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HomeMy WebLinkAbout02-2380WILLIS PIERCE, 167 Cross Keys Village Duncansville, PA 17602 Plaintiff :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA : v. :No. : JEAN TWIGG, JAMES and BETTY TWlGG, Individually and as Trustees of: Twigg Family Trust, and TWIGG FAMILY TRUST tJd/b/a TWlGG MOBILE HOME PARK, 64A Detdot Avenue Mechanicsburg, PA 17050 Defendants :CIVIL ACTION - LAW : :JURY TRIAL DEMANDED TO: Prothonotary Please issue a Writ of Summons on behalf of the Plaintiff against the Defendants in the above-captioned action. HANDLER, HENNING, By / ,~ SteP--Esquire Attorney I.D.# 72663 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 (717) 238-2000 Attorneys for Plaintiff Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS WILLIS PIERCE 167 CROSS KEYS VILLAGE DUNCANSVILLE, PA 17602 , Plaintiff Vs. Court of Common Pleas No. 02-2380 CIVIL TERM In CivilAction-Law JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLY AND AS TRUSTEES OF TWIGG FAMILY TRUST, AND TWIGG FAMILY TRUST T/D/B/A TWIGG MOBILE HOME PARK 64A DETROIT AVENUE MECHANICSBURG, PA 17050, Defendant To JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLy AND AS TRUSTEES OF TWIGG FAMILY TRUST, AND TWIGG FAMILY TRUST T/D/B/A TWIGG MOBILE HOME PARK You are hereby notified that WILLIS PIERCE the Plaintiffhas / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Prothonotary//A~Z Date MAY 14, 2002 By 01~eputy ATTORNEY Name: STEPHEN G. HELD, ESQ. Address: HANDLER, HENNING & ROSENBERG 1300 LINGLESTOWN ROAD P O BOX 60337 HARRISBURG, PA 17106 Attorney for: Plaintiff Telephone: 717-238-2000 Supreme Court ID No. 72663 SHERIFF'S RETURN - CASE NO: 2002-02380 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PIERCE WILLIS VS TWIGG JEAN ET AL REGULAR BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon TWIGG JEAN the DEFENDANT , at 2035:00 HOURS, on the 16th day of May , 2002 at 156 TORY CIRCLE ENOLA, PA 17025 JEAN TWIGG by handing to a true and at and attested copy of WRIT OF SUMMONS together with the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this ~.~ day of ~,~_ ~2~ 2~ A.D. /Pz~othonotary So Answers: R. Thomas Kline 05/17/2002 HANDLER HENNING ROSENBERG By: heriff SHERIFF'S RETURN - CASE NO: 2002-02380 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PIERCE WILLIS VS TWIGG JEAN ET AL REGULAR BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon TWIGG JAMES IND AND AS TRUSTEE OF TWIGG FAMILY TRUST the DEFENDANT , at 2035:00 HOURS, on the 16th day of May , 2002 at 156 TORY CIRCLE ENOLA, PA 17025 by handing to JEAN TWIGG a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 3~ day of ~ ~2~ A.D. So Answers: R. Thomas Kline 05/17/2002 HANDLER HENNING ROSENBERG D~puty ~heriff SHERIFF'S RETURN CASE NO: 2002-02380 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PIERCE WILLIS VS TWIGG JEAN ET AL - REGULAR BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to says, the within WRIT OF SUMMONS was served upon TWIGG BETTY IND AND AS TRUSTEE FOR TWIGG FAMILY TRUST the law, DEFENDANT , at 2035:00 HOURS, on the 16th day of May , 2002 at 156 TORY CIRCLE ENOLA, PA 17025 by handing to JEAN TWIGG a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 3~.~ day of i~rdt hon0t ary So Answers: R. Thomas Kline 05/17/2002 HANDLER HENNING ROSENBERG De riff ~ . SHERIFF'S RETURN - REGULAR CASE NO: 2002-02380 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PIERCE WILLIS VS TWIGG JEAN ET AL BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon TWIGG FAMILY TRUST T/D/B/A TWIGG MOBILE HOME PARK the DEFENDANT , at'2035:00 HOURS, on the 16th day of May at 156 TORY CIRCLE , 2002 ENOLA, PA 17025 JEAN TWIGG a true and attested copy of WRIT OF by handing to SUMMONS 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 Subscribed to before me this ~z~/, day of ~_ JJ3o~ A.D. / ~rothonotary So /Lnswers: R. Thomas Kline 05/17/2002 H/LNDLER HENNING ROSENBERG By: Deputy Sh0rif f DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE BARBARA C. MORROW, ESQUIRE Identification Nos. 25699/81533 1800 JFK Blvd., Suite 1300 Philadelphia, PA 19103-2978 (215) 587-9400 059.20865 Attorneys for Defendants Jean TwJgg, James and Betty Twigg, Individually WILLIS PIERCE, COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Plaintiff, JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLY AND AS TRUSTEES OF TWIGG FAMILY TRUST, AND TWIGG FAMILY TRUST tJd/b/a TWIGG MOBILE HOME PARK, Defendants. COURT OF COMMON PLEAS CIVIL ACTION-LAW NO. 02-2380 CIVIL TERM PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon Plaintiff to file a Complaint within twenty (20) days of service hereof penalty of non pros. Dated: BARBARA C. MORROW, ESQUIRE Attorneys for Defendants RULE TO FILE COMPLAINT AND NOW, this-~'p day of 002, a Rule is entered upon Plaintiff to file a Complaint within twenty (20) days from the date of service hereof. DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE BARBARA C. MORROW, ESQUIRE Identification Nos. 25699/81533 1800 JFK Blvd., Suite 1300 Philadelphia, PA 19103-2978 (215) 587-9400 059.20865 Attorneys for Defendants Jean Twigg, James and Betty Twigg, Individually and as Trustees Twigg Family Trust t/d/b/a Twigg Mobile Home Park WILLIS PIERCE, COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ~a~#~ JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLY AND AS TRUSTEES OF TWIGG FAMILY TRUST, : AND TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, Defendants. ENTRY OF APPEARANCE COURT OF COMMON PLEAS CIVIL ACTION-LAW NO. 02-2380 CIVIL TERM TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendants, Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust, and Twigg Family Trust Tldlbla Twigg MObile Home Park in the above-captioned matter. DEASEY, MAHONEY & BENDER, LTD. Dated: By: ),,, , ( IA _ _._., ~, ~,'~'A-~O RROW, ESQUIRE DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 * 1800 JOHN F. KENNEDY BOULEVARD * PHILADELPHIA, PA 19103-2978 WILLIS PIERCE, : Plaintiff : V. : .. JEAN TWIGG, JAMES and BETTY : TWIGG, Individually and as Trustees : of Twigg Family Trust, and TWIGG FAMILY TRUST t/d/bla TWlGG MOBILE HOME PARK, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENN:SYLVANIA No. 02-2380 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court Administrator Fourth Floor Cumberland County Courthouse Carlisle, PA 17013 Telephone (717) 240-6200 WILLIS PIERCE, Plaintiff JEAN TWIGG, JAMES and BETTY TWIGG, Individually and as Trustees of Twigg Family Trust, and TWIGG FAMILY TRUST t/dlb/a TWlGG MOBILE HOME PARK, Defendants : No. 02-2380 .. .. : CIVIL ACTION - L~W : .JURY TRIAL D~=MAND~=D IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NOTIClA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene vienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona a por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se fefiende, la corte tomara medidas y puede una orden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui que es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFIClENTE DE PAGAR TAL SERVlClO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFIiClNA CUYA DIRECClON SE EMCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSSGUIA ASlSTENClA LEGAL. Cumberland County Court Administrator Fourth Floor Cumberland County Courthouse Carlisle, PA 17013 Telephone (717) 240-6200 WILLIS PIERCE, : Plaintiff : V. JEAN TWIGG, JAMES and BETTY TWIGG, Individually and as Trustees of Twigg Family Trust, and TWIGG FAMILY TRUST t/dlbla TWIGG MOBILE HOME PARK, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-2380 CIVIL ACTION - LAW JURYTRIALDEMANDED COMPLAINT AND NOW, comes the Plaintiff, WILLIS PIERCE, by and through his attorneys, HANDLER, HENNING & ROSENBERG, by STEPHEN G. HELD, Esquire, and bring forth this Complaint against Defendants JEAN TWIGG, JAMES and BETTYTWIGG, Individually and as Trustees of Twigg Family Trust, and TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, avers as follows: 1. Plaintiff, Willis Pierce, is an adult individual residing at 1624 Twentieth Avenue, Rear, Altoona, Pennsylvania, 16601. 2. Defendant, Jean Twigg, is an adult individual residing at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Defendants, James and Betty Twigg, are the Trustees of the Twigg Family Trust, which is registered and established under the laws of Pennsylvania and is located at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, Inc., is a corporation registered and established under the laws of Pennsylvania, with a registered office located at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 5. At all times material hereto, Jean Twigg, was in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park. 6. At all times material hereto, James Twigg and Betty Twigg, Trustees of the Twigg Family Trust, were in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park. 7. At all times material hereto, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, was in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park. At all times material hereto, Plaintiff, Willis Pierce, was an invitee upon said Premises. 9. At all times material hereto, Defendants, who had exclusive control of said Premises, had allowed a several inch deep hole, to remain in Madette Drive, the main thorofare of Twigg Mobile Home Park. 10. At all times material hereto, there were no warning signs posted on the Premises warning of the hole in the road. 11. On or about May 17, 2000, Plaintiff, Willis Pierce, was walking on the Premises. While walking on Marlette Drive, the plaintiff turned around quickly and his foot went into a hole, several inches deep, causing personal injuries to the Plaintiff. 12. at length. 13. COUNTI-NEGLIGENCE Willis Pierce v. Jean Twiaa Paragraphs 1 - 11 are incorporated herein by reference as if fully set forth At all times material to hereto, Plaintiff, Willis Pierce, believes and therefore avers, that Defendant, Jean Twigg, was in possession, management and control of the Premises and was responsible for maintaining the safe condition of the property known as Twigg Mobile Home Park, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 14. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Willis Pierce, were caused directly and proximately by the negligence of Defendant, Jean Twigg, by her agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) in causing or permitting a several inch deep hole at the Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; 3 (b) In causing or permitting to be present a several inch deep hole to remain on Marlette Drive when Defendant knew or should have known of the likelihood of the several inch hole could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the several inch deep hole, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the road at said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the road of said Premises; (f) In failing to remove or remedy the several inch deep hole in the road of said Premises so as to avoid the situation in which the Plaintiff's foot went into the hole causing him to trip and fall; and (g) In failing to maintain the road in a reasonably safe condition that would prevent a person from tripping and falling. 15. Defendant, Jean Twigg, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was a several inch deep hole in the road where Plaintiff, Willis Pierce, fell. 16. As a direct and preximate result of the negligence of Defendant, Jean Twigg, Plaintiff, Willis Pierce, sustained a serious injuries including, but not limited to, a ruptured Achilles tendon, requiring surgery. 17. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Willis Pierce, has undergone great physical pain, discomfort and mental anguish and he will continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally and financially. 18. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Willis Pierce, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation and embarrassment. 19. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Plaintiff, Willis Pierce, has, and will in the future, suffer a loss of life's pleasures. 20. As a result of the negligence of Defendant, Jean Twigg, the Plaintiff, Willis Pierce, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 21. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Plaintiff, Willis Pierce, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention, and will be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Willis Pierce, seeks damages from Defendant Jean Twigg, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), exclusive of interest and costs, which is an amount in excess of jurisdictional amounts requiring compulsory arbitration. 22. at length. 23. COUNT II - NEGLIGENCE Willis Pierce v. James and Betty Twigq, Individually and as Trustees of Twic~a Family Trust Paragraphs 1-21 are incorporated herein by reference as if fully set forth At all times material to hereto, Plaintiff, Willis Pierce, believes and therefore avers, that Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, were in possession, management and control of the Premises and was responsible for maintaining the safe condition of the property known as Twigg Mobile Home Park located at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 24. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Willis Pierce, were caused directly and proximately by the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, by their agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set. forth below: (a) In causing or permitting a several inch deep hole at the Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting to be present a several inch deep hole to remain in a road when Defendants knew or should have known of the likelihood of the several inch hole could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the several inch deep hole in the road, and thereby allowing the same to be and remain a dangerous condition when the Defendants knew or should have known of it; (d) In failing to ensure the road at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition on the road of said Premises; (f) In failing to remove or remedy the several inch deep hole in the road of said Premises so as to avoid the situation in which the Plaintiff's foot went into a hole causing him to trip and fall; and (g) In failing to maintain the road in a reasonably safe condition that would prevent a person from tripping and falling. 25. Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, had actual knowledge or should have known threugh the exercise of ordinary care and diligence that there was a several inch deep hole in the read where Plaintiff, Willis Pierce, fell. 26. As a direct and proximate result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, Plaintiff, Willis Pierce, sustained serious injuries including, but not limited to, a ruptured Achilles tendon, requiring surgery. 27. As a direct and proximate result of the negligence of Defendan~ts, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, Willis Pierce, has undergone great physical pain, discomfort and mental anguish and he will continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally and financially. 28. As a direct and proximate result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, Willis Pierce, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation and embarrassment. 28. As a direct and proximate result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, Plaintiff, Willis Pierce, has, and will in the future, suffer a loss of life's pleasures. 29. As a result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, the Plaintiff, Willis Pierce, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 30. As a direct and proximate result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, Plaintiff, Willis Pierce, has been compelled, in order to effect a cure for the aforesaid injury, to expend large sums of money for medicine and medical attention, and will be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Willis Pierce, seeks damages from Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), exclusive of interest and costs, which is an amount in excess of jurisdictional amounts requiring compulsory arbitration. COUNT III - BREACH OF CONTRACT Willis Pierce v. Twiao Family Trust t/dlbla Twiao Mobile Home Par:: 31. Paragraphs 1-31 are incorporated herein by reference as if fully set forth at length. 32. private road. 33. The main thorofare of Twigg Mobile Home Park, Marlette Drive, is a The upkeep and maintenance of this road is solely the responsibility of the mobile home park. 34. Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, failed to properly maintain the road and keep it free from hazardous conditions. 35. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Willis Pierce, were a direct result of the failure of the Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, to perform upkeep on the road. WHEREFORE, Plaintiff, Willis Pierce, seeks damages from Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), exclusive of interest and costs, which is an amount in excess of jurisdictional amounts requiring compulsory arbitration. Respectfully submitted, HANDLER, HENNING & ROSENBERG LLP Date: '-~ [ ~ '7.[_~ ~ By: 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff l0 VERIFICATION STEPHEN G. HELD, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Dated: CERTIFICATE OF SERVICF AND NOW, this Ic~L' day of ~ ,. 0~.r-- ,2002, I hereby certify that I have, on this date, served the within document upon defendant s counsel and all counsel of record by sending a true and correct copy of same to them via first class United States mail, postage prepaid, and addressed as follows: Barbara C. Morrow, Esq. Deasey, Mahoney & Bender, Ltd. Suite 1300 1800 John F. Kennedy Boulevard Philadelphia, PA 19103-2978 HANDLER, HENNING & ROSENBERG By: Patricia Kol~nl~j~ ..... DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE BARBARA C. MORROW, ESQUIRE Identification Nos. 25699/81533 1800 JFK Blvd., Suite 1300 Philadelphia, PA 19103-2978 (215) 587-9400 059.20865 Attorneys for Defendants Jean Twigg, James and Betty Twigg, Individually and as Trustees Twigg Family Trust t/d/b/a Twigg Mobile Home Park COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WILLIS PIERCE, Plaintiff, JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLY AND AS TRUSTEES OF TWIGG FAMILY TRUST, AND TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, Defendants. COURT OF COMMON PLEAS CIVIL ACTION-LAW NO. 02-2380 CIVIL TERM DEFENDANTS, JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLY AND AS TRUSTEES OF TWIGG FAMILY TRUST, AND TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT IN THE NATURE OF A DEMUR lt F~R Defendants, Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust t/d/b/a Twigg Mobile Home Park, (hereinafter "Twigg" and/or "Defendants"), by and through their attorneys, Deasey, Mahoney & Bender, hereby file the within Preliminary Objections in the form of a Motion to Strike, and in support thereof, avers as follows: 1. Plaintiff commenced this action by filing a Writ of Summons on or about May 14, 2002. A true and correct copy of the Writ of Summons is attached hereto as Exhibit "A". DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 2. Following the entry of a Praecipe for Rule to File a Complaint entered by this Court on July 2, 2002, Plaintiff filed a Civil Action Complaint on or about July 18, 2002. A true and correct copy of Plaintiffs Complaint is attached hereto as Exhibit "B". 3. Plaintiff alleges in his Complaint that Defendants were in ownership, possession, management and control of certain premises located at 64A Detroit Ave., Mecahnicsburg, Cumberland County, PA at which they operated Twigg Mobile Home. See Exhibit "B", ¶¶ 5-7. 4. Plaintifffurther alleges that he was a business invitee on the aforementioned premises on May 17, 2000 when he sustained injuries as the result ora trip and fall thereon. See Exhibit "B", ¶¶8-11. 5. Plaintiff further alleges in Counts I and II of his Complaint that Defendants were negligent in, among other things, the maintenance of the subject premises. See Exhibit "B", Counts MI. 6. In Count III of his Complaint, Plaintiff purports to set forth a cause of action for breach of contract. See Exhibit "B", Count III. 7. Plaintiff alleges in Count III, ¶32 that the main thorofare of Twigg Mobile Home, Marlette Drive, is a private Road. See Exhibit "B", ¶ 32. 8. Plaintiff further alleges that the upkeep and maintenance of this road is solely the responsibility of the mobile home park. See Exhibit "B", ¶33. 9. Plaintiff alleges that Defendants failed to maintain the raod and keep it free from hazardous conditions, and that, as a result thereof, Plaintiff sustained injuries. See Exhibit "B", ¶¶ 34-35. 10. While Plaintiff captions Count III as a claim for breach of contract, there is absolutely no mention in Count III of any contract. DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 * 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 11. Moreover, Plaintifffails to attach as an exhibit to his Complaint any contract or other document to substantiate his claim for breach of contract, in violation of Pennsylvania Rule of Civil Procedure 1019 and 1028(a)(2). 12. Pennsylvania Rule of Civil Procedure 1019 provides, in pertinent part: (a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form .... (h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written. Note: If the agreement is in writing, it must be attached to the pleading. See subdivision (i) of this rule .... (i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing .... 13. Pennsylvania Rule of Civil Procedure 1028 provides, in pertinent part: (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: ...(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrer) .... Pa.R.C.P. 1028. 14. To establish a cause of action for breach of contract, the plaintiffmust allege (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Corestates v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999)(citations omitted). 15. While not every temx of a contract must be stated in complete detail, every element DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 must be specifically pleaded. Id. 16. Plaintiff is unable to, and indeed fails to, point to any terms of any contract that were violated by Defendants. Plaintiff's Complaint is therefore legally insufficient. 17. Moreover, Plaintiff fails to attach to his Complaint a copy of the alleged contract in violation of Pa.R.C.P. 1019 and his pleading therefore fails to confrere to a rule of court under Pa. R.C.P. 1028(a)(2). 18. Count IH of Plaintiff's Complaint must be stricken where Plaintiff fails to conform to a nde of court and fails to sufficiently plead a cause of action for breach of contract. WtlEREFORE, Defendants, Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust t/d/b/a Twigg Mobile Home Park, respectfully request this Honorable Court enter an Order in the form attached hereto sustaining their Preliminary Objections and striking Plaintiff's claim for breach of contract. DEASEY, MAHONEY & BENDER, LTD. BY: B MORROW, ESQUIRE Attorneys for Defendants, Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust t/d/b/a Twigg Mobile Home Park DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 * '1800 JOHN F. KENNEDY BOULEVARD * PHILADELPHIA, PA 19103-2978 management and control of certain premises located at 64A Detroit Ave., Mecahnicsburg, Cumberland County, PA at which they operated Twigg Mobile Home. See Exhibit "B", ¶¶ 5-7. Plaintiff further alleges that he was a business invitee on the aforementioned premises on May 17, 2000 when he sustained injuries as the result of a trip and fall thereon. See Exhibit "B", ¶¶ 8-11. Plaintiffalleges in Counts I and II of his Complaint that Defendants were negligent in, among other things, the maintenance of the subject premises. See Exhibit "B", Counts I-II. In Count III of his Complaint, Plaintiff purports to set forth a cause of action for breach of contract. See Exhibit "B", Count III. Plaintiff alleges in Count III, ¶32 that the main thorofare of Twigg Mobile Home, Marlette Drive, is a private Road. See Exhibit "B", ¶ 32. Plaintiff further alleges that the upkeep and maintenance of this road is solely the responsibility of the mobile home park. See Exhibit "B", ¶33. Plaintiff alleges that Defendants failed to maintain the mod and keep it free from hazardous conditions, and that, as a result thereof, Plaintiff sustained injuries. See Exhibit "B", ¶¶ 34-35. While Plaintiff captions Count IH as a claim for breach of contract, there is absolutely no mention of any contract in Count III. Moreover, Plaintiff fails to attach as an exhibit to his Complaint any contract or other document to substantiate his claim for breach of contract, in violation of Pennsylvania Rule of Civil Procedure 1019. II LEGAL ARGUMENT Pennsylvania Rule of Civil Procedure 1019 provides, in pertinent part: (a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form .... (h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written. Note: If the agreement is in writing, it must be attached to the pleading. See subdivision (i) of this rule .... DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 (i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing .... Pennsylvania Rule of Civil Procedure 1028 provides, in pertinent part: (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrer) .... Pa.R.C.P. 1028. To establish a cause of action for breach of contract, the plaintiffmust allege (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Corestates v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999)(citations omitted). While not every term of a contract must be stated in complete detail, every element must be specifically pleaded. Id. Plaintiffis unable to, and indeed fails to, point to any terms of any contract that were violated by Defendants. Plaintiff's Complaint is therefore legally insufficient. Moreover, Plaintiff fails to attach to his Complaint a copy of the alleged contract in violation of Pa.R.C.P. 1019 and his pleading therefore fails to confrere to a rule of court under Pa. R.C.P. 1028(a)(2). Count III of Plaintiff's Complaint must be stricken where Plaintiff fails to conform to a rule of court and fails to sufficiently plead a cause of action for breach of contract. DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 " 1800 JOHN R KENNEDY BOULEVARD ~, PHILADELPHIA, PA 19103-2978 III CONCLUSION For the foregoing reasons, Defendants, Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust t/d/b/a Twigg Mobile Home Park, respectfully request this Honorable Court sustain their preliminary objections and enter an Order in the form attached hereto and strike Count III of Plaintiff's Complaint. DEASEY, MAHONEY & BENDER, LTD. BY: BA ARA C MORROW, ESQUIRE Attorneys for Defendants, Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust t/d/b/a Twigg Mobile Home Park DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 UAY-31-OZ 1):19 FR~k~'.rrBenner Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS WI~,LIS PIERCE 167 CROSS KEYS VILLAGE DUI~CA_NSVILLF~ PA 17602, VB. Court of Common Pleas No. 02-2380 CIVIL TERM JEAN TWIGG, JAMES AND BETTY TWIGG, IND~U~Y AND AS TRUSTEES OF TWIGG I~AlVf~Y TRUST, AND TWIC, G FA1V/ILY TRUST TfD/B/A ~ DE~ A~ ~~CSB~G, PA 17050, D~t T':.~,':. cOPY f::ROlvt in 'fAst.r,',.:.. ',l-reof, I hem unto s~t my and the ~e~l of sm~.d Court at CedlsTe, da of...JZ~ ........ ' "~- ..... ............ :--~r' ...... i, ro~honotar~ To lEAN 'I%VI, GG,,IAiV~S AND BET,~/' TWICG, INDIVIDUA_?.'_~Y AND TRUS'I~V-S O1~ TWIGG FAMILY TRUST, ~ TWIGG FAMILY TRUST T/DfJB/A TWIGG MOBILE HOME PARK You ar~ hereby notificd that. WILLIS PIERCE ~he pl.intiffhas / lucre commenced an acion in Civ/l Acfio~.L~w asaina you whic,h you are requirscl Tn or a defauk judg.~mt may be c~'e5, against you. Pt othono~u, g..,l~'/.- Date MAY 14, 2002 By ' 900~ E:E,I,$EO...I Ii.a. HO-- 86TT',/.,/.glTT' 'X'Yg ~O:ST lO0~/Tg/gO WILLIS PIERCE, : Plaintiff : : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 02-2380 : JEAN TWIGG, JAMES and BETTY : TWIGG, Individually and as Trustees : of Twigg Family Trust, and : TWIGG FAMILY TRUST t/d/b/a : TWIGG MOBILE HOME PARK, : Defendants : CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court Administrator Fourth Floor Cumberland County Courthouse Carlisle, PA 17013 Telephone (71.7) 240-6200 WILLIS PIERCE, Plaintiff JEAN TWIGG, JAMES and BETTY TWIGG, Individually and as Trustees of Twigg Family Trust, and TWIGG FAMILY TRUST t/dlb/a TWIGG MOBILE HOME PARK, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-2380 CIVIL ACTION - LAW JURYTRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene vienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona a por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se fefiende, la corte tomara medidas y puede una orden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui que es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFIClENTE DE PAGAR TAL SERVlClO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFIClNA CUYA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSSGUIA ASlSTENClA LEGAL. Cumberland County Court Administrator Fourth Floor Cumberland County Courthouse Carlisle, PA 17013 Telephone (717) 240-6200 WILLIS PIERCE, Plaintiff JEAN TWIGG, JAMES and BETTY TWIGG, Individually and as Trustees of Twigg Family Trust, and TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-2380 CIVIL ACTION - LAW JURYTRIALDEMANDED COMPLAINT AND NOW, comes the Plaintiff, WILLIS PIERCE, by and through his attorneys, HANDLER, HENNING & ROSENBERG, by STEPHEN G. HELD, Esquire, and bring forth this Complaint against Defendants JEAN TWIGG, JAMES and BETTY TWIGG, Individually and as Trustees of Twigg Family Trust, and TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, avers as follows: 1. Plaintiff, Willis Pierce, is an adult individual residing at 1624 Twentieth Avenue, Rear, Altoona, Pennsylvania, 16601. 2. Defendant, Jean Twigg, is an adult individual residing at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Defendants, James and Betty Twigg, are the Trustees of the Twigg Family Trust, which is registered and established under the laws of Pennsylvania and is located at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Hor~e Park, Inc., is a corporation registered and established under the laws of Pennsylvania, with a registered office located at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 5. At all times material hereto, Jean Twigg, was in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park ..... 6. At all times matedal hereto, James Twigg and Betty Twigg, Trustees of the Twigg Family Trust, were in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park. 7. At all times material hereto, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, was in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park. At all times material hereto, Plaintiff, Willis Pierce, was an invitee upon said Premises. 9. At all times material hereto, Defendants, who had exclusive control of said Premises, had allowed a several inch deep hole, to remain in Madette Drive, the main thorofare of Twigg Mobile Home Park. 10. At ail times material hereto, there were no warning signs posted on the Premises warning of the hole in the road. 11. On or about May 17, 2000, Plaintiff, Willis Pierce, was walking on the Premises. While walking on Marlette Drive, the plaintiff turned around quickly and his foot went into a hole, several inches deep, causing personal injuries to the Plaintiff. 12. at length. 13. COUNT I - NEGLIGENCE Willis Pierce v. Jean Twiaa Paragraphs 1 - 11 are incorporated herein by reference as if fully set forth At all times material to hereto, Plaintiff, Willis Pierce, believes and therefore avers, that Defendant, Jean Twigg, was in possession, management and control of the Premises and was responsible for maintaining the safe condition of the property known as Twigg Mobile Home Park, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 14. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Willis Pierce, were caused directly and proximately by the negligence of Defendant, Jean Twigg, by her agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting a several inch deep hole at the Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; 3 (b) In ~:ausing or permitting to be present a several inch deep hole to remain on Marlette Drive when Defendant knew or should have known of the likelihood of the several inch hole could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the several inch deep hole, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the road at said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) in failing to post a warning sign or device in the area to notify of the dangerous condition of the road of said Premises; (f) In failing to remove or remedy the several inch deep hole in the road of said Premises so as to avoid the situation in which the Plaintiff's foot went into the hole causing him to trip and fall; and (g) In failing to maintain the road in a reasonably safe condition that would prevent a person'from tripping and falling. 15. Defendant, Jean Twigg, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was a several inch deep hole in the road where Plaintiff, Willis Pierce, fell. 16. As a direct and proximate result of the negligence of Defen~lant, Jean Twigg, Plaintiff, Willis Pierce, sustained a serious injuries including, but not limited to, a ruptured Achilles tendon, requiring surgery. 17. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Willis Pierce, has undergone great physical pain, discomfort and mental anguish and he will Continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally and financially. 18. As a direct and proximate result of the~ negligence of Defendant, Jean Twigg,. Willis Pierce, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation and embarrassment. 19. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Plaintiff, Willis Pierce, has, and will in the future, suffer a loss of life's pleasures. 20. As a result of the negligence of Defendant, Jean Twigg, the Plaintiff, Willis Pierce, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 21. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Plaintiff, Willis Pierce, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention, and will be required to expend large sums of rfloney for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Willis Pierce, seeks damages from Defendant Jean Twigg, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), exclusive of interest and costs, which is an amount in excess of jurisdictional amounts requiring compulsory arbitration. 22. at length. 23. COUNT II - NEGLIGENCE Willis Pierce v. James and Betty Twiflg, Individually and as Trustees of Twi,qq Family Trust Paragraphs 1-21 are incorporated herein by reference as if. fully set forth At all times material to hereto, Plaintiff, Willis Pierce, believes and therefore avers, that Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, were in possession, management and control of the Premises and was responsible for maintaining the safe condition of the property known as Twigg Mobile Home Park located at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 24. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Willis Pierce, were caused directly and proximately by the negligence of Defendants, James and Betty 'rwigg, Individually and as Trustees of the Twigg Family Trust, by their agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting a several inch deep hole at the Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting to be present a several inch deep hole to remain in a road when Defendants knew or should have known of the likelihood of the several inch hole could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the several inch deep hole in the road, and thereby allowing the same to be and remain a dangerous condition when the Defendants knew or should have known of it; (d) In failing to ensure the road at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition on the road of said Premises; (f) In failing to remove or remedy the several inch deep hole in the road of said Premises so as 'to avoid the situation in which the Plaintiff's foot went into a hole causing him to trip and fall; and (g) In failing to maintain the road in a reasonably safe condition that would prevent a person from tripping and falling. 25. Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was a several inch deep hole in the road where Plaintiff, Willis Pierce, fell. 26. As a direct and proximate result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg FamilyTrust, Plaintiff, Willis Pierce, sustained serious injuries including, but not limited to, a ruptured Achilles tendon, requiring surgery ..... 27. As a direct and proximate result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, Willis Pierce, has undergone great physical pain, discomfort and mental anguish and he will continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally and financially. 28. As a direct and proximate result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, Willis Pierce, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation and embarrassment. 28. As a direct and proximate result of the negligence of Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, Plaintiff, Willis Pierce, has, and will in the future, suffer a loss of life's pleasures. 29. As a result of the negligence of D~fendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, the Plaintiff, Willis Pierce, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 30. As a direct and proximate result of the negligence of Defendants, James and Betty, Twigg, Individually and as Trustees of the Twigg Family Trust, Plaintiff, Willis Pierce, has been compelled, in order to effect a cure forthe aforesaid injury, to expend large sums of money for medicine and medical attention, and will be required to expend. large sums of money for the same purposes in the future, tohis great detriment and loss. WHEREFORE, Plaintiff, Willis Pierce, seeks damages from Defendants, James and Betty Twigg, Individually and as Trustees of the Twigg Family Trust, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), exclusive of interest and costs, which is an amount in excess of jurisdictional amounts requiring compulsory arbitration. COUNT III - BREACH OF CONTRACT Willis Pierce v. Twiq,q Family Trust t/d/b/a Twifl~l Mobile Home Park 31. at length. 32. private road. 33. mobile home park. Paragraphs 1-31 are incorporated herein by reference as if fully set forth The main thorofare of Twigg Mobile Home Park, Marlette Drive, is a The upkeep and maintenance of this road is solely the responsibility of the 34. Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, failed to properly maintain the road and keep it free from hazardous conditions. 35. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Willis Pierce, were a direct result of the failure of the Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, to perform upkeep on the road. WHERE~FORE, Plaintiff, Willis Pierce, seeks damages from Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), exclusive of inter.est and costs, which is an amount excess of jurisdictional amounts requiring compulsory arbitration. Respectfully submitted, HANDLER, HENNING & RO$£NEIERG LLP Date: ~71~"~(-~ "~ By: 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff l0 VERIFICATION STEPHEN G. HELD, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. S te~C~ ~l~ld,'E~te CERTIFICATE OF SERVICE AND NOW, this ~J' dayof' ,.~ ,_ (~,~ ,2002, I hereby certify that have, on this date, served the within document upon defendant s counsel and all counsel of record by sending a true and correct copy of same to them via first class United States mail, postage prepaid, and addressed as follows: ..... Barbara C. Morrow, Esq. Deasey, Mahoney & Bender, Ltd. Suite 1300 1800 John F. Kennedy Boulevard Philadelphia, PA 19103-2978 HANDLER, HENNING & ROSENBERG Pat~icia K°l~n ~ej~ ..... CERTIFICATE OF SERVICE I, BARBARA C. MORROW, ESQUIRE, hereby certifies that I caused to be served a tree and correct copy of Defendants, Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust t/dgo/a Twigg Mobile Home Park, Preliminary Objections to Plaintiff's Complaint and Memorandum of Law in Support thereof via First Class mail, postage prepaid upon the following: Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 Attorney for Plaintiff DATED: August 7, 2002 DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD # PHILADELPHIA, PA 19103-2978 Jfllcomplaintslpremiseslpierce.wpd WILLIS PIERCE, Plaintiff JEAN TWIGG, JAMES and BETTY :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA :No. 02-2380 TWlGG, Individually and as Trustees of: Twigg Family Trust, and :CIVIL ACTION - LAW TWlGG FAMILY TRUST t/d/b/a :JURY TRIAL DEMANDED TWlGG MOBILE HOME PARK, Defendants AMENDED COMPLAINT AND NOW, comes the Plaintiff, WILLIS PIERCE, by and through his attorneys, HANDLER, HENNING & ROSENBERG, by STEPHEN G. HELD, Esquire, and bring forth this Amended Complaint against Defendants JEAN TWlGG, JAMES and BETTY TWlGG, Individually and as Trustees of Twigg Family Trust, and TWlGG FAMILY TRUST t/d/b/a TWlGG MOBILE HOME PARK, avers as follows: 1. Plaintiff, Willis Pierce, is an adult individual residing at 251 Marlette Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Jean Twigg, is an adult individual residing at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Defendants, James and Betty Twigg, are the Trustees of the Twigg Family Trust, which is registered and established under the laws of Pennsylvania and is located at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, Inc., is a corporation registered and established under the laws of Pennsylvania, with a registered office located at 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania 17055. 5. At all times material hereto, Jean Twigg, was in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park. 6. At all times material hereto, James Twigg and Betty Twigg, Trustees of the Twigg Family Trust, were in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park. 7. At all times material hereto, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, was in ownership, possession, management and control of the Premises located at and known 64A Detroit Avenue, Mechanicsburg, Cumberland County, Pennsylvania, 17055 at which operated Twigg Mobile Home Park. 8. At all times material hereto, Plaintiff, Willis Pierce, was an invitee upon said Premises. 9. At all times material hereto, Defendants, who had exclusive control of said Premises, had allowed a several inch deep hole, to remain in Marlette Drive, the main thorofare of Twigg Mobile Home Park. 10. At all times material hereto, there were no warning signs posted on the Premises warning of the hole in the road. 11. On or about May 17, 2000, Plaintiff, Willis Pierce, was walking on the Premises. While walking on Madette Drive, the plaintiff turned around quickly and his foot went into a hole, several inches deep, causing personal injuries to the Plaintiff. 12. at length. 13. COUNT I - NEGLIGENCE Willis Pierce v. Jean Twioa Paragraphs 1 - 11 are incorporated herein by reference as if fully set forth At all times material to hereto, Plaintiff, Willis Pierce, believes and therefore avers, that Defendant, Jean Twigg, was in possession, management and control of the Premises and was responsible for maintaining the safe condition of the property known as Twigg Mobile Home Park, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 14. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Willis Pierce, were caused directly and proximately by the negligence of Defendant, Jean Twigg, by her agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting a several inch deep hole at the Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting to be present a several inch deep hole to remain on Marlette Drive when Defendant knew or should have known of the likelihood of the several inch hole could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the several inch deep hole, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the road at said Premises were maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e)In failing to post a warning sign or device in the area to notify of the dangerous condition of the road of said Premises; (f) In failing to remove or remedy the several inch deep hole in the road of said Premises so as to avoid the situation in which the Plaintiff's foot went into the hole causing him to trip and fall; and (g) In failing to maintain the road in a reasonably safe condition that would prevent a person from tripping and falling. 15. Defendant, Jean Twigg, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was a several inch deep hole in the road where Plaintiff, Willis Pierce, fell. 16. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Plaintiff, Willis Pierce, sustained a serious injuries including, but not limited to, a ruptured Achilles tendon, requiring surgery. 17. ,As a direct and proximate result of the negligence of Defendant, Jean 4 Twigg, Willis Pierce, has undergone great physical pain, discomfort and mental anguish and he will continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally and financially. 18. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Willis Pierce, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation and embarrassment. 19. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Plaintiff, Willis Pierce, has, and will in the future, suffer a loss of life's pleasures. 20. As a result of the negligence of Defendant, Jean Twigg, the Plaintiff, Willis Pierce, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 21. As a direct and proximate result of the negligence of Defendant, Jean Twigg, Plaintiff, Willis Pierce, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention, and will be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Willis Pierce, seeks damages from Defendant Jean Twigg, in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), exclusive of interest and costs, which is an amount in excess of jurisdictional amounts requiring compulsory arbitration. WHEREFORE, Plaintiff, Willis Pierce, seeks damages from Defendant, Twigg Family Trust t/d/b/a Twigg Mobile Home Park, in an amount in excess of Twenty-Five Thousand Dollars ('$25,000.00), exclusive of interest and costs, which is an amount in excess °f jurisdictional amounts requiring COmpulsory arbitration. Dated: Respectfully submitted, RG I.D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 ('717) 238-2000 Attorney for Plaintiff l0 VERIFICATION PURSUANT TO PA. R.C.P. NO 1024 STEPHEN G. HELD, ESQUIRE, state that he is the attorney for the party filing the foregoing document; that he makes this Affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. ate: Stel~hen-"~./He'rd, E-~qulre CERTIFICATE OF SERVICE AND NOW, this ~C~_ day of August 2002, I hereby certify that I have served the foregoing Plaintiff's Amended Complaint, on the following via first class United States Mail and addressed to: Barbara C. Morrow, Esquire DEASEY, MAHONEY & BENDER, LTD. Suite 1300 1800 John F. Kennedy Boulevard Philadelphia, PA 19103-2978 HANDLER, HENNING & ROSENBERG Exhibit A T~.gg Mobile HOme Park C~A Detroit Ay ' '~7.~28 -~,r~ 1705S ~t N~r~ Fax (71~ HO~e & Si~e ~ ~AS, ~SOr .... ~ ~d mobile ~ a mobile ~om~ - - reFe~ed ~o ~ "Tenant,,) ~0W THIS AO~- - ""~, or a mobile ~ ~ ~r~ in Which ~ ~ . em and in' -: or and in ' ,enamg to ~ le~lly ~. r~e rent ~a. ~ 2. This Lm~e - ~ ~ snail ~ for a te~ ~ . ~ose on ~e Brst ~v Ore Is option, .... ~ _hi~: ~ea tidal a holding' ~ resinate o~ the"'~'~encing on the ~. ~ ' ~ u renewal of thi~ °Ver by the ~e.o.j~ day of ~'~ ~YoE 3. -'~ ~e for a.~.~'~"~ may ~ co~ ' this Le~e' condition of ~s, ~ emises' ~ ~"~ f°ll°~ng ~rsons and no Other ~11 t ~e; u ;~ ,~o~, a sum i~ he ~O~anc ~n execution o ' .nt"~neendo~,~ ~eamo~to - eO~allthe . fthtsL~ - . ~"m~ ~o ~:T'~ L~. ~ ~-~ ~, ~'~,~e~':' .o ~ ~i,~u ~:':~ ~o,~itio,~ o~ "uuress ~)A .~ -,ges ~eate~ ~ ,~c tor ~m~. ' ' ~ccuHA~ de-~ - ' ~ve ~t fo.k -- ~eas~ nre~' ,u leave a fo~.- - ~, The Les~e a~s to and Shall ~ve ho ~rom and For any an aqVand all cl ~- d all ~en Id and kee h ~o~ ~ ~.,~s ~d liab~;., ts. ex~nses ~_~ a~less and ~ss~ ~c~mn~Who-'m~°rlosses~'~ts'a~°mev~- "uemni~the~ wh.;~ or the ~ee'- ~ "y or m ~ by ~- ~r ~amage to .r~'-'ces and ~om a-~ ~es~r - reason OF~he occ:,~ mr ~y Ca~e o.~'''ss~°ns by the u~c)' bv the ~ _ 'rein - ~ssee. 6. lf the demis~ premix- ~ ~ ~ tiles s~[-: ~Ssor con,,~ uer em~ne-.: ~d, or ~*- ~mg to ~e t~ ~%vs the ~d --~ ~" aOma~n or .... aaur, shall ~ · .~ttm~tJo.2 ~ --, ur tt there ' 3 govv~ .... ~eiv ~ ~ nObce. I ~o -u lac te~ a ~r~, then thi~ · ,,se m ~e -.-e~ oy ~s~- ~ S~l haw - nereotshall e~~ ~ ~a~, at the - ~ me ~rk ~ ~ ~e CO~ "~ LeSSor ~ttOn 7. If the Lessee shall fail to comply with any conditions and covenants hereof, the Lessor may perform such conditions and covenants, at the cost and expense of the Lessee, and the said cost and expenses shall be added to the next installment of rent and shall be payable as such. 8. The Lessee agrees that the Lessor and the Lessor's agents, employees or other representatives, shall have the fight to enter into and upon the sal~l premises consisting of the mobile home and mobile home site, or the site alone (whichever applies to this particular lease), which is the subject of this Lease, or any part thereof, at all reasonable hours, for the purpose nf examining the same or making such repair or alterations therein as may be necessary for the safety and preservation thereof. This clause shall not be deemed to be a covenant by the Lessor nor be construed to create an obligation on the part of the Lessor t~ make such inspection or repairs. All goods and personal property of any kind in or upon the leased premises shall be the sole responsibility of the Lessee, and in no event shall Lessor be liable for any loss or damage to said goods or property for any reason whatsoever. 10. The Lessee shall take good care of the premises and shall maintain the premises in good condition, and upon vacating the premises, either at the expiration of the term or for other reasons, shall deliver the rented premises in good order and condition, wear and tear from a a reasonable use thereof, and damage by the elements not resulting from the neglect or fault of the Lessee excepted. The Lessee shall neither encumber nor obstruct the sidewalks, driveways or yards, but shall keep and maintain the same in a clean condition, flee from debriS, trash, refuse, snow and ice. Lessee further agrees to maintain the premises so that grass or other ground cover, excluding shrubs, trees and flowers, shall not be permitted to exceed three inches in height. 11. The Lessee may not sublet the premises or any portion or part thereof. The Lessee may sell the mobile home belonging to the Lessee; but, follow/rig the sale, if the mobile home is to remain in the park with a new owner, ~ new Lessee is required, and this approval must be obtained prior to ~al¢. 12. 13. 14. 15. Lessor shall not be liable for failure to give possession of the leased premises to the Lessee upon the effective date of this Lease. In such event, rental pasTnent and other fees, charges or assessments shall not commence until possession is given to, or is made available to the Lessee, and the term of the Lease shall be extended accordingly. Any equipment, fixtures, goods or other property of the Lessee not removed by the Lessee upon quitting, vacating or abandonment of the premises by the Lessee, or upon the Lessee's eviction, shall be considered to be abandoned and the Lessor shall have the right, without notice to the Lessee, to sell or otherwise dispose of the same at the expense of the Lessee and shall not be accountable to the Lessee for any part of the proceeds of the sale, if any. The Lessor shall not be liable for any damage or injury which may be sustained by the Lessee or any other persons, as a consequence of the failure, breakage, leakage or obstruction of the water, sewer, waste, or soil pipes, or the electrical, gas or oil system; or by reason of the elements; or resulting from the carelessness, negligence or other improper conduct on the pan of any other Lessee or the Lessor's or this or any other Lessee's agents, guests, licensees, inviteas, invitees, sublessees, assignees or successors; or attribmable to any interference with, interruption of or failure, beyond the control ofthe Lessor, of any services to be furnished or supplied by the Lessor. The various rights and remedies of the Lessor expressed herein are cumulative, and the failure of the Lessor to enforce any such right or remedy at any time against the Lessee shall not constitute a waiver thereof. Lessee shall pay all county, municipal and school districl real eslate laxes assessed and levied against his home and personal property, and shall li~roish Lessor, when requested, with proof of payment of'same. Failure to pa5' snch taxes, when due shall be a violation oflhe Lease, rules, or regulations, if any, and constitute default thereunder. 17. The Lessee hereby confesses judgement in favor of the said Lessor for the whole amount of the rent at any time remaining unpaid, and any other charges incurred hereunder, whether the same shall have been tine or not, waiving stay of execution, inquisition and all exemption laws now in force or which may hereafter be passed, and authorizes the adding of up to Twenty (20%) percent attorney's commission for collection; and further does hereby, upon the breach of any of the conditons of this Lease, including nonpayment of rent or violation of roles and regulations, if any, authorize any attorney of any court of record to appear for him and enter an amicable action ofejectment and confess a judgment of ejectment therein for the premises herein described and does authorize the immediate issuing of a writ of possession and execution for cost without asking leave ofthe court. A photocopy of this Lease may be used for confession ofjudgment tbr unpaid rent, or for conl~ssion of.iudgment ih ejectment. Such remedies shall be cumulative, and not alternative, and may be re- exercised as necessa .ry. 18. The Lessee shall conlbrm to all rules and regulations made by the Lessor for the use and governmenl and nmnagement of this mobile home park to prolecl tile entire premises of Ire I.esqor and m lia'ther the general corn fen and wclthre of all of Ihe occupants. ~ rich rules and regulalions, and any clm,ges thereto herealier ach~pled, are allached herelo and incorlxu-ated berei~l or relkrence, and made a part hereolt ami are cox chants and condiliuns of this Lease. the same as if lhllv scl lbrlh herein I.csqor shall Ibrnish I.essee xxilh a notice el'all chanues in said rul~s and reuulations. l,essee ackno~ledges receipt eta copy of'such regulations concurrent xxilh~thc execution ol' Ihi~ I.ease. 1 9 I1' im~t't~edin? shall be comenccd by I.andlord lo rccm er possession trade[ Iht, Acls of Assemhlx. either al thc cod ol'lhe lerm or so~mer tem~inalions ~1' this I.casc. or Ibr ntmpayment el'real, or any oilier reason, lenanl specil]callv xxaixes 111¢ rifflll 1~ lilleen or thirh' dax~' m,lice required by the AcIs ot'Assen[blx of April 2~. Iq83. PI, 2{12. and agrees thai lixe days' nolice shall t~e sufficient }a eilhe~ or anx such 21. agrcemcnl shall he legally binding upon the pnrticq herelo, and II~eir respecl/t e heirs. ~uccessnm and assigns. If any infi)r[nalim~ proxided bx thc lessee. ~hcther by x~av of back~round, finaucial or othem'ise, which has indu~'cd the I,essor to enle~ into ' this I,ease, is fimnd by the Lessor lo be Ihlse, the l.case shall, at the optim~ of'lhe l.essor and u~n notice to Ire Lessee. be null and xoid and the Lessee shall be considered a tresspasser. I,essor may f'rom thn¢ lo time modil'v, chanue or ~c~ eke rnles fbr Ire Mobile I hm]c Park and upon notice to the tenant, tilese rules shall be incorporated herein with Ibc same lbrce and ellkct as though the)' were in Ibrce at Ihe time this Lease was executed. 22. I .essee agrees Ihat he has read this Lease Aoreemem., understands/ts terms anti the rnles and regulations of the Mobile Home Park and agrees to be bound lherehy. 'FI IIi TF!NANT MUST (}IV[ AT I.EAS'J' 30 DAYS Nf Yl ICl]. IN \\'R TIN{ L PRIOR '1 t) MOVING. H' IS THE RESPI')NSIBII.H'Y OF 'II IE 'I'ENAN I' 'l'f) PRf)VII)E MANAGL~MENT WH'I[ ALI, NECESSARY COMPI,E'I tit) S I A'H'~ t )R 1.{ ~CAL GOVERNMENT FORMS. IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and seals the day and year first above written. Witness Witness Wimess Agent for Landlord ~' (/ Tenant By our signature(s) above we also acknowledge receipt of the Rules and Regulations of Twigg Mobile Home Park on signing of this lease. Initial Initial TO: ALL COUNSEL YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. JANE A. NORTH, ESQUIRE Attorney for Defendant DEASEY, MAHONEY & BENDER, LTD. BY: JANE A. NORTH, ESQUIRE Identification No: 63728 1800 John F. Kennedy Blvd. Suite 1300 Philadelphia, PA 19103-2978 (215) 587-9400 059.20,865 Attorneys for Defendants, Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust and Twigg Family Trust t/d/b/a Twigg Mobile Home Park WILLIS PIERCE, Plaintiff, JEAN TWIGG, JAMES AND BETTY TWIGG, individually and as Trustees of Twigg Family Trust and TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY 02-2380 JURY TRIAL DEMANDED CIVIL ACTION - LAW DEFENDANTS, JEAN TWlGG, JAMES AND BETTY TWIGG, individually and as Trustees of Twigg Family Trust and TWlGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MA TTER Defendant, Twigg Family Trust d/b/a Twigg Mobile Home Park (incorrectly identified in Plaintiff's Complaint as"Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust and Twigg Family Trust tJd/b/a Twigg Mobile Home Park") (hereinafter "Answering Defendant") by and through its counsel, Deasey, Mahoney & Bender, Ltd., hereby responds to Plaintiff's Complaint and avers, upon information and belief in support of the same, as follows: DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 1. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 2. Denied. It is specifically denied that Jean Twigg resides at the address identified in this paragraph of Plaintiff's Complaint. 3. Admitted in part; denied in part. It is admitted only that Twigg Family Trust d/b/a Twigg Mobile Home Park maintains an office at the address identified in this paragraph of Plaintiff's Complaint. It is specifically denied that James and Betty Twigg are the Trustees of the Twigg Family Trust. By way of further response, James and Betty Twigg are deceased. 4. Admitted in part; denied in part. It is admitted that Twigg Mobile Home Park maintains an office at the address identified in this paragraph of Plaintiff's Complaint. It is specifically denied that Twigg Family Trust t/d/b/a Twigg Mobile Home Park, Inc. is a corporation. 5. Denied. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania rules of Civil Procedure. It is further specifically denied that Jean Twigg has any ownership of the subject premises. 6. Denied. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania rules of Civil Procedure. It is further specifically denied that James and Betty Twigg have any ownership of the subject premises. It is further specifically denied that James and Betty Twigg are the Trustees of the Twig Family Trust. 7. Admitted. 8. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering -2- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 9. Denied. Answering Defendant denies the averments contained in this paragraphas they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 10. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 11. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. COUNT I - NEGLIGENCE Willis Pierce v. Jean Tw~a¢l 12. Answering Defendant incorporates herein by reference its answers to paragraphs 1-11 above as if same were fully set forth at length. 13. Denied. Answering Defendant denies the averments contained in this paragraph SUITE 1300 · -3- DEASEY, MAHONEY & BENDER, LTD. 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 as they state conclusions of law to which no response is required under the Pennsylvania rules of Civil Procedure. 14. Answering Defendant specifically denies that it was negligent in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. The averment of agency is denied since the individuals who were allegedly the agents, servants and/or employees and/or under the control of Answering Defendant are not identified and, thus, such individuals must be considered independent contractors acting for their own purpose until further is identified. It is further specifically denied as follows: (a) that Answering Defendant caused or permitted a several inch deep hole at the Premises to remain, thereby posing an unreasonable risk of injury to Plaintiff and to other persons lawfully upon the premises; (b) that Answering Defendant caused or permitted to be present a several inch deep hole to remain on Marlette Drive when Defendant knew or should have known of the likelihood of the several inch hole could cause injury; (c) that Answering Defendant failed to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition, the existence of which is specifically denied, posed by the several inch deep hole, and thereby allowed the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) that Answering Defendant failed to ensure the road at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) that Answering Defendant failed to post a warning sign or device in the area to notify of the dangerous condition of the road of said Premises, the existence of which is specifically denied; -4- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 (f) that Answering Defendant failed to remove or remedy the several inch deep hole in the road of said Premises so as to avoid the situation in which the Plaintiff's foot went into the hole causing him to trip and fall; and (g) that Answering Defendant failed to maintain the road in a reasonably safe condition that would prevent a person from tripping and falling. 15. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 16. Denied. Answering Defendant specifically deny that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. 17. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. 18. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. 19. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is -6- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 demanded at trial. 20. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. 21. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant, Twigg Family Trust d/b/a Twigg Mobile Home Park (incorrectly identified in Plaintiff's Complaint as "Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust and Twigg Family Trust t/d/b/a Twigg Mobile Home Park") demands judgment in its favor and against all parties together with attorneys fees, interest and costs and whatever further relief this Honorable Court deems appropriate under the circumstances. -7- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 ~, 1800 JOHN F. KENNEDY BOULEVARD * PHILADELPHIA, PA 19103-2978 COUNT II - NEGLIGENCE Willis Pierce v. James and Betty Twigg, Individually and as trustees of Twi;Lq Family Trust 22. Answering Defendant incorporates by reference herein its responses to the allegations contained in paragraphs 1 through 21 inclusive of Plaintiff's Complaint as fully as though the same were set forth herein at length. 23. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania rules of Civil Procedure. By way of further response, it is specifically denied that James and Betty Twigg were the Trustees of the Twigg Family Trust. 24. Answering Defendant specifically denies that it was negligent in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiffs, the existence of which is denied. The averment of agency is denied since the individuals who were allegedly the agents, servants and/or employees and/or under the control of Answering Defendant are not identified and, thus, such individuals must be considered independent contractors acting for their own purpose until further is identified. It is further specifically denied as follows: (a) that Answering Defendant caused or permitted a several inch deep hole at the Premises to remain, thereby posing an unreasonable risk of injury to Plaintiff and to other persons lawfully upon the premises; (b) that Answering Defendant caused or permitted to be present a several inch deep hole to remain on Marlette Ddve when Defendant knew or should have known of the likelihood of the several inch hole could cause injury; (c) that Answering Defendant failed to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition, the existence of which is specifically denied, posed by the several inch deep hole, and thereby allowed the same -8- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) that Answering Defendant failed to ensure the road at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) that Answering Defendant failed to post a warning sign or device in the area to notify of the dangerous condition of the road of said Premises, the existence of which is specifically denied; (f) that Answering Defendant failed to remove or remedy the several inch deep hole in the road of said Premises so as to avoid the situation in which the Plaintiff's foot went into the hole causing him to trip and fall; and (g) that Answering Defendant failed to maintain the road in a reasonably safe condition that would prevent a person from tripping and falling. 25. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 26. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the -9- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 averments contained therein. The same are, therefore, denied and stdct proof thereof is demanded at trial. 27. Denied. Answering Defendant specifically denied that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. 28. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at tdal. 29. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. 30. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiffs Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant, Twigg Family Trust d/b/a Twigg Mobile Home Park (incorrectly identified in Plaintiffs Complaint as "Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust and Twigg Family Trust t/d/b/a Twigg Mobile Home Park") demands judgment in its favor and against all parties together with attorneys fees, interest and costs and whatever further relief this Honorable Court deems appropriate under the circumstances. COUNT III - BREACH OF CONTRACT Willis Pierce v. Tw~q.q Family Trust t/d/b/a Twigg Mobile Home Park 31. Answering Defendant incorporates by reference herein its responses to the allegations contained in paragraphs I through 30 inclusive of Plaintiffs' Complaint as fully as though the same were set forth herein at length. SUITE 1300 -11- DEASEY, MAHONEY & BENDER, LTD. 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 32. Denied as stated. 33. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 34. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. By way of further response, Answering Defendant specifically denies the existence of a hazardous condition and demands proof thereof at time of trial. 35. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. By way of further response, it is specifically denied that any action on the part of Answering Defendant was the direct or proximate cause of any injuries or damages allegedly suffered by Plaintiff. WHEREFORE, Defendant, Twigg Family Trust d/b/a Twigg Mobile Home Park (incorrectly identified in Plaintiff's Complaint as "Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust and Twigg Family Trust t/d/b/a Twigg Mobile Home Park") demands judgment in its favor and against all parties together with attorneys fees, interest and costs and -12- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 whatever further relief this Honorable Court deems appropriate under the circumstances. NEW MA T'I'ER 36. Answering Defendant incorporates herein by reference each and every answer to paragraphs I through 35 of Plaintiff's Complaint as though same were fully set forth herein. 37. Service of process was improper. 38. The Plaintiff has failed to state a cause of action upon which relief may be granted against Answering Defendant. 39. The Plaintiff's claims are barred and/or limited by the Plaintiff's assumption of the risk. 40. The Plaintiff had knowledge of all the alleged circumstances set forth in the Plaintiff's Complaint and assumed the risks incident to said circumstances. 41. The Plaintiff's claims are barred by the applicable Statute of Limitations. 42. The Plaintiff's alleged injuries and damages, if any, were caused by his own comparative negligence, and therefore are barred and/or limited. 43. The Plaintiff's alleged injuries were caused by some third party or parties over whom Answering Defendant had no control. 44. Answering Defendant believes, and therefore aver, that the injuries, if any allegedly sustained by Plaintiff were directly and proximately caused by the contributory and/or comparative negligence of the Plaintiff and all claims are therefore barred or limited by the applicable provisions of the Pennsylvania Comparative Negligence Act, 42. Pa.C.S.A. {}7102 45. Answering Defendant denies that a dangerous and/or defective condition existed as alleged and further denies that it had knowledge, either actual or constructive notice of the alleged condition or that it, with reasonable diligence would have had notice of said condition. 46. Answering Defendant neither had nor should have had notice of the alleged defects complained of in Plaintiff's Complaint, said defects being specifically denied, and carefully and prudently performed any duties it may have owed Plaintiff. -13- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 * 1800 JOHN F. KENNEDY BOULEVARD * PHILADELPHIA, PA 19103-2978 47. Any alleged defect complained of in Plaintiff's Complaint, said defects being specifically denied, was open and obvious. 48. Answering Defendant did not owe Plaintiff any duty. To the extent that Answering Defendant did owe any duty to Plaintiff, it discharged that duty properly. 49. Plaintiff failed to join all necessary and indispensable parties. 50. This Court lacks jurisdiction over the subject matter of this action. 51. This Court lacks personal jurisdiction over Answering Defendant. 52. Plaintiff's and/or other third parties' actions and/or omissions were negligent and such negligence was a superseding, intervening cause of the alleged accident which bars and/or limits all claims by Plaintiff arising therefrom. 53. Plaintiff has failed to mitigate any damages that he allegedly sustained. 54. Any act and/or omissions on the part of this Answering Defendant which are alleged to constitute negligence were not substantial causes or factors which led to the subject incident, and did not result in the losses alleged to have been sustained by Plaintiff. 55. Inasmuch as Pennsylvania Rule of Civil Procedure 1032 provides that a party waives all defenses not presented by way of answer, Answering Defendant, upon the advice of counsel, hereby asserts all affirmative defenses not otherwise enumerated herein. As set forth in Pennsylvania Rule of Civil Procedure 1030, the said affirmative defenses include, inter alia, estoppel, immunity from suit, release, statute of limitations, et al. The said affirmative defenses are subject to demonstration during the discovery process and proof at time of trial. WHEREFORE, Defendant, Twigg Family Trust d/b/a Twigg Mobile Home Park (incorrectly identified in Plaintiff's Complaint as "Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust and Twigg Family Trust tJd/b/a Twigg Mobile Home Park"), SUITE 1300 -14- DEASEY, MAHONEY 8[ BENDER, L'rD. 1800 JOHN F. KENNEDY BOULEVARD * PHILADELPHIA, PA 19103-2978 respectfully requests this Honorable Court to enter judgment in its favor and dismiss Plaintiff's Complaint with prejudice. DEASEY, MAHONEY & BENDER, LTD. JAN Attorneys for Defendants, Jean Twigg, Jam~m"and Betty Twigg, Individually and as Trustees of Twigg Family Trust and Twigg Family Trust t/d/b/a Twigg Mobile Home Park Dated: September 26, 2002 SUITE 1300 · -15- DEASEY, MAHONEY & BENDER, LTD. 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 VERIFICATION I, JANE A. NORTH, ESQUIRE, make this verification subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, and verify the statements made in the foregoing, Defendants' Answer to Plaintiff's Complaint with New Matter are true and correct to the best of my knowledge, information, and belief. Dated: ~_~..L~ JANE .~ORTH -- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 * 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 CERTIFICATE OF SERVICE I, JANE NORTH, hereby certify that I have served upon all persons listed below a true and correct copy of Defendant, Twigg Family Trust d/b/a Twigg Mobile Home Park's (incorrectly identified in Plaintiff's Complaint as "Jean Twigg, James and Betty Twigg, Individually and as Trustees of Twigg Family Trust and Twigg Family Trust t/d/b/a Twigg Mobile Home Park") Answer and New Matter by First Class Mail: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 Dated :~,_~ ~ JAN E~J NORTH SUITE 1300 -17- DEASEY, MAHONEY & BENDER, LTD. 1800 JOHN F. KENNEDY BOULEVARD - PHILADELPHIA, PA 19103-2978 DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE BARBARA C. MORROW, ESQUIRE Identification Nos. 25699/81533 1800 JFK Blvd., Suite 1300 Philadelphia, PA 19103-2978 (215) 587-9400 059.20865 /lttorneys for Defendants Jean Twigg, James and Betty Twigg, Individually and as Trustees Twigg Family Trust t/d/b/a Twigg Mobile Home Park WILLIS PIERCE, COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Plaintiff, V. JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLY AND AS TRUSTEES OF TWIGG FAMII,y TRUST, AND TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, Defendants. COURT OF COMMON PLEAS CIVIL ACTION-LAW NO. 02-2380 CIVIL TERM PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the Verification of Jane N'or~, Esquire for hhat of Defendant, Jean Twigg, which was previously filed with the Answer to Complaint. DEASEY, MAHONEY & BENDER, LTD. Dated: 10-02-02 JA~ NORTH, ESQUIRE DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103~2978 VERIFICATION I, t~t0 '7~/~ ,makethis verification subject to the penalties of lS Pa. C.S.A. §4904 relating to unswom falsification to authorities. The attached Answer with New Matter is based upon information which I have furnished to my counsel and information which has been gathered by counsel in preparation for the defense of this lawsuit. The language contained in the document is that of counsel and not mine. I have read the Answer with New Matter as drafted by counsel and, to the extent it is based upon information whiclx we have given to our counsel, it is tree and correct to the best of my knowledge, irLfomiation and belief. To the extent that the contents of the Answer with New Matter are that of counsel, I have relied upon our counsel in making this verification. G:LBCIVlXCases\Pierce-20865XPleadingsXAnswer to Plaintiffs Compl with NM.wpd DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 * 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 CERTIFICATE OF SERVICE I, JANE A NORTH, hereby certifies that I caused to be served a true and correct copy of PRAEClPE TO SUBSTITUTE VERIFICATION was served via First Class mail, postage prepaid upon the following: Dated: Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 Attorney for Plaintiff ~UIRE DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 WILLIS PIERCE, Plaintiff JEAN TWlGG, JAMES and BETTY : TWlGG, Individually and as Trustees : of Twigg Family Trust, and : TWlGG FAMILY TRUST t/d/b/a : TWlGG MOBILE HOME PARK, : Defendants : : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 02-2380 CIVIL ACTION. LAW JURY TRIAL DEMANDED .PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTEi-~ TO: Defendants and Barbara C. Morrow, Esq. Deasey, Mahoney & Bender, Ltd. Suite 1300 1800 John F. Kennedy Boulevard Philadelphia, PA 19103-2978 36. required. This paragraph is a paragraph of incorporation to which no response is 37. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent that this averment may be deemed factual, it is hereby denied. By way of amplification it is denied that service was improper. On the contrary, service of the Writ of Summons was made by Sheriff upon James Twigg, individually and as Trustee of the Twigg Family Trust by handing a copy to Dean Twigg at 156 Tory Circle in Enola, Cumberland County, Pennsylvania on the 16th day of May, 2002. Service was made upon Betty Twigg, individually and as Trustee for the Twigg Family Trust on the 16th day of May, 2002, by Sheriff's service at 156 Tory Circle, Enola, Cumberland County, Pennsylvania. On May 16, 2002, service was made upon the Twigg Family Trust, t/d/b/a Twigg Mobile Home Park by Sheriff upon Jean Twigg at 156 Tory Circle, Enola, Cumberland County, Pennsylvania on May '16, 2002. Service was made upon Jean Twigg on the 16th day of May, 2002 by Sheriff upon Jean Twigg at 156 Tory Circle, Enola, Cumberland County, Pennsylvania. 38. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification it is denied that plaintiff has failed to state a cause of action upon which relief may be granted against answering defendant. 39. The averment of this paragraph constitutes a conclusion of law to which no responsive pleading is required. To the extent that this averment may be deemed factual in nature, it is hereby denied. By way of amplification it is denied that Plaintiff's claims are barred and/or limited by Plaintiff's assumption of the risk. Plaintiff in no way assumed the risk of his injuries. 40. The averment of this paragraph constitutes a conclusion of law to which no responsive pleading is required. To the extent that this averment may be deemed factual in nature, it is hereby denied. By way of amplification it is denied that Plaintiff's claims are barred and/or limited by Plaintiff's assumption of the risk. Plaintiff in no way assumed the risk of his injuries. 41. The averment of this paragraph constitutes a legal conclusion to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is denied that Plaintiff's claims are barred by the applicable statute of limitations. On the contrary, the date of injury was May 17, 2000 and this case was commenced by Writ of Summons filed in the Court of Common Pleas on May 14, 2002. Furthermore, as is stated in 42 Pa. C.S.A. § 5524, an action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another must be brought within two years. As such, Plaintiff's action was clearly filed within the applicable statute of limitations. 42. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent this averment may be deemed factual, it is hereby denied. By way of amplification, it is hereby denied that Plaintiff was negligent in any way. 43. The averment of this paragraph constitutes a conclusion of law to which to responsive pleading is required. By way of amplification, Defendants' averment lacks the specificity required by the Pennsylvania Rules of Civil Procedure. Further, all of plaintiff's injuries and damages were caused solely and directly as a result of the negligence, carelessness, wantonness and recklessness of the instant defendant. 44. Defendant's averment is a conclusion of lawto which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff was in no way negligent. Therefore, the Pennsylvania Comparative Negligence Act does not apply to the instant action. Further, all of Plaintiff's injuries and damages are recoverable in the instant action and are in no way reduced. 45. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, it is denied that answering Defendant did not have knowledge, either actual or constructive, of the alleged condition of Defendant's premises. 46. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, it is denied that answering Defendant neither had nor should have had notice of alleged defects complained of. Defendant knew or with the exercise of reasonable inspection should have known of the alleged defects. 47. Defendants averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, it is denied that the defect of Defendants' property was in any manner open and/or obvious. 48. Defendants averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant did owe Plaintiff the duty and it is denied that answering defendants discharged that duty properly. 49. Defendants averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant's averment lacks the specificity required bythe Pennsylvania Rules of Civil Procedure. Further, all of Plaintiff's injuries and damages were caused solely and directly as the result of the negligence, carelessness, wantonness and recklessness of the instant Defendants. 50. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual in nature, it is hereby specifically denied. By way of amplification, it is denied that this Court lacks jurisdiction over the subject matter of this action. 51. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, it is denied that this Court lacks personal jurisdiction over answering Defendants. 52. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, it is denied that Plaintiff in any manner was negligent. Furthermore, Defendants' averment lacks the specificity required by the Pennsylvania Rules of Civil Procedure. Further, all of Plaintiffs injuries and damages were caused solely and directly as a result of the negligence, carelessness, wantonness, and recklessness of the instant Defendants. 53. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual in nature, it is hereby specifically denied. By way of amplification, it is denied that Plaintiff failed to mitigate any damages that he sustained. 54. Defendants' averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, act and/or omissions on the part of answering Defendants were negligent and were a substantial cause or factor which lead to subject incident and resulted in the losses sustained by Plaintiff. 55. Defendants' averment is a conclusion of lawto which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Pennsylvania Rules of Civil Procedure specifically provide provisions in Pennsylvania Rule of Civil Procedure 1030 whether affirmative defenses can be asserted without enumeration. Furthermore, this paragraph violates the provisions of Pennsylvania Rule of Civil Procedure 1022 in which mandates each paragraph contain as far as practical only one material allegation. It is denied that Defendants can be preserving defenses in the manner asserted by paragraph 55 and to the extent that they may, which is denied, it is denied that the doctrines of estoppel, immunity from suit, relief, statute of limitations, et al. in any way apply to the instant case. WHEREFORE, Plaintiff Willis Pierce respectfully requests This Honorable Court to dismiss Defendants' Answer and New Matter and enter judgment in his favor against Defendants Jean Twigg, James and Betty Twigg, individually and as Trustees of Twigg Family Trust and Twigg Family Trust, t/d/b/a Twigg Mobile Home Park. Respectfully submitted, HANDLER, HENNING & ROSENBERG LLP Date: I.D. No. 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff VERIFICATION STEPHEN G. HELD, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to unsworn falsification to authorities. Step~,,i'~H el~,, E~quire Dated: [~,)[ '::~/~ ~ CERTIFICATE OF SERVICF AND NOW, this /(~~(~ day of 0c-~, ~ ,2002, I hereby certify that I have, on this date, served the within document upon defendant's counsel and all counsel of record by sending a true and correct copy of same to them via first class United States mail, postage prepaid, and addressed as follows: Barbara C. Morrow, Esq. Deasey, Mahoney & Bender, Ltd. Suite 1300 1800 John F. Kennedy Boulevard Philadelphia, PA 19103-2978 HANDLER, HENNING & ROSENBERG Patricia Koh~lein CERTIFICATE PP~T~QUISITE TO SEHVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: WILLIS PIERCE JEAN TWIGG, ET AL -VS- COURT OF COMMON PLEAS TERM, CASE NO: 02-2380 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of JANE NORTH, ESq. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty 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= 10/29/2002 /~ o~-~b~ehalf of Attorney for DEFENDANT DEll-369777 08713 --LO1 COI'iI~IOSII,~ALTH OF PENNSYLVANIA COUNTY OF C~ERLAND IN THE MATTER OF: WILLIS PIERCE JEAN TWIGG, ET AL -VS- COURT OF C0~i0N PLEAS TERM, CASE NO: 02-2380 ~ =u~uaa-l' ~O RULE 4009.21 GRAND¥IEWSURGERy CIA'N'I']~ ~ICAL RECORDS DR. LITTON MRDICAL RECORDS WEST SNORE ANESTliESIA MEDICAL RECORDS TO: STEVENHELD, ESQ. HCS on behalf of JANE NORTH, ESq. intends to serve a subpoena identical to the one that is attached to this notice. You have t~enty (20) days fra~ the date listed belo~ in~hich to file of record and serve upon the undersiEned an objection to the subpoena. If the t~nty day notice period is valved or if no objection is made, then the subpoena amy be served. Complete copies of any reproduced records m,y be ordered at your expense by completing the attached counsel card and returnin8 same to HCS or by contactin8 our local HCS office. DATH: 10/0912002 CC: JANE NORTH, ESQ. - 059.20865 HCS on behalf of JA~E NORTH, ESq. Attorney for D~FENDAN~ questions regardinE this mtter, contact THE H CS GROUP INC. 1601 ~,u~T STREET ~600 (215) 246-0900 DE02-202749 08713--(:01 WILLIS PIERCE -VS- JEAN TWIGG, ET AL ~-~UNTY OF CUMBERLAND File No. 02-2380 TO: SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 CUSTODIAN OF RECORDS FOR: GRANDVIEW SURGERY & LASER CENTER (N~me of Person or Within twenty (20) days after service of ' things: this subpoena, yo%a~ o~%~E~)he court to produce the following documents or at THE MCS GROUP, INC., 1601 MARKET STREET, SUITE 800, PHILADELPHIA PA 19103 (Addrt~,) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the fight 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 requirod by this subpoena, within twenty (20} days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: JANE A. NORTH, ESQ. ADDRESS: 1800 J.F.K. BLVD., SUITE 1300 PHILADELPHIA PA 19~103 TELEPHONE: ~215) 246-0900 SUPREME COURT ID #: A rrORNEY FOR: THE DEFENDANT 10/29/2002 DATE: ~/e~C'~ ~,~, ~ Seal of the Court ~ · .,,;honotary/Clerl~ Civil J~gi~i~n (Eft. 7 / ~7) EXPLANATION OF RF~QUIRFD RECORDS TO: CUSTODIAN OF RECORDS FOR: GRANDVIEW SURGERY CENTER 205 GRANDVIEW AVENUE CAMP HILL, PA 17011 RE: 8713 WILLIS PIERCE Any and all records, correspondence, files and memorandums, handwritten notes, billing and payment records, relating to any examination, consultation, care or treatment. Dates Requested: up to and including the present. Subject: WII,LIS PIERCE SU10-403116 0~]_~ --LO~_ CEHTIFICATE PREREQUISITE TO SEi[VlCg OF A SUBPOENA PB~SUANT TO RULE 4009.22 IN THE MATTER OF: WILLIS PIERCE JEAN TWIGG, ET AL -VS- COURT OF CO~40N PLEAS TERM, CASE NO: 02-2380 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of_JANE NORTH, ESq. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was ~ailed or delivered to each party at least twenty 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: 10/29/2002 MCS on behalf of JANE NORTH, ESq. ~ttorney for DEFENDANT DEll-369778 08713 --LO2 COI¥~v~OI~=ALTH OF PENNSYLVANIA COUNTy OF CI31w_]~ERL~I~TD IN THE MATTER OF: WILLIS PIERCE JEAN TWIGG, ET AL -rS- COURT OF COMMON PLEAS TERM, CASE NO: 02-2380 -- ru~um~-r '-'0 RULE 4009.21 DR. LITTON HRD_ICAL P~ECOHDS ~ST S~O~ ~S~S~ ~I~ ~CO~S ~I~ ~CO~S TO~ S~ ~, ESQ. ~S on he. if of J~ NOH~. ESq.~t~ds to se~e a subpoe~ identical to the one ~t ~s attached to ~s notice, y~ ~ve ~nty (20) ~ys frm ~e ~te l~sted bel~ ~ ~ch to flle of record ~d se~e u~ ~e ~dersl~ed ~ object~ to the sub~. If the ~ty ~y not~ce period ~s waived or if no objection is ~de. ~en ~e subpoe~ ~y be se~ed. C~lete cop~es of ~y reproduced records my ~ or. red at y~r e~ense by c~let~s ~e attached co. eel card ~d retu~ s~ to ~S or by c~tact~ ~r local ~S offlce. ~ 10/09/2002 CC: JANE NORTN, ESQ. - 059.20865 MCS on behalf of JAN~ ~ORI~, _~. Attorney for D~'a~UABT A~! question, re~ard/n~ this ~atter, contact 1601MARKET STaS~r ~800 PIlILAD~-PR'iA, PA 19103 (215) 246-0900 DK02-202749 08713--C01 WILLIS PIERCE -VS- 3EAN TWIGG, ET AL COMMONId/EALTH OF PENNSYLVANIA COUNTy. OF .CUMBERL .AN£ File No. ~02-2380 ...... · -, · ~:n x ruKSUANT TO R~ TO: CUSTODIAN OF RECORDS FOR: JASON J. LITTON, M.D. (Name of Person or F. nifty) Within twenty (20) days O~ter service of this subpoen~ you are ordered by the things: SEE A~CI'I'~D court to produce the following documents or at THE MCS GROUP, INC., 1601 MARKET STREET, SUITE 800, PHILADELPHIA (Address) PA 19103 You may deliver or mail legible copies of the documents or produce things certificate of compliance, to the party making this requested by this subpoena, advance, the reasonable cost · request at the address listed above tosether with the of prepanng the copies or prodocinS the things sought. ' You have the right to seek, in If yo.u fa/].to produce the documents or things required by this subpoena, within twenty (20) days a~ter its service, the servln8 this subpoena may seek a court order compelling you to comply with it. party THIS SUBPOENA WAS ISSUED AT THE NAME: JANE~..A NOR,T,H,. ~SQ ~ ,. REQUEST OF THE FOLLOWING PERSON: ADDRESS: 1800 J.F.K. BLVD., SUITE 1300 PHILADELPHIA PA 19-/03 TELEPHONE: __(215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: THE DEFENDANT Seal o~ the Co~-'-~~ EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: DR. LIT'I'ON PENNA. ORTHO., P.e. 875 POPLAR CHURCH RD CAMP HILL, PA 17011 RE: 8713 WILLIS PIERCE Any and all records, correspondence, files and memorandums, handwritten notes, billing and payment records, relating to any examination, consultation, care or treatment. Dates Requested: up to and including the present. Subject: WILLIS PIERCE SU10-403118 087 ~ 3 --LO2 IN THE MATTER OF: WILLIS PIERCE JEAN TWIGG, ET AL -VS- CER?IFICA~,~ PREREQUIsIT~ TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 COURT OF C0/~f0N PLEAS TERM, CASE NO: 02-2380 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of _ JANE NORTH, ESq. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty 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: 10/29/2002 MCS on behalf of JANE NORTH, Esq. ~ttorney for DE~NDANT DEll-369779 08713 --L03 COI~I~ION'w~ALTH OF PENNSYLVANIA COL~I~Ty OF CUI~IBERLAND IN THE MATTER OF: WILLIS PIERCE JEAN TWIGG, ET AL -VS- COURT OF C0~0N PLEAS TERM, CASE NO: 02-2380 ~aA~DVIEW sua~Eay c~)rl~a 1 DH. LITTON N~nICAL P~EC0~DS ~I~ ~C0~s ~: S~~, ESO. ~S ~ be~lf of ~ ~ . ~e ~e ~t ts attac~-- - -. ~cen~s to Se~e a ~-r~ee ~ objectt~ t- -"- - .-u.~n co file of record --~ -- -'~ copies o~ ---'~ u"3~ccx°n is ~de, ~en ,~- _~I ~nz~ ~y notice per~oa ~S off/ce. --- -.fa ~a retu~ s~ to~e~~ense by C~let~ '--" "' ~ c~tact~s our local DAI~: 1010912002 CC: SA~ ~OHTN, ESQ. - 059.20865 MCS on behalf of ttoz~=y for um~.e, sUA~T Any questions re~ard/ng this matter, coatact 1601 HAEEET Sl~m~l,~ #8O0 PHZL&DELPIT~&, PA 19103 (215) 246-0900 D~02-202749 08713--C01 WILLIS PIERCE -VS- JEAN TWIGG, ET AL File No. 02__.~_~_2380 FOR DISCo,,. .... THINGS TO: CUSTODI~ OF RECO~s FOR: WEST SHORE ANESTHESIA ( thin~: SEE ATTAC~D r by ~ co~ to p ~uee the follo~ng d~umen~ or at THE HCS GROUp, ~NC., 1601 ~T STREET, SUITE 800, ~L~ELPHIA (Ad~) PA 19103 You may deliver or ~i le~ble co ce~fkate of Comeli~ce .... P ~ of the d~umem~ or -to~ ...... ~ce, [he re~onabl ~ ~ua~ or P~v~ne th~ ~--~-- ,.e auu~a i1~ a~v~ v_.. ~ r-~-~ ,~ner with the - a - ~p~, or pr~ucm8 the t~n~ ~u~ -uu ~ve ~he d~t to ~ m If you f~l ~ produce ~he d~uments or t~n~ se~in~ t~s sub~ may ~ t~l sub~ ~t~n ~en~ (~} day. ~ i~ ~wice, THIS SUB~A WAS ISS~ AT NAME ~ R. ~OR~, ~sq.-,~_ REQ~ OF ~'F~LLO~NG PE~N: ADDRESS: i800 ~.~.K. pH~?~Z~ S~ 1300 PA 1~03 TELEPHON~ ~0 SUPREME CO~T ID A~ORNEY FO~ _ ~ DEy~T Seal of the Court ~---'------~ EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: WEST SHORE ANESTHESIA P.O. BOX 249 GREENCASTLE, PA 17255 RE: 8713 WILLIS PIERCE Any and all records, correspondence, files and memorandums, handwritten notes, billing and payment records, relating to any examination, consultation, care or treatment. Dates Re. quested: up to and including the present. Subject. WILL/S PIERCE SU10-403120 08713 --LO 3 DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS J. DEASEY, ESQUIRE BARBARA C. MORROW, ESQUIRE JANE A. NORTH, ESQUIRE Identification Nos. 25699/81533/83590 1800 JFK Blvd., Suite 1300 Philadelphia, PA 19103-2978 (215) 587-9400 059.20865 Attorneys for Defendants Jean Twigg, James and Betty Twigg, Individually COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WILLIS PIERCE, Plaintiff, COURT OF COMMON PLEAS CIVIL ACTION-LAW NO. 02-2380 CIVIL TERM JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLY AND AS TRUSTEES OF TWIGG FAMILY TRUST, AND TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, Defendants. TO: Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 MOTION TO COMPEL Defendants, Jean Twigg, James and Betty Twigg individually (hereinafter "Moving Defendants"), by and through their attorneys, Deasey, Mahoney & Bender, Ltd., hereby move this Court for an Order pursuant to Pa.R.C.P. 4019 compelling Plaintiff, Willis Pierce, to respond to Moving Defendants' Interrogatories and Request for Production of Documents, and in support thereof avers as follows: DEASEY, MAHONEY & BENDER, LIT). SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 1. On August 19, 2002, Moving Defendants served Interrogatories and Requests for Production of Documents upon counsel for Plaintiff by regular mail. A true and correct copy of the August 19, 2002 transmittal letter is attached hereto as Exhibil: "A". 2. On August 26, 2002, Counsel for Plaintiff forwa~-ded a letter to counsel for Moving Defendants indicating that pursuant to Cumberland County Local Rule 4005-1, Interrogatories served upon an opposing party must be limited to 40. At that time, Plaintiff's counsel stated that when he received the requisite number of Interrogatories, he would gladly answer them. A true and correct copy of the August 26, 2002 transmittal letter is attached hereto as Exhibit "B'. 3. Shortly thereafter, on September 23, 2002, counsel for Moving Defendants, forwarded a letter to counsel for Plaintiff enclosing revised interrogatories and requesting answers to this outstanding discovery. A true and correct copy of the September 23, 2002 transmittal letter is attached hereto as Exhibit "C". 4. Again on November 5, 2002, counsel for Moving Defendants forwarded a third letter to Plaintiff's counsel requesting responses to Moving Defendants' Interrogatories and Request for Production of Documents. A true and correct copy of the November 5, 2002 letter is attached hereto as Exhibit "D". 5. Once again, counsel for Plaintiff wrote to counsel for Moving Defendants indicating that Defendants' interrogatories exceeded 40. A true and correct copy of the November 14, 2002 transmittal letter is attached hereto as Exhibit "E". 6. Counsel for Moving Defendants forwarded a second revised set of Interrogatories, which eliminated certain sub-parts of some interrogatories so that the Interrogatories amounted to 40 in accordance with Cumberland County Local Rule 4005.1. 5. To date, no response has been received from Plaintiffs and no attempt has been made to seek a protective order. -2- DEASEY, MAHONEY & BENDER, LIT). SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 6. Counsel for Moving Defendants certifies that she has attempted to communicate with counsel for Plaintiffs on several occasions regarding the discovery matter contained in the foregoing discovery motion in an effort to resolve the specific discovery dispute at issue, and further, despite all counsel's good faith attempts to resolve the dispute, she has been unable to do SO. 7. Moving Defendants require Plaintiff's discovery responses to properly prepare its defense of this action. WHEREFORE, Defendants, Jean Twigg and James and Betty Twigg individually, respectfully request that this Honorable Court enter an Order Compelling Discovery in the form of the proposed Order attached hereto. Dated: December 19, 2002 Respectfully submitted, DEASEY, MAHONEY & BENDER, LTD. JANE A. NORTH, J~SQUIRE AIMEE S. GENUARDI, ESQUIRE Attorneys for Defendants, Jean Twigg and James and Betty Twigg Individually -3- DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 VERIFICATION I, AIMEE S. GENUARDI, ESQUIRE, verify that I am the attorney for Defendants, Jean Twigg and James and Betty Twigg, individually, in this matter; that the information contained in the attached motion is true and correct to the best of my information, and belief; and that this statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. AIMEE S. (~ENEAR~I, ESQUIRE Dated: December 19, 2002 DEASEY, MAHONEY & BENDER, [:rD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD * PHILADELPHIA,, PA 19103-2978 CERTIFICATE OF SERVICE-' I, AIMEE S. GENUARDI, ESQUIRE, hereby certify that service of a true and correct copy of the enclosed discovery Motion was sent via first class mail, postage prepaid, upon the following: Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 AIMEE S. GENOARI~I, ESQUIRE Dated: December 19, 2002 DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 Exhibit A DEASEY, MAHONEY & BENDER. LTD. FRANCIS J. DEASEY HARRY O. MA_HONEY JAMES W. DALY$ GERALD I. VALENTINI:~ lAMES B. BURNS~' JANE A. NORTHer PAMELA J. DEVIN-Et BARBARA C. MORROWtO HENRI MARCEL~ IOHN M. DONAHUE~ MICHAEL L. BARB~ROt CARLA P. MARESCA~'O AIMEE S. GENUARDI~ MATTHEW B. TATE ATTORNEYS AT LAW - PROCTORS IN ADM][RALTY SUITE 1300 1800 JOHN F. KENNEDY BOULEVARD PHILADELPHIA, PA 19103-2978 215-587-9400 FACSIMILE: 215-587-9456 DIRECT E-MAIL: BCMORROW I~DMBPHII,A.COM VOICE-MAIL EXTENSION # 133 August 19, 2002 NEW JERSEY OFFICE: 80 TANNER STREET HADDONFIELD, NJ 011033 -2419 856-4294331 FACSIMII.F.: 856-429-6562 OF COUNSEL: FRAI'4K C. BENDER. WILLIAM R. DEASEY 1951-1993 JAMES G. BARNES 1988-1997 t ALSO MF-.MBER. NI BAR ALSO MEMBER CA BA~ ALSO MEMBER. DE BAR. ALSO ~1~, NY BAR Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 ge~ Willis Pierce v. Jean Twigg, James and Betty Twigg, et al. CCP Cumberland County; No. 02-2380 Civil Term Our File No.: 059-20865 Dear Mr. Held: Enclosed please find Defendants' Interrogatories and Request for Production of Documents Addressed to Plaintiff. Kindly respond within the time-frame established by the Pennsylvania Rules fo Civil Procedure. Very truly yours, BCM/ Enclosure DEASEY, MAHONEY & BENDER, LTD. BY: ~AR~ ~ t C. MORROW} ESQUIRE Exhibit B ondle.r, nmng senberg. ATTORNEYS AT LA~' Leslie B. Handler, Retired W. S(,~ott Henning David H Rosenberg (PA, FL) Carolyn M. Anner (PA, NY, RN) Matthew S. Crosby (PA, NJ) Gregory M. Feather (PA, NJ) Stephen G. Held Jason C. Imler August 26, 2002 HARI~ISBURG OFFICE 1300 Linglestown Road arrisbur~, PA 17110 717-238-2000 · 1-800-422-2224 717-233-3029 (fax) LANCASTER OFFICE 140A E King Street Lancaster, PA 17602 717-431-4000 DIRECT MAIL TO: P.O, Box 60337 Harrisburg, PA 17106 www. HHRLaw.com held@hhdaw.com Barbara C. Morrow, Esq. Deasey, Mahoney & Bender, Ltd. Suite 1300 1800 John F. Kennedy Boulevard Philadelphia, PA 19103-2978 RE: Willis N. Pierce v. Dear Attorney Morrow: Jean Twigg, et al. I received your Interrogatories Propounded Upon Plaintiff. Under Cumberland County Local Rule 4005-1, the number of interrogatories which may be served upon a party are limited to 40. Sub-parts are treated as separatE; interrogatories. Kindly forward to my attention the requisite number of interrogatories and I will gladly forward those to my client for answering. SGH/tjb cc: Willis N. Pierce Very truly :yours, HA/~~ & ROSENBERG, LLP S t~ pl~'~""C-:3( I J/eld Exhibit C FRANCIS J. DEASEY HARRY G. MAHONEY JAMES W. DALY'[ GERALD J. VALENT1NI$ JAMES B. BURNS'[ JANE A. NORTH'[ PAMELA J. DEVINE'[ BARBARA C. MORROW'[O HENRI MARCEL'[ JOHN M. DONAHLrE~: MICHAEL L. BARBIERO'[ CARLA P. MARE$CA't o A[MEE S. GENUARD~'[ MAT'FHEW B. TATE O DEASEY. MAHONEY & ]BENDER. LTD. ATFORNEYS AT LAW - PROCTORS IN ADMIRALTY SUITE 1300 1800 JOHN F. KENNEDY BOULEVARD PHILADELPHIA, PA 191013-2978 215-587-9400 FACSIMILE: 215-587-945,5 DIRECT E-MAIL: BCMORROW~DMBPHILA.COM VOICE-MAIL EXTENSION # 133 September 23, 200.2 Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 NEW JERSEY OFFICE: 80 TANNER STREET HADDON'FIELD, NJ 08033-241 856-429-6331 FACSIMILE: 856-429-6562 OF COUNSEL: FRANK C. BENDER WILLIA/vl R. DEASEY 1951-1993 JAMES G. BARNES 1988-1997 ALSO MEMBER N7 BAR ALSO MEMBER CA BAR ALSO MEMBER DE BAR ALSO MEMBER NY BAR Re: Willis Pierce v. Jean Twigg, James and Betty Twigg, et aL CCP Cumberland County; No. 02-2380 Civil Term Our File No.: 059-20865 Dear Mr. Held: Enclosed please find the revised Interrogatories addressed to your client pursuant to the Cumberland County Civil Rules. Kindly provide your client's responses within the time-frame established by the Pennsylvania Rules of Civil Procedure.. Very truly yours, DEASE~~ONEY & BENDER, LTD. By: BARBARa, C. MORROW, ESQUIRE BCM:cmc Enclosures Exhibit D DEASEY, MAHONEY & BENDER. FRANCIS J. DEASEY HARRY G. MAHONEY JAMES W. DALY~' GERALD J. VALENTINI$ JAMES B. BURNS'f JANE A. NORTH'f PAMELA J. DEVINE'f BARBARA C. MORROW'f<) IIENRI MARCEL'f JOHN M. DONAHUE~ MICHAEL L. BARBIERO'f CARLA P. MARESCA'fO AIMEE S. OENUARDI'f MATTHEW B. TATE DORY L. SATER ATTORNEYS AT LAW - PROCTORS IN ADMIRALTY SUITE 1300 1800 JOHN F. KENNEDY BOULEVAKD PHILADELPHIA, PA 19103-2978 215-587-9400 FACSIMILE: 215~587-9456 DIRECT E-MAIL: JANORTI-I~DMBPHILA.C OM VOICE-MAIL EXTENSION # 172 November 5, 2002 LTD. NEW JERSEY OFFICE: 80 TANNER STREET HADDONFIELD, NJ 08033-2419 856-429-6331 FACSIMILE: 856-429-6562 OF COUNSEL: FRAN~ C. BE~H31~. WILLIAM R. DEASEY 1951-1993 lAMES G. BARNES 1985-1~97 ~' ALSO MEMBER NJ BAR ALSO MEMBER CA BAR ALSO MEMBER DE BAR o ALSO MEMBER NY BAR Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 Re: Willis Pierce v. Jean Twigg, James and Betty Twigg, et al. CCP Cumberland County; No. 02-2380 Civil Term Our File No.: 059-20865 Dear Mr. Held: We forwarded to you Interrogatories directed to Plaintiff in connection with the above- captioned matter on September 23, 2002 in accordance with the Cumberland County Rules. To date, we have not received your responses to same. Please respond within ten (10) days in order to avoid the necessity of filing a Motion to Compel. Very truly yours, DEASEY, MAHONEY & BENDER, LTD. By: JAN/dap GAlnsurance Clicnts\C&f-O59~Pierce-20865\Correspondcnce~teld 10 dyltr 1 l-5-02.wpd Exhibit E 11/1~/02 17:10 :'Ha. nee. r, 'l,Bflnlng leslie B. ~andler, Reth'ed David H Ror,,e~b,m~ (PA. Fi.) G~/M, Fe~lt~l' {t~ NJ) HRNDLER HENNiNG & ROS~-N~E~t~ -~ l~lOJ~Y~4Jb November 14, 2002 HARR~BURG OFFICE 130~ Ungl~lu, m Road Harr~bu~. PA 17110 717-~2~ ' 1~0~-2224 717-~3~g (~) ~STER OFFICE I~A E K~g S~8t ~n~sle~, PA 17602 717~1~ DIRECT ~IL TO: 1300 Unglest~ ~ ~, PA 17110 ~.~R~w.~m ~d~hhd~.~ Jane A. North, Esq. Deasey, Mahoney & Bender, Ltd. 1800 John F. Kennedy Blvd. Suite 1300 Philadelphia, PA 19103-2978 RE.' Willis N. Pierce v. Stough's Mobile Home Park Dear Ms. North: I have received and reviewed your correspondence. I understand your position in not granting me a continuance In order to secure responses. In reviewing your discovery requests I happened to notice that your Interrogatory request failed to correspond with Cumberland County Local Rule 4005.1. Rule 4005.1 includes in pertinent part that interrogatories shall not exceed 40 in number. Interrogatories or requests for admissions inquiring as to names and locations of witnesses or existence, location and custodian of documents or physical evident= each shall be construed as one (1) interrogatory or request for admission. All other interrogatories or requests for admL,~slons, including subdivisions where one numbered interrogatory ar request for admissions, shall be construed as ~ interrogatories or requests for admissions. As such, your requirement of me answering more than 40 interrogatories, as several of your interrogatories have subparts, is improper. As such, if you forward to my attention 40 or less interrogatories I will naturally cooperate in answering those in a timely fashion. Very truly yours, HANDLER, HENNING & ROSENBERG, LLP SGH/pjk cc; Willis N. Pieme WILLIS PIERCE, · Plaintiff · VS. ' JEAN TWIGG, JAMES AND : BETTY TWIGG, individually and : as Trustees of Twigg Family Trust, : and TWIGG FAMILY TRUST : t/d/b/a TWIGG MOBILE HOME : PARK, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2380 CIVIL CIVIL ACTION - LAW IN RE: MOTION OF DEFENDANTS, JEAN TWIGG, JAMES AND BETTY TWIGG, TO COMPEL DISCOVERY ORDER AND NOW, this z. -'~ day of January, 2003, a rule is issued on the plaintiff to show cause why the relief requested in the within motion ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, ss, DEASEY, MAHONEY & BENDER, LTD. By: FRANCIS j. DEASEY, ESQUIRE BARBARA C. MORROW, ESQUIRE JANE A. NORTH, ESQUIRE Identification Nos. 25699/81533/83590 1800 JFK Blvd., Suite 1300 Philadelphia, PA 19103-2978 (215) 587-9400 059.20865 Attorneys for Defendants Jean Twigg, James and Betty Twigg, Individually WILLIS PIERCE, COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Plaintiff, COURT OF COMMON PLEAS CIVIL ACTION-LAW Vo JEAN TWIGG, JAMES AND BETTY TWIGG, INDIVIDUALLY AND AS TRUSTEES OF TWIGG FAMILY TRUST, AND TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, NO. 02-2380 CIVIL TERM Defendants. PRAECIPE TO WITHDRAW DEFENDANTS, MOTION TO COMPEL TO THE PROTHONOTARY: Dated: January 6, 2003 Kindly withdraw Defendants' Motion to Compel in the above-captioned matter for which a Rule Returnable was issued by the Honorable Kevin A. Hess on January 2, 2003. EE S. G[-~,t~UA ~RDi~, ESQUIRE Attorney for'~)efendants Jean Twigg, ,.lames and Betty Twigg Individually DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILAI~)ELPHIA, PA 19103-2978 C~ERTIFICATE OF SERVICI- I, AIMEE S. GENUARDI, ESQUIRE, hereby certify that service of a true and correct copy of the Praecipe to Withdraw Defendants' Motion to Compel was sent via first class mail, postage prepaid, this date upon the following: Stephen G. Held, Esquire Handler, Henning & Rosenberg 1300 Linglestown Road P.O. Box 60337 Harrisburg, PA 17106 Dated: MEE $. GEN~,~R-I~, ESQUIRE -~"~ G:\lnsurance Clients\C&f-059~Pierce-20865~Pleadings\Praecipe to Withdraw MTC.wpd DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 ,, 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 WILLIS PIERCE, Plaintiff JEAN TWIGG, JAMES and BETTY TWIGG, Individually and as Trustees of Twigg Family Trust, and TWIGG FAMILY TRUST t/d/b/a TWIGG MOBILE HOME PARK, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-2380 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned action settled, discontinued and ended. Respectfully submitted, HANDLER, HENNING & ROSENBERG LLP By: S~ (~. Held, Esq. I.D. No. 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff