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HomeMy WebLinkAbout02-2060MARC J. WINDISH V. DANIELLE CARSON, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. Qo? aO?D G JURY TRIAL DEMANDED TO: Danielle Carson, Defendant 427 NE Autumn Rose Way Hillsboro, OR 97123 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (800) 990-9108 or (717) 249-3166 Document #: 178451.1 MARC J. WINDISH IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. Defendant CIVIL ACTION - LAW DANIELLE CARSON, NO. 4,2 -.206& &t.. 7Ttu - JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Marc J. Windish, is an adult individual residing at 435 E. Crestwood Drive, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendant, Danielle Carson, is an adult individual residing at 427 NE Autumn Rose Way, Hillsboro, Washington County, Oregon 97123. 3. On April 29, 2000, Plaintiff, Marc J. Windish, was an invited guest at the previous residence of the Defendant at 511 Fishing Creek Road, Lewisberry, York County, Pennsylvania 17339. 4. On the aforesaid date, Defendant was the owner of a dog believed to be named Zar, an Akita. 5. On the aforesaid date and place, Plaintiff attempted to pet Zar when, suddenly, without warning and without provocation, Zar viciously attacked the Plaintiff, biting him in the face. 6. Prior to April 29, 2000, the Defendant's dog, Zar, had exhibited vicious propensities and tendencies of which Defendant knew or should have known in that, among nnrnmr tH17X411 1 7. As a result of the incident and Defendant's conduct, Plaintiff suffered various physical injuries including swelling, bruising, deep lacerations and puncture wounds to the area around his mouth which required sutures. 8. As the result of the incident and Defendant's conduct, Plaintiff has undergone and in the future will undergo, great mental and physical pain and suffering, mental anguish, discomfort, inconvenience and distress, embarrassment and humiliation, past, present and future loss of his ability to enjoy the pleasures of life and a limitation in his pursuit of daily activities, all to his great loss and detriment. 9. As a result of the incident and Defendant's conduct, Plaintiff s face is now scarred and disfigured, which scarring and disfigurement are permanent in nature. 10. As a result of the incident and Defendant's conduct, Plaintiff has suffered a past loss of earnings, future loss of earnings and a loss of earning capacity. 11. As a further result of the incident and Defendant's conduct, Plaintiff was forced to incur medical bills and expenses for the injuries he has suffered and will continue to incur said medical bills and expenses in the future. 12. The aforesaid incident and the injuries and damages sustained by the Plaintiff were a direct and proximate result of the negligence, carelessness, recklessness and wanton conduct of the Defendant in the following particulars: (a) She failed to use a chain, cage, leash, fence or other means or methods to restrain her dog and prevent him from attacking the Plaintiff when she knew or should have known of the dog's vicious nature and propensities. (b) She allowed her dog to run loose in the presence of others when she knew or should have known of the dog's vicious nature and -2- nnrnmrnt a l Udi 1 1 propensities and that the dog had attempted to bite several other people in the past. (c) She failed to warn Plaintiff of the dog's vicious nature and propensities and that the dog was inclined or likely to attack and bite. (d) She violated various state and local laws and ordinances pertaining to keeping dogs restrained, controlled or on leashes including the Dog Law at 3 P. S. §459-101 et seq. (e) She failed to place a muzzle on her dog. (f) She failed to train her dog properly. (g) She failed to control her dog properly. (h) She failed to instruct or warn people in the vicinity, such as Plaintiff, of the dog's vicious nature and propensities so that the Plaintiff could have protected himself from an attack by the dog. (i) She failed to keep her dog confined in an area of the home where Plaintiff was not at risk of being attacked. (j) She allowed Plaintiff and others to be in the vicinity where her dog was located without placing her dog on a chain, leash, in a cage or other restraint. 13. Since Defendant knew or should have known that her dog had a vicious nature and vicious propensities and had in fact attempted to attack and bite other people without provocation in a way similar to the attack on the Plaintiff, and because she failed to take any action to prevent the incident in question, Defendant is guilty of gross negligence, wanton conduct and reckless indifference to the rights and safety of the Plaintiff and others, all of which makes her liable for punitive damages. 14. By reason of the facts aforesaid, Defendant is liable to the Plaintiff for all injuries, damages and losses sustained by the Plaintiff resulting from the incident described above. -3- T)nrnmrnt l117R491 I WHEREFORE, Plaintiff, Marc J. Windish, demands judgment against the Defendant in an amount in excess of the limits of compulsory arbitration in Cumberland County, plus interest, damages for delay, costs and punitive damages. METZGE I KE// S?AM, KN & E P.C. By l? Andr W. Norfleet, e Atto ey I.D. No. 83894 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Plaintiff Dated: l '76 - () Z' -4- Dnm,.r.t if 172451 1 VERIFICATION I, Marc J. Windish, hereby certify that the following is correct: The facts set forth in the foregoing Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Complaint is that of counsel and not my own. I have read the Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. y 'ILL MARC J. WINDIS Date: V ` f'6 - D a Document #179451.1 CERTIFICATE OF SERVICE AND NOW, this O:V day of April, 2002, I, Andrew W. Norfleet, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Plaintiff, hereby certify that I served a copy of the within Complaint this day by depositing the same in the United States mail, certified mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Danielle Carson, Defendant 427 NE Autumn Rose Way Hillsboro, OR 97123 T)nrnmrnt a 17Rd51 1 \ ksj 8 ?- Y V , r T 77 `CJ v, ? 7 f7l ^ -? ?"1 Di -G Marc J. Windish vs Case No. 02_2060 Danielle Carson Statement of Intention to Proceed To the Court: Marc J. Windish intends to proceed with the above captioned matter. Print Name .Gv /VO?,•'(_ Sign Name i??!zE- Date: 10/24/2005 Attorney for Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party -wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. ?° ? } ??? C:= Curtis R. Long Prothonotary Office of the i9rotbonotarp Cumberianb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 02 - ?19' d Ian CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-617,1