See, Request for Production of Documents of the Commonwealth Defendants Directed to Plaintiff, attached hereto as Exhibit "A". By way of further response, the Commonwealth Defendants affirmatively state that if Plaintiff does not have custody or control of the requested documents, he should respond appropriately. i 5. Denied. After reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief that Plaintiff requested copies of his medical records, pictures and/or investigation records, and therefore, said averments are denied. Strict proof of same is hereby demanded. By way of further response, the Commonwealth Defendants affirmatively state that requests for medical records, pictures, and/or investigation records should be made in accordance with Rule 4009 et seq., of the Pennsylvania Rules of Civil Procedure. 6. Denied. After reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief that Plaintiff requested copies of his medical records, pictures and/or investigation records, and therefore, said averments are denied. Strict proof of same is hereby demanded. By way of further response, the Commonwealth Defendants affirmatively state that requests for medical records, pictures, and/or investigation records should be made in accordance with Rule 4009 et seq., of the Pennsylvania Rules of Civil Procedure. 7. Denied. After reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief that Plaintiff requested copies of his medical records and/or investigation reports, and therefore, said averments are denied. Strict proof of same is hereby demanded. By way of further response, the Commonwealth Defendants affirmatively state that requests for medical records, pictures, and/or investigation records should be made in accordance with Rule 4009 et seq., of the Pennsylvania Rules of Civil Procedure. 8. Denied. It is specifically denied that in order for Plaintiff to respond to the Commonwealth Defendants' New Matter, Request for Production of Documents, and Expert Interrogatories he needs documents from the Commonwealth Defendants. Strict proof of same is hereby demanded. 9. Denied. It is specifically denied that Plaintiff's failure to respond to the Commonwealth Defendants' New Matter is "reasonably excusable since he has no control over the circumstances." By way of further response, the Commonwealth Defendants affirmatively state that Plaintiff does not needs documents from the Commonwealth Defendants to respond to the Commonwealth Defendants' Answer and New Matter. By way of further response, the Commonwealth Defendants affirmatively state that it has been over two hundred and twenty (220) days since the Commonwealth Defendants filed their Answer and New Matter and Plaintiff still has not filed a response. WHEREFORE, the Commonwealth Defendants respectfully request that this Honorable Court deny Plaintiff's Motion for an Extension of time and Order Plaintiff to respond to the Commonwealth Defendants' Request for Production of Documents and Expert Interrogatories within thirty (30) days or suffer sanctions. Respectfully submitted, Senior Deputy Attorney THOMAS W. CORBETT, JR. Attorne neral By: Steven C. Gould, I. . #801 Gene DATED: December 24, 2007 e)(?, ?J A V Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill : Defendants REQUEST FOR PRODUCTION OF DOCUMENTS OF THE COMMONWEALTH DEFENDANTS DIRECTED TO PLAINTIFF TO: PLAINTIFF, BRYAN LONG FX-6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 THIS IS A REQUEST FOR PRODUCTION OF DOCUMENTS AND TANGIBLE ITEMS. You must respond in a timely and appropriate manner, in accordance with Rule 4009 et seq., of the Pennsylvania Rules of Civil Procedure. The term "document" as used herein, means the original and all copies of any written, printed, typed, or other graphic matter of any kind or nature and any other tangible thing in Plaintiff's custody or control, including but limited to, documents as defined by Rule 4009.1 writings, drawings, graphs, charts, photographs, electronically created data, and other compilations of data from which information can be obtained and/or translated, however produced or reproduced, to which Plaintiff has or have had access. Where the words "incident", "accident", and/or "occurrence", are utilized herein, they refer to the event described in Plaintiff's Complaint. This Request for Production shall be deemed continuing in nature, in accordance with Rule 4007.4, as amended, of Pennsylvania Rules of Civil Procedure. Respectfully submitted, Steven C. Gould, I.D. # 156 Senior Deputy Attorn y General Dated: May 14, 2007 REQUEST 1. All photographs or videos showing, representing or purporting to show any of the vehicles, instrumentalities, locales, persons, property, injuries and any and all other matters related to the subject matter of this litigation. RESPONSE: 2. All diagrams, sketches, drawings, plans, measurements or blueprints showing, representing or purporting to show any of the vehicles, instrumentalities, locales, persons, property, injuries or other matter involved in the accident which form the basis of Plaintiff's Complaint or cause of action. RESPONSE: P 3. All statements, including, but not restricted to, signed statements, transcripts of recorded statements or interviews, or any memoranda or summary of transcripts of statements or interviews of any party, person or witness, or their agents or employees, who have any knowledge or information of the facts concerning or pertaining to the accident, the subject matter, the claims, the damages, injuries, or any other matter involved in or pertaining to the subject matter of this litigation. RESPONSE: 4. All expert opinions, expert reports, expert summaries or other writings, and curriculum vitae as to each such expert or experts which relate to the subject matter of this litigation. RESPONSE: 5. Subject only to the provisions of Rule 4003.3, of the Pennsylvania Rules of Civil Procedure, all documents of any investigation of the subject matter of this litigation. RESPONSE: 6. Subject only to the provisions of Rule 4003.3 of the Pennsylvania Rules of Civil Procedure 4003.3, all insurance documents for the subject matter of this litigation. RESPONSE: 7. All documents relating in any way to all injuries, damages and losses sustained by Plaintiff. This should include, but not be limited to, bills, invoices, medical reports, medical records, receipts, hospital records, charts and x-rays, wage and employment information. RESPONSE: 8. Any release or other agreement between any person or entities given or obtained in regard to the subject accident. RESPONSE: 9. occurrence. RESPONSE: 10. and/or evidence at any deposition or at trial. Any and all documents regarding any lien(s) against any party as a result of this All documents or exhibits which Plaintiff intends to offer or identify as exhibits RESPONSE: 11. All documents, including but not limited to, advertisements, circulars, brochures, pamphlets, leaflets, writings and other such promotional items any expert witness Plaintiff has retained for use at trial. RESPONSE: 12. All financial records concerning the Plaintiff including but not limited to, any and all tax returns, W-Ts, and other tax filings, employment records, and wage or salary information, for three years prior to the date of Plaintiff's incarceration. RESPONSE: 13. All documents which would support any claims for injuries/damages averred in Plaintiff's Complaint. RESPONSE: 14. All documents which pertain to any psychiatric or psychological treatment or care, therapy or counseling pertaining in any way to the subject matter of this litigation. RESPONSE: 15. All names and addresses of potential witnesses which the Plaintiff expects to call to testify in this case. RESPONSE: Respectfully submitted, TOM CORBETT ATTO GE] By; n C. Gould, I.D` #80156 Senior Deputy Attorney Genf Dated: May 14, 2007 i CERTIFICATE OF SERVICE I hereby certify that I am this day serving Request for Production of Documents of the Commonwealth Defendant directed to Plaintiff upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. BOX 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOULD 11 ID #8 156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: May 14, 2007 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Response in Opposition to Plaintiffs Motion for an extension of time to respond to the Commonwealth Defendants' Request for Production of Documents, Interrogatories and New Matter upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. BOX 200 Camp Hill, PA 17001-0200 (Pro-se) By: N C. GOULD, ID #80156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: December 24, 2007 O -TI r ? 73 C 3 -77 i ';La X7 D Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG V. Plaintiff DONALD KELCHNER, individually and in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4031 COMMONWEALTH DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL AND NOW, comes the Defendants, Donald Kelchner, Eloise Magee, and Francis Kennedy (hereinafter collectively, "Commonwealth Defendants"), by and through their attorney, Steven C. Gould, Senior Deputy Attorney General, and hereby files the following Response in Opposition to Plaintiff's Motion to Compel, as follows: 1. Denied, based upon information and belief. 2. The allegations set forth in Paragraph 2 of Plaintiff's Motion to Compel constitute conclusions of law to which no responsive pleading is required pursuant to Pennsylvania Rules of Civil Procedure. To the extent that portions of Paragraph 2 could be construed as factual allegations, it is admitted only that according to the Cumberland County Sheriff's Affidavit of Return of Service, Plaintiff's Complaint was served upon Cheryl Gee, Superintendent's Secretary at SCI-Camp Hill on March 30, 2007. The Commonwealth Defendants affirmatively state that Plaintiff did not effectuate proper service on the Commonwealth Defendants since he failed to served the Office of Attorney General with Original process as required by the Pennsylvania Code, 37 Pa. Code § 111.1 and Pa.R.C.P. §422(a). 3. Admitted only that the Commonwealth Defendants served Plaintiff with their Answer and New Matter to Plaintiff's Complaint and written discovery. The Commonwealth Defendants believe, and therefore aver, that service was made on May 14, 2007. 4. Denied. The Commonwealth Defendants requested only the production of documents in "Plaintiff's custody or control ... to which Plaintiff has or have had access". See, Request for Production of Documents of the Commonwealth Defendants Directed to Plaintiff, attached hereto as Exhibit "A". By way of further response, the Commonwealth Defendants affirmatively state that if Plaintiff does not have custody or control of the requested documents, he should respond appropriately. 5. Denied. After reasonable investigation, the Commonwealth Defendants are without sufficient knowledge or information to form a belief that Plaintiff requested copies of his medical records and investigation report, and therefore, said averments are denied. Strict proof of same is hereby demanded. By way of further response, the Commonwealth Defendants affirmatively state that requests for medical records and/or investigation reports should be made in accordance with Rule 4009 et seq., of the Pennsylvania Rules of Civil Procedure. WHEREFORE, the Commonwealth Defendants respectfully request that this Honorable Court deny Plaintiff's Motion to Compel, and Order Plaintiff to respond to the Commonwealth Defendants' Request for Production of Documents and Expert Interrogatories within thirty (30) days or suffer sanctions. By: Respectfully submitted, THOMAS W. CORBETT, JR. Attorney General 6 Steven C. Gould, I.D. #8Verne Senior Deputy Attorney DATED: December 24, 2007 xl.?b;+ A a Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants REQUEST FOR PRODUCTION OF DOCUMENTS OF THE COMMONWEALTH DEFENDANTS DIRECTED TO PLAINTIFF TO: PLAINTIFF, BRYAN LONG FX-6543 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 THIS IS A REQUEST FOR PRODUCTION OF DOCUMENTS AND TANGIBLE ITEMS. You must respond in a timely and appropriate manner, in accordance with Rule 4009 et seq., of the Pennsylvania Rules of Civil Procedure. The term "document" as used herein, means the original and all copies of any written, printed, typed, or other graphic matter of any kind or nature and any other tangible thing in Plaintiff's custody or control, including but limited to, documents as defined by Rule 4009.1 writings, drawings, graphs, charts, photographs, electronically created data, and other compilations of data from which information can be obtained and/or translated, however produced or reproduced, to which Plaintiff has or have had access. Where the words "incident", "accident and/or "occurrence", are utilized herein, they refer to the event described in Plaintiff's Complaint. This Request for Production shall be deemed continuing in nature, in accordance with Rule 4007.4, as amended, of Pennsylvania Rules of Civil Procedure. Respectfully submitted, TOM-IC?ORBETT Steven C. Gould, I.D. #4156 Senior Deputy Attorn y General Dated: May 14, 2007 REQUEST 1. All photographs or videos showing, representing or purporting to show any of the vehicles, instrumentalities, locales, persons, property, injuries and any and all other matters related to the subject matter of this litigation. RESPONSE: 2. All diagrams, sketches, drawings, plans, measurements or blueprints showing, representing or purporting to show any of the vehicles, instrumentalities, locales, persons, property, injuries or other matter involved in the accident which form the basis of Plaintiffs Complaint or cause of action. RESPONSE: 3. All statements, including, but not restricted to, signed statements, transcripts of recorded statements or interviews, or any memoranda or summary of transcripts of statements or interviews of any party, person or witness, or their agents or employees, who have any knowledge or information of the facts concerning or pertaining to the accident, the subject matter, the claims, the damages, injuries, or any other matter involved in or pertaining to the subject matter of this litigation. RESPONSE: 4. All expert opinions, expert reports, expert summaries or other writings, and curriculum vitae as to each such expert or experts which relate to the subject matter of this litigation. RESPONSE: Subject only to the provisions of Rule 4003.3, of the Pennsylvania Rules of Civil Procedure, all documents of any investigation of the subject matter of this litigation. RESPONSE: 6. Subject only to the provisions of Rule 4003.3 of the Pennsylvania Rules of Civil Procedure 4003.3, all insurance documents for the subject matter of this litigation. RESPONSE: 7. All documents relating in any way to all injuries, damages and losses sustained by Plaintiff. This should include, but not be limited to, bills, invoices, medical reports, medical records, receipts, hospital records, charts and x-rays, wage and employment information. RESPONSE: 8. Any release or other agreement between any person or entities given or obtained in regard to the subject accident. RESPONSE: 9. Any and all documents regarding any lien(s) against any party as a result of this occurrence. RESPONSE: 10. All documents or exhibits which Plaintiff intends to offer or identify as exhibits and/or evidence at any deposition or at trial. RESPONSE: 11. All documents, including but not limited to, advertisements, circulars, brochures, pamphlets, leaflets, writings and other such promotional items any expert witness Plaintiff has retained for use at trial. RESPONSE: 12. All financial records concerning the Plaintiff including but not limited to, any and all tax returns, W-2's, and other tax filings, employment records, and wage or salary information, for three years prior to the date of Plaintiff s incarceration. RESPONSE: 13. All documents which would support any claims for injuries/damages averred in Plaintiff s Complaint. RESPONSE: 14. All documents which pertain to any psychiatric or psychological treatment or care, therapy or counseling pertaining in any way to the subject matter of this litigation. RESPONSE: 15. All names and addresses of potential witnesses which the Plaintiff expects to call to testify in this case. RESPONSE: Respectfully submitted, TOM CORBETT ATTORNF;Y GE By; Setfn C. Gould, I.IJ. 480156 Senior Deputy Attorney Gen6 Dated: May 14, 2007 CERTIFICATE OF SERVICE I hereby certify that I am this day serving Request for Production of Documents of the Commonwealth Defendant directed to Plaintiff upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOULD ID #8 156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: May 14, 2007 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Response in Opposition to Plaintiffs Motion to Compel upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOUL , ID # 156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: December 24, 2007 _Tj C"3 rn r G -n --4 _T -n r'ri IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BRYAN LONG, Plaintiff Case No. 06-4031 Vs. COMPLAINT DONALD KELCHNER, Superintendent ELOISE MAGEE, Food Service Manager 2 FRANCIS KENNEDY, Food Service Manager 1 Civil Action-Law Defendants (Personal Injury) PLAINTIFFS RESPONSE TO DEFENDANTS IN OPPOSITION TO PLAINTIFFS PLEADINGS AND NOW, comes Plaintiff, BRYAN LONG, Pro-Se, who hereby submits his response to the Defendants response to the Defendants response in opposition to his pleadings, and in support thereof represents: 1. Plaintiffs complaint has been reinstated by the Prothonotary and that the Civil Entry Docket sheet can verify this allegation upon research by this Honorable Court. So to speak, the Defendants allegations must be construed as inaccurate. 2. Since the error in failing to serve the Attorney General, appropriate measures has been taken, and the Attorney General has been served with a copy of the Plaintiffs complaint. 3. The Plaintiff was hindered by the Department Of Corrections, to submit his response regarding discovery given that the DOC would not release any information required to submit with his response. With that being said, it was the fault of the DOC, and not the Plaintiff. 4. Though true in part that the Plaintiff may obtain access to the documents from the DOC upon request, the DOC in this case refused to release any documents whatsoever to the Plaintiff, and that, that was Plaintiffs purpose of filing a motion to Compel to the DOC, to release necessary documents so that he could respond to the Defendants production of documents, but to date the DOC refuses to release any and all documents to Plaintiff, depriving him from defending him-self in this proceeding. 5. Plaintiff has submitted numerous requests upon DOC staff to provide him access to his medical record, and the investigative report in this case so that he may supply these documents within his production of documents and discovery, but to his great dismay, each request was left unaddressed depriving Plaintiff access to the courts. WHEREFORE, for the reasons enumerated above and obvious others, Plaintiff respectfully requests that this Honorable Court deny the Defendants response in opposing, and grant the Plaintiffs Motion for an Extension of Time, request for production of documents, and Motion to Compel. Respectfully Submi d, Date:-/ " 7"0?' B an ng, ro-S FX-65 3 SCI-Camp Hill P.O.Box 200 Camp Hill, Pa. 17001 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of Plaintiffs response to the Defendant's response in opposition was served upon all parties in this matter, and service was made by means of U.S.P.S. prepaid postage. Date: / J 6 ryan ng, o-S FX-6543 SCI-Camp Hill P.O.Box 200 Camp Hill, Pa. 17001 ' cc _ _- UG - L10,31 fir -r Top-, 4?1- opp?k -Co (e K °` _? l,Z W.- C-E- IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, V. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants, Case No. 064031 Complaint Civil Action-Law (Personal Injury) NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 BRYAN LONG, Plaintiff, intends to serve a subpoena identical to the one that is attached to this notice. 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: ?Z_ © 9 iSi FX-6543 SCI-Camp Hill P.O.Box 200 Camp Hill, Pa. 17001 CERTIFICATE OF SERVICE I, Bryan Long hereby certify a true and correct copy of the Plaintiff's Notice of Intent to Serve a Subpoena was duly served upon the following and in the manner indicated below by placing the same in the custody of the United States Postal Service: FIRST CLASS MAIL Postage prepaid to: Steven C. Gould, Esquire Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Office of the Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Eloise Magee, CFSM 2 SCI-Camp Hill P.O. Box 8837 2500 Lisburn Rd. Camp Hill, PA 17001-8837 Donald Kelchner, Superindent SCI-CampHill P.O. Box 8837 2500 Lisburn Rd. CampHill, PA 17001-8837 Dated - 2. Q? Francis Kennedy, CFSM 1 SCI-Camp Hill P.O. Box 8837 2500 Lisburn Rd. CampHill, PA 17001-8837 By: 15 rya Long F 6543 SCI Camp Hil PA 1-58 P.O. Box 200 CampHill, PA 17001-0200 , ?= stir ?a . V9 >ti Steven C. Gould, Senior Deputy Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 Attorney General BRYAN LONG Plaintiff V. DONALD K_ELCHNEF, individually and in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 06-4031 OBJECTION TO PLAINTIFF'S NOTICE OF INTENT TO SERVE SUBPOENA, OR IN THE ALTERNATIVE, OBJECTION TO SUBPOENA PURSUANT TO RULE 4009.21 The Commonwealth Defendants object to Plaintiff's Notice of Intent to Serve Subpoena, or in the alternative, objects to the proposed Subpoena, pursuant to Rule 4009.21, for the following reasons: 1. Pursuant to Rule 4009.2 1, a copy of the proposed subpoena to be served shall be attached to the notice of intent. Plaintiff failed to attached copies of the subpoenas, and therefore, Plaintiff failed to comply with Rule 4009.21. Respectfully submitted, DATED: September 22, 2008 By: Senior Deputy Attorney General THOM W. CORBETT, JR. AT EY RAL even Could I. . #80156 1 ?. CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Objection to Plaintiffs Notice of Intent to Serve Subpoena, or in the alternative, objection to the proposed Subpoena, Pursuant to Rule 4009.21 upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOULD, ID #80156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: September 22, 2008 ° n C _, ,: - ? ._ -;-, .'?- r;? c?? -? ..,? .s? Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 BRYAN LONG Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONALD KELCHNER, individually and No. 06-4031 in his official capacity as Superintendent of the State Correctional Institution at Camp Hill; ELOISE MAGEE, individually and in her official capacity as Corrections Food Service Manager 2 of the State Correctional Institution at Camp Hill; FRANCIS KENNEDY, individually and in his official capacity as Corrections Food Service Manager 1 of the State Correctional Institution at Camp Hill Defendants OBJECTION TO PLAINTIFF'S NOTICE OF INTENT TO SERVE SUBPOENA, OR IN THE ALTERNATIVE. OBJECTION TO SUBPOENA PURSUANT TO RULE 4009.21 The Commonwealth Defendants object to Plaintiff's Notice of Intent to Serve Subpoena, or in the alternative, objects to the proposed Subpoena, pursuant to Rule 4009.21, for the following reasons: 1. Rule 234. 1, of the Pennsylvania Rules of Civil Procedure, provides that a subpoena is an order of the court and can only be used to command the production of documents at (1) a trial or hearing in an action or proceeding pending in the court, or (2) the taking of a deposition in an action or proceeding pending in the court. See, Pa.R.C.P. 234.1. The subpoena attached to Plaintiff's Notice of Intent to Serve a Subpoena is not a Court issued subpoena and does not command the production of documents at an authorized proceeding. ,r. 2. Pursuant to Rule 4009. 1, of the Pennsylvania Rules of Civil Procedure, the procedure to obtain the production of documents from a party is governed by Rules 4009.11 and 4009.12. A subpoena is to be used upon a person not a party. See, Pa.R.C.P. 4009.1. The proper procedure for Plaintiff to obtain documents from the Department of Correction is by a Request Upon a Party for Production of Documents and Things, pursuant to Rule 4009. 1, not by a subpoena. Respectfully submitted, By: DATED: February 25, 2009 Steven C. Gould, Senior Deputy A- 2 THOMAS W. CORBETT, JR. ATTORNEY GENERAL CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Objection to Plaintiffs Notice of Intent to Serve Subpoena, or in the alternative, objection to the proposed Subpoena, Pursuant to Rule 4009.21 upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Bryan Long FX-6543 S.C.I. Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 (Pro-se) By: STEVEN C. GOULD, ID0156 Senior Deputy Attorney eneral Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: February 25, 2009 C? _? _ ..c:s -rg ---t ?•? t r ' z r- ? i? ., -i IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, V. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants, : Case No. 064031 Complaint Civil Action-Law (Personal Injury) NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 BRYAN LONG, Plaintiff, intends to serve a subpoena identical to the one that is attached to this notice. 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: .2 - / 6 - PL /S/ ry Long, Pro-Se aintiff FX- 543 SCI-Camp Hill P.O.Box 200 Camp Hill, Pa. 17001 o c> r ?? ?] .. ? ? :? C s ?It .,, C9Q .",? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, Case No. 064031 V. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants, Complaint Civil Action-law SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 To: Gail Kelly Medical Records Supervisor SCI-Camp Hill P.O.Box 8837 Camp Hill, Pa. 17001-8837 Within twenty (20) days after service of this subpoena you are ordered by the court to produce the following documents: Medical Records, pictures, and any information on treatment of plaintiff at SCI-Camp Hill. You may deliver or mail legible copies of the documents or produce things 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 it's service, the party may seek a court order compelling you to comply with it. This subpoena was issued at the request of the follow person: / S/ Date: - Bryan Long, FX-654P Plaintiff, Pro-Se SCI-Camp Hill P.O. Box 200 Camp Hill, Pa 17001 r '. .? ?: - ,.i, + i _ .. r FI'. . ? ? .. .. ?I:... . .. > . 1'i _. .f 4 > 4.'?, ? , .. c.. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, Case No. 06-4031 V. Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Defendants, Complaint Civil Action-law SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 To: Howard Gouse Facility Maintenance Manager 3 SCI-Camp Hill P.O. Box 8837 Camp Hill, Pa. 17001-8837 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents: Maintenance Work Orders, name of manufactures of pots, date of removal of pots from kitchen # 2 after injury. You may deliver or mail legible copies of the documents or produce things 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 it's service, the party may seek a court order compelling you to comply with it. This subpoena was issued at the request of the follow person: / S/ L I?Pea--Y? Date: Bryan Long, FX-6543 Plaintiff, Pro-Se SCI-Camp Hill P.O. Box 200 Camp Hill, Pa 17001 . ? ?. r ? .. :i?? _ ?_ z: '? ? r ,i? X ..? ?f. .. ?y M' IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA Bryan Long Plaintiff, Case No. 06-4031 V. Complaint Donald Kelchner, Superintendent Eloise Magee, Food Service Manager 2 Francis Kennedy, Food Service Manager 1 Civil Action-Law Defendants, (Personal Injury) CERTIFICATE PREREQUISITE TO SERVE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a Prerequisite to Service of a Subpoena for documents and things Pursuant to Rule 4009.22 Bryan Long, Plaintiff, certifies that: 1. A Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed to each party at least twenty (20) days prior to the date on which the Subpoena is sought to be served. 2. A copy of the Notice of Intent, including the proposed Subpoena, is attached to this certificate. 3. No objection to the Subpoena has been received, 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, Date: -;? - K, _ Off ' /Sl &40? '404W tsryan"ng FX-6543 SCI-Camp Hill P.O.Box 200 Camp Hill, Pa. 17001 r CERTIFICATE OF SERVICE I, Bryan Long, hereby certify that I am this day serving a true and correct copy of the Plaintiffs a ,and Certificate of Compliance to the persons 14 Notice of Intent, Subpoena, Certificate of Fwevis' listed below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID Addressed as followed: Office of the Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, Pa. 17013-3387 Steven C. Gould, Esquire - Attorney for the Defendants (Defendants copies) Office of the Attorney General Torts Litigation Section 15'' Floor, Strawberry Square Harrisburg, Pa. 17120 Howard Gouse Facility Manager 3 SCI-Camp Hill P.O.Box 8837 2500 Lisburn rd. Camp Hill, Pa. 17001-8837 Gail Kelly Medical records Supervisor SCI-Camp Hill P.O.Box 8837 2500 Lisburn rd. Camp Hill, Pa. 17001-8837 Date: 2 - 1 6 - /s/ ryan ng FX-65 3 SCI-Camp Hill co