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ELEANOR VALINSKY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
v.
CIVIL ACTION - LAW
NO. 17 -- 17ft:, / (l'Ct4....t
JURY TRIAL DEMANDED
SILVER SPRINGS FIRE CO.,
Defendant
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or
other rights important to you.
,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
I
r.
I:
1
Court Administrator
Cumberland County Courthouse - 4th Floor
1 Courthouse Square
Carlisle, PA 17013
(717) 240-6200
l07706/MTG
ELEANOR VALINSKY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
v.
CIVIL ACTION - LAW
SILVER SPRINGS FIRE CO.,
Defendant
NO.
JURY TRIAL DEMANDED
NOTICIA
Le han demandado a usted en la corte. si usted quiere
defenderse de est as demandas expuestas en las paginas sugnuientes,
usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia
escrita 0 en persona 0 por abogado y archivar en la corte en forma
escrita sus defensas 0 sus objeciones alas demandas en contra de
su persona. Sea avisado que si usted no se defiende, la corte
tomara medidas y puede entrar una orden contra usted sin previo
aviso 0 notificacion y por cualquier queja 0 alivio que es pedido
en la peticion de demanda. Usted puede perder dinero 0 sus
propiedades 0 otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Court Administrator
Cumberland County Courthouse - 4th Floor
1 Courthouse Square
Carlisle, PA 17013
(717) 240-6200
ELEANOR VALINSKY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
NO . /11- I 'J t. I G.UJ'- "-'-
JURY TRIAL DEMANDED
v.
SILVER SPRINGS FIRE CO.,
Defendant
COM P L A I N T
1. Plaintiff Eleanor Valinsky is a citizen of the
Commonwealth of Pennsylvania, who resides at 408 Burnhill Road,
Shermansdale, Perry County, Pennsylvania.
2. Defendant Silver Springs Fire Company No. 1 is a
Pennsylvania non-profit corporation, regularly engaged in business
and maintains an office, fire company, and Friday Night Bingo Hall
at 6471 Carlisle Pike,
Mechanicsburg,
Cumberland County,
Pennsylvania.
3. The facts and occurrences hereinafter related took
place on August 13, 1996, at approximately 6:55 p.m., in the Bingo
Hall of the Silver Springs Fire Company in Mechanicsburg.
4. At that time and place, Plaintiff Eleanor Valinsky
was attending a Friday Night Bingo game at the Silver Springs Fire
Company.
5. At that time and place, Plaintiff Eleanor Valinsky
got up from her seat to purchase more bingo cards.
6. As Plaintiff Eleanor Valinsky was walking in the
aisle, she suddenly slipped and fell.
7. At that time and place, Plaintiff Eleanor Valinsky's
foot slipped on some chopped steak, causing her to fall backwards
onto her buttocks and lower back, causing a severe impact with the
concrete floor.
8. The chopped steak had been spilled onto the floor
approximately 30 minutes earlier.
9. The Silver Springs Fire Company operated the food
stand, which sold steak sandwiches, and was at the time,
responsible for the care, custody, and control of the property.
10. The aforementioned fall and resulting injuries were
caused by Defendant Silver Springs Fire Company's wanton, careless,
reckless, and negligent failure to properly inspect and maintain
its premises as follows:
(a) Failing to properly maintain the Bingo Hall
and using appropriate staff to make sure all
the floor surfaces were clean;
(b) Failing to properly inspect the area held open
to business invitees for dangerous conditions
of which they were or should have been aware;
(c) Failing to provide a safe environment for the
Friday Night Bingo game;
(d) Failing to clear a spill that had been on the
floor for approximately 30 minutes;
(e) Failing to properly warn business invitees of
the slippery conditions on the floor inside
the Bingo Hall;
15. Because of the nature of these injuries, Plaintiff
Eleanor Valinsky has been advised and therefore avers that she will
be forced to incur similar expenses in the future, and a claim is
made therefor.
16. As a result of the aforementioned injuries,
Plaintiff Eleanor Valinsky will be forced to incur future medical
expenses, and a claim is made therefor.
17. As a result of the injuries sustained, Plaintiff
Eleanor Valinsky has endured, and will have to endure in the
future, great physical and mental pain and suffering, great
inconvenience and curtailment of her daily activities, loss of
life's pleasures and enjoyment, and claim is made therefor.
18. As a result of the injuries sustained, Plaintiff
Eleanor Valinsky has been and in the future will be subject to
great humiliation and embarrassment, and a claim is made therefor.
19. As a result of the injuries sustained, Plaintiff
Eleanor Valinsky has sustained a loss of the ability to work, loss
of opportunity, and a permanently diminished earning capacity, and
claim is made therefor.
20. Plaintiff Eleanor Valinsky continues to experience
pain, discomfort, and limitation and therefore, avers that her
injuries may cause residual problems and permanent loss of bodily
functions for the remainder of her life, and a claim is made
therefor.
WHEREFORE, Plaintiff Eleanor Valinsky demands judgment
against Defendant Silver Springs Fire Company in an amount in
excess of $25.000.00, exclusive of interests and costs and in
excess of any jurisdictional amount requiring compulsory
arbitration.
. hael E. Kosik, Esquire
1. D. No. 36513
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
Dated: 4/3)97
..If I
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VERIFICATION
I, ELEANOR VALINSKY, Plaintiff, have read the foregoing
COMPLAINT and do hereby swear or affirm that the facts set forth in
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the foregoing are true and correct to the best of my knowledge,
information and belief. I understand that this Verification is
made subject to the penalties of 18 Pa. C.S. ~4904, relating to
unsworn falsification to authorities.
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'r::L(.tI-'~rl' c:/rd.....:___A-y
ELEANOR VALINSKY
DATED: 1.3 J?/.<-l..CIi 1'117
705 A.2d 452
(Cite os: 705 A.2d 452)
Jaynet A. MOORHEAD, Adminislratri~ of the
Estate of Calherine B. Ba~ter.
Deceased, Appellant,
v.
CROZER CHESTER MEI>ICAL CENTER,
Appellee.
Superior COUrl of Pennsylvania.
Argued Oct. 15, 1997.
Filed Dec. 31, 1997.
Reargument Denied March 5, 1998.
Patient sucd hospilal for injuries suslained in fall on
hospilal premises. After palient dicd and
administratri~ was SUbsliluted as plaintiff, the Court
of Common Pleas, Delaware County, Civil No.
94-5637. Bradley, J.. entered judgment for patient,
in which iI awarded as damages for past medical
e~penses amount of Medicare allowance hospilal had
received for treatment of injuries sustained in fall.
Plaintiff appealed, and Ihe Superior Coun, No.
00261 Philadelphia 1997, Saylor, J., held thai: (I)
amount received by hospilal from Medicare was nOl
determinalive as to amount of damages for past
medical COSIS, but (2) hospital was entilled 10 setoff
for damages awarded in e~ccss of Medicare
allowance it received, as value of care provided by
hospital was not payment from collateral source.
Affirmed.
Olszewski, J" dissented and filed opinion.
II) DAMAGES c:;?101
115klOI
Personal injury plaintiff wh" seeks damages for cost
of medical services provided to him as resull of tOri'
feasor's wrongdoing is entilled to recover reasonable
value of those medical services.
121 DAMAGES c:;?101
lI5klOI
While amount thai was actually paid for mcdical
services may be relevant in determining rcasonable
value of those services, for purposes of award of
damages for cost of medical services in personal
injury action, Irier of faCI must look to varicly of
olher factors in making such a finding, including
amount billed 10 plaintiff. and relative markel value
Page I
of those services.
131 DAMAGES c:;?101
115kl01
Amounts billed and paid for medical services arc no
more than factors to be considered In determining
reasonable value of such services, for purposes of
award of damages for past medical costs.
14) DAMAGES c:;?63
115k63
1I0spilal which trealed palienl for injuries sustained
by patient in fall while at hospilal, and which
accepted Medicare allowance as payment in full for
its treatment, was bolh tOri' feasor and provider of
medical services in qucslion, and thus was entilled
to seloff against patient's rccovery for past medical
e~penses amount by which reasonable value of
medical services provided 10 palient e~ceeded
payment allowcd by Medicare; amount of setoff
represented value of care provided by hospilal ilself,
and thus was nOl payment from collaleral source.
151 DAMAGES c:;?63
115k63
Where 10rlfeasor ilself makcs payment 10 injured
parlY, 10rl-feasor's liabililY is reduced accordingly;
such conlribUlion may lake form of benefils olher
Ihan cash payments. Reslalement (Sccond) of TOrls
~ 920A(I).
161 DAMAGES c:;?59
115109
"Collaleral source rule" provides Ihat payments
from collateral source shall nol diminish damages
olherwise recoverable from wrongdoer; principle is
that iI is beller for the wronged plaintiff 10 receive
polential windfall Ihan for tori-feasor to be relieved
of responsibililY for Ihe wrong.
See publiealion Words and Phrases for olher judicial
constructions and definilions.
.453 Joseph M. Fioravanti, Media, for appellant.
R. Bruce Morrison. Philadelphia, for appellee.
Before CIRILLO, President Judge Emerilus, and
SA YLOR and OLSZEWSKI, 11.
SA YLOR, Judge:
Appellant, Jaynet A. Moorhead, administratri~ of
the estale of Calherine B. Ba~ler, deceased, appeals
Copr. 0 West 2000 No Claim 10 Orig. U.S. GOVI. Works
705 A.2d 452
(Cite II.S: 705 A.2d 452, .453)
from Ihc jUdgmcnl entcrcd againsl Appellce, Crozer
Chcslcr Medical Cenler, in Ihis mcdical
malpraclicc aClion. We affirm Ihe judgment,
allhough we do so for rcasons which differ from
Ihose relied upon by Ihe Irial courl.
Appellant's deecdent, Calherinc Ba~lcr, was injured
whcn she fcll while a palient 11.1 Appellec's facility.
Mrs. Ba~ter filcd an aClion againsl Appcllce,
contcnding Ihal hcr fall resullcd from Appellee's
ncgligcncc. Appellant was subslituled as Ihe
plaintiff aflcr Mrs. Ba~lcr's dcalh. Allhough Ihe
case was Iried before a jury, Ihe queslion of
compensalion for pasl medical e~penses was
reserved for Ihe uial courl. The jury relUrned a
verdiel in favor of Appellant, awarding Ihe sum of
$46,500.00 in non-economic damages, including
pain and suffering.
Concerning pasl medical e~penses, Ihe agreed-upon
facls are as follows IFNI]: The plaintiff's decedent
was covered by Medicare and by a "Blue Cross 65"
supplemental plan for which she had paid premiums.
The fair and reasonable value of Ihe medical care
Ihal Appellee furnished 10 Ihe decedent aflcr hcr fall
was $108,668.31. The Medicare allowance for such
care was $12,167.40, 80% of which was paid by
Medicare and 20% of which was paid by Blue Cross
65. Pursuant 10 its voluntary parlicipalion in Ihe
Medicare .454 program, Appellce accepled Ihe
Medicare allowance as payment in full. Appellee is
nol permiued 10 seck Ihe remainder of Ihe fair and
reasonable cosl of ils services from Appellant or
from any olhcr source.
FN I. The parlies have filed an agreed-upon
slalemelll or faclS "pursualll 10 Pa.R.A.P.1925,"
which slalemelll has heen approved hy Ihe Irial
ClIurt. We nllle Ihal il is Pa.R.A.P.1924 which
provides thai such a S1atcmcnt. if approved by lhe
trial eourt. "shall Ihen he certified III Ihe appellare
cnurt as the record on appeal.... *
The queslion before Ihe Irial COUrl was whelher Ihe
correct measure of compensalory damages for
medical e~penses was Ihe amount billed by Ihe
hospital or Ihe amount received by Ihe hospital as
paymenl in full. Based on Ihe slipulaled facls, Ihe
uial COUrl delermined that Appellant's recovery for
pasl medical c~penses should be limited 10
$12,167.40, Ihe amount allowed by Medicare and
aecepled by Appellee as payment in full. According
10 Ihe Irial COUrl, case law assumes Ibal Ihe
Page 2
reasonable value of medical services equals Ihe
amoum billed for Ihose services, which in lurn
equals Ihe amount Ihal Ihe plainliff is contraclually
obligaled 10 pay. The court reasoncd Ihat where the
plaintiff is nOI obligaled 10 pay Ihe amount billed, il
is nOlnecessary 10 award Ihal amount to Ihe plaintiff
in order 10 make Ihe plainliff whole, To Ihe
contrary, Ihe COUrl noted, doing so would allow the
plaintiff 10 reap a windfall.
Accordingly, by order entered November IS, 1996,
Ihe uial COUrl Iimiled Ihe amount of pasl medical
e~penses recoverable by Appellant 10 $12,167.40,
Ihe amount set by Medicare as payment in full. This
amount was added 10 Ihe jury verdict of $46,500.00
for a 10lal verdict of $58,667.40. After Ihe court
awarded delay damages inlhe amount of $7,431.20,
judgment was entered against Appellee in the
amount of $66,098.60. This appeal followed.
On appeal, Appellant argues Ihal the trial COUrl's
award of past medical e~penses contravened the
seuled measure of compensalory damages and also
violated Ihe collaleral source rule. Specifically,
Appellant argues, as she did in the trial COUrl, that
under seuled law a plaintiff is allowed 10 recover the
fair and reasonable value of Ihe medical care made
necessary by Ihe defendant's negligencenin this
case, 5108,668.31. According 10 Appellant, the
10111.1 amount of Ihe verdict should therefore be
5155,168.31 (5108.668.31 plus $46,500.00, the
amount of the jury verdict), plus delay damages.
Appellee argues thai Ihe amount of damages should
cqual bil.l not e~ceed Ihe loss 10 the decedent. In Ihe
present case. Appellee reasons, Ihe amount of
medical e~penses actually incurred by or on behalf
of Ihe decedent was 512,167.40, Ihe amount allowed
by Medicare as payment in full. Appellee argues
Ihal 10 authorize a grealer measure of damages
would be 10 beslow a windfall upon Appellant. In
Appellee's view, Iherefore, the 10111.1 verdict should
be 558.667.40 (512,167.40 plus $46,500.(0), plus
delay damages.
111121 In Kashner v. Geisinger Clinic. 432
Pa.Super. 361, 638 A.2d 980 (1994), Ihe Superior
COUr! summarized Ihe principles by which the
amounl of medical e~penses recoverable by the
plaintiff is 10 be delermined.
II is well-seuled thai a plaintiff in a personal injury
aClion seeking damages for Ihe COSI of medical
Copr. 0 Wesl 2000 No Claim 10 Orig. U.S. GOVI. Works
705 A.2d 452
(Cite 1lS: 705 A.2d 452, .454)
services provided 10 him as a result of a
lonfeasor's wrongdoing is entilled 10 recover the
reasonable value of Ihose medical serviees. While
we agree thatlhe amount Ihat was aetually paid ...
for ..: medical services may be relevant in
determining the reasonable value of Ihose services,
Ihe Irier of fact must look to a variety of other
factors in making such a finding. Among Ihose
faclors 10 be considered by Ihe jury are Ihe amount
billed 10 the plainliff, and Ihc relative markel value
of those services.
Clearly, the amount actually paid for medical
services docs not alone determine the reasonable
value of Ihose medical services. Nor docs illimit
the finder of fact in making such a delerminalion.
Id" 432 Pa.Super. al 367, 638 A.2d at 983
(citations and footnoles deleled). The Superior
Coun found addilional suppon for ils observations
in D. Dobbs, Handbook on Ihe Law of Remedies ~
8.1, al 543 (1973):
The measure of recovcry is notthc cost of scrvices
... bUltheir reasonable value.... IRlecovcry does
nol depend on whelher there is any bill at all, and
the Ion feasor is liable for Ihe valuc of medical
serviccs evcn if Ihey are given withoul charge,
since il is their value and notlheir cosllhat counts.
.455 Id., 432 Pa.Super. at 368, 638 A.2d al 983,
quoling Dobbs, supra. To similar effect is the
Reslatement (Second) of Torls, which Ihe Superior
Coun also quoted wilh approval:
The value of medical services made necessary by
Ihe lorl can ordinarily be recovered ahhough they
have created no liabilily or expense 10 Ilhe) injured
person, as when a physician donates his services.
Id., quoting Reslatement (Second) Tons ~ 924
comment f (1979) (emphasis added).
(3) When these principles are applied to Ihe present
case, il is apparent Ihat Ihe Irial coun erred in
delermining Ihe measure of damages. The Irial
coun's conclusion that "Ihe reasonable value of
medical scrvices ... cqualls) Ihc amount billcd for
the scrvices which ... cqual(slthe amount paid for
Ihose services" is not supponed by Ihe applicable
case law. To the contrary, Ihe amounts billed and
paid for medical services are no more Ihan faclors to
be considered in delermining the reasonable value of
such services.
In Kashner, the Superior Coun determined Ihalthe
Irial coun had erred in limiling Ihe amounl of
medical expenses provable by the plaintiffs to Ihe
Puge J
amounts paid by Ihe slale Department of Publie
Welfare (DPW). Accordingly, Ihe coun remanded
the case for a new Irial on damages so Ihat the
reasonable value of the medical services provided to
Ihe plaintiff-wife could be delermined. Here,
however, a remand is not necessary since the parlies
have already stipulated Ihat the reasonable value of
Ihe medical services provided 10 Appellant's
decedent was $108,668.31.
J
(4) However, we must still determine whelher
Appellee is entilled to a seloff in Ihe amount by
which Ihe reasonable value of the medical services
exceeded Ihe payment allowed by Medicare. We
conclude Ihal because Appellee was bolh ton feasor
and provider of the medical services in question,
Appellee is entilled 10 such a setoff,
(5) Where the ton feasor ilself makes a payment 10
the injured pany, Ihe lonfeasor's liabilily is reduced
accordingly. Kashner, supra; Reslatement (Second)
of TollS ~ 920A(1). Such a contribulion may take
the form of bene fils other than cash payments.
Rcstalemenl (Second) of Tons ~ 920A comment a.
In Ihe prcsent case, Appellee, the ton feasor,
provided benefits 10 Appellant's decedent in the
form of medical care made necessary by ils own
negligence. In such a case, as the Superior Coun
nOled in Kashner, "Ihe amount of damages assessed
againsl Ihe (ton feasor] should be reduced 10 Ihe
eXlent Ihat the reasonable value of Ihe medical
services provided and billed by Ihe (ton feasor)
excceds Ihe payment (by Ihe third-party payor--in
Ihal case, DPW,." Id., 432 Pa.Super. at 369 n. 7,
638 A,2d at 984 n. 7.
161 Such a result does not violale the collateral
source rule.
The collaleral source rule provides thai payments
from a collaleral source shall nol diminish the
damages otherwise recoverable from the
wrongdoer. The principle behind Ihe collateral
source rule is Ihal il is beller for the wronged
plainliff to receive a polential windfall than for a
lonfeasor to be relieved of responsibililY for Ihe
wrong.
Johnson v. Beane, 541 Pa. 449, 456, 664 A,2d 96,
100 (1995). In Ihe present case, the only payment
from a collateral source was Ihe $12,167.40
received from Medicare, see Titchnell v. Uniled
States of America, 681 F.2d 165 (3d Cir.(982),
which Appellant is entilled to recover. The amount
Copr. C Wesl 2000 No Claim to Orig. U.S. GOVI. Works
705 A.2d 452
(Cite u.~: 705 A,2d 452, .455)
of the setoff allowed to Appellee (S96,5oo.9I, Ihe
difference belween Ihe reasonable value of Ihe
medical services provided to Ihe decedent and Ihe
payment from Medicare) represents Ihe value of Ihe
medical care provided by Appellee itself and docs
not constitute a payment from a collaleral source.
Therefore, in this case, the proper measure of
damages for Ihe medical services provided 10
Appellant's decedent as a result of the negligence of
Appellee was S108,668.31, Ihe agreed. upon fair and
reasonable value of Ihe decedent's medical care.
Afler such damages are correctly measured,
Appellee is entitled 10 a seloff or credil against its
liability in the amount of S96,5OO.91 since Appellee,
the lonfeasor, provided such services. When such
seloff is applied, Appellee's ultimale liability for the
decedent's medical expenses is SI2,167.40. Since
Ihis is the sum .456 awarded by the trial coun, wc
affirm Ihe judgmcnt cntcrcd against Appellee, while
rejecling Ihe rationale which led to such resull.
Judgment affirmed.
OLSZEWSKI, J., liIes a Dissenting Opinion.
OLSZEWSKI, Judge, dissenling:
While the expression of the majority view provides
a persuasive analysis and sound rationale, I am
obliged to differ. I agree with my colleagues'
insightful discussion of the appropriale measure of
damages in Ihis case. I disagree, however, with the
conclusion Ihat appellee is entitled to a setoff.
I'u~e 4
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The maJorny correctly slates Ihe applicable law.
"Where the ton feasor itself makes a payment to the
injured pany, the ton feasor's liability is reduced
accordingly." Majority, at 455. Conversely, where
a collateral source makes a contribution to the
injured pany, the tortfeasor's liability is nol
reduced. rd. Therefore, appellee is only entitled to
a setoff if it made a contribUlion to appellant in
excess of the contribution from Medicare and Blue
Cross. See id. at 455.
The majority finds thaI by forgiving all appellant's
reasonable medical costs in excess of Ihe S12,167.40
paymenl from Medicare and Blue Cross, appellee
made a S96,5OO.91 contribution to appellant.
Appellee admits, however, that Medicare prohibits it
from seeking "the remainder of the fair and
reasonable cost of its services from Appellant or
from any other source." Id. at 2. Thus, appellee did
not contribute anything to appellant thaI appellant
had not already received from Medicare. This
means thaI appellee itself has made no payment to
Ihe injured pany in excess of Medicare's
contribUlion. Accordingly, appellee is not entitled to
a setoff. Cf. Kashner v. Geisinger Clinic, 432
Pa.Super. 361. 638 A.2d 980 (1994) (holding thaI a
clinic was entitled 10 a seloff where it volunlarily
forgave medical expenses pursuant to a charity
program).
For the foregoing reasons, I respectfully dissent.
END OF DOCUMENT
Copr. Ci West 2000 No Claim to Orig. U.S. Govt. Works
732 A.2d 616 (Table)
(Cite os: 5571'a, 630, 732 A.2d 616)
Pu~e 5
Jaynet A. Moorehead, Admlnistratix of eslate of
Calberine B. Baxler
v.
Crozer Chester Medical Center (FN8)
Appeal from the Superior Court.
Disposition: Granled (184 M.D. 1998).
NO. 0238 M.D. ALLOC.( 199)
FN8. Ju"ice SA YI.OR did nlll participate in Ihe
cllnsillcralillll ur decision uf Ihis maller.
Supreme Coun of Pennsylvania
November 10, 1998
(The decision of Ihe Coun is referenced in
Ihe Atlantic Reponer in a lable caplioned "Supreme
Coun of Pennsylvania Disposition of Petilions for
Allowance of Appeal.")
Pa.Super., 705 A.2d 452
END OF DOCUMENT
Copr. 0 West 2000 No Claim to Orig. U.S. Govt. Works
5. P(aintiffEleanor Valinsky is also not aware of any lay witnesses that are to be called by
the defense in this case who will testify that Mrs. Valinsky's failure to use her cane in any way
contributed to the fall.
6, The only witness that Plaintiff is aware of that actually observed Mrs. Valinsky prior to
or close to time of the fall is Freda Anderson who is a social member at the Fire Company and on
the bingo committee.
7. In her deposition, Fred Anderson indicated that Mrs. Valinsky was walking up the center
aisle without any problem and that she was not hurrying. (Anderson Depo. page 10, lines 20-25 and
page 22, lines 18-23), attached hereto as Exhibit A.
8. Fred Anderson in a statement given shortly after the incident indicated that Mrs.
Valinsky at times, from her observations of her in the bingo hall, sometimes walks with the cane
and sometimes she does not and that she can ambulate pretty well without the cane. See pages 6-7
of the statement of Fred Anderson attached hereto as Exhibit B
9. Plaintiff Eleanor Valinsky testified that she uses a cane to walk across the parking lot
and street and into the building but felt comfortable inside the building not using her cane.
10. On the day of the incident as she was walking up the center aisle, Mrs. Valinsky
indicated that she walked close to the tables and placed her hands on the tables to steady herself and
that she was still holding on to the table when she fell.
II. Plaintiff Eleanor Valinsky maintains that there will be no testimony based upon the
numerous depositions that were taken that any witness will testify that Mrs. Valinsky's failure to lIse
211'IM7.IIMEKIMMM
a cane or her manner of walking on the evening of the accident in any way contributed to hcr
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falling.
12. Plaintiff Eleanor Valinsky maintains that it would be pure speculation to allow the jury
to consider hcr failure to use her cane at thc time of thc incident as cvidence of comparative or
contributory negligencc without somc testimony as to how hcr failure to usc thc cane causcd or
contributed to the accident.
WHEREFORE, Plaintill' Elcanor Valinsky, respectfully rcquests this Honorable Court to
instruct the Dcfcndant and thcir represcntatives and counscl not to mcntion. refer to, interrogatc or
aucmpt to convcy to the jury in any manner, eithcr dircctly or indirectly, any of the abovc-
mentioned facts and issucs, and that beforc thcy make any uttcmptto do so, thcy must obluin special
permission from this Court outside the prescncc and hcaring of thc jury, und to further instruct the
.-
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Defendants and their counsel not to mukc any rcfi:rcnce to the filct that this Motion has becn filed
and granted, and to wam and caution cuch und cvery onc of their witncsses to strictly follow thc
samc instructions.
ANGINO & ROVNER, P.C.
aJe:
Michael E. Kosik, Esquire
I. D. No. 36513
4503 North Front Strect
Ifarrisburg, PA 17110-1799
(717) 238-6791
Counsellor I'laintills
2''11017.1\~1I'~\MMM
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5 A.
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11 A,
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18 A.
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20 Q.
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22
23
24
25 A.
Exam./Kosik ; F, Anderson
It was probably between quarter till and ten till
7:00,
And do you recall having any specific note of
watching her walk up or are you just--
No, I just happened to look up because one of the
ladies said, Oh, hurry up, Freda, it's quarter
till, I've got to get this done before the
lottery numbers are drawn.
When you say "lottery," are you talking about the
state lottery on TV?
Yes, on television. We have the TV on, and bingo
always doesn't start until after the lottery
numbers are drawn or we hear about that, too.
(Discussion held off the record)
And you recall, if I understand you correctly, the
thing that drew your attention to, I guess, Mrs.
Valinsky and Sylvia was their giggling?
Yes, I do,
It's always nice to hear people giggle
and they are happy,
At that point, other than glancing up and seeing
them, did you have any particular thought, you
know, they were moving fast, they were doing this,
doing that, any particular thing that rushed
through your mind at that point?
No.
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CB: Okay
FA: Bingo starts at7:00.
CB: Okay what happens from 5:00 until 7:00?
FA: Well they can eat, get their cards, mark their Bonanza Bingo's, sit there and
chit chat.
CB: Okay and they can they can come in or the doors open at 5:00 so they can
sit there actually for two hours then before Bingo actually starts is that correct?
FA: Yes
CB: And how long does it normally go is there a time limit?
FA: It's usually over between 10 and 10:30.
CB: Okay and how is that determined?
FA: It just depends on how long it takes you know to call the game how many
Bingo's there is that we have to call back.
CB: Okay so you have a certain number of games that you run
FA: Yea
CB: every night
FA: Yea
CB: or every time that you have Bingo?
FA: Mhum
CB: And how many games are there?
FA: Uh I'm tryin think is it 25 cause there all in a packet
CB: Okay
FA: And we fill the packets every week.
CB: Okay now do you normally work uh at the Bingo?
FA: Yes
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CB: Okay and you've worked there for the two years that you've been a
member?
FA: Yes
CB: Okay on this particular night where were you?
FA: I was down at the fire hall at setting at my table where I give the Bingo
players their admission slips.
CB: Okay now from there can you see the is it like one big room?
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FA: Yes it is.
CB: Okay so it's very open?
FA: Yes
CB: Now we are showing the date of this incident as August 16th is that the
correct dale which is last Friday night?
FA: Yes it is.
CB: Okay about what time did this occur?
FA: Oh just a little before 7:00 probably either quarter till or you know in between
a quarter till and 5 till 7:00.
CB: Okay can you tell me what happened?
FA: Okay I was setting at the table and Elenore was walking up towards me and I
some little boy had gotten a sandwich from the kitchen and was walking back
with it and dropped some food on the floor and just as Elenore walked by it she
slipped on the piece of food and feel and I couldn't get up to you know fast
enough from the table to get down to her
CB: Mhum
FA: And one of the ladies that was walkin with her helped her up.
1/
CB: Okay when she feel did she fall uh in a sitting position in a prone position on
her side how can you recall?
CB: Okay
FA: Cause some times she walks with it and sometimes she doesn't.
CB: Okay can she ambulate pretty well without the cane?
FA: Yes she can
CB: Okay was she walking alone?
FA: Well one of the other girls was walking with her,
CB: Okay how far from from Mrs. Velinski was this other girl?
FA: Oh almost like side by side you know they were walking up talking.
CB: Okay and is this again a regular that goes there?
FA: Mhum
CB: Do you know who she is?
FA: Mmm I can't think of her name right now that's terrible. /
CB: Is she a friend of Mrs. Velinski's?
FA: I think so because when they took her out to the ambulance uh she left all of
her stuff with this other lady.
CB: Okay it wasn't Sylvia Welsh was it?
FA: Yes Sylvia thank you.
CB: Okay
FA: My mind went blank.
CB: That's okay so she is the one that was walking with her then?
FA: Yes
CB: But they weren't hanging on to hands or holding each other up or anything
like that were they?
FA: Oh no no
CB: Okay um now you said that this this young boy um and by any chance do
you know his name?
FA: No I don't.
CB: Okay you said that he had just gone into the kitchen and bought a
sandwich?
FA: Yes
CB: Okay what size um particle of food are we talking about on the floor is it the
size of a 50 cent piece?
FA: There was several pieces of uh cause he got a a steak sandwich
CB: Okay
FA: And he dropped several pieces of the meat.
CB: Okay
FA: And his mother after this happened she said 'Weill saw him drop it and I
should of got up then and cleaned it up but I told him I'd get it later".
CB: But did she say that when it happened?
FA: No this was after it happened.
CB: Afterwards okay so she did see it where was his mother do you know?
FA: Sitting at the at the table right where she fell.
CB: Oh okay so she was right in the in the approximate area of where where the
lady fell then?
FA: Yes
CB: The mother of this boy?
FA: Yes she was the second seat in.
CB: Was the ah was the Bingo Hall crowded when this happened?
FA: Yes I think there was probably probably either 82 or 83 people that had
bought tickets already.
CB: Mhum
FA: and again I asked her and she said no she just wanted to play Bingo.
CB: Mm was she bleeding or where there any obvious signs of injury?
FA: No nothing.
CB: Did she break her eye glasses?
FA: No
CB: So she went after she went down and bought her cards then she went back
to the table?
FA: Mhum.
CB: Was she still walking uh by herself?
FA: No Sylvia and one of the other guys that comes and plays Bingo John uh
he's from uh one of the other fire companies I can't even think of it now Franklin
Town Fire Company.
CB: Okay
FA: And he helped her back
CB: Okay
FA: to her chair.
CB: And did she play Bingo the rest of the night?
FA: She played it till almost half time and because we put in a call to Joe
CB: Mhum
FA: to tell him you know about the incident
CB: Joe is who?
FA: Velinski
CB: He is?
CB: Okay so you were actually the only eye witness then that that saw the the
food particle fall on the floor and saw her fall on it?
FA: Mhum now you know the people that were setting you know at the table
might have seen it.
CB: Mhum but they aren't volunteers they're they're patrons correct?
FA: No they're just patrons.
CB: Okay okay urn is there any reason you can that you can think of urn that
she would not have been able to have seen that piece of steak?
FA: Not unless she was lOOking down I mean they weren't that big of pieces.
CB: Okay can you give me an approximate size?
FA: Oh probably maybe the 5 to a quarter.
CB: 5 cents to a quarter?
FA: Yea.
CB: Okay and what color is the floor?
FA: Uh it's light it's like a light gray or like a light cream.
CB: Okay is it tiled?
FA: Yes it is.
CB: And the steak I take it was dark brown is that correct?
FA: Yes it's like them Steak Urns.
CB: Okay so it would not have blended in with the floor?
FA: No but I if you wasn't looking down you probably wouldn't you know notice
it.
CB Right and you said it was a few minutes between the time that he dropped it
and when she fell?
FA: Yes
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CB: Were other people had other people walked over that area prior to her
falling?
FA: No
CB: Okay so she was the first one?
FA: Yea because he was walking down towards her and she was walking up
CB: Okay
FA: He went in to sit down.
CB: But he made no attempt to pick up the steak?
FA: No
CB: Do you know what hospital she was taken to?
FA: No I don't.
CB: Do you know what her condition is?
FA: No I know that Joe tried to call and they said it was privileged information
they couldn't give it out to him.
CB: Okay
FA: But he never did say what hospital she went to?
CB: Okay do you know what her complaints were her areas of injury?
FA: She said that her head was hurting her and she took some Tylenol for it and
she said her knee hurt.
CB: Do you know which knee?
FA: Oh I don't remember I think it was her right one but I'm not sure.
CB: Okay
FA: But she told me that she had a herniated disk and that's what was what she
was worried about that's why she wanted to fill out the accident report.
CB: Oh okay did she lose consciousness at all?
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FA: No
CB: Okay were the police called?
FA: No
CB: Okay so there was no police report taken?
FA: As far as I know I didn't see any over there.
CB: Okay do you know what the weather was like outside?
FA: It was nice outside.
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CB: Okay so there was no uh wetness on the floor that could have contributed
to this?
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FA: No
CB: Okay is there anything else that you'd like to add to this statement or can
add regarding this incident?
FA: Not that I can think of.
CB: Did you understand all the questions that I asked?
FA: Yes I did.
CB: Were the statements you gave true and correct to the best of your
knowledge?
FA: To the best of my knowledge yes.
CB: Did you understand this interview was recorded?
FA: Yes I did.
CB: Thank you I will now turn off the recorder it's approximately 3:20 P.M,
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CERTIFICATE OF SERVICE
I, Michael E, Kosik, un cmployee of thc law fiml of Angino & Rovner, P,C., do hereby
certify that I am this day serving a truc ami corrcct copy of the forcgoing PLAINTIFF'S
MOTION IN LIMINE upon all counsel orrccord, by hand-dclivery.
Karcn Coates, Esquire
Thomas, Thomas & Ilafer
305 N. Front Street
P.O. Box 999
Harrisburg,l'A 17108-0999
/"
Dated: 3/13/00
ELEANOR VALlNSKY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
97-1761 CIVIL
SILVER SPRING FIRE
COMPANY,
Defendant
CIVIL ACTION. LAW
IN RE: DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS
BEFORE BAYLEY AND HESS. JJ.
ORDER
AND NOW, this 10' day of November, 1997, the motion of the defendant for
judgment on the pleadings is DENIED.
BY THE COURT,
Michael E. Kosik, Esquire
For the Plaintiff
_ ~'" (l>lA<.G:~L /I jrJ./ q'7 .
"J. f.
Robert A, Lerman, Esquire
For the Defendant
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A motion for judgmcnt onthc plcadings is in thc
nature ora demurrcr in which all of the nomnovant's
well-pleaded ullcgations ure vicwcd us lme, but
only thosc facts spccifically admittcd by the
nonmovant may bc considercd against him. Such a
motion may only be grantcd in cascs whcre no
material faets are at issuc and thc law is so clear that
a trial would be fruitless exercise,
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97-1761 CIVIL
iollowing standard of review:
Kerr v, Borou~h of Union City, 150 Pa.Commw, 21,24, 614 A.2d 338, 339 (1992) (citations
omitted). The plaintiff does not question that defendant's status as a voluntccr fire company
makes it a "local agency" and, therefore, entitled to the protection of govemmcntal immunity
under the Political Subdivision Tort Claims Act, 42 Pa.C.S.A, Section 8541, ltl ~.I However,
the plaintiff does contend that this statute provides no coverage to the defendant as her claim falls
squarcly within the exception to this immunity rclating to dangcrous conditions of real property,
42 Pa.C.S.A, Section 8542(b)(3),
The real property exception to govemmental immunity stated in 42 Pa.C.S.A. Section
8542(b)(3) provides in pertinent part:
(b) Acts which may impose liability, - The
following acts by a local agency or any of its
employees may result in the imposition of liability
on a local agency:
142 Pa.C.S.A. Section 8541, provides:
Except as otherwise provided in this subchapter, no local agency shall be liable for
any danmges on account of any injury to a pcrson or propcrty caused by any act of the
loeal agency or an employee thereof or any other person.
2
97-1761 CIVIL
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(3) Reall'rol'el'l)'. - The carc, custody or
control of rcul propcrty in thc posscssion of the
local agcncy. exccpt thut thc local agency shull not
bc liublc for dumugcs [with exceptions not relcvunt
hcrc)..,
The Commonwealth Court has stated that for the rcal cstatc exception to apply, "thc conduct
alleged in the complaint must be directly rclatcd to the condition ofthc propcrty." Sin1:er v.
School District of Philadelphia, 99 Pa.CommlV. 553, 555, 513 A.2d 1108, 1109 (1986). This
exception has been interpreted as imposing liability lor negligencc "which makcs government
owned reul property unsafe for activitics for which it is rcgularly uscd, intcnded to bc uscd or
reasonably foreseen to be uscd. W. Thc complaint, the plaintiffs IVcll-pled allcgutions of which
must be taken as true, avers that the firc company wus negligent in:
(u) failing to propcrly maintain thc Bingo
Hall and using appropriate stall' to make sure
all the floor surfaces wcre clean;
(b) failing to properly inspect the area hcld
open to business invitces for dangerous
conditions of which they were or should
have been aware;
(c) failing to providc a safe cnvironment for
the Friday Night Bingo game;
(d) failing to clear a spill that had bccn on
the floor approximutely 30 minutes;
(e) failing to properly lVarn busincss invitees
3
the allegations set forth in Paragraph No, 12 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
13, Denied, After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 13 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
14. Denied, After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No, 14 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
15, Denied, After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 15 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
16. Denied. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 16 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
17, Denied. After reasonable inve<;cigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 17 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
4
18. Denied, After reasonable investigation, Defendant is without
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knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 18 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
19, Denied. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No, 19 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded,
20. Denied, After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No, 20 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
WHEREFORE, Defendant demands judgment in its favor and against the
Plaintiff together with cost of suit.
By way of further answer, Defendant asserts the following:
NEW MATTER
21. Paragraphs 1 through 20, inclusive, of Defendant's Answer to
Plaintiff's Complaint are incorporated herein by reference as if fully set
forth at length.
22, Plaintiff's Complaint fails to state a cause of action against
Defendant upon which relief can be granted.
5
(d) Failure to wear appropriate footwear,
30. At all times relevant, Defendant acted carefully, lawfully,
properly and prudently, fulfilling all duties and responsibilities
required of it under the law.
31. Plaintiff's injuries and damages, if any, were caused solely and
directly as a result of the acts or omissions of individuals or entities
other than Defendant over whom Defendant had no responsibility or right of
control.
32. Plaintiff may have failed to mitigate her damages.
33. Defendant's conduct in no respects was wanton, careless,
reckless or negligent.
WHEREFORE, Defendant demands judgment in its favor and against the
Plaintiff together with costs of suit.
TRICKLER, LERMAN,
S & CALKINS
Date:
BY:
RO ERT A. LE
Attorney for the Defendant
Supreme Court I,D. #07490
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
;;J
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ELEANOR VALINSKY,
CIVIL ACTION - LAW
Plaintiff,
NO. 97-1761 CIVIL TERM
v.
SILVER SPRING FIRE CO.,
Defendant.
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW,
this
/5+
day of ~*t 1997,
Lerman,
I, Robert A,
Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS &
CALKINS, Esquires, hereby certify that I have, this date, served a copy of
Answer and New Matter of Defendant to Plaintiff's Complaint by United
States Mail, addressed to the party or attorney of record as follows:
Michael E. Kosik, Esquire
ANGINO & ROVNER, P,C.
4503 North Front Street
Harrisburg, PA 17110-1799
STRICKLER, LERMAN,
MOS & CALKINS
1~
BY:
m1c/si1ver.a~m.z
OBERT A LE / ESQUIRE
Attorney for Defendant
Supreme Court I,D, U 07490
110 South Northern Way
York, Pennsylvania 17402
Telephone: (717) 757-7602
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To the extent that the averments of Paragraph 10 can be
constr.led as averments of fact, it is specifically denied that
Defendant acted carefully, lawfully, properly or prudently with due
care under the circumstances and fulfilled all duties and
responsibilities it owed to the public and persons in the positions
of Plaintiff. To the contrary, it is averred that Defendant Silver
Spring Fire Company was careless, reckless, and negligent, as set
forth in Plaintiff's Complaint,
22. Denied. This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that Plaintiff's
Complaint fails to state a cause of action against Defendant Silver
Spring Fire Company. To the contrary, it is averred that
Plaintiff's Complaint sets forth a cause of action for negligence
by a property owner in failing to maintain its property in a safe
condition.
23. Denied. This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that Plaintiff's claim
is barred by the applicable statute of limitations. As admitted in
Paragraph 3 of Defendant's Answer, Plaintiff's cause of action
arose as a result of a slip and fall, which occurred on August 16,
1996. Plaintiff instituted suit within less than one year from the
2
date of the accident, well within the two-year statute of
limitations set forth in 42 Pa.C.S,A. ~5524,
24, Denied, This averment is a conclusion of law to which no
responsive pleading is required, To the extent that a response may
be deemed proper, it is specifically denied that Defendant Silver
Spring Fire Company is immune from suit or is afforded any
protection by the application of the ~olitical Subdivision Tort
Claims Act, 42 Pa.C.S,A. ~8541. To the contrary, it is averred
that Plaintiff Eleanor Valinsky's claim against Defendant Silver
Spring Fire Company involves an activity within which immunity
against a political subdivision has been waived by the Legislature
and involved an activity in which immunity was never intended to
apply.
25, Denied. This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that Plaintiff Eleanor
Valinsky's damages or recovery are limited or barred by the
application of 42 Pa.C.S.A. ~8553, To the contrary, it is averred
that the damages and recovery which Plaintiff Eleanor Valinsky
seeks are no in any way limited or barred,
26. Denied, This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that Plaintiff Eleanor
3
Valinsky's claim does not fall within a recognized exception to the
Political Subdivision Tort Claims Act, 42 Pa.C.S.A, 58541, ~~.
To the contrary, it is averred that Plaintiff's cause of action
does fall within an exception of immunity against a political
subdivisions, specifically 42 Pa,C,S.A, 58542(b) (3).
27. Denied. This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that the dangerous
condition on which Plaintiff Eleanor Valinsky's fall occurred was
not caused by the condition of the realty itself. To the contrary,
it is averred that the dangerous condition existed as a result of
the activities carried on upon the land and for which it was held
open to the public and were as a result of the Defendant's
negligence in maintaining the property, as averred in Plaintiff's
Complaint.
28. Denied. This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that Plaintiff Eleanor
Valinsky was aware of and therefore, assumed the risk of her
injuries and damages which she sustained.
29. Denied. This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that Plaintiff Eleanor
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Valinsky was comparatively or contributorily negligent on the cause
of action stated in Plaintiff's Complaint.
By way of further
response, it is specifically denied that:
(a) Plaintiff Eleanor Valinsky failed to
act carefully, lawfully, properly,
and prudently. To the contrary, it
is averred that at all times
Plaintiff Eleanor Valinsky was
properly and lawfully proceeding in
a prudent manner prior to her fall;
(b) Plaintiff Eleanor Valinsky was not
looking where she was going. To the
contrary, it is averred that
Plaintiff Eleanor Valinsky was
keeping a careful and prudent
lookout, which included looking
ahead and around her as she walked
through the people, tables, chairs,
etc., in the fire hall. Plaintiff
Eleanor Valinsky had no reason to
expect the dangerous condition which
existed and therefore, did not
observe the dangerous condition
which existed on the floor prior to
her fall;
(c) It is admitted that Plaintiff
Eleanor Valinsky did not observe the
dangerous condition of the floor
prior to her fall. However, it was
through no negligence of her own,
since she at all times exercising a
careful and prudent lookout as she
proceeded through the Defendant's
building;
(d) It is specifically denied that
Plaintiff Eleanor valinsky failed to
wear appropriate footwear. To the
contrary, it is averred that at all
times Plaintiff Eleanor Valinsky was
wearing safe and appropriate
5
footwear in the form of a rubber
soled Reebok walking shoe,
especially for the type of activity
for which she was on Defendant
Silver Spring Fire Company's
property,
30. Denied. This averment is a legal conclusion to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that Defendant Silver
Spring Fire Company acted carefully, lawfully, properly or
prudently,
It is further denied that Defendant fulfilled all
duties and responsibilities required under the law.
To the
contrary, it is averred that Defendant Silver Spring Fire Company
was negligent and careless, as set forth in Plaintiff's Complaint.
31.
Denied.
This averment is a conclusory statement
unsupported by any factual statements and therefore, is denied. To
the contrary, it is averred that Plaintiff Eleanor Valinsky's
injuries and damages were caused solely and directly as a result of
the acts and omissions of Defendant Silver Spring Fire Company and
not as a result of some alleged acts or omissions of an unnamed
individual or entity.
32. Denied, This averment is a conclusion of law to which no
responsive pleading is required. To the extent that a response may
be deemed proper, it is specifically denied that Plaintiff Eleanor
valinsky failed to mitigate damages.
To the contrary, it is
6
VERIFICATION
I, ELEANOR VALINSKY, Plaintiff, have read the foregoing
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER and do hereby swear or
affirm that the facts set forth in the foregoing are true and
correct to the best of my knowledge, information and belief, I
understand that this Verification is made subject to the penalties
of 18 Pa. C.S. ~4904, relating to unsworn falsification to
authorities.
~
t:)k~M/ z,i~~
ELEANOR VALINSKY
DATED: Iv lJl~/ 1'1 f 7
,
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
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ELEANOR VALINSKY,
Plaintiff,
CIVIL ACTION - LAW
NO" 97-1761 CIVIL TERM
v.
Defendant.
JURY TRIAL DEMANDED
SILVER SPRING FIRE CO.,
MOTION OF DEFENDANT, SILVER SPRING FIRE COMPANY
FOR JUDGMENT ON THE PLEADINGS
AND NOW COMES the Defendant, Silver Spring Fire Company, by
its counsel, Robert A. Lerman and Griffith, Strickler, Lerman,
Solymos & Calkins, and files the following Motion for Judgment on
the Pleadings pursuant to Pa. R.C, P. Rule 1034, the grounds for
which are as follows:
1. Plaintiff instituted this civil action by a Complaint
filed on April 4, 1997, and a copy of Plaintiff's Complaint is
attached hereto and marked Exhibit 1.
2. In her Complaint, Plaintiff alleges that she slipped on
some chopped steak which had been spilled onto the floor in the
Bingo Hall of the Silver Spring Fire Company in Mechanicsburg,
Pennsylvania and that the Silver Spring Fire Company operated the
food stand which sold the steak sandwiches and was at the time,
'-
.
responsible for the care, custody and control of the property. See
Plaintiff's Complaint, paragraph nos. 3, 6, 7, 8, and 9.
3. Plaintiff alleges that Defendant was wanton, careless,
reckless and negligent in failing to properly inspect and maintain
its premises for a number of reasons as outlined in paragraph no,
la, subparagraphs (a) through (h) of Plaintiff's Complaint, all of
which allegations fall under the category of allowing some chopped
steak to be spilled upon and then remain upon the floor.
4. Defendant filed an Answer and New Matter to Plaintiff's
Complaint on May 6, 1997, and alleged as an affirmative defense,
that Defendant is immune from this suit by virtue of the Political
Subdivision Tort Claims Act (42 Pa,C.S.A, 58541 et seq.), A copy
of Defendant's Answer and New Matter is attached hereto and marked
as Exhibit 2.
5, Plaintiff filed a Reply to Defendant's New Matter on or
about May 15, 1997, and denied that Defendant, among other things,
is immune from this suit as Defendant alleges,
6. The Defendant is a volunteer fire company and as such, is
a local agency and is immune from suit pursuant to the Political
Subdivision Tort Claims Act, 42 Pa.C.S.A, 58541 et seq.
2
.
'.
WHEREFORE, Defendant respectfully requests that this Honorable
Court issue an Order granting Defendant's Motion for Judgment on
the Pleadings, finding that the Defendant is immune from
Plaintiff's claims.
GRIFFITH, STRICKLER, LERMAN,
SOLYMOS & CALKINS
Date:
Jl).I~ ~I Iqq1
BY:
ROBERT A. LERMA
Attorney for the Defendant
Supreme Court I.D. #07490
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
3
04/09/97 13:07
'lS717 i90 3995
t\SLC CODE t\OlC
ll!I003
--.. ..
ELE~~OR VALINSKY.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENN.t..
v,
CIVIL ACTION - LAW
SILVER SPRINGS FIRE CO.,
Defendant
NO.
JURY TRIAL DEMANDED
NOTICIA
Le han demandado a usted en la corte: Si usted quiere
defenderse de estas demandas expuestas en las paginas sugnuientes.
usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia
escrita 0 en persona 0 por abogado y archivar en la corte en forma
escrita sus defensas 0 sus objeciones alas demandas en contra de
su persona. Sea avisado que si usted no se defiende, la corte
tomara medidas y puede entrar una orden contra usted sin previo
aviso 0 notificacion y por cualquier queja 0 alivio que es pedieo
en la. peticioh de dernanda. Usted puede perder dinero 0 sus
propiedades 0 otros derechos import antes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMED1ATEMENTE. S1 NO TIENE
ABOGADO 0 S1 NO TIENE EL D1NERO SUF1CIENTB DE PAGAR TAL SERVIC10.
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OF1C1NA CUYA DIRECC10N SE
ENCUENTRA ESCR1TA ASAJO PARA AVER1GUk~ DONDE SE PUEDE CONSEGU1R
AS1STENC1A LEGAL.
Court Administrator
Cumberland County Courthouse - 4th Floor
1 Courthouse Square
Carlisle, PA 17013
(717) 240-6200
(: ~ !D'P
04/09/97 13:07
~717 790 3995
liSLC CODE li01C
-..... ..
EL€ANOR VALINSKY,
Plaintiff
IN THE COURT OF CO~MON PLEAS
CUMBERLAND COUNTY, PENt\A.
CIVIL ACTION - LAW
v,
SILVER SPRINGS FIRE CO.,
Defendant
NO,
JURY TRIAL DEMANDED
COM P L A I N T
1, Plaintiff Eleanor valinsky is a citizen of the
Commonwealth of Pennsylvania, who resides at 408 Burnhill Road,
Shermansdale, Perry County, Pennsylvania.
2, Defendant Silver Springs Fire Company No, 1 is a
Pennsylvania non-profit corporation, regularly engaged ~n business
and maintains an office, fire company, and Friday Night Bingo Hall
at 6471 Carlisle Pike,
Mechanicsburg,
Cumberland County,
Pennsylvania,
3. The facts and occurrences hereinafter related took
place on August 13, ~996, at approximately 6:55 p,m., in the Bingo
Hall of the Silver Springs Fire Company in Mechanicsburg,
4. At that time and place, Plaintiff Eleanor Valinsky
was attending a Friday Night Bingo game at the Silver Springs Fire
Company.
5, At t~a~ time and place, Plaintiff Eleanor Vp2tnskv
got up from her seat to purchase more bingo cards.
6, As Plaintiff Eleanor Valinsky was walking in the
aisle, she sudde~2y slipped and fell,
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04/09/07 13:08
, ,
'ZS717 790 3995
/iSLC COIJE /iOIC
il!l 005
--...
7, At that time and place, Plaintiff Eleanor Valinsky' s
foot slipped on some chopped steak, causing her to fall backwards
onto her buttocks and lower back, causing a severe impact with the
concrete floor,
8, The chopped steak had been spilled onto the floor
approximately 30 minutes earlier.
9. The Silver Springs Fire Company operated the food
stand, which sold steak sandwiches, and was at the time,
responsible for the care, custody, and control of the property.
10. The aforementioned fall and resulting injuries were
caused by Defendant Silver Springs Fire Company's wanton, careless,
reckless, and negligent failure to properly inspect and maintain
its premises as follows:
(a) Failing to properly maintain the Bingo Hall
and using appropriate staff to make sure all
the floor surfaces were clean;
(b) Failing to properly inspect the area held open
to business invitees for dangerous conditions
of which they were or should have been aware;
(c) Falling to provide a safe environment for the
Friday Night Bingo game;
(d) Failing to clear a spill that had been on the
floo~ for approximately 30 minu~cs;
(e) Failin~ to properly warn business invitees of
the slippery conditions or. the floor inside
the 3ingo Hall;
~~ :.::J,
04/09/07
13:08
'a717 700 3995
NSLC CODE r;OlC
~006 .
'--.-'
--.. '.
(f) Failing to take proper measures to eliminate
hazards to ousiness invitees of which it was
aware or should have known existed in the
Bingo Hall;
I
.,
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(g)
Maintaining a dangerous condition on its
property, over which it had ownership,
possession, care, custody, and control under
~2 Pa. C,S.A, S8542(3); and
Failing to exercise the high degree of care
which a property owner. owes to business
invitees who enter upon the land for a purpose
which it is held open to public.
11, Plaintiff Eleanor Valinsky sustained painful and
Ih)
serious injuries, including but not limited to, right hip
contusion, severe pain in her right leg, left hip, and lumbosacral
spine area.
12. As a result of the injuries sus:ained, Plaintif:
Eleanor Valinsky can do limited chores , drive no more than 30
minutes to one hour, sleep for only three to four hours at a time,
and lift no more than 15 to 20 lbs.
13. As a result of the injuries sustained, Plaintiff
Eleanor Valinsky has had to u~dergo painful treatment, including
painful intramuscular injections and physical therapy.
14. As a result of the injuries sustained, Plaintiff
Elf?~nn't" Valins'kv Wa~ f;-..,...r;Arl .."" ':':'\"''''1''' ';~r."""'t"'" ~(')r m-=anir-='
treatment, medications. hospital:zation, physical rehabilitation,
and miscellaneous related expenses in efforts co restore her
physical healch, and a claim is made therefor,
'1,"
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04/09/97 13:09
~717 790 3995
N5LC CODE N01C
~007
-.... ..
15. Because of the nature of these injuries, Plaintiff
Eleanor Valinsky" has been advised and therefore avers that she will
be forced to incur similar expenses in the future, and a claim is
made therefor,
16. As a result of the aforementioned injuries,
?laintiff Eleanor Valinsky will be forced to incur future medical
expenses, and a claim is made therefor.
17. As a result of the injuries sustained, Plaintiff
Eleanor Valinsky has endured, and will have to endure in the
future, great physical and mencal pain and suffering, great
inconvenience and curtailment of her daily activities, loss of
life's pleasures and enjoyment, and claim is made therefor.
18. As a result of the injuries sustained, Plaintiff
Eleanor Valinsky has been and in the future will be subject to
great humiliation and embarrassment, and a claim is made therefor.
19. As a result of the injuries sus:ained, Plaintiff
Eleanor Va~insky has sustained a 10s5 of the abi~i:y to work, loss
of opportunity, and a per~anent:l diminished earning capacity, and
claim is made therefor,
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20. F:c':'...____ ::'~u..::::- Va.lins~y cont:.:-::..::s :~ e:-:pe~:.ence
pain, Aiscomfort, and limitation and therefore, avers that her
injuries may cause residual problems and permaner.c loss of bodily
funcuon,; Eor the remainder 0: her life, and a claim is made
therefor.
.'.)'
. ,; :.:i".
04109/97 13:09 '0'717 79U 3995
NSLC C.QU~ ~PJi:.
-.... ..
WHEREFORE, Plaintiff Eleanor Valinsky demands judgment
"gainst Defendant Silver Springs Fire Company in an amount in
excess of $25,000.00, exclusive of interests and costs and in
excess of any jurisdictional amount requiring compulsory
arbitration,
. hael E, Kosik, Esquire
I. D; No. 36513
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
Dated: '-//3/97
I I
. .....1".,
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. .""'....
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ELEANOR VALINSKY,
PlaintH f,
CIVIL ACTION - LAW
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You are hereby notified to file a written response to the enclosed
be entered against you.
BY:
BERT A. LER N
Attorney for the Defendant
Supreme Court I,D, #07490
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
Date:
~q1
NO. 97-1761 CIVIL TERM
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DEMANDED ;'-:\.:
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New Matter within twenty (20) days from service hereof or a judgment may
SILVER SPRING FIRE CO.,
Defendant.
JURY TRIAL
To: Eleanor Va1insky, Plaintiff
c/o Michael E. Kosik, Esquire
ANGINO & ROVNER. p.e.
4503 North Front Street
Harrisburg, PA 17110-1799
NOTICE TO PLEAD
.;
.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY', PENNSYLVANIA
ELEANOR VALINSKY,
CIVIL ACTION - LAW
Plaintiff,
NO. 97-1761 CIVIL TERM
v.
SILVER SPRING FIRE CO.,
Defendant.
JURY TRIAL DEMANDED
ANSWER AND NEW MATTER OF
DEFENDANT TO PLAINTIFF'S COMPL~INT
AND NOW COMES the Defendant, Silver Spring Fire Company, by its
counsel, Robert A. Lerman and Griffith, Strickler, Lerman, Solymos &
....:..:.:..
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Plaintiff's Complaint:
1. l>.:i::\i tted.
2. Admitted.
3. Denied. It is denied that the facts and occurrences described
by Plaintiff in her Complaint. occurred on August 13. 1996,
It is
admitted that on August 13, 1996, at approximately 6:55 p.m., in the Bingo
Hall of the Silver Spring Fire Company in Mechanicsburg, Pennsylvania, an
incident occurred involving Eleanor Valinsky,
4. Admitted,
5. Denied. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 5 and same are denied and
strict proof thereof is demanded.
, ,
6. Denied. After reasonable investigation, Defendant is without
~
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knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No, 6 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
7. Denied. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No, 7 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
8, Denied. It is denied that the chopped steak had been spilled
onto the floor approximately 30 minutes earlier. On the contrary, it is
averred that in the
.... ... ....
event ~~~:~:::: ~:~~es s~e s_:ppe~
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chopped steak, it is averred that said chopped steak was spilled onto the
floor by a minor patron moments or minutes before Plaintiff allegedly
slipped and fell,
9. Admitted.
10, Denied, It is denied that the aforementioned fall and resulting
injuries were caused by Defendant Silver Spring Fire Company's wanton,
careless, reckless, and negligent failure to properly inspect and maintain
its premises as follows:
(a) Failing to properly maintain the Bingo Hall and using
appropriate staff to make sure all the floor surfaces were
clean;
2
, .
the allegations set forth in Paragraph No. 12 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
13, Denied. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
~he allegations set forth in Paragraph No, 13 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
14. Denied, After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 14 of Plaintiff's Complaint and
same are de~ied and strict proof thereof is demanded,
:5.
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~~owledge or infor~ation sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 15 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
16, Denied, After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 16 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
17. Denied. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 17 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
4
. .
18, Denied. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No. 18 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded.
19, Denied. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in Paragraph No, 19 of Plaintiff's Complaint and
same are denied and strict proof thereof is demanded,
20, Denied. After reasonable investigation, Defendant is ..ithout
knowledge or information sufficient to :o=~ a belief as to the t=~:h of
:.he alle9a:iorls se: :o:t.r. :n ?c:a;;:a:;;. ::.:..
:~ ?:a:~:~:~'s ::=~_~~:~: a~j
same are denied and strict proof thereof is demanded,
WHEREFORE, Defendant demands judgment in its favor and against the
Plaintiff together with cost of suit,
By way of further answer, Defendant asserts the following:
NEW MATTER
21. Paragraphs 1 through 20, inclusive, of Defendant's Answer to
Plaintiff's Complaint are incorporated herein by reference as if fully set
forth at length,
22. Plaintiff's Complaint fails to state a cause of action against
Defendant upon which relief can be granted.
5
, .
,
~
24, Defendant is immune from this suit and protected by the
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23. Plaintiff's Complaint may be barred by applicable statutes of
limitation.
Political Subdivision Tort Claims Act, 42 Pa.C,S,A, 58541 et, seq.
25. Plaintiff's damages and recovery, if any, are limited or barred
pursuant to 42 Pa.C.S.A. 58553.
",
26, Plaintiff's claims do not fall within any of the enumerated
.,.
exceptions to the general grant of immunity afforded to Defendant by
virtue of the Political Subdivision Tort Claims Act, 42 Pa.C,S,A. 58541
et. seq,
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condition of Defendant's reality itself, deriving or originating from or
having the reality as its source,
28. The Plaintiff assumed the risk of her injuries and damages, if
any.
29, The Plaintiff is contributorily and/or comparatively negligent,
which contributory and/or comparative negligence was the sole and
substantial cause of her injuries and damages, if any, and included:
(a) The failure to act carefully, lawfully, properly and
prudently;
(b) Failure to look where she was going;
(c) Failure to observe and avoid a condition she now claims was
dangerous; and
6
. .. .
, .
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ELEANOR VALINSKY,
CIVIL ACTION - LAW
Plaintiff,
NO. 97-1761 CIVIL TERM
v.
SILVER SPRING FIRE CO.,
Defendant.
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this
I~t
day of 1;!9ft 1997,
I , Robert A. Lerman,
Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS &
CALKIKS. Esq'J.ires, he~.-=,by C'~:':.::y :.ha: ! h~':e, ::-::s ::?t:.:, ;:.::--'/eo a copy ~~
Answer and New Matter of Defendant to Plaintiff's Complaint by United
States Mail, addressed to the party or attorney of record as follows:
Michael E. Kosik, Esquire
ANGINO & ROVNER, P,C.
4503 North Front Street
Harrisburg, PA 17110-1799
STRICKLER, LERMAN,
OS & CALKINS
I
BY: 1 J11.t;.fV
OBERT A LERMAN~ ESQUIRE
Attorney for Defendant
Supreme Court I.D. # 07490
110 South Northern Way
York, Pennsylvania 174C~
Telephone: (7171 757-7602
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ELEANOR VALINSKY,
CIVIl. ACTION - LAW
Plaintiff,
NO. 97-1761 CIVIL TERM
v.
SILVER SPRING FIRE CO.,
Defendant.
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO Pa.R,C.P. 1012
TO THE PROTHONOTARY:
Kindly enter the appearance of Robert A. Lerman of Griffith,
Strickler, Lerman, So1ymos & Calkins, as attorneys for the
Defendant, Silver Spring Fire Company, in the above-captioned
matter and mark the docket accordingly.
R. BERT A, LER
Attorney for the Defendant
Supreme Court 1.0, #07490
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
BY
Date:
(lptiJ ~ I qq1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
I '
ELEANOR VALINSKY,
CIVIL ACTION - LAW
Plaintiff,
NO. 97-1761 CIVIL TERM
"-
I
v.
SILVER SPRING FIRE CO.,
Defendant.
JURY TRIAL DEMANDED
AND NOW, this
CERTIFICATE OF SERVICE
I~ day of April, 1997,
I, Robert A. Lerman,
a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS &
CALKINS, hereby certify that I have, this date, served a copy of
PRAECIPE FOR ENTRY OF APPEARANCE by United States Mail, addressed
to the party or attorney of record as follows:
Michael E. Kosik, Esquire
ANGINO & ROVNER, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
BY:
OBERT A. L R..M
Attorney for Defendant
Supreme Court I,D. #07490
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ELEANOR VALINSKY,
Plaintiff,
CIVIL ACTION - LAW
NO. 97-1761 CIVIL TERM
v.
SILVER SPRING FIRE CO.,
Defendant,
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
II,
AND NOW, this
day of August, 1997, I, Robert A. Lerman,
Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS &
CALKINS, Esquires, hereby certify that I have, this date, served a copy
of Defendant's Request for Admissions to Plaintiff by United States Mail,
addressed to the party or attorney of record as follows:
Michael E. Kosik, Esquire
ANGINO & ROVNER, P,C.
4503 North Front Street
Harrisburg, PA 17110-1799
GRIFF H, ,STRICKLER, LERMAN,
SOLYMOS & CALKINS
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BY: rc-['fJ..1' ! ~//J1C~
OBERT A LERMAN, ES UIRE
Attorney for Defendant
Supreme Court I.D. # 07490
110 South Northern Way
York, Pennsylvania 17402
Telephone: (717) 757-7602
2
CERTIFICATE OF SERVICE
I, Michelle M. prucnal, an employee of the law firm of Angino
Michelle M. prucnal
& Rovner, P.C., do hereby certify that I am this day serving a true
and correct copy of the foregoing PLAINTIFF'S RESPONSE TO
DEFENDANT'S REQUEST FOR ADMISSIONS upon all interested parties, via
postage prepaid first-class United States mail, addressed as
follows:
Robert A. Lerman, Esquire
GRIFFITH, STRICKLER, LERMAN,
SOLYMOS & CALKINS
110 South Northern Way
York, PA 17402-3737
(Counsel for Defendant)
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Dated:
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,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND coUNTY, PENNSYLVANIA
ELEANOR VALINSKY,
plaintiff,
CIVIL ACTION - LAW
NO, 97-1761 CIVIL TERM
v.
SILVER SPRING FIRE CO.,
Defendant.
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this
I)''M
day of
5~f-
1997, I, Robert
A. Lerman, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN,
SOLYMOS & CALKINS, Esquires, hereby certify that I have, this date,
served a copy of Defendant'S Answers to Plaintiff's Interrogatories - Set
No. 1 by united States Mail, addressed to the party or attorney of record
as follows:
Michael E. Kosik, Esquire
ANGINO & ROVNER, P.C.
4503 North Front Street
Harrisburg, PA 17110-1799
RIC)!KLER LE
OS & CAL INS
.
BY: \.:r' /11,
I BERT A LERMAN. QU RE
Attorney for Detendant
supreme Court 1.0. n 07490
110 south Northern Way
york, pennsylvania 17402
Telephone: (717) 757-7602
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ELEANOR VALINSKY,
Plaintiff,
CIVIL ACTION - LAW
NO. 97-1761 CIVIL TERM
v.
SILVER SPRING FIRE CO.,
Defendant.
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this
11)"'1-1.
day of
1997, I, Robert
5~1-
A. Lerman, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN,
SOLYMOS & CALKINS, Esquires, hereby certify that I have, this date,
served a copy of Defendant's Answers to Plaintiff's Inte=ogatories - Set
No. 1 by United States Mail, addressed to the party or attorney of record
as follows:
Michael E. Kosik, Esquire
ANGINO & ROVNER, P,C.
4503 North Front Street
Harrisburg, PA 17110-1799
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ELEANOR VALINSKY,
Plaintiff
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA,
CIVIL ACTION - LAW
SILVER SPRINGS FIRE CO.,
Defendant
NO. 97-1761 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIFF'S RESPONSE TO DEFENDANT'S REOUEST
FOR ADMISSIONS
1.
Admitted.
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2. Admitted.
3. Denied. During the course of conversations with people
present at the fire hall on the evening of the accident, Plaintiff
was notified by the witnesses listed below that the chopped steak
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had been spilled onto the bingo floor approximately 20-30 minutes
prior to Plaintiff's fall.
4.
Denied.
During the course of conversations and
subsequent investigation, Plaintiff was notified by witnesses that
the chopped steak had been spilled approximately 20-30 minutes
prior to Plaintiff's fall.
A. The following individuals were known to Plaintiff at the
time of her fall. Plaintiff subsequently learned that they had
personal knowledge of the chopped steak on the floor. Plaintiff
believes that Catherine Turner,
277 Salem Church Road,
Mechanicsburg, PA and Sylvia Welsh, 123 E. Simpson Street,
Mechanicsburg, PA are able to place the chopped steak on the floor
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ELEANOR V ALlNSKY,
Plaintiff,
CIVIL ACTION - LAW
VS.
No. 97-1761
SILVER SPRING FIRE COMPANY,
Defendant.
Jury Trial Demanded
DEFENDANT. SILVER SPRING FIRE COMPANY'S.
MOTION FOR SUMMARY .JUDGMENT
AND NOW, this 18th day of March, 1999, pursuant to Pa. R. Civ. Pro. 1035.2, as amended,
comes the Defendant. Silver Springs Fire Company, by their attorney, Robert A. Lerman, Esquire
and Griffith, Strickler, Lerman, Solymos & Calkins, and moves this Honorable Court for entry of
Summary Judgment, the grounds for which are as follows:
I. Plaintiff, Eleanor Valinsky filed this cause of action in negligence against Defendant,
Silver Springs Fire Company. (See Complaint, which is attached hcreto as Exhibit "A").
2. This cause of action arises from a fall which occurred on or about August 16, 1996
on property owned by Defendant, Silver Springs Fire Company. (See relevant Deposition Transcript
attached to Briefin Support of Motion for Summary Judgment as Exhibit "A" through Exhibit "I").
3. Defendant Silver Springs Fire Company is immune from this suit and protected by
the Political Subdivision Tort Claims Act, 42 Pa.C.s. 98521, el seq..
4. In order to procced under a theory of negligence against a defendant who is subject
to governmental immunity, a plaintiff must first prove two threshold conditions; namely that, I) the
damages would otherwise be recoverable under common law or by statute creating a cause of action
against one not having an immunity defense, and 2) the injury must be caused by the negligent act
of the local agency or its employee acting within the scope of its office or duties, not including acts
of crime, fraud or malice. 42 Pa.C.S. 98542(a)(1) and (2).
5. Generally, in order to recover on a theory of negligence, a plaintiff must prove four
elemcnts: I) that the defendant owed a duty to the plaintiff; 2) that the defendant breaehed that duty;
3) that the breach was the proximate or legal cause of the accident; and 4) that the plaintiffsuffered
aclual10ss or damage.
6. Specifically, Plaintiff's thcory of negligence against Defendant, Silver Springs Fire
Company, is premised upon the real property exception which allows a political subdivision to be
sued for acts of negligence that arise whenever the negligence claim is premised upon the care,
custody or control of the real propcrty that is in the possession of the local agency. 42 Pa. C.S.
98542(b)((3). (See generally, Complaint, paragraph 9).
7. Grounds for summary judgment exist if the plaintiff is unable establish that the
purportcdly negligent act was committcd by the Defendant-governmental agency or its employees
acting within the scope of its office or duties. Smilh v. Por/er, TOWllship, Clill/oll COIIllIy, 595 A.2d
693 (Pa. Cmwlth. 1991).
8. Grounds for summary judgment exist ifthc plaintiff is unable to establish one of the
essential elements of actionable negligence. See e.g., Brax/oll v. Commo/llveal/h, Depar/melll of
Trallspor/alioll, 634 A.2d 1158 (Pa. Cmw1th. 1993).
9. Plaintiff has failcd to allegc in their Complaint either of the two threshold showings
for bringing a cause of action in negligencc against a Defendant who is protected by a grant of
govemmental immunity.
10. Plaintiffs have made several allegations in their Complaint in an attempt to
characterize Defendant as negligent. (See, Complaint, paragraph 10, which is attached as Exhibit
A).
I I. The record does not support an inference that there were any negligent aets
committed by either the Silver Spring Fire Company or its employees acting within the scope of its
office or duties.
12. None of the allegations set forth in Paragraph 10 of the Complaint are supported by
the record.
13. The record, including the deposition testimony, establishes that the defective
condition, which is alleged in the Complaint, did not involve or result from the acts of either the
Silver Spring Fire Company or its employees acting within the scope of its office or duties. (See
Complaint, paragraphs 7 and 8).
14. Contrary to Plaintiff's allegations in the Complaint, the deposition testimony shows
that the Defendant was diligent in the maintenance of their property and, while defendant's assert
there was no defect, ifthere was a defect caused by the presence of chipped steak being on the floor,
defendants had no knowledge of such defect.
15. There is no genuine issue of muterial fact and accordingly Defendants are entitled to
summary judgment as a matter of law.
WHEREFORE, Defendant respectfully requests this Honorable Court enter an order granting
summary judgment in favor of Defendant Silver Spring Fire Company.
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7. At that time and place, Plaintiff Eleanor Valinsky's
foot slipped on some chopped steak, causing her to fall backwards
onto her buttocks and lower back, causing a severe impact with the
concrete floor.
a. The chopped steak had been spilled onto the floor
approximately 30 minutes earlier.
9. The Silver Springs Fire Company operated the food
stand, which sold steak sandwiches, and was at the time,
responsible for the care, custody, and control of the property.
10. The aforementioned fall and resulting injuries were
caused by Defendant Silver Springs Fire Company's wanton, careless,
reckless, and negligent failure to properly inspect and maintain
its premises as follows:
(a) Failing to properly maintain the Bingo Hall
and using appropriate staff to make sure all
the floor surfaces were clean;
(b) Failing to properly inspect the area held open
to business invitees for dangerous conditions
of which they ~Iere or should have been aware;
(c) Fallir.g to provide a safe environment for the
Friday Night Bingo game;
(d) Failing to clear a spill that had been on the
fl~~~ for approximately 30 min~~cs;
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(e) Failin~ to properly warn busi~ess i~vitees of
the slippery conditions o~ the floor inside
the 3i:1go Hall;
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04/09/97 13:09
'lS717 790 3995
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15. Because of the nature of these injuries, Plaintiff
Eleanor Valinsky has been advised and therefore avers that she will
be forced to incur similar expenses in the future, and a claim is
made therefor.
16. As a result of the aforementioned injuries,
Plaintiff Eleanor Valinsky will be forced to incur future medical
expenses, and a claim is made therefor.
17. As a result of the injuries sustained, Plaintiff
Eleanor Valinsky has endured, and will have to endure in the
future, great physical and rnen~al pain and suffering, great
inconvenience and curtailment of her daily activities, loss of
life's pleasures and enjoyment, and claim is made therefor.
18. As a result of the injuries sustained, Plaintiff
Eleanor Valinsky has been and in the future ~:ill b2 subject to
great humiliation and embarrass~ent, and a claim is made therefor.
19. As a result of the injuries sustain2d, Plaintiff
Eleanor V&~insky has sustained ~ 10s5 of the abi:i:y to work, loss
of oppo=tuni=y, and a per~~~ent:J cirninished earning capacity, and
claim is made therefor.
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pain,
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and lil!'.itation and therefore, avers that her
injuries may cause residual problems and permaner.~ loss of bodily
functio:::: ler the remainder 0: her life, and a claim is made
therefor.
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04/09/97 13:10
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'0'717790 3995
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VERIFICATION
I, ELEANOR VALINSKY, Plaintiff, have read the foregoing
COHPLAINT and do hereby S\~ear or affirm that the facts set forth in
the foregoing are true and correct to the best of my knowledge,
information and belief. I understand that this Verification is
made subject to the penalties of la Pa. C.S. '54904, relating to
uns\~orn falsification to authorities,
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ELEANOR VALINSKY
DATED: / 3 'J?!1'~w, 1"/9 7
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CERTIFICATE OF SERVICE
AND NOW, this 18'h day of March, 1999, I, Robert A. Lerman, Esquire, a member of the
firm ofGRIFFITl-I, STRICKLER, LERMAN, SOL YMOS & CALKINS, Esquires, hereby certify
that I have, this date, served a copy of Defendant, Silver Spring Fire Company's, Motion for
Summary Judgment by United States Mail, addressed to the party or attorney of record as follows:
Michael E. Kosik, Esquire
ANGINO & ROVNER, P.C.
4503 North Front Street
Harrisburg, P A 17110- 1799
BY:
R BERT A LERMAN, ~qy RE
Attorney for Defendant ..
Supreme Court I.D. # 07490
110 South Northern Way
York, Pennsylvania 17402
Telephone: (717) 757-7602
6. Admitted.
7. Plaintiff Eleanor Valinsky would point out as previously
stated in paragraph 4 that the negligence of the Defendant
governmental agency or its employees can include not only a
negligent act but a negligent omission to act where it has a duty
to do so.
8. Admitted.
9. Denied. It is specifically denied that Plaintiff failed
to allege in her Complaint either of two threshold showings in
order to bring a cause of action of nEgligence against the
Defendant who is protected by a grant of governmental immunity.
Defendant previously filed for a Motion for Judgment on the
Pleadings asserting this position which was denied by this Court in
an Order by the Honorable Kevin A. Hess on November 10, 1997.
10. Denied. It is specifically denied that Plaintiff Eleanor
Valinsky has made allegations in her Complaint in an effort to
characterize the Defendant or its employee's conduct as negligent.
Plaintiff's allegations of negligence are standard allegations in
a slip and fall-type case.
11. It is denied that the record does not support an
inference that there were any negligent acts or omissions committed
either by the Silver Springs Fire Company or its employees acting
within the scope of their office and duties. To the contrary, it
2
is averred that the record does sufficiently support the
allegations of negligence contained in Plaintiff's Complaint to
create a genuine issue of fact for the jury.
12. Denied. It is specifically denied that the allegations
set forth in paragraph 10 of the Complaint are not supported by the
record. To the contrary, it is averred that the allegations of
negligence contained in Plaintiff's Complaint are sufficiently
supported by the record to create a genuine issue of fact for the
jury.
13. Plaintiff Eleanor valinsky never alleged in her Complaint
that the dangerous condition of the property was initially created
by the Defendant Silver Springs Fire Company or its employees, such
allegation not being essential to Plaintiff's cause of action.
Plaintiff's allegations as set forth in her Complaint, specifically
paragraph 10, was that the Defendant Silver Springs Fire Company
and its employees acting within the scope and course of their
office and duties failed to properly maintain the floor by cleaning
up the meat which had been dropped on the floor, by not having the
appropriate staff to make sure that the floor surfaces were clean,
in failing to inspect the floor for dangerous conditions, and
failing to warn patrons of the slippery conditions. Plaintiff
Eleanor Valinsky maintains that the depositions and testimony do
sufficiently create a question of fact as to whether the Defendant
3
properly discharging its duties sufficient to create a genuine
issue of fact for the jury.
14. Denied. Contrary to Defendant's allegations, the
testimony of the various individuals questioned did indicate that
the floor was generally well maintained. However, at least one
individual indicated that at least on one prior occasion when a
spill occurred, she brought it to the attention of the fire company
who failed to clean it up within a reasonable amount of time,
resulting in her having to performing the cleanup on her own.
Plaintiff Eleanor Valinsky further maintains that the testimony
clearly supports the fact that meat from a cheeses teak sandwich
sold by the Defendants was dropped on the floor. The testimony
supports that the meat was on the floor for various estimates of
time ranging from as little as one minute to possibly in excess of
15 minutes. Since the issue as to how long the steak existed on
the floor is based upon estimates from the various witnesses, the
issue as to exactly how long the steak existed on the floor and
whether the Defendant through its agents and employees had an
opportunity to clean up the floor is a question of fact for the
jury. The record further supports that between 6 and 7:00 p.m.,
the time period when the meat was dropped on the floor, most of the
fire company personnel were busy performing other duties and were
not in a position to inspect and clean up the floor.
4
PRAECIPE FOR LISTING CASE FOR TRIAl,
(Must he typewritten and suhmitted in duplicatc)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Pleasc list thc following casc:
(Chcck one)
( X) for JURY trial at the next term of civil court.
( ) for trial without a jury.
-----------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
(check one)
Eleanor Valinsky,
( X) Civil Action - Law
( ) Appeal from Arbitration
( )
(other)
(Plaintift)
vs.
Silvcr Springs Fire Company
The trial list will be called on _Febr
15,2000.
(Defendant)
Trials commence on March 13,2000
No.97-1761 Civil Term 19
Pretrials will be held on February
2000.
(Briefs are due 5 days before pretrials
(The party listing this case for trial
provide forthwith a copy of the prae
to all counsel, pursuant to local
214.1.)
vs.
Indicate the attorney who will try case for the party who files
this praecipe: Karcn S. Coates, Esquire, Thomas, Thomas & Hafer,
LLP, 305 North Front Sl., P. O. Box 999, Harrisburg, PA 17108-0999
Indicate trial counsel for other parties of known: Michael E. Kosik, Esquire, Angino & Rovner, P.C.,
4503 North Front Street, Harrisburg, PA 17110; Attorneys for Plaint~~f.
This case is ready for trial.
Signed:
Karcn S. Coates, ire
Dcfcndant Silver Springs Fire Company
Datc: /2.- J '2.qcl
Print Name:
AlIorney for:
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
ELEANOR VALINSKY,
Plaintiff,
CIVIL ACTION - LAW
vs.
No. 97-1761
SILVER SPRING FIRE COMPANY,
Defendant.
Jury Trial Dcmandcd
PRAECIPE FOR WITHDRAW AL OF APPEARANCE
TO TIlE PROTHONOTARY:
Kindly withdraw the appearance of Robert A. Lerman, Esquire, as attomey for the
Defendant, Silver Spring Fire Company, in the above-entitled matter and mark the docket
accordingly.
, STRICKLER, LE
L YMOS & ALKI .
BY:
Datc: "b - I a- . o/t
OBERT A. LERMA
Attorney for the Defendant
Supreme Court I.D. #07490
110 South Northem Way
York, Pennsylvania 17402
(717) 757-7602
ELEANOR VALlNSKY,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
SILVER SPRINGS
FIRE CO.,
DEFENDANT
: 97-1761 CIVIL TERM
ORDER OF COURT
AND NOW, this I'll- day of June. the motion of defendant for summary
judgment. IS DENIED,
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Edgar B. Bayley, J.
By the Court,
Michael E. Kosik, Esquire
For Plaintiff
Robert A. Lerman, Esquire
For Defendant
(JJJ.u:' ~ ~. 17~'99
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97-1761 CIVIL TERM
this Immunity relating to dangerous conditions of real property at 42 Pa.C.S Section
8542(b)(3), that provides:
(b) Acts which may imposellabillty,-The following
acts by a local agency or any of its employees may result in the
imposition of liability on a local agency:
}
*
*
*
(c) Real property.- The care, custody or control of real
property In the possession of the local agency, except that the
local agency shall not be liable for damages on account of any
injury sustained by a person intentionally trespassing on real
property In the possession of the local agency. (Emphasis added.)
Two conditions rnust be met before liability can be imposed: (1) the damages
would be recoverable under common law or a statute if the injury was caused by a
person not having available a defense of governrnental irnmunity, 42 Pa.C.S. Section
8542(a)(1); and (2) the injury was caused by the negligent act of the local agency or an
employee thereof acting within the scope of his office or duties with respect to an act for
which immunity has been waived. 42 Pa.C.S. Section 8542(a)(2). A private party can
be held liable under common law to an invitee for the failure to properly rnaintain its
prernises. Blackman v, Federal Realty Investment Trust, 444 Pa. Super. 411 (1995).
Operating a bingo garne is within the scope of a volunteer fire company's office or
duties. Kniaz v, Benton Borough. 642 A.2d 551 (Pa. Commw. 1994).
In Mascaro v, Youth Study Center, 514 Pa. 351 (1987), the Suprerne Court of
Pennsylvania interpreted the real property exception to waive governmental immunity
when an injury resulted from a defect "of' the real property. but upheld the immunity
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97-1761 CIVIL TERM
property that makes the property dangerous is the cause of an Injury. In the case sub
Judice, plaintiffs claim that defendant was negligent in failing to remove the meat from
the floor of its bingo hall that caused her to fall is within the real property exception to
governmental immunity.
Defendant also seeks summary judgment on its claim that there is insufficient
evidence to submit plaintiffs case to a jury. In Washington v, Baxter, 719 A.2d 733
(Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a
motion for summary judgment:
[w]e must view the record in the light most favorable to the non-
moving party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Pennsylvania
State University v, County of Centre, 532 Pa. 142, 143-145,615 A.2d
303,304, (1992). In order to withstand a motion for summary
judgment, a non-moving party 'must adduce sufficient evidence on
an issue essential to his case and on which he bears the burden of
proof such that a jury could return a verdict in his favor, Failure to
adduce this evidence establishes that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law.' Ertel v. Patrlot.News Co" 544 Pa. 93, 101-102,674 A.2d 1038,
1042 (1996). Finally, we must stress that summary judgrnent will be
granted only in those cases which are free and clear from doubt. Marks
v, Tasman, 527 Pa. 132,589 A.2d 205 (1991). (Emphasis added.)
As an invitee of the Silver Springs Fire Co., plaintiff was entitled to a duty of care
set out in Section 343 of the Restatement (Second) of Torts. Estate of Swift v,
Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997). In Swift, the
Superior Court of Pennsylvania stated that:
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97-1761 CIVIL TERM
[a] party is subject to liability for physical harm caused to an Invitee only If:
he knows of or reasonably should have known of the
condition and the condition Involves an unreasonable risk of
harm, he should expect that the invitee will not realize it or
will fail to protect themselves against it, and the party fails to
exercise reasonable care to protect the invitees against the
danger.
Blackman v, Federal Realty Investment Trust, 444 Pa.Super. 411, 415,
664 A.2d 139, 142 (1995).
An invitee must prove either the proprietor of the land had a
hand In creating the harmful condition, or he had actual or
constructive notice of such condition. Moultrey v, Great Atlantic &
PacIfic Tea Co., 281 Pa.Super. 525, 535. 422 A.2d 593, 598 (1980).
(Emphasis added.)
In Myers v, Penn Traffic Co., 414 Pa. Super. 181 (1992). the Superior Court of
Pennsylvania restated that in a sliplfall premises liability case:
Where. . . the evidence indicates that the transitory condition is traceable
to persons other than those for whom the owner is, strictly speaking,
ordinarily accountable, the jury may not consider the owner's ultimate
liability in the absence of other evidence which tends to prove that the
owner had actual notice of the condition or that the condition existed
for such a length of time that in the exercise of reasonable care the
owner should have known of it. (Emphasis added.)
In the present case. factual discrepancies exist arnong several witnesses as to
how long the meat that plaintiff slipped on was on the floor. One witness eSiimated that
it was fifteen minutes. Another thought that it was right after the rneat had fallen on the
floor. Plaintiff maintains that during that time most of the persons operating the event
for the fire company were involved in the sale of bingo cards, smail garnes of chance,
and other activities that kept them from inspecting the premises. In Coxey v, GuaIa,
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97-1761 CIVIL TERM
112 Pa. Super. 460 (1934), the Superior Court stated with respect to constructive notice
of a dangerous condition:
This was, therefore. a clear question of fact for the jury as to whether or
not the steps were in a proper condition on the date of the accident and, if
defective, whether that condition had existed for a sufficient length of time
to arnount to give constructive notice to the defendants. What length of
time would be sufficient is entirely a question for the jury, varying
according to the circumstances and particularly the use which was being
made of the steps.
Given the conflicting evidence regarding the issue of constructive notice of the
dangerous condition which plaintiff alleges caused her to fall we will deny defendant's
motion for summary judgment.
ORDER OF COURT
AND NOW, this ,.,+- day of June, the rnotion of defendant for summary
judgment, IS DENIED,
By the Court;',
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Michael E. Kosik, Esquire
For Plaintiff
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Robert A. Lerman, Esquire
For Defendant
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CUM8:RU'i\l) COUNlY
PENNSYlVANIA
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POINT FOR CIIARGE NO. I
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Bused upon thc evidcncc and applicablc law in this case, I hcrcby dircct you to retum a
verdict finding Defendant ncgligcnt, and thus liable to Plaintifl"s for their injurics in an amount of
monetary damagcs which you will detcrnline by applying thc law of monctary damages, which I
will explain to you in detail, to the cvidencc which you havc heard.
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POINT FOR ('I lARGE NO.4
An invitee is an individual who, pursuant to un invitution Irom the owner or occupant of
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land, enters upon the land und the buildings for the purpose for which the invitation wus extended or
for purposes reasonably connected therewith.
Restatement (Sccondl ofTorts, ~ 332.
Penn v. Isalev Duiry Co., 413 Pu. 548, 551,198 A.2d 322 (1964)
211'J~4(.,I"tr"\MMM
POINT FOR CHARGE NO.5
The duty of an owner or occupant of property towards an invitee is the highest duty owed to
any entrant upon the land.
Bearv v. Pennsvlvania Electric Co., 322 Pa. Super. 52, 469 A.2d 176 (1983); Treadwav v. Ebert
Motor Co., 292 Pa. Super. 41,436 A.2d 994 (1981).
2[~J.l~h,I\MI'~\MMM
POINT FOR ('I lARGE NO. K
In civil cases such as this one, the Plaintiff ha~ the burden of proving those contentions
whieh entitle himlher to relief.
When a party has the burden of proof on a particular issue, his contention on that issue must
be established by a fair preponderance of the evidence. The evidence establishes a contention by a
fair prepondcrance of the evidence if you are persuaded that it is more probably accurate and true
than not.
To put it another way. think. if you will, of an ordinary balance scalc, with a pan on each
side. Onto one side of the scale, place all of the evidence favorable to the Plaintiff; onto tile other,
placc all of the evidence favorable to the Defendant. I f. after considcring the comparable weight of
the evidence. you feci that the scales tip, ever so slightly or to the slightcst degree. in favor of the
Plaintiff. your verdict must be for the Plaintiff. If the scales tip in favor of the Defendant, or arc
equally balanced, your verdict must be for the Dcfendunt.
In this case, the Plaintilf has the burden of proving the following propositions: that the
Defendant was negligent. and that that negligence was a substantial factor in bringing about the
accident. If, after considering all of the evidence. you feci persuaded that these propositions are
more probably true than not true, your verdict must be lor the Plaintiff. Otherwise, your verdict
should be for the Defendant.
Pa. SSJI (Civ) 5.50; Sisk v. Dullv. 201 Pa. Super. 213, 192 A2d 251 (1963); Reist v.
Manwiller, 231 Pa. Super. 444, 332 A2d 518 (1974).
21~)~~6,I\ME"\MMM
POINT FOR CIIARGE NO.9
Ladics and gcntlemen of the jury, I previously instructed you on the Plaintiff's burdcn of
proof in cstablishing their theory of liability against thc Firc Company. The Fire Company
maintains that Mrs. Valinsky is comparatively at fault for hcr fall. With respect to these
allegations, it is the Fire Company's burden of proof in establishing that Mrs. Valinsky somchow
contributed to her fall and resulting. They bcar the burden of proof and you must bc satisfied
based upon the evidence which is prcsented that more than likely than not Mrs. Valinsky's
conduct either contributed to her falling or her injuries.
Pa. SSJI (Civ) 3.03A
11l'l~~6.I\MEK\MMM
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POINT FOR CI lARGE NO. 10
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In this case you have heard what the law calls circumstantial evidence. Circumstantial
evidence consists of proof of facts, or circumstanccs, from which it is reasonable to infer the
existence of another fact. You may considcr circumstantial evidence and you should give it
whatever weight you believe it deserves.
Pa. SSJI (CIV) * 5.07
2(J').Hh, """KIMMM
POINT FOR CHARGE NO. 11
You may find inconsistcncics in thc cvidcncc. Evcn actual contradictions in the tcstimony
ofwitncsscs do not necessarily mean that any witness has becn willfully falsc. Poor mcmory is not
uncommon. sometimcs a witncss forgcts; somctimcs hc remembers incorrectly. It is also true that
two persons witncssing an incident may sec or hear it differently.
If ditlcrcnt parts of the testimony of any witness or witnesses appcar to bc inconsistcnt, you
the jury should try to rcconcilc thc conflicting statements, whethcr of thc samc or of diffcrcnt
witncsses, and you should do so if it can be done fairly and satisfactorily.
If, howcvcr, you decidc that therc is a genuine and irreconcilablc contlict oftcstimony, it is
your function and duty 10 determine which, ifany. ofthc contmdiclory statemcnts you will belicve.
Pa. SSJI (CIV) * 5.04.
2IJ'l.l4h,I\MI'K\MMM
POINT FOR CHARGE NO. 14
You will recall that (Name) gave testimony ofhislher qualifications as an expert in the field
of
A witness who has special knowledge, skill, experience, training or education in a particular
science, profession or occupation may give hislher opinion as an expert as to any matter in which
he/she is skilled. In determining the weight to be given to his/her opinion, you should consider the
qualifications and reliability of the expert and the reasons given for hislher opinion. You are not
bound by an expert's opinion merely because he/she is an expert; you may accept or reject it, as in
the case of other witnesses. Give it the weight, ifany, to which you deem it entitled.
Pa. SSJI (Civ) 5.30.
20'l~~6,1\IIIEK\IIIMM
POINT FOR CHARGE NO. 18
The broad term "pain and suffering" includcs a widc range of not only physical, but also
cmotional reactions to injuries and their conscqucnces. In calculating damagc for pain and
suffering, you may placc a valuc on the following:
(a) Mcntal pain and distrcss;
(b) Fcar;
(c) Shock;
(d) Emotional suffcring;
(e) Anxicty;
(I) Frustration;
(g) Degradation;
(h) Loss ofthc fccling of well-being; and
(i) Limitation on activities.
Nicdcrman v. Brodskv. 436 Pa. 401, 261 A.2d 84 (1970); Walsh v. Brodv, 220 Pa. Super. 293, 286
A.2d 666 (1971); Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960).
l(m~6,I\ME"\MMM
POINT FOR CHARGE NO. ] 9
TIle Plaintill' is entitled to be fairly and adequately compensated for such physical pain,
mental anguish, discomfort, inconvenience and distress as you find he/she has endured, from the
time of the accident until today.
Pa. SSJI (Civ) 6.0lE; Niederman v. Brodskv, 436 Pa. 401, 261 A.2d 84 (1970); Boggavarallu v.
Ponist, 518 I'u. 162, 542 A.2d 5] 6 (1988).
211'lH6,I\ME~\"IMM
POINT FOR CHARGE NO. 22
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The PlaintilTis cntitled to be lairly and adcquately compcnsated for such cmbarra~smenl and
humiliation as you bclicvc he/she has endurcd and will continue to endurc in thc futurc as a rcsult of
hislher injuries.
Pa. SSJI (Civ) 6.0IG; Frankel v. United States, 321 F. Supp. 133] (E.D. Pa. 1970), atl'd, 466 F.2d
1226 (3d Cir. 1972); Marinelli v. Montour R.R. Co.. 278 Pa. Super. 403, 420 A.2d 603 (1980); Fish
v. Gosnell, 3 I 6 Pa. Supcr. 565,463 A.2d 1042 (1983).
2(~IH6,I\MEt(\MMM
POINT FOR CHAROE NO. 24
The Plaintiff is entitled to be fairly and adequately compensaled for past, present and future
loss ofhislher ability to enjoy any of the pleasures of life as a result ofhislher injuries.
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Pa. SSJI (Civ) 6.011; Frankel v. United States, 321 F. Supp. 1331 (E.D. Pa. 1970), aO'd, 466 F.2d
1226 (3d Cir. 1972); Corcoran v. McNeal, 400 Pa. 14. 161 A.2d 367 (1960); Thompson v.lannuzzi,
403 Pa. 329, 169 A.2d 777 (1961); DiChiacchio v. Rockcrafi Stone Products Co., 424 Pa. 77,225
A.2d 913 (1967).
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2oq~~6, IIMI'KIMMM
POINT FOR CIIARGE NO. 26
As you heard, Dr. Hullock has testified that Plaintiff had a pre-existing condition which
consisted of two prior back surgerics.
Although Plaintiff had this pre-cxisting condition, this does not mcan that he/she is not
cntitled to recovcr for those additional injurics which cithcr activated a donnant condition or
aggravated un active impairment and madc it worse. If you find that Plaintill's condition was
aggravated or activated by this accident, you may award himlher such monctary damages as you
feel are entitled to compensate himlhcr. The law has dcternlined that a Defendant must take his
victim as he/shc finds him.
Lebesco v. Southeastern Pennsvlvania Transn. Authoritv. 251 Pa. Super. 415, 380 A.2d 848 (1977);
Freer v. Parker, 41 I Pa. 346, 192 A.2d 348 (1963); Fretts v. Pavetti. 282 Pa. Super. 166,422 A.2d
881 (1980); Gcver v. Stcinbronn, 351 Pa. Supcr. 536, 506 A.2d 901 (1986).
20'lH6,I\\tEK\~t~I~1
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
NO. 97-1761 CIVIL TERM
Karan S. Coates, Esquire
Altomey 1.0. # 52654
Thomas, Thomas & Hafer, LLP
3D5 North Front Street
P. O. aox 999
Harrisburg, PA 171DB.0999
(717) 237-7121
Altomays for Defendant
ELEANOR VALlNSKY,
Plaintiff
SILVER SPRING FIRE COMPANY,
Defendant
JURY TRIAL DEMANDED
DEFENDANT SILVER SPRING FIRE COMPANY'S
POINTS FOR CHARGE
1. Under all of the law and the evidence in this case, you must return a verdict for
Defendant Silver Spring Fire Company and against Plaintiff Eleanor Valinsky.
3. An entity In possession of premises, such as the Silver Spring Community Fire
Company, is not an insurer of the safety of those on its premises. Moreover, the existence of a
harmful condition or the mere happening of an accident due to such condition Is neither
evidence of a breach of the Defendant's duty of care, nor does it raise a presumption of
negligence.
Treadwav v. Ebert Motor Comoanv, 436 A.2d 994 (Pa. Super. 1981); Moultrev v. Great A & P
Tea Comoanv, 422 A.2d 593 (Pa. Super. 1980).
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9. Plaintiff has the burden of showing not only that an unsafe condition existed at
the time and location of her fall, but also that this unsafe condition caused the Injury. It Is not
sufficient to merely prove what might have or what could have caused it. No Inference as to how
the Plaintiffs fall occurred arises merely by showing the existence of a defect in the area of the
accident. To the contrary, you are not permitted to speculate or guess on the cause of Plaintiffs
fall; conjecture, guess Jr speculation do not amount to proof. Therefore, if you find that Plaintiff
has succeeded only in proving occurrence of an incident, but not what caused her to fall, you
must return a verdict in favor of the Defendant.
DeTore v. Great A & P Tea ComDanv, 411 F.2d 613 (3ro Cir. 1969); Loeb v. Alleahenv Countv,
147 A.2d 336 (Pa. 1959).
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11. The law requires a person to look where she is going. A person must exercise
reasonable care and diligence when entering a public establishment. If you find that Plaintiff
Eleanor Valinsky did not watch where she was going, you should find her contributorily
negligent for the injuries she suffered.
Villano v. Security Savinas Association, 407 A.2d 440 (Pa. Super. 1979).
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12. "Now, members of the jury, sometimes the happening of an accident is
unavoidable and happens or occurs without a defendant being negligent. . . [the] fact that an
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accident occurs does not itself prove that there was negligence on anyone's part.'
"You must determine the true facts in light of the laws as we have given them to you as
respects the matter of negligence, to determine whether or not the defendant \lias negligent. If
after doing so you conclude that the Defendant was not negligent and that the accident was
unavoidable, that is with the exercise of reasonable duty of care required and defined for you,
that defendant did not cause or could have avoided the happening of the accident, [the plaintiff
cannot] recover.
Kenworthv v. Burqhart, 361 A.2d 335, 338 (Pa. Super. 1976) (approving the foregoing charge);
~ den., 385 A.2d 975 (Pa. 1978).
12
13. Damages will not be presumed. They cannot be recovered unless the evidence
affords a sufficient basis for estimating with reasonable certainty. Damages should not be
awarded on the basis of mere conjecture or speculation. Moreover, you should not speculate
about future medical expenses when there Is no evidence that such expenses will be Incurred.
The mere possibility of future medical expenses is Insufficient to support an award for such
expenses.
Kearns v. Clark, 493, 393 A.2d 1358 (Pa. Super. 1985).
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II, STATEMENT OF FACTS AS TO DAMAGES
On September 2, 1999, Plaintiffs counsel took the videotape deposition of Richard
Hallock, M.D. Dr. Hallock is an orthopedic surgeon who treated the Plaintiff both prior to and
subsequent to this incident. Dr. Hallock's testimony confirms that the Plaintiff had a long history
of low back pain which preceded the fall occurring on August 16, 1996. In fact, Plaintiff had
undergone two prior surgeries to her low back and at the time of this incident, was utilizing a
cane when she entered the Defendant's premises. She was not, however, utilizing a cane at
the time of the slip and fall and instead, was walking down the aisle placing her hands on the
tables for stability.
Plaintiffs first visit with Dr. Hallock after this incident occurred on September 5, 1996.
Dr. Hallock testified that the Plaintiffs objective findings on his first examination following the fall
were virtually identical to his physical findings on an examination which took place on December
5, 1995, eight months prior. Nevertheless, Dr. Hallock testified that as a result of this fall,
Plaintiff aggravated pre-existing degenerative disc disease in her low back. In his opinion, this
"aggravation" lasted from August, 1996 through May, 1998, when the Plaintiff sustained another
fall while on a bus trip to Las Vegas. She re-injured her back in this subsequent fall. Dr.
Hallock further confirmed that any bills for medical treatment beyond May, 1998 are not related
to the fall at the Silver Springs fire hall in 1996.
Based upon the expert testimony of Plaintiffs treating orthopedic surgeon, Plaintiff
sustained an injury to her low back in the nature of an aggravation of a pre-existing condition.
Plaintiff returned to "baseline" approximately 18 months after the fall. While Plaintiff maintains
that she continues to have problems, Dr. Hallock did not opine that those problems are
attributable to the fall occurring on August 16, 1996. Medical bills for accident related treatment
total ;,~~roximately $11,000.00. There is a Medicare lien for $5,884.89. Plaintiff was not
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B, DAMAGES
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In the event the jury would find that Defendant is responsible to the Plaintiff, the jury
would have determine the amount of fair and reasonable compensation for Plaintiffs personal
injuries.
IV. SUMMARY OF LEGAL ISSUES
Defendant anticipates that this will be a fairly straight-forward slip and fall case which will
not involve any novel legal issues.
V, WITNESSES
1. Plaintiff Eleanor Valinsky
2. Witness Catherine Turner
3. Witness Sylvia Welsh
4. Witness Barbara Rider
5. Witness Joseph Rider
6. Witness Freda Anderson
In addition to the foregoing, Defendant may call the following persons affiliated with the
Silver Springs Fire Department:
1. Tom Weber
2. William Gill
3. Michael Oil
4. Joseph Zelinski
5. Ronald Anderson
6. Daniel Morton
7. Doug McDonald
Moreover, Defendant reserves the right to call any of the witnesses identified in Plaintiffs
Pre-Trial Memorandum and to supplement this list in a timely manner prior to trial, in the event
additional evidence or witnesses are discovered.
VI. EXHIBITS
1. Photographs of Silver Springs Fire Hall where bingo is conducted;
2. Diagram of the premises.
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under thc Political Subdivisions Tort Claims Act. This Motion was also denicd by this Court.
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Finding that the allcgation fell within the category for dangerous conditions of real estate undcr thc
Fire Company's control, 42 Pa.C.S.A. 98542(B)(3). Scc Court's Opinion and Order dated
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Novcmbcr 10,1997.
Thus, the primary issucs in this case are whethcr IJefendant Silver Springs Fire Company
was negligent in failing to whethcr to take appropriate action to clean up or warn of the dangcrous
condition created by the choppcd stcak on the floor and whcthcr the Fire Company was on notice
or should be charged with notice ofthc dangcrous condition.
Plaintiff Eleanor Valinsky anticipates being able to establish ncgligence on the part of the
fire company bascd upon its failure to obscrvc thc steak on the floor al1er it had been on the floor
for a reasonable period of timc and its failure to appropriatcly assign its voluntcers and pcrsonnel
to inspect the area whcrc the stcak was on the floor in ordcr to observe and correct the condition.
II. BASIC FACTS AS TO DAMAGES
Plaintiff Eleanor Valinsky maintains that as a rcsult of the fall backwards causing hcr to
landed on her buttocks, she suffcred an injury to hcr right Icg, low back, and lel1 hip. She was
transportcd from the firc hall by the Silver Springs Ambulance to Harrisburg Hospital where shc
was initially evaluated and thcn followed-up with her orthopcdic physician, Dr. Richard Hallock.
Prior to the accidcnt, shc had bccn doing cxtremcly wcll in spite of the fact that she had two prior
lower back surgeries in which she had fusions of scvcral lcvels of hcr lumbar vertebrae. As a
result of thc fall. hcr lower back bccame symptomatic rcsulting in hcr having to go in for physical
thcrapy at Central Pcnn Rehab for an extended pcriod of time of approximately six months before
gctting a home traction unit. Howcvcr, shc continucd to have to scc Dr. Hallock on a regular basis.
At various points, shc rcquired additional physical therapy and continucd treatment Witll Dr.
20RI211.lIMEKIMMM 2
4. Medical bill summary.
5. Photographs of hall which are to be taken in conjunction with defcnse counsel in
the near future.
6. Diagram of the hall.
7. Statements of Sylvia Welsh and Freda Anderson.
8. Bingo rules and flyer.
9. Handwritten note from Catherine Tumcr.
10. Handwritten note ofElcanor Valinsky.
11. Handwritten shcet passed around the evening of tile accident by fire company
personnel.
12. Answers to Intcrrogatorics.
13. Lease Agreemcnt betwcen Silver Spring Township and Silver Springs Fire
Company.
V, COPIES OF WRITTEN REPORTS
None othcr than medical doctors' reports.
VI, STIPULATION OF THE PARTIES
Plaintiff would scek a Stipulation as to the authenticity and admissibility of the exhibits
listed above without thc nced to call records custodians or photographers.
VII. ESTIMATED LENGTH OF TRIAL
Two to two and a half days.
VIII, SCHEDULING CONFLICTS
None.
208120,1"IEKIMMM
5
02/03/97 - 02/13/97 480,00
02/17197 - 02/20/97 240,00
10/27/97 - 10/30/97 290,00
11/03/97 -11/13/97 540,00
11/14/97 - 11/26/97 540,00
12/01/97 - 12/15/97 630,00
12/17/97 -12/29/97 270,00
01/02/98 - 01/14/98 630,00
01/29/98 - 01/30/98 135,00
02/02/98 - 02/13/98 540,00
02/16/98 90,00
6,563.00
Quantum Imal!iDl!
11/22/96 236,00
11/22/96 143,00
10/01/97 90,00
469.00
West Shore Anesthesln Associates
05/08/97 230,00
OS/20/97 368,00
06/23/97 368,00
06/24/98 450,00
07/08/98 400,00
06/15/99 400,00
2,216.00
Centrnl PA MRI Center
09/11/97 1,225,00
05/17/99 1,225,00
2,450.00
Neuro Medicnl
03/08/98 1,095,00
1,095.00
QY.C
04/26/98 102,60
102.60
TOTAL 14,792.55
C'ERTIFICA TE OF SERVICE
I. Michelle M, Milojevieh. nn employee of the law finn of Angino & Rovner. P,C,. do
hereby certi:y thntlllln this day serving a true nnd correct copy of the foregoing PLAINTIFF'S
PRE-TRIAL MEMORANDUM upon all counsel of record, via postage pre-paid, first class
(
~tlJ.tft 117, 7htf~il)lIJl
Michelle M. Milojcv' h
United States mail. addressed as follows:
Karen Coates, Esquire
Thomas. Thomas & Hafer
305 N, Front Street
P.O. Box 999
Harrisburg. P A 17108-0999
Dated: 2/17/00
l08Il0.I\ME~\MMM
depositions that were taken in this case is Freda Anderson, It is anticipated that Fred Anderson will
testify that she observed Mrs, Valinsky just prior to IInd around the time of the fall when she saw her
walking up the center aisle. Frcda Anderson is expectcd to conliml that she was not in a hurry and
there was nothing out of the ordinary, The statement of Fred Anderson taken shortly after the
accident by the insurance adjuster indicated that Mrs, Valinsky was walking fine and that she had
observed her on other occasions without the cane IInd that she walked "pretty well" without the
cane, There is no suggestion in any of the testimony or the statement of Freda Anderson that Mrs,
Valinsky's failure to usc hcrcane in any way contributcd to her falling. Plaintiff is not aware of any
other dcfensc witness that would testify concerning this issue,
In hcr deposition. Mrs. Valinsky tcstificd that she only utilized her cane to walk across the
parking lot and strect or driveway bcfore cntering the building. Hcr normal practicc was to placc
the canc at hcr table and that she would usc the tablcs to steady herself if needcd as she was walking
in thc building or she would walk ncar thc wall if shc was going to the ladies' bathroom, Mrs,
Valinsky is not requircd to usc the canc by any medical doctor and merely docs it as means of
comfort when walking in unfamiliar or open areas, Mrs. Valinsky's testimony was that she was
walking up the ccntcr aisle while placing her right hand on thc tables as she wcnt past thcm, At thc
timc that shc fell. she in fact. had her right hand on the table and her legs went out from under hcr,
Plaintifi'maintains that bascd upon this testimony. even if she had been using a canc. it would not
havc prevented the fall. and without any evidcnce that non-use of the cline was a factor in hcr
falling. the jury should not be pcmlitted to speculate on this point.
lf~IIH'l.I\MI~\~tM~'
ELEANOR VALINSKY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
v,
CIVIL ACTION - LAW
SILVER SPRINGS FIRE CO.,
Defendant
NO, 97-1761 CIVIL TERM
JURY TRIAL DEMANDED
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION IN LIMINE
Plaintiff Eleanor Valinsky maintains that Defendant rnay not attempt to argue to the jury or
have a witness testify that they feel that Mrs, Valinsky was comparatively or contributorily
negligent for failing to use her cane at the time of her fall. To Plaintiff's knowledge, there is no
witness. either medical or lay. who will be able to cstablish that Mrs, Valinsky's failure to use her
cane in any way contributed to or caused her to fall. Plaintiff maintains that to allow the defense to
argue that Mrs, Valinsky's failure to use her cane is evidence of her comparative or contributory
negligence would be to allow the jury to speculate on this issue.
It goes without saying that as far as any affirmative defenses. such as comparative or
contributory negligence, the Defendant bears the burden of proving these allegations by a fair
preponderance of the credible evidence, See, Pennsylvania Standard Jury Instructions 3.03 (Civ.)
Contributory Negligence and 3,03(A) (Civ.) Comparative Negligence and Proportionate Among
Joint T ortfeasors, and the notes thereto,
As set forth in Plaintiff's Motion in Limine, Plaintiff is not aware of any witnesses who will
testify either from a medical standpoint or from a factual standpoint, that Mrs, Valinsky's failure to
use her cane was a factor in causing her to fall or her resulting injuries, The defense has not listed
any medical witnesses. The only witness that Plaintiff is aware of. based upon the numerous
209649.11.\IE~\~t~IM
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depositions that were taken in this case is Frcda Anderson. It is anticipated that Fred Anderson will
testify that she observed Mrs, Valinsky just prior to and around the time of the fall when she saw her
walking up the center aisle, Frcda Anderson is expected to confirm that she was not in a hurry and
there was nothing out of the ordinary. The statement of Fred Anderson taken shortly after the
accident by the insurance adjuster indicated that Mrs, Valinsky was walking fine and that she had
observed her on other occasions without the cane and that she walked "pretty well" without the
cane, There is no suggestion in any of the testimony or the statcrnent of Freda Anderson thilt Mrs,
Valinsky's failure to use her cane in any way contributed to her falling, Plaintiff is not aware of any
other defense witncss that would testify concerning this issue.
In her deposition, Mrs. Valinsky testified that she only utilized her cane to walk across the
parking lot and street or driveway before entering the building, Her normal practice was to place
the cane at her table and that she would use the tables to steady herself if needed as she was walking
in the building or she would walk near the wall if she was going to the ladies' bathroom, Mrs,
Valinsky is not required to use the cane by any medical doctor and rnerely does it as rneans of
comfort when walking in unfamiliar or open areas, Mrs, Valinsky's testirnony was that she was
walking up the center aisle while placing her right hand on the tables as she went past thern. At the
time that she fell, she in fact, had her right hand on the table and her legs went out frorn under her.
Plaintiff maintains that based upon this testimony, even if she had been using a cane, it would not
have prevented the fall, and without any evidence that non-use of the cane was a factor in her
falling, the jury should not be permitted to speculate on this point.
209649.I\ME~I.\t~IM
ELEANOR VALlNSKY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA,
CIVIL ACTION - LAW
v.
SIL VER SPRINGS FIRE CO"
Defcndant
NO, 97-1761 CIVIL TERM
JURY TRIAL DEMANDED
ORDER
AND NOW. this _ day of
. it is hcreby Ordered that the Defendant
Silver Springs Fire Company is precluded frorn prcsenting testirnony frorn any witnesses or
arguing to the jury that Plaintiff Eleanor Valinsky was cornparatively or contributorily negligent
in failing to usc a cane at the tirne of the incidcnt on August 16, 1996,
BY THE COURT:
J.
ncgligencc. you should usc your common scnsc :md cxpcrtisc to arrivc at a rcsult that is fair and
reasonablc undcr thc facls of this casc us you havc detemlined them from thc cvidencc.
In ordcr to assist you in your dctennination and Iindings in this casc, thc Court will providc
you with a verdict fornl containing specilic questions. At thc conclusion of your delibcrations, onc
copy of this fornl should bc signed by your forcpcrson and handed to thc c1crk and this will
constitutc your vcrdict.
I, Do you find Silver Springs Firc Company negligcnt in the injury ofMrs, Valin sky?
Yes No
If your answcr to question No. I is ycs, proceed to question No, 2. If your answcr to
question No, 1 is no, rcturn to the courtroom.
2, Do you find that thc ncgligencc of Silver Springs Firc Company was a substantial
factor in causing thc injury to Mrs. Valinsky?
Ycs No
If your answcr to question No.2 is ycs. proceed to question No.3, If your answcr to
question No, 2 is no, return to thc courtroom.
3, Do you find Mrs. Valinsky to have been comparativcly negligcnt?
Ycs No
If your answcr to question No.3 is yes, proceed to qucstion No, 4. If your answcr to
qucstion No, 3 is no, proceed to qucstion No.6,
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sustaincd any darnngcs, put thc figure "0" in the spacc.
Pust and futurc pain and sullcring
Loss ofthc enjoymcnt and plcasurcs
oflifc
Inconvcnicnce
Ernbnrrassrnent und humiliation
TOTAL $
lO'lS07.II.\IE~\MMM