HomeMy WebLinkAbout97-05129
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,
GRACE A, WEAVER and MERLE E,:
WEAVER, her husband,
Plaintiffs
#24
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
THELMA FRANKLIN; PASQUALE
and BIAGIO EMANATO; PIZZA
'N' STUFF, INC,; G, MEMMI &
SONS BAKERY, INC, and
STEPHEN SHUMAKER,
Defendants
,
,
,
,
:
97-5129 CIVIL TERM
PRE-TRIAL CONFERENCE
A pre-trial conference was held in the
above-captioned case in the chambers of Judge Oler on Wednesday,
October 21, 1998, Present on behalf of the Plaintiffs was
Timothy A, Shollenberger, Esquire, Present on behalf of
Defendant Thelma Franklin was C, William Shilling, Esquire,
Present on behalf of Defendants Pasquale and Biagio Emanato and
Pizza 'N' Stuff, Inc" was John Flounlacker, Esquire, Present
on behalf of Defendants G, Memmi & Sons Bakery, Inc" and
Stephen Shumaker was Amy Foerster, Esquire,
This is a negligence action for personal
injuries allegedly incurred by Plaintiff Grace A, Weaver when
she was struck while walking on a sidewalk by a door of a
building owned by Defendant Thelma Franklin, rented by
Defendants Emanato for purposes of a pizza shop owned by
Defendant Pizza 'N' Stuff; the door was opened from the inside
by Defendant Shumaker as he completed a delivery on behalf of
his employer, Defendant G, Memmi & Sons Bakery, Inc, Plaintiff
Merle E. Weaver sues for loss of consortium, Defenses are
absence of negligence, contributory negligence and l~ck of
causation,
This will be a jury trial of an estimated
duration of two and a half days, Each counsel for the defense
will have two peremptory challenges and Plaintiffs will have six
peremptory challenges, for a total of 12, pursuant to an
agreement of counsel,
To the extent that any videotape depositions to
be shown to the jury at trial contain objections requiring
rulings by the Court, counsel are directed to furnish copies of
the transcripts of said depositions to the Court at least five
days prior to the commencement of the trial term, with the areas
of objection which are being pursued highlighted and with brief
memoranda in support of their respective positions on the
objections, Counsel are also directed to furnish proposed
points for charge at least five days prior to the commencement
of the trial term on the issue of liability of Defendants with
respect to each other on the cross claim which has been filed in
this case, along with any citations to cases which support the
proposed points,
Plaintiff has indicated that his pre-trial
menlorandum should be amended to reflect slightly different
medical expense summaries and an amended miscellaneous expense
summary, These changes have been furnished to opposing counsel
and to the Court,
Mr, Shilling has indicated that he is presently
icheduled for trial in Huntinqdon county by prior order of Court
on November 12 and 13, 1998, although this matter may be
resolved without the necessity for his appearance at that time;
he is requested to notify the Court Administrator if that status
changes, Mr, Flounlacker has indicated that he is scheduled for
~
trial during the forthcoming term of Court before the Honorable
Edgar B, Bayley in Sola v, Rover's Flower Shoo; ~ this will
be a one-day trial, which also may be resolved in advance, The
Court Administrator is requested to work around both Mr,
Shilling's conflict and Mr, Flounlacker's conflict in scheduling
the present trial,
An issue which may arise at trial in this case
involves the extent of medical bills recoverable by the injured
plaintiff where she was the recipient of Medicare reimbursement,
In this regard, Plaintiffs' counsel cites the case of Moorhead
v. Crozer Chester Medical Center, ____ Pa, Super, ____, 705 A,2d
452 (1997), for the proposition that expenses in addition to
those covered by Medicare are recoverable by an injured
Plaintiff, notwithstanding that, pursuant to federal law, the
plaintiff may not be obligated to pay them,
with respect to settlement negotiations,
!
~
Plaintiffs have demanded $100,000,00 and Defendants have
collectively offered $40,000,00, It does appear to the Court
that there is a reasonable possibility that
this case will be resolved prior to trial,
By the court,
Timothy A, Shollenberger, Esquire
SHOLLENBERGER' JANUZZI, LLP
1820 Linglestown Road
P,O, Box 60545
Harrisburg, PA 17106-0545
For the Plaintiffs
John Flounlacker, Esquire
THOMAS, THOMAS , HAFER
305 North Front Street
Harrisburg, PA 17108-0999
For Defendants p, and B, Emanato
and Pizza 'N' Stuff
Amy C, Foerster, Esquiro
HARTMAN' MILLER, P,C,
126-128 Walnut Street
Harrisburg, PA 17101
For Defendants Memmi and Shumaker
C, William Shilling, Esquire
HARRINGTON, KAUFFMAN , SHILLING
100 pine street, suite 300
Harrisburg, PA 17101
For Defendant Franklin
Court Administrator's Office
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GRACE V'i.A VER
Miscellaneous Expense Summary
Dale of Iniurv: 2/29/%
As a result of the injuries sustained on the above dale. Merle and Grace Weaver were forced to
move into an apartment and incur a S75/molllh increase in their rent.
Therefore. they have sustained an additional expense of S900 annually.
.. '
GRACE WEAVER
Medical Expcnse Summary
Dale Ill' Iniurv: ~i~l)jl)6
Provider Contact Amount Paid Balance
Challlberspurg 5 .\2.\.00 Medicare pd. -0-
Anesthesia Associales 5.\.7.\
[Invoice in Adj. 5318,08
Iikj BS pd.
5101.18
Chamberspurg Hospital Dcbbie - 2(,7- 5 9,911.97 56,191.81 pd. -0-
(~i29,96-3/8/<)6) 3000 by Medicare;
(Invoice in 52,958.88
tile) adj.; 5736.00
B/C; 518.78
B/S; patient
paid 56.50
Chambersburg Hospital Debbie - 267- 5 I ~,88~.00 58,081. 90 pd. -0-
[Rehabj 3000 by Medicarc;
(2/~9/96-3/8/96) (Invoice in 54,717.88
file) adj.; 52.22
B/S; 580.00
Room ami
Board Rehab
Challlbersburg Hospital Debbic - 267- 5 398.00 599.50 pd. by -0-
[Physical Therapy] 30nO Medicarc;
(.\/.\/96) (Invoice in 5218.90 adj.;
tikI 579.60 SiC
Chambersburg Imaging S 101.00 Medicare pd. -0-
(2/29/96) 524.06
(lnvoicc in adj. 570.92
file) BS pd. 56,02
Rehab Medicinc 267-7735 S 1,245.00 Mcdicare pd. -0-
Associatcs 51,090.58;
(lnvoicc in Bluc Shicld
file) pd. 5154..\2
"
Orthopedic Associates 264-6211 5 3,J7.UJ) MCI!icare pd. -u-
$1, \Ot24;
(Invoice it Medicatc
tile) write-of!
51,993.50;
Blue Shield
pd. 5276.06
Totals to Date (10/21/98) 528,335,97 Medicare pd. -0-
516,596,83
Adj.
$10.278.16
Blue Cross
pd, 5815.60
Bluc Shicld
pd. 5558.68
R&B Rehab
allowed 580
Client pd.
$6.50
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70.\ A.2d .152
(t'II. u: 71l~ A.2d 4~2\
,
Jo)n.. A. MOORHEAD, Admlnlstraul1.uCt4
E,.o.. or Catherln. B. But<<,
D..,....d. Ap".lIal14
".
CROZER CIlESTER MEDIC.ll.CE.NU:'.II...
App.II...
Su""rior Court of PO"fI""~
Ar@uoo Ocl. 15. I ~'J1.
Filod Dce. 31. 1~~1.
Roor@ulllonllkllied Mareb 5, I ~~H.
Patient sued hospital for injuries sustained in fall 011
bo'pilol premise" Allor policul died. lIll<L
admioislfatri.\: WIIS subslitUh:d liS plUllltilf. th..: Court of
Commoll Ploos. (klowore ClIlIllIy. Civil Nu.. '1.1.5611_
Brodloy. 1.. enl.red jnd@lII.nl for polionl. ill wbich il
owanlctl os dalUa~cs for paslll1cdical .'\"1"'110.:.>..: awnwu...
of M.dioore ollowonce bospil.t had ree.iv.d lor
tn:atJUL:ul of injuries su.""taillcd w. 1alL- Vl.iU.u.tiJl
opp.oled. olld Ibo Snperior COllrl. No. 1111261
Philad.lphi. 19'17. Saylor, 1.. held IbM: Hf-llfOOUllI.
rccciv\ld by hospital from t"h:c..Ih.:arc was nul
dOI.nlliuoli\.e 0' 10 omonnl of d~ to< p;l.SL
lIIedical ;;0'1'. bUI (2) bospilol wo' .lIlitled 10 sololl' lor
dama~cs owarued in cx~css of Medicare nllnU'lul{'l' it
rcc\:ivoo. as voluc of care provided by hospital was not
payment from collateral source.
AJlinlloo.
Olsz.w,ki. 1.. dissellled ond m.d opinion.
II) DAMAGES ~\111
115klOI
Pcrsooolmjul)' ploinlil1' who seeks d:unagcs for cost of
medico I servic.s provid.d 10 him ....1UIMlII. m: kKl-
teasor's wrongdoing is entitled 10 recover reasonable
,,"alue of tbos..: medical sen'ices"
121 DAMAGES ~tot
115kllll
....'bil. amollnl Ibol "'0' oclu.Uy paid lor m.dical
sCl"\'iccs may be relevant in dclcm~~fL81lIlhh,
\'alue of those scrvi~es. for purposes of award uf
dal11age~ for cost of medical services In.l~fStKYI-~
a~lion. tricr of facl musllook 10 variety of olbcr factors
ill makill@ ,"ch 0 filldiI1B. iucludillB .1I_~ht-
plnintilr. and relative murket valu..: of those sCI'\'ices.
'I
P-R' I
l-lt nu.u r..'~ <!:? till
115klOI
.\lI1nlllllo.:, ~aw! paid..ljJt. IIh'lli'.!I1 .scn:~'lrc no
IIIOn,: thau fal.:lnrs 10 he cOlIsldcrcJ in dClcnninillLl
,ClISllWIht... valul:. of >UclL >C[','i=I" to< 1W'JlIl~' of
award of dallHllIcs Itlr pasl mcdil.:3l cl'sls.
I#IlAAII,C[S'r'6J
115k6]
Jln"pilJlt "hiclL~pa1.U.:DL!llLinjuriL:s~cd by
pOlienl ill fall ",bde 01 hospilal. on<t whicb occcpled
M.'Yli"!lI"P. mlliJ\\:~ as. pJl~.ml-m. in.. f.uiL ~}r ils
Ireatment. W3i bUlh tort-Ieasor and pro\'idcr of IUcdi~al
sc:nU:l::s- in... '11II-...:liJUl lUl.l.l tlw:i. wa. cntIth:d..ln: scion'
tI@l1inst palienl's reeO\''-'I)" t()r pasl mcdical t:XpCUSCS
ammm1.~ "b.i..;h..r.",..:nll!lhh. va1U&:..af~~ ,rviccs
pro\'iu..:d 10 paticnl exceeded payn".:nt allowed b~'
M(..oiI'Jln- 4mOUDJ. uLS&:1ll1I. n.pn....r'fttrrt. Yal=.::.nl care
pn)\'iul.:d by hospllal ltsdf. and thus WilS 1101 payml.:lll
fruw....nl1~f"T!lt 'inUrec.
ISI- D' M' r. ~q 'r"6J
115kfJ3
Wlw... \tlfth!......iIsoHf lIHH-rp.ym'Hllo il~.'O"'POMY.
t()rt~li.:asor's liability is rt:dll~ed a..:t,;ordinply: su..:h
"nl1lnhlltinl1 11I'1\' hl.. l~lnl1 "f h,,,,,,.f.t..: ulhct..th.l1Ilcush
paym.llls. Rcslol.melll (Secolld) 01 I oMs ~ noA( I).
161 DAMAGES ~5~
1.I5k5~
"~..lIo"'rol __ """" p.....iJ... Iiw-P')'III"HI~ Crnm
..:ollall.:ral snurc~ shall nul diminish dllDlulles oth~n""lsc
_eltI.> I....... 'M.II~d...., J'fithliJ'lot-.... ~ il is
better for Ihl.: wronged plulnlilf to rcclo:i,'1o: POllo:Dtial
wiIKIlitll- IDaIl- lffl. k~ k>- b.> .......,d of
respollsibilil~' l~)r thc 'Htlllp:. .
s".,.. ptiltlh>8Iitltt- Wo,d,.. atttl-I'''''''-lffl. ,,,,,- i'jdioial
conslructions and definilions. .
'~J.'.pb ~1. I'H..a..n&.-Modia, I<lt~ellalll.
~ f~MII..i.'III. pltilttthtlj>lti<>..lffl.appolloo.
llelilre CIRU.J.O, Prosidolll Jlldgo Emorillls. olld
SAVHm-lIflti.HfoSZEW~KJ. JJ.
SNt'bHH..Jlldg.:
"'1'1'0110111. .Hlj;_ A ~11I",b..d. oJlIIill.lratR~ ,of lb.
cstalc of ClIthcrine B. Ba:\t..:r. dcccascd. appe:ds from
1It..~"",,""'rcd o@aift,;l-,'.p""U... f_,hesl.r
M~ci..:al CClIler. in this medical malpraclice aclion.
w.. aIlimrllw-jllll[llllelll. ollhllUllb "0 Jo ... ~asolls
Copr. Q WC>;t l~~ll Nu Claiw.1u O[ip...U,s. GovL W",ks
70' A1d.1 ,1
(('lie at: 70~ A.2d ~~2. '4~J)
\\hl~h dlJl\.:r frUIt' lho..c r.:hcd UPUII by Jlw "Hll~
Appellaut's dCl.:ctlcllf. Catherine I Jil\h.:r. was iUJurctl
"h<1I ,h< 1,,11 ,,1111" a pnli""1 al Ap~~.
Mrs. II",,", liI"d 011 ""Iioll a~a'"'1 AI'I'"II"".
<1I111","lill~ Ihal h"r rail r"sull"d Iiuw. Ap~
""~li~"...". Apl,dlalll "as suhstilUI"d as Ih" pl.illlilr
afl"r Mrs. Ba,l"r'. d"alh. AlIhou~h lha:. "",",-\u..lril:d.
he 11m: a jlll)'. IhlJ quc'Ilion uf com(lCnsation Ihr po",.
nh;di~al C\PCIISCS was n.:scr\'ccJ fur lI\1.:..ltialCilUIL .~
jUI)' rCfunu.:d a verdict in favor or Apllt:lI11nt. Il\\'llnlill~
the sum of S.16.S0H.On III IIU1H':"l\luUlli,' ~I:tIlHlt'I''':
iucludlllll pain IIml sul1\.:riug.
l'OIh.:crninll pasl Ilh.:dical ";\PCII:-tCS. the llllf\:cd'UlHJII
raCl. aN a, rollow. IFNII: Th" pL1inliIJ:,L,1",',.,I,.n.
""as co\'crcd by Mcdican: and by 8 "B1ul.l Cru'iS 65"
supph.:mcnlal plan tin \\hich she haclJUWLJlr"I'lIIillltl..:
The fair and reasonable \'olue of III..: IIIl.:diclll can: Ihat
Appdk" Iilmish"d 10 Ih" d"<"d""1 al1:L I=.falLIU:<.
S IOX.66HJ I. Th..: Mcdican.: allowanc..: fur such car..:
wos SI2.167.411. Hll% ul'"hi"h wa. pallh~ M.,.I;."'"
Dlld 20% of which \\3S pllid by Bhl': Cm..; (,5,
i~rsuaut 10 its \'oluntary participlltinn w.. th&:.-~I...'i'''lrL'
'4~~ rrn~alll. Appdk" a"""pl"d Ih" M"d,<ar"
allowance as paymcnl in Hill. ftl'lwll.... is. nul
p~nlliHCd to seek Ih\: rcmainder or th\: fair and
reasonable cost of ils S\:('\'jccs Irum fttPI".II'lIIl ut.fr.w.u-
any olher soun;c,
FN I, The parties htl\e liIe..! an u~recd.upun !lr.alemcnl or
tiu.:ls "pursuullllo Pa.ltAP.IIJ2S." \\b.i.clL.....'..fTlI.nl W
been upprO\cd by thc lriul cuurt. We nole Ihal it is
P3.R.A,P.192-l whil.:h prn\'idcs Ihulludr a smrcmenr. It
apprU\cd b~ the IriaJ cuurt. "!lhull Ihmhe-~tn-the-
appellulc \:nurl as the rCl.:orJ on IIPpc3t.....
The (1lICSlion before the trial court was whelher the
cOrTeelmcasure of ~ompensalnr)' dalJ1ag\.~ for I1H..wear
"'p"n,", was tl," amuulIl hill"d hy tll" f1o'pilalor tIie
amounl rccci\'cd b)' tIll.: hospital as paymcnt in run:
nased ulllhe 'Iip"lah:d 1.<1.. tl," lrial <Ullrl d"I.'CII1II1<'<f
Ulat Appellunt's n:co\'cl)' H.Jr pasl meuicar e\p\..'1JS'-"S
should h" limil"d 10 SI2.167.411. Ill" allluulIl alTuw"d
hy M"di"Me and a"""pl"d by Appdk" a. paYIll<lIl ill
lilli, AccoruiDlI to Uu: lrial court. case law assumes tflat
thc fCasonable value of mcdical services elllla(s tlie
amount billcd liJr those service!!. which III tum cquar.s
tl," alllOlml Ibal Ihe plaintill. is <olllra"llIally ohli~al"d
10 pay. Th" court Nasonoo Ihal wh"r" II... I'htimilf.;,...
nol ohli~al"d 10 pay tl," allloulIl hill"d. il i, nol
n..:ccssary 10 awarl! lhat amount 10 UI.:..p'"inlifl' w..~
10 lIIak" Ih" plailllilT whol". To tll" <olllral)'. Ih" "Ollrt
Pa~. 2
....:..J. ~ so> _~ .u..- \lw..plailllill' ~("'I' a
'\llIdli"l
"',','nr~lil1~I~' b~ ua.la. ~Nu\'~ L.L 11)1)6.
Ill..: Inal cour1 lunih:d the amuunl uf pasl mcdil.:al
..'1'..11....... .lL:Irr.:U\'cub~ b:-:- ftpp..ll'lTI' l1l.UL1.6!.~(). lIu:
DIIIOllnl sel hy Mcdlcan: as pa~'melll ill fUll This
1WWWlL".....ww 10 tll" ~ ~.."I;,'I nf $,l6.jOO.OU lllr
a lolal \."rdi"1 of S5MN,7..IU. Afl"r Ih" COllrt award"d
~ .lllmlll'..... i.u. thc anWWlLur.S.1....UL1ILjw4mlI.:0I
was cnlered a~Aiusf Appdlcc ill the amouhl of
S66.1J~II..LlLlIus.app"al.ful!o\\ "d.
Oll. app..:aL AppcllallL aIjUJC:L tlUlL ~ tri4L ~uurt's
award of past mcdical t.:\pcnses cnulra\'cl1ed Ihe !\Culcd
1lI,'II..lIr.' .u[.l'HIllP,'"<O:lIlnr;' dal1lnl'I.... awLaJ.su. ~()laICd
Ih" "ollal"ral 'Ollr"" rul". Sp""ili"ally. App"lIanl
~...~ilidin Ihll.loaL.:wJ1l...tlUlL~""I"d
lan' a pl3intill' is aUoncd to recovcr Iht: fair and
r"!I-:'IIII!!hl.. 'l~uf the nIl'Jli..!!1 c.:m:...~~ssary
hy 1111': dcfendanl's nCllh~cn~c...in tins casc.
s.uJll.ll611.JL A.:.:onlinjL Iu. J\Pp'.n.n' Ih.:. lolal
allUUlul of lhc h:nJicl should lherefore h..: S IS's.16KJ I
l.ilUll.li6ll.Jl pins S.16.5UU.uU_lh.:.lUIUl1U1l.uLtbl" jll!)'
\'cruict). plus delay dall1ag~s,
^J1pcllcl.l arllucs lhal II",: amounl of uamage'i should
"'III"lbuLlIIlt ==d.tludoss.11l tIu: ,h..w.... III Ihe
pn':Sl.:ul Cllse. ^ppellce reasons. Ihc al1lounl of 1Iu.:dical
,..p'~'~ aawilly ill.uw:d.h}: (][. em:. bdmlLl'r tl,e
d.,,"d""1 lIa' SI2.167.40, Ih" OIIlUlllll aUolled by
M,.,li,.!tno .1.::L~~'I1h'lIr. in....llilL ftppt4~ aq:DC!:.lhat to
alllhorue a l!lcaler IIlcasun: or dama~cs, would tre to
h"SIIIW a \\indt.1I UPUII App"Ualll. In A(lJlcU,'\:'s vi"".
Ih"cctlJr". lh" 10lnl ,"rdi"1 should h" S~H.661AO
($ 12.167.40 plus S~6500.00). plus d"lay dam.g"s.
1l1l2~ 111 K.1shll"r \'. (;"isilll'Cr Clini"_ H2 "..s..p"r.
36L 6311 A..2L1. 9HO (l~~,Il- Ih.:. s"P'''';''' Court
1il11WWlCu.:d.. th..:. prin"ipl""" by WUclL IhIl.lUIII:IIID\ or
I~"'P""""" r""UI"rab"'-by lha:.pl,illlitT~lI? h"
dtJl,'nni.,...1 ..
II is- .....lhoIllkd Ihal a plailllilI itt . Jl'l""""'/. ~U!)'
..I.... .....in~ dallla~"' It". I"'" ""'* 01' ""'!Ji"al
...r.kG.' pnwid"d hI him .,.1t"""",I~nf It"~r',
~",uufdu~u~ rs entitled m' I"C'Cm"Cr- ~ J'C'lI'!Cn1!Pbll.:
rnhn:'of I!msc ,""di".1 ""nm."'- Whihnre IIp'Cellhal
Ih..: BI1IUuul lhat was actually paid ... for ... mcdical
~.~ W6U.' be rck:'laaL- w- .J..f..nnilliJ UIC
reasonahle \'~llIe of thuS\: scn'iccs. Ihc Lrier f rat,;t
111m:' l~v\l In a.. vanet\' of nlh.'r fndnN in..m:Ik:in.l!: such
a tinuinp. Among lhuse lactors 10 be considl..tcd b\'
Copr. (') Wc.sL~!18.Nu('bil11 In Oritt-U-S-Gm.:L Works
70~ A~ll.l~~
(C1to a." 711~ A.2ll 4~2, '4~4)
Ih. ju')' nr. lh. nllllluul hill.lllll tll\t t>Ioifmll:. atHl \W.
eclat!\'!.: market value nfthos..: scfvilo:cs,
C1carly. lh..: amount actually paid Ii", rtk."di.:al.f4f1.:itH.l
lhll.:"I nul alnn\: dch:nninc Ihe rcusullabh.: \'alu..: uf
lhu't\: medical Sl.:T\'i..:..:s. Nor do..:", if kmtf..... ~~
fJt.:1 in II1nLillp such n dctcnniutlliuu.
Ill.. 432 l'n.Sup.r. nl 367. 63H A2ll at *~"'~
and rootl1olc~ dclch.:d). Th..: Superior ('uurt Ii.mud
nllllilillunl suppnrt Ii" ils nh""rvnli._...~), I",,",",
Ilnullb..,k nu the I.nw nf R.m. ~ H. I. nl S.I]
(ln3):
The: measure of recovery is nol du; ensl of SCl"\i..:..:s .
bUllh.ir r.nsollnbl. valli..... IRI-~~_
ll.p.nll 011 wh.tb.r th.n: is nny bill nt nil, null Ih.
tortl"nsor is hnbl. lor tb. ..nlu. .>f.,"",""aI- ......,.....
C\'CIl if they an.: J!!:ivcn without charpe. since it is thl.:ir
valli": and nol their coslthal cotlnls.
'455 Ill.. 432 Po.Sup.r. al 36H. 63H A2ll 01 ~H].
'Iulllin~ Dobbs. suprn. To sill1il... "'~.. j,;.. II..-
Rcstalcllh:nl (Second) of Torts. ",hid. the SUJlerior
Cllurt nlslllllll'h;ll ..ilh nppro..ol:
Thl: value of medical sen'ice'" madc ncccssal)" by the
lurt .011 nfllillorily b. reeo\'en:ll 0111l\l\1t'I> lher ""'"'
cn:3h:u 110 liabilily ur":'l'l.:nsl.: 10 1111..:1 illjlln:u pcrson.
as nh..:n B physician donates his scO'~-
Ill.. 'IUOliD~ R.sl.I.meol (Seeollll) ~ 924
elllUm.1I1 I' (197~) (.mphasis olllletl).
131 Wh.1I th.s. principl.s nr. nppli..! ....1It..-.-
ens.:. it is apparent Ih41 lilt: lrial court erred in
d.l.nniJlill~ the lI1.asnn: or llomn~es. H...ltittI-......."..
conclusion thai "the rcasouabh: "olue of medical
,.,...iees ". .qllnlls) the nmollnl bill.ll 1tlr-1It..-."l'\'i.,...1
whidl... cquollsJ the amount paid for 111OS": services" is
1101 sllppllrtcll by Ih. oppli..hl. c..... how,. l.HI...
ellnlrn')'. Ih. omollllls hill.ll allll po ill tor mellie.1
SCI'\"iccs ore no mon: thnn lactors tn bvCUll.iill,r,d ~
dch:mlinin~ the rcasunnbh: value of stll.:h services.
III K.,.hner. the SlIp.rior Court ll.t.nnillell th.1 the
lrial court holl .m:ll illlimilin~ Ih. n,_"","",""ol-
C\PCIISCS provable by the plainlitr" 10 Ihe Dmounts pni:J
by Ihe stnl. Dcportm.nl or I'llhlie Wdl;"". HW\\.l.
Accordingly. th..: court remanded the case for nile\\'
leinl on ll.mo~.s so Ihat Ih. reosullobit>- ..r- ttf IJ...
medil.:al services provided 10 the plaiulitr..wili.: could he
dch:nnim.:u. Ilere. however. D rClUantl.~ttttf.HC\.~
sine..: tlh: parties have already stipulated that tit..:
l"Casollable \'alue of the medical scrv~JJr",,;itllltll w--
Appellanl's ll.".ll.nl was $ IIlH.66H.31.
PI lI11we\".r. w. mllsl slill d.len"in. whelher
faRO J
,\~p.'II" ...tIIlIilWk>-.~ ...\lw....-~\\llId,
the reasulluble \'31I1e uf Ihe IIIcl.hcal s.cr\'iF,;cs c\Cccd..:d
"'" p.~III'"1 .u.-ll hy M.J,..r.. W<t-\Itl\tttltM\.lhnl
b..:..:ause Appdh:c was bollt lnrtti.:asor and I1m\'Wcr of
lkv-1II~1oli 'ill SIIf.P;k:l.:S in quc~Avth,II"1lj i,; "K~ll,aJ to
such 3 SChIll. .
151 \\1lcre Ihc lnrtlcasur ilsclf makcs a paym..:nllu Ihe
~ I"""h tit. Illrtf..""r'" ~ j,;.. "jll".ell
a\:F,;unJingly. Kashncr. supra; Reslah:ntenl (Secund) of
'hlfl4~Wt\Hic SlIch.. .."nlflb.lilll .....:--1tlI.j: Ih.
Ii.lnll uf bcudils olhcr Ihan cash l1uyhlc:uls.
HIllI-131~1lI~llt ~U1d) of '~'~t-9J(1.\ "'lllIll~m, a. In
the prescnt F,;nsc. Appdlee. Ihe lortli:asur. pro\"id..:d
b..".lils I. ,'.pp.lI.nt's 1l.."""""...""'~Hlt'lli..1
care made Ih.:cessilry by its uwn l1..:gligellcc. In Judl II
.......- ....IIw-StttMinr C.....~ ...w.l-iIl-~ "Ih.
amuU"1 of damagl.:s assesscll against tin: Itortl~asnrl
~Iw-~ III the _tlto;.&lw-J."~lIInble
\'alue uf Ihe mcdic:J1 ser\'ices pro\"iucd alUl hilled by
Ih.IIIIJlI'.onlfl ..,.eells Iho pall1l'.II~~.pnrty
I'.luc--inlhol cas.. DI'WI." Ill. 4.12 l'a.S"per. bl .16~
'" 1;f..1l1-'\'2.!-0' ~H.ln. 7.
f'+~.~~ll...s n.....~11w '01101.,,1 ~""re.
rul..
'~Iw- ~nllatlllr31 SUllrcl.: rnIv- pro\'i4J( ~~n..:nls
from a eollaleral sOlln;c shall nul dimillisll (he
dallla~v.. uth4f\l,"isc rCf.:4.)~~~docr.
Th. prilleipl. b.hinll the .ollolernl sou",. rul.~s Ihol
if- j,;..\lolWr. wr tI,. nfllflt!"4l-l'l.iollill ~"""ii\'. n
pnh.:ntial windfall than J()r a turtti.:nsor 10 be r\..~ic\"ed
m:r",'pull('i~ilily f()f th..:"~
Johnslln \'. n..n.. S41 1'.. 44~. .1~6. 664 A2ll %.
wu.~~\WS).- I.. the pres.II.........I\w.-~I"\\III.nl
from a cullateral sOlln.:c was the SI2,I67AO reCei\"cd
l~ ~ I.lli .".. s.. Tileh....u.- "" w..iw.I-- ~es of
Americ.. 6H I F.2ll 16S (Jd Cir.1 ~H2), .nhieh
'\J:'I'.hJlIllut t:r1lHttitlctl 10 rL~.- '~81111l1lUt r.f Ihe
selnll.lh)\\.ll III ApI'. lie. ($%,SOIl. ~ I. Ih. llil]'"ren".
hllll"lllllly. lIw.-hUtsouilhle \'al4~of-tlw-w. .uti 'at 'Af:'i~c~
pro\'idl.:d In the ul.:l.:edl.:nl ami lhl.: payment. from
~I.di .....) "'t'f"S<'lIls the ""'"'..."" IW-"~ .nn:
prm'ided by Appellee ilself alltl docs lIul consthulc 4
Il:~llllllllll frulI1 a \:ollaler;lI spurl.:e.
TiI'e JfiJrlll,'m.~ I.:asc. th"" I~lll"]l'urtd uf f.ljuages
Ii.lr the IIIctlil.:al sl.:r\'kcs pro\'ided In Appl.::llanl's
\lJ . . J 'nl a.;....a..~111 of thv- U"'tllitl 'll ' . ",1' .' pp ~U 'e was
$IIIH.66H..l1. the n~r..ll-lIpllll lair nnll r...bnnhl.
ntm:- of- me- dccL'lIcnl's lIIl,;di\,.ill ~-;rc:- ~ such
danHlgcs arc cnrrcclly measured. Appelh:c is enlllled to
Cllpr. ." w..s.. W*~IaifB.~ ~.l;,.~ Wnr~s
705 A.2d 452
(Clle.o: 705 A.2d 452, '455)
D sclolf or credit al!Dln~1 its liability ilL lhsl. Amnlln' at
596.500.91 .in.. Ap""II... tl,. lorlle.sor. provid.d
su.b ...",ice.. Wilen .u.h ..1011' is .1'1',;..,1 ^pp..II.....,
uhim.l. Ii.bilil)' for tl,e d...d.nl'. m.di..1 .'p.nse. i.
512.167.40. Sin.. tlli. i.lb. .um '456 av'ar~"d ~
tri.1 .ourt. w. amm, lb. jnd@m.nl .ol.r.d .@.insl
Appell.e. wbile r.je.ling tl.. r.lion.l. wbi.b led 10
su.b re.ult.
Jud[Un.nl .l1inn.d,
OI.SZEWSKI. I.. lil.s. Disscntin@ Opinion.
OLSZEWSKI. Ind@.. di.scnlin@:
Wbile tl,. .'pr.ssion of lb. m.jorilY vi.w p<l>vi<L:l;....
p.nuL,iv. M.I)'.is .nd sonnd r.lion.I.. I .....,~
to diff.r. I .[U'C. wilb my coli..!...... in.lighlful
discussion nr lhe appropriatlJ measure: of daJlUI,,~.I. i:tt
Ibi. c.se. I dis.[U... bowcv.r. wilh lhewn.I..,;ud that-
.1'1'.11.. is .ntitled 10 . ",,1011'.
Tb. m.joril)' .orreotly .1.1.. tl,. .pplio.bl. I.w.
"WI,.r. lb. lortf..""r it...lf mak.s . p.y,~l4>-~
injured pllrt)'. the lorlf..sor'. Ii.bilil)' is reduo.d
."""rdin@I)'." M.joril)'. al 455. Cou.......Jr; whcN-...
~.K. 4
,."11...,,..1 ~UI4L::< LemJlrihUlmlll thsL"ijured
pmy. 11:. Imlle.sor's li.hilily i. nol reduced. Id.
"'Iuon'lilh' "ppl.III'(' is oul:t-,'nlill'!fl In Jt oll.tntT if il\ made
a .ontribnlionlo .pp.lI.nl in .,...., of tl,. ooulribuliml
frill" M..,li.,!tI'1' 111111 nine l.:ms.::L- ...... i,l ~I 4S5.
lb. majorily lind. tl,.1 by lilr@Mng ,II appellant'.
rea,mna&fe ,,,,:dio.1 .osls in .~o.....' ..nlie STT.TG7.40
pa)'m.nl from Modi..re and llIue Cro.s. .1'1'.11..
m.d.. S96.5m),91 .ontrihntion 10 lIJlp.lI.nl. Appell..
admit:<. &ow.......... Ih.1 M.di..re profii6ils if ~om
so.king "lh. rem.inder of Ih. f.ir and re.sonahl. cosl
..f il. :R:I'Vi."" I<<)ln Ap""lTant ." from any OIb.r
source." Id. al 2. lllos. appellee did not conlribul.
anylhing kt app.llanl Ib.1 ap""lfant 61l<f not .rr..d)'
reoeived from Medi..r.. This mean. lb.. .ppell..
i"",lIh.. ma,le no p.Yl1..nt 10 llie injurctf 1'..... in
"""""" or M.-dic.re's conlnnulion. A'cconliilgl)'.
appeffi:c i:t nol entilled 10 . s.lnIr. IT I\ashner v.
('",;;.inget ClInie. 432 1'.$11""". J6 r. 6Jlf' A'.r.r. 980
(I9'P1} (fntlillng th.1 . .linie was cnlilli:tf la a sdoll'
w/n:r1:- il \'olllnl.rily lilr~R," n",-di..r ""fl"ll'"'S pllntU"nl
10 n ~harily prog.ram).
Nw-""'~l.I r..s"'lS. ~f..'I'''lrully lljS...,IlI.
E~,**,~ENT
Copr. '0 W..t 1998 No CI.im tu Oti!1-U.s.GO\'1. Works
GRAVE A. WEAVER and
MERLE E, WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
17- 5- I )1-
(j~L
THELMA FRANKLIN and
PASQUALE and BIAGIO
EMANATO and
PIZZA 'N' STUFF, Inc.
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend
against the claims set forth in the following pages, you
must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written
appearance personally or by attorney and filing in writing
with the Court your defenses or objections to the claims set
forth against you. You are warned that, if you fail to do
so, the case may proceed without you and a judgment may be
entered against you by the Court without further notice for
any money 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(s). 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 0U1' WHERE YOU CAN GET LEGAL HELP.
Court Administrator
CUMBERLAND COUNTY COURTHOUSE
4th Floor
One Courthouse Square
Carlisle, PA 17013-3387
(717) 240-6200
L"W PHIU5 l1f
TIMOTIIY ^. StlOllF.NDERGER
,Ii!(lUNGl[STl"l\\'N I{lJAP . ro I\\.JX f>l1HS . H.A.RRISnt1RO,I'.'\ 1711'fH'HS
i7171 !Jot 1,.,-, . ~t\x (7171 n"."111
GRAVE A. WEAVER and
MERLE E, WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO,
THELMA FRANKLIN and
PASQUALE and BIAGIO
EMANATO, t/d/b/a
PIZZA 'N' STUFF, INC.
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICIA
LE HAN DEMANDADO A USTED EN LA CORTE. si usted quiere
defenderse de estas demandas expuestas en las paginas
siguientes, usted tiene veinte (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 person~. Sea avisado que si usted no se
defiende, la corte tomaro medidas y puede entrar una orden
contra usted sin previo aviso 0 notoficacaion y por
cualquier queja 0 alivio que es pedido en la peticion do
demanda. usted puede perder dinero 0 sus propiededas 0
otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE.
51 NO TIENE ABOGADO 0 SI NO TIENE EL DINERO
SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA
o LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court AdmJnistrator
CUMBERLAND COUNTY COURTHOUSE
4th Floor
One Courthouse Square
Carlisle, PA 17013-3387
(717) 240-6200
lA\t' llHICES Of
TIMUTlIY A. SIIOLLENDERGER
IH!l'lINliUSTO\\'N Rllo\ll . I'll f\llXf'>l:H~ . H^RltlSIIL'IUi,I'A 1,ll't..(l'j.f'i
11171 !H. l;l\l . E....X 17111 H414!1!
GRAVE A. WEAVER and
MERLE E, WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO.
() 7. 'f /..U (3,;,'/ 7~~-
THELMA FRANKLIN and
PASQUALE and BIAGIO
EMANATO, t/d/b/a
PIZZA 'N' STUFF, INC.
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
AND NOW comes the Plaintiffs, Grace and Merle Weaver, by
their attorneys, the Law Offices of Timothy A, Shollenberger
and do respectfully represent the following:
1. The Plaintiffs, Grace and Merle Weaver, are adult
individuals who currently reside at 108 West Orange Street
Shippensburg, Cumberland County, Pennsylvania 17257,
2. The Defendant, Thelma Franklin, is an adult
individual who currently resides at 316 South Fayette
Street, Shippensburg, Cumberland County, Pennsylvania 17257.
3. The Defendants, Biagio and Pasquale Emanato, are
adult individuals who currently reside at 703 Charles Street
and 601 Brenton Road, Shippensburg, Cumberland County,
Pennsylvania, respectively.
4. Defendant Pizza 'N' Stuff, Inc. is a Pennsylvania
corporation with offices at 601 Brenton Road, Shippensburg,
Cumberland County, Pennsylvania.
5. The Defendant, Thelma Franklin, is the owner of a
building located at 85 West King Street in Shippensburg,
Cumberland County, Pennsylvania.
6. The Defendants, Biagio and Pasquale Emanato and
Pizza 'N' Stuff, Inc., lease premises for the purpose of
conducting a pizza shop business called Pizza 'N' Stuff in
said building owned by Defendant Franklin.
1
LA\\' CHILES llf
TIMOTHY A. SUllllENBERliER
1/4!l' U~l'iU:S'fl1\\'N RI'AIJ . I'll 1"-1\ (I~'H~ . ltARRISI\t'ltn, 1'.-\ 171('fH.'1~H
1717121-t-1;\\.' . f.4.X 1iI.1 ~H~H!
7. The events and circumstances hereinafter set forth
occurred on February 26, 1996 at or ~bout 8:00 a.m. on the
sidewalk adjacent to the North Fayette Street side of the
building owned by Defendant Franklin and from which
Defendants, Emanato and pizza 'N' Stuff, Inc., ran their
pizza business.
8, On the date above mentioned, the Plaintiffs leased
an apartment from Defendant Franklin which was also housed
in the above referenced building owned by Defendant
Franklin.
9. The only entrance and exit to Plaintiffs' apartment
was a doorway exiting onto a sidewalk adjacent to North
Fayette Street.
10. On the morning of the incident, plaintiff, Grace
Weaver, exited her apartment onto North Fayette Street and
began walking toward King Street on the sidewalk adjacent to
the building owned by Defendant, Thelma Franklin, and in the
direction of the service entrance of the pizza shop leased
by Defendants, Biagio and Pasquale Emanato and Pizza and
Stuff, Inc.
11. The Plaintiff, Grace Weaver, continued walking
toward King Street along said sidewalk in the area of the
service entrance door of the Pizza 'N' Stuff pizza shop.
12. At all times relevant hereto, said service entrance
door opened out into the sidewalk.
13. There was no landing or other physical separation
between the service entrance door and the sidewalk.
14. Said service entrance door was solid without a
window or other opening so that persons passing in front of
said door could not see inside.
15. There were no windows or other reasonable means for
a person to see inside the pizza shop when passing in front
of the door.
16. Because said service entrance door was solid,
without a window or other opening, persons inside the shop
2
I.AW nmU5 \ IF
TIMOTHY A. StlOLLENDERGER
11Il\.l lINllI.ESTCM'N Rll:\1l . Pll l~lX "i.\H~ . 1I:\IlRISnUIU1, I'A 171\.'tI-(lH'i
liIil !H-17l\.' . fAX iil1l !l4-Hll!
are unable to determine if persons on the sidewalk are
passing in front of said door.
17. The sidewalk adjacent to the service entrance door
is so narrow that a person would have to step off the
sidewalk and onto North Fayette Street itself to avoid the
door if opened.
lB. Motor vehicles are permitted to park immediately
adjacent to the sidewalk on North Fayette Street, and cars
and vehicles were so parked at the time of this incident.
19. The only sidewalk in that section of North Fayette
Street is the sidewalk upon which the Plaintiff was walking
and which is immediately adjacent to the building owned by
Defendant Franklin.
20. Pizza 'N' Stuff was not open at the time of the
incident, and it would not have been customary for anyone to
be working in the shop at that hour.
21. As Plaintiff, Grace Weaver, came to the service
entrance door, it was opened by a person inside the pizza
shop, striking the Plaintiff on the left side and throwing
her off the sidewalk onto the macadam street.
22. The Plaintiff believes and therefore avers that
Defendant, Franklin, retained control over the door, the
sidewalk adjacent thereto and the exterior of the building
housing the pizza shop and Plaintiffs' apartment.
23. In the alternative, Plaintiffs believe and therefore
aver that Defendants Emanato and Pizza 'N' Stuff, Inc.,
retained control over the door, the sidewalk adjacent
thereto and the exterior of the building housing the pizza
shop and Plaintiffs' apartment.
24. As a direct and proximate result of the incident
above described, the Plaintiff, Grace Weaver, suffered
injuries including, but not limited to:
a. Displaced intertrochanteric fracture of the
right hip repaired with an open reduction
internal fixation;
3
!AWtlHIt:bl)f
TIMOTHY A. SllOllENnERGER
I~!l' UNl ilE...n1\\.'N H(l,*.n . I't) 1\1.. IX f>\lH' . HI\IUUSIIU!H I, 1':\ 171~\OI'H\
mil !H 171\:1 . ~..\x 17171 nf-IIII!
b. Right thigh hematoma;
c, Intercostal neuritis resulting in intercostal
rib pain;
d. Right shoulder injury;
e, Various contusions and abrasions;
f. Compensation injury to the right knee;
g, Severe shock to nerves and nervous system; and,
h. Extreme mental and physical anguish,
25, As a direct and proximate result of the aforesaid
injuries, the Plaintiff, Grace Weaver, has undergone and in
the future will undergo great pain and suffering for which
damages are claimed.
26. As a further result of the aforesaid injuries, the
Plaintiff, Grace Weaver, has sustained a permanent
diminution in her ability to enjoy life and life's pleasures
for which damages are claimed.
27. As a further result of the aforesaid injuries, the
Plaintiff, Grace Weaver, has incurred and may in the future
incur, reasonable and necessary medical and rehabilitative
costs and expenses for which damages are claimed.
28. As a further result of the aforesaid injuries, the
Plaintiffs, Grace and Merle Weaver, have suffered other
financial expenses and losses including, but not limited to,
having to pay increased rent at another apartment and
increased utilities and other expenses associated with
renting an apartment different from that in which they were
living at the time of the incident.
COUNT I
GRACE & MERLE WEAVER V, THELMA FRANKLIN
29. Paragraphs 1 through 28 of the Plaintiffs' Complaint
are incorporated by reference herein and made a part hereof
as if set forth in full.
30. Plaintiffs believe and therefore aver that
4
I ^'il.' ~ llllt i:~ l)r
TtMllTII\' A. SIIOLlENIIER{iER
11i!~11l~1 ill:~rlJ\l..'S Ill),"I} . I'll. 1\4.1:-0; N'~"i . 11"'~",I~III.IU;, 1'.... \i'II'f> 0H\
tilil H4 Ii\\' . I:AX 1717121-4 ~!I!
Defendant, Franklin, retained control over the exterior of
the above referenced building, including the service
entrance door and the sidewalk adjacent thereto at the time
of this incident.
31, Plaintiffs believe and therefore aver that
Defendant, Franklin, knew or by the exercise of reasonable
care could have discovered the dangerous condition of the
door and the unreasonable risk of harm to persons in the
position of the Plaintiff.
32. Defendant knew the door was in a dangerous condition
in that:
a. It opened into the street;
b. There was no glass or other opening whereby a
person opening the door or a person passing in
front of it could see through the door; and,
c. There was no sign or other warning to
pedestrians walking past the door that it
opened out directly into the pedestrian's path.
33. Defendant, Franklin, could have made this dangerous
condition safe by installing a door with a pane of glass or
other opening so that persons opening it and/or persons
passing in front of it could see through the door or by
installing a door that opened to the inside.
34. Said incident was not the result of any act or
failure to act by the Plaintiff, Grace Weaver.
WHEREFORE, the Plaintiffs, Grace Weaver and Merle Weaver,
her husband, demand judgment of the Defendant, Thelma
Franklin, for compensatory damages in excess of the amount
requiring compulsory arbitration.
COUNT II
GRACE & MERLE WEAVER V, PIZZA 'N' STUFF, INC,
35, Paragraphs 1 through 34 of the Plaintiffs' Complaint
are incorporated by reference herein and made a part hereof
as if set forth in full.
36. Plaintiffs believe and therefore aver that the
5
I.A\\'(1Hln:'l)f
TIMon." ^. SIIOl.LENbERGER
I":~' L1S{jUsTl1\1,'!'-j RllAIl . I'\l (1.1.)\ t'oI..'Hi . H,4,HRbRl'fl.li, I'.... Ij\l..'OCHi
171711li-li\\' . ~^X {i1711H-n!l!
.. '. .',' - ..
,
Defendants had been operating the Pizza 'N' Stuff restaurant
at the King Street location and had been utiliziug the
service entrance on North Fayette Street at that location
for several years, under a lease agreement issued to it by
Defendant, Franklin.
37. Plaintiffs believe and therefore aver Defendants
Emanato and or Pizza 'N' Stuff, Inc., knew or by the
exercise of reasonable care could have discovered the
dangerous condition of the service entrance door and the
unreasonable risk of harm to persons in the position of the
Plaintiff.
38. Defendants Emanato and Pizza 'N' Stuff, Inc., could
have warned those in the position of the plaintiff that they
were open that morning and accepting deliveries but failed
to do so.
39. Defendants Emanato and Pizza 'N' Stuff, Inc., could
have made the condition safe by installing a door with a
pane of glass or other opening so that persons opening it
and persons passing in front of it could see through the
door or by installing a door that opened to the inside.
40. Defendants Emanato and Pizza 'N' Stuff, Inc., could
have kept the door ajar when it was in continuous use for
business and/or when they were accepting deliveries.
41. Defendants Emanato and Pizza 'N' Stuff, Inc., could
have directed persons in the position of Plaintiff around
the doorway either by use of a sign or by directing them
personally in order to avoid being hit by the door when
opened suddenly or without warning.
42. Said incident was not the result of any act or
failure to act on the part of the Plaintiff, Grace Weaver.
43. Defendants Emanato and pizza 'N' Stuff, Inc., knew
or should have known that people would pass in front of the
door during that morning and would not expect the door to be
opened because the shop was not normally open and accepting
deliveries at that hour.
6
lAW l1ffICES llF
TIMOTlIY A. SIIOLLENDERGER
I~~O lINlilE."iTO\I/N RO..\O . I'.ll l\4.lX t>OH~ . 1l^H.Rl~"lJRli. I'A 1710fl.OH~
(7171 H..1i~ . FAX t11111H.HZI!
44. Said service entrance door was in a dangerous
condition in that:
a. It opened into the street;
b, There was no glass or other openinG whereby a
person opening the door or a person passing in
front of it could see through the door; and,
c. There was no sign or other warning to
pedestrians walking past the door that it
opened out directly into the pedestrian's path.
WHEREFORE the Plaintiffs, Grace and Merle Weaver, demand
judgment of the Defendants, Pasquale Emanato, Biagio Emanato
and Pizza 'N' s~uff, Inc., for compensatory damages in
excess of the amount requiring compulsory arbitration.
COUNT III
MERLE WEAVER V, THELMA FRANKLIN AND
PASOUALE & BIAGIO EMANATO T/n/B/A PIZZA 'N' STUFF, INC,
45. Paragraphs 1 through 44 of the Plaintiffs' Complaint
are incorporated by reference herein and made a part hereof
as if set forth in full.
46. As a further result of the injuries sustained by his
wife, Plaintiff, Merle Weaver, has been and will be deprived
of the assistance, companionship, consortium and society of
his wife all of which has been and will be to his great
detriment and loss.
Wherefore, Plaintiff, Merle Weaver, demands judgment
against the Defendants, Thelma Franklin, Pasquale Emanato,
Biagio Emanato and Pizza 'N' Stuff, Inc., for compensatory
damages in an amount in excess of the amount requiring
compulsory arbitration.
RespectfulLy submitted,
."
Law Offices,6;/flm~tJry 7Sh,:~lenberger
. 1//../ /
~ " f ,,/ /~
By . /
Timothy!' .
Attorney I
Date: September iJ[1 1997
7
l.4,IJ.'l'Hll:!51.'1'
T1MUrUY A. SlIllll.ENlIERGER
1'i~~1 U~,iu.""rll\\'S H\1."P . 1'\ I 11ol.),\ f'>I.'~H . H:\RRI:--I\I"Rli, 1':\ lil0fl\.\\.4'
,jlil:Hlj(\'. 1","Xnljl~H.'''21:
GRAVE A. WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
THELMA FRANKLIN and
PASQUALE and SIAGIO
EMANATO and
PIZZA 'N' STUFF, Inc.
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
AFF:IDAVIT
Timothy A. Shollenberger, Esq., being duly sworn
according to law, deposes and says that he is the attorney
for the within Plaintiff, that he is authorized by GRACE A.
WEAVER, to make this Affidavit on her behalf, and that based
on information supplied by the laintiff, she believes that
the facts set forth in the f~~~/ Co ~ai and
correct. 0/;/ -'
Sworn and subscribed before me this 18th day of September.
1997.
-- ------------]
NOTARiAL SEAL
MARJORIE McNAUGIHO~ ~",Jri P'IOIIl
Susquehanna TlNn Oauphtfl County
..... ComuuMlull ~..l,\jll RS N<IV r 2000
~ ',<)~
- m
Not y Public
L....Wl)Hll.bl)~
TIMllTHY A. SHOLUNIJEKGER
1"!~'L1!\;(.lbTll\1,'~ iiI I,,!) . 1'\) Illl\,..,,~..~ . 11..'RRI"'lIl'Rll.I'."171..'-to~1~",
17171 ~I"lh\.' . fA\ 171il !li!i~I:
SHERIFF'S RETURN - OUT OF COUNTY
CASE NOI 1997-0~129 P
CO""ONWEALTH OF PENNSYLVANIA I
COUNTY OF CU"BERLAND
WEAVER GRACE A ET AL
VS.
FRANKLIN THEL"A ET AL
R. Thomas Kline
to law, aays, that
named defendant, to
. Sheriff, who
he made a diligent search
witl FRANKLIN THEL"A
being duly .worn according
and inquiry for the within
but was unable to locate Her in hiB bailiwick. He therefore
deputized the sheriff of FRANKLIN COUNTY County, Pennsylvania.
to serve the within CO"PLAINT INTERROGATORIES
On November
7th. 1997
this office waa in receipt of
FRANKLIN COUNTY County, Pennsylvania.
the attached return from
Sheriff's Coata.
Docketing
Out of County
Surcharge
FRANKLIN COUNTY
18.00
9.00
2.00
3~.44
So answers I
/ "
- ( /' " /'
- " . '/ /' "h;
R. ~hom~s'~i1~.; ~ne %
.64.44 TI"OTHY SHOLLENBERGER
11/07/1997
Sworn and aubscribed to before me
this ') Q- day of -7/... lr< .~ i-<---
19 q? A.D.
,
~ LJ"- ~~ ~- ~
J ro ono ary
SHERIFF'S RETURH - REGULAR
CASE NO. 1997-0~129 P
CO""ONWEALTH OF PENHSYLVANIAI
COUNTY OF CU"BERLAHD
WEAVER GRACE A ET AL
VS.
FRANKLIN THEL"A ET AL
TI"OTHY REITZ . Sheriff or Deputy Sheriff of
CU"BERLAND County, Pennsylvania, who being duly .worn according
to law, says, the within CO"PLAINT was served
upon E"AHATO BIAOIO the
defendant, at 174~100 HOURS, on the ~ day of Seotember
192Z at 703 CHARLES STREET
SHIPPEHSBURG. PA 172~7 .CU"BERLAHD
County, Pennsylvania, by handing to PASQUALE E"AHATO
a true .nd attested copy of the CO"PLAIHT
and at the .a~. time directing H1R .ttention to the contents th.reof.
.
.
Sheriff's Costs I
Docketing
Service
Affidavit
Surcharge
6.00
13.02
.00
2.00
So anavllPra I,.. "P ~
f%nr/<-7~
R. rho.a. K11n., ~her1%%
.21. 02 n,g~~~;~~OL~E. RG~E:/ '~ 14.< .----
d- j/n..~/ /~
o u y sner
Sworn and subscribed to before ..
this ')!!- day of 7U",,_k-
19 ql A.D.
Q1U
~' ~ ~ ~
. J ., A
ro't ona ar,
'"
"'U'I.,(.IIUo.",_..CO'~'<<1
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~
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i ~
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,
,
SHERIFF'S OFFICE
157 LINCOLN WAY EAST. CHAMm:nSflUHG. PENNSYLVANIA 1/201 (71/)261-3877
~
t
'"
3 DEFENDAN r S'
1
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
IN'; THUC liONS FOR SEHVICE OF PHOCESS. Ploaoo type or prlnl
1C'Illlly Da nul dol,)ch ,my COjJIOS.
PLAIr-JIll f :i
THELMA FRANKLIN, ET AL
I;' COUll r NUMUU-i
i 97-5129
!4 TYPEOF WHIT OR COMPLAINT COMPLAINT
I INTERROGATORIES .. REQUEST' FOR
'0 :" "Vlr[ lHIliCiCl"""UN Of~,~gP.HRH8Nf R~IfJi>Pii~~b~fl SOlO .--.
GRAC~: .. HERLE WEAVER
{ "~";~~~~I~)IV~I~~~~~l;~Mn U1HI'UIlATI(lN LTC
ti>\tJUHl ss (:;lwl'l or m D, Ap.1fll11llfll No" CUy. Horn, Twp, Stale and lIP Codo)
. .1oT 316 SOUTH FAYETTE STREET, SHIPPENSBURG, PA 17257
7. INDICATE UNUSUAl ';FHVICl ! i COMMON OF I'A II DlPUTlZE i IOTHER
Now, 19, I, SHERIFF OF FRANKLIN COUNTY, PA, do hereby depulize Ihe Shenff of
County to execute Ihls Wril and make relurn Ihoreof according
10 law, ThiS doputaliofl b",nU rnilde ill the request and nsk of Iho plarnlifl,
8, SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
SERVE
.
,"I HII,I,O' .f"~"~~I.,.!._IAJ~I!
NOTlfoNlVAPpLicABLEONWRIToF EXECUTION: N,8, WAIVER OF'WATcHMAN'::-Any-dopu;Y--Si'-oiiifieVYlng upon or-atiiiciiTng any-p";peiiy'u"der
wllhln wnl mav leave silme without a walchman, in cuslocly of whomovor IS lound in possession, allor notifYing person 01 levy or allachmenl, wllholJlliabilily on
'tlo part 01 such dupuly or the shenff 10 any pl.llnllff herem Inr .my lOS5. deslruchon or removal 01 any such property before sherlfJ's sale thereof
9, SIGNATURE 01 ATTORNr:Y or othor ORIGINATOR '10 TELEPHONE NUMBER ] 11 DATE
CUMBERLAND COUNTY SHERIFF
12: SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area musl be completed If notice 18 10 be mailed) ----- ---- ---.----
CUMBERLAND COUNTY SHERIFF, R. THOMAS KLINE, CUMBERLAND COUNTY COURTHoUSE, ONE COURTHoUSE SQUARE,
-.--.SPACE BEU)WFOR USE OF SHERIFF ONLY';; 00 N()tWRITifBEI.OWTHIS-l.~LISLE.-PA--17011
13, I.Ckno.W..'.ed(~~-I~-~~;~i~-'--;t-;o ~III } ~NATU~.nl AIJlhorllHd Fi DIlPIlIY-O'-CIOlk-ilntl.fill,;--..I-'-.i_---O,lt-u-Ffecoive-c:f- -----I-.15.E'P".,;0-;;;HO~V;;,g-(i,;,.;.
._~!u~~~pl_a~nl <IS In~lc<lled aoove. /)~ J~ 10-2-.97. 10-20-97._ _
16. I herehv CERTIFY and RETURN thilll II~ pm~;nl1.llly :iPrved, ) Ilavo leyal eVIdence 01 SCI'VICH us shown In "Remarks', LJ have execuled as shown in
.Remarks~, Ihe wrll or cOrnpldlnl tle5clltwd on 1110 uldIVIt!IJ.l1. comp,my cOIpor<lllon. elc.. <11 Iho i1(ldress shown above or on the individual, company,
corporaljo~, etc., <ltthe ilfldu)!;s lnsorled helow by handliml il TRUE and ATTESTED COPY (hereof _.
17. [J I heroby cortily ami mlurn il NOT FOUND tK!CiluSO I arll uflablt! 10 locale ltln HlIllvll!ual. company. Corpor,lhOll. olc., named above, (See rClmuks below)
lB.-'Name and' title 0; IndlvllJudl 5urvud (II flol shown above) . 1'9,.." ~jm."H\.o;r ''''.'.I.m;'' .1,,<1 .U'I.'.llt....:'.CIH:.t.l I/lt!fl. -- --.
THELMA FRANKL I N ::;:~~~'l(t _ H~" _~:~~n(~~':I~ _ I~SU:II_ ~~.~~_.~~..
2(j:-Address"of whore SOf'./od (compleh: only If dlllClcnt than shown ahove) (Slmal or RFD, Apaf1mont No., 21 0'-11001 sorvlCill22. Time AM
Clly, Bora. Twp Slato and Zip Code) r~r
1-:05r
~3-~TTE~:E 1:~~I~~:O: :~;'.'"t'II~:~O I. M~I:' ..IO~ '"1'1 DaIO.. r. Mil.... [OoP,.I"I,!. ..~.i.-..[.Mlt..l D:~;~i9~i....[~~t~~L~::.lnl::
24 Advanco Costs 25. ~;~~~ Cosro [264~~~ry C~rt ! 2\~'~O:~oor posrago_ . _____e5T~;~Co~t~_J;::;~~;:FA~u;:..
30. REMARKS
31,AFr-IHMWilnll"',bs'.flb~<JtobO.t..o'o...m~lh~s... .315:_--11... "",,,,~C!!a---'~~ -'~-~-o.tl.-----
34 (yol OCTOIl.F.'P" -E: .,.._. :.~_!U IW"!I'"'''' CHARLES E. BUSH . ._ __.JO-31-97
It? . II C.J.~ ' ,.>'... -' iI" '""" ,!"""I',!,."II J6 Oal.
370)Cl.JJ.A1j U 'L.J..).JJ "" I ' un n ._____
MY CUM..t1SSION EXP';~~.S'''''' ,.-,,'- , I SHERtFF OF FRANKLIN COUNTY ,________
38,'(ACKNOI/Jl[()liL flr:CfIPT OF rtiE SHERIFF'S RETURN SIGNATURE l 1'19.'n';I~-A;;;_~..-_-_.'.'
___OF AUTHOHllt::D ISSUING AUntQHITY AND lInt::: . _ __~__.____.,,___~__
rC'~() t! ....
I l')<:".IWH,. AUIHC)I.!II'(
SHER~FF'S OFFICE
157 LINCOLN WAY EAST, CHAMBERSflURG, PENNSYLVANIA 17201 (717) 261,3877
1[' INSTRUCTIONS FOfI SERV. ICE OF PROCESS Please type '" prlnl
legibly. 00 not dulach anycoplfJS 0"
f 2. COURT NLJMDER
I I) i- ~il ..: II
3 DEFENDANT/ SI 14 r~FE, OF WRIT OR~OMPLAINT,\;~Hi'L'\i~iT
no dL\ !,'!'':\;~,..l.lJ, l,t :\1. l I"',.I.f.;\KUt,;\lUt{lI~S b kt~qtr..__l !<{)1{
{' "N'~E~F,'~.DIVID,U,Al...eOMP'NY eonpon.TlllN, F Ie ,TO SUlVICE lln OEscnlPIION oF~~1:lM!IH~ t8~E [l!ti,iW~W~btA-SOlD- -- .
..~l;........J.a, :.......1.1.*1..1.,
6 ADDRESS (SlreOI or AFO. Aparlment No" CltV, Bom. Twp.. Slate and ZIP Coda)
.__~_ J10 jUl~TH .F;\"Cj:I:T;. :-il,f\l,:".,'L.:;J.ll :)['L_\LjinH{t.~ 1J/\_17'
], INDICATE UNUSUAL SERVICE II COMMON OF PA,ll DEPUTIZE U OTHER
'Now: 19, . I, SHERIFF OF FRANKLIN COUNTY, PA, do hereby deputiiiitheSiierijjoj-'--
County 10 execute thiS Writ and make relurn thereof according
to law. This deputation being made at tho request and risk 01 the plaintiff. ------'--:~--=-~".!t~Ea;~fiU~II~r.~lNf'f.,_==_:.====_~___
8, SPEcIALI~iSTR(jC1l0NS OR OTHER INFORMATION THAT WILl.. ASSIST IN EXPEOITING SERVicE:
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
PLAINTIFF! S
\,/ .\i.!', :..
,".iU ;.
,,:'.;\'./Ljl
SERVE
.
NorinJNLY-"PPLICABI..E ON WRIT OF EXECUTION:-N,B:WAIVER 'OF WATCHM"N-:'Any--iJep'Jty'sherllllevYlngupan or ellaci1iiig anyp",PiiiiY- und..-
wIthin wnt may 10avo 5..1me wllhout a watchman, In custody of whomever is !ouod in possession, aller nOlltymg person 01 levy or attachment, without liability on
~~!.r'-9L~.uch d~pl.!tY!Jr ,th~ sherl,f to_any plmf)tiff herOin 'many !o~s,dQ~lruction ()r ~e~oval_(}1 a"y ~u~.~P~9P'ft~IYJ?~~9.r!t~!l~!llt]~~E!Jh.ereaL____~__.___..____.__
9, SIGNATURE 01 ATTORNEY or other ORIGINATOR [10, TELEPHONE NUMBER Ill. OATE
CUHhl':RI.~A~U ,:tJU;',TY .~ll;':~{ i i,'1<
12, siNO No'iICeoF-sERVICEC'opy TO NAME ANO AODRESS BELOW'lThle ere. mUll b8-coiiipiliieij'l'riolicelll"bltiiielieCij'-----'- -------
CU~thEKL1~;D t;ul):i 1'1' ;jdi:i': t !<'i:. (.;.. i'lilH:\~ ).~ I.Ud.. Cl"l\,h\J.;\;ilJ CULJ;d"'{ C\.iC!tT!ii-'L>l';. ()NI~ COll!(1'fhJt!SE SllUARE I
------'--~.,.SPACEBE[OWFORTJ!,-EOF- SHERIFFONL y:': DO NOT -wRiTE-BELOW Tlilsi.\m!bHiLc-.--PA-----HOH-
13. I ack;~~I';;;~~ ;;;;;;,p-.t ~f'"li~~'~~t-}------ SIGNA hjRE 01 AuthO"'OdFC~epuiy "!Clerk and.- -r;llo--[ i 4~ Dolo'RecelVed ----J'15-E~P';~I'OnMea;;;,g dale
_or cO~~~lnt~_s Indlc<~led dbove. " _ & ,~U-- _. i 1!~~_.,,_:l~X_______ ___~l..Q::'l~.~:JJ___.__
f8. I hereby CERTIFY and RETURN Ihat I U t~ersOnallY sorvod,! J have legal evidencE! of service itS shown In "Remarks., [J have executed as shown in
"Remarks., Ihe Wilt or complaint descnbed on Ihe Individual. cOInpany, corporallon, ele, al the address shown above or on tho individual. company,
_.:~T~~II_~~:.~~~.'~tlhe address inserled below by handhng a TRUE and ATTESTED COPY thereol _ ._,,___ _ ___.__._ _ ___,_~___
17. rJ I hereby cenlly and return i1 NOT FOUND because I mn unablo 10 l(Jcalo the Individual, company, corporation. ele. named above. (Soe rema~s below)
;'8:-Nam-e and"htle OllOdlvldual served (if not shown a'bovo) -- -. - " '11'9.AP"'~ ui.. "lll.""'.. .~;. ....".~~.x.;~--Itl:;;;...'-----
".",<.nlJ .n Ihtl Ikllll,leJ,mt, \l!>ual pac.. 01
Till::I.HA i'!~A;t:,!.!:i .Ifulll t1
20,-Addr'e-ss'ol'wt'lCro served (c'om'pleID only -II dillorunllhan shown above) (Street or RFD,-AparlflleiiNo., . . - 21'_ 0,110 o'-S(;r-.ke' -22~-Time-.' -~ii..-
CIty, Bora. Twp, Stale and Zip Code) ~~T
(): J.'j P:_~ EDSf
SA;.a-: .\,j .',::'\ld',ii. 1.\.
1O-'J()-~7
2i'ATTEMPTS 'I .O.tl
_____.____'___ _1 ~t1^!_~
24. Advance Costs
I ~'~e.
DeP,lnl'j 0.1. [Mil.' [oip,lnl'lo'I'1 Mlli. jDeP,lnt.[
') 3 l \}- \0 ..::, V:.
25 ServIce CostS [26 -Notary cart. - 127 Mlleago or -Postage
UL.U!.L _ _ ''tl.-Vf)_~____ _-'.JL..'!,~L__ .___
O.~.] MIl.~ [~p, 10,'1 olii [~lli~ro.p. Inl.
[26 Total Costs ----129 CDITOUlonRtFtlND
F, I,!! _ ,_..lJ!!..0UEfUiHl
3ii:-REMAAKS
SO ANSWER.
31, AFFIRMED and subSCribed to before me thiS _..______.Jl;.t.:t__ ---_.-,
34. day 01.
37.
. 0CI~..cJ.l______.
19'/'
.....__.....4...
_~'i~::~~I:b\'_~L!~S___:;_1 "I,!_J.
J!i 5II$MhllUolf.t>ll!\tt
~'-=~~~~,'~~~~~~~ -
1',:_,".""'1..;;i~';:;;;';';:;'~'j~i1oc
SHERIFF OF FRANKLIN COUNTY
MY COMMISSION EXPIRES
:l8 I ACKNOWLEDGE RECEIPT OF TilE SHERIFF'S RETURN SIGNATURE I
OF AUTHORIZED lSSUING AUTHORITY AND TlTLF
- ---r).ilj:;i..1i;o,~-' ---..--'-.------
FC<;O II 'j(
.
.\~ at ([u~
,'\' .., <It-I...
,f ~... _0 c,<,J
~ I'..lo V
, ..
S:~. ~ ~~
~..- .._" ..,..;.'
i......:":-.~':,.\.:':-;:'......,~.,...~
.....; ',;:,:'~...:.u.....''';:\..-:''
..../.~-.'~..-I :-......
r~~~~ ~;.~~4 d-~i~~
(ie.-:....~~........I,l
~:T~~~9?
F.CNNY ~. ANce:;~CN
cnit' C.;:uty
Ft THCM~S ~lINE
S:1edH
I-iCF~CE., JCHNS~N
S.:lic:tcr
OFFICE OF THE SHEF.IFF
.~CF.E'f G, .OAMS
F.ui Ella:. C'~Uly
Court House
Carlisle, Fenns'llvania 17013
TO:
Hon. Roberl B. Wollyung
Franklin County Sheriff's
157 Lincoln Way East
Chambersburg, PA 17201
RE:
Dept.
Grace & Merle Weaver
VS
Thelma Franklin et al
No. 97-5129 Civil Term
Complaint, Interrogatories &
for production of Documents
Request
De:l! Sir:
Enclosed ple:\.Se flIld writ of Cornela in t and Not ice , In terroqa tor ies and Reques t
For production of Documents
to l::e served upon
ThRlma Franklin at 316 South Favette St.. Shipoensburo, PA 17257
in your County.
Kindly made s~r'..ice thereof and se:ld us your bill of cos~ a..,d I will rr.:lil a check for
same. or e:lclosed is advance costs which you request.
Ve;:' truly yours,
r~~~
R. THO~l-1.S KLr.--.r:. Sheriff
Cuml::erI:md Coun::.-, Pe:lllsylva:1.ia
Er.c!osures:
...
, "~-------
In Th~ Court of lO/lll1llln Pl~~s of Cumb.:rbntllount!, P~nns!
Gra~e & Merle Weaver
\5,
Thelma Frankl in
N~ 97-5129 Civil Term
19_
;-'"ow, Oct. 1,
Franklin
1997 19_,1 SHERIFF OF Cl'MBERLA:'iD COl?;T)', P.-\ do herehy de?utizelhe Sheriff of
County 10 ueculelhls Wrll, Ihis deput3lioD heiD~ m3de 3t the request 30d risk oflhe Pl3inlllT.
~~
SherilT of Cumherl3nd Count). P3.
Affidavit of Sen'ice
l'iaw,
19
.al
o'clock
:\1. ,erHd Ihe
within
upon
or
by b:lndiDi to
anested cop~. of ~he original
Ihe contents thereof.
o true 3nd
and m3de known 10
So :answers,
Sheriff of
Coun!)., P3.
COSTS
S\\orn ::and sub'icribed berore
me thi~ d;.l~' or
19_
SERVICE
MILEAGE
AFFIO,-\ VIT
S
s
, -
. .' ~ ~ ~ -' '
Ofj:'~.,~ 4" ~
,; :
,'-' n:-
lln1 1
II IlZ ~'.I 'S1
Pl- "
".l'll. -
" \'
_ ,":.h -~
i.
"
GRAVE A, WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO, 97-5129
THELMA FRANKLIN and
PASQUALE and BIAGto
EMANATO and
PIZZA 'N' STUFF, Inc.
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE TO SUBSTITUTE VERIFICATION
TO THE PROTHONOTARY:
Please substitute the attached Affidavit signed by
Grace A. Weaver to Plaintiff's Complaint, which was filed on
September 19, 1997,
Respectfully submitted,
Law Offices
Timot A',
Attor s
Esq.
Date: October 21, 1997
1
LA\\.' ntHLlS Uf
TIMOn." A. ~IIOllEN"ERGER
I~!\' lNt;lbfl'l\\'N Rl)....!l . 1'\ 1 1\t.J,'l( ~H~ . IIARHI~I\1 'fli., rA I ill"'" ~~..~
tilil1).f-lh\1 . t.o\X \7111!H !'i!I!
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
: SS
COUNTY OF DAUPHIN
I,
Grace A. Weaver
. being duly sworn according to law deposes
and says that I am the Plaintiff in the foregoing action; that the facts and allegations
contained herein are based upon facts given by me to my counsel and are trUe and correct
to the best of my know lege, infonnation, and belief; that the language of said
cOlllplaint
is that of my counsel and that I have relied upon
counsel in making this
complaint
based upon my
information.
~Ar~./a 7t/~.A./1 t?...J
Sworn to and subscribed before me,
a Notary Public, this'2?~y of
~!1 ,19~/
~l
ARIAI.
JIny A. WIlgIe, NolIry PulIlIc
~ PACumllOlldCWtty
My CorII1IIaIoo ElqJlIII July 31, 1.
IIT.UPl.OOC\API'IDAVT
L.-\\\.' OFFICES OF
TIMOTHY A. SHOllENBERGER
Iti1(l L1N(ilbTl)\\"S R\.JA[l . rl) f'I..);( o~H~ . 1I."HRI~In:IUI. P." 1;1\'tH:'H~
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CERTIFICATE OF SERVICE
I. Jeannie L. Kawalec, an employee for the law firm Thomas, Thomas & Hafer, hereby
state that a true and correct copy of the foregoing Entry of Appearance was served upon all counsel
of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth
below:
Bv First Class U.S. Mail:
Timothy A. Shollenberger
1820 linglestown Rd,
Harrisburg, PA 17106-0545
THOMAS, THOMAS & HAFER
Dated: (U! J O! 0, 7
LAW OFI'ICES OF
IIARRINGTON, KAUFFMAN & SHILLING
100 PINE STREET, SUITE 300
IIARRISBURG, PA 17101
C. WILLIAM SUlLLlNG, ESQUIRE
SUPREME COURT I,D. NO, 46995
(717) 720-0700
A TIORNEYS FOR:
DEFENDANT SILVER SPRING
TOWNSHIP
GRACE A. WEAVER and
MERLE E, WEAVER,
Her Husband,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
v,
NO, 97-5129
THELMA FRANKLIN and
PASQUALE and BIAGIO
EMANATO and
PIZZA 'N' STUFF, INC.,
Defendants
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance ofC. William Shilling, Esquire on behalf of the Defendant,
Thelma Franklin, only, in the above-captioned litigation,
ING
Dated: November 13, 1997
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4, After rt'.asonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 4 of the
Complaint, and accordingly, said averments are denied, Strict proofthereofis demanded at the
time of trial.
S. Admitted.
6, Admitted,
7. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 7 of the
Complaint, and accordingly, said averments are denied, Strict proof thereof is demanded at the
time of trial.
S, Admitted,
9, Admitted.
10, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 10 of the
Complaint, and accordingly, said averments are denied, Strict proof thereof is demanded at the
time of trial.
II, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph II of the
Complaint, and accordingly, said averments are denied. Strict proof thereof is demanded at the
time of trial.
12, It is admitted that a service entrance door opened onto the sidewalk.
13. Denied.
14, It is admitted that the service entrance door is solid without a window,
1 S, It is admitted that there was no window for persons to see inside the area rented by
Defendants Emanato,
16. The averments of paragraph 16 constitute conclusions of law to which no answer
is required in the applicable Rules of Civil Procedure,
17. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 17 of the
Complaint, and accordingly, said averments are denied, Strict proof thereof is demanded at the
time of trial,
18, It is admitted only that motor vehicles are permitted to park immediately adjacent
to the sidewalk on North Fayette Street. As to the remaining averments of Paragraph 18 of the
Complaint, after reasonable investigation, Answering Defendant is without sufficient knowledge
or information to form a belief as to the truth or accuracy of said averments and, accordingly, said
averments are denied, Strict proof thereof is demanded at the time oflrial,
19, Denied,
20. After reasonable investigation. Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 20 of the
Complaint, and accordingly, said averments are denied, Strict proof Ihereof is demanded at the
time of trial.
21. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 21 of the
Complaint, and accordingly, said averments are denied. Strict proofthereofis demanded at the
lime oflrial.
22, Denied,
23, The avennenls of paragraph 23 are directed to individuals other than Answering
Defendant and no answer is required under the applicable Rules of Civil Procedure,
24(a)-(h), After reasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to form a belief as to the truth or accuracy of Paragraph 24(a)-(h) of
the Complaint, and accordingly, said averments are denied, Slrict proofthereofis demanded at
the time of trial,
25, After reasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to form a belief as to the truth or accuracy of Parpgraph 25 of the
Complaint, and accordingly, said averments are denied, Slrict proofthereofis demanded at the
time of trial,
26. After reasonable investigation, Answering Defendant is wilhout sufficient
knowledge or infonnation to form a belief as to the truth or accuracy of Paragraph 26 of the
Complaint, and accordingly, said lIverments are denied, Strict proof thereof is demanded at the
time oftrial,
27, After reasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to form a belief as to the truth or accuracy of Paragraph 27 ofthe
Complaint, and accordingly, said averments are denied, Strict proofthereofis demanded at the
time of trial.
28, After rtasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to fonn a belief as to the truth or accuracy of Paragraph 28 of the
Complaint, and accordingly, said avennents are denied, Slrict proofthereofis demanded at the
time of trial,
COUNT I
Grlte A. Welver and Merle E. WeAver
Y.
Thelma FnnkJin
29. Answering Defendant's Answers to Paragraphs 1 through 28 above are
inco.'JlOrated herein by reference as if fully set forth at length,
]0. Denied,
] 1. Denied,
32(a)-(c),
Denied.
]], The averments of paragraph ]] constitute a conclusion of law to which no answer
is required in the applicable Rules of Civil Procedure,
]4, The averments of paragraph ]4 constitute a conclusion of law to which no answer
is required in the applicable Rules of Civil Procedure,
WHEREFORE, Defendant Thelma Franklin demands judgment in her favor and against
the Plaintiffs Grace A, Weaver and Merle E, Weaver, with costs.
COUNT II
Grice AI Weaver and Merle E. Welver
v.
Pizza 'N' Stuff. Inc.
35-44. These averments are directed to individuals other than Answering Defendant and,
therefore, no answer is required in the applicable Rules of Civil Procedure,
.~ _. ,~ _ .. __.f,.__ ~ -.......... . ~ --
, .
, '
COUNT II
Merle E. Weaver
v.
Thelm. Fnnklin. '1Ioulle and BI..lo Em.nata
.Ildlbl. Pizza 'N' Sluff, Inc:.
4S. Answering Defendanl's Answers 10 Paragraphs I through 34 above are
incorporaled herein by reference as if fully sel forth allength,
46, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief IS to the truth or accuracy of Paragraph 46 ofthe
Complaint, and accordingly, said averments are denied, Strict proof thereof is demanded at the
time of trial,
WHEREFORE, Defendant Thelma Franklin demands judgment in her favor and against
Merle E, Weaver, with costs,
NEW !\fA TIER
47. The accident complained of in the Complaint of the Plaintiffs was caused or
contributed to by the negligence, carelessness and recklessness of the Plaintiff, Grace A. Weaver,
48, Plaintiff Grace A, Weaver assumed the risk of her activities and the injury as a
result thereof
49, If the Plaintiff suffered injuries and damages as described for reasons set forth in
the Complaint, said injuries and damages were caused or contributed to by conditions over which
the Answering Defendant had no control and for which she is not responsible,
so, If the Plaintiff suffered injuries and damages as described for reasons set forth in
the Complaint, said injuries and damages were caused and/or conlributed to by the negligence,
carelessness and recklessness of other parties over whom Answering Defendant had no control
and for whom she is not responsible,
S I, If the PlaintilT sulTered injuries and damages as set tarth in the Complaint, said
injuries and damages were not proximately caused by any negligent act or omission on behalf of
the Answering Defendant.
S2, If the PlaintilTsulTered injuries and damages as set forth in the Complaint, said
injuries and damages may have been caused by negligent acts or omissions of other individuals or
entities, which constituted the proximate or superseding cause of said injuries and damages,
S3, If the PlaintilT sulTered injuries and damages as described for reasons set forth in
the Complaint, said injuries and damages were caused or contributed to by an act of God,
extremely windy conditions, for which Answering Defendant had no control and for which she is
not responsible.
54, If the PlaintilTsulTered injuries and damages as described for reasons set forth in
the Complaint, PlaintilTGrace A. Weaver was aware of the conditions present at the time of the
accident, had been warned of the conditions present at the time of the accident, but took no action
to preclude the incident complained ofin the Complaint although she had a duty to do so,
55, The PlaintilTs have failed to mitigate their damages and liability for the incident
complained of in the Complaint.
56, The Answering Defendant was a landlord out of possession at the time the alleged
incident occurred and thus is not responsible for the alleged injuries and damages as set forth in
the Complaint,
57. PlaintilTs' claim is barred or limited by the provisions of the Pennsylvania
Comparative Negligence Statute,
VERIFICATION
The undersigned hereby verities that he is counsel for Defendant Franklin in the within
matter and that the facts set forth in the foregoing Answer with New Maller are true and correct
to the best of his knowledge. information and belief and that false statements herein are made
subject to the penalties of 18 Pa. C.S, 4904 relating to unsworn falsifications,
DATED: I). 5 -7-'
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LA W OFFICES OF
HARRINGTON, KAUFFMAN & SHILLING
100 PINE STREET, SUITE 300
HARRISBURG, PA 17101
C. WILLIAM SHILLING, ESQUIRE
SUPREME COURT 1.0, NO. 4699S
(717) 720-0700
A TIORNEYS FOR:
DEFENDANT THEL~IA
FRANKLIN
GRACE A, WEAVER and
MERLE E, WEAVER,
Her Husband,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
v,
NO. 97-5129
THELMA FRANKLIN and
PASQUALE and BIAGIO
EMANATO and
PIZZA 'N' STUFF, INC"
Defendants
JURY TRIAL DEMANDED
ANSWER WITH NEW MA'ITER
Defendant, Thelma Franklin, by and through her counsel, Harrington, Kauffinan &
Shilling, hereby enters the following Answer with New Matter to Plaintiffs' Complaint and avers
as follows:
), Admitted on belief.
2, Admitted.
3, After reasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to fonn a belief as to the truth or accuracy of Paragraph 3 of the
Complaint, and accordingly, said avennents are denied, Strict proof thereof is demanded at the
time of tria!.
..-
4, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 4 of the
Complaint, and accordingly, said averments Ire denied, Stri\.1 proof thereof is demanded at the
time of trial.
S, Admitted,
6. Admitted,
7. After reasonable investigation, Answering Defendant is without sufficient
knowledge or infcmlation to form a belief as to the truth or accuracy of Paragraph 7 of the
Complaint, and accordingly, said averments are denied, Strict proof thereof is demanded at the
time of trial.
8. Admitted,
9, Admitted,
10, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 10 of the
Complaint, and accordingly, said averments are denied, Strict proof thereof is demanded at the
time of trial,
II. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph II of the
Complaint, and accordingly, said avelments are denied, Strict proof thereof is demanded at the
time of trial,
12, It is admitted that a service entrance door opened onto the sidewalk.
13. Denied.
14, It is admilled that the service entrance door is solid without a window
IS, It is admilled that there was no window for persons to see inside the area rented by
Defendants Emanato,
16. The averments of paragraph 16 constitute conclusions of law to which no answer
is required in the applicable Rules of Civil Procedure,
17, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 17 of the
Complaint, and accordingly, said averments are denied, Strict proof thereof is demanded at the
time of trial,
18, It is admilled only that motor vehicles are permilled to park immediately adjacent
to the sidewalk on North Fayelle Street, As to the remaining averments of Paragraph 18 of the
Complaint, after reasonable investigation. Answering Defendant is without sufficient knowledge
or information to form a belief as to the truth or accuracy of said averments and, accordingly, said
averments are denied, Strict proof thereof is demanded at the time of trial,
19, Denied.
20, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 20 of the
Complaint, and accordingly, said averments are denied, Strict proof thereofis demanded at the
time of trial,
21, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 21 of the
Complaint, and accordingly, said averments are denied, Strict proof thereofis demanded at the
--,
time oftrial.
22. Denied,
23. The avennents of paragraph 23 are directed to individuals other than Answering
Defendant and no answer is required under the Ipplicable Rules of Civil Procedure,
24(a)-(h), After reasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to fonn a belief as to the truth or accuracy of Paragraph 24(a)-(h) of
the Complaint, and accordingly, said avennents are denied, Strict proof thereof is demanded at
the tirne of trial,
25, After reasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to fonn a belief as to the truth or accuracy of Paragraph 25 of the
Complaint, and accordingly, said avennenlS are denied, Strict proof thereof is demanded at the
time of trial,
26, After reasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to fonn a belief as to the truth or accuracy of Paragraph 26 of the
Complaint, and accordingly, said avennents are denied, Strict proof thereof is demanded It the
time of trial,
27, After reasonable investigation, Answering Defendant is without sufficient
knowledge or infonnation to fonn a belief as to the truth or accuracy of Paragraph 27 of the
Complaint, and accordingly, said avennents lII'e denied. Strict proofthereofis demanded at the
time of trial,
28, After reasonable investigation, Answering Defendant is without sufficient
knowledge or infc.nnation to fonn a belief as to the truth or accuracy of Paragraph 28 of the
Complaint, and accordingly, said avennents are denied, Strict proof thereof is demanded at the
time of tria!,
COUNT I
Grate A. Weaver and Merle E. We.ver
v.
Thelma Fnnklin
29, Answering Defendant's Answers to Paragraphs 1 through 28 above are
incorporated herein by reference as if fully set forth at length.
30. Denied,
31. Denied,
32(a)-(c),
Denied,
]], The avennenU of paragraph 33 constitute a conclusion oflaw to which no answer
is required in the applicable Rules of Civil Procedure,
34, The avennents of paragraph 34 constitute a conclusion of law to which no answer
is required in the applicable Rules of Civil Procedure,
WHEREFORE, Defendant Thelma Franklin demands judgment in her favor and against
the Plaintiffs Grace A, Weaver and Merle E, Weaver, with costs,
COUNT II
Grate A. We.ver and Merte E. WeAver
v.
Pizza 'N' StuIT. Inc.
35-44. These avennents are directed to individuals other than Answering Defendant and,
therefore, no answer is required in the applicable Rules of Civil Procedure.
f
COUNT II
Mertel:. Weaver
v.
Thelma 'rankll.. 'uaBlle and BIIRio Emlnato
tJdlb/a ....... 'N' Stuff. Inc.
45, Answering Defendant's Answers to Paragraphs I through 34 above are
incorporated herein by reference as if fully set forth at length,
46, After reasonable investigation, Answering Defendant is without sufficient
knowledg~ or infonnation to form a belief as to the truth or accuracy of Paragraph 46 of the
Complaint, and accordingly, said averments are denied, Strict proof thereof is demanded at the
time of trial,
WHEREFORE, Defendant Thelma Franklin demands judgment in her favor and against
Merle E, Weaver, with costs,
NEW MATTER
47, The accident complained of in the Complaint of the Plaintiffs was caused or
contributed to by the negligence, carelessness and recklessness of the Plaintiff, Grace A, Weaver,
48, Plaintiff Grace A, Weaver assumed the risk of her activities and the injury as a
result thereof.
49. If the Plaintiff suffered injuries and damagu as described for reasons set forth in
the Complaint, said injuries and damages were caused or contributed to by conditions over which
the Answering Defendant had no control and for which she is not responsible.
50, If the Plaintiff suffered injuries and damages as described for reasons set forth in
the Complaint, said injuries and damages were caused and/or contributed to by the negligence,
carelessness and rccklessMss of other parties over whom Answering Defendant hAd no control
and for whom she is not responsible,
S I, If the Plaintiff suffered injuria and damages as set forth in the Complaint, said
injuries and damages were not proximately caused by any negligent act or omission on behalf of
the Answering Defendant.
S2, If the Plaintiff suffered injuries and damages as set forth in the Complaint, said
injuries and damages may hAve been caused by negligent acts or omissions of other individuals or
entities, which constituted the proximate or superseding cause of said injuries and damages,
S3, If the Plaintiff suffered injuries and damages as described for reasons set forth in
the Complaint, said injuries and damages were caused or contributed to by an act of God,
extremely windy conditions, for which Answering Defendant had no control and for which she is
not responsible,
S4. If the Plaintiff suffered injuries and damage, as described for reasons set forth in
the Complaint, Plaintiff Grace A, Weaver was aware of the conditions present at the time of the
accident, had been warned of the conditions present at the time of the accident, but took no action
to preclude the incident complained of in the Complaint although she hAd a duty to do so,
SS. The Plaintiffs have failed to mitigate their damages and liability for the incident
complained of in the Complaint,
S6. The Answering Defendant was a landlord out of possession at the time the alleged
incident occurred and thus is not responsible for t~ alleged injuries and damages as set forth in
the Complaint.
S7, Plaintiffs' claim is barred or limited by the provisions ofthe Pennsylvania
Comparative Negligence Statute,
Dated: JJ../" /97
I-~' r---'fl'
J -,Ii, L'J.- d A4 oL ' J
Thelma Franklin
VERIFICATION
Defendant, Thelma Franklin, verifies that the facts set forth in the foregoing Answer with
New Matter are true and correct to the best of her knowledge, information and belief and
understands that statements made herein are subject to the penalties of 18 Pa, C,S.A, Section
4904 relating to Unsworn Falsification to Authorities,
,
I
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CERTIFICATE OF SERVICE
AND NOW, this ~ day of December, 1997, I, (, William Shilling, Esquire, .llomcy
for Defendant Thelma Franklin affinn that I served the foregoing document by depositing same in
the United States Mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to:
Timothy A, Shollenberger, Esquire
1820 Linglestown Road
P,O, Box 60545
Harrisburg, P A 17106-0545
John Flounlacker, Esquire
305 North Front Street
Harrisburg. P A 17101
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Grace A. Weaver and
Merle E. Weaver, Her
Husband,
In the Court of Common Pleas
Cumberland County, Pennsylvania
Plaint if fs
No. 97-5129 Civil ~
v,
Thelma Franklin and
Pasquale !mAnato and
Biagio Emanato and Pizza
'N' Stuff, Inc.,
Defendants
Civil Action - Law
Jury Trial Demanded
................**.**.................
Grace A. Weaver and
Merle E. Weaver, Her
Husband,
In the Court of Common Pleas
Cumberland County, Pennsylvania
Plaint if fs
v.
No. 9~- (,,9.:,-,. Cu;('(rfLI>l
Civil Action - Law
G. Memmi & Sons Bakery,
Inc. anu Stephen
Shwnaker,
Defendants
Jury Trial Demanded
Notice to Take Videotape Deposition Pursuant to
Pennsvlvania Rules of Civil Procedure 4007.2(bl (ll
and 4017.1
To: Grace A. Weaver
Please take notice that pursuant to Pennsylvania Rules
of Civil Procedure 4007.2(b) (1) and 4017.1, the Plaintiffs,
Grace A. Weaver and Merle E. Weaver, Her Husband, will take
the videotape deposition of Grace A. Weaver upon oral
examination and which will be recorded by Video Images for
the purpose of discovery and for use as evidence in the
above action(s) or for both purposes before a Notary Public
of the Commonwealth of Pennsylvania at the Mark, Weigle &
Perkins, 126 East King Street, Shippensburg, Pennsylvania at
10100 a.m. on Tuesday, February 3, 1998, or before some
other officer authorized to take depositions on all matters,
not privileged, which are relevant and material to the
issues and the subject matter involved in the pending action
and that the said Grace A. Weaver is required to appear at
the aforesaid time at the above address and submit to such
examination before said Notary Public.
1."'1.' l )~HU:S ll~'
TIMOTIIY ^. stlOllENUEIUiER
1~1~ I.ISlil.bnrwN fhl.'\(l . I'P 1\\.1\ "l'H~ . II."'RRISIH:llli, 1'." lih'fl-l'H~
t7111 ~\04 1;\\' . fAX Iiii'I 114 ~!I!
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said deposition is scheduled prior to the expiration of
thirty (30) days after service of the original process based
on information that the Plaintiff is eighty (80) years old
and because her testimony is necessary for Plaintiffs' to
meet its burden of proof.
Respectfully submitted,
Law Offices of
Timothy A. Shollenberger
Attorneys for Plaintiffs
Date: December 15, 1997
LAW OFFICES OF
TIMOTIIY A. SHOLLENBERGER
IBW lINGlESTO\VN RO..\[) . rll nox fl~'H\ . 11ARRlsnllfHi, I'A 171('6.05-4\
17171 Z1.,li((1 . f....X 17171114.tI!I~
...
Certificate of Service
I, Timothy A, Shollenberger, Esq., do hereby certify
that on the 15th day of December, 1997, I served a copy of
the within Notice to Take Videotape Deposition Pursuant to
Pennsylvania Rules of Civil Procedure 4007.2(b) (1) and
4017,1 by depositing a true copy same in the United States
Mail, postage paid, at Harrisburg, Pennsylvania, addressed
as follows:
John Flounlacker, Esq,
Thomas, Thomas & Hafer
p, 0, Box 999
Harrisburg, PA 17108-0999
C, William Shilling, Esq,
Harrington, Kaufmann & Shilling
100 pine Street, Ste, 300
Harrisburg, PA 17101
Law Offices of
Timothy A. Shollenberger
Attorneys for Plaintiffs
By
Ti
At
tAW OFFICE:; I.)f
TIMOTlIY A, SIIOLLENBERGER
Itil(lllNlilbT~-n.'N ltlH.[l . Pl1. I\OX tl0H~ . lIARRISIIURO, r.", lil0f1,OH~
t7l71114'\'/l\) . f..*lX 11171 n4.Hl11
.
oJl..:oyu..ll'...........r,ti.p:
Grace A. Weaver and
Merle E. Weaver, Her
Husband,
In the Court of Common Pleas
Cumberland County, Penn&ylvania
,
,
Plaintiffs
":
v.
No. 97-5129 Civil
Thelma Franklin and
Pasquale Emanato and
Biagio Emanato and Pizza
'N' Stuff, Inc.,
Defendants
Civil Action - Law
,Jury Trial Demanded
**.*****......**....**.....**.***.....
Grace A. Weaver and
Merle E. Weaver, Her
Husband,
In the Court of Common Pleas
Cumberland County, Pennsylvania
Plaintiffs
v.
No. 9'1-1..92(, Cui' 1Crz..I"'" ~
Civil Action - Law
G. Memmi & Sons Bakery,
Inc. and Stephen
Shumaker,
Defendants
Jury Trial Demanded
Notice to Take Videotape Deposition Pursuant to
pennsvlvania Rules of Civil Procedure 4007.21bl III
and 4017,1
To: Grace A. Weaver
Please take notice that pursuant to Pennsylvania Rules
of Civil Procedure 4007.2(b) (1) and 4017.1, the plaintiffs,
Grace A. Weaver and Merle E. Weaver, Her Husband, will take
the videotape deposition of Grace A. Weaver upon oral
examination and which will be recorded by Video Images for
the purpose of discovery and for use as evidence in the
above action(s) or for both purposes before a Notary Public
of the Commonwealth of Pennsylvania at the Mark, Weigle &
Perkins, 126 East King Street, Shippensburg, Pennsylvania at
10:00 a.m. on Tuesday, February 3, 1998, or before some
other officer authorized to take depositions on all matters,
not privileged, which are relevant and material to the
issues and the subject matter involved in the pending action
and that the said Grace A, Weaver is required to appear at
the aforesaid time at the above address and submit to such
examination before said Notary Public.
L\W l'IfJCb l'~
TIMOTHY A. SIlOllE~BERGER
I":..' l.IS1 jU;-.:.TI '\P; 11.\ \.s.11 . rl1 I'" 'x t-..';4' . H.-'lRRI~11\ 'Itl L ".'\ I ;1.'('1 ~~~'i
l7l,l:H 17,,\ . f-\\ \:171 !H.;!l!
.
Said deposition is scheduled prior to the expiration of
thirty (30) days after service of the original process based
on information that the Plaintiff is eighty (80) years old
and because her testimony is necessary for Plaintiffs' to
meet its burden of proof.
,
,
Respectfully submitted,
Law Offices of
Timothy A. Shollenberger
Attorneys for Plaintiffs
Date: December 15, 1997
Esq.
lAW '-)!'Fl\~E:, ()f
TIMOnlY A. SHOLLENDERGER
p;:~' llSGlbrll\\'~ R,'.-\D . r(' nl1X t'!..'H~ . If:~RRI:'I\l'Rlt. r.-\ I;I..'",I.'~";
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Certificate of Service
I, Timothy A. Shollenberger, Esq" do hereby certify
that on the 15th day of December, 1997, I served a copy of
the within Notice to Take Videotape Deposition Pursuant to
Pennsylvania Rules of Civil Procedure 4007.2(b) (1) and
4017,1 by depositing a true copy same in the United States
Mail, pOf'tage paid, at Harrisburg, Pennsyl\.:mia, addressed
as follows:
John Flounlacker, Esq,
Thomas, Thomas & Hafer
P. O. Box 999
Harrisburg, PA 17108-0999
C, William Shilling, Esq.
Harrington, Kaufmann & Shilling
100 pine Street, Ste. 300
Harrisburg, PA 17101
Law Offices of
Timothy A. Shollenberger
Attorneys for Plaintiffs
By
Ti
At
L"'\\'l"lFF[CE~ l""lf
TIMOTHY A, SHOLLENBERGER
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M..SWER NM',,\\'E/.\'ER (iRe
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
: IN TilE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 97-5129
THELMA FRANKLIN;
PASQUALE and BIAGlO
EMANATO;
PIZZA 'N' STUFF, INC.;
G. MEMMI & SONS
BAKERY, INC.; AND
STEPHEN SHUMAKER
Defendants
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
PLAINTIFFS' ANSWER TO NEW MATTER
OF DEFENDANT. THELMA FRANKLIN
AND NOW comes the Plainliffs, Grace and Merle Weaver, husband and wife, by
their attorneys, the Law Oflices of Timothy A, Shollenberger, and do respectfully
answer the New Maller of Defendanl. Thelma Franklin as follows:
47 _ 61. Paragraphs 47 through 61 of Defendant. Thelma Franklin's New
Matter are denied by the Plaintiffs, These avennents represent conclusions of law or
opinions and to that extent require no answer. To the extent that an answer is
required. the Plaintiffs are, after reasonable investigation. without knowledge sufticient
to fonn a belief as to the truth of said averments and said avennenls are therefore
denied and strict proof thereof demanded at the time of trial. Said averments are
further denied pursuant to Pa. R.C.P. I029(e).
1
LAW otFlCES llf
TIMOTHY A. SItOLLENBERGER
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t111l !1-4 \7l\' . f.o\X 17171 !14,'1111
WHEREFORE, Ihe Plaintiffs, Gra~e: i1011 Merle: Weaver, respc:~lfully requesl Ihill
Ihis Cuurt dismiss the New Milller of Defendant Thelma Franklin i1nd award the
Plaintiffs the: re:lief set forth in their Cumplaint as iI mailer of Iilw.
Respc:~tfully suhmilled.
SHOLLENBERGER & JANUZZI, LLP
T;~h'"""'''''' ""
Attorney 1.0. #34343
By:
Dated: January 2, 1998
2
1.:"\1/ UHlCb (1~
TIMOTHY A. SHOLLENBERGER
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GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 97-5129
THELMA FRANKLIN:
PASQUALE and BIAGlO
EMANATO;
PIZZA 'N' STUFF, INC.;
G. MEMMI & SONS
BAKERY, INC.; AND
STEPHEN SHUMAKER
Defendants
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
Certificate of Service
AND NOW Ihis 2nd day of January 1998, I hereby certify that I have served the
following PLAINTIFFS' ANSWER TO NEW MA1TER OF DEFENDANT, THELMA
FRANKLIN by depositing a true and correct copy of same in the United States mail,
postage prepaid, addressed to:
C, William Shilling, Esq.
Harrington, Kauffman & Shilling
100 Pine Street, Suite 300
Harrisburg, PA 17101
John Flounlacker, Esq.
Thomas, Thomas & Hafer
P.O. Box 999
Harrisburg, PA 17108-0999
Respectfully submitted,
SHOLLENBERGER & JANUZZI, LLP
Timoth A. Shollenberger, Esq.
Attorney I.D. #34343
By:
Dated: January 2, 1998
L'-'IJ.' l1ffl(.l::" l'F
TIMOTHY ^. sllnllESBERGER
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Grace A. Weaver and
Merle E. Weaver, Her
Husband,
In the Coun of Common Pleas
Cumberland County, Pennsylvania
Plaintiffs
v,
Thelma Franklin; Pasquale
Emanato; Biagio Emanato;
Pizza 'N' Stuff, Inc.;
G. MemmJ & Sons Bakery,
Inc.; and, Stephen Shumaker.
Defendants
No. 97-5129
Civil Action - law
Jury Trial Demanded
Qrlkr
And Now this d'i~y of ija-o
been approved.
ithin Stipulation has
1- lq -1 S )l.,.-l.Li..V1. (} "'t-'uJ
~,:.b,( '~
l.~\\' ('FF[CE~ CF
TI~IOTlI'I' A. SUIJLLE:"olDERGER
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l:]~l :\~ I~~\' . F\.\ I~l;l :,.. 04:1;
Respectfully submitted,
Thomas, Thomas & Hafer
Attorneys for Defendants
Pasquale & Biagio Emanalo &
Pizza & Sluff. Inc.
By i):lA/\vlflC M'J
John Jf/oun/acker. Esq,
Attorney I. D. # 73112
Dale:
1/6/9B
2
L.....w l)H\t:ES l1f
TIMOTHY A. SHOLLENBERGER
IH!v lI:..a;u:.'..-T\.:'^J.'S R(""P . rl '. Rl 'x 1'l''i4'i . It.-'lRRI..,IU 'R' 1, I'A I ill'fl-l'H\
{Hil !I"I;\.'\' . F.\X i7171 1'4":11
ill'~,I,IH\'J" .lll, "'.,........::1:.
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO. 97 - 5129
THELMA FRANKLIN;
PASQUALE and BIAGIO
EMANATO;
PIZZA 'N' STUFF, INC.;
G. MEMMI &. SONS
BAJ(.ERY, INC.; AND
STEPHEN SHUMAKER
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT, If you wish to defend
against the claims set forth in the following pages, you
must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written
appearance personally or by attorney and filing in writing
with the Court your defenses or objections to the claims set
forth against you. You are warned that, if you fail to do
so, the case may proceed without you and a judgment may be
entered against you by the Court without further notice for
any money entered against you by the Court without furthGr
notice for any money claimed in the Complaint or for any
other claim or relief requested by the Plaintiff(s). You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
SIIOlLE:'roIRERGER &. JANl'ZZI. UP
1"4~..' lIN(;lbTt )\,\'!'< R, ),-\11 . rl) 1\\ IX fl\.~H~ . H.-\Hltbm Rt;, n 1:11'4'1 ,'\H
I: I : 1 : 1.. 1 ;,\:, . f. \ '( I; 1;\ : \.f ~: 1 ~
EXHIBIT A
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97.5129
THELMA FRANKLIN ;
PASQUALE and BIAGIO
EMANATO;
PIZZA 'N' STUFF, INC.;
G. MEMMI & SONS
BAKERY, INC.; AND
STEPHEN SHUMAKER
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICIA
LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere
defenderse de estas demandas expuestas en las paginas
siguientes, usted tiene veinte (20) dias de plaza 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 tomaro medidas y puede entrar una orden
contra usted sin previo aviso 0 notoficacaion y por
cualquier queja 0 alivio que es pedido en la peticion do
demanda. usted puede perder dinero 0 sus propiededas 0
otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE.
SI NO TIENE ABOGADO 0 SI NO TIENE EL OINERO
SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA
o LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Cunwerland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
SHllllE~nER(ifR & JA:"iLlll. L1.r
1":~lllN{ ilE.'iTllWN Rl':\{) . Pll 1"- \\ I"~"'i . 1I..\HIH"IIt'R\ '. 1'\ 1 ~l,~ ,"q'i
lil:'l ;\.& li~\' . F-\'\ \7L'\ ;'.. ":1:
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband
plaintif fs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO, 97-5129
THELMA FRANKLIN;
PASQUALE and BIAGIO
EMANATO;
PIZZA 'N' STUFF, INC.;
G, MEMMI & SONS
BAKERY, INC.; AND
STEPHEN SHUMAKER
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
AMENDED COMPLAINT
AND NOW comes the Plaintiffs, Grace and Merle Weaver,
by their attorneys, the law offices of Shollenberger &
Januzzi, LLP and do respectfully represent the following,
1. The Plaintiffs, Grace and Merle Weaver, are adult
individuals who currently reside at 108 West Orange Street
Shippensburg, Cumberland County, Pennsylvania 17257.
2. The Defendant, Thelma Franklin, is an adult
individual who currently resides at 316 South Fayette
Street, Shippensburg, Cumberland County, Pennsylvania 17257.
3. The Defendants, Biagio and Pasquale Emanato, are
adult individuals who currently reside at 703 Charles Street
and 601 Brenton Road, Shippensburg, Cumberland County,
Pennsylvania, respectively.
4. Defendant Pizza 'N' Stuff, Inc. is a Pennsylvania
corporation with offices at 601 Brenton Road, Shippensburg,
Cumberland County, Pennsylvania,
5. The Defendant, Thelma Franklin, is the owner of a
building located at 85 West King Street in Shippensburg,
Cumberland County, Pennsylvania.
6. The Defendants, Biagio and Pasquale Emanato and
Pizza 'N' Stuff, Inc., lease premises for the purpose of
conducting a pizza shop business called Pizza 'N' Stuff in
1
SIIOllESIIl:Rl;ER oS. JANl'lll. Lt.1'
l!ih' lINlilE.."iTl1\\'N Ih \\\, . I'\.) 1\0.. 'x l"o\"i,,~ . 1I:\\iHI"I\lJh;, 1'-\ I ~h'''' ,'q~
1717\:q l;,\, . F.\\ \7171:\.4 '1:1:
said building owned by Defendant Franklin. A copy of the
lease is attached hereto as Exhibit "A."
7. The Defendant, Stephen Shumaker, is an adult
individual whose last known address is 33 Western Road,
Dillsburg, York County, Pennsylvania 17019.
8. The Defendant, G. Memmi & Sons Bakery, Inc., is a
Pennsylvania corporation with corporate offices located at
204 Hillcrest Road, Hershey, Dauphin County, Pennsylvania.
9. At all times herein relevant, the Defendant,
Stephen Shumaker, was acting as the agent, servant and/or
employee or the Defendant, G. Memmi & Sons Bakery, Inc. and
was delivering baked goods to Defendant, Pizza 'N' Stuff,
Inc. within the course and scope of the agency and/or
employment relationship with t~e Defendant, G. Memmi & Sons
Bakery, Inc.
10. The events and circumstances hereinafter set forth
occurred on February 26, 1996 at or ~bout 8:00 a.m. on the
sidewalk adjacent to the North Fayette Street side of the
building owned by Defendant Franklin and from which
Defendants, Emanato and Pizza 'N' Stuff, Inc., ran their
pizza business.
11, On the date above mentioned, the Plaintiffs leased
an apartment from Defendant Franklin which was also housed
in the above referenced building owned by Defendant
Franklin.
12. The only entrance and exit to Plaintiffs'
apartment was a doorway exiting onto a sidewalk adjacent to
North Fayette Street.
13. On the morning of the incident, Defendant
Shumaker, using a key to the premises provided to him by
Defendant Pizza 'N' Stuff, opened the service entrance door
of the shop and commenced making a delivery to the shop.
14. On the morning of the incident, Plaintiff, Grace
Weaver, exited her apartment onto North Fayette Street and
began walking toward King Street on the sidewalk adjacent to
2
SlUILLE~nERla:R &. Jr\:"iL'lll.llP
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the building owned by Defendant, Thelma Franklin, and in the
direction of the service entrance door.
15. The Plaintiff, Grace Weaver, cuntinued walking
toward King Street along said sidewalk in the area of the
service entrance door of the Pizza 'N' Stuff pizza shop.
16. At all times relevant hereto, said service
entrance door opened out into the sidewalk.
17. There was no landing or other physical separation
between the service entrance door and the sidewalk.
18. Said service entrance door was solid without a
window or other opening so that persons passing in front of
said door could not see inside and those inside could not
see outside.
19. There were no windows or other reasonable means
for a person to see inside the pizza shop when passing in
front of the door.
20, Because said service entrance door was solid,
without a window or other opening, persons inside the shop
are unable to determine if persons on the sidewalk are
passing in front of said door.
21. The sidewalk adjacent to the service entrance door
is so narrow that a person would have to step off the
sidewalk and onto North Fayette Street itself to avoid the
door if opened.
22, Motor vehicles are permitted to park immediately
adjacent to the sidewalk on North Fayette Street, and cars
and vehicles were so parked at the time of this incident.
23. The only sidewalk in that section of North Fayette
Street is the sidewalk upon which the plaintiff was walking
and which is immediately adjacent to the building owned by
Defendant Franklin.
24. Pizza 'N' Stuff was not open at the time of the
incident, and it would not have been customary for anyone to
be working in the shop at that hour,
3
SHnllENnERl;~R &. JANl'1l1. UP
1'4:"IIS(ju...,rll\\"~ Ih'\l1 . I't' ''''l\,",'H' . t1.-\RHbl\l Rlj pI, l:h'''',"'H~
,~l~I:I"I:X. n\I,I;I:q":I:
25. As Plaintiff, Grace Weaver, approached the service
entrance door, it was opened by Defendant Shumaker and after
it was opened by him, it struck the Plaintiff on the left
side throwing her off the sidewalk onto the macadam street.
26. The plaintiff believes and avers that Defendant,
Franklin, retained control over the door, the sidewalk
adjacent thereto and the exterior of the building housing
the pizza shop and Plaintiffs' apartment.
27, In the alternative, Plaintiffs believe and
therefore aver that Defendants Emanato and Pizza 'N' Stuff,
Inc., retained control over the door, the sidewalk adjacent
thereto and the exterior of the building housing the pizza
shop and Plaintiffs' apartment.
28. As a direct and proximate result of the incident
above described, the Plaintiff, Grace Weaver, suffered
injuries including, but not limited to:
a. Displaced intertrochanteric fracture of the
right hip repaired with an open reduction
internal fixation;
b, Right thigh hematoma;
c. Intercostal neuritis resulting in intercostal
rib pain;
d. Right shoulder injury;
e. various contusions and abrasions;
f. Compensation injury to the right knee;
g. Severe shock to nerves and nervous system;
and,
h. Extreme mental and physical anguish,
29. As a direct and proximate result of the aforesaid
injuries, the Plaintiff, Grace Weaver, has undergone and in
the future will undergo great pain and suffering for which
damages are claimed.
4
SItULl.f.Nnt:RI;Ut &. ),\Nl'lll.llP
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Iii: I ~ ~.. I:,\.' . ,-,.\ '( 171:1 : \.t ~: 1:
30. As a further result of the aforesaid injuries, the
Plaintiff, Grace Weaver, has sustained a permanent
diminution in her ability to enjoy life and life's pleasures
for which damages are claimed.
31. As a further result of the aforesaid injuries, the
Plaintiff, Grace Weaver, has incurred and may in the future
incur, ~easonable and necessary medical and rehabilitative
costs and expenses for which damages are claimed.
32. As a further result of the aforesaid injuries, the
Plaintiffs, Grace and Merle Weaver, have suffered other
financial expenses and losses including, but not limited to,
having to pay increased rent at another apartment and
increased utilities and other expenses associated with
renting an apartment different from that in which they were
living at the time of the incident.
COUNT I
GRACE & MERLE WEAVER V. THELMA FRANKLIN
33. Paragraphs 1 through 32 of the Plaintiffs'
Complaint are incorporated by reference herein and made a
part hereof as if set forth in full.
34. Plaintiffs believe and therefore aver that
Defendant, Franklin, retained control over the exterior of
the above referenced building, including the service
entrance door and the sidewalk adjacent thereto at the time
of this incident.
35. Plaintiffs believe and therefore aver that
Defendant, Franklin, knew or by the exercise of reasonable
care could have discovered the dangerous condition of the
door and the unreasonable risk of harm to persons in the
position of the Plaintiff.
36. Defendant knew the door was in a dangerous
condition in that:
~. It opened into the street;
5
SllllLLE~nERl;ER & JA~l'lll. L1.P
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171;1;1.4 \;,\' . F.\.'(til;l;Q ":1:
b, There was no glass or other opening whereby a
person opening the door or a person passlng
in front of it could see through the door;
c. There was no sign or other warning to
pedestrians walking past the door that it
opened out directly into the pedestrian's
path; and,
d. There was no latch, door stop, or other
device which would prevent the door from
opening beyond a certain point.
37. Defendant, Franklin, could have made this
dang~rous condition safe by installing a door with a pane of
glass or other opening so that persons opening it and/or
persons passing in front of it could see through the door or
by installing a door that opened to the inside.
38. Said incident was not the result of any act or
failure to act by the Plaintiff, Grace Weaver,
WHEREFORE, the Plaintiffs, Grace Weaver and Merle
Weaver, her husband, demand judgment of the Defendant,
Thelma Franklin, for compensatory damages in excess of the
amount requiring compulsory arbitration.
COUN"!' II
GRACE & MERLE WEAVER V, PIZZA 'N' STUFF. INC.
39. Paragraphs 1 through 38 of the Plaintiffs'
Complaint are incorporated by reference herein and made a
part hereof as if set forth in full,
40. Plaintiffs believe and therefore aver that the
Defendants had been operating the Pizza 'N' Stuff restaurant
at the King Street location and had been utilizing the
service entrance on North Fayette Street at that location
for several years, under a lease agreement issued to it by
Defendant, Franklin.
41. Plaintiffs believe and therefore aver Defendants
Emanato and or Pizza 'N' Stuff, Inc., knew or by the
exercise of reasonable care could have discovered the
dangerous condition of the service entrance door and the
6
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unreasonable risk of harm to persons in the position of the
Plaintiff.
42. Defendants Emanato and Pizza 'N' Stuff, Inc.,
could have warned those in the position of the Plaintiff
that they were open that morning and accepting deliveries
but failed to do so,
43. Defendants Emanato and Pizza 'N' Stuff, Inc.,
could have made the condition safe by installing a door with
a pane of glass or other opening so that persons opening it
and persons passing in front of it could see through the
door or by installing a door that opened to the inside.
44. Defendants Emanato and Pizza 'N' Stuff, Inc.,
could have kept the door ajar when it was in continuous use
for business and/or when they were accepting deliveries.
45. Defendants Emanato and pizza 'N' Stuff, Inc.,
could have directed persons in the position of Plaintiff
around the doorway either by use of a sign or by directing
them personally in order to avoid being hit by the door when
opened suddenly or without warning.
46, Said incident was not the result of any act or
failure to act on the part of the Plaintiff, Grace Weaver,
47. Defendants Emanato and Pizza 'N' Stuff, Inc., knew
or should have known that people would pass in front of the
door during that morning and would not expect the door to be
opened because the shop was not normally open and accepting
deliveries at that hour.
48. Said service entrance door was in a dangerous
condition in that:
a. It opened into the street;
b. There was no glass or other opening whereby a
person opening the door or a person pass~ng
in front of it could see through the door;
c. There was no sign or other warning to
pedestrians walking past the door that it
opened out directly into the pedestrian's
path;
7
SIlOUESnF.1UiEH & JANL'1l1. HI'
1..~,111s,aE..,T,1\\:Slh'..'I' . l'~) 1\1.1Xf>\'H~ . H;\lllU~I\t'Ii{;,r-\ l;h't,,'q'i
,iI71:U 1;,\' . r:\\I;I;I:q~:I:
and,
d. There was no latch, door stop, or other
device which would prevent the door from
opening beyond a certain point.
WHEREFORE the Plaintiffs, Grace and Merle Weaver,
demand judgment of the Defendants, Pasquale Emanato, Biagio
Emanato and Pizza 'N' Stuff, Inc., for compensatory damages
in excess of the amount requiring compulsory arbitration.
COUNT III
GRACE & MERLE WEAVER V. G. MEMMI & SONS
BAKERY. INC, AND STEPHEN SHUMAKER
49, Paragraphs 1 through 48 of the Plaintiffs'
Complaint are incorporated by reference herein and made a
part hereof as if set forth in full.
50. The aforesaid incident was a direct and proximate
result of the negligence of Defendant, G. Memmi & Sons
Bakery, Inc" acting through its agent, servant, and/or
employee, Stephen Shumaker, and the direct and proximate
result of the negligence of Defendant, Stephen Shumaker,
individually, as follows:
a. Failing to warn Plaintiff that he was making
the delivery;
b. Opening the door without first ascertaining
Plaintiff's presence behind the door and that
it would strike her if he opened it;
c. At the same time that Plaintiff was at the
side entrance, Defendant opened the door but
failed to keep a hold of it causing or
allowing it to fly open and strike the
Plaintiff; and,
d, Failing to prop open the door while making
his delivery,
COUNT IV
MERLE WEAVER V. THELMA FRANKLIN AND
PASQUALE & BIAGlO EMANATO T/n/B/A PIZZA 'N' STUFF.
INC. AND G. MEMMI AND SONS BAKERY. lNC, AND STEPHEN SHUMAKER
8
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l:l:l:ql;,\'. L\\I:I:,~q":I~
51. Par~gr~phs 1 through 50 of the Plaintiffs'
Complaint are incorporated by reference herein and made a
part hereof as if set forth in full.
52. As a further result of the injuries sustained by
his wife, Plaintiff, Merle Weaver, has been and will be
deprived of the assistance, companionship, consortium and
society of his wife all of which has been and will be to his
great detriment and loss.
WHEREFORE, Plaintiff, Merle Weaver, demands judgment
against the Defendants, Thelma Franklin, pasqualp. Emanato,
Biagio Emanato and Pizza 'N' Stuff, Inc., for compensatory
damages in an amount in excess of the amount requiring
compulsory arbitration.
Respectfully submitted,
Shollenberger & Januzzi, LLP
Attorneys for Plaintiffs
By
Timothy A. Shollenberger, Esq.
Attorney I. D, #34343
Date:
, 1998
9
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GRACE A, WEAVER and
MERLE E, WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO. 97-5129
THELMA FRANKLIN;
PASQUALE and BIAGIO
EMANATO;
P1ZZA 'N' STUFF, INC.;
G. MEMMI & SONS
BAKERY, INC,; AND
STEPHEN SHUMAKER
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT, If you wish to defend
against the claims set forth in the following pages, you
must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written
appearance personally or by attorney and filing in writing
with the Court your defenses or objections to the claims set
forth against you, You are warned that, if you fail to do
so, the case may proceed without you nnd a judgment may be
entered against you by the Cour.t without further notice for
any money 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(s). You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP,
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, FA 17013
(717) 249-3166
SHOLLENBERGER &. JANVlZI. UP
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GRACE A, WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-5129
THELMA FRANKLIN ;
PASQUALE and BIAGIO
EMANATO;
PIZZA 'N' STUFF, INC,;
G, MEMMI & SONS
BAKERY, INC,; AND
STEPHEN SHUMAKER
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICIA
LE HAN DEMANDADO A USTED EN LA CORTE. si usted quiere
defenderse de estas demandas expuestas en las paginas
siguientes, usted tiene veinte (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 par abogado y archivar en la corte en forma
escrita sus defensas 0 SUB objeciones alas demandas en
contra de su persona. Sea avisado que si usted no se
defiende, la corte tomaro medidas y puede entrar una orden
contra usted sin previo aviso 0 notoficacaion y par
cualquier queja 0 alivio que es pedido en la peticion do
demanda. usted puede perder dinero 0 sus propiededas 0
otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE.
SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO
SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA
o LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
Slll1llENRERGER 6. JANUZZI, llP
IHZO lINlil.F_"iTt)WN ftl1All . 1',lll\t.lX txl~~~ . 11AHI\lSl\l'IHi,I'A t 1IC~H.l'i,,'i
1117IHH7l\J. FAX(7171l14.HlIl
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO, 97-5129
THELMA FRANKLIN;
PASQUALE and BIAGIO
EMANATO;
PIZZA 'N' STUFF, INC,;
G, MEMMI & SONS
BAKERY, INC,; AND
STEPHEN SHUMAKER
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
AMENDED COMPLAINT
AND NOW comes the Plaintiffs, Grace and Merle Weaver,
by thei= attorneys, the law offices of Shollenberger &
Januzzi, LLP and do respectfully represent the following,
1. The Plaintiffs, Grace and Merle Weaver, are adult
individuals who currently reside at 108 West Orange Street
Shippensburg, Cumberland County, Pennsylvania 17257.
2. The Defendant, Thelma Franklin, is an adult
individual who currently resides at 316 South Fayette
Street, Shippensburg, Cumberland County, Pennsylvania 17257.
3. The Defendants, Biagio and Pasquale Emanato, are
adult individuals who currently reside at 703 Charles Street
and 601 Brenton Road, Shippensburg, Cumberland County,
Pennsylvania, respecLively.
4, Defendant Pizza 'N' Stuff, Inc. is a Pennsylvania
corporation with ofrices at 601 Brenton Road, Shippensburg,
Cumberland County, Pennsylvania,
5, The Defendant, Thelma Franklin, is the owner of a
building located at 85 West King Street in Shippensburg,
Cumberland County, Pennsylvania,
6. The Defendants, Biagio and Pasquale Emanato and
Pizza 'N' Stuff, Inc" lease premises for the purpose of
conducting a pizza shop business called Pizza 'N' Stuff in
1
SHnLLEN8E8GE8 .. jANUZlI, UP
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said building owned by Defendant Franklin. A copy of the
lease is attached hereto as Exhibit "A."
7. The Defendant, Stephen Shumaker, is an adult
individual whose last known address is 33 Western Road,
Dillsburg, York County, Pennsylvania 17019.
8. The Defendant, G. Memmi & Sons Bakery, lnc" is a
Pennsylvania corporation with corporate offices located at
204 Hillcrest Road, Hershey, Dauphin County, Pennsylvania.
9. At all times herein relevant, the Defendant,
Stephen Shumaker, was acting as the agent, servant and/or
employee or the Defendant, G. Memmi & Sons Bakery, Inc. and
was delivering baked goods to Defendant, Pizza 'N' Stuff,
Inc, within the course and scope of the agency and/or
employment relationship with the Defendant, G. Memmi & Sons
Bakery, Inc.
10. The events and circumstances hereinafter set forth
occurred on February 26, 1996 at or about 8:00 a.m. on the
sidewalk adjacent to the North Fayette Street side of the
building owned by Defendant Franklin and from which
Defendants, Emanato and Pizza 'N' Stuff, Inc" ran their
pizza business.
11. On the date above mentioned, the Plaintiffs leased
an apartment from Defendant Franklin which was also housed
in the above referenced building owned by Defendant
Franklin.
12. The only entrance and exit
apartment was a doorway exiting onto
North Fayette Street.
13. On the morning of the incident, Defendant
Shumaker, using a key to the premises provided to him by
Defendant Pizza 'N' Stuff, opened the service entrance door
of the shop and commenced making a delivery to the shop,
14. On the morning of the incident, Plaintiff, Grace
Weaver, exited her apartment onto North Fayette Street and
began walking toward King Street on the sidewalk adjacent to
to Plaintiffs'
a sidewalk adjacent
to
2
SHOUENBl:R(;ER & JA~LrlZI. UP
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the building owned by Defendant, Thelma Franklin, and in the
direction of the service entrance door.
15. The Plaintiff, Grace Weaver, continued walking
toward King Street along said sidewalk in the area of the
service entrance door of the Pizza 'N' Stuff pizza shop,
16. At all times relevant hereto, said service
entrance door opened out into the sJ.dewalk,
17. There was no landing or other physical separation
between the service entrance door and the sidewalk.
18, Said service entrance door was solid without a
window or other opening so that persons passing in front of
said door could not see inside and those inside could not
see outside.
19. There were no windows or other reasonable means
for a person to see inside the pizza shop when passing in
front of the door.
20. Because said service entrance door was solid,
without a window or other opening, persons inside the shop
are unable to determine if persons on the sidewalk are
passing in front of said door.
21. The sidewalk adjacent to the service entrance door
is so narrow that a person would have to step off the
sidewalk and onto North Fayette Street itself to avoid the
door if opened.
22, Motor vehicles are permitted to park immediately
adjacent to the sidewalk on North Fayette Street, and cars
and vehicles were so parked at the time of this incident.
23. The only sidewalk in that section of North Fayette
Street is the sidewalk upon which the Plaintiff was walking
and which is immediately adjacent to the building owned by
Defendant Franklin.
24. Pizza 'N' Stuff was not open at the time of the
incident, and it would not have been customary for anyone to
be working in the shop at that hour.
3
5tH lLLf.Snf.RliER a. JANVlll. UP
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25, As Plaintiff, Grace Weaver, approached the service
entrance door, it was opened by Defendant Shumaker and after
it was opened by him, it struck the plaintiff on the left
side throwing her off the sidewalk onto the macadam street.
26. The Plaintiff believes and avers that Defendant,
Franklin, retained control over the door, the sidewalk
adjacent thereto and the exterior of the building housing
the pizza shop and Plaintiffs' apartment.
27, In the alternative, Plaintiffs believe and
therefore aver that Defendants Emanato and Pizza 'N' Stuff,
Inc" retained control over the door, the sidewalk adjacent
thereto and the exterior of the building housing the pizza
shop and Plaintiffs' apartment,
28. As a direct and proximate result of the incident
above described, the Plaintiff, Grace Weaver, suffered
injuries including, but not limited to:
a. Displaced intertrochanteric fracture of the
right hip repaired with an open reduction
internal fixation;
b, Right thigh hematoma;
c, Intercostal neuritis resulting in intercostal
rib pain;
d, Right shoulder injury;
e. Various contusions and abrasions;
f, Compensation injury to the right knee;
g. Severe shock to nerves and nervous system;
and,
h. Extreme mental and physical anguish.
29, As a direct and proximate result of the aforesaid
injuries, the Plaintiff, Grace Weaver, has undergone and in
the future will undergo great pain and suffering for which
damages are claimed,
4
SIIOl.lENnERGF.R &. JANUlZI. LlP
IM!O I.INUI.FSTl)\\'N fh lAP . I'll I\I.)X ttI.'H\ . IlAIU\I~I\l!R\i. 1'.'\ 17h'tH.'H~
i7171!H.\]..\1 . F..'X(7l71!\.t-.~!I!
30, As a further result of the aforesaid injuries, the
Plaintiff, Grace Weaver, has sustained a permanent
diminution in her ability to enjoy life and life's pleasures
for which damages are claimed.
31. As a further result of the aforesaid injuries, the
Plaintiff, Grace Weaver, has incurred and may in the future
incur, reasonable and necessary medical and rehabilitative
costs and expenses for which damages are claimed.
32. As a further result of the aforesaid injuries, the
Plaintiffs, Grace and Merle Weaver, have suffered other
financial expenses and losses including, but not limited to,
having to pay increased rent at another apartment and
increased utilities and other expenses associated with
renting an apartment different from that in which they were
living at the time of the incident.
COUNT :I
GRACE & MERLE WEAVER V. THELMA FRANKLIN
33. Paragraphs 1 through 32 of the Plaintiffs'
Complaint are incorporated by reference herein and made a
part hereof as if set forth in full.
34, Plaintiffs believe and therefore aver that
Defendant, Franklin, retained control over the exterior of
the above referenced building, including the service
entrance door and the sidewalk adjacent thereto at the time
of this incident.
35. Plaintiffs believe and therefore aver that
Defendant, Franklin, knew or by the exercise of reasonable
care could have discovered the dangerous condition of the
door and the unreasonable risk of harm to persons in the
position of the Plaintiff,
36. Defendant knew the door was in a dangerous
condition in that:
a. It opened into the street;
5
SIIOLLENRERliER .. JANUZII, LLP
IMlOUNliUSTl1WN RnAll . l'i.1_l\llX t'Il.H4'i . IIARIUSIIUIHi, PA 111(''tI.(I''f\
(717) !\.4.\7L\.' . fAXI7Iil!H~1I1
b, There was no glass or other opening wher7by a
person opening the door or a person passlng
in front of it could see through the door;
c, There was no sign or other warning to
pedestrians walking past the door that it
opened out directly into the pedestrian's
path; and,
d. There was no latch, door stop, or other
device which would prevent the door from
opening beyond a certain point,
37, Defendant, Franklin, could have made this
dangerous condition safe by installing a door with a pane of
glass or other opening so that persons opening it and/or
persons passing in front of it could see through the door or
by installing a door that opened to the inside.
38, Said incident was not the result of any act or
failure to act by the Plaintiff, Grace Weaver,
WHEREFORE, the Plaintiffs, Grace Weaver and Merle
Weaver, her husband, demand judgment of the Defendant,
Thelma Franklin, for compensatory damages in excess of the
amount requiring compulsory arbitration.
COUNT II
GRACE & MERLE WEAVER V. PIZZA 'N' STUFF. INC.
39, Paragraphs 1 through 38 of the Plaintiffs'
Complaint are incorporated by reference herein and made a
part hereof as if set forth in full,
40. Plaintiffs believe and therefore aver that the
Defendants had been operating the Pizza 'N' Stuff restaurant
at the King Street location and had been utilizing the
service entrance on North Fayette Street at that location
for several years, under a lease agreement issued to it by
Defendant, Franklin.
41, Plaintiffs believe and therefore aver Defendants
Emanato and or Pizza 'N' Stuff, Inc., knew or by the
exercise of reasonable care could have discovered the
dangerous condition of the service entrance door and the
6
SHOLLENBERGER &. JANUZZI. UP
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unreasonable risk of harm to persons in the position of the
Plaintiff.
42. Defendants Emanato and Pizza 'N' Stuff, Inc.,
could have warned those in the position of the Plaintiff
that they were open that morning and accepting deliveries
but failed to do 80.
43. Defendants Emanato and Pizza 'N' Stuff, Inc.,
could have made the condition safe by installing a door with
a pane of glass or other opening so that persons opening it
and persons passing in front of it could see through the
door or by installing a door that opened to the inside,
44. Defendants Emanato and Pizza 'N' Stuff, Inc.,
could have kept the door ajar when it was in continuous use
for business and/or when they were accepting deliveries,
45, Defendants Emanato and Pizza 'N' Stuff, Inc.,
could have directed persons in the position of Plaintiff
around the doorway either by use of a sign or by directing
them personally in order to avoid being hit by the door when
opened suddenly or without warning,
46, Said incident was not the result of any act or
failure to act on the part of the Plaintiff, Grace Weaver,
47, Defendants Emanato and Pizza 'N' Stuff, Inc., knew
or should have known that people would pass in front of the
door during that morning and would not expect the door to be
opened because the shop was not normally open and accepting
deliveries at that hour.
48, Said service entrance door was in a dangerous
condition in that:
a. It opened into the street;
b, There was no glass or other opening whereby a
person opening the door or a person passing
in front of it could see through the door;
c. There was no sign or other warning to
pedestrians walking past the door that it
opened out directly into the pedestrian's
path;
7
SllOllENnER{iER & JANllZll, u.p
!1l!0 UNl;If.ST{ ).....'N HI l,4.11 . l'~ I Ill.. IX tli,l~H . IIAIWhlll1IU;, I'.", lih"'.l'~"~
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and,
d. There was no latch, door stop, or other
device which would prevent the door from
opening beyond a certain point.
WHEREFORE the Plaintiffs, Grace and Merle Weaver,
demand judgment of the Defendants, Pasquale Emanato, Biagio
Emanato and Pizza 'N' Stuff, Inc., for compensatory damages
in excess of the amount requiring compulsory arbitration.
COUNT III
GRACE & MERLE WEAVER V. G. MEMMI & SONS
BAKERY. INC. AND STEPHEN SHUMAKER
49, Paragraphs 1 through 48 of the Plaintiffs'
Complaint are incor.porated by reference herein and made a
part hereof as if set forth in full.
50. The aforesaid incident was a direct and proximate
result of the negligence of Defendant, G. Memmi & Sons
Bakery, Inc., acting through its agent, servant, and/or
employee, Stephen Shumaker, and the direct and proximate
result of the negligence of Defendant, Stephen Shumaker,
individually, as follows:
a. Failing to warn plaintiff that he was making
the delivery;
b. Opening the door without first ascertaining
Plaintiff's presence behind the door and that
it would strike her if he opened it;
c, At the same time that Plaintiff was at the
side entrance, Defendant opened the door but
failed to keep a hold of it causing or
allowing it to fly open and strike the
Plaintiff; and,
d, Failing to prop open the door while making
his delivery.
COUNT :IV
MERLE WEAVER V. THELMA FRANKL:IN AND
PASOUALE & BIAG:IO EMANATO T/D/B/A PIZZA 'N' STUFF.
INC. AND G. MEMMI AND SONS BAKERY. INC. AND STEPHEN SHUMAKER
8
SIlOLLENDERGER & JANUlZI. LLr
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1711l !\of.lh\' . fAX {llll ;\ofI\!I!
51. Paragraphs 1 through 50 of the Plaintiffs'
Complaint are incorporated by reference herein and made a
part hereof as if set forth in full,
52, As a further result of the injuries sustained by
his wife, Plaintiff, Merle Weaver, has been and will be
deprived of the assistance, companionship, consortium and
society of his wife all of which has been and will be to his
great detriment and loss,
WHEREFORE, Plaintiff, Merle Weaver, demands judgment
against the Defendants, Thelma Franklin, Pasquale Emanato,
Biagio Emanato and Pizza 'N' Stuff, Inc., for compensatory
damages in an amount in excess of the amount requiring
compulsory arbitration.
Respectfully submitted,
Shollenberger & Januzzi, LLP
Attorneys for Plaintiffs
By
Ti
At
Oate:
January 30
, 1998
9
SHOLLENBERGER &. JANUIZt, UP
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Certifioate of Servioe
I, Timothy A, Shollenberger, Esq., do hereby certify
that I have served a copy of the within Amended Complaint by
depositing a true copy in the United States Mail, postage
paid, at Harrisburg, Pennsylvania, addressed as follows:
C, William Shilling, Esq.
Harrington, Kaufmann & Shilling
100 pine Street, Ste, 300
Harrisburg, PA 17101
John Flounlacker, Esq.
Thomas, Thomas & Hafer
P. 0, Box 999
Harrisburg, PA 17108-0999
and having a true copy hand-delivered, addressed as follows:
Jack M. Hartman, Esq,
Hartman & Miller, P. C,
126 - 128 Walnut Street
Harrisburg, PA 17101
Shollenberger "
Januzzi, L.L.P.
Attor ys for Plaintiffs
/
Date: January 30
, 1998
SHOLLENBERGER & JANUZlI. LLP
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GRACE A. WEAVER dnd
MERLE E. WEAVER,
Her Husband
Pldintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
:iO.97-5129
THElMA FRANKLIN;
PASQUALE and BIAGIO
EMANA TO; and
PIZZA 'N' STUFF, INC.;
Defendants
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
......................................
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 97-6926
G. MEMMI & SONS
BAKERY, INC.; AND
STEPHEN SHUMAKER
Defendants
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
PLAINTIFFS' ANSWER TO MOTION TO VACATE & OUASH
THE DEPOSTION SUBPOENA OF PLAINTIFF, GRACE A. WEAVER
AND NOW comes the Plaintiffs, Grace A. Weaver and Merle E. Weaver, her
husband, by and through their attorneys, SHOLLENBERGER & jANUZZl, LLP, and
does respectfully answer the Defendant's Motion to Vacate and Quash the
Deposition Subpoena of Pldintiff Grace A. Weaver as follows:
1. Admitted. By way of further answer, Plaintiff's deposition was originally
scheduled on December 1 5, 1998.
1
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2. Admitted in pdrt. PI,lintiff's counsel poslponed but did nol cancel the
deposilion, rescheduling it for Febru,try 3, 1')98. The deposition was rescheduled
because Plaintiff's counsel received documents from counsel for Defendants
Emanalo and Pina 'N Stuff which suggesled that an additional Defendant,
MemOli's Bakery, needed to be joined. The deposition was continued in order to
afford Memmi's the opportunity to be sued and ,lfford time for Ihe Writ to be
served and counsel to enter an appearance on behalf of the Additional Defendant.
By way of further answer, Attorney J,lCk Hartman has now entered appearance on
behalf of Memmi's and Stephen Shumaker, its employee. By way of further
answer, neither counsel for Pasqu,lle ,lIld Biagio Emanato and Pizza 'N' Stuff, Inc.,
nor counsel for Memmi's and Stephen Shumaker have objected to the deposition
of the Plaintiff scheduled for February 3, 1998.
3. Admitted, By way of further answer, the Plaintiff Grace Weaver was
born on October 24, 1917 and althe present time is 80 years old. Plaintiff
believes and therefore avers lh,lI she would qualify as an aged individual pursuant
to rule Pa.R.C.P. 4007.2(b)(l).
4, Admitted in part and denied in part. It is admitted that counsel
informed Plaintiff's counsel by means of a letter dated December 29, 1997. A
copy of that letter is attached hereto and incorporated by reference herein as
Exhibit A and speaks for itself.
5. It is admitted that Plaintiff's counsel responded to Defendant counsel's
December 29, 1997 letter with a letter dated December 30, 1997. A copy of that
letter is attached hereto as Exhibit B and speaks for itself.
6. It is admitted that Defendant's counsel responded by letter of January 5,
1998. A copy of this letter is attached hereto as Exhibit C and speaks for itself.
7. Denied. On the contrary. Telephone conferencing would most
certainly properly allow the Defendant to participate in the active defense of her
case, as would the use of a telephone hookup.
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8. Admilled. If the Defend,lIll wishes to come and face Ms. Weaver, she
most certainly can. She has had notice of this deposition since at least
December 29, 1997. She chose to make plans to go to Florida, which she did on
January 28, 1998 and could certainly come back for the deposition should that be
her desire. What the Court is being asked to do is balance the interest of the
Defendant remaining in Florida through the middle of March and the Plaintiff's
rights under Pa.R.C.P, 4007.2 to give her deposition so as to preserve her
testimony on the issue of both liability and damages should she not be capable of
testifying when this case goes to trial. Plaintiff believes and therefore aver; that if
these two interests are balanced, the Plaintiff must be given the right to proceed
with her deposition on February 3, 199B.
9. Denied, Plaintiff and Plaintiff's coumel is unaware of any Rule of Civil
Procedure that mandates that a party take the discovery deposition of Jny other
party to the action or witnesses prior to the time of trial or prior to testimony being
taken for use at the time of trial. In fact, Pa.R.C.P. 4007.2 suggests the contrary.
10. Denied. On the contrary, Defendant's counsel can take the discovery
deposition of the Plaintiff. Plaintiff's counsel has never denied the Defendant the
right to do so and had Defense counsel asked, he most certainly could have taken
the deposition of the Plaintiff, Grace Weaver, at any time prior to February 3,
1998. By way of further answer, Defendant's insurer was given permission to and
did take a detailed in person recorded statement of the Plaintiff. A copy of the
transcript of that statement is allached as Exhibit D. The only reason Plaintiff's
discovery deposition has not been taken prior to now is because Defense counsel
never asked for it to be taken.
11. Denied. On the contrary, Defendant Franklin can participate in the
preparation and defense of the civil case by coming back from h(,r vacation in
Florida or by listening to the deposition on telephone or by reviewing the
r
3
sUOllENBER{it::R & J,\NL'lll. Lt.P
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LAW OFFICES OF
HARRINGTON, KAUFFMAN & SHILLING
100 Pine StrccI. Sui Ie JOO. Harrisburg, PA 17101
TIM J, HARRINOTON, JR.
1l0WARD D, KAUFFMAN
C, WU.LIAM SIIILUNO
TELEPHONE: (717) 710.)700
fACSIMILE, (717)13~9080
December 29, 1997
Timothy A. Shollenberger, Esquire
1820 Linglestown Road
P,O, BOlt 60545
Harrisburg, PA 17106-0545
~ r-'
-
("" . ..
Re: Grace A. Weaver and Merle E. Weaver, Her Husband v. Thelma Franklin,
Pasquale and Biagio Emanato and Pizza 'N' Sturr, Inc.
No. 97-5129 . Cumberland County C,C.P.
Claim No, 2600-304657-01-1
Our File No, 97-11-194
Dear Tim:
I am in receipt of your Deposition Notice of your client for Tuesday, February 3, 1998 at
10:00 AM, Inasmuch as you are taking this de[Josition for possible use at trial, it is my desire that
Thelma Franklin be present at this deposition, Unfortunately, she already has a ticket and plans to
be in Florida from January 28, 1998 until mid-March.
Based upon the foregoing, I would request that the videotaped deposition of your client
be rescheduled for some time after March 15, 1998, Should you have any questions, please feel
free to contact me,
Very truly yours,
C. LLl,/UlrX ~VL t'U \~-if
C, William Shilling .j)cJ
CWSlbes
cc: John Flounlacker, Esquire
Thelma Franklin
Cathy Marshall
EXHIBIT
I A
LAW OFFICES OF
HARRINGTON, KAUFFMAN & SHILLING
100 Pine SltCCt. Suile 300. Harrisburg. PA 11101
TIM j, IIAllRlNOTON, m.
HOW AJlD D, KAUFFMAN
C, WilliAM SIIILUNO
TELEPHONE: (717) 110-<1700
FACSIMILE: (717)])6-9010
January 5, 1998
Timothy A, Shollenberger, Esquire
1820 Linglestown Road
P,O, Box 60545
Harrisburg, PA 17106-0545
..,
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Re: Grace A. Weaver and Merle E. Weaver, Her Husband v. Tbelma Franklin,
Pasquale and Oiaglo Emanato and Pizza 'N' StulT, Inc.
No. 97.5129. Cumberland County C,C.P.
Claim No. 2600-304657-01-1
Our File No, 97-\1-194
Dear Tim:
I am in receipt of your leller dated December 30, 1997 regarding the above referenced
file, Inasmuch as you are planning on taking your client's deposition for possible use at the time
of trial should she not be available for trial, I must insist that my client be present at the time her
deposition is being taken, This is no different than if we are actually at trial and you would put
your client on the stand, I want my client physically there to hear what is being said and to make
any comments to me that she may deem important or pertinent to this case,
You will recall that your client's deposition was originally scheduled to be taken in
December of 1997, but that this deposition was continued at your request. I do not feel that a
continuance ofapproximately 45 days should effect your client or the taking of her deposition, I,
therefore, must insist that the deposition be rescheduled until such time as my client is available to
be physically at the videotaped deposition of the person who has brought the lawsuit against her,
Should you have any further comments, please feel free to contact me,
Very trury yo~, /. )
/~I'A/~ ",
/ /// /
/p.~
{~t William Shilling
CWSJbes
cc:
John Flounlacker, Esquire
Thelma Franklin
Cathy Marshall
EXHIBIT
t
/
I
RECORDED PERSONAL INTERVIEW
BY: Kathy Marshall
CLAIM:
2600.AL.3046S7.01.1
POLICYHOLDER: Thelma Franklin
PERSON INTERVIEWED:
Grace Weaver
This is Kathy Marshall interviewing Grace Weaver at the Law Offices of...
A, (Attorney: Mark, Weigle and Perkins.)
Q, Mark, Weigle and Perkins, in Shippensburg. Today's date is March 11. The time right now
is 10:45 in the morning. Would you state your name and address, please?
A. Grace A. Weaver, 212 South Fayette Street, Shippensburg, Pennsylvania.
Q, Do you Wlderstand that this interview is being recorded and is it with your permission?
A. Yes.
Q. All right. What is the date of your birth?
A, October24,1917.
Q, And are you married right now or are you widowed?
A. Yes,l am.
Q, You are currently married?
A. Yes.
Q. Your husband's name?
A. Merle E. Weaver.
Q. And what is his date of birth?
A. November 23, 1911.
Q. All right, do you, are you employed outside of your home?
A. No, I'm not.
Q, In any capacity..,OK. You are retired?
A. lam.
Q.
A,
OK, what did you do prior to retirement?
Worked for Hoffman Mills.
EXHIBIT
I t>
CLAIM:
NAME:
PAGE:
2600.AL.304657.0I.1
Grace Weaver
2
Q. What is that?
A. A textile fiml in 5hippensburg.
Q. OK, and how long have you been retired?
A, 20, over 20 years,
Q. OK. All right, this incident occurred at, on the side, from what I understand the incident
occurred on the sidewalk of the building where you were a tenant?
A. Yes, right.
Q. Is that correct, OK.
A. That's correct.
Q. How long had you lived there?
A. Five years.
Q. 50 you lived there five years when this had happened?
A. That's right.
Q. All right, so that would be I991?
A. Well maybe not quite five years, but close to five years.
Q. Approximately? All right, would it be 1991 that you moved into this apartment?
A. This is '97...1 guess it would have been.
Q. All right. Do you know approximately what month, what time that you moved in?
A. August I we moved.
Q. OK, and that was you and your husband, correct?
A. That's right.
Q. And his name, did I ask you that?
A. Merle E, Weaver,
Q. Merle, OK.
A. M-E-R.L-E.
Q. All right, when you, did you have to sign a lease to rent this apartment?
A. Yes, we did. One-year lease.
CLAIM:
NAME:
PAGE:
2600-AL-304657-01-l
Grace Weaver
3
Q. A one-year lease? Was it a continuing lease that would renew year after year?
A. I asked Mrs. Franklin if she wanted us to sign another lease and she said, no.
Q. All right, did she give a reason?
A. No, she didn't.
Q. OK, all right. And this was on a second story, second floor of this building, is this correct?
A. Right.
Q. All right, how many steps did you have to climb to get your apartment?
A. 15.
Q, OK. And are the steps on the outside of the building or are they inside?
A. Inside.
Q. Inside? Where would you enter your apartment? From what street, say?
A. North Fayette.
Q. From North Fayette Street?
A. Right.
Q, There's a door on the street level that you would go in?
A. Fight.
Q. And then go up steps?
A. Right.
Q. All right. On the lower level of the building, what was there at the time that this happened?
A. A pizza house is in the front of the building, a paint shop was under the apartment where we
live.
Q. What street is in the front of the building? Is that North Fayette?
A. No, it's on King Street, the front of the building's on King Street.
Q. All right, so you would enter your apartment from...
A. The Fayette Street side.
Q. A side street from the main street, OK. The pizza shop entrance is where, King Street?
A. The front entrance is King Street.
CLAIM:
NAME:
PAGE:
2600-AL.304657-0 I-I
Grace Weaver
4
Q, OK.
A, The service entrance is Fayette Street.
Q, All right. Was the service entrance close to the entrance to your apartment building?
A. Yes. Oh,l can't say exactly how, but you came out of the door where I lived andjust walked
a short distance where the service entrance was.
Q. Now that's the service entrance to the pizza shop?
A. That's right.
Q. Correct?
A. It's on Fayette Street.
Q, OK, can you just tell me what happened?
A. All right. I came out of the apartment, shortly after 8:00 that morning, to walk to the doctor's
office, which is on King Street, to have my husband's prescriptions renewed and as I walked
from the apartment entrance, towards King Street, I came to the service entrance door not
knowing that anyone was in the building. Normally nobody was in that restaurant until
10:00 in the morning.
Q. Is that when they opened?
A. That's, they opened at 11 :00. Usually the man that ran it didn't come to open it until I 0:00
but as I walked along the sidewalk there and came to the service entrance door, it was thrown
open and struck me on the left side, as I was walking along, threw me off the sidewalk onto
the macadam. And of course, fractured my hip, damaged my ribs, damaged my hand.
Q. OK, do you know approximately whet the distance is between your apartment door entrance
and the service entrance to the pizza shop? How far did you have to walk before that door?
A. It wasn't even a half a block. It was, oh...! can't tell you. (Attorney: I'm sure in terms of, I'm
sure the distance could be measured. I think you could go there and you could take a tape
measure and you could measure the distance from the exit to the apartment in which she is
living, to the door. I believe the door is in the same place that it was in as of February of'96.
I believe the apartment door is in the same place it was as of February of'96, so I'd rather you
pursue another line of questioning, rather than asking her to speculate on the distance from
point A to point B, when you can really go out and measure it.)
Q, OK, that's fme. OK, and this happened about 8:00 in the morning?
A. Well, it was after 8:00 but before 9:00, because the doctor's office door was, opened at 8:00
at that time.
CLAIM:
NAME:
PAGE:
2600-AL-304657-01-1
Grace Weaver
5
Q. OK.
A. And I usually like to get there shortly, to get his prescriptions filled.
Q. Is this generally when you nonnally went to go get a prescription filled?
A. Yes.
Q. Around the same time.
A. Right.
Q. And how frequently did you have to do that?
A. Oh, sometimes once a month and other times not that often.
Q. OK, why did the service door open up, do you have any idea? Was there someone coming
through?
A. Young man, young man delivered bread that morning, which I of course, had no idea.
Q. You never saw that before?
A. No.
Q. OK, was there a bread truck on the, parked on the outside of the service door?
A. There was a truck there. I didn't know that it was a bread truck.
Q. It was not marked as, whatever bakery?
A, No.
Q. Not marked at all?
A. (Allomey: If you know that.) Ifit was, I didn't see it.
Q. You didn't notice, OK. OK, as you're walking down the street did the door open towards
you?
A. (Allorney: Did it open in or out? Is that what you're asking her?)
Q. That must be. Are the hinges on the right of the door or the left of the door?
A. (Allomey: Well, that's a different question. The door can open out, if the hinges were left
or right.)
Q. OK, let's do both of them. Did it open to the outside ofthe street or I'm assuming it's not
open to the inside, It opened, did it open to the outside of the street?
A. Right.
CLAIM:
NAME:
PAGE:
2600-AL-304657-01-1
Grace Weaver
6
Q. OK, and as you're looking at the door are the hinges on thls, tile rlght.lde of the door or the
left side of the door? Did you walk, did it open and you walked Into it that way or did it
open this way and you walked into the inside of the door? OK, did you walk Into the
outside...
A, (Attorney: Did you understand the question?)
Q. Did you walk into the outside of the door or did you walk into the,..
A. I was walking on the outside of the door, naturally,
Q. What part of the door hit you? Was It the outside oflhe door or the inside?
A, It was the outside of the door that slruck me,
Q, All right, now I understand. And did someone come out?
A, Young man that was delivering the bread come out.
Q. Do you know who that was?
A. No, I don't.
Q. He didn't, did he olTer to help?
A. He said, "Arc you, can you get up?" Of course, at lhilltillle I was more or less dazed. I
couldn't get up.
Q, OK.
A. I don't know what hilppened to him.
Q. You don't know who he was, but he was delivering bread 10 the pizza shop?
A. That's what tlley told me he was.
Q. OK. The door was not propped open?
A. No, the door was clo~ed.
Q. It was closed as you were walking toward it?
A, That's right.
Q, Was it a windy day? Did the wind catch the door?
A. No, it was not a windy day.
Q, Someone had opened it right into you?
A. Yes.
CLAIM:
NAME:
PAGE:
2600-AL-304657.0 1-1
Grace Wtaver
9
Q. OK. Are you still undergoing treatment right now?
A. No.
Q. OK, were you taken to the hospital immediately?
A. Yes, ma'am.
Q. Which hospital was that?
A. Chambersburg.
Q. And how many days were you...
A. 21 days.
Q. OK. After the hospital, did you have to go into a rehab facility or anything?
A. I had therapy.
Q. All right, but were you able to live at your home?
A. Pardon?
Q. Were you able to live at your home after you were released from the hospital?
A. Yes, I lived at home. (Attorney: Well, now wait a minute. You need to clarify that for her,
Grace. You did, she didn't ask you, but I don't know if you meant to ask her whether she was
able to remain in the apartment.) Oh, no, I couldn't remain there. (Attorney: They had to
change, she had to change her residences, what you need to know.)
Q. Right. What is your current residence right now?
A. 212 South Fayette Street.
Q. OK, and why did you change your residence?
A. Because of the 15 steps.
Q. Uh huh, couldn't make them up?
A. That's right.
Q. All right, did you have a cast or anything for the fractured hip? Did you have to wear...
A. I have, I have...a brace in my hip and my leg.
Q. Inside?
A. Right now, yeah.
CLAIM:
NAME:
PAGE:
2600-AL-30465 7-0 1.1
Grace Weaver
10
I
[side III
Q.
This is Kathy Marshall, continuing the interview with Grace Weaver. So you had hardware
put inside of your leg?
That's right.
I,
'.
,
A.
Q. OK. But did you have a cast on at any time?
A. No, I did not have a cast. The leg swelled to an enormous proportion.
Q. Was that immediately after or for a length of time?
A. No, it was after,
Q. After you were released from the hospital?
A. After the surgery.
Q. OK, all right, but you had no casting? There would be apparently no way to cast that?
A. No. (Attorney: Probably worried about the development of compartment syndrome. That's
a medical speculation on my part.)
Q. OK. Will you be getting the hardware out of your right leg or is that there permanently?
A. That's permanently.
Q. That's permanent. OK, and the reason that you can't do the steps is because of your hip?
A. That's right.
Q. Does that cause pain?
A. It does.
Q. Still?
A. After I walk and I have fear, also, of the steps.
Q. Just walking up any step?
A. That's right.
Q. OK, how many steps can you walk up comfortably?
A. Well, two or three.
CLAIM:
NAME:
PAGE:
2600-AL-304657-0 I-I
Grace Weaver
12
Q. OK, and how far can you walk now?
A. About a block.
Q. Before you have pain that you have to stop?
A. That's right.
Q. OK. Your husband doesn't walk, did you say?
A. He does not walk out. He walks in around in the house but not out.
Q. He doesn't go outside?
A. Well, he does. I mean, he cannot walk out to do any of our personal business.
Q. OK. So was, how many, I mean, I would imagine that you would have to go outside of your
apartment, generally, several times a day to do all the business that you needed to get done
in the day.
A. That's right.
Q. And you never, ever saw every day that you walked, in five years that you lived there, you
never saw...
A. (Attorney: Don't answer that question. She's...)
Q. ...the door open?
A. (Attorney: Don't answer that question, Grace. This is a statement, this is not a cross
examination and your question is not appropriate. It's argumentative and if you're gonna
continue along doing this, we're gonna stop the statement. Get the facts, but don't engage in
legal arguments.)
Q. OK, I believe I have all the facts.
A. (Attorney: OK.)
Q. Is there anything you'd like to add concerning the incident?
A. (Attorney: No, she would not. Don't answer that question, Grace.)
Q. Can she even say no?
A. (Attorney: No, I told her not to answer it. There is nothing else.)
Q. Have you understood all my questions, Grace?
A. Yes.
.
Certificate of Service
AND NOW this 30th d.lY of january 1998, I hereby certify that I have
served the following PLAINTIFFS' ANSWER TO MOTION TO VACA TE & QUASH
by depositing a true and correct copy of same in the United States mall, postage
prepaid, addressed to:
C. William Shilling, Esq.
Harrington, Kauffman & Shilling
100 Pine Street, Suite 300
Harrisburg, Pa. 17101
john Flounlacker, Esq.
Thomas, Thomas & Hafer
P.O. Box 999
Harrisburg, PA 17108-0999
jack Hartman, Esq.
1 Keystone Plaza, Suite 107
Front & Market Street
Harrisburg, PA 17101
Respectfully submilled,
SHOLLENBERGER & jANUZZl, LLP
By:
Dated: january 3D, 1998
SHllLLENnERGER &. JANUZZI, u.p
IHlOI.IN{a.F_~TllWNlm^11 . I'll.l\l.)XW~4\ .IIARRISI\URll,I'AI1Il'\fl.iH4'\
11171 nl.17.\' . FAX (717) l14.~lIl
.
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband,
Plaintiffs
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
I
v.
CIVIL ACTION - LAW
THELMA FRANKLIN and
PASQUALE and BIAGIO
EMANATO and PIZZA 'N'
STUFF, INC.,
Defendants
NO. 97-5129 CIVIL TERM
ORDER OF COURT
AND NOW, this ~~~ day of February, 1998, upon consideration
of the Motion To Vacate and Quash the Deposition Subpoena of
Plaintiff Grace A. Weaver, filed on behalf of Defendant Thelma
Franklin, and it appearing (a) that the motion was filed on Friday,
January 30, 1998, received by the Court Administrator on Monday,
February 2, 1998, and forwarded to the undersigned judge on the
afternoon of February 2, 1998, (b) that the motion relates to a
deposition scheduled for February 3, 1998, (c) that the deposition
had been scheduled for over a month, (d) that the deposition was to
be taken for use at trial in the event the deponent did not
survive, (e) that the moving party would not be willing to agree to
a date for a rescheduled deposition until the middle of March,
1998, and (f) that the timing of the motion makes it impossible to
issue a rule and obtain a response from Plaintiff's counsel, the
motion is DENIED.
LAW OFFICES OF
HARRINGTON, KAUFFMAN &: SIIILLlNG
100 PINE STREET, SUITE 300
HARRISBURG, PA 17101
C. WILLIAM SHILLING. ESQUIRE
SUPREME COURT I.D. NO. 46995
(717) 720-0700
ATTORNEYS FOR:
DEFENDANT THELMA
FRANKLIN
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband,
Plaintiff.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CiVIL ACTION - LAW
v.
NO. 97-S129
THELMA FRANKLIN and
PASQUALE and BIAGIO
EMANATO and
PIZZA 'N' STUFF, INC.,
Defendants
JURY TRIAL DEMANDED
MOTION TO VACATE AND OUASH THE
DEPOSITION SUBPOENA
OF PLAINTIFF GRACE A. WEAVER
The Defendant, Thelma Franklin, by and through her attorneys, Harrington, Kauffinan &
Shilling, hereby respectfully moves this Court pursuant to Pa. R.C.P. 234.4(b) for an Order
quashing the deposition subpoena of the Plaintiff, Grace A. Weaver, and avers as follows:
1. Plaintiffs' counsel originally scheduled Grace Weaver's depo~ition for December
of 1997.
2. For whatever reason, Plaintiffs' counsel canceled that deposition and rescheduled
the deposition for February 3, 1998.
3. This deposition is being taken for possible use at trial should the Plaintiff, Grace
Weaver, not survive until the time of trial.
4. On December 29, 1997, counsel for Thelma Franklin informed Plaintiffs' counsel
that Thelma Franklin would be out of the state! from January 28, 1998 until mid-March and
requested that the deposition be .escheduled.
S. Plaintiffs' counsel responded, indicating that as a compromise, that Defendant
Thelma franklin could be hooked up by telephone or the carrier for Thelma Franklin could pay
for teleconferencing to allow Defendant Thelma Franklin to see the deposition.
6. On January S, 1998, counsel for Defendant Thelma Franklin again wrote to
Plaintiffs' counsel informing him that this was not possible and, further, that Defendant Thelma
Franklin had a right to be at the deposition of Grace Weaver if said deposition was to be used at
the time of trial to assist in her own defense.
7. Either teleconferencing or using telephone hook up does not properly allow
Defendant Thelma Franklin to participate in the active defense of her case.
8. Common law grants the right to a defendant to face his or her accusers, whether it
be in civil or criminal court, and assist in the ongoing preparation and actual trial of her case.
9. The Rules of Civil Procedure further allow a party to take the discovery deposition
of any other party to the action or witnesses prior to the time of trial or prior to testimony being
taking for use at the time of trial.
10. Plaintiffs' counsel is not affording Defendant Thelma Franklin a chance to take the
discovery deposition of Plaintiff Grace Weaver prior to taking her deposition for possible use at
trial.
11. Plaintiffs' counsel is not affording Defendant Thelma Franklin the ability to actively
participate in the preparation and defense of the civil case that has been brought against her by the
Plaintiffs, Grace and Merle Weaver,
12. Plaintiff Grace Weaver will not prejudiced by having the videotaped deposition,
scheduled for February 3, 1998, continued until such a time u her discovery deposition can be
taken and the Defendant is present to aid in the preparation and defense of her case.
WHEREFORE, Defendant Thelma Franklin respectfully requests this Honorable Court,
pursuant to Pa. R.C.P. 234.4(b) to vacate and quuh the videotaped deposition of Grace Weaver
which has been scheduled by Plaintiff Grace Weaver for February 3, 1998.
Respectfully submitted,
& SHILLING
C. William Shilling, uire
Attorney for Defendant Thelma Franklin
CERTIFICATE OF SERVICE
AND NOW, this 1fL day of January, 1999, I, C. William Shilling, Esquire, attorney for
Defendant Thelma Franklin affirm that I served the foregoing Motion to Vacate and Quash by
facsimile transmission, addressed to:
Timothy A. Shollenberger, Esquire
1820 Lingleslown Road
P.O. Box 60545
Harrisburg. P A 17106-0545
Facsimile: 234-g212
John FlounIacker, Esquire
305 North Front Street
Harrisburg. PA 17101
Facsimile: 237-7105
Amy Foerster, Esquire
One Keystone Plaza, Suite 107
Harrisburg. PA 17101
Facsimile: 232-3
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LAW OFFICES OF
HARRINGTON, KAUFFMAN'" SHILLING
100 PINE STREET, SUITE 300
HARRISBURG, PA 17101
C, WILLIAM SHILLING, ESQUIRE
SUPREME COURT I.D. NO. 4699S
(717) 720-0700
A nORNEYS FOR:
DEFENDANT TlIELMA
FRANKLIN
GRACE A. WEAVER and
MERLE E. WEAVER,
Her Husband,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL V ANJA
CIVIL ACTION - LAW
v.
THELMA FRANKLIN and
PASQUALE and BIAGlO
EMANATOand
PIZZA 'N' STUFF, INC.,
G. MEMMI & SONS BAKERY,
INC. and STEPHEN SHUMAKER,
Defendants
NO, 97-S 129
JURY TRIAL DEMANDED
ANSWER AND NEW MA ITER TO AMENDED COMPLAINt
Defendant Thelma Franklin, by and through her counsel, Harrington, Kauffman & Shilling,
hereby enters the following Answer and New Malter to Plaintiff's Amended Complaint and avers
as follows:
I. Admitted.
2. Admitted.
3. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to lhe truth or accuracy of Paragraph 3 of the
Amended Complaint, and accordingly, said averments are denied. Strict proofthereofil
demanded at the time oftrial.
4. Aftllr reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief u to the truth or accuracy of Paragraph 4 of the
Amended Complaint, and accordingly, said averments are denied. Strict proofthereofis
demanded at the time of trial.
S. Admitted.
6. Admitted.
7. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a beliefu to the truth or accuracy of Paragraph 7 of tile
Amended Complaint, and accordingly, said averments are denied. Strict proof thereof is
demanded at the time oftrial.
8. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a beliefu to the truth or accuracy of Paragraph 8 of the
Amended Complaint, and accordingly, said averments are denied. Strict proof thereof is
demanded at the time oftrial.
9. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief u to the truth or accuracy of Paragraph 9 of the
Amended Complaint, and accordingly, said averments are denied. Strict proof thereof is
demanded at the time of trial.
10. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 10 of the
Amended Complaint, and accordingly, said averment. are denied. Strict proof thereof i.
demanded at the time of trial.
11. Admitted.
12. Admitted.
1 J. After reasonable investigation, Answering Defcndant is without sufficient
knowledge or information to form a beliefu to the truth or accuracy of Paragraph JJ of the
Amended Complaint, and accordingly, said averments arc denied. Strict proof thereof is
demanded at the time of trial.
14. After reasonable invcstigation, Answering Dcfendant is without sufficient
knowledge or information to form a beliefu to thc truth or accuracy of Paragraph 14 of the
Amended Complaint, and accordingly, said averments are denied. Strict proof thereof is
demanded at the time of trial.
1 S. After reasonable invcstigation, Answcring Defendant is without sufficicnt
knowledge or information to form a belief as to the truth or accuracy of Paragraph IS of the
Amended Complaint, and accordingly, said averments are denied. Strict proofthcreofis
demanded at the time of trial.
16. It is admitted that a service entrancc door opened out onto the sidewalk,
17. Denied.
18. It is admitted only that the service cntrance door was solid without a window.
19. It is admitted that there was no window for persons to see inside the area rcnted by
Defcndants Emanato.
20. The averments of Par graph 20 constitute concluslolll of law to which no answer is
required under the applicable Rules of Civil Procedure.
21. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a beliefu to the truth or accuracy of Paragraph 21 of the
Amended Complaint, and accordingly, said averments are denied. Strict proofthereofis
demanded at the time of trial.
22. It is admitted only that motor vehicles are permitted to park immediately adjacent
to the sidewalk on North Fayette Street. As to the remaining averments of Paragraph 22 of the
Complaint, after reasonable investigation, Answering Defendant is without sufficient knowledge
or information to form a belief u to the truth or accuracy of said averments and, accordingly, said
averments are denied. Strict proof thereof is demanded at the time of trial.
23. Denied.
24. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 24 of the
Amended Complaint, and accordingly, said averments are denied. Strict proof thereof is
demanded at the time of trial.
25. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 25 of the
Amended Complaint, and accordingly, said averments are denied. Strict prooftheroofis
demanded at the time of trial.
26. Denied.
27. The averments of Paragraph 27 of the Complaint are directed to individuals other
than Answering Defendant and no answer is required in the applicable Rules of Civil Procedure.
28(a)-(h) After reasonable investigation, Answering Defendant is without sufficient
knowledJe or information to form a belief u to the truth or accuracy of Paragraph 28 of the
Amended Complaint, and accordingly, said averments are denied. Strict proof thereof is
demanded at the time of trial.
29. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief u to the truth or accuracy of Paragraph 29 of the
Amended Complaint, and accordingly, said averments are denied. Strict proof thereofis
demanded at the time of trial.
30. After reasonable investigation, Answering D~fendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 30 of the
Amended Complaint, and accordingly, said averments are denied. Strict proof thereof is
demanded at the time of trial.
31. After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of Paragraph 31 of the
Amended Complaint, and accordingly, said averments are denied. Strict proofthereofis
demanded at the time of trial.
32. After reasonable investigation. Answering Defendant is without sufficient
knowledge or information to form a belief IS to the truth or accuracy of Paragraph 32 of the
Amended Complaint, and accordingly, said averments are denied. Strict proof thereof is
demanded at the time of trial.
COUNT I
Gnee Ind Merle Weaver Y. Thelma Pnnklln
33. Answering Defendant's answers to paragraphs I through 32 above aro
incorporated heroin by reference as if fully set forth at length.
34. Denied.
35. Denied.
36. Denied.
37. The averments of Paragraph 37 constitute a conclusion of law to which no answer
is required under the applicable Rules of Civil Procedure.
38. The averments of Paragraph 38 constitute a conclusion of law to which no answer
is required under tho applicable Rules of Civil Procedure.
WHEREFORE, Defendant Thelma Franklin demands judgment in her favor and against
tho Plaintiffs, Grace A. Weaver and Merle E. Weaver, with costs.
COUNT II
Grace and Merle Weaver v. Pizza 'N' Stuff. Inc.
39-48. These averments are directed to individuals other than Answering Defendant and,
therefore, no answer is required under the applicable Rlile, of Civil Procedure.
COUNT III
Grace and Merle Weaver VI G. Memmi & Son! Bakerv. Inc.
Ind SteDhen Shumakrr
49-50. These averments are directed to individuals other than Answering Defendant and,
therefore, no answer is required under the applicable Rules of Civil Procedure.
carelessnesa and recklessnesa of other parties over whom Answering Defendant had no control
and for whom she is not responsible.
57. If the Plaintiff suffered injuries and damages u set forth in the Complaint, said
injuries and damages were not proximately CI"~ by any negligent act or omission on behalf of
the Answering Defendant.
58. If the PlaintilTsulTered injuries and damages u set forth in the Complaint, said
injuries and damages may have been caused by negligent acts or omissions of other individuals or
entities, which constituted the proximate or superseding cause of said injuries and damages.
59. If the PlaintilT sulTered injuries and damages as described for reasons set forth in
the Complaint, said injuries and damages were caused or contributed to by an act of God,
extremely windy f~nditions, for which Answering Defendant had no control and for which she is
not responsible.
60. If the Plaintiff sulTered injuries and damages as described for reasons set forth in
the Complaint, PlaintilTGrace A. Weaver wu aware of the conditions present at the time of the
accident, had been warned of the conditions present at the time of the accident, but took no action
to preclude the incident complained of in the Complaint although she had a duty to do so.
61. The PlaintilTs have failed to mitigate their damages and liability for the incident
complained of in the Complaint.
62. The Answering Defendant wu a landlord out of possession at the time the alleged
incident occurred and thus is not responsible for the alleged injuries and damages as set forth in
the Complaint.
VERIFICATION
I, C. William Shilling, Esquire, counsel for Defendant Thelma Franldin, certify that the
statements made in the foregoing Answer with New Matter to Amended Complaint which are
within my personal knowledge are true and those which are based on information received from
others I believe to be true. I understand that false statements herein are subject to the penalties of
18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. This verification has
become necesSlll)' due to circumstances that do not allow a representative of defendant to
personally sign the document within the designated time frame.
Dated: 61-/0 -9'(
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CERTlF1CATE OF SERVICE
AND NOW, this 11th day of February, 1998, I, C. William Shilling. Esquire, attorney for
Defendant Thelma Franklin affirm that I served the foregoing Answer and New Matter to
Amended Complaint by first class mail, addressed to:
Timothy A. Shollenberger, Esquire
1820 Linglestown Road
P.O. Box 60545
Harrisburg. PA 17106-0545
Facsimile: 234-8212
John F1ounlacker, Esquire
305 North Front Street
Harrisburg, P A 17101
Facsimile: 237-7105
Amy Foerster, Esquire
One Keystone Plaza, Suite 107
Harrisburg. PA 17101
Facsimile: 232-3538
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Grace A. Weaver and
Merle E. Weaver,
Her Husband
Plaintiffs
In the Court of Common ~leas
Cumberland County, Pennsylvania
v.
Thelma Franklin;
Pasquale and Biagio
Emanato;
Pizza 'N' Stuff,
Inc./ G. Melllllli "
Sons Bakery, Inc.;
and, Stephen
Shumaker,
Defendants
No. 97-5129
civil Action - Law
Jury Trial Demanded
Order
And Now this
11.
12.. day of February,
1998, the
within Stipulation
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SHOLLENnERGER &. JANUZZI. UP
jl42l.lllNuLE..'HnWN Rl '^P . rll 1\l)X no.'H\ . tl,"Rfl.l~m:R~i. p." 17h'6-l'~"S
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Grace A. Weaver and
Merle B. Weaver,
Her Husband
Plaintiffs
In the Court of Common pleas
Cumberland County, Pennsylvania
v.
Thelma Franklin;
Pa8quale and Biagio
banato;
Pizza 'N' Stuff,
Inc., G, Memmi ~
SOn8 Bakery, Inc.;
and, Stephen
Shumaker,
Defendants
No. 97-51~9
Civil Action - Law
Jury Trial Demanded
Stioulation
The Parties hereby stipulate and agree as follows:
1) Paragraph 10 of the Plaintiffs' Amended Complaint
shall read as follows:
"10. The events and circumstances
hereinafter set forth occurred
on February 29, 1996 at or
about 8:00 a.m. on the
sidewalk adjacent to the North
Fayette Street side of the
building owned by Defendant
Franklin and from which
Defendants, Emanato and Pizza
'N' Stuff, Inc., ran their
pizza business."
2) It is the intention of the parties that the
Stipulation be filed of record.
3) The parties hereby agree that the Plaintiff need
not file an Amended Complaint.
SHOLLENBERGER" JANUZZI. tLP
IIiZO lIN( ilESTl )\llN Rl )....n . rll I\I.)X ('lI)H~ . H....RRJ:-'(\URli. rA 11Il'l(,,\'~"~
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4) This Stipulation will be presented to the Court
for approval.
Shollenberger & Januzzi, LLP
Attorneys for Plaintiffs
Thomas, Thomas & Hafer
Attorneys for Defendant
Thelma Franklin
By
Harrington, Kaufmann & Shilling
Attorneys for Defendants
Thelma Franklin, Pasquale
and Biagio Emanato, and
Pizza 'N' Stuff
Hartman & Miller
Attorneys for Defendants
G. Memmi & Sons, Bakery,
Inc. and Stephen
Shumaker
~~ek ~~~t.
Attorney I. D. # 7'7~~(P
4",'1 (!. foerrJ-er
SHOLLENnERGER &. JANUZZI. LLP
1820 lINlilESTOWN ROAD . r.l..l (\OX NlH~ . HARR1SI\URO, rA 17I06.l'!Hli
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ANSWER NM1.WEAVER (ilU
GRACE A. WEAVER nnd
MERLE E. WEAVER,
Hcr Husband
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 97-5129
THELMA FRANKLIN;
PASQUALE and BIAGIO
EMANATO;
PIZZA 'N' STUFF, INC.;
G. MEMMI & SONS
BAKERY, INC.; AND
STEPHEN SHUMAKER
Dcfendants
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
PLAINTIFFS' ANSWER TO NEW MATTER
OF DEFENDANT. THELMA FRANKLIN
AND NOW comes thc Plnintiffs, Gracc and Merlc Weaver, husband and wife, by
their attorneys, the Law Offices of Timothy A. Shollenbcrger, and do rcspcctfully
answer the New Matter of Defendnnt, Thelma Franklin as follows:
53 - 67. Parugraphs 53 through 67 of Dcfendant, Thelma Franklin's New
Maller arc denied by the Plaintiffs. These averments represent conclusions of law or
opinions and to that extent require no answer. To the extent that an answer is
required, the Plaintiffs are, nfter reasonable invcstigation, without knowledge sufficient
to form a belief as to the truth of said averments and said avermcnts are therefore
denied and strict proof thereof dcmanded at the time of trial. Said averments are
further denicd pursuant to Pa. R.C.P. 1029(e).
1
SHOLLENnERGER &. jANUZZI. UP
181011NtilESTOWNROA{l . ro p.oX~H'i . UARRISRURll,rAI71l'tl.(I~4'1j
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GRACE A. WEAVER and
MERLE E. WEAVER, her husband,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL ACTION - LA W
n1ELMA FRANKLIN; PASQUALE and
BIAGJO EMANATO; PIZZA 'N' STUFF,
INC.; G. MEMMI & SONS BAKERY,
INC.; and STEPHEN SHUMAKER,
Defendants
No. 97-5129
JURY TRIAL DEMANDED
ANSWER AND NEW MATTER OF DEFENDANTS. G. MEMMI AND SONS BAKERY.
INC. AND STEPHEN SHUMAKER. TO PLAINTIFFS' AMENDED COMPLAIN'(
AND NOW, come thc Dcfendants. G. Mcmmi and Sons Bakcry, Inc. and Stephen
Shumakcr (hcrcinaftcr "Responding Defcndants"), by and throllgh thcir attorneys, Hartman &
Miller, P.C.. and in rcsponsc to Plaintiffs' Amcnded Complaint avcr as follows:
ANSWER
1-6. After reasonablc investigation, Rcsponding Dcfcndants lack knowledge or
information sufficient to form a belief as to the truth ofthc avermcnts containcd in Paragraphs 1
through 6 of Plaintiffs' Amendcd Complaint; thc avemlents arc thereforc dcnied, and strict proof
thcreof is demanded at trial.
7. Admilled,
8. Admitted.
9. The avcrmcnts contained in Paragraph 9 of Plaintiffs' Amendcd Complaint are
conclusions of law or fact to which no rcsponsc is necessary. To the extent that a rcsponse is
decmcd neccssary, thc avenncnts arc dcnicd as stated. It is udmillcd only that Stcphcn Shumaker
wus an cmployce ofG. Mcmmi & Sons Bakcry, Inc., acting within the scopc of his cmployment.
10. Denied as statcd. It is admittcd only that pursuant to a Stipulation cntered into by
counscl on February 3.1998, the incident in question occurred on Fcbruary 29,19%. After
rcasonablc investigation. Responding Defcndants lack knowlcdge or information sufficicnt to
torm a belief as to the truth ofthc remaining avemlents contained in Paragraph 10 of Plaintiffs'
Amended Complaint; the avcmlcnts are thcreforc denied, and strict proofthcrcofis demanded at
trial.
11-12. After rcasonablc investigation, Rcsponding Dcfcndants lack knowlcdge or
information sufficient to form a belief as to the truth of the avermcnts containcd in Paragraphs II
and 12 of Plaintiffs' Amendcd Complaint; the avcrmcnts are thcrefore denied, and strict proof
thcreof is demanded at trial.
13. Admitted.
14-25. The averments contained in Paragraphs 15 through 24 of Plaintiffs' Amended
Complaint are dcnicd pursuanlto Pa. R.C.P. l029(e).
26-27. After reasonablc investigation. Rcsponding Defcndants lack knowledge or
infommtion sufficient to form a bclief as to thc truth of the avcrments containcd in Paragraphs 26
and 27 of Plaintiffs' Amendcd Complaint; thc averments are thereforc dcnied, and strict proof
thercof is demanded at trial.
28-32. Thc avcrmcnts containcd in Paragraphs 28 through 32 of Plaintiffs' Amcnded
Complaint arc conclusions of law or fact to which no responsc is nccessary. To the cxtentthat a
rcsponse is deemcd neccssary. the avermcnts arc dcnicd pursuant to Pa, R.C.P. 1029(e).
2
33.38. The avcrmcnts containcd in Paragraphs 33 through 38 of Plaintiffs' Amcndcd
Complaint arc dircctcd to a party othcr than Responding Dcfcndants, and no furthcr rcsponse is
rcquircd. To thc cxtent that a rcsponsc is decmcd ncccssary, thc avcrments arc dcnied pursuant
to Pa. R.C.P. I029(e).
39-48, Thc avermcnts contained in Paragraphs 39 through 48 of Plaintiffs' Amcnded
Complaint are dircctcd to a party othcr than Rcsponding Dcfcndants, and no further responsc is
rcquircd. To thc extent that a rcsponsc is decmcd necessary, thc avcrments arc denied pursuant
to Pa. R.C.P. 1029(e).
49. Paragraphs 1 through 48 of Responding Defendants' Answer to Plaintiffs'
Amended Complaint are incorporatcd hcrein by refercncc, as though fully set forth herein.
50. The avcrments containcd in Paragraph 50 of Plaintiffs' Amcndcd Complaint are
conclusions of law or fact to which no rcsponsc is necessary. To thc extcntthat a responsc is
dccmed ncccssary, the avcmlcnts are dcroicd pursuant to Pa. R.C.P. 1029(e). By way of further
Answer, Defendants hercby incorporate by rcfcrencc Paragraph 56 f)fthcir Ncw Mallcr as though
fully sct forth hcrein.
51. Paragraphs I through 50 of Responding Defcndants' Answcr to Plaintiffs'
Amended Complaint arc incorporated hcrcin by rcfercncc, us though fully sct forth hcrein,
52. Thc avcmlcnts contained in Paragraph 51 of Plaintiffs' Amcndcd Complaint are
conclusions oflaw or fact to which no rcsponsc is neccssary. To thc cxtcntthat a rcsponse is
dccmed ncccssary, thc avcrmcnts are dcnicd pursuant to Pu. R.C.P. 1029(c).
3
WHEREFORE, Defendants, G. Mcmmi & Sons Bakery, Inc. and Stephcn Shumaker,
dcmandjudgmcnt in their favor und against Plaintiffs, and that Plaintiffs' Amendcd Complaint
be dismisscd with prejudicc and costs of Ihis uetion.
NEW MATTER
53. The avcrmcnts sct forth in Plaintiffs' Amended Complaint fail to state a claim or
cuuse of action against Rcsponding Defcndants upon which rclief may bc grantcd.
54. Any claim or cause of action sct forth in Plaintiffs' Amendcd Complaint is barred
by operation of the contributory/comparativc negligcnce ofPlaintiffGracc Wcavcr as may be
dcveloped during discovery.
55. Any claim or causc of action sct forth in Plaintiffs' Amendcd Complaint is barrcd
by the operation of Plaintiff Gracc Wcavcr's assumption of a known risk, as may bc dcvelopcd
during discovery.
56. Any claim or causc of action sct forth in Pluintiffs' Amcnded Compluint is burrcd
by the applicablc statutc of limitations, including spccifically, but not Iimitcd to,uny claim or
cuuse of action which, by reuson of lack ofspccificity of pica ding, is not dircctly or specifically
sct forth in the languagc of Plaintiffs' Amcndcd Complaint, but which Plaintiffs scck to raise at a
latcr timc by further amcndment, claiming to have preservc such claim or cause of action within
Plaintiffs' Amendcd Complaint.
57. The injuries allcged to havc becn suffercd by PlaintiffGracc Weavcr us a result of
this accidcnt are not the rcsult of allY negligcnce on the part of Responding Defcndants, but
4
instcad cithcr cxistcd prior to Fcbmary 29, 11)<)6. or arc thc rcsult ofthc prc-cxisting medical
conditions or subscqucnt injurics of Plaintiff Gracc Weavcr.
58. (fPlaintiffGracc Wcavcr sustained injury amI damage as a result ofthc actions or
inactions of individuals or cntitics, as allcgcd in Plaintiffs' Complaint, such actions or inactions
wcrc of individuals or cntities other than Rcsponding Dcfcndants, thcir agcnts, scrvants, or
employees, and ovcr whom Rcsponding Dcfcndants neither excrciscd, nor had the right or duty
to cxcrcise, control, and for whose actions or inactions Rcsponding Dcfcndants arc not
responsible or othcrwise legally liable.
59. The injuries allegcd to havc bccn suffcred by Plaintiff Grace Wcaver as a rcsult of
this incident wcre caused or contributed to by conditions ovcr which thc Rcsponding Dcfcndants
had no control, and for which they are not rcsponsiblc or othcrwisc legally liable.
60. The injuries allcged to havc bccn suffcrcd by Plaintiff Grace Weavcr as a rcsult of
this incident were caused and/or contributcd to by thc ncgligence, carelcssncss and recklessness
of othcr partics over whom thc Rcsponding Dcfendants had no control, and for whom they are
not responsiblc or othcrwise Icgally Iiablc.
61. Thc injurics allcgcd to havc bccn suffcrcd by Plaintiff Grace Weaver as a rcsult of
this incidcnt arc not the rcsult of any ncgligcnce on thc part of Rcsponding Defendants, but
inslcad wcre causcd or contributed to by an act of God, specifically extremely windy conditions,
over which Responding Dcfcndants had no control, and for which they are not responsible or
otherwise legally liable.
5
WHEREFORE, Defcndants, G. MCl1ll1li & Sons Bakcry, Inc. and Stcphcn Shumakcr,
dCl1landjudgment in thcir favor and against Plaintiffs. and that Plaintiffs' Amcndcd Complaint
bc dismisscd with prejudicc and costs of this action.
NOTICE TO PLEAD
You are hereby notified to file a wrillen responsc to the cnclosed Answcr and New Matter
within twenty (20) days from scrvice hercof or a judgment may bc cntcrcd against you.
Respectfully submitted,
HARTMAN & MILLER, P.C.
By:
Jac M. artman, Esquirc
Supreme Court J.D. #21902
Amy C. Foerster, Esquire
Supreme Court J.D. #77986
126-128 Walnut Strcet
Harrisburg, P A 17101
(717) 232-3046
Dated: B/J 5'/9'0
Attomcys for Dcfendants, G. Memmi and Sons
Bakcry and Stephen Shumakcr
6
VERIFICATION
I, Stephen Shumaker, hcreby vcrify and state that the facts sct forth in thc foregoing
document arc true and correct to the bcst of my information, knowlcdge and belief. I understand
that false statements hcrein are made subjcct to the penalties of 18 Po. C.S.A. Scction 4904
rclating to unsworn verification to authorities.
Dated: ';;'/2/99
/ I
('
VERIFICATION
I. Ronald Memmi. hereby verify and statc that the facts set forth in the foregoing
document are truc and correct to thc bcst of m)' information. knowlcdge and bclief. I understand
that false statcments hcrein arc madc subject to the penalties of 18 Pa. C.S.A. Section 4904
relating to unsworn vcrilication to authorities. ~
r;
Datcd~ - 1~-1 r
Ronald Memmi
I
GRACE A. WEAVER and
MERLE E. WEAVER, her husband,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL ACTION - LAW
THELMA FRANKLIN; PASQUALE and
BIAGJO EMANATO; PIZZA 'N' STUFF,
INC.; G. MEMMI & SONS BAKERY,
INC.; and STEPHEN SHUMAKER,
Defendants
No. 97-5129
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerster, Esquire, hereby certify that I am this day serving a copy of the
foregoing Answer and New Maller of Defendants, G. Memmi & Sons Bakery, Inc. and Stephen
Shumaker, to Plaintiffs' Amended Complaint upon the person(u) and in the manncr indicated
below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedurc, by
depositing a copy ofsamc in the United Statcs mail, first-class postage prepaid, as follows:
Timothy A. Shollenberger, Esquire
1820 Ling1estown Road
P.O. Box 60545
Harrisburg, P A 171 06-0545
(Counsel to Plaintiffs)
C. William Shilling, Esquire
Harrington, Kaufmann & Shilling
100 Pinc Street, Suitc 300
Harrisburg, PA 17101
John Flounlacker, Esquire
Thomas, Thomas & Hafer
P.O. Box 999
Harrisburg, PA 17108-0999
HARTMAN & MILLER, P.C.
By:
A Y C. oerster, Esquire
Supreme Ct. I.D. #77986
126-128 Walnut Street
Harrisburg, P A 171 0 I
(717) 232-3046
Dated: Q /1'J5/~r(
Attorneys for Defendants, G. Memmi & Sons
Bakery, Inc. and Stephen Shumaker
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GRACE A. WEAVER .lIld
MERLE E. WEAVER,
Her Husband
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO, 97.5129
THELMA FRANKLIN;
PASQUALE and BIAGIO
EMANA TO;
PIZZA 'N' STUFF, INC.;
G. MEMMI & SONS
BAKERY, INC.; AND
STEPHEN SHUMAKER
Defendants
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
PLAINTIFFS' ANSWER TO NEW MATTER
OF DEFENDANTS. G. MEMMI AND SONS BAKERY. INC.
AND STEPHEN SHUMAKER
AND NOW comes the Plaintiffs, Grace and Merle Weaver, husband and wife,
by their attorneys, the Shollenberger & januzzi, LLP, and do respectfully represent
the following:
53-56. Paragraphs 53 through 56 of Defendants' New Maller are conclusions
of law and to that extent require no answer. To the extent that an answer is
required, said averments are denied pursuant to Pa, R.C.P. 1029(e).
57. Denied. On the contrary, Plaintiff had no pre-existing condition that
was relevant to the injuries alleged nor did she have any subsequent injuries that
would be relevant to the injuries alleged and therefore said averment is denied.
58. Paragraph 58 of the Defendants' New MaUer is in the nature of a
conclusion of law and to that extent requires no answer. To the extent that an
answer Is required, said averment is denied pursuant to Pa. R.C.P. 1029(e).
59. P.lragraph 59 of the Defendants' New Maller is in the nature of a
conclusion of law and to that extent requires no answer. To the extent that an
answer is required, said averment is denied pursuant to Pa. R,C.P. 1029(e).
1
SUOllENUf.IUiEIt &. JANUZlI. llJ1
IM~lI11N~il.l:STl )\Y.N Rl 'Al' . I'~ l IIl'X t>l.1H~ . 11:\ItHI:-;l\l Tlh i, 1',\ 11Il't. l\H;
1117IHt.17.\' . rAXlilil.'H-~1U
GRACE A. WEAVER .lnd
MERLE E. WEAVER,
Her Husb.lnd
Plaintiffs
; IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
: NO. 97-5129
THELMA FRANKLIN;
PASQUALE and BIAGIO
EMANATO;
PIZZA 'N' STUFF, INC.;
G. MEMMI & SONS
BAKERY, INC.; AND
STEPHEN SHUMAKER
Defendants
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
Certificate of Service
AN D NOW this 26th day of Februarv 1998, I hereby certify that I have
served the following PLAINTIFFS' ANSWER TO NEW MA HER OF DEFENDANTS
G. MEMMI & SONS BAKERY, INC. AND STEPHEN SHUMAKER by depositing a
true and correct copy of same in the United States mail, postage prepaid,
addressed to:
C. William Shilling, Esq.
Harrington, Kauffman & Shilling
100 Pine Street, Suite 300
Harrisburg, PA 17101
John Flounlacker, Esq.
Thomas, Thomas & Hafer
P.O. Box 999
Harrisburg, PA 17108-0999
Amy Foerster, Esq.
Hartman & Miller, P.c.
126-128 Walnut Street
Harrisburg, PA 17101
Respectfully submitted,
SHOLLENBER.I~ JANU
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By: I . /
Dated: February 26, 1998
sHOLlENnl::RtiER &. ]ANL'lll. LIP
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100 Pine SlreCt, s.ilc 300
Harrisburg, P A 17101
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1820 Linglestown Road
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Harrisburg, PA 17106-0545
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Certificate of Service
I, Timothy A. Shollenberger, Esq., do hereby certify
that I have served a copy of the within Acceptance of
Service by depositing a true copy in the United States Mail,
postage paid, at Harrisburg, Pennsylvania, addressed as
follows:
C. William Shilling, Esq.
Harrington, Kaufmann & Shilling
100 Pine Street, Ste. 300
Harrisburg, PA 17101
John Flounlacker, Esq.
Thomas, Thomas & Hafer
P. O. Box 999
Harrisburg, PA 17108-0999
Amy Foerster, Esq.
Hartman & Miller, P. C.
126 - 128 Walnut Street
Harrisburg, PA 17101
Shollenberger r.
Januzzi, L.L.P.
Attorneys for Plaintiffs
By ~~ifdt~1I
Timothy A. Shollenberger, Esq.
Attorney I. D. #34343
Date: April 15, 1998
SHOLLENBERGER" JANUlII. UP
1!'i~0 UN(,I.ESTD\\'N RlM.P . Pll flA..1X tw..'H' . Il:\RRI~l\nH i, P.-\. 17h'to-~'H;
171~J !l...H~\' . FAX(;'17111"-~~I~
THOMAS, THOMAS & HAFER LLP
John Flounllcklr, Elqull'l
1.0.' 73112
30e North Front SlI'Iet
P.O. Box 881
Hlntlburg, PA 17108.0991
(717) 237-7134
(717)237-7108 (FIx)
GRACE A. WEAVER and
MERLE E. WEAVER,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
v.
: No. 97-5129 Civil
THELMA FRANKLIN;
PASQUALE and BIAGIO EMANATO;
PIZZA 'N' STUFF, INC.;
G. MEMMI & SONS BAKERY, INC.;
and STEPHEN SHUMAKER,
Defendants : JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO ALL PARTIES:
YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty
(20) days of the date of service hereof or a default judgment may be entered against you.
BY:
~Vilt#
JOH FLOUNLACKER, ESQUIRE
THOMAS, THOMAS & HAFER, LLP
ATTORNEY I.D. NO. 73112
P.O. BOX 999
305 NORTH FRONT STREET
HARRISBURG, PA 17108
(717)237-7134
DATE: S~S' /9(
,- '.."_h~
.
5. This paragraph is directed to another party and therefore no
response is required of Answering Defendants.
6. It is admitted that Answering Defendants leased a premise for the
purposes of running a pizza shop. By way of further explanation Ans'Nering Defendants
aver that the lease agreement attached to the Plaintiffs' Amended Complaint speaks for
itself.
7. This paragraph is directed to another party and therefore no
response is required of this Answering Defendants.
8. This paragraph is directed to another party and therefore no
response is required of this Answering Defendants.
9. This paragraph is directed to another party, by way of further
explanation the remains of this paragraph contain legal conclusions which require no
Answer.
10. It is admitted that Answering Defendants ran their pizza business at
an address that is adjacent to North Fayette Street. By way of further explanation the
remains of this paragraph are denied generally in accordance with PaRC.P. 1029(e).
11-25. Denied generally in accordance with Pa.R.C.P. 1029(e).
26. The averments in this paragraph are directed to another party and
therefore no response is required of Answering Defendants.
27. To the extent that this paragraph avers that Answered Defendants
obtained control over the doorway averred to in the Plaintiffs' Complaint, Answering
I
i
i
l
2
Defendants submit that those allegations amount to a legal conclusion which requires no
answer by way of further explanation it is admitted that the Defendants' pizza shop had
an exterior doorway that opened towards the sidewalk that was adjacent to its building.
28. To thE; extent this paragraph avers that Answering Defendants were
the direct and/or proximate cause for the Plaintiffs injuries Answering Defendants submit
that those allegations amount to legal conclusions which require no Answer. By way of
further explanation the remains of the paragraph are denied. As after reasonable
investigation, Answering Defendants lack information or knowledge sufficient to form a
basis to the belief as to the truth of the averments contained in this paragraph and same
are therefore denied, strict proof being demanded at trial, if relevant.
29. To the extent this paragraph avers that Answering Defendants were
the direct and/or proximate cause for the Plaintiffs' pain, suffering and/or damages
Answering Defendants believe these averments amount to legal conclusions which
require no Answer. By way of further explanation the remains of the paragraph are
denied. As after reasonable investigation, Answering Defendants lacl( information or
knowledge sufficient to form a basis to the belief as to the truth of the averments
contained in this paragraph and same are therefore denied, strict proof being demanded
at trial, if relevant.
30 -32. Denied. After reasonable investigation, Answering
Defendants lack information or knowledge sufficient to form a basis to the belief as to the
3
truth of the averments contained in this paragraph and same are therefore denied, strict
proof being demanded at trial, if relevant.
COUNT I
33. Paragraphs 1 through 32 of Defendants' Answer are incorporated
herein and made a part hereof as if set forth in full.
34.38. This paragraph is directed to another party and therefore no
response is required of Answering Defendant.
COUNT II
39. Paragraphs 1 through 38 of Defendant's Answer are incorporated
herein and made a part hereof as if set forth in full.
40. Answering Defendants admit that it had been operating its restaurant
at the King Street location and utilizing the service referenced for years prior to this
Incident. By way of further explanation Answering Defendants submit that the lease
rElferred to in this paragraph speaks for itself.
41. The allegations in this paragraph amount to legal conclusions which
require no answer.
42. To the extent this paragraph avers that the Answering Defendants
are responsible for causing the Plaintiffs' injuries in that they failed to warn the Plaintiff or
those in a position like the Plaintiff, that the Defendants were excepting deliveries, the
Answering Defendants aver that those allegations amount to legal conclusions which
require no answer.
4
43. To the extent this paragraph avers that Answering Defendants are
responsible for causing the Plaintiffs injuries because Answering Defendants failed to
Install a door which contained a piece of glass, Answering Defendants aver that those
allegations amount to legal conclusions which require no answer.
44. To the extend this paragraph suggests or avers that the Defendants
were responsible for causing the Plaintiffs injuries because the Defendants failed to keep
their door ajar when it was in continuance use for business and/or when they were
excepting deliveries. Answering Defendants submit that those averments amount to legal
conclusions which require no answer. By way of further explanation the remains of this
paragraph are denied generally in accordance with PaRC.P. 1029(e).
45. To the extend the averments in this paragraph aver and/or allege
that the Defendants were responsible for causing the Plaintiffs injuries and damages
because they could have directed persons in the position of the Plaintiff around the
doolWay either by use of a sign or by directing them personally in order to avoid being hit
by the door when opened suddenly or without warning. Answering Defendants submit
that these allegations or averments amount to legal conclusions which require no answer.
By way of further explanation the remains of the averments in this paragraph are denied
generally in accordance with Pa.R.C.P. 1029(e).
46. Legal conclusions which require no Answer. Where an Answer is
deemed to be required, after reasonable investigation. Answering Defendants lack
information or knowledge sufficient to form a belief as to the truth of the averments
5
contained In this paragraph and same are therefore denied, strict proof being demanded
at trial, If relevant.
47. To the extent the averments In this paragraph allege and/or aver that
the Answering Defendants are responsible for causing the Plaintiffs injuries in that they
knew or should have known about the information contained In this paragraph Answering
Defendants submit that those allegations amount to legal conclusion which require no
answer. By way of further explanation the remains of this paragraph are denied generally
in accordance with Pa.R.C.P. 1029(e).
48. Legal conclusions which require no Answer. Where an Answer is
deemed to be required, after reasonable investigation, Answering Defendants lack
Information or knowledge sufficient to form a belief as to the truth of the averments
contained In this paragraph and same are therefore denied, strict proof being demanded
at trial, if relevant.
COUNT III
49. Paragraphs 1 through 4B of Defendants' Answer are Incorporated
herein and made a part hereof as if set forth In full.
50. This paragraph is directed to another party and therefore no
response Is required of this answering defendants.
COUNT IV
51. Paragraphs 1 through 50 of Defendants' Answer are Incorporated
herein and made a part hereof as if set forth in full.
6
52. Legal conclusions which require no Answer. Where an Answer is
deemed to be required, after reasonable investigation, Answering Defendants lack
information 01 knowledge sufficient to form a belief as to the truth of the averments
contained in this paragraph and same are therefore denied, strict proof being demanded
at trial, if relevant.
NEW MATTER
53. Answering Defendant were not negligent.
54. At all times relevant to the incident referred to in the Plaintiffs'
Complaint Answering Defendants aver that it conducted itself in a reasonable fashion.
55. Plaintiff may have been contributorily or comparatively negligent.
56. Other entities and or individuals may have been the proximate cause
for the Plaintiffs loss.
57. The negligent acts or omissions of other individuals and/or entities
may have constituted intervening, superseding causes of the damages and/or Injurie!!
alleged to have been sustained by the Plaintiff.
58. If Plaintiffs are able to prove the alleged allegations within her
Complaint then the Defendants Pasquale and Biagio Emanato and Pizza 'N' Stuff, Inc., in
accordance with the Pennsylvania Rules of Civil Procedure 2252(d) hereby join, as
additional defendants, G. Memmi & Sons Bakery, Inc. and Stephen Shumaker, for the
purpose of contribution and/or indemnification, hereby averments said additional
7
defendants are alone liable to Plaintiffs, Grace A. Weaver and Merle E. Weaver, is liable
over to join Defendants or is jointly or severally liable tolwith the joined Defendants.
WHEREFORE, Defendants Pasquale and Biagio Emanato and Pizza 'N'
Stuff, Inc., hereby prays that the Complaint be dismissed, at the costs of Plaintiffs, or In
the alternative, for the relief alleged in Paragraph 5B above.
Respectfully submitted,
THOMAS, THOMAS & HAFER, LLP
( i )J~~
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By: '-- ,Zi,,\'U'~ it. t(
Joh Flounlacker, Esquire
Attorney 1.0. # 73112
P.O. Box 999
305 N. Front Street
Harrisburg, PA 17108-0999
Date:
8
VERIFICATION
I, Blall.o fmanato , state that I am a Defendant in the
written action and verify that the statements made in the foregoing Answer with New
Matter are true and correct to the best of my knowledge, information and belief. The
undersigned understands that the statements therein are made subject to the penalties of
18 Pa.C.S. ~904 relating to unsworn falsification to authorities.
~~~
....v-
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CERTIFICATE OF SERVICE
I. Jeannie L. Kawalec, an employee for the law firm Thomas, Thomas &
Hafer, LLP, hereby state that a true and correct copy of the foregoing Answer with New
Matter was served upon all counsel of record by first class United States mail, postage
prepaid, addressed as follows, on the date set forth below:
Bv First Class U.S. Mail:
Timothy A. Shollenberger, Esquire
SHOLLENBERGER & JANUZZI, LLP
1820 Linglestown Rd.
P.O. Box 60545
Harrisburg, PA 17106-0545
C. William Shilling, Esquire
HARRINGTON, KAUFFMAN & SHILLING
100 Pine Street, Suite 300
Harrisburg, PA 17101
Amy C. Foerster, Esquire
Jack M. Hartman, Esquire
HARTMAN & MILLER. P.C.
126 - 12B Walnut Street
Harrisburg, PA 17101
THOMAS, THOMAS & HAFER, LLP
Dated: 5"/ /<;1 'f r
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GRACE A. WEAVER and
MERLE E. WEAVER, her husband,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
: CIVIL ACTION - LA W
THELMA FRANKLiN; PASQUALE and: No. 97-5129
BIAGIO EMANATO; PIZZA 'N' STUFF;
INC.; G. MEMMI & SONS BAKERY,
INC.; and STEPHEN SHUMAKER,
Defendants : JURY TRIAL DEMANDED
REPLY OF DEFENDANTS. G. MEMMI AND SONS BAKERY, INC. AND STEPHEN
SHUMAKER. TO THE NEW MATTER OF CO-DEFENDANTS. PASQUALE and
BIAGIO EMANATO AND PIZZA 'N' STUFF. INC.. INCLUDING NEW MATTER
CROSSCLAIM PURSUANT TO PA. R.CP. 2252(d\
AND NOW, come the Defendants, G. Memmi and Sons Bakery, Inc. and Stephen
Shumaker, by and through their attorneys, Hartman & Miller, P.c., and in response to the
New Matter of Co-Defendants, Pasquale and Biagio Emanato and Pizza 'N' Stuff, Inc.,
including New MaUer Crossclaim pursuant to Pa. R.C.P. 2252(d), avcm as follJws:
53-58. The averments contained in Paragraphs 53 through 58 of Co-Defendants' New
Matter, including New Matter Crossclaim pursuant to Rule 2252(d) contained in Paragraph
58, are denied pursuant to Pa.R.C.P. 1029 (e).
WHEREFORE, Defendants, G. Memmi & Sons Bakery, Inc. and Stephen Shumaker,
demand judgment in their favor and against Co-Defendants, Pasquale and Biagio Emanato
and Pizza 'N' Stuff, Inc., and all other parties, and that Co-Defcndants' New Maller
Crossclaim pursaunt to Pa. R.C.P. 2252(d) bc dismissed with prejudicc and costs of this
action.
Respectfully submitted,
HARTMAN & MILLER, P.c.
By:
t1!t ~
Jack . Hartman, Esquire
Supreme Court J.D. #21902
Amy C. Foerster, Esquirc
Supreme Court J.D. #77986
126-128 Walnut Street
Harrisburg, PA 17101
(717) 232-3046
Dated:-.fp / )Jq(
Attorneys for Dcfendants, G. Memmi and
Sons Bakery and Stephen Shumakcr
2
VERIFICATION
I, Ronald Memrni, hereby verify and state that the facts set forth in the foregoing
document are true and correct to the best of my infonnation, knowledge and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A.
Section 4904 relating to unsworn verification to authorities.
Dated: ScJ..; 7 7
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Ronald Memmi
"
VERIFICATION
I, Stephen Shumaker, hereby verify and state that the facts set forth in the foregoing
document are true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. e.S.A.
Section 4904 relating to unsworn verification to authorities.
Dated:
S~9 /7K'
I I
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GRACE A. WEAVER and
MERLE E. WEAVER, her husband,
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL ACTION - LAW
THELMA FRANKLIN; PASQUALE and
BIAGJO EMANATO; PIZZA 'N' STUFF,
INC.; G. MEMMI & SONS BAKERY,
INC.; and STEPHEN SHUMAKER,
Defendants
No. 97-5129
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerster, Esquire, hereby certify that I am this day serving a copy of the
foregoing Replv of Defendants G. Memmi & Sons Bakel)'. Inc. and Stephen Sbumaker. to the
New Maller of Co-Defendants. Pasquale and Biallio Emanato and Pizza 'N' Stuff. Inc.. Includine
New Maller Crossclaim Pursuant to Pa. R.C.P. 2252 Id), upon the person(s) and in the manner
indicated below, which service satisfies the rcquirements of the Pennsylvania Rules of Civil
Procedure, by depositing a copy of same in the United States mail, first-class postage prepaid, as
follows:
Timothy A. Shollenberger, Esquire
1820 Linglestown Road
P.O. Box 60545
Harrisburg, P A 17106-0545
(COIIllSello Plail/lifft)
C. William Shilling, Esquire
Harrington, Kaufmann & Shilling
100 Pine Street, Suite 300
Harrisburg, PA 17101
(ColIl/sellO Tlrelma Fral/klil/)
,--- .
John Flounlacker, Esquire
Thomas, Thomas & Hafcr
P.O. Box 999
Harrisburg, P A 17108-0999
(Counsel 10 Pasqllale and Biagio Emanalo alld Pizza 'N'SI/IjJ. Inc.)
HARTMAN & MILLER, P.C.
By: 0
Amy C. oerster, Esquire
Supreme Ct. J.D. #77986
126-128 Walnut Street
Harrisburg, P A 17101
(717) 232-3046
Dated:
~/3/?f
Attorneys for Defcndants, G. Memmi & Sons
Bakery, Inc. and Stephen Shumaker
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TttOMAS, THOMAS II< HAFER llP
John Floun/acker, Esquire
305 North Fronl Street
P.O. Bo> 999
Harrloburs, PA 17I0B~999
(71n 137.7134
(71n 137-710S (F,u)
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97.5129
GRACE A. WEAVER and MERLE E. WEAVER,
Her Husband
VS.
THELMA FRANKLIN; pasquale and BIAGIO CIVIL ACTION - LAW
EMANATO; PIllA 'N' STUFF, INC.; G.
MEMMI & SONS BAKERY, INC. and STEPHEN JURY TRIAL DEMANDED
SHUMAKER
Defendants
CERTIFICATE OF SERVICE
I, Barbara A. Onorato, a paralegal for the law firm Thomas, Thomas &
Hafer, LLP, hereby state that a true and colrect copy of the foregoing document was
served upon all counsel of record by first class United States mail, postage prepaid,
addressed as follows, on the date set for1h below:
Timothy A. Shollenberger, Esquire
SHOLLENBERGER & JANUZZI
1820 Unglestown Road
P.O. box 60545
Harrisburg, PA 17106-0545
Amy C. Foerster, Esquire
HARTMAN & MILLER
126-128 Walnut Street
Harrisburg, PA 17101
I
C. William Shilling, Esquire
HARRINGTON, KAUFMAN & SHILLING
100 Pine Street, Suite 300
Harrisburg, PA 17101
Date: September 4, 1998
THOMAS, THOMAS & HAFER, LLP
iJWUJ- Ct:~. C~~d
Barbara A Onorato
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
GRACE A. WEAVER and
MERLE E. WEAVER. her Husband
Plaintiffs
CIVIL ACTION -LAW
vs
NO. 97-1529
THELMA FRANKLIN; PASQUALE and BIAGIO
EMANATO; PIZZA 'N' STUFF, INC; G. MEMMI
& SONS BAKERY, INC: and
STEPHEN SHUMAKER
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Custodian of Records, Chambersburg Hospital
(Nam. of Person Of Ently)
WiNn MOty (20) days .ft" ..rvlc. of this subpoena, you .r. ord.td by the court to produce thl following document. or things:
All medical records, reports, treatment notes, correspondence, etc. for any treatment rendered
on behaif of Gmce A. Weaver, d1o/b: 10124/17; social security no: 203-10-4930
at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, HafTisburg, PA 17108
(Add,",)
You may deliv., or mail legible copies of the documents or produce things ,.qulsled by this lubpotn., togethe, 'Nth the c::ertiftcalll of
c:omp'iance. to the party making this request .t thl address listed abov.. You have the right to .uk. In advan~. the ,Plon.ble cost of
pr.panng the copi.. or prod~ing lhe things sought
If you fill to produc:elha documents or thing. requIred by this subpoMlI. WIthin twenty (20) days after its sllViee, the party MrVing tNlsubpoena
ntly ...k . court ord" compelling you to compty vAthlt.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: John Flounlacker. ESQuire
ADORESS 305 N. Front Street. POB 9a9
HafTisbum. PA 17108
TELEPHONE: (717l237-7134
SUPREME COURT ID No: Zll1Z
ATTORNEY FOR: Defendants
_II'fICIorIl. CNlIlMIlon
Dopul
DATE:
S..I of lhe Court
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
GRACE A. WEAVER and
MERLE E. WEAVER, her Husband
Plaintiffs
CIVIL ACTION - LAW
NO. 97-1529
vs
THELMA FRANKLIN; PASQUALE and BIAGIO
EMANATO; PIZZA 'N' STUFF, INC; G. MEMMI
& SONS BAKERY, INC; and
STEPHEN SHUMAKER
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Custodian of Records, Orthopedic Associates of Chambersburg
(Nlme 0' Pinon or Ently)
WlNn twenty (20) days,ft" ..rvk:, of 'hi. subpoena, you .,. ord"ed by thl COUlt 10 produce 'he foUowtng docwnent, 01 things:
All medical records, reports, treatment noles, correspondence, etc. for any treatment rendered
on behalf of Grace A. Weaver, dloJb: 10/24/17; social security no: 203-10.4930
'I THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Hanisburg, PA 17108
(Addl''')
You mav dIU".r or mall legible copln of thl documents or produce things requested by this lubpotnl. togltht, wth thl c.rtifteat, of
compUancI. to the party making tN, liqUet' .t 'hi addr... IIst.d abov.. You hlv' thl right to ...k. in advance, thl r...onable COlt of
pr.par1ng thl cop I.. or producing the things sought.
I' you fall 10 produce thl docLm.nts or things required by thi, lubpCMnl, within tv.renty (20) day. after Its "Me., thl plrty HIVing lNIlubpoen'
mil)' ...k . court ord.r comptlllng you to compty..wh It.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: John Flounlacker. Esoulre
AOORESS 305 N. Front Street. POB 999
Harrlsbum. PA 17108
TELEPHONE: f717\ 237-7134
SUPREME COURT 10 No: U1ll
ATTORNEY FOR: Defendants
Prothonol1lY1CIotIc, CIvIllMoIon
Copul
DATE:
s..1 of thl Court
,.-
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~~
COMMONWEALTH OF PENNSYLVANIA
Q.OUNTY OF CUMBERlJ\ND
GRACE A. WEAVER and
MERLE E. WEAVER. her Husband
Plaintiffs
CIVIL ACTION - LAW
NO. 97-1529
VS
THELMA FRANKLIN: PASQUALE and BIAGIO
EMANATO; PIZZA 'N' STUFF, INC; G. MEMMI
& SONS BAKERY, INC; and
STEPHEN SHUMAKER
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Custodian of Records, Dr. Warren Kistler
(Nam. of Person 01 Ently)
WINn twrtnty (20) dlY'I"'" ..rvic. of this subpotna. you .r. ordlr.,;J bV thl court to ptod~ thl following doc:wnenta or thing.:
All medical records, reports, treatment notes, correspondence, etc. for any treatment rendered
on behalf of Grace A. Weaver, d101b: 10/24/17; social security no: 203-10-4930
II THOMAS, THOMAS & HAFER, LLP. 305 N. Front Street, POB 999, Harrisburg, PA 17108
(Add"")
You may d~twr or mail leglb~ caplet of thl document. or produce INngl rtqunttd by this subpotnl. loglthllf wth the certitk:IIt, of
oompUance. to thl party making tNs requlst ,I thl ,dd,... Usted abovI. You hlv, thl rig" to seek. In Idv.nc.. thl ....sonabll CO$! of
preparing thl copies or producing thl things lought.
I' you f.U to produce thl documents or things r.quirtd by this lubpotn.. wthin I\wnty (20) dlY' aft<< its MtVtce, the party MfVIng this subpOena
may '"" . court order c:omptUlng you to comply 'Mth It.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: John Flounlacker. Esaulrs
ADDRESS 305 N. Front Street. POB 999
Harrisbum. PA 17108
TELEPHONE 17171237-7134
SUPREME COURT 10 No: ru.u
ATTORNEV FOR: Defendants
_arylctortc,CM~
DopuI
DATE:
Sui of thl Court
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
GRACE A. WEAVER and
MERLE E. WEAVER, her Husband
Plaintiffs
CIVIL ACTION - LAW
NO. 97-1529
vs
THELMA FRANKLIN; PASQUALE and BIAGIO
EMANATO; PIZZA 'N' STUFF, INC; G. MEMMI
& SONS BAKERY, INC; and
STEPHEN SHUMAKER
Defendants
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Custodian of Records,Audlologlc Consultants, Inc.
(Name of P'rlon or Entity)
WIthIn twiRly (20) dlY',nll ..Met 0' thl, subpoena. you ar. ord.red by the court to produce the following doel#11.nt. or things:
AIt medical records, reports, treatment notes, correspondence, etc. for eny treatmant rendered
on behalf of Grace A. Weaver, d1o/b: 10/24/17; soclal security no: 203-10-4930
II THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, HalTisburg, PA 17108
(Address)
You may dellv" or malll.glble copIes 0' the documents or product things requlsted by this subpoena, logethe, with the ctrtlf\clt. 0'
compllanc.. to the party ml!<lng this r.qulst It the address listed abov.. You have the right to u.k. In advanc.. the r...onablt cost of
pr.paring the coplll or producing the thing. sought.
If you fall to product the document. or things required by this subpoena, within tNtnty (20) days aft., h, "Mct, the party IIMng tN, subpoena
may ...k . court order compelling you to compty with It.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: John Flounlacker. ESQuire
AOORESS 305 N. Front Street. POB 999
HalTisburu. PA 17108
TELEPHONE: 1117\237-7134
SUPREME COURT 10 No: z.uu
ATTORNEY FOR: Defendants
Prothonotary/CI.rk, CM Dvfslon
Ooput
DATE:
S..I of thl Court
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submItted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
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Please list the fOllowing case:
fl,
L
(Check one)
(XXX) for JURY lrial at the next term 01 civil court.
CAPTION OF CASE
lentire caption must be stated In full)
(check onel
Grace A. Weaver and Merle E. Weaver,
Her Husband,
AssumpSIt
( X II Trespass
Trespass (Motor Vehicle)
(other)
(Plaintiff)
vs.
Thelma Franklin; Pasquale and
Biagio Emanato; Pizza 'N' Stuff,
I nc.; G. Memmi & Sons Bakery,
Inc. and Stephen Shumaker,
The trial list will be calied on 10/13/9H
and
11/9/98
Tnals commence on
(Defendant)
Pretrials will be held on 10/21/98
(Briefs are due 5 days before pretnais.)
vs.
(The party listing this case for trial shall proVIde
forthwith a copy or the praecipe to all counsel,
pursuant to local Rule 214.1.)
No. 5129 Civil
19 97
Indicate the attorney who will try case for the party who Illes this praecipe: Timothy A.
Shollenberger, Esq.. Shollenberger & Januzzl, LLP, P.O. Box 60545, Hbg., PA 17106-0545
.-----.--- -
Indicate trial counsel for other parties if known: John Flounlacker, Esq., Thomas, Thomas &
Hafer, P.O. Box 999, Hbg., PA 17108-0999 for Defendants -P-asqualeincn:l1aglol:manato;
Am Foerster, Es ., Hartman & Miller, P.C., 126-128 Walnut~tr::e~~_(J.:,~A 17101
or e en ants . emmi & ons aery, nc. an tep en Shumaker; and, ~llIIam
Shilling, Esq.. Harrington, Kaufmann ~ Shilling, 1 00 f'1!1~ ?t:~e~., S..t~ _I OO.~_H_arrisburg,
PA 17101 for Defendant Thelrna Franklin; and, John I=lounlacKer... Esq., Tnomas', Thomas &
Tho"ffii~ c1;~&l!sar\;)la/jM~rl:!IP. O. Box 999, Hbg ..fA 17)109-0999 _ lor ,Defendant F..ranklin.
Signed: .:.-t............P.l;--^- S-I. 2 L. I . 'r+-'M
Prlnl Name J:.!,!,ot~L~'_ Sh~l~enberger, Esq.
Dale
9/23/98
--------------.-
Plaintiffs
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