HomeMy WebLinkAbout00-01581
LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00 - IS/I CL..( I~
v.
CIVIL ACTION -LAW
ELIAS HARBILAS,
Defendant
JURY TRIAL DEMANDED
NOTICE
You have been sued in court. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this
complaint and notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims
set forth against you. You are warned that if you fail to do so the case may proceed
without you and a judgment may be entered against you by the court without further
notice for any money claimed in the corn plaint or for any other claim or relief requested
by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
Telephone 717-249-3166 or 800-990-9108
HANDLER, HENNING & ROSENBERG
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LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. thJ -/59/ &;d ~
v.
CIVIL ACTION - LAW
ELIAS HARBILAS,
Defendant
JURY TRIAL DEMANDED
COMPLAINT
AND NOW, come the Plaintiffs, Larry E. Stroble and Shirley A. Stroble, by and
through their attorneys, HANDLER, HENNING & ROSENBERG, by W. Scott Henning,
Esquire, and bring the within Complaint against the Defendant, Elias Harbilas, and aver
as follows:
1. Plaintiff, Larry E. Stroble, is an adult individual currently residing at 1107
Rana Villa Avenue, Apt. #1, Camp Hill, Cumberland County, Pennsylvania, 17011.
2. Plaintiff, Shirley A. Stroble, is an adult individual currently residing with
her husband at 1107 Rana Villa Avenue, Apt. #1, Camp Hill, Cumberland County,
Pennsyivania, 17011.
3. Defendant, Elias Harbilas, is an adult individual currently residing at 1467
Clover Road, Camp Hill, Cumberland County, Pennsylvania, 17011.
4. At all times material hereto, Defendant, Elias Harbilas, was in exclusive
ownership, possession, management, and control of the premises located at 1107
Rana Villa Avenue, Camp Hill, Cumberland County, Pennsylvania, 17011.
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5. At all times material hereto, Plaintiff, Larry E. Stroble, was a tenant who
was lawfully upon the premises of the Defendant.
6. On or about September 1, 1999, at approximately 10: 15 p.m., Plaintiff,
Larry E. Stroble, exited his apartment on the premises of 1107 Rana Villa Avenue,
Camp Hill, Cumberland County, Pennsylvania, intending to report to work.
7. Upon exiting his apartment, Plaintiff, Larry E. Stroble, noticed that
Defendant's vehicle was parked perpendicular to his, blocking his exit frorn the parking
lot. Plaintiff attempted to locate the Defendant on the premises.
8. While walking upon the unlit sidewalk adjacent to the apartment building
located on the premises, Plaintiff, Larry E. Stroble, was caused to violently fall over a
chair which was sitting on the sidewalk. As a result of his fall, Plaintiff suffered a
severe spinal cord contusion with a central cord syndrome.
9. As a result of the aforementioned incident, Plaintiff, Larry E. Stroble, had
to be transported from the scene via ambulance to Harrisburg Hospital.
10. At all times material to this action, the prernises was not equipped with
lighting on the side of the building where the aforementioned incident occurred.
11. Plaintiff, Larry E. Stroble, avers that, at all times material to this action,
he was unaware that said chair was sitting on the sidewalk.
12. Plaintiffs aver that Defendant, Elias Harbilas, was, at all times material to
this action, aware of the presence of said chair on the sidewalk.
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COUNT I
LARRY E. STROBLE v. ELIAS HARBILAS
13. Paragraphs 1-12 are incorporated herein as if set forth at length.
14. The occurrence of the aforementioned incident and the resulting injuries
to Plaintiff, Larry E. Stroble, were caused directly and proximately by the negligence
of Defendant, Elias Harbilas, generally and more specifically as set forth below:
(a) In allowing a chair to sit in the middle of the sidewalk adjacent to
the premises located at 1107 Rana Villa Avenue, Camp Hill,
Cumberland County Pennsylvania, when he knew or should have
known of its existence, and the hazardous condition that it posed;
(b) In failing to remove said chair from the sidewalk and thereby
allowing the same to be and remain a dangerous condition when
the Defendant knew or should have known of it;
(c) In failing to install lighting on the side of the premises where
tenants were known to traverse, thus causing a dangerous
condition to exist on the premises located at 1107 Rana Villa
Avenue, Camp Hill, Cumberland County Pennsylvania;
(d) In failing to use reasonable prudence in the care and maintenance
of said premises located at 1107 Rana Villa Avenue, Camp Hill,
Cumberland County Pennsylvania;
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(e) In failing to properly inspect for hazardous conditions on the
sidewalk located adjacent to the apartment building on the
premises located at 1107 Rana Villa Avenue, Carnp Hill,
Cumberland County Pennsylvania;
(f) In failing to provide an apartment building to residents that was
free from unnecessarily dangerous conditions; and
(g) In failing to warn Plaintiff, Larry E. Stroble, of the dangerous
condition posed by the chair sitting on the sidewalk adjacent to
the premises located at 1107 Rana Villa Avenue, Camp Hill,
Cumberland County Pennsylvania.
15. As a direct and proximate result of the negligence of Defendant, Elias
Harbilas, Plaintiff, Larry E. Stroble, sustained serious personal injuries including, but not
limited to, a severe spinal cord contusion with a central cord syndrome requiring
immediate cervical spine surgery and continuing medical treatment and physical
therapy.
16. As a direct and proximate result of the negligence of Defendant, Elias
Harbilas, Plaintiff, Larry E. Stroble, has undergone great physical pain, discomfort and
mental anguish and he will continue to endure the same for an indefinite period of time
in the future, to his great detriment and loss, physically, emotionally and financially.
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1 7. As a direct and proximate result of the negligence of Defendant, Elias
Harbilas, Plaintiff, Larry E. Stroble, has been, and will in the future be, hindered from
attending to his daily duties to his great detriment, loss, humiliation and
embarrassment.
18. As a direct and proximate result of the negligence of Defendant, Elias
Harbilas, Plaintiff, Larry E. Stroble, has, and will in the future, suffer a loss of life's
pleasures.
19. As a direct and proximate result of the negligence of Defendant, Elias
Harbilas, Plaintiff, Larry E. Stroble, has been compelled, in order to effect a cure for
the aforesaid injuries, to expend large sums of money for medicine and medical
attention, and will be required to expend large sums of money for the same purposes
in the future, to his great detriment and loss.
20. As a direct and proximate result of the negligence of Defendant, Elias
Harbilas, Plaintiff, Larry Stroble, sustained a loss of wages, and may continue to suffer
the same in the future to his great detriment and loss.
21. Plaintiff, Larry E. Stroble, believes, and therefore avers, that his injuries
are permanent in nature.
WHEREFORE, Plaintiff, Larry E. Stroble, seeks damages from the Defendant,
Elias Harbilas, in an amount in excess of Twenty-Five Thousand dollars {$25,000.00l,
exclusive of interests and costs.
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COUNT II
SHIRLEY A. STROBLE v. ELIAS HARBILAS
22. Paragraphs 1-21 are incorporated herein as if set forth at length.
23. As a result of the negligence of the Defendant, Elias Harbilas, Plaintiff,
Shirley A. Stroble, has suffered a loss of consortium, society and comfort from her
husband, Larry E. Stroble, and she will continue to suffer a similar loss in the future.
24. As a result of the negligence of the Defendant, Elias Harbilas, Plaintiff,
Shirley A. Stroble, has been compelled, in order to effect a cure for her husband's
aforesaid injuries, to expend large sums of money for medicine and medical treatment,
and will be required to expend large sums of money for the same purposes in the
future, to her great detriment and loss.
WHEREFORE, Plaintiff, Shirley A. Stroble, seeks damages frorn the Defendant,
Elias Harbilas, in an amount in excess of Twenty-Five Thousand dollars ($25,000.00),
exclusive of interests and costs.
Respectfully submitted,
HA
ING & ROSENBERG
Date:~--It{c2oDO
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VERI FICA TION
The undersigned hereby verifies that the statements in the foregoing
COMPLAINT are based upon information which has been furnished to counsel by me
and information which has been gathered by counsel in the preparation of this lawsuit.
The language of the above-named COMPLAINT is of counsel and not my own. I have
read the COMPLAINT and to the extent that it is based upon information which I have
given to counsel, it is true and correct to the best of my knowledge, information and
belief. To the extent that the contents of the COMPLAINT is that of counsel, I have
relied upon my counsel in making this verification. The undersigned also understands
that the statements therein are made subject to the penalties of 18 Pa.R.C.P. 2252(d)
C.S. Section 4904, relating to unsworn falsification to authorities.
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LARRY . STROBLE
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SHIRLE A. STROBLE
Date: 5/ l 6 J;J.D CB
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-01581 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
STROBLE LARRY E ET AL
VS
HARBILAS ELIAS
HAROLD WEARY
, Sheriff or Deputy Sheriff of
Cumberland County, Pensyl vania , who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
HARBILAS ELIAS
the
DEFENDANT
, at 0012:45 HOURS, on the 3rd day of April
, 2000
at 1467 CLOVER ROAD
CAMP HILL, PA 17011
STACY HAIBILAS (DAUGHTER)
by handing to
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
18.00
9.30
.00
10.00
.00
37.30
Ca~~~~~~
R. omas Kline
04/04/2000
HANDLER, HENNING & ROSENBERG
Sworn and Subscribed to before
By:
~~ir~ .
Depu y Sher~
me this 11'1,t.
.
day of
D/'o ..:J ~ tnr0 A . D .
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'A-<~ Q, ""rvLJ.P .. . - .
rothonotary ,~
Jesse Raymond Ruhl
PAAtty. No.: 55798
P.O. Box 1319
Carlisle, PA nOD
(717)241-4813
(717) 241-4829 (fax)
LARRY E. STROBLE and
SHIRLEY A. STROBLE,
; IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
: No.: 00-1581- Civil Term
v.
: JURY TRIAL DEMANDED
ELIAS HARBILAS,
Defendant.
DEFENDANT'S ANSWER WITH NEW MATTER
NOW COMES Defendant Elias Harbilas, by his attorney, Jesse Raymond Ruhl, and files
the within Answer with New Matter to Plaintiffs' Complaint as follows:
1_ - 5. Admitted.
6. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 6 of
Plaintiffs' Complaint. Strict proof thereof, ifrelevant, is demanded at trial.
7. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 7 of
Plaintiffs' Complaint. Strict proof thereof, if relevant, is demanded at trial.
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8. Denied. It is specifically denied that while walking upon the sidewalk, Plaintiff
was caused to violently fall over a chair which was sitting on the sidewalk. It is impossible to
fall violently if one is walking and taking proper precautions to safeguard his own well-being.
9. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph 9 of
Plaintiffs' Complaint. Strict proof thereof, if relevant, is demanded at trial.
10. Denied. It is specifically denied that the premises was not equipped with lighting
on the side of the building.
11. Denied. After reasonable investigation, Defendant is without knowledge or
information sufficient to form a belief as to the truth of the averments contained in paragraph II
of Plaintiffs' Complaint. Strict proof thereof, if relevant, is demanded at trial.
12. Denied. It is specifically denied that Defendant was aware of the presence ofthe
chair on the sidewalk.
13. The averments contained in paragraph 13 of Plaintiffs' Complaint require no
response.
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14. Denied. It is denied that the incident and resulting injuries were caused directly
and/or proximately by the negligence of Defendant, including each and every way described by
Plaintiffs in paragraph 14 of the Complaint and subparagraphs (a) through (g) therein.
15. Denied. It is specifically denied that Defendant was negligent. By way of further
denial, after reasonable investigation, Defendant is without knowledge or information sufficient
to form a belief as to the truth of the averments contained in paragraph 15 of Plaintiffs'
Complaint. Strict proof thereof, if relevant, is demanded at trial.
16. Denied. It is specifically denied that Defendant was negligent. By way of further
denial, after reasonable investigation, Defendant is without knowledge or information sufficient
to form a belief as to the truth of the averments contained in paragraph 16 of Plaintiffs'
Complaint. Strict proof thereof, if relevant, is demanded at trial.
17. The copy of Plaintiffs' Complaint forwarded to Defendant's counsel did not
contain a paragraph 17.
18. Denied. It is specifically denied that Defendant was negligent. By way of further
denial, after reasonable investigation, Defendant is without knowledge or information sufficient
to form a belief as to the truth of the averments contained in paragraph 18 of Plaintiffs'
Complaint. Strict proof thereof, if relevant, is demanded at trial.
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19. Denied. It is specifically denied that Defendant was negligent. By way of further
denial, after reasonable investigation, Defendant is without knowledge or information sufficient
to form a belief as to the truth of the averments contained in paragraph 19 of Plaintiffs'
Complaint. Strict proof thereof, if relevant, is demanded at trial.
20. Denied. It is specifically denied that Defendant was negligent. By way of further
denial, after reasonable investigation, Defendant is without knowledge or information sufficient
to form a belief as to the truth of the averments contained in paragraph 20 of Plaintiffs'
Complaint. Strict proof thereof, if relevant, is demanded at trial.
21. Denied. It is specifically denied that Defendant was negligent. By way of further
denial, after reasonable investigation, Defendant is without knowledge or information sufficient
to form a belief as to the truth of the averments contained in paragraph 21 of Plaintiffs'
Complaint. Strict proof thereof, if relevant, is demanded at trial.
WHEREFORE Defendant Elias Harbilas respectfully requests that the Court enter
judgment in his favor and against Plaintiffs, together with costs.
22. The averments contained in paragraph 22 of Plaintiffs' Complaint require no
response.
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23. Denied. It is specifically denied that Defendant was negligent. By way of further
denial, after reasonable investigation, Defendant is without knowledge or information sufficient
to foml a belief as to the truth of the averments contained in paragraph 23 of Plaintiffs'
Complaint. Strict proof thereof, if relevant, is demanded at trial.
24. Denied. It is specifically denied that Defendant was negligent. By way of further
denial, after reasonable investigation, Defendant is without knowledge or information sufficient
to fornl a belief as to the truth of the averments contained in paragraph 24 of Plaintiffs'
Complaint. Strict proof thereof, if relevant, is demanded at trial.
WHEREFORE Defendant Elias Harbilas respectfully requests that the Court enter
judgment in his favor and against Plaintiffs, together with costs.
NEW MATTER
25. The injuries suffered by Plaintiffs, all of which are denied, were caused by the
carelessness, recklessness or negligence of others for whose conduct Defendant was not
responsible.
26. As a matter of law, a chair on a sidewalk carmot constitute a dangerous or
hazardous condition unless the Plaintiff was failing to exercise the necessary care and precaution
to safeguard his own well-being.
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WHEREFORE Defendant Elias Harbilas respectfully requests that the Court enter
judgment in his favor and against Plaintiffs, together with costs.
Jess Ra
P [A"tty. No.: 55798
P. .Box1319
Carlisle, P A 17013
(717) 241-4813
(717) 241-4829 (fax)
Attorney for Defendant
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CERTIFICATE OF SERVICE
I certify that on this April 15, 2000, I caused a true and correct copy of the forgoing
Answer to be served upon counsel to the Plaintiff, addressed as follows:
W. Scott Henning, Esquire
HANDLER HENNING & ROSENBERG
319 MARKET STREET
PO BOX 1177
HARRISBURG, PA 17108
Jesse
a: \pleadings\HARBILAS.ANS
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LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-1581 CIVIL TERM
v.
CIVIL ACTION - LAW
ELIAS HARBILAS,
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' REPLY TO NEW MATTER
AND NOW, comes the Plaintiffs, by and through their attorneys, Handler,
Henning & Rosenberg, and responds to the allegations of New Matter propounded by
as follows:
25. Denied. It is denied that the injuries suffered by the Plaintiffs were
caused by the carelessness, recklessness or negligence of others for whose conduct
the Defendant was not responsible such that the Defendant would not have any
responsibility to the Plaintiffs, and proof to the contrary is demanded at the trial in this
rnatter.
26. Denied. The allegation set forth in Paragraph 26 is a conclusion of law
to which no responsive pleading is required, however, to the extent that the Honorable
Court deems a response necessary, it is denied that a chair resting on a sidewalk
cannot constitute a dangerous or hazardous condition except in those circumstances
when the Plaintiff was failing to exercise necessary care and precaution for his own
well-being, and proof to the contrary is demanded at the trial in this matter.
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WHEREFORE. Plaintiffs demand judgment against the Defendant for the relief
set forth in their Complaint.
Respectfully subrnitted,
H
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VERIFICATION
PURSUANT TO PA R.C.P. NO. 1024 leI
W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing
the foregoing document; that he makes this affidavit as an attorney, because the party
he represents lacks sufficient knowledge or information upon which to make a
verification and/or because he has greater personal knowledge of the information and
belief than that of the party for whom he makes this affidavit; and that he has
sufficient knowledge or information and belief, based upon his investigation of the
matters averred or denied in the foregoing document; and that this statement is made
subject to the penalties of 18 Pa C.S. ~4904 relating to unsworn falsification to
authorities.
Date: ~-tf~~
W. SC
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LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-1581 CIVIL TERM
v.
CIVIL ACTION - LAW
ELIAS HARBILAS,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
On the 9th day of May, 2000, I hereby certify that a true and correct copy of
Plaintiffs' Answers to New Matter was served upon the following by depositing in U.S.
Mail, certified delivery:
Jesse Raymond Ruhl, Esquire
P.O. Box 1319
Carlisle, PA 17013
Date: 5/9/2000
By
W. co
31 9 Market
P.O. Box 1177
Harrisburg, PA 17108
(71 7) 238-2000
HANDL
ATTORNEY FOR PLAINTIFFS
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LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
: CNIL ACTION - LAW
v.
: NO. 00-1581
ELIAS HARBILAS,
Defendant.
; JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
, upon consideration of Defendant's
Motion for Summary Judgment, it is hereby ordered as follows:
(I) Defendant Elias Harbilas' Motion for Sunrmary Judgment is GRANTED; and
(2) Plaintiffs Complaint is DISMISSED.
1.
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Jesse Raymond Ruhl
Attorney LD. No. 55798
350 West Market Street
York, PA 17401
(717) 854-0066 Attorney for Defendant
LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
: CNIL ACTION - LAW
v.
: NO. 00-1581
ELIAS HARBILAS,
Defendant.
: JURY TRIAL DEMANDED
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
NOW COMES Defendant Elias Harbilas, by his attorney, Jesse Raymond Ruhl, Esquire,
and files the within Motion for SUlllIDary Judgment as follows:
1. Plaintiffs filed a Complaint against Defendant on or about March 16, 2000.
2. Plaintiffs are husband and wife and tenants residing in an apartment building on premises
(hereinafter "premises") owned and managed by Defendant.
3. Plaintiffs' Complaint and his alleged injuries resulted from falling over a lounge chair
that Plaintiff did not see while walking about the premises at night.
4. At his deposition, Plaintiff stated that "[t]here wasn't any light" and "it was so dark" as
he turned the right corner of the building heading for the back of the building and entered
the area adjacent to the building where the lounge chair was located.
5. Under these conditions, Plaintiff proceeded around the right side of the building,
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impacted the lounge chair and fell over it sustaining injuries.
6. Plaintiffs' Complaint alleges, inter alia, that Defendant was negligent in allowing the
lounge chair to sit on the sidewalk adjacent to the apartment building thereby causing
injury to Plaintiff.
7. Plaintiff cannot establish as a matter of law that an oversized, stuffed lounge chair
presented an unreasonable risk of harm to him.
8. In addition, as a matter oflaw, Plaintiffs are barred from recovery by application of the
Comparative Negligence Act.
WHEREFORE, Defendant Elias Harbilas respectfully requests that the Court enter an
Order granting Summary Judgment and dismissing Plaintiffs' Complaint with prejudice.
DATED: October17, 2001
Jes ymond Ruhl
PAtty LD. No. 55798
350 West Market Street
York,PA17401
(717)854-0066
Fax (717)854-4339
Attorney for Defendant
C:\Documents\Files\harbilas\Harbilas.Motion.SJ .wpd
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Certificate of Service
I hereby certify that on October 17, 2001, a true and correct copy of the foregoing Motion
for Summary Judgment was served by first class mail, postage prepaid, upon the following:
W. Scott Henning, Esquire
Handler, Henning & Rosenberg
P.O. Box 1177
Harrisburg, PAl 71 08
Jesse
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and sul:mitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
please list the within matter for the next Argtment Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
LARRY E STROBLE and
SHIRLEY A. STROBLE
(Plaintiff)
vs.
ELIAS HARBILAS
(Defendant)
00-1581
Civil
19
No.
1. State matter to be argued (Le., plaintiff's rrotion for new trial. defendant's
demurrer to canplaint. etc.):
2.
Defendant's Motion for Summary Judgment
Identify =unsel who will argue case:
W. Scott Henning, Esquire
Handler, Henning & Rosenberg
P.O. Box un
Harrisburg, PA 17108
Jesse R. Ruhl, Esquire
350 W. Market St.
York, PA 17401
(a)
for plaintiff:
J\ddress :
(b)
for defendant:
Address:
3.
I will notify all parties in writing within t'NO days that this case has
been listed for argment.
4. Argunent Court Date:
Dec.12, 2001
Oct. 17, 2001
~~
Attornlil1' for Defendant
Dated:
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LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00.1581 CIVIL TERM
v.
CIVIL ACTION. LAW
ELIAS HARBILAS,
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' REPLY TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND NOW, come the Plaintiffs, by and through their attorneys, Handler, Henning
& Rosenberg, and replies to Defendant's Motion for Summary Judgment as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted with clarification. It is admitted that the Plaintiff made the
statement set forth in Paragraph 4, however, to extrapolate portions of sentences from a
lengthy deposition may be taking Plaintiff's statements out of context. The Plaintiff
believes and therefore asserts that it is appropriate to read Plaintiff's deposition testimony
in its entirety.
5. Denied. It is acknowledged that the Plaintiff walked from the front of the
apartment building and rounded the corner and proceeded to walk along the right side of
the building, at which time he bumped into the lounge chair and fell over it sustaining the
injuries which give rise to the subject cause of action. The Plaintiff is uncertain what the
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Defendant means by "under these conditions" and to that extent the Plaintiff incorporates
his response to Paragraph #4 of Defendant's Motion.
6. Admitted.
7. Denied. The allegation set forth in Paragraph 7 is a conclusion of law to
which no responsive pleading is required, however, to the extent that the Honorable Court
deems a response necessary, it is denied that the Plaintiff did not establish as a matter of
law that a chair sitting in the middle of an unlit, darkened walkway did not present an
unreasonable risk of harm to him, and proof to the contrary is demanded at the trial in this
matter.
8. Denied. The allegation set forth in Paragraph 8 is a conclusion of law to
which no responsive pleading is required, however, to the extent that the Honorable Court
deems a response necessary, it is denied that, as a matter of law, Plaintiffs are barred from
recovery by application of the Comparative Negligence Act. By way of further Answer, the
Plaintiffs deny that Plaintiff, Larry E. Stroble, was in any way comparatively or contributorily
negligent with regard to the causing of the incident and the resulting injuries, however, to
the extent that there may be facts which lend weight to some degree of contributory or
comparative negligence on the part of the Plaintiff, this is an issue that should be decided
by a jury.
-2-
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WHEREFORE, Plaintiffs demand judgment against the Defendant for the relief set
forth in their Complaint and requestthe Honorable Court to dismiss the Defendant's Motion
for Summary Judgment.
Date: J/- E -J(}(J/
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Respectfully submitted,
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LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00-1581 CIVIL TERM
v.
: CIVIL ACTION. LAW
ELIAS HARBILAS,
Defendant : JURY TRIAL DEMANDED
On the
CERTIFICATE OF SERVICE
6'ift7. of rl~), 2001, I hereby certify that a true and
correct copy of to Plaintiffs' Reply to Defendant's Motion for Summary Judgment was
served upon the following by depositing in U.S. Mail, certified delivery:
Jesse Raymond Ruhl, Esquire
P.O. Box 1319
Carlisle, PA 17013
By
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1
LARRY E. STROBLE AND
SHIRLEY A. STROBLE,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
2
3
v.
NO. 00-1581 CIVIL
CIVIL ACTION - LAW
4
ELIAS HARBILAS,
DEFENDANT
JURY TRIAL DEMANDED
5
6
7
8
9
DEPOSITION OF:
LARRY E. STROBLE
TAKEN BY:
DEFENDANT
BEFORE:
SUSAN M. SIMON
REPORTER-NOTARY PUBLIC
PLACE:
HANDLER, HENNING & ROSENBERG
319 MARKET STREET
HARRISBURG, PENNSYLVANIA
DATE:
JULY 6, 2000
BEGINNING 4:05 P.M.
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20 APPEARANCES;
21 HANDLER, HENNING & ROSENBERG
BY: W. SCOTT HENNING, ESQUIRE
22 FOR - PLAINTIFFS
23 JESSE R. RUHL, ESQUIRE
FOR - DEFENDANT
24
25
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I N D E X
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PRODUCED
AND MARKED
64
2
EXAMINATION
WITNESS
3 LARRY E. STROBLE
4
By Mr. Ruhl
By Mr. Henning
5
6
7
8
EXHIBITS:
9
1. 13-page typewritten statement,
taken by Chris Gerfen on
September 17, 1999
o
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7
STIPULATION
It is hereby stipulated by and between counsel
for the respective parties that reading, signing, sealing,
filing and certification are waived; and that all
objections except as to the form of the question are
reserved until the time of trial.
LARRY E. STROBLE, called as a witness, being
8 duly sworn, testified as follows:
9 EXAMINATION
10 BY MR. RUHL:
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Q Good afternoon, in Stroble. My name is Jesse
Ruhl, and I'm the attorney for Mr. Harbilas. This
deposition will proceed very similar to the deposition that
just occurred with Mr. Harbilas. The same instructions to
you apply that Mr. Henning gave to Mr. Harbilas.
I'll be looking for oral or verbal responses
to my questions today. I will try to keep my questions
brief and easy to understand, so if you would kindly please
wait to give your answer until after I've finished my
question.
If at any time I ask you a question that you
find to be confusing or unclear, please indicate so, and I
will then try to make my question clear to you so that you
understand it and can properly answer it.
If you'd like to take a break at any time,
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please let me know and I will accommodate you as well.
Are you taking any medications today?
2
3
A
Yes.
4
Q
Do those medications affect your ability to
5 anSwer my questions today?
6
A
No.
7
Q
Have you ever had your deposition taken
8 before?
9
A
No.
Q
How old are you, Mr. Stroble?
A
55.
Q
How long have you lived in the apartment
building at 1107?
A It's been about seven or eight years.
MRS. STROBLE: No.
16 BY MR. RUHL:
17
Q
Would you agree with Mr. Harbilas that you
18 first moved into an apartment in the back of the building?
19
20
A
Yes.
Q
Was that first move into that apartment at or
21 about the time that you and Mrs. Stroble got married?
'"
22
23
24
25
A
Yes.
Q
Were you married before that time?
A
I moved in -- it was about a week before we
got married.
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Q I'm sorry, my question wasn't clear. Were you
married prior to -- were you ever married prior to marrying
3 Mrs. Stroble?
A
Oh, yes.
Who were you married to prior to Mrs. Stroble?
This is the fourth time I've been married.
How old did you say you were?
Q
A
Q
A 55.
Q Well, can we go in reverse chronological order
and you give me the names of your former wives. Are they
still alive?
A All but -- as far as I know, except for one.
Q Prior to Mrs. Shirley Stroble, who were you
married to?
A That would have been Fernandez Whisenhunt.
W-h-i-s-e-n-h-u-n-t. F-e-r-n-a-n-d-e-z.
Q Who were you married to prior to
Ms. Whisenhunt?
A Joanne Nunn, N-u-n-n.
Q And there would be one more?
A Yeah, Roseanne Gally, G-a-l-l-y.
Q One of these women is no longer with us?
A Roseanne.
Q
A
How long were you married to Roseanne Gally?
About a year.
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Q
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
Nunn?
A
Q
A
20 BY MR. RUHL:
21
22
23
24
25
Q
A
Q
A
Q
6
When did you get married?
When?
What year?
'63.
And you were married for about a year?
Um-hum.
Same question with regard to Joanne Nunn.
I was married to her for about two years.
When did you get married to Joanne?
1967.
Does she still go by the name Joanne Nunn?
I'm not sure. She remarried, I think.
When is the last time you spoke to Joanne
Oh, 1968.
That was the last time you saw her as well?
Um-hum.
MR. HENNING: Is that a yes?
THE WITNESS: Yes, I'm sorry.
Ms. Whisenhunt, when were you married to her?
1972 .
Until when?
Till about 1974.
When is the last time you saw Ms. Whisenhunt?
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A
Q
It would have been about 1976.
That would be the last time you talked to her
as well?
A
Q
A
Q
A
Q
Yes.
Do you have any children, sir?
I have two sons by my marriage to Joanne.
What are your sons' names?
Michael and Joseph.
Do they reside in Cumberland or Dauphin
Counties?
A
Q
A
Q
A
Q
No.
Where do they reside?
New Jersey.
Both of them?
As far as I know.
Both of them?
A Yes.
Q When is the last time you talked or had any
contact with them?
A I haven't seen them since they were just
babies.
Q You were married to Shirley in about 1992?
A (No audible response.)
Q Do you have a recollection? If you don't, I
can ask her later. If you don't have a recollection,
~~
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that's fine.
2
A November the 9th of 1991.
3
Q
The early nineties, you would agree?
4
A
Yeah.
5
Q
What is your educational background?
6
I have a high school education.
A
7
Q
Where did you graduate from?
8
Williamsport High School.
A
9
In what year?
Q
A
'62.
Q
Did you begin working right after graduation
12 from high school?
13
14
15
16
17
18
A
No, I went into the service.
Q
How long were you in the service?
A
About a year.
Q
What did you do in the service?
A
I was in the Navy, seaman.
Q
What did you do after leaving the Navy about
19 1963?
20
A
I was working as a glass cutter, installing
21 glass and storm windows and things.
22
23
Q
For how long did you do that?
A
Oh, my. I guess a couple years. I can't
24 recall exactly. I've had so many different jobs over the
25
years and everything, and my life has been so confused, I
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don't remember dates.
2
Q Why don't we skip upward then to 1990, about
3
ten years ago. Where were you working ten years ago?
A In 1990, I was working at Beverly Enterprises.
Q Where was Beverly located?
A She's shaking her head no.
Q These are approximate dates, I understand.
4
5
6
7
8 Where was Beverly?
9
I was working at the Blue Ridge Haven West,
A
10 Chateau Building, in Camp Hill which was owned by --
11 they're owned by Beverly Enterprises.
12
13
14
Q
What was the name, Blue Ridge?
MR. HENNING: Blue Ridge Haven West.
THE WITNESS: At the Chateau Building which is
15 behind the main facility.
16 BY MR. RUHL:
17
Q
What type of enterprise is Beverly
18 Enterprises?
19
20
A
It is a health care, nursing home.
Q
In 1990 had you been working there for a
21 substantial period of time already?
22
23
24
25
A
No, I had just --
MR. HENNING: He has to answer himself.
MR. RUHL: I don't care if she helps him.
THE WITNESS: I can't remember.
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MRS. STROBLE:
working in 1990.
THE WITNESS:
MR. HENNING:
worked at Beverly.
BY MR. RUHL:
He wants to know where you were
Yeah.
Maybe if you ask him how long he
Q Had you just started working in 1990 for
Beverly Enterprises?
MRS. STROBLE: But, see, that's not where he
was working in 1990.
MR. RUHL: Where was he then? Maybe you
should tell him, see if he agrees.
THE WITNESS: I don't remember honestly.
MRS. STROBLE: Bethany Village. That was
before we got married.
BY MR. RUHL:
Q Let's go to Bethany Village. You recall
working at Bethany Village?
A Yes.
Q Do you recall the approximate years that you
were there?
A I was there about two years.
Q And that would have been around 1990 before
your getting married?
A Yes.
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Q
What did you do at Bethany Village?
2
Certified nursing assistant.
A
3
Q
What is a certified nursing assistant?
4
A
Well, you do patient care, you know, bathing,
5 feeding, transferring.
6
Q
Did you go to school to learn how to be a
7 patient care assistant?
8
No, I had on-the-job training years and years
A
9 ago, and then I was certified out in California a few years
lO back. And then at Bethany Village, I went through training
II through HACC while I was there.
l2
:L3
l4
l5
Q
You were certified in California a few years
prior to 1990?
A Yes.
Q
For how long did you work at Bethany Village?
l6 Did you say two years?
l7
l8
19
A
About two years, I think it was.
Q
Then where did you go after Bethany Village?
A
Then we worked for a while for Kelly Assisted
20 Living doing the same type of thing only it was private
2l duty.
22
Q
And during that employment with Kelly, is that
23 when you were married to Shirley?
24
25
A
NO, we got married before we left Bethany
Village.
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1
Q
Okay. Where did you go after Kelly Assisted
2
Living?
3
That's when I started working at the Chateau
A
4 for Beverly Enterprises.
5
Q
What were your duties there?
6
Same as Bethany Village.
A
7
Q
How long did you work at the Chateau?
8
I was there about five or six years.
A
9
Do you recall the year that you stopped
Q
10 working at the Chateau?
11
12
13
14
A
Yeah, it was '97?
Q
Approximately 1997?
A
Yeah.
Q
Do you recall where you went after the
15 Chateau, your employment?
16
A
I got a job working for Omex International
17 doing office cleaning, office maintenance.
18
19
20
21
Q
And that was around 1997, you started there?
A
Yeah.
Q
Was that a local enterprise?
A
Yeah. Camp Hill, Hartzdale Drive in Camp
22 Hill. I can't remember the exact number.
23 Q Is it still there?
24 A I'm not sure.
25
Q
How long did you work at Omex?
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ar
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A It wasn't very long. Just a matter of a few
months. Oh, maybe four, five months.
Q Why did you leave the Chateau and go to Omex?
A I had been drinking. I was on medication and
I had been drinking, and sleep deprivation was involved in
it too. And I had a reaction to it all and destroyed some
property and everything and was terminated.
Q That was at the Chateau?
A Yeah.
Q You said you were on medication. Were you on
medication for the drinking, or did you combine the
drinking and the medication?
A I combined it, yeah.
Q Why were you on medication back in 1997?
A I'd been diagnosed as being paranoid
schizophrenic years ago.
Q Who diagnosed you?
A (No audible response.)
Q You said years ago. Do you recall when you
were diagnosed?
A Yeah, like -- probably around '69.
Q Do you have an understanding of what paranoid
schizophrenia is?
A I have a pretty good idea. Years ago, I used
to think it strictly had to do with having a split
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1
personality or something, you know. But when this incident
2
happened at the Chateau, I went to treatment with Dual
3 Diagnosis, and I don't drink anymore.
4 And I know there's things like where you might
5 imagine you're a famous person and things like this here,
6 and hear voices and this kind of thing.
7
Q
How personally were you affected by this
8 disease?
9
A
It was pretty extreme.
Q
What were the results or the consequences to
11 you? I know we're dealing with a broad period of time
12 here, so let me try to ask the question.
13
14
In 1997 when you had the incident at the
Chateau, what, in your opinion, was the effect of that
15 disease on you at that time?
16
A
Well, at that time I was hearing voices and
17 things, you know, and I lost control of my thoughts.
18
19
Q
You lost control of your thoughts, you said?
A
Yes, these voices were controlling my
20 thoughts, you know, my actions.
21
22
Q
And you were taking medication at that time?
A
I was taking medication, but I was drinking
23 along with it, and I was taking some medication which
24 counteracted -- with my original medication shouldn't have
25
been doing, you know. I was taking other medication too
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15
1
that I shouldn't have been taking, along with the
2
drinking.
3
Q
Did you start a new medication, is that what
4 I'm understanding? Did you switch medications for your
5 paranoid schizophrenia?
6
I had so much anxiety. I was taking
A
7 medication for the paranoid schizophrenia. Well, then the
8 anxiety got so bad, I started taking Ativan which didn't
9 mix too well with the original medication, you know. The
10 psychiatrist had me on Artane and Stelazine.
11 And then I went, because I had so much
12 anxiety, I thought I needed something to slow me down a
13
14
little more. So I went to our family doctor, and he put me
on some Ativan, and then I was drinking beer along with
15 it. I wasn't sleeping very well. Sleep deprivation had a
16 lot to do with it too.
17
18
19
Q
In 1997, who was your psychiatrist?
A
In 1997, it would have been Dr. Del Rosario.
Q
Have you changed doctors, psychiatrists, from
20 1997, from Dr. Del Rosario?
21 A I was seeing Dr. De La Cruz for a while, and
22 then I took I was just in the mental facility over here
23 at Holy Spirit for about a month, I guess it was. I
24 forget.
25
Q
Do you remember what year?
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A
Q
A
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time?
A
Q
A
Q
A
, 97 .
2
Was that after the incident at the Chateau?
3
Right.
4
You were there for approximately one month?
5
I think it was about a month, yeah.
6
Is that where Dr. De La Cruz treated you?
7
Yes.
8
Was Dr. Del Rosario treating you at the same
9
No.
11
His treatment of you stopped?
It was prior to that, yeah.
How long did Dr. De La Cruz treat you?
I'm trying to remember.
15 (Recess taken off the record from 4:19 p.m.
16 until 4:21 p.m.)
17 (Question read by reporter.)
18
THE WITNESS: About a year, I guess it was
19 about a year.
20 BY MR. RUHL:
21
22
Q
Who treated you after Dr. De La Cruz?
A
I don't remember his name. It was a doctor
23 over at the Senate building which is over by Holy Spirit
24 Hospital. It's a black man. I can't recall his name.
25
Q
Was he associated with the hospital or private
o
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17
1
2
3
4
5
6
practice?
A
Q
A
Q
A
with the hospital.
Holy Spirit Hospital?
Yes.
How long did you treat with that doctor?
I saw him for about, I guess about a year or
7 so too.
8 Q What year are we up to now when you finished
9 treatment with the last psychiatrist whose name you don't
10 remember?
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Q
Well, be about in '99 somewhere.
Did you stop treating with him before your
accident?
A Yes.
Q Did you obtain the services of another
psychiatrist after that doctor?
A No. See -- I was still -- I still had
prescription for my medication. They changed my
medication, you know, put me on different medication.
Q I'm sorry, just so I'm clear. Are you saying
your medication was changed regularly through that period
of time, or was your medication just changed at that point
in 1999?
A They change you while, while I was in the Dual
Diagnosis program.
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11
12
13
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1
Q
And that was back in 1997?
2
Yes.
A
3
Q
After the incident at the Chateau?
4
A
Right.
5
Q
Were you on the same medication then for the
6 next several years up to 1999?
7
A Yes, yes.
Q What medication was that?
A Haloperidol and Cogentin.
Q Haldol?
A Haloperidol is the generic name, yeah.
Q Was the black psychiatrist at Holy Spirit
8
9
Hospital, whose name you don't remember, is he the last
psychiatrist you had?
A
I'm trying to remember. I honestly can't
16 remember if he was before Dr. De La Cruz took over or if he
17 was afterwards. Can you remember?
18
19
MRS. STROBLE: (Shakes head side to side.)
THE WITNESS: I think Doctor De La Cruz would
20 have been the last one I saw. Should be just reversed. I
21 was seeing this black gentleman before Dr. De La Cruz took
22 over. Because he transferred or something. This black
23 gentleman transferred into something else, another program
24 or something, and Dr. De La Cruz took over.
25
So Dr. De La Cruz would have been the last
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19
1
psychiatrist I've seen.
2
BY MR. RUHL:
3
Q
On September 1, 1999, were you seeing or being
4 treated by a psychiatrist?
5 A No, I still had prescription for my
6 medication. I hadn't seen him for about -- gee, I don't
7 know, maybe about three, four months prior to the accident.
8
Q
And you think that would be Dr. De La Cruz?
9
A
Yeah.
Q
And it was the same medication you previously
11 described?
12
13
14
15
16
A
Right.
Q
Are you still taking that same medication
today?
A
Yes, yes.
Q
I asked you a bit before, what do you believe
17 the effect of your disease paranoid schizophrenia was on
18 you? HOW did that disease affect you?
19
A
Well, basically like I say, when it was real
20 bad I would lose -- I would hear voices and things, you
21 know. I was on supplemental security income some years
22 back because of it.
23
Q
What is the effect of the medication on the
24 disease?
25
A
Well, since I went through this Dual Diagnosis
o
e
~,'"
~
20
1
program, and stopped drinking, stopped my drinking, stopped
2
mixing the alcohol with the medication, and since they
3 changed my medication, I haven't had any problems.
4
Q
Okay. When is the last time you had an
5 alcoholic beverage?
6
It's been three years? About three years.
A
7
Q
When you described --
8
Right after the incident at the Chateau, '97.
A
9
You indicated also that you
I think it was
Q
10 back in 1997 -- that you began or requested medication for
11 anxiety?
13
14
12
Right.
A
Q
Have you always suffered from anxiety?
A
No. I had it since about -- off and on since
15 about 1979. But when I was working at the Chateau, I know
16 because of the combination of the other pills, the lack of
17 sleep, or I don't know what might have caused it, but it
18 got worse. You know, felt like I was having a panic
19 attack. Like I was having a heart attack a lot of times,
20 put a lot of pressure on the left side of my chest.
21 I couldn't seem to get any relief from it, you
22 know, with just the medication. That was the only reason I
23 was drinking so much. It was a vicious cycle, you know,
24 that I couldn't get out of until I went in this program and
25
they got me straightened out and I stopped the drinking.
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21
1
Q
That would be the Dual Diagnosis program?
2
Right, right. That's for people that have
A
3 mental disease and drink along with it to compensate for
4 it. That's why they call it Dual Diagnosis.
5
Q
Are you taking any medication today for
6 anxiety?
7
A
Just all I'm taking right now is Haldol and
8 Cogentin.
9
And that would have been the same medication
Q
10 you were taking in September 1, 1999?
11
12
13
14
A
Right.
Q
We described the incident at the Chateau, but
we never really described what happened. What happened?
A Well, I was just going around, I messed up a
15 lot of property and things, destroyed some property and
16 everything. I didn't -- I never -- I didn't endanger any
17 of the residents or anything like that, you know.
18
19
20
Q
Were you engaged in vandalism?
A
Yeah.
Q
Then you went into the Dual Diagnosis program
21 for a number of months?
22
A
It was about, oh, I guess about six months,
23 maybe five or six months.
24
25
Q
1997?
A
Yes.
.
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22
1
Q
So you were not working then?
2
A
No.
3
Q
How were you living? Where was your income
4 coming from at that time?
5
A
Well, my wife was working.
6
Do you know, were you paying rent at that
Q
7 time?
8
I think we missed a couple months maybe. I'd
A
9 just to say like right now, you know, this whole situation
10 is nothing personal against Louie. He's been good to us.
11 It's not a personal thing or anything like that. He's been
12 letting us slide on the rent here since this accident so
13
14
that we'd have enough to pay for my prescriptions and
things, you know, since I haven't been able to work. And
15 that's basically the kind of relationship we've had with
16 him for the most part, you know, since we've been there.
17
Q
He was lenient and let some rent slide back in
18 1997 too?
19
A
He must have. I'm sure he did, because she
20 wouldn't have been able to pay the whole thing by herself.
21 So I'm sure he did.
22
Q
You are paying rent now though, I understand,
23 are you not?
24
25
A
We were able to give him a couple months there
a while back, but he's letting us -- he hasn't pushed us
"--'
--
o
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7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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23
1
2
3
4
for the recent since the accident, so that we could have
enough money to get my medication and things, you know.
Q The medication you're referring to, that's
different medication than your Haldol?
5 A I'm talking about Dantrium, muscle relaxer,
6 pain pills.
Q After your treatment at the Dual Diagnosis
program, what did you do after that in terms of employment
or not employment?
A That's when I went to work for Omex
International. That's when I started with Omex.
Q Okay. And that was cleaning, office cleaning?
A Yeah.
Q And that would have been late 1997, early
1998?
A Right.
Q How long did you work there?
A I just worked for them a few months. What
happened, they had a contract with Ralston Purina, and some
of the people that they were sending over there that were
working -- I was working more hours than the rest of them,
than any of the other ones. Some of them that they were
sending over there in the evenings were messing up, they
weren't doing a good job, and they lost the contract. And
when they lost the contract, I had to find something fairly
o
~
2
3
4
5
6
7
8
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12
13
14
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22
23
24
25
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24
fast, so I went to work as a security guard for Advance
Security, also at the Ralston Purina plant in
Mechanicsburg.
Q Is that where you were working when the
accident occurred?
A When I had the accident, right.
Q What were you earning at the time of your
accident?
A I was bringing home -- well, I was getting a
lot of overtime. I was bringing home about $~200 a month
because I was working, getting quite a bit of overtime.
Q Do you recall in September ~999 what your
hourly rate was?
A Yeah, it was about like 7.75 an hour.
Q
Your overtime hours, would that have been
approximately ten hours a week or more?
A Usually it was more than that a lot of times.
Q About how many hours a week would you say you
worked?
A Maybe 16.
Q 60?
A
16.
16 extra hours?
Yes.
So approximately 56 hours a week?
Q
A
Q
~
o
o
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
25
A Something like that, yeah.
Q How long had you been the security guard
before your accident?
A Well, it would have been about a year, little
over a year I guess it was. I remember -- here again, I
have trouble remembering all these dates. My life, like I
say, has been so confused. It's been a mess, you know.
(Brief pause taken off the record.)
BY MR. RUHL:
Q So you think you were working for the security
position about a year before your accident on September 1,
1999?
A
Q
A
Right, right.
When did you move into the Apartment Number 1?
We've been in there, let's see -- it's been
16 about three, four years that we've been in that apartment,
17
18
19
20
21
22
23
24
25
I think.
Q
A
Q
So you would have moved --
So it would have been around '96 maybe.
Do you recall, was that before your incident
at the Chateau were you living in that apartment then?
A Yes, yes.
Q What were the general conditions of the
apartment regarding maintenance and upkeep in this
Apartment Number 1?
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A Well, it was in pretty bad shape as far as the
2
walls and the doors and things like that. Because the
3 people that had been in there before had three or four
4 kids, and they just used to just let them pretty much run
5 wild. You know, they didn't want too much discipline.
6 Q What were you paying in rent when you moved
7 in?
8
A
In Apartment Number l?
9
Q
Yes.
A
450 a month.
Q
Is that the same rent you pay now?
A
Right.
Q How, the condition that you just described,
was that the condition of the apartment when you moved in?
A
Yes.
Q
Did you make any repairs to the apartment
l7 yourselves?
l8
19
A
No, not really.
Q
What repairs, if any, did Mr. Harbilas make to
20 the apartment?
2l
A
Well, he didn't really do much of anything
22 there either.
23
Q
Is it in the same condition today that it was
24 when you moved in?
25
A
For the most part.
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27
1
Q Did you hear him describing the new electric
2
wires put in to the apartment?
3
A
Yes.
4
Q
Was that when you were living in the
5 apartment?
6
A
No.
7
Q
That was prior to?
8
A
Yes.
9
Q
What about a new kitchen, do you have any idea
10 when that was put in?
11
12
13
14
15
16
17
A
I have no idea.
Q
Was that prior to when you moved in?
A
Yes.
Q
The same thing with the washer and dryer?
A
Yes, they were already in.
Q
Who does the repairs to the apartment?
A
Well, like Louie said, Mr. Harbilas said, he
18 does little things like if the faucet is leaking or things
19 of that nature, you know. But right now -- like he did
20 have guys in there, guys working on the windows, around the
21 windows, and he had some guys that came and were working on
22 the pipes underneath the kitchen sink, but they didn't know
23 what they were doing, you know. And most of them don't do
24 a very good job.
. .
25
Right now, there's no -- like he said, the man
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28
1
he had taking care.of the appliances, getting his
2
appliances from and everything, went to California, so he
3 has nobody right now.
4
Q
Do you remember what that man's name was?
5
A
All I know is his first name was Steve. I'm
6 not sure what his last name was.
7
Q
Now, were there specific instances of repair
8 requests that you or Mrs. Stroble made to Louie?
9
Since we've been there, well, I asked him, the
A
10 ceiling is coming down in the bathroom. I asked him about
11 that a number of times.
12
13
14
15
16
Q
What did he say?
A
Not much of anything.
Q
I assume he has not fixed it?
A
No.
Q
Any other requests for repairs that you have
17 requested?
18
A
No. Usually -- well, the light went out.
19 There was a hood thing over the stove that has a fan and
20 the light. Well, the light switch stopped working, busted
21 some time ago, and I mentioned that to him. But, like I
22 say, he doesn't really have a working agreement with any
23 particular appliance dealer right at the moment, to the
24 best of my knowledge.
25
You know, as far as when it's leaking under
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29
1
the sink and this and that, he just came and just kind of
2
pushed it up there. Didn't do of much of anything to it.
3
This was the helper?
Q
4
A
No this --
5
Q
Louie himself?
6
Louie himself, yeah. We haven't really
A
7 complained too much about, you know, we haven't really had
8 too much to complain about as far as any major repairs
9 since we've been in there.
10 Like I said, usually if there's a problem, I
11 call him at the restaurant, you know, try and get ahold of
12 him.
13
14
Q What about outside maintenance of the
apartment, have you ever requested anything outside to be
15 done?
16
17
A
Not us personally, no.
Q
Do you know other tenants who have requested
18 that?
19
20
A
I have no idea.
Q
We've tried to name the tenants. Do you
21 know Jennifer's last name who used to live in Apartment
22 Number 2?
23
24
25
A
No, I don't.
Q
Do you recall when she lived there? She was
living there when the accident happened?
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1
A
Yes.
2
Q
Do you remember her friend's name?
3
A
Amy.
4
Q
Do you remember Amy's last name?
5
A
No.
6
Q
Is it your recollection that Apartment 3 may
7 have been empty in September of 1999?
8
A
I have no idea. I haven't been around the
9 back of the building for I don't know how long for any
10 reason.
11
Q
Do you know the neighbors or did you know by
12 name your neighbors who lived there in September 1999?
13
14
A The only ones that we really know to talk to
as far as their names and everything are Brian Wite and
15 Monica Cox who live in Apartment Number 5 and John Dressler
16 who lives in Apartment Number 6.
17
18
19
20
21
Q
D-r-e-s-s-l-e-r?
A
Yeah.
Q
And John, Monica and Brian still live there?
A
Yes.
Q
Do you know who the people were living in
22 Apartment Number 8 that Mr. Harbilas was referring to?
23
A
I have no idea. All I know -- like I say, I
24 haven't been around back. It had been quite some time
25
before I had been around there even prior to the accident.
I
o
o
0:
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.-
10
31
1
Since the accident, I haven't, you know, been back there at
2
all.
3 But all I know is there's three or four young
4 Egyptian gentlemen living in Apartment Number 4, but I have
5 no idea what their names are or anything else.
6
Q
Before your accident, when was the last time
7 that you had gone back behind the building?
8
A
Oh, gee. I would say at least, it was
9 probably at least three, four months anyway.
Q
Which way did you go behind the building?
11 Describe right or left facing the front of the building.
12
13
14
A
Facing the front of the building, I went
around the left side usually. Closest to our apartment.
Q Okay. Does the left side of the apartment, is
15 there a walkway or a driveway there like there is on the
16 right side?
17
A
There's a walkway, but there's no driveway.
18 It's just grass.
19
Q
Approximately how wide or how much distance
20 between the edge of your apartment and the next property
21 line?
22
23
24
25
A
You mean on the side
Q
On the left side.
A
On the left side?
Q
Is it sufficient to drive a car through?
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32
1
A
No.
2
Q
Okay.- Do you recall were there any witnesses
3 to your accident?
4
A
Not that I know of.
5
Q
Other than yourself, Mrs. Stroble and
6 Mr. Harbilas, do you know any other people who have any
7 knowledge or facts about the accident?
8
Not to the best of my knowledge.
A
9
There were ambulance people that came?
Q
A
Right. Well, there were -- Louie,
11 Mr. Harbilas, mentioned too, there were -- I remember there
12 was a couple people from around the back that came out
13
14
there. And I can remember him saying to one of them to
call 911, but the way I was laying there and things, I
15 couldn't tell for sure who they were or who he was talking
16 to or anything, you know. I just heard him.
17
Q
When you were laying on the chair on the
18 sidewalk, were you facing or was your head pointed toward
19 the back?
20
A
I come down like this on the left side of my,
21 on my left side, and my legs were up over the bottom part
22 of the chair after it tipped over. My legs were up over
23 the bottom part of the chair.
24
25
Q
And your head was in the direction of the rear
of the building?
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
o
o
33
A
Q
Right, right.
And your head was still laying on the concrete
sidewalk?
A Right, right.
Q And your face was facing toward the driveway,
not the building?
A Right.
Q Mr. Harbilas came to your aid, is that
correct?
A Yes.
Q When did you first -- how did you know it was
Mr. Harbilas?
A Well, I had yelled -- I was yelling help. I
yelled help, I don't know, a few times. Then I yelled for
Louie, then I yelled for her. She was inside the
apartment, couldn't hear me. And I kept yelling for Louie
because I knew from his car having me blocked in, I knew he
was around there somewhere, so I kept calling for him.
When he came up alongside me, you know, I was
alert and everything.
Q
A
You could see him?
I could see him, yeah, but I just couldn't
move, you know.
Q You're wearing glasses today?
A I wasn't wearing them that night.
I just need
o
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-
o
34
1
these for reading. I don't use them when I'm driving or
2
anything.
3
Q
So your glasses didn't break or falloff when
4 you fell?
5
No.
A
6
Q
So you could make him out clearly, you could
7 identify him?
8
Right. Right. He had a flashlight in his
A
9 hand when he came up there. He said something about he got
10 it from one of the people in the back I guess or something,
11 but I know he had a flashlight with him when he came up
12 there to the chair where I was laying.
13
14
15
16
17
18
Q Have you talked about the accident with anyone
else besides your attorney, Mrs. Stroble and Mr. Harbilas?
A
No, not really.
Q
And aside from your doctors?
A
Right.
Q
What were your physical injuries as a result
19 of the accident?
20
A
Well, I had contusions on my head and on my
21 wrist, and I bruised my spinal column.
22
Q
The injury to your spinal column was what was
23 preventing you from moving on September 1999?
24
25
A
From what the doctors told me later on, yeah.
Q
Were they your only injuries?
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
o
o
i
35
A Yeah. Well, I still have numbness in my hands
and in my feet.
Q Which are continuing from the injuries to your
spinal column and your contusions?
A Right, right.
Q Okay. What hospital did you go to?
A Harrisburg.
Q That's where the ambulance took you?
A Yes.
Q
A
You had surgery there?
Cervical surgery, yeah.
Q Do you recall who your surgeon was?
A Yes, Dr. Ostdahl.
Q Was there something about the first doctor
couldn't do the surgery?
A Yeah, Dr. Moore was supposed to do it, and
evidently he had a heart attack while he was scrubbing up.
Q How soon after your admittance on September
1st was the surgery?
A I think it was on Labor Day, which would have
been
Q It was a couple days later?
A Yeah. Yes, I think it was on Labor Day.
Q Do you recall what the doctor operated on or
what he did?
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36
1
A I remember him saying that he had to get in
2
there and remove some of the pressure in my spine, you
3 know. What he cut out of there, what they call it or
4 whatever, I don't know.
5 Q How long approximately were you admitted as a
6 patient in the Harrisburg Hospital?
7
I guess I was there -- gee, I don't know,
A
8 maybe four or five days I think before they sent me over to
9 Mechanicsburg HeathSouth.
Q
Was Dr. Roger Ostdahl the only doctor that
11 treated you?
12
13
14
A
He was the surgeon. He's the only one that
operated on me.
Q Was he the primary doctor that you had, seeing
15 you at that time?
16
17
A
At the Harrisburg Hospital, yeah.
Q
And you were there for approximately four or
18 five days?
19
20
21
A
I think that's what it was, yeah.
Q
Where did you go to after that?
A
Went to HeathSouth Rehabilitation in
22 Mechanicsburg.
23
24
25
Q
And you were there for a number of months?
A
I was there for about a month.
Q
That was for therapy and follow-up treatment?
~~
o
o
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4
10
37
1
A
Right, right.
2
Q
What type of therapy did you receive?
3
Oh, well, they had me doing leg exercises, and
A
4 physical therapy and occupational therapy both, you know,
5 trying to work with my hands and things. Used do exercises
6 with my head for my neck. It started out, they had me in a
7 wheelchair, and then I had a walker, I used a walker.
8
You're using a cane today, I see?
Q
9
A
Yes.
Q
Before September 1, 1999, were you using a
11 cane?
12
13
14
15
16
A
No.
Q
Did you have any impediments to your ability
to walk?
A
No.
Q
What was your health generally prior to
17 September 1, 1999?
18
19
A
It was good.
Q
And the only health problems you had was the
20 treatment that you were receiving for your --
21 A Paranoia schizophrenia, right.
22 Q How have your injuries progressed in terms of
23 healing? You said you started out in a wheelchair, went to
24 a walker, now you're using a cane.
25
A
Yeah. Well, right now it seems like since
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38
1
after they gave me therapy the month, whenever it was when
I was in rehab in Mechanicsburg. Then I went to outpatient
2
3 therapy in Wormleysburg which is also HeathSouth.
4 That's where, after I was there about maybe a
5 month or so going over there, the one physical therapist
6 prescribed a cane for me. I was going -- they would take
7 us over to the swimming pool and do exercise in there and
8 different things.
9 What I'm getting at is, I went there -- our
10 insurance paid for a month, and vocational rehabilitation
11 paid for another couple months, so I was going there for
12 about three months altogether. But now it seems like the
13
14
last few months I'm kind of at a standstill, you know.
It's like I'm not necessarily getting a whole lot worse,
15 but I'm not necessarily getting very much better either,
16 you know.
17
Q
You're still going through therapy and the
18 treatments?
19
A
No. See, our insurance would only pay for a
20 month, and then vocational rehabilitation paid for two more
21 months. That's all they'd pay for.
22 Q You were describing your recovery being at a
23 standstill because you haven't been receiving the
24 treatments?
25
A
No, not really. It was pretty much the same
o
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1
2
3
4
5
6
7
8
9
10
39
the last couple months of therapy, you know.
Q Are you expecting improvement?
A
I'm hoping. I hope so.
Q
What do your therapists advise you?
A
I'm not seeing anyone right now.
Q
Why are you not seeing anyone right now?
A
Our insurance wouldn't
Q
So it's a financial issue?
A
Right, mainly, yeah.
Q
Are you doing any exercises at home on your
11 own?
12
13
14
A
Not a whole lot, no.
Q
Why is that?
A
I try to do what I can with my arms and hands
15 and things, you know. And I walk around, I'm able to walk
16 around the apartment without the cane, you know.
17
18
19
20
21
Q
You are able to walk around the apartment?
A
In the apartment.
Q
Without the cane?
A
Without the cane, yeah.
Q
Did the physical therapy people give you any
22 suggestions for home exercises to do?
23
24
25
A
Yes.
Q
Do you do those?
A
I've been trying to.
.
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
40
Q What types of things have they suggested?
A They gave me some Theraband to use, what they
call a Theraband to use for my arms, and some Theraputty to
use for my hands, work with my hands, some leg exercises.
Basically, I have the numbness in my hands and in my feet.
And it seems like the more I do with my hands especially,
the worse the numbness gets, you know.
Then I always have constant pain and
discomfort in my back and in my pelvic area, particularly
on the left-hand side, which tends to throw my balance off
a little bit when I'm trying to walk a little bit in
there. It hurts me when I'm walking, you know.
Q Is it your intention to go back to therapy if
you had the insurance or the money to do that?
A I hadn't thought about it really.
Q Do you think you have reached the end of your
physical therapy treatment?
A Well, they seem to think they had done about
as much as they could.
Q Who led to you that conclusion?
A The therapists at Wormleysburg.
Q What medications are you taking presently?
A The Dantrium, Vicodin, Neurontin.
Q
A
And still the Haldol?
Yeah.
A"'"tl
V
o
o
10
11
12
13
14
41
1
Q Did you have a primary physical therapist at
2
Wormleysburg?
3
There were a couple different ones that worked
A
4 with me for the most part. One of them was Jamie, and the
5 other one was Penny, but I don't know their last names.
6
But you didn't really have one set therapist?
Q
7
No.
A
8
Q
When you were at Wormleysburg, did you make
9 day trips there, or were you actually a resident?
A
NO, I was making day trips.
Q
And Mrs. Stroble took you?
A
They would pick me up in a van. They had a
van they'd pick me up in.
Q Now, we talked about your mental condition
15 that you had prior to your accident on September 1. What
16 was your mental condition generally prior to the accident?
17
18
A
Good. I was getting along real well.
Q
How was your mental condition affected by your
19 accident?
20
A
Well, right now the anxiety has started to
21 increase again because of the constant discomfort, pain, to
22 a certain degree or another, and the numbness and
23 frustration and everything else, you know, has kind of made
24 the anxiety problem get a little worse again.
25
Q
And you were describing a frustration. That
o
0,
^
o
, ~ .
10
11
12
13
14
15
16
42
1
would be the frustration associated with the recovery?
2
A Right.
3
Q
Have you suffered any disfigurement as a
4 resul t --
5
A
No, no.
6
Q
No scarring?
7
A
No.
8
Q
Are you still treating with any physician, any
9 doctor?
A
Just our family doctor.
Q
Who is that?
A
Dr. Snoke, S-n-o-k-e.
Q
Where is Dr. Snoke's office?
A
He's on Carlisle Road in Camp Hill.
Q
How often do you see Dr. Snoke?
A
I haven't seen him since -- it's been a couple
17 months, two, three months.
18
19
20
Q
So you're presently not --
A
I'm presently not seeing anyone.
Q
Is that a financial reason or because of where
21 you've recovered to?
22
A
A little bit of both. I was seeing the
23 urologist there for a while and everything too, you know.
24 But there just doesn't seem to be a whole lot more. They
25
just keep telling me it's just going to take time. A lot
~~"
o
o
0,'".,"
. .
~.
43
1
of it is residual effects of the accident and my injuries,
2
you know. Just going to take time.
3 Q What was the treatment with the urologist for?
4 A Because I was having problems with my
5 bladder. I was incontinent for a while when I first got
6 out of rehab. Now my bladder, what it is, it can't hold a
7 lot of fluid at one time, so now I'm able at least to
8 control it for the most part but I have to go so
9 frequently. A lot of times when I'm at home I have to go
10 maybe every half an hour or so sometimes, you know.
11
Q
How do you believe that condition is related
12 to the accident?
13
14
15
A
That's what the urologist told me.
Q
What did he tell you?
A
Couple of the other doctors. It's because of
16 the damage to the nervous system in my spinal cord or
17 whatever.
18
Q
Do you have plans to obtain further treatment,
19 physical therapy, for example?
20
21
22
23
A
I didn't have, no.
Q
Do you today?
A
NO, not really.
Q
Do you think any of your injuries are
24 permanent?
25
A
(No audible response.)
0 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
0
21
22
23
24
,5
44
Q Do you know?
A I don't know really. The doctors can't really
answer that completely either.
Q Have you asked your doctors that question?
\
A Yes.
Q What have they said?
A They said, like as far as the numbness and
things in particular, might just be there.
Q Which doctor would have said that?
A Dr. Ostdahl and Dr. DeFalcis up in
Mechanicsburg.
Q At Mechanicsburg
A Rehab.
Q Now, you described fairly well for me your
incontinence. What other bodily functions have been
affected by your accident?
A Well, my bowels were affected, but I've got
them pretty well regulated anymore. I was always having
bowel accidents and everything there too when I first came
home. Now, with that, I'm taking two stool softeners with
a laxative every morning, and I've been fairly able to
control it.
Q That again is related to the damage to your
nervous system?
A Right.
.
", ~~
c.,.,'."
" ,i
o
o
10
11
45
1
Q
Which doctor would have explained that to you?
2
A
Dr. DeFalcis I guess would have been the main
3 one.
4
Q
He's the urologist?
5
A
No. He did too. That was Dr. Smith. But
6 Dr. DeFalcis was my therapy doctor at Mechanicsburg rehab
7 has been.
8
Q
How has your daily life-style been affected by
9 your injuries?
A
I don't have a life-style.
Q
What types of things did you do before the
12 accident that you can not do today?
13
14
A Well, at least I would go out for a walk or go
out walking. Of course, I was working, able to go to work
15 and things, you know. I was able to do a little more
16 around the house, around the apartment.
17
Q
What types of things did you do around the
18 apartment before your accident?
19
A
Well, it's been a while, but I had done some
20 of the cooking and things. You know, like running the
21 vacuum cleaner.
22
Q
Did you and your wife go bowling or engage in
23 any of those type of activities?
24
25
A
No, not really.
Q
What type of leisure activities did you do
~ ,
,,0'
---.-
o
o
'!l"
46
1
prior to the accident?
A We really, with the way we were both working,
2
3 we really weren't doing too much of anything.
4
Q
You were working is that third shift?
5
A
So was she, but see, she works -- two days a
6 week she works 3:00 to 11:00 which really -- lot of times
7 when we would have some time off, with me I was working a
8 lot of overtime, lot of times when we would have a little
9 time off, we'd be sleeping a good portion of the time, you
10 know.
11
12
13
14
15
16
17
18
19
20
21
Q
Have you calculated your wage loss on a yearly
basis as a result of the accident?
A It would be probably about 12,000.
Q A year?
A Yeah.
Q Your recollection though of your earnings in
your prior testimony was approximately 1200 a month?
A
Yeah.
Q
That's what you were making?
A
Yeah, about that.
Q
And you haven't worked at all since the
22 accident?
23
A
No. Well, I went back, I tried it for about a
24 week, and I had too much pain and discomfort. Too much
25
sore with my hands and things.
01
0"',',,',
~ .'
o
47
1
Q Have your doctors indicated if there's any
2
type of employment that you might be able to pursue?
3
A
Dr. DeFalcis seemed to think I could go back
4 as a security guard. Well, that's what I tried, you know.
5
Q
How long ago was that, that effort?
That was back in the first part of March.
Are you thinking of trying it again?
Not really.
Is your employer receptive to having you
10 return and come in, working for them?
11
12
13
14
6
A
7
Q
8
A
9
Q
A
Q
A
Q
15 Ralston?
16
17
A
Q
No.
Why is that? Did you understand the question?
Can you repeat that.
You were working as a security guard for
Right.
If you wanted to try to go back to work, would
18 they be willing to let you come in and start again, do you
19 know?
20
21
A
Q
I don't know.
Has anyone, other than Mrs. Stroble, assisted
22 you at your home recovery?
23
24
25
A
Q
A
No.
What types of things has she done for you?
Well, she's been doing all the housework and
~
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
o
o
48
the cooking and everything. She had been taking care of my
pills, but I manage now. The numbness has diminished just
a little bit enough for me to prepare my pills, you know,
to put them in the boxes for when I take them.
Q Did you say pills, P, or bills, B?
A pills. But she has to empty -- I have to use
the potty chair at night because I can't move around well
enough at night when I have to get up and go to the
bathroom. So I use a potty chair in the bedroom. She has
to empty the potty chair.
Q And that's because you're stiff or it's more
difficult to move in the evening?
A It's more difficult when I get up in -- I have
to get up in the middle of the night all the time.
Q How often or how many times a night must you
wake up?
A Oh, usually, two or three anyway.
Q Prior to this accident on September 1, 1999,
had you ever been involved in an accident or fall before?
A No.
Q I take it you were never involved in a lawsuit
before?
A No.
Q Did you ever make a claim for injuries or
compensation before?
-,.
0,",'
:. ~~
o
0;
.'
10
11
12
13
14
15
1
A
Q
A
Q
A
Q
A
Q
A
Q
Dr. Snoke?
A
Q
A
2
3
4
5
6
7
8
9
16 co-payment.
17
49
No.
Who is paying your bills now?
My wife.
That comes from her working employment?
Right.
Does Mrs. Stroble have medical insurance?
Right.
Does her medical insurance cover you?
Yes.
So your visits to your family doctor,
Yes.
Who is that paid by, your wife's insurance?
Yes.
MRS. STROBLE: Yes, but it's a $15
THE WITNESS: She has a co-payment.
18 BY MR. RUHL:
19
Q
Okay. Do you receive any other type of income
20 or disability or pension besides what Mrs. Stroble earns?
21
22
A
Q
No, no.
Did you hear the question to Mr. Harbilas
23 before by Mr. Henning about any conversations you would
24 have had with Mr. Harbilas about the accident? Did you
25
hear him answering those questions?
-
o
0'.,.,,".'
. ,"
o
50
1
A
I really haven't talked to him.
2
Q
Do you remember Mr. Harbilas saying that the
3 only question he asked you was why on September 1 were you
4 leaving at 10 o'clock as opposed to later?
5
A
Well, he ,was wrong about that. She can tell
6 you, I always left about 10:15 or so, 10:00, 10:15, because
7 I like to get there early. You know, I usually go in and
8 get a report from the guy I was relieving and drink a soda,
9 so I always -- very seldom, very seldom did I ever leave
10 later than 10:15, 10:20, somewhere around there.
11
Q
Who is the gentleman that you relieved, the
12 security guard that you relieved at work?
13
14
A
That night?
Q
Was it the same gentleman usually that you
15 relieved?
16
A
I don't remember. I can't remember if it was
17 or not.
18
Q
Do you remember any of the names of the
19 individuals that worked the shift as a security guard prior
20 to you?
21
A
Yeah, Marty was one of them. He's the one
22 that was usually there.
23
24
25
Q
What was Marty's last name?
A
Bernheimer (phonetic spelling) .
Q
When is the last time you talked to Marty?
~ ~ -
_ :c._'~
o
o
0",'
..
10
11
12
13
14
51
1
A Well, it would have been about a week before
2
the accident, so, maybe the end of August of '99, somewhere
3 in there.
4
Q
Who was your actual employer when you were
5
working at the?
A Advance Security.
Q What is their address?
A They're on -- I can't remember the number.
They're on Locust Lane in Harrisburg.
6
7
8
9
Q
night?
A
Q
A
Q
A
And you were to start work at 11 o'clock that
Right.
Had Mr. Harbilas ever parked you in before?
Yes.
16 Well, he'd be there, you know, wanted to visit
17 somebody or see about some rent or maybe something needed
18 repaired or something like that.
19
Q
When I said parked in, were you actually
20 trying to leave or move your car at those times?
21
A
I was getting ready
I would be getting
22 ready to at different times, yeah.
23
24
25
Q
What did you do on those circumstances?
A
Same thing I did on the night of the
accident. If he wasn't -- if I didn't see him anywhere
, .
- ~~
.0
o
0...".
,
10
11
12
13
14
15
16
52
1
around, I'd go checking one of the other apartments trying
2
to find him.
3
Q
What did you do on the night of September 1,
4 1999, when you saw that Mr. Harbilas had you parked in?
5
A
I walked around the side of the building
6
looking for him.
Q Did you go around the left side first?
A That's a confusing issue there.
Q Is it confusing for you in terms of your
memory, you mean?
7
8
9
A
My memory, yeah.
Q
Okay. Well, let's start first, approximately
what time did you come out of your apartment?
A It was about 10 o'clock.
Q
The first thing you did was what?
A
I went to the car because I had my glasses,
17 had my glasses -- I will wear them until I got in the car,
18 you know, then take them off, lay them on the seat so I
19 wouldn't have to carry my glass case, because I needed them
20 once I got to work to read and things, you know.
21
So I went to the car first. I saw he had me
22 blocked in. I saw it was Louie's car or one of them. I
23 went to the car first, and I had a soda also. I put the
24 soda and my glasses in the car. Then I walked around the
25
, ~
side of the building hunting for him.
~
o
o
o
1
2
3
4
5
6
7
8
9
10
53
Q You were wearing your glasses when you came
out of the house?
A Yeah.
Q So you really only take them off to drive?
A I only need then when I read. I just put them
on instead of carrying them so I didn't have to take my
glass case, you know. Because, like I say, I don't wear
them while I'm driving, but I would have needed them once I
got to work to do the paperwork and things.
Q Is your vision the same today and as it was on
11 September 1, 1999?
12 A Yes.
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Why are you wearing your glasses today for the
deposition?
A
Because I wasn't sure if I'd have to read
something or not.
Q But you can see me fine with your glasses?
A Oh, yes.
Q And you can likewise see me fine without your
glasses?
A Yes.
Q Are they bifocals?
A Yeah.
Q Now, where was this chair that you fell over?
A It was sitting on the sidewalk along the side
,..,.,.. ....\
W
[0
r';\
W
,
54
1
of the building.
2
Q Mr. Harbilas testified that it was
3 approximately under the first window. Is that consistent
4 with your recollection?
5
MR. HENNING: Is it all right if I show him
6 the photographs?
7
MR. RUHL: Yes.
8
THE WITNESS: It probably wasn't much further
9 back than that. It was somewhere I would say, yeah,
10 between the first and second window, somewhere right in
11 here.
12 BY MR. RUHL:
13
14
15
16
17
18
Q How far from the corner to the first window in
terms of feet, do you know?
A
I have no idea.
Q
Okay.
A
I don't know.
Q
But your recollection is, where you fell was
19 somewhere between the first and second windows?
20
21
A
I would say so, yes, somewhere right in there.
Q
Do you know where your car was parked? And we
22 have some photos there.
23
A
Yeah, see, I was over here, like right in here
24 somewhere.
25
Q
On the far left of the picture?
~~I~
,
o
o
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
25
55
A Yeah. I couldn't see around. Like I say, I
had no idea it was there. They all say -- because I
haven't gone around either side of the building for so
long, I had no idea that it was over there, you know, until
the night it happened.
Q Had you ever even seen that chair?
A I had never even seen it, no, no. Like I say,
I was parked over here, and usually when I drive when I
come home, I usually back in. And I just had no idea it
was there.
Q Before September 1999, when you came home to
your apartment and when you left from your apartment, did
you exit and enter from the left side of the photo or the
right side?
A
Q
left?
A
Q
A
Q
From over here.
So most of the time you were coming from the
A
No, no.
. ..
,.,.,... ... '.',
"
0,..:
. .
o
::~_1:
56
1
Q
Okay.
2
No.
A
3
Q
Now, what did you do when you saw
4 Mr. Harbilas' car had you parked in?
5
To the best -- as well as I can remember, I'm
A
6 pretty sure -- I don't remember walking around the other
7 side of the building. I don't remember doing that. I
8 honestly don't. I just went from the car, you know, walked
9 around the right side of the building as I'm facing the
10 building, the right side where the chair was going back to
11 hunt for him out in the back.
12
13
14
Q
Now, were you in a rush at this time?
A Not really, no, because I had plenty of time
to get to work. It would only take me 10 or 15 minutes to
15 get over there.
16
17
Q
Would you say you were walking normally?
A
I might have been walking -- I don't know. To
18 me it was normal, you know.
19
20
21
22
Q
You certainly weren't running?
A
NO, definitely not.
Q
Would you say that you were walking fast?
A
She says I walk fast all the time. I have
23 long legs, you know. I don't know. I don't think I was
24 walking, even walking that fast, but when I came up -- it
25
was so dark, I never saw this chair.
o
o
o
~~
1
2
3
4
5
6
7
8
9
10
57
And when I came up on it, first thing I felt,
felt my knees hit against something, and I felt myself
going forward, and I put my arms out like this
(indicating), you know. At that point I wasn't sure what
it was. I just knew I walked into something, you know.
I put my arms out like this, and when I did,
they hit the back -- the top of the chair like up here, and
it just tipped over on me, you know.
Q Can you describe the position that the chair
was seated on the sidewalk?
11 A It was sitting.
12 MR. HENNING: Maybe you can use your chair to
13 demonstrate.
14
15
16
17
18
19
20
21
22
23
24
25
THE WITNESS: This would be the right side of
the building as I'm coming around.
BY MR. RUHL:
Q The wall of the conference room would be the
wall of the building and the sidewalk would be here
parallel to the wall?
A I can do it easier this way. You're confusing
me.
Q Sorry.
A Okay, I'm coming around the corner on the
right side of the building facing that way, and this is the
way the chair was sitting. See, it was sitting with the
,c
.-,
"~'-=--
~
w
^
v
o
. ,-
13
14
15
16
17
18
19
20
58
1
seat facing towards me, and I came around the side of the
2
building.
3
Q
Okay, okay. Was the arm of the chair that was
4 closest to the building, was that adjacent or beside the
5 building, or was there room between the chair and the
6 building?
7
A
I don't know. It was so wide -- it was wide
8 enough that there couldn't have been too much room between
9 the arm and the building.
Q
A
Q
A
Q
A
Q
chair?
A
Q
chair?
A
Right.
Which would be the seat portion of the chair?
Right.
And fell over the backrest portion of the
Right, right.
Now, why do you think you toppled over the
22 the seat, I felt myself falling forward, and I went like
23 that (indicating), to brace myself, you know. Like I said
24 at that point I still wasn't even sure what I walked into,
25
you know. And just from that point out, it just happened
.. .
~."
v
o
o
-;,~<.~.
10
11
59
1
so fast, it just -- you know, the chair and I both just
2
went forward all the way down on the sidewalk.
3
Q
Now, were there lights in front of the
4 apartment?
5
A
No. They have lights at each door, but there
6 wasn't any lights turned on that night, the night it
7 happened.
8
Q
What about the streetlights?
9
That's no help whatsoever.
A
Q
Why is that?
A
It's just dark, you know. It doesn't throw
12 enough light. You know, it's across the street. Like I
13
14
said,
I never saw the chair.
Q I can understand your testimony that you never
15 saw the chair, but I'm trying to understand why this
16 particular evening was so dark that the chair was not
17 visible to you. Can you answer that question?
18
A
I don't know. Didn't seem any darker than it
19 normally would, I wouldn't think.
20
Q
When Mr. Harbilas testified, he recalled the
21 moon being out that night.
22
A
I don't remember anything about the moon.
23 There wasn't any light, I know that.
24
25
Q
And by your testimony, by that I'm assuming
you're referring to the artificial light. There was no
~~
~- ",
0',
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,,'
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60
1
artificial light there illuminating the path?
A I didn't see any artificial or natural light.
2
3
Q
But isn't it your recollection that on most
4 evening there's light that permits you to see objects in
5 your pathway?
6 My question is, what were the lighting
7 conditions at the time, or lack of lighting conditions,
8 that prevented you from seeing this chair?
9
I don't know. Any other night I probably
A
10 wouldn't have seen it either.
11
12
13
14
15
16
Q
Why is that?
A
It's too dark.
Q Now, is it lighter around the front of the
building than around the side?
A
Yes.
Q
Where did the light come that was in the front
17 of the building?
18 A From the streetlight across the street, you
19 know. There's one right across the street from our
20 apartment.
21
Q
And that would be more or less in front of the
22 left side of the building?
23
24
25
A
Right, right.
Q
Now, did you know that it was dark around the
corner of the right side of the building when you walked
~~
o
o
C'.'........I
,
.".
61
1
there?
2
A
Well, sure, I knew it was dark, you know. I
3 knew he didn't have any lights over there or anything.
4 That's why I say, I wasn't even really walking that fast
5 actually, to be honest about it. At least, I don't think I
6 was.
7 Q Could you see the walk when you turned the
8 corner? Was there enough light to see the walk?
9
I wasn't looking down. I could feel it was
A
10 there under my feet, you know. I knew it was there from
11 before, you know.
12
13
14
15
Q
Was it your intention to walk on the sidewalk
or walk on the driveway when you turned the corner?
A To walk on the sidewalk.
Q
How did you know that you were standing on the
16 sidewalk?
17
18
19
20
A
I could tell by the feel under my feet.
Q
But could you see the sidewalk?
A
(NO audible response.)
Q
If you looked down, was there enough light to
21 see the sidewalk?
22
A
I wasn't really looking down, you know. I was
23 looking straight ahead. I don't know how to explain it.
24
25
Q
NOW, it was noticeably darker around the
corner when you turned?
~
o
o
0....'...
:. l
I-~-
1
2
62
A
Yeah.
Q
Did you give your eyes any opportunity to
3 adjust to the change of light when you turned the corner?
4
5
A
I didn't stop. I didn't stop walking, no.
Q
You're familiar with that phenomenon, however,
6 when you walk from a lighted area to a darker --
7
A
It's not lighted that much out front. There's
8 not that much difference. It's enough that you can see --
9 make out the cars, you know, but it's not all that bright.
10 There's not that much difference.
11
Q
And none of the lights in the front of the
12 apartments were on?
13
14
A
No.
Q
Why did you not turn your light on when you
15 walked out?
16
17
A
I usually didn't. I usually don't.
Q
Do you recall that you lost consciousness for
18 a period of time?
19
A
I just kind of blanked out for maybe four or
20 five seconds. That was about it. Not much longer.
21
Q
Do you recall when Mr. Chris Gerfen talked to
22 you in September 17, 1999, right after the accident?
23
24
25
A
Oh, yeah.
Q
Did he have a tape recorder with him?
A
Right.
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And he took a recording?
2
Right.
A
3
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I just sent this to your lawyer over the
4 weekend, so I'm assuming you haven't -- have you ever seen
5 a copy of your statement?
6
A
Yes.
7
MR. HENNING: That's why he had his glasses
8 on. He did read it right before today.
9 BY MR. RUHL:
Q
I just wanted to see -- I brought one too.
11 This has a cover on it that the adjuster had. Then there's
12 a 12-page statement. Can you identify that? Is that what
13
14
15
16
17
you looked at before?
A Yes.
Q
Did you read it before or review it?
A
Yes.
Q
Does that appear to be an accurate recording
18 of your testimony?
19
20
A
It seems fairly accurate, but except --
Q
Are you looking for the description of your
21 accident?
22
23
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Yeah.
Q
I think it's a couple more, this paragraph on
24 page 5.
25
A
Yeah, see, I don't remember if I said that I
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was walking pretty fast or not. I don't remember if I said
2
that or not. I honestly don't.
3 And, like I said, I don't remember going
4 around -- it says, so first I walked around the left-hand
5 side. I don't remember doing that, but I could be
6 mistaken. I'm not sure.
7 Q Your testimony today is you don't recall
8 telling Mr. Gerfen that you were walking pretty fast?
9
A
NO, I might have said that, but I'm not sure.
10 I just don't remember. But like I say, I say pretty fast,
11 to me it wasn't all that fast. I don't know how else to...
12
Q
Okay. Did you have a chance to read over the
13 rest of this statement before?
14
15
A
Yes.
Q
Were there any other changes to it that you
16 wanted to make or that you found maybe --
17
A
NO, the rest of it seems fairly consistent.
18 (13-page typewritten statement, taken by Chris
19 Ge~fen on September 17, 1000, produced and marked as
20 St~oble Deposition Exhibit Number 1.)
21
MR. RUHL: Did you have any redirect for
22 Mr. Stroble?
23
24
25
MR. HENNING: No.
(Brief pause taken off the record.)
MR. RUHL: Of course, when we gave you a
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break, Mr. Stroble, I thought of another question for you
2
BY MR. RUHL:
3
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It's a general one. I think we went around
4 this, but I don't think I got your opinion of what caused
5 this accident. What do you think was the reason, the cause
6 of the accident?
7
I think because something was sitting on the
A
8 sidewalk that shouldn't have been sitting there, which I
9 wasn't expecting to encounter, you know.
Q
There was nothing in the condition of the
11 sidewalk itself?
12
13
14
15
16
A
No.
Q
And in combination of the bad or poor
lighting?
A
Right.
Q
Is there anything else that you can think of
17 why this accident was caused?
18
19
A
No.
Q
Do you remember the names of the two girls
20 that lived in Unit 2? Did I already ask you that?
21
A
Amy and Jennifer. I don't know their last
22 names.
23
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MR. RUHL: I have no further questions.
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BY MR. HENNING:
Q Just one quick one.
Mr. Stroble, when you
3 were laying on the ground and calling for Mr. Harbilas, was
4 there a point in time when you could hear him approaching
5 toward you along the side of the building?
6
A
I didn't hear him until he got right on top of
7 me, until he got right there with me.
8
Q
Was he calling to you as he walked down the
9 side of the building?
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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No, not that I recall, no.
MR. HENNING: That's all I have.
(The deposition was concluded at 5:33 p.m.)
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1
COMMONWEALTH OF PENNSYLVANIA
2
SS
3
COUNTY OF DAUPHIN
4 I, Susan M. Simon, do hereby certify that before
5 me, a Notary Public in and for the County and Commonwealth
6 aforesaid, duly commissioned and qualified, personally appeared
7 LARRY E. STROBLE
8 who was then by me first duly cautioned and (sworn, affirmed) to
9 testify the truth, the whole truth and nothing but the truth in
10 the taking of (his, her) oral deposition in the cause aforesaid;
11 that the testimony given as above set forth was reduced to
12 stenotype by me in the presence of said witness and afterwards
14
13
transcribed by me or under my direction.
I do further certify that said deposition was
15 taken at the time and place in the foregoing caption specified.
16 I do further certify that I am not a relative,
17 counselor attorney for either party, nor am I otherwise
18 interested in the event of this action.
19 IN WITNESS WHEREOF, I have hereunto set my hand
20 this 16th day of July, 2000.
21
22
23
24
25
,~~ ,
NOTARIAL SEAL
SUSAN M. SIMON, Notary Public
Harrisburg, DaUjlhin County
My Commission Expires Oct. 30, 2002
.----7
a1fA4A111, ~
Susan M. Simon
Reporter-Notary Public
The foregoing certification of this transcript does not apply to
any reproduction of the same by any means unless under the
direct control and/or supervision of the certifying reporter.
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ARC61880 ,
ARTHUR REEHER COMPANY, INC.
5721 JONESTOWN ROAD
P.O. BOX 6215
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HARRISBURG, PA 17112
(717) 545-4777
FAX: (717) 545-1496
Recorded statement of
Larry Stroble
taken by Chris Gerfen
on September 17,1999
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September 17, 1999
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MR. GERFEN: Good Morning, my name is Chris Gerfen with the Arthur
Reeher Company in Harrisburg, Pennsylvania. Today's date is Friday,
September 17, 1999, it's about 10:00 -10:30 in the moming. I'm here at
Health South Rehab and I'm going to be speaking to Larry Stroble,
concerning an incident he had which is the reason why he is here. That
occurred on I believe Wednesday, September 1,1999.
BY MR. GERFEN:
I will advise you Larry that I am an investigator representing Millers Mutual
Insurance Company who has a liability policy with regards to an Elias
Harbilas, H-A-R-B-I-L-A-$. I believe he's your landlord?
Yes.
Larry for the purpose of this statement or interview is it okay I call you
Larry?
Yes.
And do you realize I'm recording this statement?
Ves.
Any objections?
No.
Larry we were talking here, are you medicated, do you have a clear mind?
Yes.
Are you taking any prescription medication?
Ves.
As we speak?
Ves.
And what would that be?
They have me on Haldol, progeten, vicodan a couple pain killers they
have me on a muscle relaxer they have me on a stool softeners.
But you feel like you could carry on -
Oh yes.
Pretty good conversation?
Yes.
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If you would please state and spell your name?
First name or last name?
State your full name and spell your last.
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September 17, 1999
A:
My name is Larry A. Stroble, last name is spelled S-T-R-Q-B-L-E.
0: Social security number?
A: 174-36-4263.
Q: Your age and date of birth"
A: My age is 54, my date of birth is September 30, 1944.
Q: Married?
A: Yes.
Q: And your wives name?
A: Shirley.
Q: For the record Shirley is here correct?
A: Yes.
Q: What is your home address?
A: 1107 Rana Villa Avenue, Apartment #1, Camp Hill, Pennsylvania.
Q: Zip code?
A: 17011
Q:
A:
And Rana Villa Avenue, that's R-a-n-a V-i-I-I-a?
Right.
Q: Any minor dependents?
A: No.
Q: Just you and your wife?
A: Yes.
Q: And of course this is an apartment house in Camp Hill?
A: Yes.
Q: And your landlord is this Elias Harbilas?
A: Yes.
Q: Again H-a-r-b-i-I-a-s?
A: Right.
Q: My understanding he goes by Louis or Louie?
A: Louie, yes.
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September 17, 1999 '
PaGe 3
This is an eight-unit apartment building?
Yes.
Q: Basically four units on the bottom four units on the top?
A: Yes.
Q: If you would be looking at your building from Rana Villa Avenue. yours is
the lower left apartment?
A: Yes.
Q: Is there a lease. have you ever signed a lease?
A: No.
Q: Do you pay rent?
A: Yes.
Q: And what is your monthly rent?
A: Four hundred and fifty dollars a month.
Q: Generally how would you describe your landlord as far as taking care of
the property?
A: (laughing) Not very conscientious.
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Why would you say that?
Well there's a number of repairs that have needed to be made around
there ever since we have been there. And he's just not, he doesn't
seemed overly concerned with fixing the place, making the repairs or
keeping the place cleaned up or anything. Most of the cleaning up that
gets done around there, the people that live there, I do, I've done quite a
bit myself since we've lived there.
Do you ever give Louie a call or make a formal complaint?
Oh yes.
Pretty regular?
Well at times it has been fairly regular when we have leaks and water
leaks and things of that nature.
Larry what do you do for a living?
I've been working as a security guard, Advanced Security over Ralston
Purina over in Mechanicsburg.
That's Advanced Security?
Yes.
m
ill
And you're currently assigned to Ralston Purina?
Yes.
SEF 2 9/999
MILLERS MU1'UAL INS. CO,
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September 17, 1999 -
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N> a security guard?
Yes.
Q: Generally what are your duties, what do you do?
A: Weill patrol around the walk area and check the cars and people in and
out and trucks and everything. It depends on what gate your at. The main
gate it's usually the employees but if your assigned to the back gate then
you have to check the trucks in and out trailer trucks a lot of paper work
involved a lot of walking around.
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How long have you worked as such?
I've been there about a year now.
Is this shift work or what shift do you work?
I mainly work the 11 :00 to 7:00 shift. I am the supelVlsor on the 11 :00 to
7:00 shift.
That's 11 :00 at night to 7:00 In the moming?
Right.
Basically it's a forty-hour week or close to it?
Yes, usually a little more then that.
And are you paid by the hour?
Yes.
At a rate of?
Well it varies on the weekends, during the week its $7.50 an hour on the
weekends its $7.75 an hour.
Moving on then I have a date of incident as, do I have a correct date
September 1?
Yes.
Was that a Wednesday?
Yes.
What time of day are we talking about?
It's about 10:00 at night.
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Were there any adverse weather or other conditions?
No, no.
I think the best thing to do Larry at this point. I'm going to back off, so to
speak and what I'd like you to do is give me a detailed unrehearsed
account of what happened. Be as detailed as you can take me from the
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beginning to the end but I'm not, going to interrupt you till your done. Then
I'll have some specific questions.
A: Okay, basically what happened. I left our apartment to leave to go to work
that night like I said it was about 10:00. And our Landlord, Louie Harbilas
he had me blocked in with this car. So first! walked around the left-hand
side of the building and I couldn't find him anywhere. So I came back out
and he still wasn't out front. So by this time I was walking pretty fast,
because I wanted to get to work on time. So I went around the right hand
side of the building and upon doing so I ran into something. I didn't know
what It was at the time, it happened so fast and I just felt myself go
forward and I landed on my head on the sidewalk. And here as it turned
out, I had ran into the, there's a recliner chair sitting in the middle of the
sidewalk. And there is no lighting out there,.on the side of the building IT
was dark I never saw it. And I blanked out for maybe a period of ten or
fifteen seconds. And I blanked out for a period of maybe ten or fifteen
seconds and when I opened my eyes I couldn't move anything I was
totally paralyzed. I couldn't even move my fingers or anything. And I laid in
that position for about for, I laid in that position for maybe ten or fifteen
minutes until our landlord came around and found me. He had a flashlight
with him he came around and found me and someone called 911. And the
paramedics came and they went and knocked on the door of our
apartment and told my wife what happened and everything.
Q:
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And that's basically it?
Yeah.
Let's go back to the beginning you were On your way to work?
Yes.
What time do you begin work at 11 :OO?
Yes.
And how far is your work, approximately?
I usually, about fifteen, twenty minutes away.
You weren't late or running iate nothing like that?
No.
for the record I've previously been at your apartment and took some
photographs, you park in the front there facing the building?
Yes.
And your landlord would have parked basically like a T in front of these
cars?
Yes.
.'
And you couldn't get your car out?
00
SEP 2 9 1999
MILLER. ~
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Yes my head my hands.
Q: And that came from basically from impacting with the sidewalk?
A: Right.
Q: Nobody witnessed your fall or witnessed the incident?
A: No.
Q: The first person to you was Louie?
A: Yes.
Q: And I'm picturing you basically being hung up over this, this was an over
stuffed chair?
A: Yes.
Q: Were you admitted?
A: Yes.
Q: You were probably gone over head to foot you know x-rayed various
tests?
A: Yes.
e Q: And what was a matter with you, do you know or can you tell me in your
own words?
A: The basic problem was that I bruised my spinal column I injured my spinal
column.
Q: How about your head?
A: Yes. Well just superficial wounds nothing the x-rays didn't show any brain
damage or anything.
Q; Before, I want to take a step back if we could. Generally what were you
wearing?
A: I had my unrrorm on. 00 rn @ffiUWJ.OO
Q: What kind of shoes? SEP 2 91999 ~
A: Sneakers, black sneakers.
Q: Were you carrying anything? ,lI.mlF.fl~ MUTUAl INS. CO.
A: No. .
Q: Let's go back while you're in Harrisburg Hospital. Was there any surgery
involved?
A: Yes.
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Q: And the ambulance came and took you where?
A: To Harrisburg Hospital.
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And when was that?
Labor Day.
A few days after?
Yes.
And what was the surgery for?
To remove some of the pressure in my spinal column.
Would this have been up around the top of the spine?
Yes.
Around your neck area?
The neck area yes.
This would be, my understanding being, is Dr. Barry Moore was
scheduled to do the surgery, but he had a heart attack while he was
scrubbing up?
Yes.
His associate Dr. Roger Ostdahl?
Ostdahl.
O-s-t-d-a-h-I, did the surgery?
Yes.
You then were transferred over here to HealthSouth Rehab?
Yes.
When did you come over here?
Laughing.
Well let me ask you this way. How many days after the surgery?
About three days, maybe, two or three days after the surgery I guess it
was.
And at the time you came over here at HealthSouth were you able to walk
on your own?
No.
You were basically bed ridden?
Yes, I'm still not able to walk on my own.
Are you getting around with a wheelchair now?
00 ~ SEP 2 9 !Ill 00
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September 17, 1999 .
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When they take me down to physical therapy they take me down in a
wheelchair and they have me walk around with a walker with a person
helping me. (inaudible)
Q: Well what you just said Larry that's basically what there doing they're
taking you slow weaning you off -
A: Right I still have numbness through my whole body.
Q: Any idea how long your going to be here or is that a day to day thing?
A: Right now I have a tentative discharge date of October the 6th, but see it
just depends on-
Q: How well you progress?
A: Right, right.
Q: Your medical history before this incident did you have any major medical
problems or anything like that?
A: I been having some trouble with me neck a couple of the vertebrae were
fused together. I was going to see a chiropractor. I wasn't in pain; I wasn't
in pain it was just stiffness you know.
So you had surgery a couple months back?
No, no surgery, no, no.
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What are you talking about?
He would massage me and do stretching exercises with it, a chiropractor.
Right, but what you said something about your vertebrae was fused?
Well he took x-rays, but I didn't have any surgery.
Thafs, you don't have any history as far as back problems other then no
other neck problems?
No.
No mental, physical disabilities?
No.
Q:
A:
Just a few questions for you yet, Larry. Talking about this chair you fell
over do you remember seeing it there at anytime before you fell?
No I don't. See I never go around that side of the building you know and
when I park, I usually don't get down far enough to even look down
through there, whenever I'm parking.
Your neighbors in apartment two, do you know who they are?
They just moved in not too long ago I have no idea what there name is or
anything. fD) ~ @ ~ U fRI
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September 17, 1999
Page 10
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Q: The previous tenants, do you know who they were?
A: Well there was some a group of Mexicans in there for a while.
Q: Did you have problems with them?
A: No.
Q: Did you know them to leave stuff lay around?
A: Well it's been that way ever since we've been there. There's been stuff
laying around out back especially out back you know.
Q: Do the tenants other then yourself basically stay there a short period of
time and leave?
A: Yes.
Q: What we would call a revolving door?
A: Yes.
Q: Besides yourself do you know of any of the other tenants that have been
there for awhile?
A: Brian White and Monica live up above us.
o
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Apartment?
Five, number five, they've been there quite a while.
Anybody else?
They're about the only ones. Oh John.
Q: And the rest of the tenants, basically in and out?
A: Yeah.
Q: Now what you said to me early about your land lord not cleaning things up
is that what your telling me basically the old tenants move out and leave
things there -
A: Yes.
Q: And then the tenants that move in have to either rid of them, themselves
or-
A: Yes.
Q: You help them?
A: Yeah.
Q:
A:
Are you assigned any parking spaces?
No.
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lJl] SEP 2 9/999
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Q: You know there is a driveway, a drive next to where you fell that's for the
people that live in the rear?
A: Right.
Q: They park in the back yard, so to speak?
A: Yes. When they can get through. Whenever they can get through.
Q: Now what do you mean by that?
A: Well a lot of times that's blocked off a lot of times too.
Q: When?
A: Different vehicles.
Q; Of course it's just one drive so it's not it doesn't open into a lot?
A: No.
Q: Have you ever complained to your landlord in the past about lighting?
A: Yes.
Q: How often, when and in what area?
A: I wouldn't know how often.
^
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A:
Again roughly are we talking every week or couple times a year?
Maybe a couple times a month, two or three times a month. We complain
to him about ice on the steps during the winter things like that you know
ice on the sidewalks.
Q: Basically general maintenance?
A: Yes.
Q: Did you ever know Louie, your landlord to, does he have somebody take
care of things or does he do everything by himself?
A: He tries to do most of it himself and the guys that he does have take care
of it is just guys that he more or less gets here or picks up here and there
and gives them a couple dollars most of them don't know what there
doing.
Q: Lal'lY when he came to your assistance of. course you were injured, but did
he say where he was or what he was doing?
A: No.
Q: Did you tell him what happened or was it obvious what happened?
A: It was obvious.
Q:
That's everything I have for you LaI'lY, while we're still on
there anything you care to add or provide me with?
SEP 2 9 1999
MlllERl> MUTUAL INS. CO.
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Just that for whatever reason, one thing thl,'lY did that wasn't a real good
idea either they moved the chair before the paramedics got there.
Q: Who's they?
A: Well Louie was there and him and the one guy from out back the one
apartment out back I think moved it. Louie was there I remember him
saying to me their going to move this chair, I couldn't move I didn't know
what -
Q: What you were basically laid over the chair?
A: Right.
Q: And they moved it out from under you?
A: Right.
Q: Any idea why or did they think they were hl,'llping you?
A; I think cause he probably didn't want them to see, to see me in that
position, Cause he probably didn't want them to see me laying over the
chair like that when the paramedics when they got there.
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You don't think it was to make you more comfortable?
I have my doubt, I have my doubts, I don't know.
Anything else?
No.
Larry have you understood all my questions?
Yes.
Have all your answers been true and correct to the best of your
knowledge?
Yes.
With your permission I'll turn the tape off?
Okay.
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Jesse Raymond Ruhl
Attorney 1.0. No. 55798
350 W. Market Street
York, PA 17401
(717) 854-0066
(717) 854-4339 (fax) Attorney for Defendant
LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
: CNIL ACTION - LAW
v.
: NO. 00-1581
ELIAS HARBILAS,
Defendant.
: JURY TRIAL DEMANDED
DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
I. PROCEDURAL HISTORY
Plaintiffs Larry E. Stroble (hereinafter "Plaintiff') and Shirley A. Stroble commenced this
action against Defendant Elias Harbilas (hereinafter "Defendant") on or about March 16, 2000.
Plaintiff, a tenant in a rental premises owned and managed by Defendant, alleged that Defendant
negligently allowed a chair to remain on the side of the rental property thereby becoming a
dangerous condition over which Plaintiff felL Plaintiff Shirley A. Stroble has included a claim
for loss of consortium. This memorandum is filed in support of Defendant's Motion for
SlUllIDary Judgment which was filed on October 17,2001.
II. UNDISPUTED FACTS OF THE CASE
Plaintiff was deposed on July 6,2000 at which time he provided the following
information about his faIL A true and complete copy of Plaintiffs deposition transcript was filed
in conjunction with this memorandum,
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Plaintiff testified that he emerged from his apartment in the rental premises on the day in
question around 10 p.m. and proceeded to his car in order to leave for work. Plaintiff alleged that
Defendant ("Louie") had parked him in and Plaintiff went searching for Defendant. Dep. at 52.
As Plaintiff searched for Defendant he rounded the right side of the building (Dep. at 56).
Plaintiff stated that he had not gone behind the building for at least three or four months. Dep. at
31, 55. Plaintiff testified that he lived on the left side of the building and ifhe went to the back
of the building, he usually went around the left side. Dep. at 31. Furthermore, he would park
toward the left side ofthe building and he would usually back his car into the parking space. Dep.
at 55. Plaintiff testified that he never had occasion to see or look down the right side of the
apartment building. Dep. at 55.
Plaintiff stated that along the side of the building "[t]here wasn't any light" and "it was so
dark." Dep. at 59, line 23 and at 56, line 24, respectively. Plaintiff summarized the conditions in
response to questions as follows:
Q Now, it was noticeably darker around the corner when you turned?
A Yeah.
Q Did you give your eyes any opportunity to adjust to the change of light when you
turned the corner?
A I didn't stop. I didn't stop walking, no.
Dep. at 61-62. He also testified that he was early for work that evening and that he was not
rushed or in a huny. Dep. at 50,
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While Plaintiff proceeded along this darkened side of the building, he felt his knees hit
something between the first and second windows along that side of the premises. Dep. at 54,57.
Plaintiff summarized his fall as follows: "And when I came up on it, first thing I felt, felt my
knees hit against something, and I felt myself going forward, and I put my arms out like this
(indicating), you know. At that point I wasn't sure what it was. I just knew I walked into
something, you know. I put my arms out like this, and when I did, they hit the back ~ the top of
the chair like up here, and it just tipped over on me, you know." Dep. at 57. Plaintiff and the
chair went forward and landed on the sidewalk. Dep. at 58-59.
Plaintiff testified that the chair was sitting with "the seat facing towards me" when he
initially made contact with it. Dep. at 57-58. Plaintiff testified that he landed on his left side and
that his legs were up over the bottom part of the chair after it tipped over. Dep. at 32.
III. STATEMENT OF THE QUESTION PRESENTED
Whether a tenant is contributorily negligent to such an extent that he should be barred
from recovery against the landlord for injuries he sustained after falling over a chair after
he walked into an outdoor common area of the rental premises which he alleges was in
complete darkness and which he rarely entered or observed.
IV. LEGAL ANALYSIS
A. Standard of Review
Summary judgment is appropriate where the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
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oflaw." Pa.R.C.P. 1035(b).
On a motion for summary judgment, the record must be viewed in the light most
favorable to the nonmoving party. The court must accept as true all well-pleaded facts in
plaintiff s pleadings, giving the plaintiff the benefit of all reasonable inferences to be drawn
therefrom. It is not the court's function to decide issues of fact but solely to determine if there is
an issue of fact to be tried. Any doubt must be resolved against the moving party. A summary
judgment should be granted only when the case is clear and free from doubt. Krause v. Great
Lakes Holdings. Inc., 387 Pa. Super. 56, 63, 563 A.2d 1182, 1185 (1989); Just v. Son's ofItalv
Hall, 369 A.2d 308, 240 Pa. Super. 416, 418 (1976),
B. Granting Summary Judgment Is Required In This Case Because Plaintiff Was
Contributorilv Negligent
Granting summary judgment is required in this case because Plaintiff admitted in his
deposition that he followed an unfamiliar course in the dark into a darkened and unfamiliar space
without relying upon his sense of touch and he did not seek to obtain adequate lighting prior to
entering the darkened area. Plaintiff carelessly walked into the darkness alongside the apartment
building. Moreover, Plaintiff continued into the darkness even after he realized that he could not
see.
It is generally held, in the absence of evidence of a compelling necessity, that one who
follows an unfamiliar course in the dark or steps into darkened and unfamiliar space, relying
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upon his sense of touch instead of obtaining and using adequate lighting facilities, and sustains
personal injuries, is guilty of contributory neglience as a matter oflaw. Just, 368 A.2d at 312;
Barth v. Klinck, 62 A.2d 841,842,360 Pa. Super. 616, 618 (1949); Felix v. O'Brien, 199 A.2d
128, 130,413 Pa. 613, 618 (1964). McNallv v, Liebowitz, 445 A.2d 716,717,498 Pa. 163, 165
(1982).
This Court must grant Defendant's Motion for Summary Judgment in this case because
Plaintiff was causally negligent to such an extent that he should be declared contributorily
negligent as a matter of law thereby precluding his recovery against Defendant. Plaintiff had not
passed through the area adjacent to the apartment building to venture to the back ofthe building
for three or four months. Dep. at 31, 55. Plaintiff testified that there was not light enough for
him to see and that it was very dark. Dep. at 59, 56.
Plaintiff did not rely upon or use any of his senses that would have alerted him to the
presence ofthe chair. He did not slow down or feel his way carefully through the darlrness. Dep.
at 62, He did not pause to allow his eyes to adjust to the darlrness nor did he obtain a flashlight
or turn on a light around the front of the building which presumably may have provided him with
additional lighting. Dep. at 62, 59, 62. The darlrness did not take Plaintiff by surprise as he had
known previously that it was dark along the right side ofthe building. Dep. at 61. Furthermore,
Plaintiff thoughtlessly continued into the darkness even after he entered it. Plaintiff was early for
work that evening and was under no necessity to proceed in such a heedless manner. Dep. at 50.
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Plaintiff was clearly responsible for over Fifty Percent (50%) of the causal negligence in this case
and he should be barred from recovery as a matter of law.
1. This Court Should Declare That Plaintiff Was More Than 50% Causally
And Contributorily Negligent As A Matter of Law Therebv Barring Him
From Recovery
A court can declare as a matter of law that a certain state of facts amount to contributory
negligence on the part of a plaintiff only in cases so clear that there is no room for fair and
sensible men to differ on their conclusions with available data. Just, 369 A.2d at 315; Denver v.
Sharpless, 159 A.2d 7,10,191 Pa. Super. 554,558 (1960). For a court to be justified in
declaring a person contributorily negligent as a matter of law, evidence of such negligence must
be so clear and unmistakable that no reasonable basis remains for an inference to the contrary.
Clewell v. Pummer, 121 A.2d 459, 464,384 Pa. 515, 523 (1956); Mogren v. Gadonas, 58 A.2d
150, 151,358 Pa. 507, 510 (1948).
While the comparative negligence statute, 42 Pa. C.S.A. 97102, is applicable to the
present case, it does not preclude a judgment as a matter oflaw. Plaintiffs Complaint may be
dismissed ifhis causal negligence was greater than that of the Defendant. Cf Com.. Deot. of
Public Welfare for Use ofMolek v, Hickev, 582 A.2d 734,136 Pa.Cmwlth. 223 (1990)
(preliminary objections of defendant granted where plaintiff was responsible for One Hundred
Percent (100%) ofthe causal negligence). Although the Defendant does not concede any
negligence on his part but, even if some negligence on the part of the Defendant were found, the
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Defendant's negligence in this case would not exceed the negligence of the Plaintiff as a matter
oflaw.
Negligence is the absence of care according to the circumstances. When the measure of
duty is ordinary and reasonable care, and when the degree of care varies according to the
circumstances, the question of negligence is always for the jury; but when facts constituting
negligence are either admitted or conclusively established by undisputed evidence, it is, of
course, the duty of the court to declare the law applicable thereto. Gates v. Pennsvlvania R. Co.,
26 A 598,599, 154 Pa, 566, 572 (1893). In deciding questions of negligence, courts and juries
must consider the realities of the situation. The standard of carefulness is the conduct under like
circumstances of an average reasonable person possessed of ordinary prudence. MOlrren v.
Gadonas, 58 A2d at 152; Clewell, 121 A.2d at 464.
"The criterion of accountability. . . in a negligence case is not what an injured person
might have done to avoid mishap, but whether what he did under the circumstances is what a
reasonably prudent person would have done." Krusinski v. Chioda, 145 A2d 681, 687, 394 Pa.
90,103 (1958) (quoted in McDevitt v. Terminal Warehouse Companv, 450 A2d 991, 995, 304
Pa. Super. 438, 446 (1982)), Plaintiff was exceptionally negligent in pursuing a course around
the right side ofthe apartment building into an area which was conspicuously dark. He did not
slow down or pause or attempt to feel his way through the darkness as a reasonably prudent
person would have done under the circumstances. Dep. at 61-61.
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Plaintiff was unfamiliar with the area since he had not been around to the back of the
building for at least three or four months. Dep. at 31. He also testified that he never had occasion
to see or look down the right side of the apartment building. Dep. at 55. Moreover, Plaintiff was
early for work and was under no compelling necessity to proceed through the darkness in such a
neglectful way. Dep. at 50. He had more than sufficient time to proceed carefully or locate the
Defendant in some other manner that was not so dangerous or careless.
There is no evidence whatsoever that Plaintiff acted in a reasonably prudent manner
under the circumstances. Plaintiff was guilty of his own contributory negligence so clearly and
plainly that no reasonable basis remains for an inference to the contrary. Plaintiff should be
declared over Fifty Percent (50%) contributorily negligent as a matter oflaw and barred from
recovery.
2. Plaintiff Was Guiltv Of Contributory Negligence Because. Without A
Comoelling Necessitv. He Followed An Unfamiliar Course In The Dark
Into Darkened And Unfamiliar Space Without Relving Upon His Sense Of
Touch And Without Attempting To Obtain Or Use An Adequate Source
OfLif?:ht
It is generally held, in the absence of evidence of a compelling necessity, that one who
follows an unfamiliar course in the dark or steps into darkened and unfamiliar space, relying
upon his sense of touch instead of obtaining and using adequate lighting facilities, and sustains
personal injuries, is guilty of contributory negligence as a matter oflaw. Barth, 62 A.2d at 842;
Just, 368 A.2d at 312; Felix, 199 A.2d at 130; McNallv. 445 A.2d at 717. Generally, the
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controlling factors in determining the question of contributory negligence in proceeding in the
darkness are the degree of darkness and the justification for the injured person's presence in the
place of danger. Just, 368 A2d at 314 (quoting Divelv v. Penn-Pittsburgh Corp., 332 Pa. 65,70,
2 A2d 831, 833 (1976)); McNallv. 445 A.2d at 717. Whether a plaintiff who is injured when
venturing into a dark area is contributorily negligent depends largely upon the individual facts.
Just, 368 A2d at 312; Dively; 2 A2d at 833,
Other jurisdictions have also articulated rules that preclude recovery when a plaintiff
enters an unfamiliar area which is shrouded in darkness. The "step-in-the-dark" rule, as
enunciated by Ohio courts, holds generally that one who, from a lighted area, intentionally steps
into total darkness, without knowledge, information, or investigation, as to what the darkness
might conceal, is guilty of contributory negligence as a matter oflaw. Posin v. ARC. Motor
Court HoteL Inc., 344 N.E.2d 334 (Ohio). In Florida, the "step-in-the dark" rule of contributory
negligence is that one who enters a totally unfamiliar area in the darkness is not justified, in the
absence of any special stress, in proceeding without first ascertaining whether there are any
obstacles to his safe progress. Yoder v, Greenwald, 246 So. 2d 148 (Fla. Dist. Ct. App. 1971).
The basic essentials to application of the "step-in-the-dark" rule are (1) darkness that makes
ineffectual the normal use of one's eyes, and (2) an unfamiliar area or situation wherein the
injured person has no right to assume that his course is clear, unobstructed, or without defect. rd.
The testimony of Plaintiff does not establish a compelling necessity for him to follow a
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course which was foreign to him along the side of the apartment building. Plaintiff was early for
work and had no need to hasten his search for the landlord into unfamiliar and darkened territory,
Dep. at 50, 52. Plaintiff does not explain why he was attempting to go around to the back of the
building other than to look for the landlord. Plaintiff did not even know if Defendant was in that
area revealing that he did not have compelling necessity to take that route. Plaintiff was
wandering the premises in "complete darkness", he alleges, without any compelling necessity to
walk along the side of tile building which was dark and unfamiliar to him. As a result, his
negligence must be greater than that of Defendant's negligence, if any, as a matter of law.
In Just v. Son's ofItalv Hall, supra, the plaintiff was a guest at a wedding reception. She
fell and suffered injuries while moving down a dark hallway looking for the restroom. She had
been relying upon directions which were given to her by her niece. The court found that her
necessity of reaching the ladies' room was not so compelling that she could not have delayed her
trip to the restroom for the time it would have taken her to seek assistance from someone in the
hall in order that the hallway might be properly illuminated. rd. at 315.
Plaintiff has not established that his necessity was so compelling that he could not have
delayed his trip to the rear of the apartment building in order to seek assistance from someone
else or to have obtained a source oflight, such as a flashlight, so that the side of the building
might have been properly illuminated, The tenant entered into an area which he knew had
limited to no available light such that it was a potentially dangerous situation. In fact, it turned
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out that Plaintiff did not know that a chair was present in the darkness along the area to the right
side of the building. See Conbov v. Osage Tribe No. 113, 135 A. 729, 288 Pa. 193 (1927)
(plaintiff was contributory negligent because he failed to obtain a source oflight).
The issue of whether or not a plaintiff was contributorily negligent is predicated heavily
on his familiarity with the premises. Komlo, supra, 82 A.2d at 708, If Plaintiff was unfamiliar
with the right side of the building, then he was in the position of one wandering around, in the
dark, in unfamiliar territory, who took his chances of incurring injury from unforeseen dangers
that might be lurking therein. The general rule is that one who steps into darkened and
unfamiliar space, and is injured, is guilty of contributory negligence. Id. at 709.
The course around the right side of the building, where Plaintiff collided with the chair,
was unfamiliar to him. Plaintiff had not attempted to go behind the building for at least three or
four months, Dep. at 31, 55. He lived on the left side of the building and ifhe went to the back
of the building, it was around the left side. Dep. at 31. He would park toward the left side of the
building and would usually back his car into the parking space, Dep. at 55. Finally, Plaintiff
testified that he never had occasion to see or look down the right side of the apartment building.
Dep. at 55.
The area on the right side of the apartment building was largely unknown to Plaintiff. He
did not have a compelling necessity to take a such course into the dark, especially considering
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that Plaintiff was roaming the premises with no assurance that Defendant was located behind the
building. Even if Plaintiff had some familiarity or knowledge with the right side of the building
and what may have been present there, he acts at his peril when he relies upon his recollection or
former experiences where he can assure his own safety by the use of his senses. Ellis v. Drab, 94
A.2d 189, 191,373 Pa, 189,194 (1953). Furthermore, the Supreme Judicial Court of Maine has
stated that ". . . familiarity with the premises does not lighten the burden of due care which the
law requires [plaintiff] to sustain." Cook v. McGillicuddy, 75 A. 378, 379 (Me. 1909).
ill Ellis, a guest of a tenant had visited his mother's apartment a few times prior and had
once noticed a handrail on a stairway. Unbeknownst to the plaintiff, the handrail had been
removed and on a subsequent visit the plaintiff entered the stairway in complete darkness,
believing that the handrail was still present He reached for the non-existent handrail and fell
sustaining injuries. Under those circumstances, the court rendered judgment of a compulsory
nonsuit and found the plaintiff contributorily negligent Id. Plaintiff was not relying upon any
recent experiences or memories concerning the right side of the building. He proceeded into the
dark in the absence of any assurance that it was safe to do so. Such conduct was not that of a
reasonably prudent person. Likewise, as a matter oflaw, Plaintiffs conduct in this case was not
that of a reasonably prudent person.
The degree of darkness has an important bearing upon the question of contributory
negligence. Rutherford v. Academv of Music, 87 Pa. Super. 355, 358,1925 WL 2016 (1926).
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Plaintiff s testimony establishes that the conditions were dark to begin with and that Plaintiff
entered an unfamiliar area of even greater darkness as he rounded the side of the building. Dep.
at 56, 59, 60-61. Plaintifftestified that along the right side of the building "[t]here wasn't any
light" and "it was so dark." Dep. at 59, line 23 and at 56, line 24, respectively. Plaintiff continued
to proceed along that path without hesitating, slowing down or attempting to rely upon his sense
of touch or sight. He did not try to feel his way through the dark nor did he pause to allow his
eyes to adjust to the change to darkness. Dep. at 61-62.
Plaintiff was wandering in an unfamiliar place which, according to his testimony, was
absolutely dark and where there was no reasonable necessity for his presence. In such a case
recovery must be denied. Just, 368 A.2d at 314; Divelv, 2 A.2d at 833; See, e,g., Davis v.
Edmondson, 104 A. 582,261 Pa, 199; Hoffner v. Bergdoll, 164 A. 607, 309 Pa. 558; Modonvv.
Megdal, 178 A. 395, 318 Pa. 273; McVeagh v. Bass, 168 A. 777, 110 Pa. Super. 379; Hardman
v. Stanley Co. of America, 189 A. 886, 125 Pa. Super. 41; Luther v. Kline, 145 Pa. Super. 188
(1941).
Plaintiff had no compelling necessity to follow an unfamiliar course into darkened and
unfamiliar space. He did not rely upon his sense of touch nor did he attempt to obtain or use a
light source in order to proceed carefully as a reasonably prudent person would have done.
Instead, he continued on into the darkness and suffered injuries which could easily have been
avoided. Plaintiffs conduct was clearly not that of a reasonably prudent person. Plaintiff was
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contributorily negligence was greater than any negligence of the Defendant as a matter oflaw.
3. Plaintiff Failed To Exercise A Higher Degree Of Care When Walking In
The Darkness
"[I]t is true that when one walks when he cannot see plainly, the exercise of ordinary care
requires greater vigilance than when he can see plainly." Rutherford, 87 Pa. Super. at 358. One
who walks in darkness along a walk or path must exercise greater care than would be necessary if
the walk or path were lighted. Skladzian v. W.N. Sutherland Bldg. & Constr. Co., 125 A. 614,
101 Conn. 340 (1924). Plaintiff admits that he proceeded along a route where there was not any
light and that was very dark. Dep. at 59, 56. Also, Plaintiff testified that he knew that the right
side ofthe building was very dark even before he attempted to traverse that area. Dep. at 61. In
such conditions, Plaintiff was obligated to exercise a higher degree of care than ifthe path were
lighted. The Defendant should not be held responsible for Plaintiffs perilous and unreasonable
assumption that darkness was an area of safety.
Plaintiff did not exhibit ordinary and reasonable care when he entered the area of
darkness adj acent to the apartment building nor did he display any greater vigilance which the
circumstances demanded. Plaintiff showed no hesitation when he proceeded into the darkness.
The area was noticeably darker than the front of the building and yet Plaintiff did not stop or
slow his pace in order to accommodate the conditions. "When one is moving in the dark, he
must proceed with the greatest caution and literally 'feel his way around. '" Mllf1Jhv v. Bernheim
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& Sons. Inc., 194 A. 194, 195,327 Pa. 285. He did not pause to permit his eyes
to adjust to the darkness and he did not attempt to feel his way either in front of him or along the
side ofthe building. Dep. at 61 -62. The higher degree of care which dark conditions require
may have even required him to obtain a flashlight or tmn a light on at the front of the building.
Dep. at 59, 62.
There is no implied assurance of safety when the premises are dark. "[D]arkness is, in
itself, a warning to proceed either with extreme caution or not at all." Just, 368 A.2d at 314
(quoting Barth, 62 A.2d at 842); Mogren, 58 A.2d at 152. "One who enters darkness, realizing
his difficulty seeing, assumes the risk of unseen hazards that could be seen with the aid oflight."
Whelan v. Van Natta, 382 S.W.2d 205, 207 (Ky. 1964). Upon rounding the comer of the
building, Plaintiff entered the darkness and immediately realized his difficulty seeing. Dep. at 55.
However, he failed to proceed with any type of caution and he assumed the peril of unseen
hazards that lay within the darkness.
"[D]arkness makes a difference in even the most familiar places." Hovev v. State, 261
App. Div. 759, 262 App. Div. 791,27 NYS2d 195, 197, affd 287 NY 663, 39 N.E.2d 287
(1941). "Everyone knows how difficult it is in walking in utter darkness to correctly calculate
courses and distances, even in very familiar localities." Bennett v. New York. N.H. & H.R. Co.,
18 A. 668, 57 Conn. 422 (1889). One takes a chance wandering around their own house at night
when it is pitch black. Plaintiff chose to venture onto a portion of the premises at night which he
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had not happened upon for months. Dep. at 31.
Defendant should not be held responsible for Plaintiff s negligence in attempting to cross
an area of darkness which required a greater degree of caution and care than was exercised by
Plaintiff. The very nature of darkness is a warning to those who contemplate entering it.
Plaintiff did not heed this warning and entered the darkness without a hint of care for his own
safety. Plaintiff should not be permitted to recover against Defendant in the face of such glaring
contributory negligence.
4, Plaintiff Did Not Assure Ris Safety By The Use OfRis Senses For His
Own Preservation
No man of common caution will rely for his safety upon the watchfulness of others when
his own senses are available to apprize him of likely imminent danger. When an individual can
assure his own safety by the use of his senses, he must do so or abide the consequences of his
carelessness. The duty of availing oneself of one's senses, for self-protection can seldom be
breached with physical impunity and never with legal sanction. Bailev v. Alexander Realty Co.,
20 A.2d 754, 756, 342 Pa. 362 (quoted in Bartek v. Grossman, 52 A.2d 209, 211, 356 Pa. 522,
525 (1947). The rule that a victim cannot recover damages for injuries sustained by him ifhe
could have avoided the injury by the exercise of ordinary care should bar Plaintiffs recovery. rd.
The instinct of self-preservation impels a man of ordinary prudence to avoid, by the
vigilant use of all of his faculties, a danger that should obviously be apprehended. Bailey. 20
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A.2d at 756. Self-preservation is the first law of nature and no one exhibits normal obedience to
that law unless he uses both his reasoning power and his senses for his own preservation. Id.
Plaintiff did not exercise reasonable or ordinary prudence in avoiding the unfamiliar darkness
around the right side of the building. Plaintiff knew that that side of the apartment building was
dark and potentially dangerous even before he entered it. Dep. at 61.
He did not enter into the darkness cautiously or use any of his senses or faculties after he
moved into the darkness. Dep. at 61-62. He continued on into that environment without
hesitation and was injured as a result of his own carelessness. m deciding a case involving a
night watchman who was flashing his flashlight on and off as he proceeded through a darkened
area, the court stated: "m taking not only one but a number of steps into darkness the plaintiff
was guilty of negligence as a matter oflaw, which would preclude recovery." Burkland v. Darin
& Armstrong, me., 128 N.E.2d 186,187 (Ohio Ct. App. 1954),
m Cannon v. Blatt, 20 A.2d 293,342 Pa. 303 (1941), the Pennsylvania Supreme Court
issued a directed verdict and found a tenant contributorily negligent in a similar situation. The
tenant was familiar with the nature and conditions of the hall outside of her apartment. The hall
was so dark that she could not see anything but she had taken a lighted candle with her in order to
light her way. The candle went out and she proceeded by feeling her way along the wall. She
fell on steps in the hall and suffered injuries. Plaintiff s conduct was more negligent than that of
the tenant in Cannon as he did not even attempt to 'feel his way' along the side of the building
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but proceeded at a average pace into darkened and unfamiliar territory. Accordingly, the
Plaintiffs negligence as a matter oflaw must exceed that of the Defendant's.
In all circumstance, an individual must use the senses that are available, and it is only
when a plaintiff uses his sense of sight carefully and reasonable believes that he can 'see his
way', but was then deceived by shadows, that the question of his negligence will be for the jury.
McDevitt, 450 A.2d at 995. Plaintiff did not use any of the senses that he had available. He did
not use his sense of sight carefully and reasonably believe that he could see his way nor was not
deceived by any shadows. On the contrary, Plaintifftestified that "[tJhere wasn't any light" and
"it was so dark." Dep. at 59, line 23 and at 56, line 24, respectively.
The amount of negligence attributable to the Plaintiff in this case should not be submitted
to the jury to decide because of the obvious extent of the Plaintiffs negligence in this case. As a
matter oflaw, Plaintifffailed to exercise any degree of care for his own welfare. Plaintiff was
contributorily and causally negligent to such an extent that he must be precluded from recovery
in this case.
5. The Conduct Of Plaintiff Was Reasonable While Defendant Failed To
Exercise Ordinary And Reasonable Care Under The Circumstances.
Possessors ofland owe a duty to protect invitees from foreseeable harm. Restatement
(Second) of Torts S 343. Furthermore, a possessor ofland is not liable to his invitees for
physical harm caused to them by any activity or condition on the land whose danger is lmown or
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obvious to them, unless the possessor should anticipate the harm despite such knowledge or
obviousness. Restatement, supra, S 343A The law of Pennsylvania does not impose liability if it
is reasonable for the possessor to believe that the dangerous condition would be obvious to and
discovered by the invitee, Atkins v. Urban Redevelopment Auth. ofPittsbunm, 414 A2d 100,
104,489 Pa. 344, 352-353 (1980). A danger is deemed to be "obvious" when ''both the
condition and the risk are apparent to and would be recognized by a reasonable man, in the
position of the visitor, exercising normal perception, intelligence, and judgment." Restatement,
supra, 343A, comment b. Although the question of whether a danger was known or obvious is
usually a question for the jmy, the question may be decided by the court where reasonable minds
could not differ as to the conclusion. Carrender v. Fitterer, 469 A2d 120, 124, 503 Pa. 178, 185
(1983),
A large, padded recliner placed along the side of an apartment building does not
constitute a dangerous condition of the premises. It was an object which would have been
obvious or easily discoverable to a reasonably prudent person under the circumstances. A
reasonably prudent and careful person would not have proceeded along the side of the apartment
building in the dark into unfamiliar territory without knowing for sure if any objects had been
placed in that area. The chair was not recognizable as a known or obvious danger to Defendant
because he, as a reasonably prudent landlord, did not anticipate that an individual would walk
along the side of the building in such darkness without attempting to discover the condition of
the area. In addition, the Defendant had every reason to believe that tenants would not wander
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around in areas of the rental premises that they were not familiar with and that were not lighted
without providing their own source of light or being as careful as they walked in the darkness. A
possessor of land is not an insurer of the safety of an invitee. His duty is merely to exercise
reasonable care. Komlo v. Balazick, 82 A.2d 706,709, 169 Pa, Super. 296, 302 (1951).
The Pennsylvania Supreme Court articulated the following principles concerning the
respective duties of possessors ofland and invitees thereon:
"[T]he duty to keep premises safe for invitees applies only to defects or
conditions, which are in the nature of hidden dangers, traps, snares, pitfalls, and
the like, in that they are not known to the invitee, and would not be observed by
him in the exercise of ordinary care. The invitee assumes all normal or ordinary
risks attendant upon the use ofthe premises, and the owner or occupant is under
no duty to reconstruct or alter the premises so as to obviate known and obvious
dangers. An owner in possession, or a tenant as occupier, is not required to have
his premises in such condition that no accident could possibly befall a person
entering, nor need the premises be in such condition when leased."
Mitchell v. Geo. A. Sinn. Inc., 161 A. 538, 539, 308 Pa. 1 (quoted in Hild v. Montgomerv, 20
A.2d 228,229,342 Pa. 42, 44 (1941)). The Court emphasized that an owner or possessor of
property is to protect invitees from latent conditions while the invitee is to exercise ordinary care
in order to avoid known and obvious dangers. Plaintiff did not exercise ordinary care when he
proceeded into a dark area where he had not been for months.
While it is well settled that a business visitor is entitled to expect that the proprietor will
take reasonable care to discover and remedy or warn of a dangerous condition, it is equally well
settled that the proprietor has a right to assume that the invitee will perceive that which would be
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obvious to him upon the ordinary use of his own senses, Furthermore, the law does not require a
proprietor of a public place to maintain his premises in such condition that an accident could not
possibly happen to a customer. The invitee is in turn obligated to exercise a reasonable degree of
care for their own safety. Night Racing Ass'n. Inc. v. Green, 71 So.2d 500 (Fla. 1954).
In Felix v. O'Brien, the court held that the owner of a premises did not breach a duty
owed to a guest where the owner had no reason to believe that the guest, upon opening the wrong
door, would not discover a stairway by exercise of common sense and reasonable care, and that
the guest was contributorily neglig"nt. The court stated that the guest "should not have disregard
,
what her own senses must have revealed to her - that there was nothing but darkness beyond the
door in a home she had never visited before." Id. 199 A.2d at 130. In the same way, Defendant
had no reason to believe that a tenant would proceed through a portion ofthe premises that was
shrouded in darkness that the tenant rarely, if ever, had occasion to see or examine even in the
daylight!
Plaintiff failed to use any care or caution for his own safety or protection and his injuries
are the result of his own negligence. While the Defendant was to protect invitees against
foreseeable and latent harm, the Plaintiff was responsible to avoid obvious harm where the
condition and the risk were apparent to and would be recognized by a reasonable man, exercising
normal perception, intelligence, and judgment. Plaintiff failed to perform his legal duty to
exercise this ordinary care for his own well-being. Plaintiff chose a dark night as the first time to
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traverse an area of the premises which he had not encountered for months. Plaintiff did not
attempt to use his senses of sight or touch or in any other way demonstrate reasonable care or
concern for his own welfare under the circumstances. Accordingly, Plaintiffs own negligence
must bar his recovery in this case because his negligence was substantially greater than any
negligence attributable to the Defendant as a matter of law.
V. CONCLUSION
The injuries of which Plaintiff complains in this case are so clearly the result of his own
carelessness and causal negligence that he should not be entitled to recover. For the reasons set
forth above, Defendant Elias Harbilas respectfully requests that this Court enter an Order
granting:
1. Sununary Judgment in favor of Defendant Elias Harbilas and against Plaintiffs
Larry E. Stroble and Shirley A. Stroble; and
2. Dismissing Plaintiffs' Complaint.
Respectfully submitted,
on uhl, Esquire
y J.D. No. 55798
35 . Market Street
York, PA 17401
(717) 854-0066
DATED: December 4,2001
Attorney for Defendant
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CERTIFICATE OF SERVICE
I hereby certify that on this December 4,2001, I caused a true and correct copy of
Defendant's Memorandum of Law in Support of Motion for Summary Judgment to be served
upon counsel to the Plaintiff by facsimile and fIrst class mail addressed as follows:
w. Scott Henning, Esquire
Handler, Henning & Rosenberg
P.O. Box 1177
Harrisburg, PA 17108
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LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION-LAW
No. 00-1581 CIVIL TERM
v.
ELIAS HARBILAS ~
Defendant
JURY TRIAL DEMANDED
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION
IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. STATEMENT OF THE CASE
Plaintiffs, Larry E. Stroble and Shirley A. Stroble, filed a Complaint in the Court of
Common Pleas of Cumberland County on March 16, 2000, alleging negligence against
Defendant Elias Harbilas for injuries sustained by Plaintiff in a trip and fall at 1107 Rqna
Villa Avenue in Camp Hill, Cumberland County, Pennsylvania on September 1, 1999.
On May 8, 2000, Defendant, Elias Harbilas, filed his Answer and New Matter
alleging that he was not negligent and alleging that Plaintiff was negligent and/or the chair
in question chair was not a dangerous or hazardous condition. Plaintiff filed an Answer to
Defendant's New Matter on May 11, 2000.
On October 18, 2001, Defendant filed a Summary Judgment Motion alleging that
Plaintiff cannot establish as a matter of law that the chair presented an unreasonable risk
1
and that Plaintiff is barred by application of Comparative Negligence. Plaintiff filed an
Answer to Defendant's Summary Judgment Motion on November 9, 2001. Defendant filed
his Brief in Support of the Summary Judgement Motion on December 4, 2001. Plaintiffs
are filing this Brief in Opposition of the Summary Judgment Motion.
II. STATEMENT OF FACTS
As of September 1, 1999, Larry Stroble and his wife resided, as tenants, at 1107
I
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Rana Villa Avenue, Camp Hill, Pennsylvania. Defendants, Elias Harbilas, is the owner of
the eight-unit apartment building.
Mr. Stroble went to get in his car to leave for work on September 1, 1999 at about
10:00 -10:15 pm. (Deposition of Larry Stroble on July 6,2000, page 50, lines 5-6). Mr.
Stroble normally left about this time because he liked to get to work early to get a report
from the person going off duty and have a soda. (Id. at lines 7-8). He normally left no later
than 10:20 pm. (Id. at 9-10). Mr. Stroble started work at 11 :00 p.m. that night. (Id. at 51,
lines 10-12). Mr. Stroble found that his car was parked-in by the landlord, Mr. Harbilas.
(Id. at lines 19-22). Mr. Stroble did his normal routine to look for Mr. Harbilas. He went
looking for him by walking around and checking other apartments. (Id. at 52, lines 21-25).
Mr. Stroble was walking normally on the side ofthe building, walking on the sidewalk
!!la1Lan qlona the side of the buildina when he stumbled and fell over a CQ",ir ::iWi'19 01:1 k
sidewal~ It w~. (Id. at 56, lines 5-25; Id. at 61, lines 7-18). There were no lights on
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the side ofthe building. (Id. at 59, lines 3-7). The streetlights catty-corner across the street
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from the apartment building provided no illumination on the right side of the building. (Id.
at lines 8-9). The chair was located somewhere between the first and second window on
the side of the building with the seat of the chair facing Mr. Stroble. (Id. at 54, lines 13-20;
Id. at 57-58, lines 23-25, 1-2). Mr. Stroble first knew that he came upon the chair because
his knees hit it and he felt himself going forward. (Id. at 57, lines 1-2). He put his arms out
in front of him to brace himself and his arms hit the top of the chair. (Id. at 57, lines 3-7).
The chair tipped over, with Mr. Stroble falling forward onto his face, jamming his neck into
the sidewalk. (Id. at lines 8, 58-59, lines 25, 1-2).
When asked, Mr. Harbilas testified that a prior tenant moved out and left furniture
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behind including the chair that is at issue in this case. (Deposition of Elias Harbilas on July
6,2000, page 32, lines 1-20). Mr. H"'rhil",,,, t"'''t~~i'illil tlilst tIil9,,,h~;. """y.,h"'!iiI "",,,,n llittinl;1
there for a mon!!). (Id. at lines 20-25).
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III. STATEMENT OF THE ISSUES
A. WHETHER THE PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT TO
SUCH A DEGREE SUCH THAT DEFENDANT IS ENTITLED TO SUMMARY
JUDGMENT?
(Suggested answer: In the negative)
The Plaintiff was not contributorily negligent to such a degree that Defendant is
entitled to Summary Judgment.
3
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IV. STANDARD OF REVIEW
The burden of proof is on the moving party, the Defendants, to prove that no
genuine issue of material fact exists and that they are entitled to judgment as a matter of
law. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996) celt. denied. 117 S.Ct.
512. In reviewing the merits of the motion, the Court should view the record in the light
most favorable to the non-moving party, and all doubts should be resolved in the non-
moving party's favor. kl at 1041. In the instant case, the Defendants have moved for
summary judgment. Therefore, the Defendants have the burden of proving that the record
clearly does not support a theory of recovery upon which the Plaintiff could be successful
at trial. See e.g. Ack v. Carroll Townshio Authoritv. 514 Pa. Cmwlth. 1995, 661 A.2d 514
(1995), alloc. den. 543 Pa. 731, 673 A.2d 336 (1996).
V. ARGUMENT
Larry Stroble, the Plaintiff, has established a prima facie case under Section 343 of
the Restatement (Second) of Torts. The Defendant failed to fulfil their duty to Plaintiff by
allowing a hazardous condition to exist on the premises. For this reason, the Defendant's
Summary Judgment Motion should be denied. It is axiomatic that a possessor of land
owes a duty to protect its invitees from foreseeable harm. Wentz at 315 (citing Carrender
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v. Fitterer, 503 Pa 178,185,469 A. 2d 120, 123 (1983). A landowner owes a duty to
protect invitees from the conditions of his premises if he:
(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of
harm to such invitees;
(b) should expect that they will not discover or realize the danger or will
fail to protect themselves against it, and
(c) failed to exercise reasonable care to protect them against the danger.
Ferencz v. Millie, 535 A. 2d 59, 64 (Pa. 1987), Smith v. Allen & O'Hara Dev.. Inc., 1996 WL
529998 (E.D. Pal, Restatement (Second) of Torts 9 343).
Plaintiff avers that the Defendant did not exercise reasonable care which would
have eliminated the chance of his fall. In this case, the Defendant, Mr. Habilis, testified in
his deposition that the stuffed chair was sitting on the side walk for at least one month.
Defendant clearly breached the duty of care owed to his tenants and other persons lawfully
upon the premises. He knew the chair was on the sidewalk. He knew that the side of the
building had no illumination and was very dark at nighttime. He did not exercise
reasonable care to protect invitees by either removing the chair and/or installing
appropriate lighting on the side of the apartment building.
Defendant argues that Plaintiff did not exercise ordinary care when he walked
around the side of the building. The main thrust of Defendant's argument is that it was
dark along the right side of the building, and hence Plaintiff was contributorly negligent by
walking along the side of the building in the darkness. Further, Defendant believes that a
5
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large padded recliner chair sitting on a sidewalk along the side of a building is a normal or
ordinary risk. Plaintiff begs to strongly differ with that interpretation. It is not ordinary nor
normal for living room furniture to be sitting along side of a building for an extended period
of time.
Defendant also argues that Plaintiff should not have been wandering around on that
side of the building if he was unfamiliar with it. Again, Plaintiff begs to differ with this
statement. When Plaintiff first moved into this apartment building, he had an apartment
in the back of the building. Also, Plaintiff has lived at this apartment building for at least
eight years. It is reasonable to assume that plaintiff was familiar with the premises. As a
general rule the premises did not have living room furniture sitting on the concrete
walkways adjacent to the building.
The instant case turns on the issue of the obviousness of the danger (the
foreseeability that a chair would be sitting on the concrete walkway), the likelihood that the
invitee will realize the danger and would take steps to protect himself. See. Atkins v.
Urban Redevelopment Auth. Of Pittsburah, 414 A2d 100, 104,489 Pa 344,351 (1980).
Viewing the record in the light most favorable to the Plaintiff, and resolving all the doubts
in the Plaintiff's favor, there are numerous genuine issues of material fact for a jury to
resolve. Was the chair sitting in a shadow? Was the lighting so inadequate that the chair
was not visible? Is it logical or foreseeable from the Plaintiff's perspective that a chair
would be sitting on the concrete walkway? Was the Defendant negligent for allowing the
6
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chair to remain on the walkway for over one month? Was the Defendant negligent for
failing to install proper lighting to illuminate the walkway on the side of the building?
Larry E. Stroble and Shirley A. Stroble, the Plaintiffs, believe that this case is not
appropriate for Summary Judgement because the issues raised by the Defendant are
issues that must be determined by the trier of fact, the jury. The Comparative Negligence
Statute is applicable to this case. The pertinent section is 42 Pa. C.S.A. S 7102 (a):
In all actions to recover damages for negligence resulting in
death or injury to person or property, the fact that the Plaintiff
may have been guilty of contributory negligent shall not bar a
recovery by the Plaintiff. . . where such negligence was not
greater than the causal negligence of the Defendant, but any
damages sustained by the Plaintiff shall be diminished in
proportion to the amount of negligence attributed to Plaintiff.
It is necessary and appropriate for this Honorable Court to deny Defendant's Motion for
Summary Judgment. Plaintiffs argue that it is the proper for the finder of fact, the jury, to
determine if Plaintiff was contributory negligent, and if he was contributory negligent to
what degree he is at fault, compared to the negligence of the Defendant.
Defendant cites a number of cases for the proposition that one who follows an
unfamiliar course in the dark, is guilty of contributory negligence as a matter of law.
Plaintiff asserts that all ofthe cases relied upon by Defendant have fact patterns, which are
distinguishable from the instant facts. Defendant relies on a series of cases which have
a mixture of the following facts: 1) Plaintiff was unfamiliar [Le. firsttime atthat location] with
the building they were in; 2) Open elevator shafts (!hese cases all stem from the 1930's or
1940's dealing with old-fashioned elevators with open shafts); 3) Construction workers who
7
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were working on the remodeling of a building and proceeded into a darkened area when
they knew the building was dilapidated and under repair; or 4) missed steps because the
individual proceeded down a flight of steps in the darkness. Plaintiff avers that the facts
are easily distinguishable from a case involving a "foreign" object on a walkway. First,
Plaintiff had lived at this specific apartment building for at least eight years. It is
reasonable to assume that he was familiar with the premises. Second, he knew that there
was a sidewalk on the right side of the building. Third, he knew as everyone knows, that
you can walk on a sidewalk and not expect to encounter living room furniture.
Plaintiff submits thatthe issue of whether Plaintiff was contributorily negligent, under
the circumstances of this case, and if so, the percentage of contributory negligence is an
issue for the finder of fact, the jury, to determine. The facts do not allow for this Court to
find as a matter of law that Plaintiff was contributory negligent. (Whether a Plaintiff was
contributory negligent when Plaintiff proceeded into a dimly lit area marked ladies room,
was a question for the jury)(McNallev v. Liebowitz, 445 A2d 716, 498 Pa 163 (1982).
Defendant argues that Plaintiff should be declared greater that fifty percent (50%)
contributory negligent as a matter of law and barred from recovery. For a court to be
justified in declaring a person contributory negligent as a matter of law evidence of
negligence must be so clear and unmistakable that no reasonable basis remains for an
inference to the contrary. Murphv v. Bernheim & Sons. Inc., 327 Pa 285, 194 A 194
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(1937). Under this standard of the Pennsylvania Supreme Court, it is impossible for this
Court to determine that Plaintiff was contributory negligent because there is a reasonable
basis remaining for an inference to the contrary. Plaintiff did live at this apartment building
for eight years. Plaintiff was familiar with the premises. Plaintiff was walking on the
sidewalk. Plaintiff was not expecting to trip over a piece of living room furniture. Plaintiff
did put his arms in front of him to brace himself. Clearly these facts do not allow this Court
to grant Summary Judgment because this determination is within the domain of the trier
of fact, the jury.
Defendant next proposes the idea that Plaintiff did not have a compelling necessity
to follow an unfamiliar course nor was he prudent to walk into a darkened and unfamiliar
space and did not use adequate lighting. Therefore, Plaintiff should be declared greater
that fifty percent (50%) contributory negligent as a matter of law and barred from recovery.
The question of Plaintiff's contributory negligence is undoubtedly for the jury. Each and
every case is very fact specific. See. Divelv v. Penn-Pittsburah Corporation et ai, 332 Pa
65,2 A.2d 831 (1938).
Defendant argues that Plaintiff was unfamiliar with the area where he was injured,
therefore, recovery must be denied. Defendant fixates on the fact that Plaintiff may not
have walked on that side of the building for three to four months. Plaintiff believes that he
is more than familiar with the premises and w~ere he fell. He has lived at this apartment
building for at least eight years. It is proper for the finder of fact, the jury, to determine if
Plaintiff was unfamiliar with the premises. Then if he was unfamiliar with the premises to
9
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what degree, if any, he was contributory negligent. Further, it is important to note that
essentially every case that defendant relies upon in his brief was decided before 1978, that
is, prior to the enactment of Comparative Negligence.
Next, Defendant argues that Plaintiff did not have a compelling reason to follow on
his path that ultimately led to his injury. Again, this is a issue for the finder of fact, the jury
to determine.
Finally, Defendant argues that Plaintiff did not have an adequate light source.
Depositions illustrated that there were no lights on the side of the building and that the
street lights across the street were no help. Is the Defendant implying that Plaintiff should
have been carrying a flash light? Would a reasonable prudent person always carry a
flashlight when he or she may have to walk in a dark area especially when walking upon
a designated walking area? That is a question for the finder of fact, the jury to determine.
Viewing the record in the light most favorable to the Plaintiff, and resolving all the
doubts in the Plaintiff's favor, there are genuine issue of material fact for a jury to resolve.
V. CONCLUSION
WHEREFORE, Plaintiffs, Larry E. Stroble and Shirley A. Stroble, respectfully
request this Honorable Court to deny Defendant's Motion for Summary Judgment because
Plaintiff did establish a prima facie case under Restatement (Second) of Torts S 343 due
to Defendant's failure to exercise reasonable care, and Plaintiffs argue that it is proper for
10
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the finder of fact, the jury, to determine if Plaintiff was contributorily negligent and, if he
was contributorily negligent, to what degree he is at fault.
Respectfully submitted,
HANDLER, HENNING & ROSENBERG
Date: !;? - 1(.- d Df) 1
BY:
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AND NOW, this
CERTIFICATE OF SERVICE
/ In day of {} ~ .2001, I hereby certify that I have,
on this date, served the within document upon defendant's counsel and all counsel of
record by sending a true and correct copy of same to them via first class United States
mail, postage prepaid, and addressed as follows:
Jesse R. Ruhl, Esq.
350 West Market Street
York, PA 17401
HANDLER, HENNING & ROSENBERG
By:
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LARRY E. STROBLE and
SHIRLEY A. STROBLE,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
EllA HARBILAS,
DEFENDANT
: 00-1581 CIVIL TERM
IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT
BEFORE BAYLEY. J. AND HESS. J.
ORDER OF COURT
AND NOW, this 7v~
day of January, 2002, the motion of defendant
for summary judgment, IS DENIED.
Edgar . Bayley, J.
./Vv. Scott Henning, Esquire . ;J.J
For Plaintiffs fl ~ ~ .de
/Jesse Raymond Ruhl, Esquire 4- ~ - 0:( I t f"\!):!)
For Defendant
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THOMAS, THOMAS & HAFER, LLP
305 North Front Street
P,O. Box 999
Harrisburg, PA 17108
(717) 237-7116
John J. McNally, Esquire
Attorney ID. #52261
Attorneys for Defendant
Elias Harbilas
LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 00-1581
ELIAS HARBILAS,
CIVIL ACTION - LAW
Defendant
JURY TRIAL DEMANDED
.
TO THE PROTHONOTARY:
Please enter my appearance on behalf of Defendant Elias Harbilas, in the above matter.
John J. ally, III, Esquir
Attorney ID# 52661
Attorney for Defendant Elias Harbilas
Date: April 17, 2002
--
,
CERTIFICATE OF SERVICE
I hereby state that a true and correct copy of the foregoing Entry of Appearance was served
upon all counsel of record by fIrst class United States mail, postage prepaid, addressed as follows,
on the date set forth below:
W. Scott Henning, Esquire
Handler, Henning & Rosenberg
319 Market Street, P.O. Box 1177
Harrisburg, PA 17108
Dated: April 18, 2002
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THOMAS, THOMAS & HAFER, LLP
305 North Front Street
P.O. Box 999
Harrisborg, PA 17108
(717) 237-7116
John J. McNally, m, Esquire
Attorney J.D. #52261
Attorneys for Defendant
Elias Harbilas
LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO. 00-1581
ELIAS HARBILAS,
: CIVIL ACTION - LAW
Defendant
: JURY TRIAL DEMANDED
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Defendant certifies that:
1. Plaintiff does not object to the subpoena and waives the Notice of Intent to
Service a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule
4009.21;
2. A copy of a letter dated August 14, 2002, and executed by Plaintiff's counsel, W.
Scott Henning indicating no objections and waiver of the notice of intent is attached to this
Certificate;
3. A copy of the proposed subpoena is attached to this certificate; and
4. The subpoena which will be served is identical to the subpoena which is
attached to this certificate.
Date: S3h'\\o'L
THOMAS, T
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~AIl~ r. POW-ELL
JOSEPH P. tf....FER
JAW,U tC. THOU"'S~ Ii
F40BERTsOw ii. TAYI.,.OJt
PErea J. CURRY
It. ~UJRI(E .M~Lgw'ORE.. JR.
EDWA'litP K. _JOIQAN. JR.
C,....EIlT !'IlleS
<ANDALL G GAL~
o~viai,r., sOnVAUI
f'ETEJl-j, SP'E.~1C~
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k:AfU~N s, co ItrU
305 NORTH FRONT STREST
SIXTH FLOOR
P.O. BOX 999
HARRISBURG, fA 11108
(117) 2)1.1100
FAl( {717j 2:".7 I_OS
WRITER'S OIR~T DIAL NUMBER
(717) 237-7114
pmd@nhlaw,com
W. Si;Ot! Henning, Esquire
Handler,Henning&. Rosenberg
Post Office Box U77 .
HlIItisburg, PA 17108
Via Facsimile: 717-233-3029
Re: LllrryE.Stroble,et al. v. Elias Rarhilas
Do~ke1 Number; Cumberland County CCP 00-15&1
(:Jur File Number: 731-20S31
DearMr; He\\lling:
. .
We intend to servesubpoenllstoObtail1 the nledicalrecords of Mr. LllITY Stroble on the
following medi.c.al providers: . Stephen John Snoke, MD. Ro~er OSldhal, M.D., Orthopaedic
I nstituteof Pennsylvania, (.qwer.A Hen T ownsl1ip EMS, and Physicians of Rehabill,tation,
[ndustrial& Spine Medicine, P,C. If you have no objection to the sllbpoenaing ofchese records
arid are. willing to ""aive the notice ofi:ritenl; please sign were indicated and return this
correspoooen,e 10 us via facsimile. .
ShouJdyoll have any questions, pJeasedo not hesitate 10 contact me. ThllIlk: you for your
assistance in this matter.
(
"
1, W. ScoltHenning, counsel for
Plaintiff have noobjectionlo the
serving of subpoenas as, outlined
above and wai 'the lC of ent.
Dated:
.
.
ATt! PIKE. SUlTE :W I. BETHLEHEM. PA taOI) (610) 868.161~ FAX 1610) 11611.1101
--
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LARRY E. STROBLE AND
SHIRLEY A. STROBLE, his wife,
Plaintiffs.
File No.
nO_1t;R1
vs.
ELIAS HARBILAS, Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Physicians of
Rehabilitation Industrial & Spine
(Name of Person or Entity)
Medicine, P.C., P.O. Box
2028, Mechanicsburg
PA 17055
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things: -
A complete copy of ~ny ~no all medi~~l rp~nrns of Larry E. Stroble
- ,,,- -,
including but not limit~d tn nffi~e notes, diaqnostic Rtllnip~, intako
sheets, etc. DOB: 9/30/44
~~N. 174-36-n~6~
at Thomas, Thomas & Hafer, LLP, Post Office Box 999, Harrisburg, PA 17108
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek in advance the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name
~ohn ~ M~N811y: TTT, RRquire
Address:
Thomas, Thomas & Hafer, LLP
Post Office Box 999, Harrisburq, PA 17108
Telephone: 717-237-7116
Supreme Court ID #
52261
Attorney For:
Defendant
BY THE COURT:
Prothonotary/Clerk, Civil Division
Date:
Seal of the Court
Deputy
(Elf. 7/97)
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I hereby state that a true and correct copy of the foregoing document was served upon all
date set forth below:
f3l.tqlc)c
counsel of record by first class United States mail, postage prepaid, addressed as follows, on the
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W. Scott Henning, Esquire
Handler, Henning & Rosenberg
319 Market Street, P.O. Box 1177
Harrisburg, PA 17108
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THOMAS, THOMAS & HAFER, LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7116
John J. McNally, m, Esquire
Attoroey J.D. #52261
Attorneys for Defendant
Elias Harbilas
LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO. 00-1581
ELIAS HARBILAS,
: CIVIL ACTION - LAW
Defendant
: JURY TRIAL DEMANDED
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Defendant certifies that:
1. Plaintiff does not object to the subpoena and waives the Notice of Intent to
Service a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule
4009.21 ;
2. A copy of a letter dated August 14, 2002, and executed by Plaintiffs counsel, W.
Scott Henning indicating no objections and waiver of the notice of intent is attached to this
Certificate;
3. A copy of the proposed subpoena is attached to this certificate; and
4. The subpoena which will be served is identical to the subpoena which is
attached to this certificate.
Date:
~ \'L\ 6L
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HAHDLER HE~IH !riG & ROSENBERG .. 237710:0
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08/14/02
15:32
FlUG-14 22 12:...41 F"ROM:THOMAS THoMFlS
7172377105
TO: 717+441+1781
PAGE:1il2
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THOMAS, THOMAS & HAFER, LLP
AITORNEYS AT LAW
OF COU N'sa
lA litES K. THOM" 5
August 13,2002
reDD,. NAAVOL
JAMES I. OOOP.Q
poNlEt. t., ~RIl..L
f,VA,H DUCIC
JOK,.. J. AfctNA~L.Y. III
Ji'EVIMC. !l.I.cplANAA4.
RROCIP R. i:Ql'ND
ION.TH... CO. ~ISNER
JOHNFLOUWt,AC'Ell '
JQ!Ii4T.IlUS"'II,Jll.
).ne:HEl.$-J; THORP
STEPHONIEL.NEis~GEa
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CRU"~MD:', TAY1.Olt
litRE' D. S.I1L
KIIIlSEaLYA: BOHLE
MA.RIO. PGWELL
.lOSEPM P. Ho\fER
JAWEs IC. THOUAS. "
ROBERTSll>< .. TAYloOlt
PET~ll. CORRY
It 9l,JIUiCE Mi:LEWORE. JR,
EDWAllr;:l H. JQIOAN. JR.
C_,KENT piUCe
. ANDALL G. GALE
O",VII)'[., SCHWAl.JoI
PETD,J. SPE."Xe.R
OOUGL.AS &, MAR~eu..('l
flAUI_J.DEl..4SEC"
S"'RA'" W, Aa-OUU,.
EUCENf. ..''''HUGH
STEPHEN E. GEOLJ~,DIG
lri:A.flP"W S. CQA'r,;:S
~os NORTH FRONT STREET
SIXTH FLOO~
P.O.,BOX 999
HARRI$BURG. ~A11108
(717) 2)7.7100
~AX-('17j 2:3'-710S
WRITER'S DIRECT DIAL NUMBER
(717)237-7114
pmd@tthlilw,com
W. ScotlHenning, Esquire
Handler, Helining &. Rosenberg
Post Offi~ Bo)(1177
HlIITisburg, PA 17108
VIlIhllshnile: 717-233-3029
Re: LaiTy E:Stroble, et ~\.v..Eli!ls liJirbihu
IlO~kdNuli)b~r;Cumberla"d C~untyCCP 00-\581
Our File Nuinber: 731-20537
Dear Mr. Henniag:
Weilltendtose,rvesu~JllJenas to Qbtaintl1e medical recordsofMJ. Larry Stroble on the
follOwingmedicwpro\liders: S~cphen !ohnSrtoke,/"tD, Roger Ostdhal, M,D.; Ohbopaedic
InstituteOf'Penns)')\(a.nia, Lower AllenTownship EMS, aJ\d PhysiciansofRehabilitlltion,
CJld!lStrial&:SpIIlE Medicine; P.C. If you nave no obJ~tionto the subpoenaing of these records
and are willing to waive the notipe of in ten I, please sign were indicated and retUrn t1lis
correspondence 10, us via facsimile.
SltOuld you have any questions, please do not hesitate to contact me. Thank you for your
assistance in this matter.
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Peggy M. D
Paralegal
1, W. SCClltHetllling,COUllSelfor
. Plaintiff have no objection 10 the
serving of subpOenas itS outlined
above anll waithe Ie of' ent.
Dated:
.
.
LEHIGH VAl.LEY OFFICE: ,400 ATH PI~E. SU1TE ::01. BETHr..EHEM. PA laGI) (610186S.167~ FAX 1610) 568.1701
_"","~---<l-~
.~ .
.
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LARRY E. STROBLE AND
SHIRLEY A. STROBLE, his wife,
Plaintiffs.
File No.
()()-1581
vs.
ELIAS HARBILAS, Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Stephen John Snoke, M n . 1 ROO ('i'lr1 i '" 1 P Rn"f!, ('i'lmp Hi 11. PlI 17011
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things: .
A complete copy of any and all medical records of Larry E. Stroble
includinq but not limited to office notes, diagnostic stlldies, intake
sheets, etc. DaB: 9/30/44. SSN: 174-36-0263.
at Thomas, Thomas & Hafer, LLP, Post Office Box 999, Harrisburg, PA 17108
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek in advance the reasonable cost of preparing the copies or producing the things sought
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it
THIS SUBPOENA WAS ISSUED AT THE REQUEST OFTHE FOllOWING PERSON:
Name
~nhn ~ M~Na11y, 111, R",~]ire
Address:
Thomas, Thomas & Hafer, LLP
Post Office Box 999, Harrisburq, PA 17108
Telephone: 717-237-7116
Supreme Court 10 #
52261
Attorney For:
Defendant
BY THE COURT:
ProlhonotarylClerk, Civil Division
Date:
Seal of the Court
Deputy
(EfI.7/97)
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CERTIFICATE OF SERVICE
I hereby state that a true and correct copy of the foregoing document was served upon all
counsel of record by first class United States mail, postage prepaid, addressed as follows, on the
date set forth below:
W. Scott Henning, Esquire
Handler, Henning & Rosenberg
319 Market Street, P.O. Box 1177
Harrisburg, PA 17108
Date:
<b\ (2-\ U 1,
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THOMAS, THOMAS & HAFER, LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7116
John J. McNally, ill, Esquire
Attorney I.D. #52261
Attorneys for Defendant
Elias Harbilas
LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-1581
ELIAS HARBILAS,
: CIVIL ACTION - LAW
Defendant
: JURY TRIAL DEMANDED
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Defendant certifies that:
1. Plaintiff does not object to the subpoena and waives the Notice of Intent to
Service a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule
4009.21;
2. A copy of a letter dated August 14, 2002, and executed by Plaintiff's counsel, W.
Scott Henning indicating no objections and waiver of the notice of intent is attached to this
Certificate;
3. A copy of the proposed subpoena is attached to this certificate; and
4. The subpoena which will be served is identical to the subpoena which is
attached to this certificate.
Date:
~l~uL
THOMA THOMAS & AFER, LLP
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08/14/02
15:32
HAHDLER HEHH I NG & ROSEHBERG .;. 237710:>
RIJG-14 ~ 12:4a i'"ROM:THOMRS THOMRS
7172377105
TO: 717+'141+1781
NU.lO::::o
PAGE:1il2
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THOMAS, THOM'AS & HAFER., LLP
AITORNEYS AT lAW
Of COUNsa
J"'''''[S K. THOMAS
August 13,2002
TODD ,. NAAvOL
J~"'ES j. oOoD.o
llONIE~ ~,OR1U.
EVA'" RueIC
JOKN I. MoNA1~Y; ill
XliVI.. C. ",",c"ANAR_A.
IIDO~ R. FOLAND
JONATHoN C. OtISHEa
JOHN FLOU~[;ACm
',~ T. ~~_$_~i~,-,J'II.
)4I](:KEU J~ '1itoal"
STEP114NIE,-1.. HEllSPERGER
HVOH'.O'HEiu.. '"
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LAU,flA 1._ ,N!1lZOCi
JO$~I(;. MdlAW;
DaUlolltCHD B. TAYl.OIl
116ll5~D.,6A"l
~1"BE.lY '"IOHLE
MAliK l. PG"'ELL
.lOSEPli P. H.\FER
JAWEs t::. THOMAS. II
ROBER'TSOf"( n. TAYLOR
PET&l J. CUIUV
R, 9UIil(E .M~LD-IOJl.E. JR,
[OWAllP H. JOIDA'N.-'R.
C_ KEN'T Ifuct'
..NDAlL q; G~LE
OAVlll f., SCl-iWA'UI
PET61H s.t.x~,
DOLJGLAS B._MA.RCELLO
PAU1_J.OEi.-L-,UEC'''''
~"'R.AH 'dJ. Ailil:OstU.
EUCENf. N. ~'t'HUaH
STE'"EN E. GEClJ~.DIG
Jr.:AN.e~ s. COA"ni.$
30$ NO~TH FRONT STREET
SIXTHFLOOil
P,O. llOX 999
HARRIS8\!RO. RI7108
1117lZH.710()
FAl(' ('717) 2:3,]-11()~
WRITER'S DIRECT DIAL NUMBER
(717)237-7114
pmd@tlhlaw,com
W. Scott H~rmirlg, ESll.uire
Handler, Henning 4 Rosenberg
Post office Box 1177
Hanisburg,PA 1710S
Via Facsimile:, 717-233-3029
Re: LanY.E.Stroble, etal. v, .Elills}ijtrbi12s
DockriNumber; CIIll1berJandCounty CCP 00-.1581
.. Our Fill\Number: 731-20537
~Mr.Henning:
We ,intend toserlie subpoenas to t)brain the medical records oCMr. Lll.!1)1 Sl!obleon the
fonc~rigniedical provid&s:StephenJchnSnoke, MD. Ro~er Ostdhal, M.p., Orthopaedic
Institute ofi'ennsylvania,Lowe~ Allen Town~hip EMS, Illld Physicians MRllhabilitation,
[ndustria! & Spine Medicine, P .C. If you have nO objection [0 the subpoenaing of these records
Bnd arewillin1} to waiVE the notice of intent, please sign were indicated and retum this
correspondi!ll,e to us via facsimile. .
Should you have any questions, please do nor he,itate to contact me. Thank you for your
assistance inthislllaner.
(
.~
I.>-cvy\
PeggyM, Du
Paralegal
I, W. Stott Hennmg, counsel for
P\aintiffhave no obJEGtlon to the
serving of subpoenas OJ" outlined
above arid waithe I of ent.
Dated:
.
.
LEHIGH VALLEY OFFICE: 3400 ATH PI~E. SUITE ::01. BETHI.EHEM. PA laOI) (610) 86a.167~ FAX (610) 868.1701
~1IIIIIiIrllIll...41.....:
"
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LARRY E. STROBLE AND
SHIRLEY A. STROBLE, his wife,
Plaintiffs.
File No"
00 1<;A1
vs.
ELIAS HARBILAS, Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Lowe~ Allen EMS, 1993 Hummel Avenue. Camp Hill, PA 17011
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things:
A complete copy of the EMS Report 9/2/99 of Larrv ,E. Stroble.
DOB: 9/30/44. SSN: 174-36-0263
at Thomas, Thomas & Hafer, LLP, Post Office Box 999, Harrisburg, PA 17108
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, 10 the party making this request at the address listed above. You have the right
to seek in advance the reasonable cosl of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name
~nhn~ M~N~lly, TTT. RR~]ire
Address:
Thomas. Thomas & Hafer, LLP
Post Office Box 999, Harrisburq. PA 17108
Telephone: 717-237-7116
Supreme Court ID #
52261
Attorney For:
Defendant
BY THE COURT:
Prothonotary/Clerk, Civil Division
Date:
Seal of the Court
Deputy
(Eft. 7/97)
-
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CERTIFICATE OF SERVICE
I hereby state that a true and correct copy of the foregoing document was served upon all
counsel of record by first class United States mail, postage prepaid, addressed as follows, on the
date set forth below:
W. Scott Henning, Esquire
Handler, Henning & Rosenberg
319 Market Street, P.O. Box 1177
Harrisburg, PA 17108
Date:
~\1-~
HAFER, LLP
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THOMAS, THOMAS & JlAFER, LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
(717) 237-7116
John J. McNally, m, Esquire
Attorney I.D. #52261
Attorneys for Defendant
Elias Harbilas
LARRY E. STROBLE and
SIDRLEY A. STROBLE, his wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-1581
ELIAS HARBILAS,
: CIVIL ACTION - LAW
Defendant
: WRY TRIAL DEMANDED
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Defendant certifies that:
1. Plaintiff does not object to the subpoena and waives the Notice of Intent to
Service a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule
4009.21;
2. A copy of a letter dated August 14, 2002, and executed by Plaintiffs counsel, W.
Scott Henning indicating no objections and waiver of the notice of intent is attached to this
Certificate;
3. A copy of the proposed subpoena is attached to this certificate; and
4. The subpoena which will be served is identical to the subpoena which is
attached to this certificate.
Date: ~
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'_d,_' 08/14/02 15: 32HAHDLER HEHHING & ROSEHBERG .;. 237710:0 NU. loG'" "'ell.
~JG-14 ~2 12:41 ,.RO~:THOMAS THOMAS
7172377H'lS
TO: 717+441+1781
PAGE:: 11\2
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THOMAS, THOMAS & HAFER, LLP
A.TTORN~YS AT LAW
August IJ,2D02
roDD a. NAIIVOL
JANES j: 0000..0
"ANfEt. t.. GRH,L
EVAH 8'-'\CK
JOliN I. NoNAJ..~Y. III
Ii'EVINC,,"~"'A"A.4.
BSOO~ .. FOLAHD
JONATHAN C. D&I$~ER
loHN FLOUNUCKEll
JOIINT. HUS,,'N, HI.
,:MIC,J.lEu' J; nfQRP
STEPIIANIH. HEBSP6RGER
IiV_OI4 P. D'HEI~' In
w. PA.SB$N l'O'tiEtl.
LAU,IlA 'J. "tatoo
JOSIil>H Ii Iof~AU;
CBUlolllOH" B. TAYlml
CSIl51l< 0. BAHL
KIMBERLY A. BOHLE
N4.Iil~-l. powELl.
JOSEPH P. ..."FER
JAW,Es X.'THO....AS. II
RO~ERT~,n,TAyi..OJt
PErea J. CURlY
Q BUIlKE ...~L~05tE.. JR,
EDWAIlP H. ,JORDAN. JR.
C KEN'T Xtlc:e.
. ANDAI.L (j GAt.E
O-,YUl f.. SCHil~u.t
'E1uJ.S..'X(;ll
OQUGLAS - &,. MARCELLO
f1AUI_J. DEl-WEe"
So\RAH '61: AR05EU.
EUGENE N. ",HUGN
ST€PHEN t.-GECUL.bIC
II:AtU~"" s_ COA'rlS:~
Of'COUJ'lfSEi.
JA""fS K. THOMAS
~os NORTH FRONT STREeT
SIXTH Fi...OOIl
P,O. BOX 999
HARRl$BURG,PA. 11108
(117) 2)7.iI00
fA,X <, 17l1.l'J-110~
WRITER'SDIRI!CT DIA~ NUMBER
(717) 237-1114
pmd@tthiBwcom
\\I.SCOl1 ijcI!Iling, Esquire
H;1;ldler,IieJ\l1\ngk Rosenberg
Post Of!iGe130X 1177
Rmisburg, PA 17108
Re: J,an,.I!:.Stroble, etal. v. Elias aarbilas
Dock.~ NUhlber;Cllmbor!aJi.l! County CCP 00-15IU
Our File Number: 731f20537
Vjali'a~9imile: 717~:Z33..3029
Dear Mr. Henning:
Weihtendtoserv(:,subJloenasto obtain tbemedicat recordsofMr; L~ SlI"oble C)l the
fOlloWing .medicaJ proliiders:.StephenJonn Slloke, MD. RogerOsldhal,M.D., Orthopaedic
InslitUte ofPennsylvania, tower Allen Town~j,ipEMS, and PliysichinsofRehabillration.
t:ndusjrial &: SpineMedicine,P.C. If you have no objection toth.e subpoenaing oftl1e.se records
andare willin~to waive the notice of intent; please sign were indica.red and retum lhis
correspondenc:e to us via facsimile.
Should you have any questions, please dOMI hesitate 10 contact me. Thank you for your
assistance inthis matter.
(
.~
I, W. SCCltt Henning, counsel for
Plaintiff have no objec.tion tl> the
serving of subpoenas 3sfJutlined
above and wai.the I of' ent.
Daled:
.
.
LEHIGH VALLEY OFFICE: 3400 ATH PIKE. SUITE .01. BETHLEHEM, PA ISOl7 (610) S68.167~ FAX 1610) 861l-17(J1
- IIIlIiiiiiI
. ,
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LARRY E. STROBLE AND
SHIRLEY A. STROBLE, his wife,
Plaintiffs.
File No.
00 1581
vs.
ELIAS HARBILAS, Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Roqer Ostdh"l, M n 9?0 C'5RtlU7Y flri"p. Mp('OhaRics!;nlr9", BA 170'i'i
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things:
A complete :copy of "ny "nn ,,11 mpni('O"l rp('O(')rnc: (')f T."rry li: Strobl'5,
including hl]~ nn~ limi~~~ ~n nffir~ nn~~Q. Ai~~~ostic studies, jntak~
sheets. etc.
DOB: 9/30/44. SSN: 174-36-0?63
at Thomas, Thomas & Hafer. LLP. Post Office Box 999, Harrisburg, PA 17108
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
With the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek in advance the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days ",fter its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OFTHE FOllOWING PERSON:
Name
~nhn ~ M~N"llYr TTT, RR~]ire
Address:
Thomas. Thomas & Hafer. LLP
Post Office Box 999. Harrisburq, PA 17108
Telephone: 717-237-7116
Supreme Court 10 #
52261
Attorney For:
Defendant
BY THE COURT:
Prothonotary/Clerk, Civil Division
Date:
Seal of the Court
Deputy
(Elf. 7/97)
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CERTIFICATE OF SERVICE
I hereby state that a true and correct copy of the foregoing document was served upon all
counsel of record by first class United States mail, postage prepaid, addressed as follows, on the
date set forth below:
Date: 2>(R( OL
W. Scott Henning, Esquire
Handler, Henning & Rosenberg
319 Market Street, P.O. Box 1177
Harrisburg, PA 17108
iliW
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moMAS, mOMAS & HAFER, LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
(717)237.7116
John J. McNally, m, Esquire
Attorney!.D. #52261
Attorneys for Defendant
Elias Harbilas
LARRY E. STROBLE and
SHIRLEY A. STROBLE, his wife,
Plaintiffs
: IN TIIE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO. 00-1581
ELIAS HARBILAS,
: CIVIL ACTION - LAW
Defendant
: JURY TRIAL DEMANDED
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Defendant certifies that:
1. Plaintiff does not object to the subpoena and waives the Notice of Intent to
Service a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule
4009.21 ;
2. A copy of a letter dated August 14, 2002, and executed by Plaintiffs counsel, W.
Scott Henning indicating no objections and waiver of the notice of intent is attached to this
Certificate;
3. A copy of the proposed subpoena is attached to this certificate; and
4. The subpoena which will be served is identical to the subpoena which is
attached to this certificate.
Date: ~ ~l OL
cN I, ,
305 rth Front Street
Post Office Box 999
Harrisburg, PA 17108-0999
~lIoIliIl!lll_..jllliu~~................iIlIlmb~I~ld;M;;II."....)j;Wu.ll.w.J.;;~~_lIIj~_I..u...lOiIiIII~li.ilI_~~
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08/14/02
15:32
HA~IDLER HENN I NG & ROSE~"BERG -> 2377100,
AUG -14 /~2 12: ~ 1 "ROM: THOMAS THOMAS
~
7172377105
TO: 717+441+1781
NU.l~l:l
PAGE: 02
1110.1.
"
"
THOMAS. THOMAS & liAFER. LLP
ATTORNEYS AT LAW
Of' COUNSEL
JA-l,ffS K.' i'"HOMAS
August 13, 2D02
TODD II. NA "VOL
'AMES j. CODP.o
P.NIEt. t.,GRJU.
EVA.H DU.CIC
101'1< I. M~AU.Y.lIl
K~VIN C. "CNA-"AAA
BBDOLU, FOUIID
IONATIlAN t. ptlSHER
JOHN, FI.OUNl.A,t~Ell
Ill!li'T',IIUS'''H,Ili.
~UCH'Et.$ J'; THOll'
m1'llANI E L., NEaS,l'E,llGEa
)1 VOH P. C'HEtI.-l- In
VI, PAI-iillilsN ~WW
L.Auil.o\ ". -M2JlZ()G
. JOSEPH G. Mdl,U.E
PRUloll4CNC B. TA Y!;.OR
DEI>E~ p, II"!!L
KIIilBEIlLY A, BOHLE
WARK I. POWELL
JOS.EPH P. HAFER
JAW.ES 1(. THOUAS. 11
R.QBERTSOk a, TAYl.OR
PETe" J. CUiU:,Y:
It 9UR._((E "',LE'WORE. JR,
EDWAJlP M,.-JaIOAN. JR.
C,",EI/T J'ltlCt
K.I<nALL G (lAt.E
04\110 f~.-SCHWAl.JoI
'EJOl'1: ....XEl'.
pOu"GLA$ &, M-,Ul,CE.l.LO
PAUI_J. DEl.-WEe",
S....R,At-t 'dJ. AROSELt.
EUGENf. N, ",HUGH
STEPtiEN E. GEOut,DICi
!.:ARBW s, CO,j(n:;.~
305 NORTH FRO!'/T STIU,e!
SIXTH FLOOR
P,O, BOX 999
HARRISBURG. fA 11108
(111) ZJ1.1100
~AX (117~ 2,:\'J~710~
WRITER'S DIRI3CT PIAL NUMBER
(717) 237-7114
pmd@tthlaw,com
W. Scott Henning,Esquire
Handler.Hell'ning &:. Rosenberg
Post OfficeBD.X 1177 .
Harrisburg; PA 17108
Via Facsimile: 717-233-3029
Re:. Larry E. Stroble. etal. v. Elills}larbilBs
])ockdl'lllll!ber; Cumborlalld County ec'P 00-1581
Our File Number: 731-20537
Dear Mr, Henning:
We\ntend to servesubpgen~s to Oblail1 theo1edicalreQordsofMr.Lmy Stroble 00 the
followingmedicaJproviders:Stepl'len John Snoke, M.D. RogerOstdhal. M,D.,Ortbopaedic
Institute Of Pennsylvania, l:.ower AllenTown~hip EMS,iuld PhysicIllJ1s of,ltehabilitation,
J:nduStriBl &:Spirie Medicine,P,c. If you havena objecliol'to the subpoenaing of these records
and ar~wilIingto waive the notice of intent, please sign were indicated and Teturn t!lis
correspondence 10 us via facsimile. .
Should you have any queslions, pleasedllllol hesitate ,0 contact me. Thank you for your
assistance in this matter.
('
I, -"fyY\
Peggy M, Du
Paralegal
1, W, Scott Henning,counse!for
Plainliffhave no objection 10 the
serving of subpoenas as outlined
above and wai 'the I of' ent.
Dated:
.
.
LEHIGH VALLEY OFFICE: J400 ATH PI~E. SUITE :WI. BETHLEHEM, PA ISOll (610) 868-167$ FAX (610)8611.\102
-~~
--"
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__r;-
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LARRY E. STROBLE AND
SHIRLEY A. STROBLE, his wife,
Plaintiffs.
vs.
ELIAS HARBILAS, Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
File No.
00_1<;1'\1
TO: Orthopaedic Institute of PA, 875 Poplar Chllr"h Roan, ('amp Hi 11. PI< 1 7011
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things:
A complete copy of any ann all mAni~al rA~oros of Larry F.
strohl",
.
includinq ," but not limited +-:0 offi ~p nnt-p~ Cli ~gnn~i t-i r': ~t-lln; ClC:
. ,
intake sheets, etc. DOB: 9/30/44. SSN: 174-36-0263.
at Thomas, Thomas & Hafer. LLP, Post Office Box 999, Harrisburg, PA 17108
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek in advance the reasonable cost of preparing the copies or producing the things sOl,lght.
If you fail to produce the docl,lments or things required by this subpoena within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OFTHE FOLLOWING PERSON:
Name John J M"Nally, TTT, F.Rqllire
Address:
Thomas. Thomas & Hafer. LLP
Post Office Box 999, Harrisburq. PA 17108
Telephone: 717-237-7116
Supreme Court ID #
52261
Attorney For:
Defendant
BYTHE COURT:
Prothonotary/Clerk, Civil Division
Date:
Deputy
Seal of the Court
(Elf. 7/97)
....
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CERTIFICATE OF SERVICE
I hereby state that a true and correct copy of the foregoing document was served upon all
counsel of record by first class United States mail, postage prepaid, addressed as follows, on the
date set forth below:
W. Scott Henning, Esquire
Handler, Henning & Rosenberg
319 Market Street, P.O. Box 1177
Harrisburg, PA 17108
Date:
~n-\ O'L
J. ly, III, Esq . e
mey for Defendant
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LARRY E. STROBLE and
SHIRLEY A. STROBLE,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00-1581
ELIAS HARBILAS,
Defendant
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA:
Please mark the above captioned matter settled and discontinued.
Date: 1- It ~C)tJj'l
ROSENBERG, LLP
ATTORNEY FOR PLAINTIFF
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