PHILADELPHIA – A number of preliminary objections from defense counsel are in play, in connection with a fatal assault and battery-based wrongful death and survival lawsuit emanating from Sinking Springs.
June D. MacCarthy filed a motion for preliminary objections on Jan. 19, seeking transfer of Brenda Bollinger’s case to the Berks County Court of Common Pleas; seeking the striking of Paragraph No. 23 from the complaint; seeking the striking of the phrase “needlessly and senselessly” from Paragraph No. 57 and dismissal for failure to join indispensable and necessary parties.
MacCarthy felt since the incident took place in Berks County and all parties involved reside there – except for the Iron Order Motorcycle Club (IOMC), based in Madisonville, Ky. Additionally, MacCarthy felt any mention of Groff comforting decedent Tonya Focht after the accident and the phrase “needlessly and senselessly” later in the complaint was “impertinent, immaterial and prejudices the defendant” – in addition to believing Groff, the IOMC members in question and the driver of the motor vehicle which struck Focht need to be named in the suit.
Howard J. Levin filed a motion for preliminary objections on Feb. 8, seeking transfer of the case to Berks County since the incident in question occurred there and nearly all of the parties are based elsewhere.
Finally, Philip L. Blackman also filed a motion for preliminary objections on Feb. 8, seeking the striking of all claims for punitive damages and a transfer of the case to Berks County. Blackman also argued Bollinger failed to set forth sufficient facts against the IOMC.
A hearing in this matter was set for this Wednesday in Court chambers, at Philadelphia City Hall.
On June 19, 2015, Focht and her fiancé Groff went to Anna’s Bar-B-Q pit as customers. At that time, the restaurant staff allegedly served an excess of alcoholic beverages to Martin and his fellow members of the IOMC, causing them to become intoxicated.
One member of the IOMC threw a pitcher of liquid onto Focht, yet the restaurant allegedly took no action to stop the actions of the IOMC customers, maintain safety, intervene in the altercation or call the police.
When Focht and Groff left the restaurant, they were allegedly attacked by Martin and his fellow members of the IOMC. A group of members attacked Groff three-on-one and when Focht attempted to assist him, Martin is said to have punched her in the face and knocked her backward into the path of a motor vehicle leaving the premises.
At that same time, the vehicle leaving the premises ran over a part of Focht’s skull, inflicting traumatic injuries to her that would later prove fatal.
Bollinger filed suit against the defendants, charging Martin with assault, battery and negligence/recklessness, charging the IOMC with negligence/recklessness and charging Anna’s with negligence and dram shop liability; plus, wrongful death and survival action versus all defendants.
The plaintiff is seeking compensatory and punitive damages, individually, jointly and severally, in excess of $50,000, plus interest, costs and delay damages in this case.
As the administratix of Focht’s estate, Bollinger seeks to recover wrongful death damages in excess of $50,000 to benefit of Focht’s two surviving children, Bryan Focht Jr. and Lillian Davidheiser. Bollinger further seeks the same damages for survival action, in the same amount.
The plaintiff is represented by Michael A. Clemente of Daly & Clemente in King of Prussia, plus Slade H. McLaughlin and Paul Lauricella of McLaughlin & Lauricella.
The defendants are represented by John C. Whitfield of Whitfield Bryson & Mason in Madisonville, Ky., Stephen A. Schuerle and MacCarthy of Hohn & Schuerle, plus Blackman and Levin, also in Philadelphia.
Philadelphia County Court of Common Pleas case 150700429
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com