HomeMy WebLinkAbout94-04829
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JENNY GEORGHALLI snd
GEORGE GEORGHALLI,
her husband,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 'I c \ -- {I ~',)'I (, \ ,I Tcov."",
v.
GULLIFTY'S RESTAURANTS,
INC., CEDAR CLIFF INN,
INC, d/b/a GULLlFTY'S,
HEARTLAND PROPERTIES
LIMITED PARTNERSHIP,
WILLIAM R. DIMELlNG,
RICHARD R. SCHREIBER and
STEVEN G, PARK, Individually
and d/b/a DIMELING,
SCHREIBER and PARK,
GENERAL PARTNER of
HEARTLAND PROPERTIES
LIMITED PARTNERSHIP, and
STEVEN PARK, Individually
and t/d/b/a CUMBERLAND
MANAGEMENT,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA:
Please reinstate the Complaint In the above-refarenced matter,
Respectfully Submitted.
HANDLER AND WIENER
Date:(/~ / <-~ 7f
Attorney for Plaintiffs
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'H'.R'~"'" R.TURN - 'UMMON'/COM~I.AINT
COMMON "L.I.... NO,
COUNTY couln
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o Defendant
SERVED AND MADE KNOWN TO \/.v....' 11~t. 1/o!n'/lJ. (','''"Jc'II,.'j,u.1 81/ [1 Defendant Company
by handing a true and attested copy of the within Summons/Complaint, issued in the above captioned matter
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on J, (i.([i"I'~ ,!,. ,19 'i 'I ,at I (J :'!.: o'clock, --4-- M" E,S.T./D,S,T,
at //, J 'I Lc I:" ~ r 'T , in the County of Philadelphia,
State of Pennsylvania, to .f I C'.' " ".. ," It(,' r(
[!lil!' the aforesaid defendant, personally;
o (2) an adult member of the family 01 said defendant, with whom said defendant resides, who stated that
his/her relationship to said delendant is that of
o (3) an adult person in charge 01 defendllllt's residence; the said adult person hoving refused, upon re-
quest, to give his/her nome and relationship to said delendant;
0(4)
0(5)
0(6)
the manager/clerk of the place of lodging in which said defendant resides;
agent or person for the time being in charge 01 delendant's office or usual place of business,
the
and officer of said defendant Company;
So Answers,
~e. ~
OHN 0, GR..N....~f1'~
SWORN TO AND SUBSCRIBED
1I,fo,e me ,his fDEe 2Jl. ~M..... day
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Y {"I,I,j AJ~";t.I'JI!I)rt utNat.:tnes
By:
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Deputy Sheriff
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In The Court cT C.:mmo:-\ Ple::s or C:.J:"..;..:~;t'i::ild c;.~u';;':YI ?s:'1nsyl'l~r.I:::
Jenny dnd George Ge~~ghalli
f:5.
steven G. Park, i/6/t/.d/b/a Cumberland Management
:-roo 94-4829 Civ..U..1'Enn__._-.
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November 18, 1994
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COMMON PLEAS NO.
COUNTY COURT
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TERM, 19
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and repair of the parking lot adjscent to Gulllfty's.
4. Defendant, Cadar Cliff Inn, Inc. Is a Pennsylvania corporation that does
business by the name of Gulllfty's and who mslntalns an office and plsce of business
located at 1104 Carlisle Road, Camp HIli, Cumberland County, Pennsylvania. Plaintiff
believes end therefore avers that Cedar Cliff Inn, Inc" was In control of and
responsible for the maintenance and repair of the parking lot edjacent to Gulllfty's.
6. Defendant, Heartland Properties Limited Partnership, Is a ganeral
partnership who maintains an office and place of business located at 1631 Locust
Street, Second Floor, Philadelphia, Philadelphia County, Pennsylvania, and which lists
Dlmellng, Schreiber and Park and as Its General Partner, which Is a registered fictitious
name Indicating WIlliam R. Dlmellng, Richard R. Schreiber and Steven G. Park, as Its
principals.
6. Defendant, Cumberland Management, Is a fictitious name registered In
the Commonwealth of Pennsylvania which designates Its principal and owner as
Steven Park and which maintains an office and place of business located at 1631
Locust Street, Phlladelphla, Philadelphia County, Pennsylvania. It Is believed and
therefore averred that Steven Park trades and does business under the name
Cumberland Management Group.
7. At all times material to this action, Plaintiff, Jenny Georghalll, was a
business Invitee and/or licensee at the premises known as the Cedar Cliff Mall, located
along Carlisle Road, Camp HIli, Cumberland County, Pennsylvania.
8. Heartland Properties limited Partnership was the owner and In exclusive
management and control of the premises known as the Cedar Cliff Mall.
9. Cedar Cliff Inn, Inc. Is the owner of Gullifty's Restaurant and/or Gullifty's
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(b) In failing to maka a raasonable Inspection of tha parking lot which
would have revasled the existence of the dangerous condition posed by the
severely unevan, cracked and deteriorated parking lot and protruding manhole
cover;
(c) In failing to give warning of the dangerous condition posed by the
severely uneven, cree ked and deteriorated parking lot end protruding manhole
cover, In failing to erect barricades, or take any other safety precautions to
prevent Injury to the Plaintiff and other patrons;
(d) In failing to repair the uneven, cracked and deteriorated parking lot
and the protruding manhole cover.
14. As a direct result of Defendant's negligence, Plaintiff, Jenny Georghalll,
sustained serious Inlurles, Including but not limited to a lumbar strain, Injury to her hip
(pelvis), lacerations and bruising of her kneas and as a rasult theraof, she hss suffered
and probably will In the future continue to suffer pain and agony, to her great
detriment and loss.
15. As a result of Defendant's negligence, Plaintiff has been and probably will
In the future be hindered from attending to her usual occupation and dally duties, to
her great detriment, loss, humiliation and embarrassment.
16. As a result of Defendant's negligence, Plaintiff, Jenny Georghalll, has
undergone great physical pain, discomfort and mental anguish and she will continue
to endure the same for an Indefinite period of time In the future, to her great detriment
and loss, physically, emotionally and financially.
17. Plaintiff, Jenny Georghalli, believes and therefore avers that her Injuries
are permanent in nature.
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(b) In failing to make a reasonable Inspection of the parking lot which
would have revealed the existence of the dengerous condition posed by the
severely uneven, cracked snd deteriorated parking lot and protruding manhole
cover;
(c) In failing to give warning of the dangerous condition posed by the
soverely uneven, cracked and deteriorated parking lot end protruding manhole
cover, In failing to eract barricades, or take any other sefety precautions to
prevent Injury to the Plaintiff and other patron:!;
(dl In failing to repair the uneven, cracked and deteriorated parking lot
and the protruding manhole cover.
22. As a direct result of Defendant's negligence, Plaintiff, Jenny Georghalll,
sustained serious Injuries, Including but not limited to a lumbar strain, Injury te her hip
(pelvlsl, lacerations and bruising of her knees and as e result thereof, she has suffered
and probably will in the future continue to suffer pain and agony, to her great
detriment and loss.
23. As a result of Defendant's negligence, Plaintiff has been and probably will
In the future be hindered from attending to her usual occupation and dally duties, to
her great detriment, loss, humiliation and embarrassment.
24. As a result of Defendant's negligence, Plaintiff, Jenny Georghalll, has
undergone great physical pain, discomfort and mental anguish and she will continue
to endure the same for an Indefinite period of time In the future, to her great detriment
and loss, physically, emotionally and financially.
25. Plaintiff, Jenny Georghalll, believes and therefore avers that her Injuries
are permanent In nature,
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other persons lewfully upon the premises;
(b) In failing to make a reasonable Inspection of the parking lot which
would have revealed the existence of the dangerous condition posed by the
severely uneven, cracked and deteriorated parking lot and protruding manhole
cover;
(cl In failing to give warning of the dangerous condition posed by the
severely uneven, cracked and deteriorated parking lot and protruding manhole
cover, In failing to erect barricades, or take any other safety precautions to
prevent Injury to the Plaintiff and other patrons;
(d) In failing to repair the uneven, cracked and deteriorated parking lot
snd the protruding manhole cover.
30. As a direct result of Defendant's negligence, Plalntlff, Jenny Georghalll,
sustained serious Injuries, Including but not limited to a lumbar strain, Injury to her hip
(pelvlsl, lacerations and bruising of her knees and as a result thereof, she has suffered
and probably will In the future continue to suffer pain and agony, to her great
detriment and loss.
31. As a result of Defendant's negligence, Plaintiff has been and probably will
In the future be hindered from attending to her usual occupation and daily duties, to
her great detriment, loss, humiliation and embarrassment.
32. As a result of Defendant's negligence, Plaintiff, Jenny Georghalli, has
undergone great physical pain, discomfort and mental anguish and she will continue
to endure the same for an Indefinite period of time In the future, to her great detriment
and loss, physically, emotionally and financially.
33. Plaintiff, Jenny Georghalli, believes and therefore avers that her Injuries
-8-
Defendsnt, Steven Psrk, Individually and tldlble Cumberlend Menegement, generelly
and more speclflcslly as set forth below:
(a) In causing or permitting the parking lot et the Cedar Cliff Mall to
become severely uneven, cracked and daterlorated and with a protruding
msnhole cover, thereby posing an unreasonable risk of Injury to Plaintiff and
other persons lawfully upon the pramlses;
(b) In failing to make a reasonable Inspection of the !larking lot which
would have revealed the existence of the dangerous condition posed by the
severely uneven, cracked and deteriorated parking lot and protruding menhole
cover;
(cl In failing to give warning of the dangerous condition posed by the
severely uneven, cracked and deteriorated parking lot and protruding manhole
cover, In failing to erect barricades, or take any other safety precautions to
prevent Injury to the Plaintiff and other patrons;
(dl In failing to repair the uneven, cracked and deteriorated parking lot
and the protruding manhole cover.
39. As a direct result of Defendant's negligence, Plolntlff, Jenny Georghalli,
sustained serious InJuries, Including but not limited to a lumbar strain, Injury to her hip
(pelvis), lacerations and bruising of her knees and as a result thereof, she has suffered
and probably will In the future continue to suffer pain and agony, to her great
detriment and loss,
40. As a result of Defendant's negligence, Plaintiff has been and probably will
In the future be hindered from attending to her usual occupation and dally duties, to
her great detriment, loss, humiliation and embarrassment.
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JENNY GEORGHALLI, and
GEORGE GEORGHALLI,
her husband, PLAINTIFFS
v.
GULLIFTY'S RESTAURANTS,
INC" CEDAR CLIFF INN,
INC., d/b/a GULLIFTY'S,
HEARTLAND PROPERTIES
LIMITED P~RTNERSHIP,
WILLIAM R. DIMELING,
RICH~RD R. SCHREIBER and
STEVEN G. PARK, Individually
and d/b/a DIMELING,
SCHREIBER AND PARK,
GENERAL PARTNER OF
HEARTLAND PROPERTIES
LIMITED PARTNERSHIP, and
STEVEN PARK, Individually
an~ t/d/b/a CUMBERLAND
MANAGEMENT, DEFENDANTS
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IN THE COURT OF COMMON PLE~S
CUMBERLAND COUNTY, P~
NO. 94-4829 CIVIL TERM
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CIVIL ~CTION - LAW
JURY TRIAL DEMANDED
PRBLIHINARY OBJBCTIONS IN TBB NATURB OF A DBHURRBR
UNOBR Pa.R.C.P. 10281al III AND 141 OF DBFBNDANTS.
ST.vBN G. PARK INDIVIDUALLY AND T/D/B/A CUKBBRLAND HANAGBMBNT.
AND BBARTLAND PROPBRTIBS LIHITBD PARTNBRSBIP
Defendants Steven Park individually and t/d/b/a Cumberland
Management and Heartland Properties Limited Partnership hereby
request that this Honorable Court grant the Preliminary
Objections in the nature of a Demurrer and in support thereof
aver the following:
1, Plaintiffs, Jenny Georghalli and her husband, George
Georghal1i, filed a Complaint on August 26, 1994, in the Court of
Common Pleas of Cumberland County against Defendants, Heartland
properties Limited Partnership, William R, Dimeling, Richard R,
Schreiber, and Steven G, Park individually and tIbIa Dime1ing,
Schreiber, and Park, General Partner of Heartland properties
Limited Partnership and Steven Par.k individually and t/d/b/a,
Cumberland Management. alleging that Plaintiff sustained injuries
and damages as a result of an a1l~ged fall on August 30, 1992.
(A true and correct copy of Plaintiffs' complaint is attached
hereto as Exhibit "~"),
2. On September 20, 1994, Plaintiffs attempted to serve
Defendants steven Park individually and t/d/b/a Cumberland
Management via the Philadelphia Sheriff's Office, but was
returned "not found," as to Steven Park and Cumberland
(Management], the above-named Defendant (s] within the county of
Philadelphia, (See Sheriff's Return attached hereto as Exhibit
"B") .
3, Plaintiffs waited until November 15, 1994, to file a
Praecipe to Reinstate the Complaint with the Cumberland county
Prothonotary's office, (See Praecipe attached hereto as Exhibit
"C").
4, On December 2, 1994, Defendant Steven Park was
personally handed a copy of the Plaintiffs' complaint, by the
Philadelphia Sheriff'S Department, on behalf of Defendants steven
Park individually and t/d/b/a Cumberland Management, and
Heartland properties Limited Partnership, (See Sheriff's Return
attached hereto as Exhibit "D").
5, 'rhe applicable Statute of LJ.mi tations governing this
action is two (2) years, (~42 Pa,C,S,A, 55524),
6. The incident giving rise to this cause of action
occurred on August 26, 1992, more than two (2) years ago,
7. The statute of limitations ran on August 30. 1994,
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JENNY GEORGHALLI, and
GEORGE GEORGH~LLI,
her husband, PLAINTIFFS
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, P~
v.
NO. 94-4829 CIVIL TERM
GULLIFTY'S RESTAURANTS,
INC., CEDAR CLIFF INN,
INC., d/b/a GULLIFTY'S,
HEARTLAND PROPERTIES
LIMITED PARTNERSHIP,
WILLIAM R. DIMELING,
RICHARD R, SCHREIBER and
STEVEN G, PARK, Individually
and d/b/a DIMELING,
SCHREIBER AND PARK,
GENERAL PARTNER OF
HEARTlAND PROPERTIES
LIMITED PARTNERSHIP, and
STEVEN PARK, Individually
and t/d/b/a CUMBERLAND
MANAGEMENT, DEFENDANTS
CIVIL ~CTION - LAW
JURY TRIAL DEMANDED
BRIlr IN SUPPORT or PRILIMINARY OBJICTIONS or DlrlNDANTS
STBVIH PARK INDIVIDUALLY AND T/D/B/A CUKBIRLAND MANAGIMIHT.
AND HIARTLAND PROPIRTIIS LIMITID PARTNIRSHIP
I. FACTS AND PROCEDURAL HISTORY OF CASE
Plaintiffs, Jenny Georghalli and her husband, George
Georgha1li (hereinafter "Plaintiffs") filed a Complaint on
August 26, 1994 in the Court of Common Pleas of Cumberland county
against DefendantB, Heartland Properties Limited Partnership,
William R. Dimeling, Richard R, Schreiber, and Steven G. Park
Individually and tIbIa Dimeling, Schreiber, and Park, General
Partner of Heartland Properties Limited Partnership and Steven
Park individually and t/d/b/a Cumberland Management, The
Complaint alleges that Plaintiff sustained injuries and damages
as a result of an alleged fall on August 30, 1992. (~
Complaint, attached hereto as Exhibit "A"),
Plaintiffs attempted to serve Defendants Steven Park
individually and t/d/b/a Cumberland Management on September 20,
1994, via the Philadelphia Sherirr's office, The Sherirf's
Return indicates: "NOT FOUND as to steven Park and Cumberland
[Management), the above-named Defendant[s), within the County of
phi1ade1phia..." (~ Sheriff's Return attached hereto a. Exhibit
"B") ,
It wasn't until November 15, 1994 that plaintiffs filed 8
praecipe to Reinstate the Complaint with the Cumberland county
prothonotary's office, (~praecipe to Reinstate Complaint,
attached hereto as Exhibit "C") ,
On December 2, 1994, Defendant steven Park was handed a copy
of Plaintiffs' Complaint on behalf of Defendants steven Park
individually and t/d/b/a Cumberland Management, and Heartland
Pr.operties Limited Partnership, (~Sheriff's Return, attached
hereto as Exhibit "D") ,
Plaintiffs did not act in good faith to perfect service upon
moving Defendants Steven Park individually and t/d/b/a Cumberland
Management and Heartland Properties Limited Partnership, as
required to in Pennsylvania. Plaintiffs did not serve the
Complaint upon the moving Defendants until December 2, 1994, over
three (3) months after the statute of limitations governing this
cause of action had expired.
The statute of limitations governing this action is two (2)
years, The instance giving rise to this cause of action occurred
on August 30, 1992, more than two (2) yaars ago, Therefore. the
statute or limitations ran on August 30, 1994. As Plaintiffs did
not undertake a good faith effort to effectuate service upon and
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notify the movinq Defendants of this action, Plaintiffs' filing
of the complaint with the Cumberland county Prothonotary on
~ugust 26, 1994 was a nullity and as such did not toll the
statute of limitations, Plaintiffs are therefore time-barred and
are prohibited from pursuing their claims against moving
Defendants,
Accordingly, Defendants steven Park individually and t/d/b/a
Cumberland Management and Heartland Properties Limited
Partnership hereby move this Court to grant their Preliminary
Objections and dismiss Plaintiffs' Complaint against them, with
prejudice,
n. ISSUE
WHETHER PLAINTIFFS' COMPLAINT SHOULD BE
DISMISSED AGAINST MOVING DEFENDANTS AS
PLAINTIFFS' CLAIMS ARE BARRED BY THE RUNNING
OF THE STATUTE OF LIMITATIONS DUE TO THE
ABSENCE OF PLAINTIFFS' GOOD FAITH EFFORT TO
PERFECT SERVICE UPON MOVING DEFENDANTS?
[SUGGES'fED ANSWER: YES)
II I. ARGUMENT
THE PLAINTIFFS' COMPLAINT AGAINST MOVING
DEFENDANTS SHOULD BE DISMISSED AS PLAINTIFFS'
CLAIMS ARE BARRED BY THE RUNNING OF THE
STATUTE OF LIMITATIONS DUE TO THE ABSENCE OF
PLAINTIFFS' GOOD-FAITH EFFORT TO PERFECT
SERVICE UPON MOVING DEFENDANTS,
Defendants Steven Park individually and t/d/b/a Cumberland
Management, and Heartland Properties Limited Partnership, move
this Court for a demurer as Plaintiffs' claims are barred due to
the expiration of the applicable statute of limitations, based on
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the absence of Plaintiffs' good-faith effort to perfect service
upon moving Defendants,
In Lamn v. Hevman, 469 Pa, 465, 477-78, 366 A,2d 882, 889
(1976), the Pennsylvania Supreme Court held that a cause of
action will remain effective only if the Plaintiff "refrains from
a course of conduct which serves to stall in its tracks the legal
machinery he has just set in motion." This rule requires one to
act in good faith and in a manner that will prevent delay.
Leidech v. Franklin, 394 Pa, Super, 302, 575 A.2d 914 (1990).
The Court in LAmQ reasoned:
[W]e now concluded that there is too much
potential for abuse in a rule which permits a
Plaintiff to keep an action alive without
proper notice to a Defendant merely by filing
a Praecipe for Writ of Summons and then
having the writ reissued in a timely fashion
without attempting to effectuate service, In
addition, we find that such a rule is
inconsistent with a policy underlying
statutes of limitation of avoiding stale
claims, and with that underlying our Court
rules of making the process of justice as
speedy and efficient as possible".Our
purpose is to avoid the situation in which a
Plaintiff can bring an action, but, in not
making a good-faith effort to notify a
Defendant, retain exclusive control over it
for a period in excess of that permitted by
the statute of limitations,
LAmQ, sunra at 478-479, 366 A,2d at 888-889.
According to LAmQ, and the subsequent cases, i,e. Green v.
Vinalas, 431 Pa, Super, 58, 635 A,2d 1070 (1993), Plaintiffs have
a duty to undertake good-faith efforts to effectuate service upon
moving Defendants, which the Plaintiffs did not perform in this
current matter.
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plaintiffs have the burden of showing that their efforts
were reasonable, Leidech, SUDra.
It is not necessary that the Plaintiffs' conduct constitute
bad-faith acts or an overt attempt to delay before LAm>> can be
applied. Simple neglect and mistake to fulfill the
responsibility to see that requirements for service are carried
out may be sufficient to bring the rule in ~ to bear. Weis v.
Equibank, 313 Pa, Super, 446, 460 A.2d 271 (1983), Thus, conduct
that is unintentional which leads to a delay in the Defendant's
notice of the law suit may constitute a lack of good faith on the
Plaintiff,
In the case ~~ iudice, Plaintiffs filed a complaint against
all Defendants on August 26, 1994, with the Cumberland county
prothonotary, arising out of an alleged fall on August 30, 1994,
On September 20, 1994, the Philadelphia county Sheriff
attempted to serve Defendants Steven Park individually and
t/d/b/a Cumberland Management, only, with a copy of Plaintiffs'
Complaint, The Return from Philadelphia County Sheriff
indicates: "NOT FOUND as to Steven Park and Cumberland
[Management], the above-named Defendant[s], in the county of
Philadelphia.. ," (~Exhibit "B"), No other party to this
lawsuit was attempted to be served a copy of the Complaint at
this time,
According to Pa,R,C,P, 401(a): "original process shall be
served within the Commonwealth within thirty (30) days after the
issuance of the Writ or the filing of the Complaint," Moving
-5-
Defendants were not served within thirty (30) days after the
filing of the complaint on August 26, 1994, (Note that the
statute of limitations ran on August 30, 1994).
Plaintiffs therefore were aware that service had n2t been
perfected upon Defendant steven Park individually and t/d/b/a
Cumberland Management, as they had not been found by the
Philadelphia County Sheriff on September 20, 1994, still
Plaintiffs did not take any action, of record, until November 15,
1994, more than two and one-half months after the original filing
of the Complaint, On November 15, 1994, Plaintiffs filed a
Praecipe to Reinstate the Complaint, (~Exhibit C).
On December 2, 1994, more than three (3) months after the
filing of the original Complaint with the Cumberland County
Prothonotary's office, Defendant steven Park was handed a copy of
Plaintiffs' Complaint on behalf of Defendants steven Park
individually and t/d/b/a Cumberland Management, and Heartland
Properties Limited Partner~hip, by the Philadelphia county
Sheriff, (~Exhibit "0").
There is simply no justification for Plaintiffs failure to
take proper steps to serve moving Defendants, Plaintiffs were on
notice that Defendants Steven Park individually and t/d/b/a
Cumberland Management had been "not found" by the Philadelphia
Sheriff's office on September 20, 1994, Plaintiffs, however,
waited until November 15, 1994 to file a Praecipe to Reinstate
the Complaint, This exclusive control over the case by the
Plaintiffs, beyond the statute of limitations. is precisely the
-6-
sort of conduct the Court in LAmQ condemned. "Service of process
upon the defendant is designed to provide him with notice of the
law suit. Notice is extremely important, as it is the
constitutional touchstone for power of the Court to act,
(citations omitted)." Rosenbera v. Nicholson, 408 Pa. Super.
502, 506-507, 597 A,2d 145, 147 (1991),
Furthermore, Plaintiffs did not make any effort whatsoever
to attempt to derve Defendant Heartland properties Limited
Partnership until December 2, 1994, three (3) months after the
filing of the complaint, and the running of the statute of
limitations. Moving Defendants contend that there was no excuse
for such a delay, This, again, is unconscionable conduct, which
LAmQ and its subsequent cases wanted to prohibit.
Plaintiffs actions, or inactions, have delayed the lawsuit
which they had set in motion, Piaintiffs failed to follow
through in a timely manner to insure that moving Defendants were
indeed served with a copy of the Complaint, This conduct
constitutes a lack of good faith upon the Plaintiffs, and a
forestalling of "the machinery 0;' justice," which they had set in
motion. As stated above, it is Plaintiffs' burden to demonstrate
that their efforts were reasonable, Moving Defendants contend
that they were not.
Finally, even though Plaintiffs may assert that they had
contact with Defendants' insurance carrier regarding this alleged
incident on August 30, 1992, the Courts have held that this does
-7-
not substitute for actual service-of-process. ~, Ferrara v.
Hoover, 431 Pa. super. 407, 636 A,2d 1151 (1994).
Ferrara, SUDra the Court he1d=
FOllowing LAmQ and its progeny, our Courts
hav,. held that a Plaintiff's "failure to make
a good-faith effort to notify the Defendant
will serve to nullify both the commencement
of the action and the tOlling of the statute
of limitations," I.!:I, at 410, A,2d at 1152.
The applicable statute of limitations governing this action
is two (2) years, (~, 42 Pa,C,S.A. 55524). The alleged fall
giving rise to this action occurred on August 30, 1992, almost
two and one-half years ago, Therefore, the statute of
limitations ran on August 30, 1994.
Utilizing the reasoning of Igr~, as set forth above,
Plaintiffs' filing of the complaint with the Cumberland county
Prothonotary on August 26, 1994 did not toll the statute of
limitations. Plaintiffs' lack of good faith to effectuate timely
service upon the Defendant lead to the "nullification" of
plaintiffs' filing of the complaint. Thereby since Plaintiff's
did not commence their action before August 30, 1994, Plaintiffs'
Claims are barred by the statute of limitations.
"Appellees have a reasonable expectation to assure that once the
statue of Limitations has run, they will no longer shoulder the
burden of possible litigation," ~su:.!l, SUDra, at 411, A,2d at
1153.
Hence, Plaintiffs' complaint is dismissed and moving
Defendants' Preliminary Objections should be granted, as
-8-
Plaintiffs' claims are barred due to the running ot the statute
of Limitations.
IV. CONCLUSION
WHEREFORE, fox' the foregoing reasons, the Preliminary
objections of moving Defendants, steven Park individually and
t/d/b/a Cumberland Management, and Heartland Properties Limited
Partnership, shoUld be granted, the Plaintiffs' Complaint against
them should be dismissed with prejudice.
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
DATE:
ATTORNEY FOR DEFENDANTS
STEVEN P~RK INDIVIDUALLY and
T/D/B/~ CUMBER~ND MAN~GEMENT,
HE~RTL~ND PROPERTIES LIMITED
PARTNERSHIP
BY:
TIMO HY , ESQUIRE
100 Pine street, 4th Floor
Harrisburg, PA 17108
(717) 232-9323
I,D, No.: 52918
-9-
.
JENNY GEORGHALLI and
GEORGE GEORGHALLI,
her hu.blnd,
Plslntlff.
\/,
GULLIFTY'S RESTAURANTS,
INC" CEDAR CLIFF INN,
INC. d/b/a GULLIFTY'S,
HEARTLAND PROPERTIES
LIMITED PARTNERSHIP,
WILLIAM R. DIMELING,
RICHARD R, SCHREIBER and
STEVEN G, PARK, Individually
and d/b/a DIMELING,
SCHREIBER Ind PARK,
GENERAL PARTNER of
HEARTLAND PROPERTIES
LIMITED PARTNERSHIP, and
STEVEN PARK, Individually
and t/d/b/e CUMBERLAND
MANAGEMENT,
Defendants
, .
/lJoO&
./. ..... .,., 7
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO,
CIVil. ACTION. LAW
JURY TRIAL DEMANDED
COMPLAINT
AND NOW COMES the Plaintiffs Jenny Georghalll and George Georghelll, by
and through their attorneys, Handler and Wiener, and makes the within Complaint
against Defendents as follows:
1, Plaintiff, Jenny Georghalll, Is an adult Individual residing at 350 Equus
Drive, Camp Hill, Cumberland County, Pennsylvania.
2, Plaintiff, George Gllorghalll, Is an adult individual residing at 350 E\uus
Drive, Camp Hill, Cumberland County, Pennsylvania.
3, Defendant, Gullifty's Restaurants, Inc., Is a Pennsylvania corporation
maintaining an offlca and place of business located at 117 Heister Street, P.O. Do).
48, State College, Centre County, Pennsylvania. Plaintiff bel;eves and therefore avors
that Gulllfty's Restaurants, Inc;, was in control and responsible for th(l maintenance
ltJoos
. ,
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end repelr of the parkIng lot edJecent to Gullltty's.
4, Detandant. Ceder Cliff Inn, Inc. Is . Pennsylvsnls corporation thet does
business by the name of Gulllfty's snd who maintains en office and place of business
loceted et 1104 CarUsle Road, Camp HIli, Cumberland Counrv. Pennsylvania, Plalntlft
believes end theretore avers that Cedar CUff Inn. Jnc" was In control of and
responsible tor the malntanence and repair at the parkIng lot sdjacent to Gullltty's,
5. Defendant. Heartland Propertias Limited Partnership, h~ .a genarel
partnership who maintains an ottlce end place ot buslnus loceted at 1631 Locust
Street, Second Floor, Philadelphia, Philadelphia County. Pennsylvanle, end which lists
Dlmellng, Schreiber and Park and IS Its General Partner, which Is e registered fictitious
namalndlcetlng William R. Dlmellng. Richard R. Schreiber and Steven G. Park, as Its
prlncllisls,
6, Defendant. Cumberland Managoment. Is a fictitious name registered In
the Commonwealth of Pennsylvania which designates Its principal snd owner as
Steven Park and which maintains an office and place at buslnes: Ic;;ated at 1631
Locust Street, Phlladolphia. Philadelphia County. Pennsylvania. It is believed and
therefore averred that Steven Park trades and does business under the name
Cumberland Management Group.
7. At all times material to this action. Plaintiff. Jenny Georghalli. w~ a
business Invltae and/or licensee at the premises known as the Cedar Cliff Mall, located
t:tlong Carlisle Road. Camp Hill. Cumberland County. Pennsylvania.
8. Heartland Properties Limited Partnership was the owner and in exclusive
management and control of the premises known as the Cedar Clift Mall.
9, Cedar Clift Inn, Inc. is the owner of Gulllfty 's Restaurant and/or Gulllfty's
-2-
113010
-!c-?'7;J3
26. As. result of Defendant'. negligence, Plaintiff, Jenny Georghe/II, heB
been compelled, In order to effect a cure of the eforeseld Injuries, to upend 18rge
.ums of money for medical treatment snd enentlon end believes that she will Continue
to be required to expend eddltlonal sums for medical treatment In the future, to her
detriment end flnenclelloss,
WHEREFORE, PlaIntiff, Jenny Georghalll, seeks demages from Defendant, Ceder
Cliff Inn, Inc. d/b/e Gulfifty's, In en emOUnt In excess of Twenty. Thousand
($20.000.00) Dollars an emount In excess of tha compulsory srbltratlon limit end
demands trial by jury.
COUNT '11
JENNY GEORGHALLI v, HEARTLAND P~iPEER~~ES ;~~'~~~:::1~e:ASH~P.
WILLIAM R. OIMELlNG. R/CHARDji. SRI R.;B'E -AND~ u. R.
lNDIVrOUALL Y AND D/B/A OIME~~~E~CH~i~~~E'D P rARK.
GENERAL PARTNER OF HEARTLAND P TIE IMI ARTNERSHIP
27. Plaintiff, Jenny Georghalll, incorporates and makes a part of this Count
Paragraphs 1 through 26 of this Complaint as If fully set forth.
28. As e direct and proximate result of the negligence of Defendant.
Heartland Properties Limited Partnership. et al. Plaintiff Jenny Georghalll suffered
~erJous bodliy Injury, which wlil hereinafter be more fuliy described,
29. The occurrence of the aforesaid accident and the injurias to Plaintiff,
Jenny Georghalfi, were caused directly and proximately by the negllgenc\ of
Defendant, Heartland Properties limited Partnership, generally and more specifically
as set forth below:
(II) In causing or permitting the parking lot at the Cedar Cliff Mall to
become severely uneven, cracked and deteriorated and with a protruding
manhole cover, thereby posing an unreasonable risk of injury to Plaintiff and
-7-
ltJou
Co -,- "'7
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lire permanent In nature,
34. As e result of Defendsnt's negligence, Plaintiff, Jenny Georghelll, has
been compelled, In order to effect e cure of the aforesaid injuries, to expend Isrge
sums of money for medics I treatment and attention and believes that she will continue
to be required to expend addltlonel sums for medical treatment In the future, to her
detriment end flnanclelloss.
WHEREFORE, Plaintiff, Jenny Georghlllli, seeks damages from Defendant,
Heartland Properties Umited Partnership, in en amount In excess of Twenty Thousend
($20,000.00) Dollar,s an amount In excess of the compulsory arbitration limit and
demands trial by jury,
COUNT IV
J~NNY GEORGHALLI v, STEVEN PARK, INDIVIDUALLY AND T/D/B/A
CUMBERLAND MANAGEMENT
35. Plaintiff, Jenny Georghalri, Incorporates and makes a part of this Count
Paragraphs 1 through 34 of this Compfaint as if fuHy set forth.
36, Plaintiff believes and therefore avers that Cumberland Management Is
either the owner, beneficial owner, equitable owner, lessee of the owner or in some
manner involved with the management end operation of the premises known as the
Cedar Cliff Mall and therefore Is responsible for the maintenance, control of the
\
\.
perking lot at the Cedar Cliff Mall.
37, As a direct and proximate result ot the negligence of Defendant, Steven
Park, individually and tldlbla Cumberland Management Plaintiff Jenny GcorghaHI
suffered serious bodily injury, which will hereinafter be more fully described,
38. The occurrence of the aforesaid accident and the Injuries to Plaintiff,
Jenny Georghalll, were ceused directly and proximately by the negligence ot
-9-
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mecJe herein ere sUbject to Ihe ll.nalllelS or 18 Pe.C.S.14904 relllllny to unsworn
'el51flcellon to luthorltles.
Date~~
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A PR<1I,SSIONAL \\lRI\JRATION
February 3, 1995 /~,
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Direct Dial
232-4641
~,,,l \' . 'I ,".\Ii' )
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ET ~L Y-\,l:,\yV
Lawrence E. Welker, Prothonotary'
CUMBERLAND COUNTY COURTHOUSE (
One Courthouse Square '
Carlisle, PA 17013
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PROPERTIES. L.P..
/
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RE:
JENNY GEORGHALLI v. HEARTLAND
OUR FILE: 16600-00124.061
CCP (CUMBERLAND COUNTY) NO, 94-4829
Dear Mr. Welker:
Enclosed please find an original and four (4) copies of
Defendants, Heartland Properties Limited Partnership and Steven
G. Park individually and t/d/b/a Cumberland's Management,
Preliminary Objections and .. grorting Brie~J to be filed of
record in the above-captioned matter.
,.4_".... [dlt~ftI'."UIlil' ~ '--.. _ t-..~i...ble-1.lM,. in support of
the Preliminary Objections to the Court Administrator's office.-
Also enclosed are self-addressed, pre-stamped envelopes to
all counsel in this matter.
Kindly return to the undersigned a copy of the above
preliminary objections and supporting brief in the envelope
provided.
Thank you for your anticipated assistance and cooperation in
this matter.
:::g{#j~!f-
TJM/mb
Enclosures
cc: Cousnel. of Record
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DATE ~ May , 1995
JENNY GEORGHALLI, and
GEORGE GEORGHALLI,
her husband, PLAINTIFFS
IN THE COURT OF COMMON PLEAS
CUMBERLAND, COUNTY, PA
v.
NO. 94-4829 CIVIL TERM
GULLIFTY'S RESTAURANTS,
INC., CEDAR CLIFF INN,
INC., d/b/a GULLIFTY'S,
HEARTLAND PROPERTIES
LIMITED PARTNERSHIP,
WILLIAM R. DIMELING,
RICHARD R. SCHREIBER and
STEVEN G. PARK, Individually
and d/b/a DIMELING,
SCHREIBER AND PARK,
GENERAL PARTNER OF
HEARTLAND PROPERTIES
LIMITED PARTNERSHIP, and
STEVEN PARK, Individually
and t/d/b/a CUMBERLAND
MANAGEMENT, DEFENDANTS
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER 01" DEFENDANTS, STEVEN G. PARK,
INDIVIDUALLY, AND T/D/B/A CUMBERLAND MANAGEMENT, AND
HEARTLAND PROPERTIES LIMITED PARTNERSHIP
1. Denied. After reasonable investigation and
inquiry, Answering Defendants are without information sufficient
to form a belief as to the truth of these allegations and
accordingly, the same are denied and strict proof thereof is
demanded at trial.
2. Denied. After reasonable investigation and
inquiry, Answering Defendants are without information sufficient
to form a belief as to the truth of these allegations and
accordingly, the same are denied and strict proof thereof is
demanded at trial.
-1-
3. Denied. After reasonable investigation and
inquiry, Answering Defendants are without information sufficient
to form a belief as to the truth of these allegations and
accordingly, the same are denied and strict proof thereof is
demanded at trial.
4. Denied. After reasonable investigation and
inquiry, Answering Defendants are without information sufficient
to form a belief as to the truth of these allegations and
accordingly, the same are denied and strict proof thereof is
demanded at trial.
5. Admitted in part and denied in part. Heartland
Properties Limited Partnership is a limited partnership which
maintains an office at 1629 Locust Street, Philadelphia, PA.
6. Admitted in part and denied in part. Cumberland
Management maintains an office at 1629 Locust Street,
Philadelphia, PA.
7. Denied. The allegations of this para~raph
constitute conclusions of law to which no responsive pleading is
required, accordingly the same are denied and strict proof
thereof is demanded at trial. By way of further answer, to the
extent that this paragraph sets forth factual allegations
exclusive of legal conclusions, the Answering Defendants upon
reasonable investigation and inquiry are without information
sufficient to form a belief as to the truth of the allegations
and accordingly, the same are denied and strict proof thereof is
demanded at trial.
8. Denied. The allegations of this paragraph
constitute conclusions of law to which no responsive pleading is
required, accordingly the same are denied and strict proof
thereof is'demanded at trial. By way of further answer, to the
extent that this paragraph sets forth factual allegations
exclusive of legal conclusions, the Answering Defendants upon
reasonable investigation and inquiry are without information
sufficient to form a belief as to the truth of the allegations
and accordingly, the same are denied and strict proof thereof is
demanded at trial.
9. Deni~d. After reasonable investigation and inquiry,
Answering Defendants are without information sufficient to form a
belief as to the truth of these allegations and accordingly, the
same are denied and strict proof thereof is demanded at trial.
10. Denied. The allegations of this paragraph
constitute conclusions of law to which no responsive pleading is
required, accordingly the same are denied and strict proof
thereof is demanded at trial. By way of further answer, to the
extent that this paragraph sets forth factual allegations
exclusive of legal conclusions, the Answering Defendants upon
reasonable investigation and inquiry are without information
sufficient to form a belief as to the truth of the allegations
and accordingly, the same are denied and strict proof thereof is
demanded at trial.
- 3-
COUNT I
Jennv Georghalli v. Gullifty's Restaurant. Inc.
11.- 18. This count is directed to a defendant other
than Answering Defendants, and no reply thereto is deemed
necessary. However, these paragraphs are denied as Answering
Defendants are without information sufficient to form a belief as
to the truth of these allegations and accordingly, the same are
denied and strict proof is demanded at trial. By way of further
answer, the allegations of these paragraphs constitute
conclusions of law to which no responsive pleading is required
and accordingly, the same are denied and strict proof thereof is
demanded at trial.
WHEREPORE, Defendants, Steven G. Park, individually,
and t/d/b/a Cumberland Management, and Heartland Properties
Limited Partnership demand judgment in their favor and against
Plaintiffs, together with interest, costs and attorney's fees.
COUNT I I
Jennv Georqhalli v. Cedar Cliff Inn. Inc. d/b/a Gulliftv's
19. - 26. This count is directed to a defendant other
than Answering Defendants, and no reply thereto is deemed
necessary. However, these paragraphs are denied as Answering
Defendants are without information sufficient to form a belief as
to the truth of these allegations and accordingly, the same are
denied and strict proof is demanded at trial. By way of further
answer, the allegations of these paragraphs constitute
-4-
conclusions of law to which no respon$ive pleading is required
and accordingly, the same are denied and strict proof thereof is
demanded at trial.
WHIR.PORB, Defendants, Steven G. Park, individually,
and t/d/b/a Cumberland Management, and Heartland Properties
Limited Partnership demand judgment in their favor and against
Plaintiffs, together with interest, costs and attorney's fees.
COUNT III
Jenny Georghalli v. Heartland prooerties Limited PartnerBhio~
William R. Dimelinq. Richard Schr~iPer and Steven G. Park.
individually and d/b/a Dimelinq. Schreiber and Park.
General Partners of Heartland Pro~erties Limited Partnership
27. The averments contained in the foregoing
paragraphs responded to by Answering Defendants are incorporated
herein by reference as fully set forth at length.
28. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsiye pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
29. Denied. The allegations in this paragraph
together with its subparts (a) -(d) are specifically denied. To
the contrary, Answering Defendants, at all times relevant to the
material allegations set forth in Plaintiffs' Complaint, acted
wit~ reasonable care under the circumstances.
-5-
30. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsiye pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
31. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
32. Denied. The allegations in this paragraph
constitute conclusions of law to ~hich no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
33. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
34. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
WHIlREPORIl, Answering Defendant Heartland Properties
Limited Partnership demands judgment in its favor and against
Plaintiffs, together with interest, costs and attorney's fees.
-6-
COUNT IV
Jenny Oeor9halli v. Steven Park. individually
t/d/b/a Cumberland Manaqement
35. The averments contained in the foregoing
paragraphs responded to by Answering Defendants are incorporated
herein by reference as fully set forth at length.
36. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
37. Denied. The allegations in this paragraph
together with its subparts (a)-(d) are specifically denied. To
the contrary, Answering Defendants, at all times relevant to the
material allegations set forth in Plaintiffs' Complaint, acted
with reasonable care under the circumstances.
38. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
39. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
40. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
-7-
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
41. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
42. Denied. The allegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
43. Denied. The allegations in this paragraph
constitute conclusions of law to which nQ responsive pleading is
required and accordingly, the same are denied and strict proof
there of is demanded at trial.
WHIlRIllI"ORIl, Answering Defendants, Steyen G. Park,
individually, and t/d/b/a Cumberland Management demand judgment
in their favor and against Plaintiffs, together with interest,
costs and attorney's fees.
COUNT V
Georqe Georqhalli v. Gullifty's Restaurant Inc. et al..
which shall refer to all Defendants named within
this comolaint
44. The averments contained in the foregcing
paragraphs responded to by Answering Defendants are incorporated
herein by reference as fully set forth at length.
-8-
45. Denied. The ~llegations in this paragraph
constitute conclusions of law to which no responsive pleading is
required and accordingly, the same ar~ denied and strict proof
there of is demanded at trial.
WHBRIllPORIll, Answering Defendants, Steyen G. Park,
individually, and t/d/b/a Cumberland Management, and Heartland
Properties Limited Partnership demand judgment in their favor and
against Plaintiffs, together with interest, costs and attorney's
fees.
NEW MATTER DIRECTED TO PLAINTIFFS
46. Plaintiffs' claims are barred and/or limited by the
Pennsylvania Comparative Negligence Statute and/or any other
applicable comparative negligence statute.
47. Plaintiffs assumed the risks of any injury
sustained.
48. Plaintiff's claims are barred by the Pennsylvania
Workmen's Compensation Act.
49. Plaintiffs' injuries, if any, were caused, in whole
or in part by third-parties over whom Answering Defendants had no
control or right of control.
50. Plaintiffs' claims are barred and/or limited by the
Doctrines of Collateral Estoppel and/or Res Judicata.
51. Plaintiffs have failed to state a cause of action
upon which relief can be granted.
-9-
52. Plaintiffs' claims are barred by the applicable
statute of limitations.
53. Answering Defendants neither owed Plaintiff any
duty of care under the circumstances alleged in the Complaint nor
breached any duty of care allegedly owed to Plaintiff on the
circumstances alleged in the Complaint.
54. No act or omission on the part of Answering
Defendants was a substantial contributing factor in bring about
Plaintiff's alleged injuries and/or damages, the same being
expressly denied.
55. Acts and/or omissions on the part of entities
other than Answering Defendants proxJ.mately caused Plaintiffs'
injuries and constitute superseding and/or interyening causes of
Plaintiffs' injuries. The same being expressly denied, believing
Answering Defendants from any and all alleged liability in this
matter.
56. Plaintiff, George Georghalli's claims are
derivative in nature and are barred under the circumstances as a
matter of law.
WHIllREI"ORE, Answering Defendants, Steven G. Park,
individually, and t/d/b/a Cumberland Management, and Heartland
Properties Limited Partnership demand judgment in their favor and
I
against Plaintiffs, together with interest, costs and attorney's
fees.
-10-
CROSS CLAIMS PURSUANT TO PA. R.C.P. 2252(0)
57. Pursuant to PA. R.C.P. 2252(d), should it be found
that Answering Defendants are liable to the Plaintitf, which
liability is specifically denied, it is averred that Plaintiff's
injuries were caused by the negligence, recklessneso,
carelessness or strict liability of all of the other defendants,
Gullifty's Restaurants, Inc., and Cedar Clitf Inn, Inc, d/b/a
Gullifty's for the reasons set forth in the Complaint, and that
Answering Defendants are entitled to contribution and/or
indemnity as may be appropriate, from su~h other defendants,
Gullifty's Restaurants, Inc., and Cedar Cliff Inn, Inc., d/b/a
Gullifty's.
WHBRIllI"ORIll, Answering Defendants, Steven G. Park,
individually, and t/d/b/a Cumberland Management, and Heartland
Properties Limited Partnership demand judgment in their favor and
against Plaintiffs, or in the alternative, judgment for
contribution and/or indemnity as may be appropriate, from all
other Defendants in this matter, Gullifty's Restaurants, Inc.,
and Cedar cliff Inn, Inc., d/b/a/ Gullifty's.
-11-
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