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HomeMy WebLinkAbout95-05011 ~. , ..!i. .~ '. 6 . ~ I J . I . 7 1 j a 1 / <Y I ': ,<,,':1";' ,," ,::.\: ' '" ~';:" 'jJ' ' , ,<..,.;:,;\..' " ';""",.',)'~: " : ',:. "' ' . ,",~, ~ 'c' ;'.,::. co'C:'. .' ,',~ ,';;" ;:":'~J'J "~it' ':.:,:.,' ,::' " ' 'Ce' *.J,:",' ". .' .... """ .'. ." .', .' 0 :~" . ! .:' ' ,s..' ,..' ~ .- ;:, c,;' ,~..~,.~,~::, ;:',;.'~"..'::' iit:"'~""/:;" ','. :<.,.:"" ''''''', ,,:,';' .J:[;'" ,-- '. ~"f'. ". ',- : ,-- ,C':^ :" / ," ,....: " :.;\ ,."',;;"; ">,;';:,,.:';':",,' ,",' l:~, ,,:,' , : :: ':,>" ": c, . ' ','," '::' I ,'" .. "f H: :: i.' " .. '-:--'...: ,'; "'" ~"~:,";~':'~ " '. ..,c:: ";:' ',", ;~~:~:~'}" :' :'~; ;',:: " '.,' }','7:';; ". :~;~.".,,., ,'.:' ":,i: ',: '" ,," "<:,, ,'; :."'" ;,'a' ",' .. "'" ...," ' " " .. . , t'" ,. -,--i.~:/. '::, ':', >-- ':iF " . ' , .. :.'i, "'? i"""';"):;:':" " ," ,.,~;:\;.~~;~~"', , ' i',: ",r '~: "':~:" ", ',: ," , ' ",,:,;;., ' . 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"','j;C ',' ,.. .,-,,,'-1 ',: ,,-", ,";,," ' V;' :~, ' ,'. .> :, " ',", , ' . ,.- ' . ," ",\ ..," " I i ~ ; I : , ~ , \ J ) i \ - - 0 i , : , Ll) , i , i i l() I (j' . ~ 1 , :1 '~. it,; ~, , LINDA CAROL RYA.~, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1j-- ,~7_111 0 ..{.1f'-e- ~{"Ltr,_ v. THE BOROUGH OF CARLISLE, Defendant NOTICB 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 WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor, CUmberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 LINDA CAROL RYAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. THE BOROUGH OF CARLISLE, Defendant COMPLAINT AND NOW, comes Plaintiff, Linda C. Ryan, by and through her attorneys, Killian & Gephart, and in support of this Complaint avers the following: 1. Plaintiff is Linda C. Ryan, is an adult, married individual who resides at 1858 West Lisburn Road, Carlisle, CUmberland County, Pennsylvania 17013. 2. Defendant, The Borough of Carlisle, is a Borough with an office at 53 West South Street, Carlisle, CUmberland County, Pennsylvania 17013. 3. On January 30, 1994, in the morning, Plaintiff went to services at St. John's Episcopal Church at the corner of Hanover and High Streets in Carlisle, Pennsylvania. 4. After Plaintiff arrived at the church and parked her vehicle in the parking lot, she learned that the parking lot was a sheet of ice. 5. Plaintiff walked from her vehicle in the parking lot into the church and attended the church service. 6. After the church service, Plaintiff attended a meeting of the Refugee Committee. 7. Plaintiff left the church at 12:30 p.m. 8. Plaintiff walked slowly down the alley toward the parking lot, and then through the parking lot. 9. When Plaintiff was approximately twenty-five (25) feet from her vehicle, her left foot slipped, and she felt something crack in her left ankle as she fell. 10. Plaintiff landed on her left side and was unable to break the fall with her hands; her left ankle was left at a peculiar angle. 11. Plaintiff was unable to get up or to assist herself. 12. Finally a fellow member of the congregation saw her and drove her to the Carlisle Hospital Emergency Room. 13. Plaintiff was diagnosed with a fracture and dislocation of her left ankle which required surgery. 14. Plaintiff was hospitalized until the following Tuesday, when she was released wearing a cast. 15. Plaintiff was diagnosed based on x-rays with a comminuted, dislocated ankle injury with fractures of the fibula, medial malleolus, and probably posterior malleolus of the tibia. 16. Plaintiff also had persistent posterior dislocation of the foot. 17. Plaintiff's surgeon placed a lateral fixation plate and associated screws throughout the distal fibula. 18. During her treatment period in 1994, physicians noted some periosteal reaction around malleolus, as well as a large plantar calcaneal spur. Plaintiff's the medial 19. Plaintiff was required to use crutches and stay off her ankle after her surgery, and subsequently required to wear a stabilizer boot. 20. Plaintiff has pain and soreness when she walks for any period of time, and has suffered ligament damage, which according to her physician, is not ever going to repair itself. 21. Plaintiff still has the metal plate in her ankle, and it is unknown whether or not it will ever be removed. 22. Plaintiff cannot walk as she formerly could, she has trouble going up and down stairs, and she usually cannot stand for more than two (2) hours at a time. 23. Plaintiff is a school teacher at the Harrisburg Area Community College. 24. Plaintiff missed six (6) weeks of work at Harrisburg Area Community College and at Catholic Charities. 25. Additionally, Plaintiff's class at Catholic Charities was taken over by another teacher, and she got fewer hours to teach after returning from the accident. 26. Plaintiff has been advised that there is a possibility that arthritis will set into her ankle, and her physician indicates that she may never be back to her physical condition prior to the accident. 27. Plaintiff's difficulties in walking hamper her with her teaching, and she has had to sit down from time to time, rather than stand up, in order to teach. 28. Plaintiff has also been hampered in household tasks and vacations when she is unable to walk for long periods of time. 29. Plaintiff has trouble negotiating the stairs in her two (2) story house, and cannot walk up and down nearly as fLequently as she formerly could. 30. Plaintiff's energy level is seriously diminished, and she is often exhausted and suffering from a painful and hurting foot. 31. Plaintiff's right knee has damage as a result of relying on it to compensate for her ankle, and Plaintiff has been under a doctor's care for this. COUNT I - NEGLIGENCE 32. The averments of paragraphs 1 through 31 are incorporated hereby as if set forth fully and at length. 33. The parking lot in which Plaintiff fell, was operated, owned, and maintained by Defendant, the Borough of Carlisle. 34. Defendant, the Borough of Carlisle despite its knowledge that those attending church at St. John's make use of the parking lot, negligently failed to perform any remedial work to clear the parking lot, despite two (2) days passing since the last snow and/or ice storm. 35. Defendant, the Borough of Carlisle, negligently failed to apply any salt or cinders to the parking lot. 36. Plaintiff has suffered severe and permanent injuries as a result of Defendant, the Borough of Carlisle's negligence. 37. Plaintiff has experienced extensive pain and suffering, and will continue to do so from this injury for the rest of her life. ... .......~" ,- WBBRBI'ORB, Plaintiff, Linda C. Ryan, respectfully requests this Honorable Court to grant judgment in her favor and against the Borough of Carlisle in an amount in excess of $25,000 which amount is above the jurisdictional limit for compulsory arbitration. Respectfully submitted, KILLIAN & GEPHART Dated: September 19, 1995 _r"'&"'<}. ~e~ Paula J. ~cDermott, Esquire Attorney 1.0. #46664 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. f' 1J/1~ LfffAAo~~ ~ Dated: , LINDA CAROL RYAN, Plaintiff I IN T.BB COURT OP COMMON PLEAS OP I ctJMBBRLAHD CO'llNTY, PBHHSYLVAHIA : NO. q,r- SOil C'Ut t fCfl."1 I I JURY TRIAL DBMAHDBD I CrvIL ACTION - LAW v. T.BB BOROUGH OP CARLISLB, Defendant NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be entered against'you. THOMAS, THOMAS " BAl'BR BY:Do~~~ Attorney 1.0. No.: 36510 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7125 6. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #6. Hence they are denied and proof is demanded at time of trial. 7. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #7. Hence they are denied and proof is demanded at time of trial. 8. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #8. Hence they are denied and proof is demanded at time of trial. 9. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #9. Hence they are denied and proof is demanded at time of trial. 10. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #10. Hence they are denied and proof is demanded at time of trial. 11. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph Ill. Hence they are denied and proof is demanded at time of trial. 2 12. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #12. Hence they are denied and proof is demanded at time of trial. 13. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #13. Hence they are denied and proof is demanded at time of trial. 14. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #14. Hence they are denied and proof is demanded at time of trial. 15. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #15. Hence they are denied and proof is demanded at time of trial. 16. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #16. Hence they are denied and proof is demanded at time of trial. 3 17. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #17. Hence they are denied and proof is demanded at time of trial. 18. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #18. Hence they are denied and proof is demanded at time of trial. 19. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #19. Hence they are denied and proof is demanded at time of trial. 20. Denied. Answering Defendant is without informacion or belief as to the truth of the averments of Paragraph #20. Hence they are denied and proof is demanded at time of trial. 21. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #21. Hence they are denied and proof is demanded at time of trial. 22. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #22. Hence they are denied and proof is demanded at time of trial. t 23. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #23. Hence they are denied and proof is demanded at time of trial. 24. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #24. Hence they are denied and proof is demanded at time of trial. 25. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #25. Hence they are denied and proof is demanded at time of trial. 26. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #26. Hence they are denied and proof is demanded at time of trial. 27. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #27. Hence they are denied and proof is demanded at time of trial. 28. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #28. Hence they are denied and proof is demanded at time of trial. 5 29. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #29. Hence they are denied and proof is demanded at time of trial. 30. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #30. Hence they are denied and proof is demanded at time of trial. 31. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #31. Hence they are denied and proof is demanded at time of trial. COUNT I HBQLIGENCE 32. Defendant's answer to Paragraphs 1 through 31 are incorporated herein and made a part hereof as if set forth in full. 33. Denied. Answering Defendant is without information or belief as to the location of Plaintiff's fall. Hence Answering Defendant is without information and belief as to the truth of the averment that the parking was operated, owned, or maintained by 6 Defendant, Borough of Carlisle. Hence it is denied and proof is demanded at time of trial. 34. Denied. Answering Defendant is without information or belief as to the truth of the averment that individuals attending church at St. John's would make use of the parking lot. It is denied that Defendant was negligent and/or failed to perform any remedial work to clear the parking lot. Any and all other allegations of Paragraph #34 are denied and proof is demanded at time of trial. 35. Denied. It is denied that the Borough of Carlisle was negligent. It is denied that the Borough of Carlisle failed to apply any salt or cinders to the parking lot. 36. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph #36. Hence they are denied and proof is demanded at time of trial. 37. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph #37. Hence they are denied and proof is demanded at time of trial. 7 WBBRBPORB, Defendant requests this Honorable Court to dismiss Plaintiff's Complaint. NEW MATTIB 38. Some or all of Plaintiff's claims may be barred by the Statute of Limitations. 39. Some or all of Plaintiff's claims may be barred by failure to give proper timely notice pursuant to 42 Pa. C.S.A. 55522. 40. Some or all of Plaintiff's claims are barred by the Pennsylvania Governmental Immunity Act, 42 Pa. C.S.A. 58541 et seq. 41. Plaintiff's claims are barred by the failure to state a cause of action. 42. Plaintiff's claims are barred by failure to state a claim within one of the exceptions to the Pennsylvania Governmental Immunity Act. 8 43. Plaintiff's claims are barred or limited by the limitation of damages set forth in the Pennsylvania Governmental Immunity Act, 42 Pa. C.S.A. 58553. 44. Plaintiff's claims are barred or reduced to the extent they have received or are entitled to receive benefits under a policy of insurance pursuant to 42 Pa. C.S.A. S8553(d). 45. Some or all of Plaintiff's claims are barred by Plaintiff's contributory and/or comparative negligence. 46. Some or all of Plaintiff's claims are barred by Plaintiff's assumption of risk. 47. The Borough of Carlisle does not waive any governmental immunity. 48. Defendant asserts the Limitations, Immunities, and Defenses of the Political Subdivision Tort Claim Act, 42 Pa. C.S.A. 58501 et seq. 9 THOMAS, THOMAS & HAFER By:-~<j)~_s-z Dougl,~B. Marcello Attatney I.D. No. 36510 305 North Front Street P.O. Box 999 Harrisburg, Pennsylvania 17108 (717) 255-7238 Attorney for Defendant 10 OCT-13-ge FRI 9.26 CAR~IS~E BOROUCH p.e2 VBRI~ICATION I. FREDERICK BEAN, state that I am familiar with the facts and allegations set forth in ths foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification is made pursuant to 16 Pa.C.S. 114904 relating to unsworn falsification to authorities. DATED: I,~ hlt4r /~~ HBDERICK BEAN CIRT;tll'ICl\1'E Oll' SERVICE AND NOW, this 13M-, day of ~ , 1995, I, DEBORAH J. WORTHINGTON, a secretary in the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, postage prepaid, to the following: Paula J. McDermitt, Esquire , 218 Pine Street P.O. Box 886 Harrisburg, Pennsylvania 17108-0886 ..~:-\;~. . UNDA CAROL RYAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 95-5011 CML TERM CIVIL ACTION - LAW V5. THE BOROUGH OF CARLISLE, Defendant JURY TRIAL DEMANDED DmNJ>ANT'S MOTION FOB JUDGMENT ON TJIE PLEADINGS AND NOW, comes the Defendant, The Borough of Carlisle (hereinafter "Defendant"), by its attorneys, Thomas, Thomas & Hafer, and moves this Court for judgment on the pleadings pursuant to Pa.R.C.P. 1034, and based upon the following: 1. Plaintiff alleges that she was injured when she slipped and fell on a sheet of ice in a parking lot owned by the Borough of Carlisle ("Borough"). ~ 1 9 of Plaintiff's Complaint attached hereto as Exhibit "A." 2. Plaintiff claims that the Borough negligently failed to perform any remedial work to clear the ice and/or snow from the parking lot. 111. at 1 34. 3. Particularly, Plaintiff claims that the Borough negligently failed to apply any salt or cinders to the parking lot. 111. at 1 35. GOVERNMENTAL IMMlJNlTY 4. The averments of paragraphs 1 through 3 are incorporated herein as If set forth fully and at length. , 5. The Borough is immune from suit under the Political Subdivision Tort Claims Act ("PSTCA "). 6. The PSTCA provides a general grant of immunity to all local agencies for damages caused by acts of the agency or its employees. 42 Pa.C.S.A. ~ 8541. 7. The PSTCA also sets forth eight limited exceptions to such governmental immunity. 42 Pa.C.S.A. ~ 8542. 8. The only exception possibly relevant to the present matter is the real property exception, which is set forth at 42 Pa.C.S.A. ~ 8542(b)(3). 9. A local agency may be subjected to liability where an individual is injured by real property which is in "the care, custody or control. . . of the local agency." 42 Pa.C.S.A. ~ 8S42(b)(3). 10. Liability can be imposed on a government entity under ~ 8542(b)(3) only if the plaintiffs injury is caused by a defect or a dangerous condition which originates from the real property itself. Finn v. City of Philadelphia, 165 Pa. Commw. 255, 645 A.2d 320 (1994). 11. Such a defect or dangerous condition is limited solely to the negligent design or constroction of the real property or to a defect in the internal stroctural integrity of the real property. ill. 12. Liability will not be imposed upon a governmental entity for injuries caused by a negligent failure of the governmental entity to remove a foreign substance, e.g., ice, snow, oil and grease, from the real property. ill. 2 , ' , , '"' >~.'r y,,"~J~ ,."w:_,'.?,:."-","__"_" ""':'"".."~'~"",,",,,"";"""~"""'_C"'''':i,,~'''H~.....;;'.......,,,,,..;.,.j-~,,,,,;-,,,,,,-~''''"",'...';/I.,- ~;~~ , 13. Plaintiffs Complaint avers only that the accumulation of ice and/or snow on the parking lot was caused by Defendant's alleged failure to remove said ice and/or snow, and/or its alleged failure to apply any salt or cinders to the lot. 14. Because Plaintiff does not allege facts which would place this case within any of the eight exceptions to the PSTCA, Defendant. as a matter of law, is immune from suit and is entitled to judgment as a matter of law. ~ Defendant's Answer and New Matter attached hereto as Exhibit "B." ASSUMPI'ION OF THE RISK 15. The avennents of paragraphs 1 through 14 are incorporated herein as if set forth fully and at length. 16. A possessor of land is under no duty to protect those persons who enter the premises. discover dangerous conditions thereon which are both obvious and avoidable. and nevertheless proceed voluntarily to encounter said conditions. Carrender v. Fitterer. 503 Pa. 178.469 A.2d 120 (l983). 17. A danger is deemed .obvious. when the condition on the land and its concomitant danger are apparent to and would be recognized by a reasonable person in the position of the injured person exercising normal perception, intelligence and judgment. Il1. 18. Where 110 two reasonable minds could differ as to the obviousness of the danger, the question may be decided by the coon as a matter of law. Il1. 3 19. Here, upon Plaintiffs arrival at the Borough's parking lot, she immediately learned that the parking lot was a .sheet of ice.. Complaint, 1 4. 20. Nonetheless, Plaintiff parked her vehicle and walked across the parking lot into the church. Complaint, 1 S. 21. After the completion of the church services and a committee meeting, Plaintiff left the church on her own and re-entered the parking lot, where she allegedly slipped and fell. Complaint, 11 6-9. 22. Plaintiff walked 0;1 the parking lot two times Btkr having learned of its alleged dangerous condition. 23. Because Plaintiff voluntarily proceeded to encounter a known and obvious danger, she is deemed to have agreed to accept the risk and to undenake to look out for herself. Carrender, mJUI. 24. The Borough, owing no duty of care to Plaintiff as a matter of law, is hereby entitled to judgment on the pleadings. 4 WHEREFORE, Defendant, The Borough of Carlisle, respectfully requests that its Motion for Judgment on the Pleadings be granted. THOMAS, THOMAS & HAFER Q\ I (7 <CkCJ J By: ~u...... \ ~ Douglas B. Marcello, Esquire J.D. No. 36S10 Brooks R. Foland, Esquire J.D. No. 70102 30S North Front Street Sixth Floor POB 999 Harrisburg, PA 17108-0999 (717) 2SS-7238 Attorneys for Borough of Carlisle S ExhIbIt A . . I . , LINDA CAROL RYAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. qJ- jott ~ ~-lA..-W'- v. THE BOROUGH OF CARLISLE, Defendant SEP2619gs 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 WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor, CUmberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 . ,.. COPV FROM R!CON) It r.......ty wflIlllOf. I here URto III my hand lid 11II SIll of said ~rtlsle. PI. 1U'\ '1 ,19'11 . . LINDA CAROL RYAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. THE BOROUGH OF CARLISLE, Defendant COMPLAINT AND NOW, comes Plaintiff, Linda C. Ryan, by and through her attorneys, Killian .. Gephart, and in support of this Complaint avers the following: 1. Plaintiff is Linda C. Ryan, is an adult, married individual who resides at 1858 West Lisburn Road, Carlisle, cumberland County, Pennsylvania 17013. 2. Defendant, The Borough of Carlisle, is a Borough with an office at 53 West South Street, Carlisle, cumberland County, Pennsylvania 17013. 3. On January 30, 1994, in the morning, Plaintiff went to services at St. John's Episcopal Church at the corner of Hanover and High Streets in Carlisle, Pennsylvania. 4. After Plaintiff arrived at the church and parked her vehicle in the parking lot, she learned that the parking lot was a sheet of ice. 5. Plaintiff walked from her vehicle in the parking lot into the church and attended the church service. 6. After the church se~i",," Pl~ntiff attended a meeting of the Refugee Committee. 7. Plaintiff left the church at 12:30 p.m. . 8. Plaintiff walked slowly down the alley toward the parking lot, and then through the parking lot. 9. When Plaintiff was approximately twenty-five (25) feet from her vehicle, her left foot slipped, and she felt something crack in her left ankle as she fell. 10. Plaintiff landed on her left side and was unable to break the fall with her hands; her left ankle was left at a peculiar angle. 11. Plaintiff was unable to get up or to assist herself. 12. Finally a fellow member of the congregation saw her and drove her to the Carlisle Hospital Emergency Room. 13. Plaintiff was diagnosed with a fracture and dislocation of her left ankle which required surgery. 14. Plaintiff was hospitalized until the following Tuesday, when she was released wearing a cast. 15. Plaintiff was diagnosed based on x-rays with a comminuted, dislocated ankle injury with fractures of the fibula, medial malleolus, and probably posterior malleolus of the tibia. 16. Plaintiff also had persistent posterior dislocation of the foot. 17. Plaintiff's surgeon placed a lateral fixation plate and associated screws throughout the distal fibula. 18. During her treatment period in 1994, Plaintiff's physicians noted some periosteal reaction around the medial malleolus, as well as a large plantar calcaneal spur. . 19. Plaintiff was required to use crutches and stay off her ankle after her surgery, and subsequently required to wear a stabilizer boot. 20. Plaintiff has pain and soreness when she walks for any period of time, and has suffered ligament damage, which according to her physician, is not ever going to repair itself. 21. Plaintiff still has the metal plate in her ankle, and it is unknown whether or not it will ever be removed. 22. Plaintiff cannot walk as she formerly could, she has trouble going up and down stairs, and she usually cannot stand for more than two (2) hours at a time. 23. Plaintiff is a school teacher at the Harrisburg Area Community College. 24. Plaintiff missed six (6) weeks of work at Harrisburg Area Community College and at Catholic Charities. 25. Additionally, Plaintiff's class at Catholic Charities was taken over by another teacher, and she got fewer hours to teach after returning from the accident. 26. Plaintiff has been advised that there is a possibility that arthritis will set into her ankle, and her physician indicates that she may never be back to her physical condition prior to the accident. 27. Plaintiff's difficulties in walking hamper her with her teaching, and she has had to sit down from time to time, rather than stand up, in order to teach. 28. Plaintiff has also been hampered in household tasks and vacations when she is unable to walk for long periods of time. . 29. plaintiff has trouble negotiating the stairs in her two (2) story house, and cannot walk up and down nearly as frequently as she formerly could. 30. Plaintiff's energy level is seriously diminished, and she is often exhausted and suffering from a painful and hurting foot. 31. Plaintiff's right knee has damage as a result of relying on it to compensate for her ankle, and Plaintiff has been under a doctor's care for this. COUNT I - NEGLIGENCE 32. The averments of paragraphs 1 through 31 are incorporated hereby as if set forth fully and at length. 33. The parking lot in which Plaintiff fell, was operated, owned, and maintained by Defendant, the Borough of Carlisle. 34. Defendant, the Borough of Carlisle despite its knowledge that those attending church at St. John's make use of the parking lot, negligently failed to perform any remedial work to clear the parking lot, despite two (2) days passing since the last snow and/or ice storm. 35. Defendant, the Borough of Carlisle, negligently failed to apply any salt or cinders to the parking lot. 36. Plaintiff has suffered severe and permanent injuries as a result of Defendant, the Borough of Carlisle's negligence. 37. Plaintiff has experienced extensive pain and suffering, and will continue to do so from this injury for the rest of her life. . WBBREPORE, Plaintiff. Linda C. Ryan, respectfully requests this Honorable Court to grant judgment in her favor and against the Borough of Carlisle in an amount in excess of $25,000 which amount is above the jurisdictional limit for compulsory arbitration. Respectfully submitted, KILLIAN & GEPHART Dated: September 19, 1995 _~~'}. ~e~-42... Paula J. "McDermott, Esquire Attorney I.D. #46664 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 . VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 1" 14"7) ~i~ LM~ f:.vhL- LINDA CAROL RYAN ./ I:!!......... .. . 6. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #6. Hence they are denied and proof is demanded at time of trial. 7. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #7. Hence they are denied and proof is demanded at time of trial. 8. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #8. Hence they are denied and proof is demanded at time of trial. t. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #9. Hence they are denied and proof is demanded at time of trial. 10. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #10. Hence they are denied and proof is demanded at time of trial. 11. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #11. Hence they are denied and proof is demanded at time of trial. 2 . 12. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #12. Hence they are denied and proof is demanded at time of trial. 13. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #13. Hence they are denied and proof is demanded at time of trial. 14. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #14. Hence they are denied and proof is demanded at time of trial. 15. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #15. Hence they are denied and proof is demanded at time of trial. 16. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #16. Hence they are denied and proof is demanded at time of trial. 3 . 17. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #17. Hence they are denied and proof is demanded at time of trial. 18. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #18. Hence they are denied and proof is demanded at time of trial. 19. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #19. Hence they are denied and proof is demanded at time of trial. 20. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #20. Hence they are denied and proof is demanded at time of trial. 21. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #21. Hence they are denied and proof is demanded at time of trial. 22. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #22. Hence they are denied and proof is demanded at time of trial. 4 . 23. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #23. Hence they are denied and proof is demanded at time of trial. 24. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #24. Hence they are denied and proof is demanded at time of trial. 25. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #25. Hence they are denied and proof is demanded at time of trial. 26. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #26. Hence they are denied and proof is demanded at time of trial. 27. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #27. Hence they are denied and proof is demanded at time of trial. 28. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #28. Hence they are denied and proof is demanded at time of trial. S . 29. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #29. Hence they are denied and proof is demanded at time of trial. 30. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #30. Hence they are denied and proof is demanded at time of trial. 31. Denied. Answering Defendant is without information or belief as to the truth of the averments of Paragraph #31. Hence they are denied and proof is demanded at time of trial. COtlNT I HBGLIGBNqJS 32. Defendant's answer to Paragraphs 1 through 31 are incorporated herein and made a part hereof as if set forth in full. 33. Denied. Answering Defendant is without information or belief as to the location of Plaintiff's fall. Hence Answering Defendant is without information and belief as to the truth of the averment that the parking was operated, owned, or maintained by 6 . Defendant, Borough of Carlisle. Hence it is denied and proof is demanded at time of trial. 34. Denied. Answering Defendant is without information or belief as to the truth of the averment that individuals attending church at St. John's would make use of the parking lot. It is denied that Defendant was negligent and/or failed to perform any remedial work to clear the parking lot. Any and all other allegations of Paragraph #34 are denied and proof is demanded at time of trial. 35. Denied. It is denied that the Borough of Carlisle was negligent. It is denied that the Borough of Carlisle failed to apply any salt or cinders to the parking lot. 36. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph #36. Hence they are denied and proof is demanded at time of trial. 37. Denied. Answering Defendant is without information or belief as to the truths of the averments in Paragraph #37. Hence they are denied and proof is demanded at time of trial. 7 .._""~,~".........-.~..,,. . THOMAS, THOMAS & HAFER By: Dougl Att ey 1.0. No. 36510 305 North Front Street P.O. Box 999 Harrisburg, Pennsylvania 17108 (717) 255-7238 Attorney for Defendant 10 . OCT-13-'9!5 FRI '9 ~6 CARL.ISL.E DOROU( 'P.02 VERIPICATION I, FREDERICK BEAN. state that I am familiar with the facts and allegations set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification is made pursuant to 16 Pa.C.S. 14904 relating to unsworn falsification to authorities. DATED I /n ,{~~r P~LL mDBRICK BEAN . C~RTIFICATE OF S~RVICE AND NOW, this J 3M, day of ~ , 1995, I, DEBORAH J. WORTHINGTON, a secretary in the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, postage prepaid, to the following: Paula J. McDermitt, Esquire 218 Pine Street P.O. Box 886 Harrisburg, Pennsylvania 17108-0886 ~ ~ ~ t iO~!.i .. ... ~ : ~ j a i a t a. ... . " ~ J i ~ ~ ... z ~ ..~~ s I " ~ . " ' PRAECIPB FOR LISTING CASB POR ARGUMENT (Must be typewritten and submitted in duplicate) TO THB PROTHONOTARY OF CUMBBRLAND COUNTY I Please list the within matter for the next Argument Court. CAPTION OF CASE, (entire caption must be stated in full) Linda Carol Ryan n . '-' u' I '1 1 ',:-rl J 1 .1 ..... ;-) ':~ - , }.;l . j :1') ._..l .. ( p;) ...! I (.'~ ':'1 -. &- :-< (Plaintiff) VS. The Borough of Carlisle (Defendant) VS. No, 5011 Ci vil 1995 1, State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) for plaintiff: Paula J. McDermott Address, 218 Pine Street, POB 886, Harrisburg, PA 1710B-0886 (b) for defendant: Douglas B, Marcello/Brooks R. Foland Address, 305 North Front Street, POB 999, Harrisburg, PA 17108 3, I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: March 6. 1996 Dated:Z.Z.'tp - / Jr.- J _ ~) 8 ~?~ {Vj IL.~ Attorney for Defendant CBRTIFICATB OF SBRVICB AND NOW, this U day of &~~ ' Coleen M. Hartman, of the law firm of Thomas, Thomas 199' I, 6< Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, postage prepaid, to the following: Paula J. McDermott, Esquire 218 Pine Street POB 886 ~~B-08" Coleen M. Hartman LINDA CAROL RYAN, Plaintiff v. THE BOROUGH OF CARLISLE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-5011 Civil Term NOTICB TO PLEAD TO NEW MATTBR TO: The Borough Of Carlisle and their attorney, Douglas B. Marcello, Esquire Brooks R. Foland, Esquire Thomas, Thomas & Hafer 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108-0999 You are hereby notified to plead where applicable to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, Dated: February 20, 1996 KILLIAN & GEPHART _\~.....t... t\ . W).< A.::t:t-' Paula J~ McDermott, Esquire Attorney I.D. #46664 218 Pine Street P. o. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-5011 Civil Term LINDA CAROL RYAN, Plaintiff THE BOROUGH OF CARLISLE, Defendant RESPONSE WITH NEW MATTER TO MOTION POR JUDGMENT ON THE PLEADINGS AND NOW, comes Plaintiff, Linda Carol Ryan, by and through her attorneys, Killian & Gephart, and in support of this response to motion for judgment on the pleadings avers the following: 1. Denied. The averments of the complaint speak for themselves, and any attempt to characterize them by Defendant is '~~ specifically denied. 2. Denied. The averments of the complaint speak for themselves, and any attempt to characterize them by Defendant is specifically denied. 3. Denied. The averments of the complaint speak for themselves, and any attempt to characterize them by Defendant is specifically denied. 4. Denied. The answer to the averments of paragraphs 1 through 3 are incorporated hereby as if set forth fully and at length. 5. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough is immune from the instant lawsuit. 6. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough is immune from the instant lawsuit. 7. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough is immune from the instant lawsuit. S. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough is immune from the instant lawsuit. 9. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough is immune from the instant lawsuit. 10. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough is immune from the instant lawsuit. 11. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough is immune from the instant lawsuit. 12. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough is immune from the instant lawsuit. 13. Denied. The averments of the complaint speak for themselves, and any attempt to characterize them by Defendant is specifically denied. 14. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that Defendant is immune from this lawsuit, or that a motion for judgment on the pleadings is a proper procedural vehicle to make such a claim. 15. The answers to the averments of paragraphs 1 through 14 are incorporated hereby as if set forth fully and at length. 16. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the pleaded doctrine has any relevance to this lawsuit. 17. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the pleaded doctrine has any relevance to this lawsuit. 18. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the pleaded doctrine has any relevance to this lawsuit. 19. Denied. It is specifically denied that the averments of the complaint are accurately stated in this paragraph. By way of further answer, the averments of the complaint speak for themselves, and any attempt to characterize them by Defendant is specifically denied. 20. Admitted in part, denied in part. It is admitted that Plaintiff parked her vehicle and walked to church. Any implication that these actions bar Plaintiff from relief is specifically denied. 21. Admitted in part, denied in part. It is admitted that Plaintiff walked across the parking lot, and slipped and fell. Any attempt to characterize the averments of the complaint by Defendant is specifically denied, and any implication by Defendant that these activities bar Plaintiff from relief is specifically denied. 22. Admitted in part, denied in part. It is admitted that Plaintiff walked across the parking lot. Any implication by Defendant that this bars Plaintiff from relief is specifically denied. 23. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the doctrine of assumption of the risk bars the instant lawsuit. 24. Denied as a conclusion of law to which no responsive pleading is required. If a responsive pleading is deemed required, it is specifically denied that the Borough owed no duty of care to Plaintiff. -- NEW MATTER 25. A motion for judgment on the pleadings is not the proper procedural vehicle in which to raise a claim of sovereign immunity as assumption of the risk. WBBRBPORB, Plaintiff respectfully requests this Honorable Court to dismiss the motion for judgment on the pleadings with prejudice. Respectfully submitted, KILLIAN & GEPHART Dated: February 20, 1996 _r.....Q.'\.,. ftt..c.~ Paula J.uMcDermott, Esquire Attorney 1.0. #46664 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 ~ .......~'.. ,'. ~oJ<'_. ,',',.- .., ) , . i ! . , iOf \' i I I CBRTIFlCATB or SBRVICB On this 20th day of February, 1996, I hereby certify that I served this foregoing document on the following by depositing a true and correct copy in the United States Mail, postage prepaid, addressed to: Douglas B. Marcello, Esquire Brooks R. Foland, Esquire Thomas, Thomas & Hafer 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 Respectfully submitted, KILLIAN & GEPHART _f'~);-. t)v.<~ Paula J. ~cDermott, Esquire Attorney I.D. #46664 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 11. LINDA CAROL RYAN : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V THE BOROUGH OF CARLISLE NO. 95-5011 CIVIL TERM ORDER OF COURT AND NOW, March 5, 1996, by agreement of counsel, the above- captioned matter Is hereby continued from the March Argument Court list. Counsel Is directed to rellst the case when ready. By the Court, ~ , , , , Paula J. McDennott, Esq. For the Plaintiff '" \\\" ,,-II' U, I"~"~ , " l"" \Ii Douglas B. Marcello, Esq. Brooks R. Foland, Esq. For the Defendant :br PRABCIPB POR LISTING CASB FOR ARGUMENT (Must be typ.written and submitted in duplioat.) TO TBJI PROTBOMOTARY OF CUllBIRLAND COUNTY: Pl.... list the within m.tter for the next Argument Court. CAPTION or CAli. (entir. c.ption muat be stated in full) LINDA CAROL RYI\N (Plaintiff) va. " THE BOROUGH TO CARLISLE , --1 -- (Defendant) ", ,.> va. . . j -::; , ,.'., No. 5011 Civil TERM , ".' . 19iL' 1. St.t. matter to be argued (i.e., plaintiff's motion for new trial, d.fendant'e ~emurrer to complaint, etc.): DlrBNDANT'S KaT ION FOR JUDGKENT ON THE PLEADINGS 2. Id.ntify counsel who will argue case: (.) for plaintiff. PAULA J. MCDERMOTT Address: 218 Pine Street POB 886 Harriaburg, PA 17108-0886 (b) for defendant. BROOKS R. FOLAND Addr.as. 305 North Front Street 6th Floor POB 999 Harriaburg, PA 17108-0999 3. I will notify all parti.a in writing within two days that this caae h.. been listed for .rgument. 4. Argument Court Oat.. May 29, 1996 Dated: I '1/" " ~..... Jt~ ./ Attorney for Defendant CBaTI~ICATE or SBaVICB AND NOW, this 1- ~ II day of ~ ' of the law firm of Thomas, , 199~ I, Thomas & Hafer, eoleen M. Hartman, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United states Mail, first class, postage prepaid, to the following: Paula J. McDermott, Esquire 218 Pine street POB 886 Harrisburg, PA 17108-0886 co@:.cJk..~ , , LINDA CAROL RYAN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-5011 Civil Term THE BOROUGH OF CARLISLE, Defendant TO I TBB PROTHONOTARY OJ' SAID COURT PRAECIPB TO WITHDRAW Kindly withdraw the above-captioned action and mark it dismissed and withdrawn. Respectfully submitted, KILLIAN & GEPHART Dated: April 19, 1996 Pa.&... I). . rntc ~ Paula J.ukcDermott, Esquire Attorney I.D. #46664 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 CBRTIFICATB OF SBRVICB On this 19th day of April, 1996, I hereby certify that I served this foregoing document on the following by depositing a true and correct copy in the United States Mail, postage prepaid, addressed to: Douglas B. Marcello, Esquire Brooks R. Foland, Esquire Thomas, Thomas & Hafer 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 Respectfully submitted, KILLIAN & GEPHART ~, ~'~.1M~~rm~quire Attorney I.D. #46664 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851