HomeMy WebLinkAbout96-00606
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
DEBORAH L, GRAHAM, Individually,
and as parent and natural guardian of
EZEKIEL E, GRAHAM,
CIVIL DIVISION
G.D, No.: 96-606
Plaintiffs,
v,
RESPONSE IN OPPOSITION
TO PRELIMINARY OBJECTIONS
PENNSYLVANIA TURNPIKE COMMISSION,
Defendant.
Filed on Behalf of Plaintiffs:
Counsel of Record for This Party:
Louis M. Tarasl, Jr., Esquire
PA 1.0. # 01042
THE TARAS I LAW FIRM, P,C.
Firm No. #469
510 Third Avenue
Pittsburgh, PA 15219
P: (412) 391-7135
F: (412) 4712673
.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
DEBORAH L, GRAHAM, Individually,
and as parent and natural guardian of
EZEKIEL E, GRAHAM,
CIVIL DIVISION
G,D. No,: 96-606
Plaintiffs,
v,
PENNSYLVANIA TURNPIKE COMMISSION,
Defendant.
RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS
AND NOW, comes the Plaintiff Deborah L. Graham, Individually and as parent and
natural guardian of Ezekiel E, Graham, by and through her counsel of record, Louis M,
Tarasl, Jr., Esquire and The Tarasi Law Firm, P.C" and file this Response in Opposition
to Preliminary Objections as follows:
1. Admitted,
2, Admitted. By way of further answer, the Defendant's sovereign immunity is
subject to the limitations and exceptions set forth in 42 Pa.C,S.A, ~B522.
3. The allegations of this paragraph are conclusions of law to which no
response is required, To the extent a response may be required, the allegations are
denied. It is denied that Plaintiffs' Complaint fails to aver any of the statutory exceptions
to sovereign immunity. To the contrary, the complaint sets forth both a factual basis for
a claim under the exceptions enumerated in 42 Pa,C,S,A, ~8522, as well as stating In the
caption to Count I "Negligence pursuant to 42 Pa,C.S,A, ~8522(b)(4)",
4. The allegations of this paragraph are conclusions of law to which no
response Is required, To the extent a response may be required, the allegations are
denied, It Is denied that Plaintiffs' Complaint falls In both the preamble and Count I to aver
an act or failure to act by Defendant, a Commonwealth party, which could result In the
Imposition of liability or any statutory exception to its sovereign Immunity. By way of further
answer, the complaint sets forth both a factual basis for a claim under the exceptions
enumerated in 42 Pa,C.S.A. ~8522, as well as stating In the caption to Count I
"Negligence p'ursuant to 42 Pa,C.S,A. ~8522(b)(4)",
I
5. The allegations of this paragraph are conclusions of law to which no
response Is required, To the extent a response may be required, the allegations are
denied. It is denied that the fence as described In both the preamble and Count I of
Plaintiffs complaint does not constitute a dangerous condition of Commonwealth real
property and does not fall within any of the enumerated exceptions set forth therein, By
way of further answer, the complaint sets forth both a factual basis for a claim under the
exceptions enumerated in 42 Pa,C,SA ~8522, as well as stating in the caption to Count
I "Negligence pursuant to 42 Pa,C,S,A, ~8522(b)(4)", The Complaint adequately avers that
the mesh fence is a dangerous condition of Commonwealth real property as a fixture
placed, affixed and maintained by the Defendant, see paragraphs 7-11 of Plaintiffs'
Complaint.
.
6. The allegations of this paragraph are legal conclusions to which no response
is required. The Pennsylvania Rules of Civil Procedure speak for themselves,
WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny
Defendant's Preliminary Objection In the form of a demurrer as the Complaint sets forth
a legally sufficient basis for a claim for relief,
7. Admitted,
8, Admitted.
9, The allegations of this paragraph are conclusions of law to which no
response Is required. To the extent a response may be required, the allegations are
denied. It is denied that for the reasons set forth in paragraphs 2 through and Including 6
hereof of Defendant's Preliminary ObJections, incorporated by reference, Paragraph 17 of
Count II of Plaintiffs' Complaint is legally insufficient and thus should be dismissed. To the
contrary, for the reasons set forth in paragraphs 2 through and Including 6 of Plaintiffs
response, Paragraph 17 of Plaintiffs' Complaint is legally sufficient.
10, Admitted,
11. The allegations of this paragraph are conclusions of law to which no
response is required. To the extent a response may be required, the allegations are
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denied. It Is denied that for the reasons set forth in paragraphs 2 through and Including 6
hereof of Defendant's Preliminary Objections, Incorporated by reference, Paragraph 18 of
Count II of Plaintiffs' Complaint Is legally Insufficient and thus should be dismissed, To the
contrary, for the reasons set forth In paragraphs 2 through and Including 6 of Plaintiffs
response, Paragraph 18 of Plaintiffs' Complaint Is legally sufficient.
12. Admitted.
13. Admitted.
14. The allegations of this paragraph are conclusions of law to which no
response is required, To the extent a response may be required, the allegations are
denied. It is denied that for the reasons set forth In paragraphs 2 through and Including 7
hereof of Defendant's Preliminary Objections, incorporated by reference, Paragraph 19 of
Count II of Plaintiffs' Complaint is legally insufficient and thus should be dismissed, To the
contrary, for the reasons set forth in paragraphs 2 through and including 6 of Plaintiffs
response, Paragraph 19 of Plaintiffs' Complaint is legally sufficient.
15, The allegations of this paragraph are conclusions of law to which no
,
response is required, To the extent a response may be required, the allegations are
denied. It is denied that Deborah L. Graham has failed to set forth in individually numbered
paragraphs, or cumulatively in Count II of Plaintiffs' Complaint a legally sufficient pleading,
To the contrary, Count II incorporates by reference all preceding enumerated paragraphs
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to the Complaint and therefore sets forth a legally sufficient pleading for her derivative
claims.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny
Defendant's Preliminary Objection in the form of a demurrer as the Complaint sets forth
a legally sufficient basis for a claim for relief.
DATED: April 15, 1998
Respectfully submitted,
THE TARAS I LAW FIRM, P,C.
~ ~.
~ - 'e:-er..-L '~ av.?-drl--!fi
Louis M. Tarasi, Jr" Esquire
PA 1.0. #01042
510 Third Avenue
Pittsburgh, PA 15219
P: (412) 391-7135
F: (412) 471-2673
CERTIFICATE OF SERVICE
I, Louis M. Tarasl, Jr., Esquire, do hereby certify that the foregoing Response in
Opposition to Defendant's Preliminary Objections was served upon the following by U,S.
First Class Mall on this 15th day of April, 1998.
Mark S. Sliver, Esquire
JOSEPH A. KLEIN, P,C.
100 Chestnut Street, Suite 210
P.O, Box 1152
Harrisburg, PA 17108
THE TARASI LAW FIRM, P.C.
<-.-/, ~"
;jP--t-<.c L ~r afltt-1t-{ .~
Louis M. Tarasl, Jr., Esquire ? '
PA 1.0. #01042
510 Third Avenue
Pittsburgh, PA 15219
P: (412) 391-7135
F: (412) 471-2673
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DEBORAH L. GRAHAM, Individually
and as parent and natural
guardian, ot
EZEKIEL E. GRAHAM,
Plaintiffs,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
No. 96-606
PENNSYLVANIA TURNPIKE COMMISSION:
Defendant
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,
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PRBLIMINARY OBJBCTrONS OF
DEPENDANT PBNNSYLVANrA 'l't7RNPIItB COMllrSSrON
TO THB COMPLArNT OF DBBORAH L, GRAHAM
AND EZBltrBL B, GRAHAM
Defendant, Pennsylvania Turnpike Commission, by and
through its attorneys, Joseph A. Klein, P.C., hereby files the
following preliminary Objections to the Complaint of Plaintiffs
Deborah L. Graham and Ezekiel E. Graham (hereinafter "PlaintiffS"),
pursuant to Pa. R.C.P. 1028, as follows:
1. A true and correct copy of the Complaint of
Plaintiffs Deborah L. Graham and Ezekiel E. Graham is attached
hereto as Exhibit "A", incorporated herein by reference.
COUNT I
2,
The
Pennsylvania Turnpike
Commission
is
"Commonwealth Party" in accordance with 42 Pa. C.S.A, SB501, et
seg., and is afforded the defense of sovereign immunity (42 Pa.
C.S,A. S8521).
3, Plaintiffs' Complaint fails in both the preamble and
Count I thereof to aver any of the statutory exceptions to
. sovereign immunity.
1
a
4. Plaintiffs' Complaint fails in both the preamble and
Count I thereof to aver any act or failure to act by Defendant, a
Commonwealth Party, which could result in the imposition of
liability or any statutory exception to its sovereign immunity.
5. The fence as described in both the preamble and
Count I of Plaintiffs' Complaint does not constitute a dangerous
condition of Commonwealth Party real estate or real property and
does not fall within any of the other statutory exceptions to
sovereign immunity set forth in 42 Pa. C.S.A. ~8522.
6, pennsylvania Rule of Civil Procedure 1028 (a) (4)
provides as follows:
(a) preliminary Objections may be filed by any party to
any pleading and are limited to the following grounds:
, .. (4) legal insufficiency of a pleading (demurrer) ,..
WHEREFORE, Defendant pennsylvania Turnpike Commission
respectfully requests that this Honorable Court dismiss Count I of
Plaintiffs' Complaint due to the legal insufficiency thereof
(demurrer) .
COUNT :r:r
7. Count II of Plaintiffs' Complaint encompasses
Plaintiff Deborah L. Graham's derivative causes of action which are
dependent on the legal sufficiency of minor Plaintiff Ezekiel E.
Graham's cause of action set forth in Count I of the Complaint,
8. Plaintiff Deborah L. Graham avers in Paragraph 17 of
Count II of the Complaint that she "has had to pay for the medical
bills of Ezekiel E. Graham and has lost the services, assistance
and companionship that Ezekiel had provided."
2
, .
.
9, For the reasons previously set forth in paragraphs
2 through and including 6 hereof, incorporated herein by reference,
paragraph 17 of Count II of plaintiffs' Complaint is legally
insufficient and thus, should be dismissed,
10. Plaintiff Deborah L. Graham avers in paragraph 18 of
Count II of the Complaint that she "has provided extensive time and
effort providing Ezekiel E. Graham care and assistance."
11. For the reasonB previously set forth in paragraphs
2 through and including 6 hereof, incorporated herein by reference,
paragraph 18 of Count II of plaintiffs' Complaint is legally
insufficient and thus, should be dismissed.
12. Plaintiff Deborah L. Graham avers in paragraph 19 of
Count II of the Complaint that "when she discovered the injuries
she experienced, (sic.) shock, emotional distress, pain and
suffering and still suffers to this day."
13. Plaintiff Deborah L. Graham, as parent and natural
guardian of Plaintiff Ezekiel E. Graham has failed to plead in
Count II of the Complaint that she either witnessed or
contemporaneously observed the alleged incident or that she
suffered the shock of apprehending an injury to a loved one or that
she was so close in proximity to plaintiff Ezekiel E. Graham that
she herself was in fear of bodily harm; to the contrary, Plaintiff
Deborah L. Graham avers in Paragraph 19 of the Complaint that she
only "discovered the injuries" and then "experienced shock,
emotional distress, pain and suffering.. .".
3
14. Plaintiff Deborah L. Graham's claims for emotional
distress and pain and suffering are also derivative of the claims
of her child; for the reasons previously set forth in paragraphs 2
through and including 7 and Paragraph 13 hereof, incorporated
herein by reference, Paragraph 19 of Count II of Plaintiffs'
Complaint is legally insufficient and thus. should be dismissed,
15. Plaintiff Deborah L, Graham has failed to set forth
in any individually numbered paragraph, or cumulatively in Count II
of Plaintiffs' Complaint a legally sufficient pleading and thus,
the claims Plaintiff Deborah L. Graham has averred for the loss of
services, assistance and companionship that Ezekiel had provided,
for the averred extensive time and effort providing Ezekiel E.
Graham care and assistance, and for the averred shock, emotional
distress, pain and suffering are not legally sufficient and
Defendant's demurrer thereto (to Count II of Plaintiffs' Complaint)
should be sustained.
WHEREFORE, Defendant pennsylvania Turnpike conunission
respectfully requests that this Honorable Court dismiss Count II of
Plaintiffs' Complaint due to the legal insufficiency thereof
(demurrer) .
Date:
'1,t,."~
Respectfully submitted.
JOSEP~ ~. IfE,IN, P. C.
By:-w$~L~i1ver
Mark S. Silver, Esquire
ID No. 09825
Joseph A. Klein, Esquire
ID No. 07082
100 Chestnut Street, Suite 210
P.O. Box 1152
Harrisburg, PA 17108
4
CBRTr~rCATB O~ SBRVrCB
I hereby certify that a true and correct copy of the
foregoing Preliminary Objections of Defendant Pennsylvania Turnpike
Commission 'ro Plaintiffs' Complaint was served on counsel for
Plaintiffs on the 27th day of March, 1998, by United States mail,
first class, postage prepaid, addressed as follows:
Matthew A. Hartley, Esq.
The Tarasi Law Firm, P.C.
510 Third Avenue
P"to""",h, PA "''' ~W~
Mark S, Silver, Esquire
JOSEPH A. KLEIN, P,C.
100 Chestnut Street, Suite 210
P.O. Box 1152
Harrisburg, PA 1710S
Phone: (717) 233-0132
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IN THE COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DEBORAH L, GRAHAM, Individually'and
as parent and natural guardian of
EZEKIEL E. GRAHAM
615 Wayne Drive, Mechanicsburg,
PA 17055
Plaintiffs,
vs.
PENNSYLVANIA TURNPIKE COMMISSION
HARRISBURG EAST INTERCHANGE
HIGHSPIRE, PA. 17034
Defendants.
JURY TRIAL DEMANDED,
.
.
COURT OF COMMON PLEAS
No. 96-606 Civil Term
In Civil Action
COMPLAINT
Filed on Behalf of
Plaintiffs
Counsel of Record for
this Party
Matthew A. Hartley, Esq,
PA I,D. 1165-135
THE TARASI LAW FIRM, P,C,
Firm 11469
510 Third Avenue
Pittsburgh, PA 15219
(412) 391-7135
NOTICE .TO DEFEND
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,
oy entering a written appearance personally, or by attorney, and
filing in writing with the Court your defenses or objections to the
~laims 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 c,:mplaint or for any claim or relief requested
oy 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
Cumberland County Bar Association
2 Liberty Avenue
Carlisle. PA 17013
(717) 249-3166
IN THE COMMONWEALTH OF PENNSYLVANIA
COUNTY OF. CUMBERLAND
DEBORAH L, GRAHAM, Individually and
as parent and natural guardian of
EZEKIEL E. GRAHAM
615 Wayne Drive, Mechanicaburg,
PA 17055
COMMON PLEAS
No, 96-606 Civil Term
In Civil Action
Plaintiffs,
vs.
PENNSYLVANIA TURNPIKE COMMISSION
HARRISBURG EAST INTERCHANGE
HIGHSPIRE, PA, 17034
Defendants.
COMPLAINT
AND NOW, comes the Plaintiff, Deborah L. Graham, individually
and as parent and natural guardian of Ezekiel E. Graham, and by and
through their attorneys, Matthew A, Hartley, Esquire and the Tarasi
Law Firm, P,C. and files this Complaint.
1. The Plaintiff, Deborah L. Graham, resides at 615 Wayne
Drive, Mechanicsburg, PA
17055 and is the parent and natural
guardian of her minor son, Ezekiel E. Graham.
2. The Defendant is the Pennsylvania Turnpike Commission
whosemailingaddressisP.O.BOX67676Harrisburg.PA17106_7676.
PERTINENT FACTS
3. On or about 2/6/94, Ezekiel Graham, who was LlpprolCimately
2
7 years old at the time was sledding on the property his apartment
was located, 611-615 Wayne Drive,'Mechanicsburg Pennsylvania 17055,
(hereinafter referred to as Apartment propercy) ,
4, The Apartment property runs adjacent to the Pennsylvania
Turnpike and right-of-way of the Defendant's on which a fence sits
separating the Apartment property from the Turnpike.
5. On 2/6/94 Ezekiel Graham's foot got caught in a wide
opening in the Defendant's right-of-way fence while sled riding.
6. The wide opening in the fence caused Ezekiel Graham's
foot to be caught in the fence, causing Ezekiel's right foot, ankle
and leg to sustain severe damaged.
COUNT I
Deborah L, Graham, as parent and natural guardian
v,
Pennsylvania Turnpike Commission
Negligence Pursuant to 42 Pa,C,S,A, 58522(b)4
7. Paragraphs 1 through 6 are incorporated by reference, as
fully as if they were set forth at length herein.
8. The Defendant, owns, operates and maintains the subject
fence.
9. The Defendant knew or should have known that children
3
play and sled ride near the subject fence and that they children
could get their limbs caught in the fence c~uoing injury.
10, The Defendant knew or should have known that a child
could get hurt by the wide openings in it's fence.
11. The Defendant was negligent in designing, maintaining,
buying, building, installing and inspecting the subject fence in
that the openings in the fence were metal and the openings were too
large causing Ezekiel Graham's foot to get caught when he hit the
fence while sled riding.
12. When Ezekiel Graham's foot got c~ught in the fence he
sustained a severe foot injury, The injuries were caused by the
wide metal opening in the fence.
13. The foot injury has caused and will continue to cause
Ezekiel Graham great pain and suf fer, loss of income, loss of
enjoyment of life, deformity, shortening of the foot, and
embarrassment.
14. The injuries have created large medical bills.
WHEREFORE, the Plaintiff, Deborah L. Graham individually and
as parent and natural guardian of Ezekiel E. Graham demands damages
of the Defendant, Pennsylvania Turnpike Commission, in an amount in
4
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excess of the jurisdictional limitations, plus costs of suit and
interest.
COUNT II
Deborah L, Graham v, Pennsylvania Turnpike Commission
15, paragraphs 1 through 14 of the Complaint are incorporated
by :~fera..~~ ~s if fully set forth herein.
16. As a result of Eziekel Graham's injuries,
caused by the Defendant's negligence, Deborah L.
sustained injuries in her own right,
which were
Graham has
17. Deborah L. Graham has had to pay for the medical bills of
Ezekiel E, Graham and has lost the services, assistance and
companionship that Ezekiel had provided.
18. Deborah L. Graham has provided extensive time and effort
providing Ezekiel E. Graham care and assistance.
19. When Deborah L, Graham discovered the injuries she
experienced, shock, emotional distress, pain and suffering and
still suffers to this day.
WHEREFORE, the Plaintiff requests that this court provide her
damages in excess of the jurisdictional limit for the loss of
services, medical bills, assistance and companionship, medical
5
Respectfully submitted,
bills, shock, emotional distress, pain and suffering together with
costs and interest.
THE TARASI LAW FIRM, P,C,
.1111 L('lfquiro
PA I.D. 1165435
510 Third Avenue
Pittsburgh, PA 15219
(412) 391-7135
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V E R I FIe A T ION
I. Matthew A. Hartley, Boquire, hereby acknowledge that I am
the attorney for the Plaintiff in the foregoing action; I have read
the foregoing Complaint. and the facts stated therein are true and
correct to the best of my knowledge. information and belief.
I understand that any faloe statements herein are made subject
::0 penalties of 18 Pa. C.S, Section 4904, relating to unsworn
falsification and authorities.
Dated:
d-.-' ')....q g -
Bsquire
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
COMPLAINT was served on the Defendant on the
:lnd
day of
February, 1998, by United States Mail, First Class, Postage pre-
paid Certified Mail
Return Receipt Requested addressed as
:ollows:
Office of chief Counsel
Pennsylvania Turnpike Commission
P.O. Box 67676
~arrisburg, PA 17106-7676
By:
THE TARASI LAW FIRM, P.C.
i ~/ //#. //:/ /(
hew A, Hartley, squire
Attorney for Plaintiff
510 Third Avenue
Pittsburgh, PA 15219
(412) 391-7135
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FILE tk,,494 02/02 '98 15:3$
HOTIGE, .l'.Q~n:mm
You lmve h""",n flued in CO:I1:t:,
If you wish to def"'n~ aguic8~
t~IC ~,la~l11f' flat: :orth in r,'ne ~oll'.1w.:.ng page",. yoU mast tukll action
w:.t.hin tWt:lllty (7.0) dtlya f,tl.flr. ::his CrJtt.plilint and 1I0\:1c:e arc seI'ved,
by cnV!l:ir.~1 a wl"il.l.flr, appE:m.ulI'~'" pel'eonn11 y, or by i:l~.I.(l1'n"'y. al~d
tllln9 in writing wit.h r.lm coun. )'0'.:1: deLel:f.lel> or objeCei,Ol1f; r,() :::l'~
cl1:lilfofJ f1flt. for::h <'I<;1"lnflr. yo~1. Vnll al'e warned t.hat iC you :lIi1 t.o
no 60 \ he C:ilF.le mny proceed withe,'lie. you. mll:i " illdglTl'~Il~ lIIay 'rI1'!
"'nte!.~,d <<gilinet. you by the l'ou~l. wi \',hout tliJ"t,her no~i<"l' 1'0'- ;,ny
n:c>ney claillll?ri In r,he Comp:~I:.nr, "r for <:lilY c::'ailtt o~' L'elie:: roq\lf~'fJl.I?d
by the P1 ilintit:t, Yen may :'ose lnon!'<Y or prop!'<rt,y 0:::' o l. \:e l' rif.lhr.s
:.mp::ll.r.;nt. tCi y(.:l1.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU 00
NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE
ottICE SET FORTH BELOW TO FIND OUT WHERE yOU CAN GET LEGAL HELPI
Cumberland County Bar Association
2 Liberty Avonue
Carlisle. PA 17013
(717) 249-3166
FILE N':'.494 02/02 '93 15:3$ 1[l:THE TARAS I LAW FIRII
FA:{:4124712673
PAGE 4
IN THE COMMONWEALTH OF PENNSYLVANIA
COUNTY OF Cur,IBERIJAND
DEBORAH L, GRAHAM, Individually and
as parent and natural guardian of
EZEKIEL E. GRAHAM
615 Wayne Drive, t4echanic::eburg,
FA 17055
COMMON PLEAS
No, 96-606 civil Term
In Civil Accion
PIa inti Ha,
VB,
PENNSYLVANIA TURNPIKE COMMISSION
HARRISBURG EAST INTERCHANGE
HIGHSPIRE, FA, 17034
Defendants.
COMPLAINT
AND NOW, comes the Plaintiff, Deborah L, Graham, individually
and as parent and natural guardian of Ezekiel E. Graham, and by and
through their attorneys, Matthew A. Hartley, Esquire and the Taras1
Law Firm, P.C, and files this Complaint,
1. The Plaintiff, Deborah L. Graham, resides at 615 Wayne
Driver Mechanicsburg, PA 17055 and is the parent and natural
guardian of her minor son, Ezekiel E. Graham.
2, The Defendant iG the Pennsylvania Turnpike Commission
whosemailingaddressisP.O.I30X67676Ha].riRbul"g.PA17106-7676 ,
fEI\'fINENT Fl1C.TI;/
3. On or about 2/6/94, Ezekiel Gl'aham, who was approximately
:2
FILE N:.,494 02/02 '93 15:39 J[J:THE TARASI LAW FIRI1
FAX: 4124712673
PAGE 5
7 years old at the time was sledding on the propel:ty hia apartment.
was located, 611-615 Wayne Drive, Mechanicaburg Pennsylvania 17055,
(hereinafter referred to as Apartment property),
4, The Apartment propel:ty runs adjacent to the Pennsylvania
Turnpike and right-of-way of the Defendant's on which a fence sits
separating the Apartment property from the Turnpike,
5, On 2/6/94 Ezekiel Graham I s foot got caught in a wide
opening in the Defendant's right-of-way fence while sled riding,
6, The wide opening in the fence caused Ezekiel GL-aham I a
foot to be caught in the fence, causing Ezekiel'a right foot, ankle
and leg to sustain severe damaged,
COUNT I
Deborah L, Graham, as parent and natural guardian
v,
Pennsylvania Turnpike commission
Negligence Pursuant to 42 Pa,C,8,A, I0522(b)4
7, Paragraphs 1 through 6 are incorporated by reference, aa
fully as if they were Bat forth at length herein.
8. The Defendant, owns, operates and maintains the subject
fer.ce.
9, The Defendant knew or should have known that children
3
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FILE No.494 02?02 '9$ 15:39 ID:THE TARAS I LAW FIRtl
FAX:4124712673
PAGE 6
play and sled ride near the subject fence and that they children
could get their limbs caught in the fence causing injury,
10, The Defendant knew or should have known that a child
could get hurt by the wide openings in it'a ff.:nce,
11. The Defendant was negligent in designing, maintaining,
buying, building, installil1g and inspecting the subject fence in
that the openings in the fence were metal and the openings were too
large causing Ezekiel Graham's foot to get caught when he hit the
fence while sled riding.
12, When Ezekiel Graham's foot got caught in the fence he
sustained a severe foot injury. The injuries were caused by the
wide metal opening in the fence.
13, The foot injury has caused and will continue to cause
Ezekiel Graham great pain and suffer, loss of income, loss of
enjoyment of life. deformity, shortening of the foot, and
embarrassment.
14. The injuries have crear,ed laJ:ge medical bills,
WHEREFORE, the Plaintiff, Deborah L. Graham individually and
as parent and natural guardian of Ezekiel E, G~:aham demands damages
of the Def.endant. Pennsylvania Turnpike CO:lmlissioll, in an amount in
..
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FILE N,:,,494 02/02 '98 lS:40 ID:THE TARA',;I LAlJ FIRI1
Fi=lX:4124712673
PAGE 7
eXcesS of the jurisdictional limitations, plus costs of suit and
interest,
COUNT n
Deborah L, Graham v. Pennsylvania Turnpike Commission
15. Paragraphs 1 through 14 of the complaint are incorporated
by ref~rence as if fully lIet forth herein,
16. As a result of Eziekel Graham I s injuries, which were
caused Py the Defendant's negligence, Deborah L, Graham has
sustained injuries in her own right,
17, Deborah J.. Grahum has had to pay (0).' the medical bills of
Ezekiel E. Graham and has lost the services, assistance and
companionship that Ezekiel had provided,
16, Debor<'lh J., Graham has provided extrmeive ti,me and effort
providing Ezekiel E, Graham ealo'a and assistance,
19, When Deborah L. Graham discovered the injuries she
experienced, shock, emotional distreSS, pain and suffering and
still suffers to this day,
WHEREFORE I the Plaintiff lo'equests that. this COUlo't provide her
damages in excess of the jurisdictional limit for the loss of
services, medical bi 11 s. assi.stance and companionship. medical
5
"
- .
s:u:r.t.l':I.CATIl1 OF .lllffiYI..G.1li
1 h,"r.eby Cf!1."t ify t:ha~. a t~'Uf! and r~Oll',,<c;t <':';'P\' of thr,) !m:egL'lng
COMt'LAJNT war.' liElz.",o;.ci 0:1 tho Tlt'!tElwJ"nt r;n the __2nd _ dilY of
J'lebn\LII'Y, 1990, by Uni ::ed f1r,atl!/,I ~ail, F!1.'/)1: ClaLlf.I, rOM.age' pl:e.
paid Certifi~d Mail
R.;,t:urn Tlf!ceipl:. Rt\qllf!s::ecJ nddL'",aflod Cia
fc~:cws:
Offi(!e of Chief COUnsf!';'
pClln\'lylvaniil 'l'urnpike Com:niSfJ;Or.
P.O, !':loY. 67676
Hnrrlr:burg, p.A. 17106-7676
'I'HB TT-RI\Sl ~AW r'lR:<1, ?,<.:.
James J Kayer, Esq, for Matthew A, Hartley
:ly: .~",,~r /L;t ,.fu' ){..Jlh~~kdkJ
:Y.a .\ej; A~ .1<1. ~.l.~li'qu_r.," (
A or~7 for P.l.ilint1[r
!:> Thh.cJ lwe:nuo;.
P'1:tsburgh, ~A ]~Z19
(412) 39:'-7135
FILE No.494 02/02 '9$ 15:41 1[i:THE HlRf61 LAW FIRII
FAX: 4124712673
PAGE 8
bille, Bho~k, emotional distress, pain and suffering together with
costs and inte~eBt,
Respectfully submitted,
THE TARAS I ~AW FIRM, P,C,
James J, Kayer,
6
---*..--. --"
Y..1i_ R I po I C JL:r....I-CLN
I, !4l1ttl:ew A, Ha::Ll",y, RRq.:ir"', hereby acknow:.erlg,;, l,hat I 11m
r,hc ar,to1"l~"y for ::.ll", Pluill::.i.~f i.n LI;p, foregoing m:ttol1i I rli:lve rot'.;)
the fO::1,!9(.i.ng comp:a i l1t. and till': fac::.s stated r.herei~l al'p, Lnl';! MId
corJ"Poc:t LO the heat of my knowledge, i~lformut~on and bel;,e:.
r und>?)."atcllld r,!':i:l'~ any fll15c flta':~lll"'nttl herein al'e mado !lu\;je~'L
t.O p",naltiefl of 18 Pcl. C,S, scctio:: 490IJ, reluLi.ng LO Ul:eWQJ:11
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DEBORAH L, GRAHAM, Individually
and as parent and natural
guardian, of,
EZEKIEL E, GRAHAM,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v,
No, 96-606
PENNSYLVANIA TURNPIKE COMMISSION
Defendant
AND
~O~ORDER OF COURT
NOW, this ~ay of February,
19~9, it appearing that
counsel for plaintiffs and Defendant concur this case be removed
from the Argument Court List for March J, 1999 due to the
unavailability of counsel, it is hereby
.
ORDERED
that this case be and is hereby removed from the Argument Court
List for March J, 1999, and the parties are free to list the matter
for Argument at their convenience,
J,
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JOSEPH A, KLEIN, P.C,
ATTORNIlYS AT LAW
SUITB IllO, 100 CIIIlSTNUT STRIlIlT
POST OFFICI! DOR tllll!
IIARnlsaURo. PA 17108
JOSEPII A. KUIN
MARK S, SILVER
(717) 1!00'OIDI!
FAX: (717) 1!00'1!1I16
February 4, 1999
Richard J, Pierce, Court Administrator
Court Administrator's Office
Cumberland County Courthouse
One Courthouse square
Carlisle, PA 17013
RB: Deborah L. Graham, rndividua11y and as Parent
and Natural Guardian of Ezekiel E. Graham, Plaintiffs
v. Pennsylvania Turnpike commission, Defendant
No. 96-606, civil Action
Dear Mr, pierce:
On March 27, 1998 we filed on behalf of our client, Defendant
Pennsylvania Turnpike Commission, Preliminary Objections to
Plaintiffs' Complaint and effected service thereof upon Plaintiffs'
counsel,
On or about January 22, 1999 Plaintiffs' counsel, C, William
Kenny, mailed to the Prothonotary for purposes of filing a Praecipe
to list said Preliminary Objections for Argument at the next
Argument Court which will be March 3, 1999,
I am attached for jury trial in
scheduled to commence on or after
approximately 3 to 4 days,
As a result, I spoke by telephone with Mr, Kenny late Tuesday
(February 2, 1999) afternoon to advise of the foregoing and Mr,
Kenny has agreed to withdraw this case from Argument on March 3,
1999 and have the same relisted for Argument at the April, 1999
Argument Court scheduled for April 7, 1999, last day to list, March
18, 1999,
Dauphin County, such trial
March 1, 1999 and take
So that the docket entries will be complete, I have taken the
liberty to prepare and thus, enclose a proposed Order of Court to
remove this case from the March, 1999 Argument Court with leave to
the parties to relist the same, If possible, I would appreciate
your presenting this proposed Order for signature by the Court and
filing with the Prothonotary and would further request that you
provide a copy to me, once signed and time-stamped,
,. ..
Richard J, Pierce, Court Administrator
February 4, 1999
Page Two
I advised Mr, Kenny that I would be responsible to relist this
case for Argument during the April, 1999 Argument court, the date
which I understand to be April 7, 1999, with the last day to list
for such date being March lS, 1999,
Should you have any questions or require anything additional
from me in order to effect the foregoing, please do not hesitate to
contact me,
Thank you for your cooperation,
~\~~ ~~~lY yours,
M~\nver
.
MSS/klr/plerce.llr
Enclosure
cc: c, William Kenny, Esquire (w/enc,)
.'.'-..~.
FAl<:4124712673
PAGE 1
.,
, . '"
FILE No.386 04/08 '99 11:05 tOmE TARASI LAW FIRM
THE TARASI LAW FIRM, P.C.
510 THIRD AVENUE
PITTSBURGH, PA 15219
(412) 391.7135
(412) 471-2673 FAX
FAX TRANSMITTAL
TO: The Honorable George Hoffer
The Honorable Kevin Hess
The Honorable Edward Guido
OF: Cumberland County Courthouse
FAX #: 1-717-240-6462
FROM: Craig L. Fishman
DATE: April 8, 1999
#OF PAGES: 3
~
FILt: No.386 04/08 '99 11:05 ID:TfE TARASI LAW FIRM
FAX:4124712673
PAGE 2
OUI.... M '~IlA~1 ..lit
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1.:>""".It ,..... ^"",..r.#oC1 1\ "CIlI'''.' "ION""
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,L17^U~rH M 'IAI1^-'\1
~1~Al(,j L rl~IIM^N
':11ru~ TlUA K HIl~N'f"1\
~ WIl..LIAM KeNNY
THE TARAS I LAw FIRM, P,C.
AnORNLYU AND c.:OUNl\&~Ons ^T LAW
510 Thin' ^"'n.." . PIII.I.~I1', P"""ylv,"" I~' 192191 . ('"2)1'II,71J5 e ,",'x: ('\1J.I'I1I,267l
April 8, 1999
V.IA FACSIMILE & REGULAR MAIL
The Honorable George Hoffer
The Honorable Kevin Hess
The Honorable Edward Guido
Court of Common Pleas, Cumberland County
1 Courthouse Square
Carlisle, PA 17013
RE: Graham v, Pa Turnplko
Civil Action 96.606
Dear Judges:
As I promised during oTal argument yesterday, the following information Is
submitted as a supplement to Plaintiffs Brief In Opposition to Preliminary Objections in
the above-captioned matter:
The Turnpike Commission has no duty at common law, or by statute or
regulation, to erect fences along its right-of-way, The Mason & Dixon Lines Inc. v.
Mocmel. 166 Pa, Commw. 1,645 A,2d 1370 (1994), However, once a governmental
entity assumes a particular duty, it must discharge that duty with reasonable care,
Earber v, Enale, 106 Pa. Commw, 173, 525 A.2d 864, 867 (1987), citing, Knudsen v
~mmre Co Reolonsl Water Control Aulh .84 Pa, Commw, 36,478 A,2d 533 (1984),
This conclusion is derived from lhe principle of tort law that once one undertakes a
particular duly, It must be performed in a non-negligent manner,
In Moanet, the Commonwealth Court held that the Turnpike Commission could
not be liable for Injuries sustained as a result of a cow which wandered onto the
turnpike through a hole in the fence on the right-of-way, as the cow, and not the hole
caused an accident. Howeller, in the case sub judice, Plaintiffs allege Ihat the holes in
the metal fence were too large, and that the fence Ilself caused the mmor's injuries.
Accordingly, the allegations pleaded in the Complaint satisfy the requirements of
Moanel,
''f FILE No,38S 04/08 '99 11:05
ID:THE TARAS I LAW FIRM
FAX:4124712673
PAGE 3
Judge Hoffer
Judge Hess
Judge Guido
April 8, 1999
Page 2
The Complaint also pleads that the Defendant knew or had reason to know thai
children used the accident site for sled riding, Even If we assume, arguendo, that the
original design of the fence was not negligent, "0 change In circumstances can sllpport
a finding of negligence when the governmental entity fails to make necessary
Improvements to protect the Innocent wayfarer from foreseeable harm," Wyke ':/. Ward,
81 Pa, Commw. 394,474 A,2d 375 (1984), The Complaint pleads a valid calise of
action under the real estate exception to sovereign immunity, and the Defendant's
Preliminary Objections as to COllntl mllst be overruled,
cc:
ML,rk Silver, IJsquirc
Viu Pucsilllilc & II,S, Muil
LOUIS M rAIl~ I. JIl.
ClHllflUJ CIVIL Tnll AUVOCA"': UT 'UL U""'ONAl.
DOAHD or Tn'AL Al..... CAe"" A rLHNSlLVo\NIA
SUPltEML COI Hf Ap '....oVLP ~t"'C'
THE TARAS I LAw FIRM, P,C.
ATTORNE:YS ANO COUNSELORS AT LAW
510 Ttllrd Ave"ue . Pittsburgh, Pen"'ylval1la 15219.2191 . (412)391,7135 . Fax: (412~171.2673
ELIZABETH M. TARASI
CRAIG L FISHMAN
CHRISTINA K HURNYAK
c. WILLIAM KENNY
April 8, 1999
VIA FACSIMILE & REGULAR MAIL
The Honorable George Hoffer
The Honorable Kevin Hess
The Honorable Edward Guido
Court of Common Pleas, Cumberland County
1 Courthouse Square
Carlisle, PA 17013
RE: Graham v, Pa Turnpike
Civil Action 96-606
Dear Judges:
As I promised during oral argument yesterday, the following information is
submitted as a suppiementto Plaintiffs Brief in Opposition to Preliminary Objections in
the above-captioned matter:
The Turnpike Commission has no duty at common law, or by statute or
regulation, to erect fences along its right-of-way, The Mason & Dixon Lines. Inc. v,
Mognet, 166 Pa. Commw. 1,645 A.2d 1370 (1994), However, once a governmental
entity assumes a particular duty, it must discharge that duty with reasonable care,
Farber v, Engle, 106 Pa. Commw. 173,525 A.2d 864, 867 (1987), citing, Knudsen v,
Delaware CO, Regional Water Control Auth" 84 Pa, Commw. 36,478 A.2d 533 (1984),
This conclusion is derived from the prinCiple of tort law that once one undertakes a
particular duty, it must be performed in a non-negligent manner,
In Mognet, the Commonwealth Court held that the Turnpike Commission could
not be liable for injuries sustained as a result of a cow which wandered onto the
turnpike through a hole in the fence on the right-of-way, as the cow, and not the hole
caused an accident. However, in the case sub judice, Plaintiffs aUege that the holes in
the metal fence were too large, and that the fence itself caused the minor's injuries,
Accordingly, the allegations pleaded in the Complaint satisfy the requirements of
Magnet.
'-..
Judge Hoffer
Judge Hess
Judge Guido
April 8, 1999
Page 2
The Complaint also pleads that the Defendant knew or had reason to know that
children used the accident site for sled riding, Even if we assume, arguendo, that the
original design of the fence was not negligent, "a change in circumstances can support
a finding of negligence when the governmental entity fails to make necessary
improvements to protect the innocent wayfarer from foreseeable harm." Wyke v, Ward,
81 Pa. Commw, 394, 474 A.2d 375 (1984), The Complaint pleads a valid cause of
action under the real estate exception to sovereign immunity, and the Defendant's
Preliminary Objections as to Count I must be overruled,
ee:
Mark Silver, Esquire
Via Facsimile & U.S. Mail
.
'/
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
No.: 606 Civil Action 1996
Please list the within matter for the next Argument Court,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
DEBORAH L, GRAHAM, Individually,
and as parent and natural guardian of
EZEKIEL E, GRAHAM,
Plaintiffs,
v.
PENNSYLVANIA TURNPIKE COMMISSION,
Defendant.
1, State the matter to be argued: Defendant's Preliminary Objections
2. Identify Counsel who will argue the case:
a) For Plaintiff:
C. William Kenny, Esquire
The Tarasl Law Firm, P,C,
510 Third Avenue
Pittsburgh, PA 15219-2191
(412) 391-7135
b,) For Defendant:
Mark S, Sliver, Esquire
Joseph A. Kilen, P,C.
Suite 210, 100 Chestnut Street
P,O, Box 1152
Harrisburg, PA 17108
(717) 233-2516
3. I, C. William Kenny, Esquire, will notify all parties in writing within
two days that this case has been listed for argument.
4.
Argument Court Date:
March 3, 1999
Dated: January 27, 1999
C. IttL ( <
Attorney for the Plaintiff t5
"
t
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing PRAECIPE FOR
ARGUMENT was served on counsel for the Defendant on this 27th day of January,
1999, by United States Mall, First Class, Postage Prepaid addressed as follows:
Mark S, Sliver, Esquire
Joseph A Klein, Esquire
100 Chestnut Street
Suite 210
Harrisburg, PA 17108
THE TARASI LAW FIRM, P.C.
BY:O.~ ~
C. William Kenny, Esqui
Louis M. Tarasi, Jr" Esquire
Attorney for Plaintiff
510 Third Avenue
Pittsburgh, PA 15219
(412) 391-7135
: .
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CERTIFICATE OF SERVICE
I, Mark S, Silver, Esquire, of Joseph A, Klein, p,c" hereby
certify that a true and correct copy of the foregoing praecipe For
Argument was served on counsel for Plaintiffs this 18th day of
March, 1999, by depositing the same into the United States mail,
postage prepaid, First Class, at Harrisburg, Pennsylvania,
addressed as follows:
C, William Kenny, Esquire
The Tarasi Law Firm, p,C,
510 Third Avenue
pittsburgh, PA 15219-2191
Dated: March 18, 1999
::~E7~ 1 jL~,IN' p, c,
--ilar~S':~lver, Esquire
100 Chestnut street, suite 210
P,O, Box 1152
Harrisburg, PA 17108
(717) 233-0132
Attorneys for Defendant
.~ '. ..... ~
DOUGLAS, DOUGLAS & DOUGLAS
27 W, HIGH ST,
POB 261
CARLISLE PA 17013
TELEPHONE 717-243-1790
x
WILLIAM p, DOUGLAS, BSQ,
Supn:mo Court 1,0,1 37926
GEORGE P. DOUGLAS, m. BSQ,
Supn:mo Court 1.0,1 61886
DEBORAH L, GRAHAM, Individually
and as parent and natural guardian
of EZEKIEL E, GRAHAM,
IN THE COURT OF COMMON PlEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
PLAINTIFF
615 Wayne Drive
Mechanicsburg, ~ 17055
199(; - L~OL" CIVIL TERM
PENNSYLVANIA TURNPIKE COMMISSION,
Harrisburg East Interchange
Highspire, Pa, 17034
CIVIL ACTION LAW
DEFENDANT
To: Lawrence E. Welker, Prothonotary
fM.ECIPE
Please issue a writ of summons in a civil action against the
within-named defendant, Pennsylvania Turnpike Commission,
DOUGLAS. DOUGLAB & DOUGLAS
, i
/. .
Date:
February 2, 1996
. .
by"
Attorney for
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Commonwealth of Pennsylvania
County of Cumberland
Deborah L, Grahan, Individually and
as parent and natural guardian of
Ezekiel E, Graham
615 Wayne Drive, Mechanicsburg, PA
17055
Court of Conunoll Pleas
No, _~tQ.,:60R__CJ..'I!l.L:t~t1lI______________ >P.t____
Vs,
Pennsylvania Turnpike Commission
Harrisburg East Interchange
Highspire, PA 17034
In ____~!y_~~_~st~!9~__~______________________
To ~~!l.!l~~~!!!~!!;I__~p"~~~_~~_j,,~~!9_IL____
You arr herrby notified that
,_______~~}:~_~~__~~J__~~~~~~_~!y_l!~_~~~~!~J__~:_~~~_________________________
the Plain tills have commenced an action in _..cjy.il..Ac.l:.icn_Law___________________________________
against you which you are required 10 defend or a default judgment may be entered againll you,
(SEAL)
Lawrence E, Welker
.------------------p~th~~~t;;y------------------
Date ___~~p_I1!~!Y.._~@_____________ 19i1,L
By ___~...j,)Q....:~l~.l~_~~:\~_s._
Deputy
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CASE rIG: l~l'X,' ()('lE0G F
COMMONWEALTH OF PENNSYLVANIA,
COUNTY OF CUMBERLAND
{ii!T '.if-" (-dJHT'i
GIlI;JIl\ M___r, EJJ.OJ!A!:LI,,_;;LAb....,
V5.
E'ENNg;.Y.I"VAllIA TURtlPIKU:.9M11-___
R, Thomas I\l1ne
, Shpr iff. who beinq duly swor-n according
to l(]w, says, that he made al dillqent G(~;)n::h >Jnd inquiTY for t.he \tith.ln
named d'_'f':ndan t. to "i t: ...ATTOBliEY-9EllER.A1...J:m:________...____...._________.______....
but "as unable to locat.: ____..Ih?..!:!.___ 1n his ball,,,,ck. He ther.:-fon?
deput 1 "E'd th.:- shE'r i ff of ____DAlIPH ItL....._._,_..__.___.._.. Count y. Pennsylvania.
to serVE' th", ",Ulln ..\'!.R1I.,P.E-O>;:lJl'lMOfi;;....______._____
On .J:~QJ:.y.j!!:Y___4J.tttt.>__t~~!i.____~_'_~___m____. this oificC' was l.n receipt of
thl"} attacl1l'?d r~turn from ___J~Au.Pli.Ir:L_________~_____.,_."'_ Count.y, PL'nnsylvanla.
Sheriff's Costs:
s(. anSWt.'f;.::
PocketinQ
Out. of County
SurchargE'
E..~0)
.00
2.0C\
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-<;;~r:-;zi(1i PfJUGLf,c: t'OUGL,\S I:. DOUGLAS
(.ti.J~" 02/'2t~,/l~j9E.
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Sworrl arid subscribed to h~fore m~
..hiB ...,.:tl'~_. da)' of 1<b,H-Nl'-'''--'''--
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SHEi':IFF'f.> HCTr~!~~~j
f~~~I'~' 1.11.' l=r~~UHTY
CASE Nel: 199G-00GOG F
COMMONWEALTH OF PENNSYLVANIA:
CQUNTY OF CUMBERLAND
GB.MIA_rl_\,-E;,BQ!).ML_l,_...J.:J'_._AL___
vs.
E.E N N 5..Y Lj;,.uUA__:LL!B)/ P LltE__@J:!1'L._.
II.'-...Jl1gm"Ji. _I:LUD".:...._____....
.._' Shl?rlff, wtl'J
belnq duly sworn according
to law, say[,;', that h(~ milde a dlliDc1nt search and lOqU.lI'Y Lor th(} within
named defendant, to ""t: _tJ:;illI5Yl,.Yl!liLiL_n'.RlIPIJ)j.:____.___________
__.,__ _ . .__________,_________.. _...hQJ:!.tl.I.~$.L2t!____._ _____ ..__..______
but "'as unable to locilte ______._ Th~_.._ 1n h1S biuli'Hck.
He therefore
deput1;,:ed thE' shE'riff of __.__....J2AIJPH.IIL____.________..___._ County, Pennsylvilnl<l.
to z"rVE? th~' ",thin WRiLQ_L SUJ:!llQJL~__,....._____________.___._____.______.
On _F(;,"1-~__LY..ary___~.~J:h_',,_.J_~,~~.~____.~__. lhi::; ofilC+:' W~.s in receipt of
the .JttachE'd return fftlm _ ._____r~A_U.E.!!1!L..._.__..______.___ (';1\Jnl. y, P'?nnaylvania.
Sheriff'o Costs:
SlJ 3.n;:;w.~:'1':;:
Dockf.'tino
Out ,)f County
Surchilroe
DAUPHIN-COUNTY
18, O\~
'.1.00
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40. 2~1
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~'6g:H'2::; fJClUGLAS DfJUGLA~) F.. DDUGLAS
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Deborah L, Graham, Individually and as Parent & Natural Guardian of Ezekiel E,
Graham 'IS,
Pennsylvania Turnpik~.commission
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96- 606 _Civ i1 Term
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DEBORAH L. GRAHAM,
Individually and as parent and
natural guardian of EZEKIEL E,
GRAHAM,
Plaintiffs
vs.
PENNSYLVANIA TURNPIKE
COMMISSION,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
96-0606 CIVIL
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
BEFORE HOFFER. P.1.. HESS AND GUIDO. 11,
AND NOW, this
ORDER
~!'~ day of May, 1999, the preliminary objections of the
defendant in the fonn of a demurrer are DENIED.
C, William Kenny, Esquire
For the Plaintiff
Mark S. Silver, Esquire
For the Defendant
:rlm
BY THE COURT,
-?'I!.: . //#
Keyhi A. Hess, J.
/
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~w /T' ....a. 1':
..
DEBORAH L. GRAHAM,
Individually and lIS parent and
natuml guardian of EZEKIEL E.
GRAHAM,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
96-0606 CIVIL
PENNSYLVANIA TURNPIKE
COMMISSION,
Defendant
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
BEFORE HOFFER. P.J.. HESS AND GUIDO. J1.
OPINION AND ORDER
This cllSe is before us on the defendant's preliminll1'Y objections in the fonn ofa demurrer
to the plaintifrs complaint. For the following rellSons, the defendant's preliminll1'Y objections
will be denied.
Deborah L, Gmhwn hllS brought suit on the behalf her minor son, Ezekiel E, Gmhwn,
against the defendant, the Pennsylvania Turnpike Commission. alleging that the defendant is
liable for injuries sustained by Ezekiel during a sled-riding accidcnt. According to the complaint,
on Februll1'Y 6, 1994, seven-year-old Ezckiel WllS sled-riding near Ihe apartment where he and his
mother resided. The apartment pToperty is adjacent to the Pennsylvania Turnpike right-of-way.
A fence separates Ihe apartment property where the plaintiff and his mother lived and the
property owned and maintained by the Turnpike Commission, Ezekicl's foot became caught in
this fence while he was sled-riding. As a result, he suffcred a severe foot injury, which the
plaintiffs claim caused and will cause Ezekiel "great pain and suffer [sic]. loss of income, loss of
.'
96-0606 CIVIL
enjoyment of life, deformity, shortening of the foot, and embarrassment." Plaintitrs complaint,
pam. 13.
The plaintiff and his mother aver that Ezekiel's injuries were caused by "openings in the
fence [that] were metal and... were too large". M. at para. II. The plaintiff's complaint also
avers that the "Defendant was negligent in designing, maintaining, buying, building, installing
and inspeeting" the fence. M. These paragraphs are captioned under the heading "Negligence
Pursuant to 42 Pa.C.S,A. Section 8522(b)4," The fence that the plaintiff refers to in the
complaint is apparently a "mesh" fence. ~ Plaintiff's Response in Opposition to Preliminary
Objections at para. 5. However, we are unable to determine whether the plaintiff's complaint
refers to holes that occur as part of the design of mesh fencing or whether the holes were present
because the fence was in disrepair.
42 Pa,C.S.A. Section 8521 provides a general grant of sovereign immunity to the
Commonwealth. Section 8522 lists severol exceptions to (his grant of sovereign immunity. The
plaintiffs have brought suit against the defendant to recover damages for the injuries sustained by
Ezekiel under the theory that the defendant is not immune from suit under Section 8522 (b)(4),
which provides:
(b)Acts which may impose Iiability.--The following acls by a
Commonweallh party may result in the imposition ofliability on
the Commonwealth and the defense of sovereign immunity shall
not be raised to claims for damages caused by:
(4) Commonwealth real estale, highways and sidewalks,-- A
dangerous condition of Commonwealth agency real eslate and
sidewalks, including Commonwealth-owned real property,
leaseholds in the possession of a Commonwealth agency and
2
0(
96-0606 CIVIL
Commonwealth-owned real property leased by private persons, and
highways under the jurisdiction of a Commonwealth ageney,
except conditions described in paragraph (5),
42 Pa,C.S. Section 8522(b)(4),
Section 8522(b)(4) requires that there be a "dangerous condition of' Commonwealth
owned real estate before sovereign immunity is waived, "These key words indicate thaI 0
dangerous condition must derive, originate from or have as its source the Commonweollh reulty,"
Snyder v. Hannon, 522 Po. 424, 433, 562 A,2d 307, 311 (1989), Additionally, the property
owned by the Commonwealth must be safe for its intended use as well os those uses tllllt are
rell:lonably foreseeable. Sl:l: ~ at 434, 562 A.2d at 312,
Two requirements must be satisfied before sovereign immunity is woived under Section
8522 and an injured person can recover damoges, Firsl, there must be un artificial condition or
defect of the land which creates a dangerous condition, Secondly, Ihe property must be unsufe
for the purposes it is used or reasonably foreseen 10 be used, Sl:l: W, 1lI 434-35, 562 A,2d ut 312,
The defendanl has filed preliminary objections to the pluintill's cllmpluinl pursuanttll
Pa.R.C.P, 1028(0)(4), "The question presented by lhe demurrer is whether, on the lacts uvcrred,
the law says with certainty thut no recovery is possible '.. A demurrer should nllt he sustained if
there is any doubt as 10 whelher the complainl adequately states u claim filr relief under uny
theory." Sevin v, Kelshaw, 417 Po. Super. 1,7,611 A,2d 1232, 1235 (1992), (citulillns omilled)
We do nol believe that there are suflicient fucts avuiluble for us tll determine whether the
fence was or was not "inherently dangerous"under Seclion 8522(b)(4), The pluintill's compluint
alleges that, under Seclion 8522(b)(4), there was a dangerous condition ofu fence thut wns
3
~
,.
96-0606 CIVIL
affixed to Commonwealth owned real property, and that this dangerous condition caused
Ezekiel's injuries. Specifically, the pJaintiffclaims that the holes in the fence were too large.
Also, the plaintiff claims that the defendant knew or should have known that children sled.ride in
the vicinity of the fence and could be injured by the allegedly dangerous condition. Based on
these allegations, we cannot say with certainly that no recovery is possible.
ORDER
AND NOW, this
2. 5"' day of May, 1999, the preliminary objections of the
defendant in the fonn of a demurrer are DENIED,
BY THE COURT,
C. William Kenny, Esquire
For the Plaintiff
~&~1. 4"
/.
Mark S. Silver, Esquire
For the Defendant
:rlm
4
, . 0
('~f
DEBORAH L, GRAHAM, Individually :
and as parent and natural
guardian of
EZEKIEL E, GRAHAM,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v,
,
,
,
,
No, 96-606
PENNSYLVANIA TURNPIKE COMMISSION:
Defendant JURY TRIAL DEMANDED
NOTICE TO PLEAD
You are hereby notified to file a written response to the
enclosed New Matter within twenty (20) days from service hereof or
a judgment may be entered against you,
DEFENDANT'S ANSWER WITH NBW MATTBR
TO PLAINTIFFS' COMPLAINT
AND NOW, comes Defendant, Pennsylvania Turnpike commission, by
its attorneys Joseph A, Klein, p,C" and files the within Answer
with New Matter to Plaintiffs' Complaint,
ANSWER
1, After reasonable investigation the Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment; the averment is therefore denied and strict
proof thereof is demanded at trial,
2 , Admi tted.
3, After reasonable investigation the Defendant is without
knowledge or information sufficient to form a belief as to the
truth of this averment; the averment is therefore denied and strict
proof thereof is demanded at trial,
4, Admitted in part; Donied in part, It is admitted lithe
1
Apartment Property" is adjacent to property owned by Defendant, As
to the remaining averments, after reasonable investigation the
Defendant is without knowledge or information sufficient to form a
belief as to the truth of these averments; the averments are
therefore denied and strict proof thereof is demanded at trial,
5, No act or failure to act by Defendant caused or
contributed to the happening of the incident giving rise to the
instant lawsuit, The balance of the averments of this Paragraph of
Plaintiffs' Complaint are denied as after reasonable investigation
the Defendant is without knowledge or information sufficient to
form a belief as to the truth of said averments and strict proof
thereof is demanded at trial,
6, Denied, No act or failure to act by Defendant caused or
contributed to the happening of the incident giving rise to the
instant lawsuit, The balance of the averments of this Paragraph of
Plaintiffs' Complaint are denied as after reasonable investigation
the Defendant is without knowledge or information sufficient to
form a belief as to the truth of said averments and strict proof
thereof is demanded at trial,
COUNT r
DEBORAH L. GRAHAM AS PARENT AND NATURAL GUARDIAN
v,
PENNSYLVANIA TURNPrKE COMMISSION
Nealiaence Pursuant to 42 Pa, C,S,A, ~8522(b) (4)
7, All previous Paragraphs, 1 through and including 6, of
Defendant's Answer to Plaintiffs' Complaint are incorporated herein
by reference as though fully set out,
2
8, Admitted in part; Denied in part, It is admitted
Defendant owns and maintains a right-of-way fence which is situate
on its property, It is denied Defendant "operates" such right of
way fence as it has no working parts which are in need of
operation; its existence and function are static, By way of
further Answer, if this Paragraph of Plaintiffs' Complaint which
refers to "", the subject fence" seeks to make reference to
Defendant's right of way fence, it is admitted Defendant owns and
maintains the same; it is denied Defendant "operates" any such
fence, Further, in the event this Paragraph of Plaintiffs'
Complaint makes reference to a fence other than Defendant's right-
of-way fence in its reference to "", the subject fence", such
averment is denied as after reasonable investigation the Defendant
is without knowledge or information sufficient to form a belief as
to the truth of said averment and strict proof thereof is demanded
at trial,
9, Denied, No act or failure to act by Defendant caused or
contributed to the happening of the incident giving rise to the
instant lawsuit, The balance of the averments of this Paragraph of
Plaintiffs' Complaint are denied as after reasonable investigation
the Defendant is without knowledge or information sufficient to
form a belief as to the truth of said averments and strict proof
thereof is demanded at trial,
10, Denied. No act or failure to act by Defendant caused or
contributed to the happening of the incident giving rise to the
instant lawsuit, The balance of the averments of this Paragraph of
3
Plaintiffs' Complaint are denied as after reasonable investigation
the Defendant is without knowledge or information sufficient to
form a belief as to the truth of said averments and strict proof
thereof is demanded at trial,
11, Denied, Defendant was not negligent in designing,
maintaining, buying, building, installing and inspecting the
subject fence, Further, it is denied that the openings in the
fence were too large and it is further denied that the size of said
openings caused Plaintiff Ezekiel Graham's foot to get caught when
he hit the fence while sled riding, To the contrary, the Defendant
maintained its property in a reasonable and safe manner, By way of
further Answer, the averments of this Paragraph 11 of Plaintiffs'
Complaint contain and are predicated on conclusions of law to which
no Answer is required,
12, Denied, No act or failure to act by Defendant caused or
contributed to the happening of the incident giving rise to the
instant lawsuit, The balance of the averments of this Paragraph of
Plaintiffs' Complaint are denied as after reasonable investigation
the Defendant is without knowledge or information sufficient to
form a belief as to the truth of said averments and strict proof
thereof is demanded at trial,
13, Denied, After reasonable investigation the Defendant is
without knowledge or information sufficient to form a belief as to
the truth of this averment; the averment is therefore denied and
strict proof thereof is demanded at trial,
14, Denied, After reasonable investigation the Defendant is
4
o
without knowledge or information sufficient to form a belief as to
the truth of this averment; the averment is therefore denied and
strict proof thereof is demanded at trial,
WHEREFORE, Defendant demands judgment in its favor and against
Plaintiffs on all claims made by Plaintiffs in the foregoing
Paragraphs of Plaintiffs' complaint,
COUNT n
DEBORAH L, GRAHAM v, PENNSYLVANrA TURNPrXE COMMrSSrON
15, All previous Paragraphs, 1 through and including 14, of
Defendant's Answer to Plaintiffs' complaint are incorporated herein
by reference as though fully set out,
16, Denied, No act or failure to act by Defendant caused or
contributed to the happening of the incident giving rise to the
instant lawsuit,
By way of further Answer, the averments of
Paragraph 16 of Plaintiffs' Complaint contain and are based on
conclusions of law to which no Answer is required, The balance of
the averments of this Paragraph of Plaintiffs' complaint are denied
as after reasonable investigation the Defendant is without
knowledge or information sufficient to form a belief as to the
truth of said averments and strict proof thereof is demanded at
trial.
17, Denied, After reasonable investigation the Defendant is
without knowledge or information sufficient to form a belief as to
the truth of this averment; the averment is therefore denied and
strict proof thereof is demanded at trial,
5
lS, Denied, After reasonable investigation the Defendant is
without knowledge or information sufficient to form a belief as to
the truth of this averment; the averment is therefore denied and
strict proof thereof is demanded at trial,
19, Denied, See attached Exhibit "A" incorporated herein by
reference, comprised of the last page of the Argument section of
Plaintiffs' "Brief in Support of Response In Opposition to
Preliminary objections" in which Plaintiffs "", concede that
Plaintiff Deborah Graham's claim for emotional distress must fail
because she failed to contemporaneously observe the injury to her
minor son, Sinn v, Burd, 46 Pa, 146, 404 A,2d 672 (1979),"
As a result of the aforesaid concession and resulting
withdrawal of said claim on behalf of and by Plaintiff Deborah L,
Graham, no further Answer by Defendant is deemed necessary, If a
response to this averment be required, then, Defendant denies the
averments of this Paragraph of Plaintiffs' Complaint as no act or
failure to act by uefendant caused or contributed to the happening
of the incident giving rise to the instant lawsuit and further,
Plaintiff Deborah L, Graham failed to contemporaneously observe the
injury to her minor son Plaintiff Ezekiel E, Graham and is thus
ineligible to maintain such claim for emotional distress,
WHEREFORE, Defendant demands judgment in its favor and against
Plaintiffs on all claims made by Plaintiffs in the foregoing
Paragraphs of Plaintiffs' Complaint,
6
NEW MATTBR
20, Plaintiffs' Complaint fails or may fail to state a claim
or cause of action against Defendant upon which relief may be
granted,
21, Any amount which Plaintiffs might be entitled to recover
against Defendant must be reduced by those damages attributable to
the negligence of either or both Plaintiffs,
22, Plaintiffs are barred from recovery as Plaintiff Ezekiel
E, Graham assumed any and all risks attendant to the activity of
sled riding when he participated in such activity on the date set
forth in Plaintiffs' Complaint,
23, Plaintiffs are barred from recovery as Plaintiff Deborah
L, Graham, as the mother and natural guardian of Ezekiel E, Graham,
assumed any and all risks attendant to the activity of sled riding
when she permitted her son Plaintiff Ezekiel E, Graham to
participate in such activity on the date set forth in Plaintiffs'
Complaint,
24, Plaintiff Deborah L, Graham failed to adequately
supervise the sled riding activities of her minor son, Plaintiff
Ezekiel E, Graham, on the date set forth in Plaintiffs' Complaint
and is thus barred from recovery under the doctrines of comparative
negligence and contributory negligence,
25, Defendant, The Pennsylvania Turnpike Commission, is a
"Commonwealth Party" in accordance with 42 Pa, C,S,A, 58501, et
seq" is afforded the defense of sovereign immunity pursuant to 42
Pa, C,S,A, S8521, and is thus immune from the instant lawsuit,
7
26, Plaintiffs' Complaint fails or may fail to state a claim
or cause of action against Defendant upon which relief may be
granted as Plaintiffs aver no facts in their Complaint, nor are any
extant, which result in a waiver of the statutory defense of
sovereign immunity as the same is available to the Defendant in
that Plaintiffs are unable to and have not stated facts which
designate any dangerous condition of Commonwealth Agency real
estate which derives, originates from, or has as its source the
Commonwealth realty, nor have Plaintiffs plead nor are there
available facts for them to plead that the property owned by the
Commonwealth Agency is not safe for its intended use or for those
uses that are reasonably foreseeable, as Plaintiffs have not plead
nor are there facts available for them to plead upon which they can
plead that any activity in which Plaintiffs were involved were
known to or reasonably known to Defendant, and thus, all of
Plaintiffs' claims are barred by the Doctrine of Sovereign Immunity
as Plaintiffs have not plead nor are there facts which they could
plead which bring the instant lawsuit as plead in Plaintiffs'
Complaint under or within the exception to sovereign immunity set
forth at 42 Pa, C,S,A, S8522(b) (4),
JOSEP~l~' :L~IN, P,C,
By: ~
Mark S, S1lver, Esquire
I.D, No, 09825
100 Chestnut Street, Suite 210
P,O, Box 1152
Harrisburg, PA 17108
(717) 233-0132
Attorney for Defendant
Pennsylvania Turnpike Commission
Date: June 7, 1999
8
"
derivative In naturo to the first count, As tho first count can ~e sustained, Defendant's
argument Is moot,
Finally, Plalntills concede that Plaintiff Deborah Graham's clolm for emotional
distress must fall because she failed to contomporanoously obsorvo the Injury to her
minor son, Sinn v, Surd, 486 Pa, 146,404 A,2d 672 (1979).
Ill. Conclusion
WHEREFORE, Plointiffs respectfully Tequestthat Defendant's Preliminary
Objoclions be denied, and Plflinliff Oeboran Graham's claim for emotional distress Is
-. -..
hereby withdrawn,
Respectfully submittod,
THE 'rARASI LAW FIRM, P,C,
C, ~L (.-____
C, William Kenny, Esquiro D
PA 1.0, # 82225
Counsel for Plaintiff OIHnk, Inc,
510 Third Avenuo
Pillsburgh, PA 15219.2191
P: (412) 391.7135
F: (412) 471-2673
EXHIBIT
I
"A"
08/04/" FRI 18:18 FAX TIT 133 1818
J A KLEIN PC
li1Iool
VBRJ~JCATION
ThB undersigned, Mark II. ((oc:h, Assistant Counsel, Pennsylvania
TurnpikB COl1llllissioll, being dul:f authorized hereby verifies and
.tate. that:
1. lie i. an agenL tor Lha n"mell DeCendant herein;
2. Tho tacts Dot forth in the foregoing DEFENDANT'S ANSWER
WITJI NEW MATTER TO PLAINTIFFS' COMPLAINT are true and correct to
the best of hi. knowledge, information llnd belief; and
3. He is aware that false gtatements herein are made subject
to the penalties of 18 Pa.C.S. section 4904, relating to unsworn
falsification to authorities.
Ai/P
Mllrk H. ((och, Assistant Counsel
Pnnnsylvania Turnpike commission
Date: June 7, 1999
'.'~'. \ --'.-"'-.
CBRTIFICATB OF SBRVICE
I hereby certify that a true and correct copy of the foregoing
Defendant's Answer with New Matter to Plaintiffs' Complaint was
served on counsel for Plaintiffs on the 7th day of June, 1999 by
United states mail, first class, postage prepaid, addressed as
follows:
c. William Renny, Esquire
The Tarasi Law Firm, P.C.
510 Third Avenue
pittSburgh, PA l5!1l9 ,
.~~er. .oquire
JOSEPH A. KLEIN, P.C.
100 Chestnut Street, suite 210
P.O. Box 1152
Harrisburg, PA 1710B
Phone: (717) 233-0132
Date: June B, 1999
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DEBORAH L. GRAHAM, Individually
and as parent and nntural
guardian of
EZEKIEL E. GRAHAM,
plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
No. 96-606
PENNSYLVANIA TURNPIKE COMMISSION,: Jury Trial Demanded
Defendant
CERTIFICATE AND PROOF OF SERVICE OF
DEFENDANT'S FIRST REOUEST FOR PRODUCTION OF DOCUMENTS
I hereby certify that I am this day serving Defendant's First
Request for Production of Documents in the above-captioned matter
upon the following and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of civil
procedure, by depositing a copy of the same in the Uni~ed ,states
mail, at Harrisburg, pennsylvania, with first-class~ pO,stag"c,
prepaid, as follows: ,- '" "
. -
p.)
~ :.:
c. William Kenny, Esquire
The Tarasi Law Firm, P.C.
510 Third Avenue
Pittsburgh, PA 15219
,..-"
By:
" .
~, -:l
~~J: OF JOO,PII A. KLEIN,'P.",
Mark S. SlIver, Esquire
I.D. No. 09B25
100 Chestnut street, suite 210
Post Office Box 1152
Harrisbui~, P~ 17108-1152
(717) 233-0132
Attorneys for Defendant
DATE: June).I.\ , 1999
,-
" ,
~;t
-.
DEBORAH L. GRAHAM, Individually
and as parent and natural
guardian of
EZEKIEL E. GRAHAM,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
No. 96-606
PENNSYLVANIA TURNPIKE COMMISSION,: Jury Trial Demandcd
Defcndant
CERTIFICATE AND PROOF OF SERVICE OF INTERROGATORIES
OF DEFENDANT PENNSYLVANIA TURNPIKE COMMISSION
ADDRESSED TO PLAINTIFFS DEBORAH L. GRAHAM
AND EZEKIEL E. GRAHAM - FIRST SET
I hereby certify that I am this day serving Interrogatories of
Defendant pennsylvania Turnpike Commission Addressed to plaintiffs
Deborah L. Graham and Ezekiel E. Graham - First Set in the above-
captioned matter upon the following and in the manner indicated
below, which service satisfies the requirements of the Pennsylvania
Rules of civil Procedure, by depositing a copy of the same in the
united States mail, at Harrisburg, Pennsylvania, with first-class
postage, prepaid, as follows:
C. William Kenny, Esquire
The Tarasi Law Firm, P.C.
510 Third Avenue
Pittsburgh, PA 15219
LAW OFFICES OF JOSEPH A. KLEIN, P.C.
~..
By: a..-tL- ,.
Mark . &ilver, Esquire
I.D. No. 09B25
100 Chestnut street, suite 210
Post Office Box 1152
HarriSburg, PA 17108-1152
(717) 233-0132
Attorneys for Defendant
Pennsylvania Turnpike Commission
DATE: June '\." , 1999
42
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
DEBORAH L. GRAHAM, Individually,
and as parent and natural guardian of
EZEKIEL E. GRAHAM,
CIVIL DIVISION
G.D. No.: 96-606
Plaintiffs,
REPLY TO NEW MATTER
v.
PENNSYLVANIA TURNPIKE COMMISSION,
Defendant.
Filed on Behalf of Plaintiffs:
Counsel of Record for This Party:
Louis M. Tarasi, Jr., Esquire
PA I.D. # 01042
C. William Kenny, Esquire
PA I.D. #82225
THE TARASI LAW FIRM, P.C.
Firm No. #469
510 Third Avenue
PiUsburgh, PA 15219
P: (412) 391-7135
F: (412) 4712673
1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
DEBORAH L. GRAHAM, Individually,
and as parent and natural guardian of
EZEKIEL E. GRAHAM,
CIVIL DIVISION
G.D. No.: 96-606
Plaintiffs,
v.
PENNSYLVANIA TURNPIKE COMMISSION,
Defendant.
BRIEF IN SUPPORT OF RESPONSE IN OPPOSITION TO
PRELIMINARY OBJECTIONS
AND NOW, comes the Plaintiff Deborah L. Graham, Individually and as parent and
natural guardian of Ezekiel E. Graham, by and through her counsel of record, Louis M.
Tarasi, Jr., Esquire and The Tarasi Law Firm. P.C., and file this Reply to New Malter as
follows:
1. In response to paragraph 20, of Defendant's New Malter, this paragraph
contains conclusions of law to which no response is required. By way of further answer,
if a response is required, Plaintiffs deny the allegations contained therein on the basis that
2
by Order of Court, May 25, 1999, the Honorable Kevin J. Hess denied Defendant's
Preliminary Objections in the nature of a Demurrer in the above captioned matter.
2. In response to paragraph 21, of Defendant's New Matter, this paragraph
contains conclusions of law to which no response is required. By way of further answer,
if a response is required, Plaintiffs deny the allegations contained therein. Specifically,
Plaintiffs deny that any negligence on their part contributed to the injuries claimed in
Plaintiffs' complaint in the above captioned matter.
3. In response to paragraph 22, of Defendant's New Matter, this paragraph
contains conclusions of law to which no response is required. By way of further answer,
Plaintiff Ezekiel Graham did not, and/or could not, assume the risks that resulted in the
injuries claimed in Plaintiffs' complaint in the above captioned matter.
4. In response to paragraph 23, of Defendant's New Matter, this paragraph
contains conclusions of law to which no response is required. By way of further answer,
Plaintiff Deborah Graham did not, and/or could not, assume the risks that resulted in the
injuries claimed in Plaintiffs' complaint in the above captioned matter.
5. In response to paragraph 24 of Defendant's New Matter, this paragraph
contains conclusions of law to which no response is required. By way of further answer,
Plaintiff Deborah Graham at all times exercised adequate and proper supervision of her
child's sled riding activities.
6. In response to paragraph 25 of Defendant's New Matter, this paragraph
contains conclusions of law to which no response Is required.
7. In response to paragraph 26 of Defendant's New Matter, this paragraph
contains conclusions of law to which no response is required. By way of further answer,
3
the allegstions contained within this paragraph are nothing more than a restatement, in
detail, of the preceding paragraph's general allegation. By way of further answer, sufficient
facts are plead within Plaintiffs' complaint that state a cause of action against this
Defendant pursuant to 42 Pa,C.SA ~8522(b)(4), that the Court of Common Pleas of
Cumberland County, by Order of Court, May 25, 1999, the Honorable Kevin J. Hess denied
Defendant's Preliminary Objections In the nature of a Demurrer In the above captioned
matter based upon the argument contained within paragraph 26 of Defendant's New
Matter.
Respectfully submitted,
THE TARASI LAW FIRM, P.C.
c. tJlL- I{ ~
2)
C. William Kenny, Esquire
PA 1.0. # 82225
Counsel for Plaintiffs
510 Third Avenue
Pittsburgh, PA 15219-2191
P: (412) 391-7135
F: (412) 471-2673
Dated: July 15,1999
4
VERlFICA110N
,
~
I, Deborah L. Graham, PI.lntllT In Ihe llboV8 capttoned matter, verify and ltate
that the filets III fo~ In the tor.Qolng REPLY TO NEW MATTER, sre true and correcl
to the belt of my knowledge Information and belief,
'. .
I im aware. that falee .talemants herein are made subject to the pena~lell of 18
Pa, C,S. Section 4904, relatfng to unswom falslflcatlon, 10 authorities,
.'
'~.\)\l~
De orah L. Grahani
OIted: July is, '1999'
'..
, -
CERTIFICATE OF SERVICE
I, C. William Kenny, Esquire, do hereby certify thst the foregoing REPLY TO
NEW MATTER was served upon the following by U.S. First Class Mall, postage pre-
paid on the 15th day of July, 1999
Mark S. Silver, Esquire
100 Chestnut Street, Suite 210
P.O. Box 1152
Harrisburg, PA 17108
THE TARAS I LAW FIRM, P.C.
c:z . ~sO: ~
C. William Kenny, Esquire "6
PA 1.0. # 82225
Counsel for Plaintiff Oritek, Inc.
510 Third Avenue
Pittsburgh, PA 15219-2191
P: (412) 391-7135
F: (412) 471-2673
MAV BE USED FOR DOMESTIC AND INTERNA TIONAL MAIL. DOfS NOT
PROVIDE FOR INSURANCE-POSTMASTER
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