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Home My WebLink About94-02589 , .').' \J ~ '"OJ a / .' s ~ ....... .... J :~- . III ~J .~ ~ '010 I:: :> III 10 10 :J Eo< ~ .::l .-i '0 Ii-< . III .S 'M C .oM U i~~M :> III :>.~ I:: I:: J I 'M U H'M I:: U :>'1::'0 - ~ 0 U III I:: . I< 'M .j ~~ '" I::.-i III . III ~ (Xl III III Ul:t U ~ ,J, an .-iO'O 0 0:1; N III I:: I< . r I OUlI1l to:I: .-i i~' ~ .., Ill.o 'M '" t'I<Ul ~'O :> o ::l P.'M . 'M 1<.-i:I: E :> U U ~ III III III 10 I:: ClO :I:OH . , , -:J" 5" ~. ~~ :c: ... ,- C'~_ \. _I .... Q C'J -:r Do ... Vl >l .... H " 13 .... ~ <.: I- ... ~ 0 llotll .... . .. ~ ~ ~ ~ffi 0: ,I 0 ''ll III I'l ... ~ :t 9 c: U c: Uj 0 e ~ e .... 'll ;!: tJ a ~llo ru .. c: H.... 0, ... t: " tIl 0. 0 .... .. tJ ~ ~ ~ <( 0 z . o . '" . 0 i 0. I'l - " ~~ o-l 'll . .~ z . a H c: tJ III U Z . W ~ :r ~ :> ...... ;. ZH ... :J: ~ " H '... HI-< Ic'I i ~ \'! ~ I ~ 0 U ><3 ..: W g ~ III ~ ... I- - 03 o " ~~ '" Z'll . ,~ Z I CD :s c: tIlU ... <( Z ~ . 11'I ru .. 0:< !!: 0 _ 1 N CGru U I O'll III It: 0 !>lgj .,. c: Z l!l N '" >< .. I-<H ~Ill CG.o "'I-< dj . CG III ffi~ 0 fB z :1: :t H'~..'. GARRY DELANCY and DELORES DELANCY, Husband and wife, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. 94-2589 civil Te~ HEMPT BROS., INC. and DAVID H. MARTIN EXCAVATING, INC., Defendants 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 defense 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 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 cumberland county courthouse 1 courthouse Square carlisle, PA 17013 (717) 240-6200 or 697-0371 GARRY DELANCY and DELORES DELANCY, husband and wife, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 94-2589 CIVIL TERM VS. HEMPT BROS., INC. and DAVID H. MARTIN EXCAVATING, INC., Defendants : CIVIL ACTION - LAW COMPLAINT COUNT ONE 1. Plaintiffs Garry and Delores Delancy are adult individuals who own and reside in a residence located at 580 Walnut Bottom Road in Southampton Township, Cumberland County, Pennsylvania. 2. Defendant Hempt Bros., Inc. is a corporation which maintains a place of business at 205 Creek Road, Camp Hill, Pennsylvania. 3. On or about May 16, 1992, while engaged in an earth moving contract in conjunction with construction of a manUfacturing plant for the Little Tykes company in Southampton Township, Cumberland County, Defendant began a course of blasting operations to remove rock from the construction site. Defendant continued blasting at least every other day for a considerable period of time. 4. Plaintiffs' property is located adjacent to the Little Tykes Company property on which Defendant was conducting its blasting operations, and is bordered on two sides by the Little Tykes property. 1 5. Blasting is an ultrahazardous activity which renders the party carrying out the activity absolutely liable for any damagss or injuries caused by that activity. 6. Defendant's blasting activities created seismic force waves which caused considerable physical damage to Plaintiffs' home, including cracked and broken windows, cracked masonry in numerous locations throughout the structure, and damage to Plaintiffs' TV antenna affixed to the house, and possibly other hidden damage yet to be discovered. 7. Defendant's blasting activities caused Plaintiffs' property to be pelted with dust, dirt, and rock thrown up during the blasting. 8. Throughout the course of its blasting activities, Defendant's employees trespassed on Plaintiffs' property, and frequently orally harassed Plaintiffs and their children. 9. The damage caused by Defendant's blasting activities has resulted in deterioration of the value of Plaintiffs' home. 10. Defendants activities described above have caused Plaintiffs to suffer severe mental anguish. WHEREFORE, Plaintiffs demand jUdgment against Defendant for compensatory and exemplary damages exceeding $25,000.00, costs of suit, and such additional relief as the Court deems appropriate. COUNT TWO 11. The averments of Paragraphs 1 and 4 of this complaint are hereby reaverred and incorporated by reference. 2 ~ . 'cC ! >.... I.T. ~.. ., . l- ".1 U.I<., ( - f.,.l;z.'r ..- "IU...~ t::,'.n ". 1l" '7; I .1,11 l.l -:_IZ l~. \ .; ~\.J s:: a- N U1 N ~ . J>.o f' '2 ijPoo en.... . < ~ 0 ....... U u'O '0 ~~ . -al ft o . .c: f' Z rH :- .. ~~ .... H j '0 '0 . ~ ... " ;i f't)'"' . Z" ~ ~ Poo '" HI'> I a C\ fie;"f 0 t)~ ..: ~ .. U lol " '" 15 '" 0 :tl ~ f"" '" '" '"' :;j", . 0 U'\ ... ~ ~ ~s [j", :> ..: . N U ... ~ '" :I: I < " "'lol ... E-< ..: E-< <=l '" '"' ~ ;6 ~~ ffipC~ ... (; . :> f'< 0 ... OJ "'" :I:~<=l Z U ., l>< '. . I.. 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"'" :I::I: Z ., U " ~::~u 9(,II<h,.." JlH~II1I~ "' l-"u' ~h\1 ~ V,'I'" 'l" '~'h" I 1'1"1"'4'II.I}"'IIIIOf(,',"ll"''I'\I-t PRELIMINARY OBJECTIONS TO COUNT ONE - PLAINTIFF'S COMPLAINT PURSUANT TO PA, R.C.P. No. 1028(.1 (41 (DEMURRERI 1. In Paragraph No. 10 of their complaint, Plaintiffs seek compensatory and exemplary damages for alleged severe mental anguish. 2. In order to recover for alleged severe mental anguish, Plaintiffs must alleged concomitant physical/medical injuries. ). plaintiffs have failed to allege any physical/medical injuries. 4. Plaintiffs have failed to p1ead the required language to recover for mental anguish and/or intentional infliction of mental distress. PRELIMINARY OBJECTIONS TO COUNT ONE - PLAINTIFF'S COMPLAINT PURSUANT TO PA. R.C.P. No: 1028(.1(31 (INSUFFICIENT SPECIFICITY 1 5. Plaintiffs claim property damages to their home resulting from Defendant1s blasting activities. 6. Plaintiffs claim damages in excess of $25,000.00, but fail to specifY the costs of repair or amounts of loss. 7. Plaintiffs have failed to plead with specificity as their property damages may be less than $25,000.00 WHEREFORE, Defendant Hempt Brothers, Inc. respectfully requests that Plaintiff's Complaint be dismissed. In the alternative, Defendant Hempt brothers, Inc. requests that Plaintiffs be ordered to file an amended complaint, absent the claim for mental stress and with specific damages. Respectfully submitted, Dated: 7/1/9'"1' auer, Esquire 1.0. N .: 32157 R. MUdd, Esquire Atty. 1.0. No.: 63496 500 North 12th street Lemoyne, PA 17043 (717) 975-8116 Attorneys for Defendant Hempt Brothers, Inc. ~ - ~ ;r. ~ ~:: .,.,.. \d~ ~ '=~1~1 ,.__L.'"3 \~_ ~,(.'J '~ ,.. -t..~ ...l t ,.. .l.~_ _1,.\ , "!:r ,J ~J ~ .1,..1 ~~\ I -':l , ,;. " :Ie e- .D :r ("'") 1'<< OH '" ~ ~~ H . ~ lol ~~ .. If. <=l . en ~!C ~ "'...... U'" ~ i:j....... '0 Z " ~~ 3:.... f' H <II .. g r-- 0 ... ~ '0 ;~ U - [j'Of' . f' ~ il VI .~ ~ ~l>< f'.... . " .. ~j-s - I'> ~ <II UZ'" .-< '0 o . .-< ZH" ..... :- .. 'u ~~ J~ ~~ 'O'OP< HE-<'" :> ~ '0 f' f' < .... o-l f' ~ ~ .> u m l!:e"E r-- .c ~t3 I ~ffi 0 ei ~ '" .. ~~~uE !i lolij '" f' '" UtI: ~ U'\ 0 i~ ~ . N ... .-< OZ I ... ~ V) 8 ~ ~E ":H ... U ... "'j "'E-< '" < " . H~ E-< ~! ~~ :> .-< ffi . .... ~ . :> 0 ... :l p.. HU "'" :I::I: Z U ., .. . ~' 5coll Flch"hlucr AttolM7 tI uw 100 Noqh 11th 51~ umO)'nt. rm,utlYf,nlaI7043 171717lO-1116 v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 94-2589 Civil GARRY DELANCY and DELORES DELANCY, Husband and Wife, Plaintiffs HEMPT BROTHERS, INC. AND DAVID: H. MARTIN EXCAVATING, INC., JURY TRIAL DEMANDED Defendants PRAECIPE rOR RULE TO 'ILK AN AMENDBD COHPL~tHT Pursuant to the Order of Judge George E. Hoffer, dated April 18, 1995, Defendant Hempt Brothers, Inc., hereby demands that Plaintiff Gary Delancey and Delores Delancey, his wife, file an amended Complaint in the above-captioned action within twenty (20) days of the date hereof. Dated: ~..,!o/ auer, Esquire 1.D. 32157 R. Mudd, Esquire Atty. I.D. No.: 63496 500 North 12th street Lemoyne, PA 17043 (717) 730-8116 Attorneys for Defendant Hempt Brothers, Inc. RULB TO rILB'A COHPL~IHT AND NOW, this 2{1"f'.. day of f}JJ.v<JL , 1995, in accordance with the Pennsylvania Rules of civil Procedure 1037, a Rule is hereby entered upon the Plaintiff in the above-captioned matter to file a Complaint within twenty (20) days from the service of this Rule or otherwise suffer Judgement of Non Pros. IJI "X;,/ J.u.U(!. e tJ.jo~', ~P11'''~ By *)$11,1- )< }f/h. i) ",2 prot))6notary n- YJ1tt. ~ ItlfJS Ul~ ~H r.!Z ..:l~ Ill> ..:l Z>< OUl ~~ Or.! UIll r.. - ~E ~~ ~~ !:! Z ", ~ , ""~ c :r':'r .. -r ", , 'J -, c.:') :"' . . i - UlQ) r.!1I-< en ~'.-4 II-< 0)11-< ..:l 'ri r.! 'tl +J o a a III "ri 'tl III a'tl rl III a III III ~~ Z::' j.t: r.! - 0> o - H . >U I<l:zen OH+J a 'tl -Ill a~'tl III Z a H Q) . E-t II-< U~Q) Z>O HiJ -x 'r.! Ul OZ P:H 1llE-t t:~ :€ ~ai ~ H i I ~ ti ~ ~ L, u ~ a 0 ~ , .. ~ ~ ~ ~ <( 11 z a. Ci ( tJ l('J i J: ~ !!! g ~ ~ ... <( z 6 ~ ~ (!) . ti 0 .. ~ ~ ~ ... III a. ~ ~ d \oJ <( a !: I i :> I ~ tI1 3 ~ z X ! ~ u - GARRY DELANCY and DELORES DELANCY, husband and wife, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 94-2589 CIVIL TERM vs. HEMPT BROS., INC. and DAVID H. HARTIN EXCAVATING, INC., Defendants CIVIL ACTION - LAW UMllfDlD COMPLAINT 1. Plaintiffs Garry and Delores Delanoy are adult individuals who own and reside in a residence located at 580 Walnut Bottom Road in southampton Township, Cumberland County, Pennsylvania. 2. Defendant Hempt Bros., Inc. is a corporation whioh maintains a place of business at 205 Creek Road, Camp Hill, Pennsylvania. 3. On or about Hay 16, 1992, while engaged in an earth moving contract in conjunction with construction of a manUfacturing plant for the Little Tykes company in Southampton Township, Cumberland County, Defendant began a course of blasting operations to remove rock from the construction site. Defendant continued blasting at least every other day for a considerable period of time. 4. Plaintiffs' property is located adjacent to the Little Tykes Company property on which Defendant was conducting its blasting operations, and is bordered on two sides by the Little Tykes property. 1 COUllT 011I alRlY DI~CY and DlLORl8 DI~CY v. BINIT BROB., IHC. 5. The averments ot Paragraphs 1 through 4 ot this complaint are hereby reaverred and incorporated by reference. 6. Blasting is an ultrahazardous activity which renders the party carrying out the activity absolutely liable for Hny damages or injuries caused by that activity. 7. Defendant's blasting activities created seismic force waves which caused considerable physical damage to Plaintitfs' home, including cracked and broken windows, cracked masonry in numerous locations throughout the structure, and damage to Plaintiffs' TV antenna affixed to the house, and possibly other hidden damage yet to be discovered. A breakdown of the speoitic damage caused by the blasting activities and copies ot estimates to repair the damage are attached hereto as Exhibit "A" and incorporated herein by reference. 8. Defendant's blasting activities caused PlaintiUII ' property to be pelted with dust, dirt, and rock thrown up during the blasting. 9. Throughout the course of its blasting activities, Defendant's employees trespassed on Plaintiffs' property, outting across Plaintiffs' lawn, even after Plaintiffs instructed them to stay otf ot Plaintitts' property. 10. Through the course of its blasting aotivities, Defendant's employees frequently orally harassed Plaintitfs and their children; shouted sexual suggestions to the female members 2 of Plaintiffa' houaehold, and acted in an otherwiae loud and boiateroua manner when trespassing upon and while adjacent to Plaintiffs' property. 11. The willful or reckleesly wanton behavior of Defendant's employees sst forth above was outrageous in character and seriously impaired Plaintiffs' ability to peacefully enjoy their residence. 12. The damage caused by Defendant's blasting activities has resulted in deterioration of the value of Plaintiffs' home. 13. Defendants' activities described above have cau.ed Plaintiffs to suffer pain, suffering and mental anguish. WHEREFORE, Plaintiffs demand judgment against Defendant for compensatory and exemplary damages exceeding $25,000.00, costs of suit, and such additional relief as the Court deems appropriate. COUNT TWO GARRY DILlMCY and DILORla DILlMCY v. DAVID B. HARTl. IICAVATIHG, IHC. 14. The averments of Paragraphs 1-4 and 6-8 of thia Complaint are hereby reaverred and incorpor.ated by reference. 15. Defendant is David H. Martin Excavating, Inc., a corporation which maintains a place of business at 4961 Cumberland Highway, Chambersburg, Pennsylvania. 16. In Mayor June, 1992, Defendant began a course of blasting operations on the Little Tykes property in Southampton Township, Cumberland county, Pennsylvania, and at other locations adjacent or in proximity to Plaintiffs' property. ThOBe blalt1nq operations continued for a considerable period of time. 3 ~ ,I /h I I" I, I I ' r ! i ,J /~ ':' ,i. Tlllp.'1one: 532-8455 LEROY L. KILLIAN MASONRY CONTRACTOR 167 Cleversburg Road Shlppensburg, PA 17257 D... 17 .Tung 1U2. GArv 081An~y Walnut Bottom Rd. Shippenaburg. PA. 17257 ..--...... ESTIMATE tor Damaged Walls - ~. -- .. ""- .? Inn Chimney 250 00 Right Front Corner Ot Houa 175 00 Lett Front Corner Of HouBe 180 00 Right Side Ot Garaae Wall 125 00 Lett Side Of Garage Wall 125 00 TOTAL $980 00 . ~ . >-.. ~).. .. I'";"; ..., t ,;:'. .~l ~;r.,.,:..r ,_.~(.l"'l H :'-'1._ t. ~-. J .' ., ~ II)' ~ c....; .:3" "J ~) IJ") r-.../ t., ==> """ ,_,l<Jr ,l.oJ ,", ~~ J ...;0 0',' 1'<< O~ I'l H ~> ~ '" '" '" . '" lil~ .. ... U ... ~ "'... ... '0 Z III 11 ~ t-. ~~ lol.... ... " H " !>:~ ... ~ '0 f~~1~ 0 f' . " jPoo [j] .... " .. ~ Uz ... .-< '0 o . '" ~ .-< ZH .. .... :- .. ~~ "" HI-< '" :> ~ '0 . ~-l~ '0'0 < ... o-l f' f' f' .> u ~ l!:e] l' III ~ "'< 1 a 0 .0 !>:U '" .. tl~Z~~ ~u t; ~ . lolij <Xl f' '" :> !5 U'\ 0 8 8 ~ D ~~ N ~. .-< ~~ oz 1 ... III V) \t\ !>:H ... U ... j <=It; "'I-< '" <( " !>: E-< ;~ ~~ ~~ .-< ... t' :> 0 ... OJ "I'l :I::I: Z U ., v SCOII FlrilCh,utl AlIu,tlt~ IllA. '00 NnlJh 11th SUt.. I'Mllynr,rrnnlyluni.11041 171117,\01116 .. ". v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 94-25B9 Civil JURY TRIAL DEMANDED GARRY DELANCY and DELORES DELANCY, Husband and Wife, Plaintiffs . HEMPT BROTHERS, INC. AND DAVID: H. MARTIN EXCAVATING, INC., : Defendants : ANSWER NEW MATTER AND NEW MATTER UNDER PA.C.P.P. NO. 2262(dl TO AMENDED COMPLAINT BY DEFENDANT HEMPT BROTHERS. INC. AND NOW, comes Defendant Hempt Brothers, Inc. by its attorneys and sets forth a response to the amended Complaint of Plaintiffs, whereof the following is a statement: 1. Admitted. 2. Admitted. 3. Admitted In part and denied In part. It Is admitted that Defendant engaged In some blasting activities to remove rock from a construction site ~t the site of a manufacturing plant for the Little Tykes Company In Southampton Township, Cumberland County, Pennsylvania. Defendant specifically denies Plaintiffs' characterization that Defendant continued blasting at least every other day for a considerable period of time. Specific proof Is demanded at time of trial. 4. Admitted. COUNT I GARY DELANCY AND DELORES DELANCY V. HEMPT BROTHERS. INC. 5. The averments of Paragraphs I through 4 of this Answer are hereby reiterated as though set forth at length. 6. Specifically denied. The allegations set forth In Paragraph 6 of Plaintiffs' Complaint are legal conclusions to which no responses are required. To the extent that responses would be required, It Is admitted that blasting Is considered a strict liability activity in the Commonwealth of Pennsylvania. It Is specifically denied that Defendant's blasting activities caused seismic force waves which caused considerable physical damage to Plaintiffs' home. It is also specifically denied that Defendant's blasting activities caused cracking and breaking of windows, caused cracking of masonry and damage to Plaintiffs' TV antennae and other potential hidden damage. Specific proof Is demanded at time of trial. 8. Specifically denied. It Is specifically denied that Defendant's blasting activities caused Plaintiffs' property to be pelted with dust, dirt and rock that went up during the blasting. Specific proof Is demanded at time of trial. 9. Specifically denied. It is specifically denied that throughout the course of its blasting activities Defendant's employees trespassed on Plaintiffs' property or cut across Plaintiffs' lawn. Specific proof Is demanded at time of trial. 10. Specifically denied. It Is specifically denied that through the course of Its blasting activities Defendant's employees orally harassed Plaintiffs and thel r children and/or shouted sexual suggest! ons to the female members of Plaintiffs' household or that Defendant or Its employees acted In an otherwise loud and boisterous manner. Sa Id allegations are further deni ed as legal conclusions regarding trespassing, which do not need to be responded to 2 ~ specifically by Defendant. Specific proof is demanded at time of trial. II. Specifically denied. The allegations set forth in Paragraph II of Plaintiffs' Complaint are legal conclusions to which no responses are required. To the extent th~t responses would be required, it is specifically denied that Defendant's employees engaged in willful or recklessly wanton behavior or any type of outrageous behavior or that Defendant's employees seriously impaired Plaintiffs' ability to peacefully enjoy their residence. 12. Specifically denied. Defendant is without knowledge or information sufficient to form a belief as to the averments set forth in Paragraph 12 of Plaintiffs' amended Complaint. Specific proof is demanded at time of trial. 13. It is specifically denied that Defendant's activities caused Plaintiffs' to suffer pain, suffering and mental anguish. Specific proof Is demanded at time of trial. WHEREFORE, Defendant Hempt Brothers, Inc. demands that the amended Complaint of Plaintiffs' be dismissed, with prejudice. COUNT II GARY DELANCY AND DELORES DELANCY V. DAVID H. MARTIN EXCAVATING. INC. 14. The averments set forth in Paragraphs I through 13 of the Answer are hereby reiterated as though set forth at length. 15~17. The averments set forth In Paragraphs 15 through 17 of Plaintiffs' amended Complaint are directed at a differing Defendant, David H. Martin Excavating, Inc. Defendant Hempt Brothers, Inc. has no obligation to respond to same. WHEREFORE, Defendant Hempt Brothers, Inc. demands that Plaintiffs' amended Complaint be dismissed with prejudice. 3 . . NEW MATTER OF DEFENDANT HEMPT BROTHERS. INC. By way of further defense, Defendant Hempt Brothers. Inc. alleges the following New Matter. lB. The responses set forth In Paragraphs I through 17 of this Answer are hereby Incorporated by reference, as If set forth at length. 19. Plaintiffs' Complaint fails to state a cause of action upon which relief can be granted. 20. Plaintiffs' Injuries and damages, as alleged. were caused by other persons or parties which were intervenlngl superseding causes of Plaintiffs' alleged injuries and damages. 21. The causal negligence of Plaintiffs was greater than any negligence on the part of the responding Defendant, which negligence of responding Defendant has been specifically denied. Therefore, according to 42 Pa.C.S.A. ~ 71021 there is a bar to Plaintiffs' recovery. In the alternative. the responding Defendant avers that any recovery arising from the cause of action must be diminished in accordance with the Pennsylvania Comparative Negligence Act. 22. Plaintiff's knowing and conscious assumption of the risk led to the resulting injuries and as a bar to recovery. 23. In the event that Plaintiffs' have already or In the future enter into any settlement with or execute any release of any present or future Defendant or additional Defendant or any non-party, Plaintiffs' claims against responding Defendant are reduced by the greater of the amount of consideration or payment received or to be received by the Plaintiffs or the proportionate or pro rata share of liability of the settled or released party or non-party as determined 4 I' ' pursuant to the applicable statutes. WHEREFORE, Defendant demands a jury trial and requests that judgment be entered In Its favor and against Plaintiff. NEW MATTER UNDER RULE 2252(d) HEMPT BROTHERS INC. V. DAVID H. MARTIN EXCAVATING. INC. 24. The allegations contained In the Plaintiffs' amended Complaint against co-Defendant is Incorporated herein by reference as fully as though the same were set forth herein at length, without admitting or denying same. 25. The allegations contained In this Answer and New Matter to the Plaintiffs' amended Complaint are Incorporated herein by reference as fully as though the same were set forth at length. 26. Liability on the part of this responding Defendant Is specifically denied for the reasons hereinbefore set forth. 27. If the allegations contained In the Plaintiffs' amended Complaint are determined to be true, said allegations as pertaining to this responding Defendant being specifically denied, then the Injuries and damages complained of were caused solely by the Defendant David H. Martin Excavating, Inc. 28. Defendant David H. Martin Excavating, Inc. Is joined herein to protect thi s respondi ng Defendant's ri ght of 1 ndemnity and contrl but 1 on and th 1 s responding Defendant avers that the aforesaid Defendant, David H. Martin Excavating, Inc. Is alone liable to the Plaintiffs, or In the alternative, is liable over to this responding Defendant orl In the alternative, is jointly and severally liable to the Plaintiff with this responding Defendant. The existence of any liability on the part of this responding Defendant, however, Is expressly denied. 5 .. ,0 VERIFICATlO~ I, L.1t~~ i R. PHELIl8~, in my capacity as SAFET'i l)/RGc.TM for Defendant Hempt Brothers, Inc., do hereby veri fy that as such I am the person to verify that the statements contained in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsification to authorities. Dated a,,-/&-'lL BY~~~~. Hempt Brothers, Inc. .. " And now this ~~TIFICATE OF SERVICE Z.~I1,( day of 1+14J""./- , 1995, comes Scott A. Fleischauer, attorney for Defendant, Hempt Brothers, Inc'l and certifies that he did serve a true and correct copy of this Answer with New Matter on each party of interest as indicated below by first class mail, postage prepaid at Lemoyne, Pennsylvania. Fred Hait, Esquire Griffie and Associates 200 North Hanover Street Carlisle, PA 17013 (Counsel for Plaintiff) Randall Galel Esquire Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 1710B-0999 (Counsel for Co-Defendant David H. Martin Excavating, Inc) Dated ~hll/9r co A. Fleis auer, Esquire 500 North 12th Street Lemoyne, PA 17043 (717) 730-8116 Attorney for Defendant GARRY DELANCY AND DELORES DELANCY, husband and wife Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-2589 CIVIL TERM HEMPT BROS., INC. and DAVID H. MARTIN EXCAVATING, INC., CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED REPLY OF DEFENDANT DAVID H. MARTIN EXCAVATING, INC. TO CROSS-CLAIM OF HEMPT BROTHERS. INC. 24. The Answering Defendant incorporates by reference its response to Plaintiffs' Amended complaint as if set forth at length herein. 25. Denied. The incorporated provisions are neither admitted nor denied in that after reasonable investigation the answering Defendants are without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 26. Denied. The averments of paragraph 26 are neither admitted nor denied in that after reasonable investigation the answering Defendants are without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 27. Denied pursuant to Pennsylvania Rules of civil Procedure 1029(e). 28. Denied pursuant to Pennsylvania Rules of civil Procedure 1029(e). CERTIrICATI or SIRVICE I, RAHDALL G. GALl, ISQUIRE, Attorney for Defendant, do hereby certifY that a copy of the foregoing RIPLY or DlrlNDANT DAVID B. IlARTI. IICAVATI~G, INC. TO CROSS-CLAIM or HBKPT BROTHERS was served upon the following by enclosing a true and correct copy in envelopes addressed as follows, postage prepaid, and depositing at Harrisburg, pennsylvania, on the , 1995: same in the United states ,?1!lday of Fred H. Hait, Esquire Attorney for plaintiffs Griffie and Associates 200 North Hanover street Carlisle, PA 17013 Scott A. Fleischauer, Esquire Attorney for Defendant Hempt Brothers, Inc. 500 North 12th Street Lemoyne, PA 17043 THOMAS. TIIOMAS & HAFER By JJ 11 G. Gale, Esqu re 305 North Front street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7648 -3- &i ..:I' p.,o( ~~ ~p., 8i Ij~ o ~i ~~ ~B Q\ II) 111 N I or Q\ . o Z ~ . ). .. ~': t ~ j- " llll ,~ ,.' I,:'rl',.!' "_,,,,1,' , I "{'r..' ',' f' ^' "=' L'~... t- PI " p, I,' => ...~ .' . lIIllJlIl r.lll-lll-l p::....lI-l 0).... ..:I ... r.l'tlC C c.... nInI 'tl .-i C'tl p., nI C nI ~.g Z ::l o(,t:: ..:I r.l . C~ )<~ ~r.l t!lC . III :> C . H' >UIIl o(Z+l CHC nI 'tl ,.'0 !:: l' !:: nlZ llJ HlI-l IE-t III Uo(C Z> Htj .x 'r.l 1II OZ P::H lllE-t E-t~ ~ !;llIi Ul III .. ~ ::: ~ ~ 1'1 U j en 0 o I 11:,... Ul .. ~ - Ul~O< < ~ Z II. ~ C ... z :J: ~ .... .. ~ ~ III I!..::; _ J: 0 DC u.<Z~ !!: 8 II: N l!) E-t :J:~ ~!;l o . E-tE-tU ZZ )<o(H ~~ . ~fillll ll::~ll:: filfil - C tc U) E-t ~~o ~ott: H III ~Cl HE-t ..:E-t ~~ . . 1;;2 "I' ~ - Olll< enzll. In - ti .. c .. ..::t: :> a ~ 5 0" Z II .., ~ -0 !' GARRY DELANCY AND DELORES DELANCY, husband and wife Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-2589 CIVIL TERM HEMPT BROS., INC. and DAVID H. MARTIN EXCAVATING, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: ALL PARTIES You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. THOMAS, THOMAS & HAFER By all G. Gale, Esqu Attorney No. 26149 305 North Front Street P.O. Box 999 HarriSburg, PA 17108 (717) 255-7648 Attorney for Defendant David H. Martin Excavating, Inc. COUNT ONE 5. The answering Defendant incorporates by reference his responses to paragraphs 1 through 4 of Plaintiffs' Amended Complaint as if set forth at length herein. 6. The averments of paragraph 6 of Plaintiffs' Amended Complaint are conclusions of law to which no response is required. 7-13. Denied. The averments of paragraphs 7 through 13 of Plaintiffs' Amended Complaint are neither admitted nor denied in that after reasonable investigation the answering Defendants are without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. WHEREFOR, the Defendant David H. Martin Excavating, Inc. demands that Judgment be entered in its favor and against the Plaintiffs Garry Delancy and Dolores Delancy. COUNT TWO 14. The answering Defendant incorporates by reference his responses to paragraphs 1 through 4 and 6 through 8 of Plaintiffs' Amended Complaint as if set forth at length herein. 15. Admitted. 16. Denied. It is specifically denied that in Mayor June of 1992 Defendant David II. Martin Excavating, Inc. began a course of blasting operations on the Little Tykes property in South Hampton Township, Cumberland county, Pennsylvania and at other locations or 2 in proximity to Plaintiffs' property and that blasting operations continued for a considerable period of time. On the contrary, Defendant David H. Martin Excavating, Inc. blasted on one occasion at the end of July of 1992. 17. Denied pursuant to Pennsylvania Rule of civil Procedure 1029(e). WHEREFORE, the Defendant David H. Martin Excavating, Inc. demands a Judgment be entered in its favor and against the plaintiffs Garry Delancy and Dolores Delancy. NEW MATTER 18. Some or all of plaintiffs' alleged damage may have been preexisting. 19. If Plaintiff sustained damages as alleged they were due to conduct of a party or parties with whom the Answering Defendant had no legal relationship or control or right of control. 20. Plaintiffs assumed the risk. 21. Plaintiff's cause of action is barred or limited by the Plaintiff's own causal negligence. WHEREFORE, the Defendant David H. Martin Excavating, Inc. demands that Judgment be entered in its favor and against the Plaintiffs Garry Delancy and Dolores Delancy. 3 P.A.R.C.P. 2252(d) NEW MATTER v. HEMPT BROTHERS INC. 22. The Defendant David H. Martin Excavating, Inc. incorporates by reference the plaintiffs I Amended complaint without admission as to the averments contained therein. 23. The Defendant Hempt Brothers, Inc. is joined to protect the Defendant David H. Martin Excavating, Inc.'s right of indemnity and contribution and the Defendant David H. Martin Excavating, Inc. alleges that said Defendant Hempt Brothers, Inc. is alone liable, jointly and severally liable or liable over to the Defendant David H. Martin Excavating, Inc. with respect to plaintiffs cause of action. WHEREFORE, the Defendant David H. Martin Excavating, Inc. demands that Judgment be entered in its favor and against the Defendant Hempt Brothers, Inc. THOMAS, THOMAS & HAFER By dall G. Gale, Esqu re Attorney No. 26149 305 North Front street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7648 4 ~ ~t en . n ~ . , , a- t,:, r- - ~ ~ .- , ~ .. . ~ -- c L> c:J lJ') en - ;~ ~ ..' . ::0: .::.. . <. :r Q ,y) .., ., t- '-' = ~;:S '" t/l:;j H ~t> ::;: . 11'\ ",. lil~ . u i ;; tJ en 'Oz '" .. D ~ ~ffi ... f'H ... ~ ... 111 f' M ... .... . ~ -5 ~ ;rll ~ jl>< ... ." '0 t:l UZ t:l .-< '0 o . A ..... ZH .. ... :- .. ~ '0 ~ - { ~ ~~ . 111 HE-< ... :> ~ '0 '" .. .-< < .. .... >-l f' ~::1 I>< .t> <=l U ~ li:E1J!~ "'cj I ~ 0 O~ '" .. ~U [j'O !:lij '" f' A ~J~ ~6 i:: ... 0 ~ 8~ <=l f' . N .... .-< 111 :> oz I ... ~ Vl '" '0 !>:H ... U .... f''O "'E-< '" <( " ~ ~ t:l 1-<~ E-< ~~ 111 .-< ~~ .... t' ~. . :> 0 ... OJ "lIl :I;:I: Z U ., . Scull FltlschlUt/ A'...."'7IILa.' 100 Nonh 11th It.... ltmornt, Ptnneylnnl. 17043 (7I117l01116 . v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 94-2589 civil GARRY DELANCY and DELORES DELANCY, Husband and Wife, Plaintiffs HEMPT BROTHERS, INC. AND DAVID: H. MARTIN EXCAVATING, INC., JURY TRIAL DEMANDED Defendants REPLY TO NEW HATTER UNDER PA. R.C.P. NO. 2252(41 OF CO-DEFENDANT DAVID H. MARTIN EXCAVATING. INC. AND NOW, comes Defendant Hempt Brothers, Inc. by its attorneys and sets forth a response to the New Matter of Co-Defendant David H. Martin Excavating, Inc., whereof the following is a statement: 22. No response required. Defendant Hempt Brothers, Inc. incorporates by reference its Answer with New Matter to Plaintiff's amended Complaint. 23. Paragraph 23 of Co-Defendant's New Matter contains legal conclusions to which no responses are required. To the extent that responses would be required, Defendant Hempt Brothers, Inc. specifically denies that it is alone liable, jointly and severally liable, or liable over to Co-Defendant David H. Martin Excavating, Inc. with respect to Plaintiff's cause of action. WHEREFORE, this responding Defendant, Hempt Brothers, Inc. denies that it is liable to the Plaintiffs in any amount or manner whatsoever and/or jointly and severally liable or liable over to Co-Defendant David H. Martin Excavating, Inc., and demands that Co- Defendant's N~w Matter under Pa. R.C.P. No. 2252(d) be dismissed (; '.. v) (~ ~ i - l,o I ~:! , " Itll. :- ~ ("'\" .. . . , r~' , ", L-. . .' 0' ,;:! i' l.~ ~'.'-1 r> ('.J ::',"; U:' c \t~ [c:' l:.j " t.,. ~ : \', IF'I ..J U c,) l.J 1'<< OH '" ~ ~~ H ~ . lil~ . l'l . ~ .. en u en "'... ... 'Oz ... ,.,. ~ffi ::1.... ... f'H f' !l:l f~~I~ o:JC ..... III III ... . '0 jll< [jog f' ." f' U .... uz .. .-< '0 o . '" ~ III ZH ... .... :- .. ~~ .-< HI-< .. :> :l '0 o ~.. ~ '0'0 ll< < '" .... ~ f' ~ .> U ~ III III "':H ... U .... ",iJ "'E-< '" < " ~~ E-< ~~ ~~ . .-< :> .. .... t- . :> 0 .... :l "'" :I::I: Z U ., .' S'OIl FI,l"h,urr Al"""lll.l. \00 Nonh Illh "If,. I.mll)'nr. I'rnnl'-'uni. 17041 11I71'!0 1116 I,t) .. ,~ tll' ( I" , I' \,;' ( L " I, , :'1 ,J I L ,