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J " r I . :Cl i~-~ r~~ :~ . .., I , i :f, .( J '.1 ,i.O I ....; (,) 'Ii ...... .1;' ....... PIlOOF CJF SERVICE OF NOTICE OF 1\f'f'L:^L AND flllLr TO FILE r.;OMPI.^INT (, his {HOO! of ~NI id.' MUS r or F'IL { {) I t'In IflV f '\'(; (~;) (Ill ~'s ,01 r rr II flliil'J t!1I' IJfllH f' Ii; .In,I/';!! I.'/I!', h ,I! '.Ill;. "~IJI' /1/1' I'.) COMMOMV[ALTH 01' I'ENNSYl.VANOA COUNT V OF~~_ -.----------,-- .h~_'_ :.__ ; " AFFIDAVIT: I 1:,.,i'Io',' '-.\1',11 ,II ,dtll'lll :tl.J1 I :,\~l,,!'d ~! il t:npy of till' rJoIICl: of ^ppl~,il. Conti1l0!; 1'1:,..1" (,',,,,',,/,,,'n;o-,", January 19, 1',96 [In'llll ,ill.ulll'.1 Ill'!1 !d, ,!lId \I~'dll tll, ,11'1" \1"1, lil,//I,i') January 19, 1'1 96.., ! "II'" ,,,,,,,, 'I"~ ," t. .lnll flll!tll:' (1IJ! ',I :l' 'tl till' It'lit~ III I"k oj CUlI.pi,!;I.! wtl(jlllllw nllli. 'oj. .lrld.".",1 nll mild, \mUII'I'-. uv-ip' j,lt.!' III II tllllllO. SWORN IAiFllli,IU)) ,',l'il) SUllSCIIIliI'J Il[f'UIJI ;il, TlHS_19th_IlAYOr,January.. " III 96_ .--CJt<~r' ,() .~/~'I)-t'-,%~ Slg/l,lfun' "/7J~'I~,'~:;~il,,,,/IJI/' I"""il~- ,:{I.(:.:~'" 1\:+ I:" r,lIp.ofn"If.:I" ..... , ___NolllllaISeal Jncquolyn A. Zctllernoyor. NOla,y Public Harrisburg, Dnuphin County ,My CommlssJon E'pir.. Jan:e9, 11199 MorrI..., PemsyMlriaAssocintlonol NoIiI.... ,. 'M'/' t:lIIll1l1l~'df)p \'.'rHI.~" I flll.96-144 _" ;111);,1'\' II -1'" \.1 !, d, "j!I.f!' 1,111'1" 'I pll : "1 by 1,'1-,O:i.j! _'-tl;,\ ,X] IJ\, Ill": 111,)1 tn;o+ ...h 1l1.l'1, wIld",'\. Robert E. McCann, Esq., coWlsel for I\ppellee, .... ~; '" 1"lld,dJ ._., .....~I'IIlI,1 H,!,.,'.t,'I"'ljl1 .11111111,111"1,'111 ,llllllllil,.n.' Jlq lIil' 1'l ! I ill\l" NIl\11 " !If /.pp, j' llll<,ll IIH' jl'PI,!".t-I~l 1'1 1, I I', f',pl,d '1(' h, it ,-lldl iiI (II '1"'''II'tO ~~.~ ,',,:, ,I(UII' ", ./"/."1( " " P 147 27J. 43.. ~ Receipt for Certified Mall '" No Insuranco Covorago Providod ''''1.''..1'.''\ Do not usa lor Intcrnational Moil "". ".. 1500 Rovorsol P 147 271 440 ~ Receipt for Certified Mall '" No Insuranco Covorago Provided .?t:C\lt~l\ 00 1101 uso tor Inl(lllliltionol Milll ISuu fhl\llll!lol ~".,,' ", Honorable aJbert Manlove ''''1901' State Street 1'0 '""" ""'tiill' PA 17011 $ 3~ o ~'" I ,I h, ""'MM$S, O'NEILL, REILLY & 1'.,,1.1'1" I' I ~ (""d"."I.... ~;IH" '1.1' [I,.." "''' I,,,. 1lf'~1I" "", 0"1''''''1 fe.' "",u.'II',III,'.""I., en 1l~'lj,""..r.'''I>' ';11,,,..,,,,,1 en 1U Wt'OIl\'" n.II" [1o......1I'" - en Ih',,,,,, 11,., ,-.I>! ~""''''''''I 0'1 IL.\'""..,,'\ lJIl<' 1',;,,1'1"\ - II 11. T".,. fin t. I'l ~""","q I,. ~'.'" ", C 11,10' .I"" A,l.'''''''' ~ I".t,..-, , ., $ o t.I Ih't"tn Ilh'''lll ~,ht""'"'J''' \...."."" C Il.Ill', .",., ^,l<1"'n,~"~ A,l.lI.'\\ , ., J.,IAII'.-i.q, g '''" <Xl M lOlAlI'.J\l'''I'' ~ .",'. $~S~ 1'1 ,',lllloll ~ I,t ll.ll.' f'(l~tfll.lll. PI O,llt' E o u. Ul .. 1/19/96 ~ u. 1/19/96 Ie defensas 0 BUS objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificac- ion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus pro- piedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE, SI NO TIENE ABOGADO o SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Lawyer Referral Service Court Administrator 4th Floor, Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6200 HEPFORD, SWARTZ & MORGAN BY:D~1{~ I.D. No. 39182 111 North Front Street P. O. Box 889 Harrisburg, PA 17108 (717) 234-4121 ATTORNEYS FOR PLAINTIFFS Dated: ;2.-/1--96 ~.~...... Alternati vely, Defendant Harrah's Entertainment Company, Inc, , t/d/b/a Embassy Suites, is a Virginia corporation with its principal place of business located at 850 Ridgelake Boulevard, Suite 400, Memphis, Tennessee 38120. Defendant has places of business in Philadelphia and Pittsburgh, Pennsylvania, with hotel locations at 9300 Bartram Avenue, Philadelphia, pennsylvania/ 1776 Ben Franklin Parkway, Philadelphia, Pennsylvania/ and 550 Cherrington Parkway Coraopolis, Pittsburgh, Pennsylvania. 3. At all times relevant hereto, Defendant was doing business in the Commonwealth of Pennsylvania as a hotel/motel chain and provided rooms for rent. 4. At all times relevant hereto, Defendant actively maintained businesses in the Commonwealth of Pennsylvania and solicited citizens of Pennsylvania to purchase lodging at their facilities. 5. At all times relevant hereto, Defendant actively solicited residents of Cumberland County, and advertised its hotels to the residents of Cumberland County, Pennsylvania. 6. At all times relevant hereto, Defendant accepted reservations from citizens of Cumberland County, Pennsylvania and Pennsylvania, and contracted with citizens of Cumberland County, Pennsylvania and Pennsylvania to provide lodging for a fee, 7. Plaintiff, in response to Defendant's advertising and solicitation, made a reservation with Defendant for lodging on the evening of April 23, 1994, at Defendant's facility in Alexandria, 2 Virginia. Defendant was the owner and operator of said hotel in Alexandria, Virginia. 8. On or about April 24, 1994, while a guest at Defendant's hotel in Alexandria, Virginia, Plaintiff was injured while using a piece of athletic training equipment on Defendant's premises. 9, On or about April 24, 1994, Plaintiff was exercising using a universal apparatus. While in the course of using the lat bar, said piece of equipment failed to operate properly and caused injury to Plaintiff. 10. On or about April 24, 1994, as Plaintiff was using the lat bar at Defendant's facility in Alexandria, Virginia, the connection between the lat bar and cable which attaches to the weight stack detached and as a result the lat bar struck Plaintiff on his head causing injury to his head, neck, shoulders, and back. 11. As a guest of Defendant, Plaintiff was permitted and encouraged to use the nautilus apparatus and exercise facility on the Defendant's premises. 12. Before Plaintiff began using the nautilus apparatus, he was not provided with any direction or instruction from Defendant's employees. 13. Prior to using the nautilus apparatus, Plaintiff was not provided with any written information or warnings regarding the operation and use of the nautilus apparatus. 3 14. While Plaintiff was using the nautilus apparatus, Defendant provided no supervision of, or instruction to, Plaintiff regarding operation and use of the nautilus apparatus. 15. As a result of the aforesaid accident, Plaintiff sustained various severe injuries which include, but are not limited to, the following: a. head contusion; b. cervical sprain/strain; c. headaches; d. dizziness; e. nausea; f. various bruises and contusions. 16. As a result of his injuries, Plaintiff has suffered and will in the future continue to suffer severe physical pain, mental anguish and suffering, embarrassment, humiliation, and loss of life's pleasures. 17. As a result of his injuries, Plaintiff has and will be obligated to receive and undergo medical attention and care, and he will incur various expenses for medical treatment and be obligated to continue to expend such sums for an indefinite time in the future. 18. As a result of his injuries, Plaintiff has and may continue to suffer severe loss of earnings and impairment of earning capacity, 4 19. As a result of his injuries, Plaintiff has suffered a medically determinable permanent physical impairment which has, and may hinder all, or substantially all, of the material duties which constitute his usual and customary daily activities. 20. Said accident and the. resulting injuries to Plaintiff were due to the actions or failure to act by Defendant and were not due in any manner to the ('Ictions or failure to act by Plaintiff. 21. The aforementioned equipment was assembled and/or installed by Defendant and placed in its facility with the intention and expectation that it would be used by patrons, including Plaintiff, of its hotel. 22. Said equipment was installed by Defendant and made available to the public, including Plaintiff, in a defective and unreasonably dangerous condition for its intended use in that the lat bar and connecting cable were not attached in a secure manner such that upon use it could easily come apart and cause injuries as it had to Plaintiff. 23. The nautilus equipment was substantially in the same condition or not substantially changed while in the possession and control of Defendant from the time it was first assembled and ~nstalled by Defendant until it was used by Plaintiff. 24. It was foreseeable to Defendant that individuals such as Plaintiff would use the nautilus equipment and in particular the lat bar. 5 25. At the time of the aforesaid accident, the lat bar on the nautilus equipment was being used for its intended purpose, or in the alternative, any alleged misuse was foreseeable by the Defendant. COUNT I NJ:GLIGBNCB 26. Paragraphs number 1 through 24 are incorporated herein by reference. 27. The aforesaid injury suffered by Plaintiff was a direct and proximate result of Defendant's negligence. 28. Defendant had a duty to Plaintiff to protect him from injury while using the aforesaid nautilus equipment and a duty to provide a safe product to patrons of its facility, including Plaintiff. 29. Defendant knew, or should have known. that the aforesaid nautilus equipment was dangerous to persons such as Plaintiff. 30. Defendant was negligent, careless, and/or reckless in the following respects I a. failing to properly maintain the nautilus equipment so as to prevent the lat bar from detaching from the cable during use; 6 failing to properly inspect the equipment on a regular basis to discover the defect in the connection between the lat bar and the cable; failing to properly assemble or install the nautilus equipment to prevent the separation of the lat bar from the cable during its use; failing to properly warn Plaintiff with regard to the condition of the lat bar assembly; failing to properly warn Plaintiff with regard to use of the nautilus apparatus; failing to properly instruct Plaintiff with regard to the use of the nautilus equipment, specifically the lat bar; failing to properly supervise Plaintiff during his use of the nautilus equipment, specifically the lat bar; h. failing to adequately test, research, or inspect the type of equipment that was being used by Plaintiff; i. failing to properly man the fitness center in order to provide the proper instruction and supervision for those using the facility, including the nautilus equipment; j. failing to properly train its employees who supervise the fitness center and/or who inspect the fitness equipment, including the nautilus machine; d. e. " f. g. b. c. 7 k. failing to properly train the individuals who perform the maintenance on the fitness equipment, including the nautilus machine! 1. failing to use an alternative method to secure the lat bar to the cable such that it would not disconnect as it did when the Plaintiff was injured! m. failing to repair the defect which caused the lat bar to detach from the cable! and n. failing to have a regularly scheduled maintenance, repair, and/or replacement of worn parts programs to avoid situations such that the nautilus machine would be in the condition it was when it caused Plaintiff's injury, 31. As a direct and proximate result of the aforesaid negligence, carelessness, and recklessness of Defendant, Plaintiff sustained damages and injuries as previously set forth in this Complaint, WHEREFORE, Plaintiff respectfully demands judgment against Defendant in an amount not to exceed the mandatory jurisdictional limits for arbitration, plus interest and costs of these proceedings. 8 COUNT II STRICT LIABILITY 32. PaLagraphs number 1 through 31 are incorporated herein by reference. 33, Plaintiff's injuries and damages were a direct and proximate result of the defective and unreasonably dangerous nature of the nautilus apparatus when it was placed in the stream of commerce by Defendant and for which is strictly liable to Plaintiff. 34. Defendant supplied aforesaid nautilus equipment in a defective and unreasonably dangerous condition in that: a. Defendant failed to adequately warn Plaintiff of the danger in using a nautilus apparatus, or in the alternative, failed to see that adequate warnings or instructions were provided to Plaintiff to prevent such injuries from occurring during his use of the nautilus apparatus; b. Defendant failed to make subsequent modification, repair, or redesign of the lat bar and cable connection to prevent the lat bar from detaching from the cable, or in the alternative, failing to provide subsequent warnings and thereby further breaching its duty to warn; 9 c. Defendant set up the apparatus and/or connected the lat bar and cable in such a fashion as to be unreasonably dangerous and that would forseeably cause serious injury to anyone using the lat bar in the manner in which it was designed to be used; d. Defendant failed to provide safety connections or back-up connections to prevent the lat bar from becoming detached from its cable; and e. Defendant failed to provide a clamp or connector between the lat bar and the cable that would not wear to the extent that the lat bar could spontaneously detach from the cable during its normal and intended use. 35. At the time Defendant supplied the nautilus apparatus, including the lat bar, alternative designs for the connections of the lat bar to its cable were readily available and on the market which would have prevented the lat bar from becoming detached from its cable. 36. As a direct and proximate result of the unreasonably dangerous and defective condition of the lat bar, Plaintiff sustained damages as previously set forth in this Complaint. WHEREFORE, Plaintiff respectfully demands judgment against Defendant in an amount not to exceed the mandatory jurisdictional 10 limits for arbjtration, plus interest and costs of these proceedings. COUNT III BROCH OP WARRANTY 37. Paragraphs number 1 through 36 are incorporated herein by reference. 38. Defendant supplied the nautilus apparatus for use by its guests with and subject to express and implied warranties, including implied warranties of fitness for a particular purpose and merchantability, which warranties were extended to and were applicable to the Plaintiff. 39. Defendant had reason to know that the nautilus apparatus would be subject to ongoing use and wear and tear by its guests and patrons. 40. Defendant knew, or should have known, that its guests, including Plaintiff, would rely on the aforesaid warranties upon using the nautilus apparatus and the lat bar. 41. Defendant's continued use of the nautilus apparatus as well as maintenance thereon created both an express and implied warranty that the said apparatus was safe for such purposes, including those purposes for which the Plaintiff was using said apparatus. 11 42. Plaintiff relied upon the warranties and representations of Defendant, by and through its agents, servants, and/or employees. 43. Defendant breached the aforesaid express and implied warranties for a fitness machine for particular purpose and merchantability in that: a. Defendant failed to adequately warn the Plaintiff of the dangers resulting from the use of the nautilus equipment, or in the alternative, failed to see that adequate warnings or instructions were provided to the Plaintiff to prevent his injuries fr.om occurring; b. Defendant failed to properly instruct Plaintiff or its employees on the use of the nautilus apparatus, or in the alternative, failed to ensure that when Plaintiff used the nautilus apparatus his injuries would be prevented; c. Defendant failed to make the proper inspections, repairs, and/or replacement of parts so that the nautilus apparatus could be used safely and without causing harm to Plaintiff; d. Defendant failed to provide subsequent warnings, suggestions, or alterations of the nautilus apparatus so as to prevent the injury to Plaintiff, and thereby, further breaching its duty to warn; and 12 e. Defendant failed to provide a nautilus apparatus with a lat bar that could be used by Plaintiff or other of Defendant's guests in the fashion in which it was intended to be used and such that it would not simultaneously detach and cause injury to Plaintiff or other of Defendant's guests. 44. The nautilus apparatus and lat bar in question were not merchantable, fit for their ordinary purposes, or fit for their particular purposes at the time Plaintiff was injured. 45. Alternatively, the injuries and damages to Plaintiff resulted from product malfunction that would not have occurred absent a defect. 46. Defendant further breached its expressed and implied warranty to provide Plaintiff with safe lodging and attendant facilities in return for his paying the requested rate for that lodging and attendant facilities. Defendant breached these warranties as follows: a. Defendant failed to provide Plaintiff with facilities and equipment such that he could safely exercise; b. Defendant failed in its duties and obligations for the particular reasons set forth in paragraphs 30, 34, and 43 above. 13 VERIFICATION I, Fred W. Zeigler, verify that the facts stated in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S, 54904 relating to unsworn falsification to authorities. . ."'IJ.~ -;~.' Ze 91& ...-- --- \, '.. fro .~ f- IJIq f."It-i rtij; '1)(' fil:~: t.t!:! ". II- <.) ~ ..:r 10 ,'/) '- I" , . ~ ," ...... '.'1,.: ,,- I ..: '-.\. ",I <'J ';<1 ' . C'..... I, (.... "', f.l .: '.I I'", , J ~: ) ~~ IN ..~ ..- ""j!! -I f"gli~~ ~~.::.i~;:: .:~q.el j {Il .S .. ,; .;t: . Q:: ! t- ~ - , lli = = . .. . TOl PIalntlrr. You are hereby notified to file a wrlllen response to the enclosed New Matler within twenty J20) days from service hereof or a judament :r;.~nlered lIalnst y~1( CC- MARKS, O'NEILL, REILLY" O'BRIEN, P.C. IYl ROIERT E. MCCANN, ESQUIRE mENTInCATlON NO. 65735 ATIORNEY FOR ALL DEFENDANTS 1110 JOHN F. KENNEDY BOULEVARD, SUITE 1200 PHILADELPHIA, PENNSYLVANIA "'03 (215) 51t M.. OUR FILE NO.: 678-43085 vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION., , t - q (... - I .., I-f ~1U1 Ir"lfl NO. CV8tl8lM76 95 , FRED ZEIGLER EMBASSY SUITES, ET AL DEFENDANTS, EMBASSY SUITES, PROMISE HOTEL CORPORATION '/d/b/a EMBASSY SUITES, HARRAH'S ENTERTAINMENT COMPANY, INC., '/d/b/a EMBASSY SUITES ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT 1-4. Admitted. 5-25. Denied. After reasonable investigation, answering defendant Is without sufficient knowledae or Information to form a belief as to the truth or accuracy of the averments contained in these parqraphs and same are, therefore, denied and strict proof thereof is demanded at time of trial. Furthermore, the allegations of these paragraphs constitute conclusions of law to which no responsive pleadina1s required. MARKS, O'NEILL, REILLY' O'BRIEN, p,c, SUITE 1200 . 1880 JOliN F. KENNEDY BOULEVARD PIULADELPfllA, PA 19103 " . COUNT I NEGLIGENCE 26. Answerlna defendant hereby Incorporate by reference their answers to paraaraphs Ithrouah 25 Inclusive u thoulh same were fully set forth herein at length, 27-31. Denied. After reasonable Investigation. answering defendant Is without sufficient knowledle or Information to form a belief as to the truth or accuracy of the averments contained In these raphs and same are, therefore, denied and strict proof thereof is demanded at time of trial. Furthermore, the allelatlons of these paragraphs constitute conclusions of law to which no responsive WHEREFORE, defendants, Embassy Suites, Promise Hotel Corporation d/b/a Embassy Suites, Harrah's Entertainment Company, Inc., IIdlbla Embassy Suites, demands lIdament In their favor and aaalnst plaintiff, together with costs of suit, reasonable allomey's fees and r relief u may be deemed just and appropriate. COUNT II STRICT LIABILITY 32. Answering defendant hereby Incorporate by reference their answers to paraaraphs I throulh I Inclusive u thouah same were fully set forth herein at length. 33-36. Denied. After reasonable investigation, answering defendant is without sufficient wledle or information to form a belief as to the truth or accuracy of the averments contained in these raphs and same are, therefore, denied and strict proof thereof Is demanded at time of trial. urthermore, the allegations of these paragraphs constitute conclusions of law to which no responsive WHEREFORE, defendants, Embassy Suites, Promise Hotel Corporation 2 MARKS, O'NEILL, REILLY & O'BRIEN, P,C. SUITE 1200 . lBBO JOHN F, KENNEDY BOULEVARD PHILADELPtllA, PA 10103 . IId/b/a Embassy Suites, Harrah's Entertainment Company, Inc., lId/b/a Embassy Suites, demands jud.mcntln their favor and aaainst plaintiff, together with costs of suit, reasonable attorney's fees and other relief u may be deemed just and appropriate. COUNT III BREACH OF WARRANTV Answerln. defendant hereby Incorporate by reference their answers to paraaraphs I throu.h 36 Inclusive u though same were fully set forth herein at length. 38-47. Denied, After reasonable Investigation, answering defendant is wlthoutsufticlent knowled.e or Information to form a belief as to the trulh or accuracy of the averments contained In these JlUllraphs and same are, therefore, denied and strict proof thereof is demanded at time of trial. Furthermore, the a1le.ations of these paragraphs constitute conclusions of law to which no responsive pleading is required. WHEREFORE, defendants, Embassy Suites, Promise Hotel Corporation d/b/a Embassy Suites, Harrah's Entertainment Company, Inc., lId/b/a Embusy Suites, demands ud.mcnt In their favor and qainst plaintiff, together with costs of suit, reasonable attorney's fees and r relief u may be deemed just and appropriate. NEW MATTER 48. Plaintlfrs claims may be barred in whole or in part by the applicable statute(s) of Imitations and/or laches. 49. Plaintiff failed to give timely notice of any alleged breach of warranty claim as required ylaw. .50. Plaintiff has failed to state a claim upon which relief may be granted. 3 MARKS, O'NEILL, REILLY. O'URIEN, P,C, SUITE 1200 . 1860 JOliN F, KENNEDY UOULEVARD PftlLADELP'ilA, PA 10103 . 51. The subjecl incidenl and a1leaed damaaes were caused enlirely by or conlribuled 10 by !he nqll.ence and/or Iiabllily-producina condUCI of individuals and/or en lilies olher lhan Defendanl. 52. Any conducl alleaedly causinaliabilily on Ihe part of Defendanl, was not a subSlanlial or Clulllive flClor of !he subjecl incidenl or re~ullina damaaes. 53. PJalnlifrs claims for damaaes may be barred or reduced by Ihe Plalnlifrs percenlaie of compualive faull. 54. PJalnliff may have assumed Ihe risk of her aclivilies and/or Ihe risk of a known danaer. 55. The acls, omissions or nealiaence of individuals or enlilies includina plainliff olher Ihan Defendanl may have consliluled an inlervenina, supersedina cause, such as 10 relieve Answerina " Defendant of any liability for Ihe subjecl incidenl. 56. Answerina Defendanl performed each and every dUly. if any, owed 10 PJainliff. 57. Venue Is improper. 58. PJainlifrs claims may be barred because of any expressed or Implied conlract andlor ease. 60. 61. 62. 63. 64. Ule. 65. 59. PJainlifrs claims may be barred because of Ihe doclrine of W iudicata and/or collateral PJainlifrs claims may be barred because of improper service of process. PJalnlifrs claims may be barred by Ihe doclrine of accord and salisfaclion. PJainliff assumed Ihe risk of all injuries which limits and/or bars all claims. PJainlifrs claims are barred because of statulory and/or common law. PJainlifrs claims are barred because of Ihe doclrine of superseding and/or Intervenina PJainlifrs claims are barred because of Ihe doclrine of waiver and/or estoppel. 4 MARKS, O'NEill, REillY. O'BRIEN, P,C, SUITE 1200 . 1660 JOHN f. KENNEOY BOULEVARO PtlILAOELPHIA. PA 19103 . 66. Plalntlfrs claims arc barred because of Improper venue. 67. Plalntlfrs claims may be barred by the Pennsylvania Worker's Compensation Act andlor Occupational Disease Act. 68. The product was misused In an abnormal and unforeseeable manner. 69. The product was substantially altered, damaged, modified and/or oth~rwise chanaed in condition. 70. The defendant did not sell, manufacture, distribute and/or otherwise place into the stream of commerce the r-roduct In question. WHEREFORE, defendants, Embassy Suites, Promise Hotel Corporation tldlb/a Embassy Suites. H&mh's Entenalnment Company, Inc., t/d/b/a Embassy Suites, demands udament in their favor and aaainst plaintiff, together with costs of suit, reasonable attorney's fees and r relief as may be deemed just and appropriate. MARKS, O'NEILL, REILLY" O'BRIEN, P.C. jBi d' BERT E. MCCANN, ESQUIRE Allorney for Defendants Embassy Suites, Promise Hotel Corporation t/d/b/a Embassy Suites, Harrah's Entertainment Company, Inc., t/d/b/a Embassy Suites 1880 John F. Kennedy Blvd. Suite 1200 Philadelphia, PA 19103 (215) 564-6688 (215) 564-2526 (fax) 5 MARKS, O'NEILL, REILLY' O'BRIEN, P,C. SUITE 1200 . 1880 JOHN F. KENNEOY BOULEVARO PftlLAOELPHIA. PA 19103 MARKS, O'NEILL, REILLY" O'BRIEN, P.C. BY, ROBERT E. MCCANN, ESQUIRE IDENTIFICATION NO. 65735 A1TORNEY FOR ALL DEFENDANTS 1110 JOHN F. KENNEDY BOULEV ARB, SUITE 1200 PHILADELPHIA, PENNSYLVANIA 19103 (215) 5'. ".. OUR FILE NO.: 678-4308' FRED ZEIGLER COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION 9(" -1'-11-( (3;." -r7~,z./7 NO. CVll8804~" vs. EMBASSY SUITES, ET AL ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL o THE PROfHONOTARY: Kindly enter our appearance on behalf of defendants, Embassy Suites, Promus Hotel rporatiOll (Incorrectly Designated in the Complaint as Promise Hotel Corporation), IIdlbla Embassy ultes, Harrah's Entertainment Company, Inc., IIdlbla Embassy Suites, in the above-captioned matter. Defendants by and through their allomey hereby demands a trial by jury In the above- lOlled matter. MARKS, O'NEILL, REILLY" O'BRIEN, P.C. Istd 2, m'-( ..... . ROBERT E. MCCANN, ESQUIRE Allomey for Defendants Embassy Suites, Promise Hotel Corporation, IIdlbla Embassy Suites, Harrah's Entertainment Company, Inc., IIdlbla Embassy Suites BY: MARKS, O'NEILL, REILLY & O'BRIEN, P,C, SUITE 1200 . 1880 JOHN F, KENNEDY BOULEVARD P011LAOELPIHA, PA IDIOJ (: "I . - .:',' c:; r ~: r': )~-r UIC ..::t CJ.-- ..-- ~. ~ ~.-; po, ' .I.... ~L C:,,,, ..... ;..1 .t!) " I . _l>; ltl' t. ".(2 ;' 0'. L~ ..; '- f,'\ ~-) PL~INOSI :'''''I'1,I3./9.96I.t FRED ZEIGLER, Plaint if f IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 96-144 CIVIL TERM EMBASSY SUITES, PROMISE HOTEL CORPORATION t/d/b/a EMBASSY SUITES, HARRAH'S ENTERTAINMENT COMPANY, INC., t/d/b/a EMBASSY SUITES, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED PLAINTII'I' , S RIPLY TO DII'INDAHTS' Im1f NATTIR 48. Denied as a conclusion of law. 49. Denied as a conclusion of law. By way of further denial, Plaintiff gave timely and specific notice to the Defendants of the defect in the apparatus resulting in his claim. Defendants had actual notice of the defect resulting in a breach of warranty in that they had representatives who were present at or about the time the injury resulted from the defect and they consequently inspected the apparatus. 50. Denied as a conclusion of law. 51. Denied as a conclusion of law. By way of further denial, it is specifically denied that the accident in question and Plaintiff's damages were not entirely caused by the Defendants as set forth in Plaintiff's Complaint. It is specifically denied that entities other than Defendants' were responsible for the accident and the Plaintiff's damages. PL~INOSI :.,..,.1,13.19-'1(/.1. 52. Denied as a conclusion of law, conduct caused the Plaintiff's injuries. Defendants' negligent 53. Denied as a conclusion of law. By way of further denial, it is specifically denied that the Plaintiff was in a manner comparatively or contributorily negligent in the causing of the accident in question. 54. Denied as a conclusion of law. ,It is specifically denied that Plaintiff assumed any known risk with regard to the activities he was involved with at the time he was injured, 55. Denied as a conclusion of law. By way of further denial, it is specifically denied that there were any intervening or superseding causes or events that would relieve the Defendants of any liability. 56. Denied as a conclusion of law. By way of further denial, Plaintiff hereby incorporates the allegations set forth in his Complaint regarding Defendants' various duties and their breaches of those duties. 57. Denied as a conclusion of law. Objections to venue are not properly raised in New Matter and since it was not raised by Preliminary Objection, it is waived. 2 PLI~IHasl ~''''7'/';3.'9.96I.l 58. Denied as a conclusion of law. Plaintiff has not releaoed Defendants from any claims. 59. Denied as a conclusion of law. 60. Denied as a conclusion of law. Defendants were properly served with original process in this matter. Said defense is not properly raised in New Matter and, since it was not raised by Preliminary Objection, it is waived. 61. Denied as a conclusion of law. 62. Denied as a conclusion of law. 63. Denied as a conclusion of law. 64. Denied as a conclusion of law. 65. Denied as a conclusion of law. 66. Denied as a conclusion of law. Plaintiff incorporates his reply to Paragraph 57 above. 67. Denied as a conclusion of law. By way of further denial, the Pennsylvania Worker's Compensation Act and/or the Occupational 3 . PL~IHaS;"i"7'/';3.'9.,)6/,l Disease Act has no applicability to the present accident in Plaintiff's injury. 68. Denied. The product was not misused by the Plaintiff or used in an abnormal or unforeseeable manner. To the contrary, Plaintiff used the apparatus in an appropriate manner and in a manner which was reasonably foreseeable by the Defendants. 69. Denied. It is believed, and therefore alleged by the Plaintiff, that the product was not altered, damaged, modified or otherwise changed while in the possession of the Defendants. To the contrary, it is believed, and therefore alleged, that the product was in the same condition the entire time it was in the possession of the Defendants, except that the condition deteriorated due to the Defendants' failure to inspect, maintain and repair said apparatus. 70. Denied. Plaintiff hereby incorporates the allegations set forth in his Complaint which allege that the Defendants placed the product in question into the stream of commerce. 4 PL~IHGsi ..."",1,13.19.961.1, CERTIFICATE OF SERVICE AND NOW, this 19th day of March, 1996, I, Sharon L. S~ith, for the firm of Hepford, Swartz & Morgan, hereby certify that a copy of the foregoing document was served by first-class U. S. Mail, postage prepaid, to the following, Robert E. McCann, Esquire MARKS, O'NEILL, REILLY & O'BRIEN, P.C. Suite 1200 1800 John F. Kennedy Boulevard Philadelphia, PA 19l03 ~t~~~ Sharon L. Sm t , I.h, i:,: ~ . '. " j.'. c~. . , IU~ .. .:; o. /'" . ,.. ~[' I ~.. ",.i (J: L t':J ~11 ,.,j W' I' i....l I . l:~ 10'.. I', 1..') ) '...j f.. . ;:J ~ i i~ 8_ llC t! t: ~ ~~i5~~ ~~'::.iJ;:: · ;, l! c:i B ..:lfl!~a;ci~ ~ = ~... ~ - ! ill , :z: Z . FRED ZEIGLER, Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 96.0144 CIVIL TERM CIVIL ACTION. LAW EMBASSY SUITES, PROMISE HOTEL CORPORATION t/dlh/n EMBASSY SUITES, HARRAH'S ENTERTAINMENT COMPANY, INC., I/dlh/a EMBASSY SUITES, Defendants JURY TRIAL DEMANDED IN RE: PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND DOCUMENT REOUEST ORDER AND NOW, this 7 (.. day of Fehruary, 1997, n rule is issued on the defendants to show cause why the relief requested in the within molion ought nol t.) he granted. This rule returnable twenty (20) days nfter service. BY THE COURT, ~. /llL I'ILm-Oi-FICi: C... -', ,.- 1.".,.1 "'\'(-:"r"I\/ )... \;" ',' . l!j\.\1 r.1FI:r.~,'J "'I~ "3 -; t 1',. I \1:.1 Ci.lht.~ .\ ,,;-.1'" 1''''1'1''''1'''' 'I \ r.l':1 "J 11..\'/ U',,! . PLIADIHas/...,....I."..!:/.20-97I.l FRED ZEIGLER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 96-144 CIVIL TERM CIVIL ACTION - LAW EMBASSY SUITES, PROMISE HOTEL CORPORATION t/d/b/a EMBASSY SUITES, HARRAH'S ENTERTAIN- MENT COMPANY, INC., t/d/b/a EMBASSY SUITES, Defendants JURY TRIAL DEMANDED PLAINTIPP'S MOTION TO COMP.L ANSWliRS TO INT.RROOATORUS AND DOCtJIDNT UQUliST 1. This matter arises out of Plaintiff's injuries suffered on April 24, 1994, while Plaintiff was a guest of Defendants' hotel in Alexandria, Virginia, and using a piece of athletic training equipment on Defendants' premises. 2. Plaintiff filed his Complaint against Defendants on or about February 12, 1996. 3. On April 18, 1996, Plaintiff served Defendants with Interrogatories and Request for Production of Documents. 4. Defendants have failed and continue to refuse to respond to the aforesaid discovery requests. . PLIADINGS/ ..."...,.....I2.24.97I.l 5. Counsel for the Plaintiff and counsel for the Defendants had several conversations in an attempt to settle the Plaintiff's claim. Said settlement discussions were not fruitful. 6. On December 10, 1996, counsel for Plaintiff sent a letter via facsimile and First Class U. S. Mail to Defendants' counsel and indicated that if settlement was not accomplished by December 13, 1996, a Motion to Compel Discovery was going to be filed the following week. (See attached letter of December 10, 1996, marked Exhibit "A" and incorporated herein.) Subsequent to that, counsel had a conversation and that action was delayed, upon the representation by Defendants' counsel that he would make his best attempt to obtain further settlement authority from his client. 7. Again, settlement discussions were not fruitful in attaining an amicable resolution of the Plaintiff's claim. Consequently, Plaintiff's counsel sent another letter to Defendants' counsel on January 30, 1997, giving Defendants until February 7, 1997, within which to respond to discovery requests. (See attached letter of January 30, 1997, marked Exhibit "B" and incorporated herein.) No discovery answers have been forthcoming from the Defendants to the present. 8. The information sought in the aforesaid discovery requests clearly relates to claims and defenses applicable herein 2 . PLIlADINGB/ "'"""'1.....!2.24.97I.l and .is reasonably calculated to lead to the discovery of admissible evidence. 9. In addition, Defendants' failure to timely object to the aforementioned discovery requests waives any objections thereto. 10. Accordingly, Defendants' failure to respond to Plaintiff's aforesaid discovery is unjustified and Plaintiff is being unfairly prejudiced thereby. WHEREFORE, Plaintiff respectfully requests this Honorable Court to Order Defendants to answer Plaintiff's Interrogatories and Request for Production of Documents and grant Plaintiff such other relief as this Honorable Court deems appropriate. Respectfully submitted, HEPFORD, SWARTZ & MORGAN Dated: ~.I..el-'!'7 By: 52). /1. Lk.i-d. Dennisr;;~fer Attorney I.D. #39182 111 North Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234 -4121 ATTORNEYS FOR PLAINTIFF 3 H. losutt HEl'I'OID. PoCo t.n C. SWAIn' lAND G. MOlICAN, I., SANDIA L. Mln.1ON S1VHIH M. GUICla, ,.. DINNIs R. 5Hw9u RlCHAm A. EsTAClO MICHAIL H. PAIK ANDUW k. STII1DIAN STANlJY H. SIIC1L 0' CoIMIL - 1:fEPFORD SWARn tel MORGAN IA. omcu III Holm '1DHr STUn ,.0 Iol MIl Ihoo,_. PA Ino&oo!olIIl 'CIITIIID...o.a TlIAl AIIWlr'''1'I1lIIN.I-., ..... III TlIAl AIIWlrolC\' lIWItaHa ""2)4.4121 'All m.m-ea03 December 10, 1996 V%A .ACB%NILK - 215-56.-2526 Robert B. McCann, Bsquire MARKS, O'NBILL, RBILLY & O'BRIBN, P.C. Suite 1200 1880 John F. Kennedy Boulevard Philadelphia, PA 19103 all .r.d Z.igl.r V. aab...y Suit.., et al. CUabarlud County C.C.P. No. 96-1U Teu. Pul aoo.2lIr421 , ~ a.. 8 .... .." - .... Dear Mr. McCann: Pursuant to our conversation on December 6, 1996, I am writing to confirm that if we are not able to resolve this ~~tter by December 13, 1996, I will be filing a Motion to Compel Discovery and Notice of Depositions in this case the following week. Thus, if your client is looking to resolve this matter amicably and without incurring any further litigation costs, I would hope it can be done within the next four days. I look forward to your response. Very truly yours, BBPl'ORD, SWARTZ Ii MORGAN ~f~~fer 1.IW\mJWN OfI1CU DRS/dsb cc, Fred Zeigler 12 SOunt MAIN Srun ,.0 lox lI67 I.I_W.'4 IJ044.0a6r TliuHom n/.24&,1g13 EXHIBIT "A" EXHIBIT "8" HErfORD' SWARTZ &'4 MORGAN 1l.105UH 1I_.Il.C. t.u C. SWUIZ' lAIRS C. MOIIGAN. la. 5AMlaA L. MillION SlVIlEN M. cwOllR.1a. llINNlS R. SHlAffU IbCIlAaD II. ESTACIO MIcItAll H. PARK llNOUW K. 51\1TZl1AN STANLlY H. SIICEL Of COUNSEL January 30, 1997 lAw (If.1CU III NoaTll f...-..rr SfIllI. P.o. IoIIIlI!9 ~. PA ITlOIHlIIIlll IClI1ftD AI A ow. TIIA&. AlMJcAn.., IHI NArDlU _.. Tlw AIMJ(,ey 1'IIMHoNI 71H~n PAll n7.W-el102 Robert E. McCann, ERquire MARKS, O'NEILL, REILLY, O'BRIEN & COURTNEY, P.C. Suite 1200 1880 John F. Kennedy Boulevard Philadelphia, PA 19103 KlI Wred Zeigler v. 1mballY Suite. Date of Acoidentl 4/24/94 Claia No. I 0100733801 Your Wile NO,I 678-43085 Our Wile No.1 94-307 Tau. ra, aoo-257-41~1 ~ :.- a.. -= c.:a ..... ....I - .... Dear Mr. McCann, Pursuant to our conversation on January 28, 1997, I am writing to confirm that I have given you ten (10) days within which to provide discovery responses; otherwise, I will be filing a Motion to ComDel Discoverv. Thus, your client's discovery responses will be due February 7, 1997. Again, should your client be inclined to resolve this matter for the amount we have demanded, we could avoid any further litigation costs. I await your client's response. Very truly yours, UWUTOWN 0fJ1CU HBPPORD, SWARTZ . MORGAN ~sfter 12.lourH MAIN SfIllIT DRS/sls c: F~d Zeigler P.o. 1oll1l67 1.I1ruTowN. rA 1104+<lIl67 TILIrHoHI 71Ho4oW9Ll EXHIBIT "B" VERIFICATION I, DENNIS R. SHEAFFER, as attorney for the Plaintiff in this action, verify that the facts stated in the foregoing document are true and correct to the best of my knowledge, information and belief. Plaintiff is outside the juriediction of this Court and her verification could not be obtained within the time allowed for the filing of the foregoing responsive pleading. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ga~~~r . PLIADIHQS/ ,..,....,."./2.20-97I.l CERTIFICATE OF SERVICE AND NOW, this c:JI/iJ. day of (\.~"'a ' 1997, I, Sharon L. Smith, for the firm of Hepford, Swartz & Morgan, hereby certify that a copy of the foregoing document was served by first-class U. S. Mail, postage prepaid, to the following: Robert E. McCann, Esquire MARKS, O'NEILL, REILLY & O'BRIEN, P.C. Suite 1200 1800 John F. Kennedy Boulevard Philadelphia, PA 19103 ~""~' Sharon L. Sm th .-r _'Jl <.:::::In-,rII,