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HomeMy WebLinkAbout97-06078 . J ~ \ .. " " --It ~ '" " ........ .. ~ :a l . .... J. I o~ ., ., <to ~ J .- - - / i I ! { SHERIFF'S RETURN - REGULAR CASE NO. 1997-06078 P CO""ONWEALTH OF PENNSYLVANIA I COUNTY OF CU"BERLAND SALLIE THEL"A VS, ASSOCIATED WHOLESALERS INC DAWN L. KELL CU"BERLAND County, Pennsylvania, to law, .ay., the within WRIT OF upon ASSOCIATED WHOLESALERS INC defendant, at 1000100 HOURS, on 192L at 9~0 WALNUT BOTTO" ROAD CARLISLE. PA 17013 .CU"BERLAND County, Penn.ylvania, by handing to TODD WHITNEY. HU"AN RESOURCE "A NAGER & PERSON IN CHARGE a true and atte.ted copy of the WRIT OF SU""ONS and at the same time directing H1a attention to the contents thereof. . Sheriff or Deputy Sheriff of who being duly sworn according SU""ONS va. .erved TIDIBIA NELL'S "ARKET the the ~ day of November . . Sheriff's Costs I Docketing Service Affidavit Surcharge 18.00 3,10 .00 2.0Q.. .:i::3.llD So a~_B:;O~ ~ -r ..........;;.;~<~ R. Thoma. Kline, er FOWLER ADDA"S & RUNDLE 11/10/1997 by o ~ ,I" \-''ll..v"''1\ ~. ~ ueputy 5heri:U: " Svorn and .ubscribed to before .s this I' t<'- day of '--Tk'~<.'ct<-- 19 17 A.D. r) "'.. r: )J~f,_4. W4~ f I t'rothonD1:.r~ orj--:,"r r". ' f,': ,( f'F ., Nav S 7 52 AI/ '97 PC!':, t~. ; "Ii ) j',: ~'Aj'"tl CD . ..,0 U ION C N ~ 10M 0 I ,O.B I III tl' . I I , e Iol+' I III 0 . I 1II 1II , l&lZO , 1II l"l.lC I l"l I to< m ~ I . . .l"l I IIlCll.O I l"l 1II:E .51 ij...: I"" ...t M , OM I :.1 , > o III 'tl . 0 , ...t 1II .c. ~ Ill' 'tl+'+' 0 If 0 ...t - :aM ..:II oClolUloCl"l .-I .-I I ::I ll.CD CO .-I i~' J MI . 0 +' I f"- III .,.;' oCO+' .C7\ 1< Q en +' >1 'M 1II .. , '" III III ...t, SIll..-IN , I ] ...t... Ul III III , I I"" U.c I .... .....- I CI\ 0'" I MIolUl.-lr- I 1II 1Il'tl I .-I Co Ioll"l , .c ~~ ...t ::I CD III r- I to< I :aenNO- , ~ , I I I , , ~~ @' c:::: !;!::: , ~ r;;:, -- ~.., # " I J .,........ .. FOWLER, ADDAMS oil RUNDLE ATTORNEYS AT LAW 28 souTH PITT STREET CARLISLE, PENNSYLVANIA 17013 ,TELEPHONE (717) 249-8300 ~- 't . .' . . ( .- i \ \ I , ;;..;:.~::~...~ V. l.. '- ~ &. "" -- t>o -- ~ . :l ":tl f , ~~ ~ ~ I \. e ~ e. @)" . ~ t..,; ';:) :::r :::t- ~ '9l Commonwealth of Pennsylvania County of Cumberland THELMA SALLIE Court or Conunoll Pleaa VI. No. __91~.fi.QJ.lLC;j.-'(j.-1.-:r.t;J;!l!-----m- ASSOCIATED WHOLESALERS, INC. t/d/b/a NELL'S MARKET 950 Walnut Bottom Road Carlisle, PA 17013 In m _C; J..'( J..:J, __~9_t!QfJ__~tI_'! _u_ _ _ mm_m__ Associated Wholesalers, Inc. t/d/b/a Nell's Market To _____________________________________________ You are hereby notified that Thelma Sallie .------------------------------------------------.------------------------------------------------ the Plaintiff haS commenced an action in _____"')._~!}.__~S!=.~~_'!___:_~~!'!.u______________un_____ against you which you arc required to derend or a default judgment may be entered apinlt you. (SEAL) Date ____~Qy..j!!!!.12!l_~_lnm___m lL~J Lawrence E. Welker .- - - -- --- - - - - -. - ---p;ih~~~;';; ----- - - - - _u______ By _fi~~. '~.J tl_1f~_____m ~DePuty . ClIl . ItlO U ION C N I-t 10M 0 I I .O.B 1II , 0" e 104.... I 1II 0 . Gl Gl I ~ZO ;1 ~,lC ,.., 1lI 104 , . . .....t 1II 1lI I I ~QPooO Gl:E , .51 . r- ... , , I-t o~ , :.1 , > o 1II , 'tl . 0 , .~ Gl ,c- o I llI' 'tl........ 0 I[ 0 U .~ - :II'" I ..:II 0< 104 CIl 0<"" ... ~ 0 ...1 ::l PooClll ClIl ~ 'tl Gl .0.... , r- I 1lI GlZ .~, 0< U.... oQ'\ < 0 CIl .... >1 .~ Gl.. 10 1lI1l1 ~ SGlPoo...N I ~ .~ ..... en 1lI m 1II r- U.c .... .....- Q'\ I 0..... I ~Io4C1l...r- ~ 1II'tl ~ g. 104 ~ ~~ .~ ::l ClIl 1lI r- ~ fo< :llCIlNU- I 1 I i j Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYlVANIA THELMA SALLIE, v. No. 97-6078 I' ASSOCIATED WHOlESALERS, INC. tld/b/a NEll'S MARKET, CIVIL TERM Defendant. ENTRY OF APPEARANCE To the Prothonotary: Kindly enter my appearance on behalf of the Defendant, Associated Wholesalers, Inc. tld/b/a Nell's Market. Respectfully submitted, LAW OFFICES OF TERANCE P. KENNEDY JOh~z~:1 I.D. NO. 62012 Hillside Corporate Center 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055 Attorney for Defendant, Associated Wholesalers, Inc. tld/b/a Nell's Market 1 , I " IJ J., . '. \-.' , . l. C. , L. I ,.... -..:..' u (-f' U .' p" -- .. .....-'-.- r--".... ,,:. n J ._ ... !,- . . I; . ~,., \"-. ADDAMS A RtlNDLE ATTORHEYSA~LAW 28 SOUTH PITT STREET CARl.ISLE. PENNSYLVANIA 17013 TELEPHONE (717) 24H300 . .. . ~ ", , t .( , , i , ,--. ~ _;"~"'--.1'?"__ _ -.- - '-';'-'''''-' ..;,..---.:- THELMA SALLIE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-6078 CIVIL TERM Plaintiff v. ASSOCIATED WHOLESALERS, INC. t/d/b/a NELL'S MARKET, Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the plaintiff, Thelma Sallie, by her attorneys, Addams & Rundle, and makes the following complaint: 1. The Plaintiff is Thelma Sallie, an adult individual residing in Hamburg, New York. 2. The Defendant is Associated Wholesalers, Inc., t/d/b/a Nell's Market, with a principal place of business at 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. On January 3, 1996, the Plaintiff was shopping in the Defendant's store. As she was leaving through the automatic door she tripped on the mat which had buckled up, fell and sustained the injuries hereinafter set forth. 4. The Plaintiff's injuries were caused by the negligence and carelessness of the Defendant in: A. Using the mat which it knew or should have known to be unstable. B. Maintaining the mat in a defective and dangerous condition. C. Failing to replace the mat in a timely fashion when it became dangerous. D. Failing to adequately and properly inspect the mat. VERIFICATION Thelma Sallie hereby verifies that the facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsifications. -1~/~ DATE: 9/;2.:,-/,/8' , .... In t t::; lJ: ; .. . .- llle- - S:.- ',-:j I,. n.. {')I 6: I...., . ~ll N 1',- :'-1 . -'. ~--: n. .j,::; ~. ,-" 'Ll.: " en .:~ 1,1_ 0;:: U "", (,) Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THElMA SALLIE, v. No. 97-6078 ASSOCIATED WHOlESALERS, INC. tld/bIa NELL'S MARKET, CIVIL TERM Defendant. Dl:FENDANT'S ANSWER WITH NEW MATTER AND NOW COMES the Defendant, Associated Wholesalers, Inc., tld/bla Nell's Market, by and through their attorneys, John C. Swartz, Jr., Esquire and the Law Offit:es of Wesley R. Payne, and files the following Answer with New Matter to Plaintiff's Complaint by averring as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 3, and therefore, denies same and demands strict proof thereof at time of trial. 4.(a) through (d). Denied. The averments of paragraph 4(a) through (dl, inclusive, state conclusions of law to which no responsive pleadings are necessary. 5. Denied. The averments of paragraph 5 state conclusions of law to which no responsive pleadings are necessary. 6. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 6, and therefore, denies same and demands strict proof thereof at time of trial. 7. Denied. After reasondble investigation, answering Defenddnt is without knowledge or information sufficient to form a bel ief a,~ to the truth of thl' dllegations set forth in paragraph 7, and therefore, denies Sdme and demdnds strict proof thereof at time of trial. 8. Denied. After reasonable investigation, answering Defendant is without knowledge or inforrl'ation sufficient to form a belief as to the truth of the allegations set forth in paragraph 8, and therefore, denies same and demands strict proof thereof at time of trial. WHEREFORE, Defendant, Associated Wholesalers, Inc. t/d/b/a Nell's Market, demands judgment be entered in their favor and against the Plaintiff, plus costs. NEW MATTER 9. The averments of paragraphs B of Defendant's Answer are incorporated herein as if set forth more fully and at length. 10. Plaintiff" Complaint fails to state a cause of action upon which a relief may be granted, because Defendant denies that Plaintiff sustained any injury and/or damage as a result of any alleged dangerous or defective condition on Defendant's property. 11. Plaintiff's causes of action are barred in whole or in part by applicable Statute of limitations. 12. Plaintiff's causes of action alleged are barred in whole or in part by the application of the Doctrine of Contributory Negligence as may be applied to the facts disclosed in discovery. 13. Plaintiff's causes of action alleged are barred in whole or in part by the application of the Doctrine of Assumption of the Risk as may be applied to the facts disclosed in discovery. 2 14. Plainliff's causes of action alleged are barred in whole or in part by the application of the Doctrine of Comparative Negligence. 15. Plainliff'scauses of action alleged and tlny damages claimed by Plaintiff, were caused by individuals and/or entities over whom answering Defendant had no control nor right to control. 16. Any injuries or damages sustained by Plaintiff were not proximately caused by any conduct of answering Defendant. 17. Plaintiff's injuries and/or damages, if any, were not caused as a result of the accident which is the subject of this lawsuit. Respectfully submilled, lAW OFfiCES J;:,LEY .. PAYNE Jo C. Swartz, Jr., Esquir I.D. NO. 62012 Hillside Corporate Center 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055 AlIorney for Defendant, Associated Wholesalers, Inc. tld/bla Nell's Markel 3 VERIFICATION The undersigned states that John C. Swartz, Jr., Esquire is counsel for the Defendant herein, that he has examined the pleadings and the entire investigation file made on behalf of the Defendant, that he has taken this Verification to ensure compliance with the pertinent rules prevailing at the lime of filing of pleadings and other documents prescribed by said rule~ and that the facts set forth are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. c.s. ~4904, relating to unsworn falsification to authorities. C. Swartz, Jr., Esquire ~ G~CSIlI^BI1J06PlDI n ,- Cl " ..,~ Lr:- 'i-,,; ... \1.: , {.oj ( L- (, 1 a; r. .. .- , t".. ~;, . L .;. , '-' l' t ~..; .' LJ U' U # , THELMA SALLIE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-6078 CIVIL TERM v. ASSOCIATED WHOLESALERS, INC. t/d/b/a NELL'S MARKET, Defendant JURY TRIAL DEMANDED REPLY AND NOW, comes the Plaintiff, Thelma Sallie, by her attorneys, Addams & Rundle, and makes the following reply to the Defendant's answer with matter: 9. Denied in accordance with Pa. R.C.P. 1029(e). 10. The conclusion of law is denied. 11-17. The answer to Paragraph 10 is incorporated herein by reference. WHEREFORE, the Plaintiff ~equests the new matter be dismissed. ADDAMS & RUNDLE BY:-'Z~~~ ~~rf'A. Addams Supreme Court I.D. No. 06265 28 South pitt Street P.O. Box 208 Carlisle, PA 17013 (717) 249-8300 Attorneys for Plaintiff ~. lJ') -- C-~ \,;',.; [_H j'": ,':': .' IJJ" I <, , . fC: " ". I , (~~ I , , ",1 ..,' '~'; C_11 liP I ; ..' --'t' ~- l"d U::, c .: ~ 1J.. F- ;.r: II ~ :i I', I Q (J' U , PRAECIPE FOR I.ISTING C^SE FOR TRI^L (Must be typewritten and sutmitted in duplicate) TO 'lllE POOl'IrtVl'ARY OF ClMBERI.NI:> COONI"i Please list the following ease. (Check one) ( X I for JURY trial at the next term of civil court. for trial witlxlut a jury. ----------------------------------------- CAPTION Of' C/\SE (entire caption RUst be stated in full) (check one) TIIELMA SALLIE, (X) Civil Action - Law lIppeal from lu:bitration (other) (Plaintiff) VB. AS~JAnfu' WII0LESALERS, t/q/;'}a lreLL'S MARKET (j- f'.' , c /i I' .1 ll~ ~ j.. INC. The trial list will be called on 4/20/99 and C I Trials conmence on 5/10/99 " (' - I I I l ~ V5. (Defendant) Pretrials will be held on 4/28/99 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.1 :...." No. 6078 Civil 1997 Indicate the attorney who will try case for the party who files this praecipe. William A. Addams, Esquire - for the Plaintiff Indicate trial counsel for other parties if known: John C. Swartz, Jr,.~Esquire 'I11is case is ready for trial. /;zt?<~ William A. Addams Signed. Print Nine. Date: 2/9/99 ^ttorney for: Plaintiff THELMA SALLIE, Plaintiff IN THE COURT OF COMMON PLEAS Of V. CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-6078 CIVIL TERM ASSOCIATED WHOLESALERS, INC., t/d/b/a/ NELL'S MARKET, Defendant IN RE: CONTINUANCE ORDER Of COURT AND NOW, this 20th day of April, 1999, trial herein iu continued by agreement of counsel. Counsel to relist the ll'atter. By the Court, /I Hess, J. William A. Addams, Esquire for the Plaintiff 11,....1........ ,?~l;,.(.,(, '1/~..~/qlj. ~II ~.1', John C. Swartz, Jr., Esquire for the Defendant Court Administrator :bg .. . , . "I , , , . I THELMA SALLIE, Plaintiff 23 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ASSOCIATED WHOLESALERS, INC., t/d/b/a NELL'S MARKET, Defendant 97-6078 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference in the above-captioned case was held in the chambers of Judge Oler on Wednesday, June 23, 1999. Present on behalf of the Plaintiff was William A. Addams, Esquire. Present on behalf of the Defendant was John C. Swartz, Jr., Esquire. This is a negligence action for personal injuries arising out of Plaintiff's slip and fall as a business invitee in Defendant's market in Cumberland County on January 3, 1996. Defenses include lack of negligence and contributory negligence. This will be a jury trial in which each side will have four peremptory challenges, for a total of eight. The estimated duration of trial is one and a half days. Plaintiff's counsel, William A. Addams, Esquire, will not be available for trial on Monday, July 12, 1999, because he is attached in Franklin County Court on that day. To the extent that any depositions to be shown or read to the jury contain objections requiring rulings by the trial court, counsel are directed to submit a transcript of such a deposition, along with brief memoranda in support of their respective positions and the areas of objection being pursued highlighted on the transcript, at least five days prior to the commencement of the trial term. Plaintiff has filed a motion in limine relating to spoliation of evidence (Defendant's return to a rental agency of the rug or mat upon which Plaintiff allegedly fell). Pursuant to an agreement of counsel, an order will be entered disposing of the motion by indicating that a charge to the jury will be given in accordance with Pennsylvania Suggested Standard Civil Jury Instruction 5.06. With respect to Plaintiff's medical expenses, Defendant's counsel has agreed to stipulate to the authenticity, fair and reasonableness and causal relationship to the accident of the medical expenses attached to Plaintiff's pretrial memorandum as an exhibit; provided, that no such stipulation exists as to the causal relationship involved in the Mercy Hospital, M.R. Samie, M.D., and Nicholas J. Dragonette, D.C., expenses. With respect to settlement negotiations, Plaintiff has demanded $32,500.00 and Defendant has offered $15,000.00. It does appear to the Court that there is a reasonable possibility of settlement of this case. . THELMA SALLIE, plaint if f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ASSOCIATED WHOLESALERS, INC., t/d/b/a NELL'S MARKET, Defendant 97-6078 CIVIL TERM ORDER OF COURT AND NOW, this 23rd day of June, 1999, upon consideration of the Plaintiff's motion in limine, ana pursuant to an agreement reached at the pretrial conference between counsel, in the person of William A. Addams, Esquire, on behalf of the Plaintiff, and John C. Swartz, Jr., Esquire, on behalf of the Defendant, the motion is granted to the extent that the trial court will charge the jury on the Doctrine of Spoliation of Evidence in accordance with Pennsylvania Suggested Standard Civil Jury Instruction 5.06. By the Court, William A. Addams, Esquire Attorney for plaintiff CdfUM M~ t!';JI//Pf John C. Swartz, Jr., Esquire Attorney for Defendant Prothonotary :srs oX ~. ,p (:; , , i ,- '. ' i .- ~ ' , .f , ~I..i ~ -'.., I -, , ,. , I iJ1 ~-~ - , -< , .., 'j .:' ,J , ~, (: ; .? .- , - - , , ~~ C>.J ! ) - . , 'Cl .-.- , ,. .~. '" -:) , 0 .~o P~'1.1l2.j~( Mt~~I4JUj)".,.., F~o lt1 :1>1 "-::'iAlb~N r f,_(("dM;;lJ-.J I,. r- "J r' c~" ,\ r u)~y rRETRIAL CONFERENCE ORDER ~ ;> U I " ",' a, r. . ( I J r ~ b ~ r .LI (1'. ~11 ( CASE NAME I I. II. III.' IV. Pretrial Conferenge Data . 7 II') L! A. Date - Wi d . l ::r...,.,c- 2. ~ I B. Judge - 01 cJ (II C. Attorneys/PartieB F: v.J I I),,,, ~ : :r 0\' r-, H. Ad /7" S. ?.. 6 / (' . ., -, j r . L- f _ \ ~ \ -;"l\ 24 ~ r '-... j I ' I () : 0 Nature of Cue .J r (..vI ( ~ A. Cause of Action ~ o!' 05110"':' <' c.. '" d, I'll 1 ~( r~T~J,;> Jlj~. ~ I 2t I ~_; ., 0 tJ.. \ S fl." ~ t.? !: ~ I r - 2]) ,- 't' B. BaBicFacts .JS 2 t.:,->""I);,~!:';1)\j,~~I"" 1:>,f",hcl,'/) l;" m,,.'ttc.J I'") C... ~ LJ ol?~J C...l-<.,./f, 0.11 I C. DefenBe ~2.hl>?~,~, I ,}7~, be-Sc,t;.,-.s.tt,d-..Jd(,. l'\ '" .., rd ~I".>_ { Trial A. B. C. D. ~/Nonjury - I ~mptories - ~ i EBtimate of Duration - Availability of CounBel '/ 1 ( I t.. (1;')- - B 11,,7'->0'>' J ~(7J 7 "J,j) I2-r (95/ Issues I -t ' D (' I I I L~hV' (I) {t",c:\ '" ~"-J 1 tpo~. .. -'~ - . I. Al' k" 1,-,...." , .:.....o\IC'll\I)[~ 2. tv?1 \' I ~~. ' b 5r:>I('.i?Tr~1) c..: ~u l'dC.?CC- I ~ I jo A:. 1" u l'vle c{,c:> <... pU ,a..:; V. Status(~f jttlement Negotiations ;''2./~'')rJ 15>0)0 THELMA SALLIE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-6078 CIVIL TERM Plaintiff v. ASSOCIATED WHOLESALERS, INC. t/d/b/a NELL'S MARKET, Defendant JURY TRIAL DEMANDED PLAINTIFF'S PRETRIAL MEMORANDUM 1. FACTS: On January 3, 1996, Mrs. Sallie was shopping at Nell's Market along the Walnut Bottom Road. As she was leaving the store, she tripped on the mat which had buckled up, went into the automatic door, then fell through the doorway and struck her head on the divider. This rug or mat was notoriously unstable. 2. DAMAGES: The plaintiff was 71 years of age at the time of the accident. She had a brief loss of consciousness after striking her head. She was taken by ambulance and treated at the Carlisle Hospital for injuries to her left elbow, knee and ankle, and a lumbar sprain. She returned home to New York where she was seen by an orthopedic surgeon and neurologist, and finally received chiropractic treatments which ended in 1998. 3. ISSUES: Premises liability and damages. 4. EVIDENCE: A. The defendant has agreed to stipulate to the attached list of medical expense which may be used as an exhibit. B. The plaintiff will offer the attached accident report as an admission that the rug "had a knot in it." THELMA SALLIE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 97-6078 CIVIL TERM ASSOCIATED WHOLESALERS, INC. t/d/b/a NELL'S MARKET, Defendant JURY TRIAL DEMANDED MEDICAL EXPENSE Carlisle Goodwill Rescue - $ 230.00 772.00 96.00 143.00 1,004.40 658.00 Carlisle Hospital - RWC Emergency Medicine - Carlisle Imaging - j Mercy Hospital - X M. R. Sam.ie, M.D. - Eric Goodwin, M.D. - 155.23 402.68 372.93 82.84 John A. Moscato, M.D. - Abbott Radiology - Southtowns Radiology - Family E.T. - j Nicholas J. Dragonette, D.C. - Prescriptions - Total medical expense to date - 1,912.00 565.62 298.50 $6,748.20 '.it~ i !j Y: r,;U_IJ~ At:c::,\~; Y i \~. ; 1- ,-~:; : . J: ::: r,;u-u~ ~~:\~y .\~,- / ' I;, i f 4/4;: l ""'wcoo Co-G' AaoNCY INC. 212 wnT 'INN AVENUI '.0. Bor Zla2 CLErmA PA 17ll4a-~ <CQI!, :1.21211 =:J""~3} - \.:/ ...ct ,llQlllOtU ~oe:_~ ftOlesONIA IVAHO ASCANI PA m.ll 1j..(i - ~';-''.> -/<; I-"""'~= I """"" ....""" ....c, No, '';;-- -- " ""iii.-Oi ;;';:;;ii;';'-:-~' .. --- i JlUS-;-;':a.~""~-1 OAYT1!11 ,l~"" '~~~~~~t: ....,J'~~~~.:,Jtj.l.ff~~.f1:..;~.d,JE.:~\1t.i~.';.; ~.~.~Adl.o~ ; 'l;: . . ~.. ~ N!J.L" WALNUT IOTTOll I ~ toITArnO---l t!O WALNUT 8~_o_ CAftUSLE P_A_I7013 ._... _ __.._...J.._ _ THeRE II A RUO BY THE OUTSiDE OOOft WHICH HAD A ~HOT iN IT 1 CUIiTOlllR 'mIPPID OVER THI Rua A FILL ) ... TD COHfAt:f ~O''''''QrfCJI cc~cc N. ""'..... 1--.... " j li:rii'HJ}'~i~i.ti~:.j:t,.~)::iz'r~ ~'~-I UCM ee:lJI4'tHc.t , I F!o'tt aAN.t4e ""JCA.~ CfCuCTSL~ . l'tl'SOI'""""" I --J , -.......... . .,,,,.... (l1'(It"I&l...o ~rs:INSl..~1:I t.l.&M.J.....C1\.~ WJllocn IOTlfm IP'" PtlONE I T'I'I'! OF .PPocvcr ......""'""'"' HJ,I,If j ADOABS ('llIiIlhUH) ~"'~~.tJ;II'HChE ~CIh.J!I' >>et! CAN M:CUCT aI ~, O'MJI \,.;,lIUT"f' ... Q.UOffQ tCU'tET!O """"""'~.. . , THILlIA SALUI f:.rl S.lS7 B'TERUNa DR"'! oco...AT-," HAMSURD NY I twtCM:1,J I :7Jda r~~-.--'-- ,lHOS'I:.~__ ...~ LADY FEEL ,ftlTTY HARD - CALL!O AMBULANCE AS SHE WA9 COllPLAININQ OF SACK PH'1Il I..."""'" """''''''' ~EH' ~ flil':. _ ~.il! lll2l1 N wi";f:';r;;..~ C~_R9SLI _~~llllS_;' ~ _.us....~~"". ""'_ No "L...--i Mi..JlODlCl!' "'"CJllII! 1M:. ... 17171 21"1571 AT!lAH"S~___._ r!DO<~~L~-; ---'-------- i "':.~~':A -.-;o.op AaENo~ -[ "''''u''t cr '"e""",," a< """"" :"''7'''- .....P~..:'.';.<', ....r.:r.tl*I.I.:~!.Ji....~ 1:"-', J'{:~"l:"""" ...... <.1'l..!.....,." .....t... . '11"'''-''"]'',.-,-. ,\4"'....{c,<..;. 1l~~4o;......._~:'ii-......,.~~ A ' f 'I<l ')""""'" l.,"""<HOTE' Iii\lO"T NT: ATli" INrO."'A N' ~ E~SlO~,..,,"ll,_ /J"A , . . THELMA SALLIE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97.6078 CIVIL TERM Plaintiff v. ASSOCIATED WHOLESALERS, INC. t/d/b/a NELL'S MARKET, Defendant JURY TRIAL DEMANDED MOTION IN LIMINE AND NOW, comes the plaintiff, Thelma Sallie, by her attorneys, Addams & Rundle, and makes the following motion in limine for spoliation of evidence, and in support thereof states the following: 1. This action arises out of a trip and fall accident that occurred at Nell's Market on January 3, 1996. 2. The plaintiff alleges that as she was leaving the store she tripped on a mat which had buckled up due to its unstable, dangerous and defective condition. 3. A witness reported to the defendant that the plaintiff "suddenly tripped on a 'knot' in the rug and fell straight forward." 4. The defendant has filed an answer denying that the mat was in a defective condition. 5. On September 25, 199B the plaintiff served a request for production of various documents and the mat that was involved in the accident. 6. On November 25, 1998 the defendant served a response stating, "Defendant is attempting to locate the mat at this time." 7. With the file material submitted in response to the request for production, the store manager is reported to have stated: Found out that they rent the long rugs out from a company. The rugs are picked up once a week and replaced w/clean ones. Not permanently installed. However, mentioned that after they are delivered it is their responsibility to take care of them. Said that the carts do cause the carpets/rugs to roll up a little cause the (sic) catch but they try to make sure that they are straightened out prior to anyone falling." 8. As yet, the defendant has not produced the floor covering for inspection. 9. The defendant was immediately aware of the accident and obtained an accident report, but failed to maintain and preserve the floor covering in question. 10. Serious sanctions, including summary judgment, may be imposed for spoliation of evidence. Schroeder v. Commonwealth. Deot. of Transo., 710 A.2d 2~ (Pa. 1998). 11. In accordance with Schroeder, suora, in ruling on a motion for spoliation of evidence, the following factors are to be considered: (1) The degree of fault of the party who altered or destroyed the evidence; (2) The degree of prejudice suffered by the opposing party; and , the subject incident. More specifically, Defendant does not believe any medical expenses for low back treatment incurred by Plaintiff over one year after the incident with Dr. Nicholas Dragonette and Dr. M.R. Sammy are related to the accident, but are rather related 10 Plaintiff's pre-exisling degenerative arthritis in her low back. Also, Defendant will not agree to stipulate that the prescription expenses for the low back are related to the subject incident of January 3, 1996. B. The Defendant will offer the testimony of Mr. Servano Ascani, Store Manager at the time of the accident, regarding how the carpets are used, maintained and inspected. C. The Defendant will offer the expert medical testimony of Dr. Richard Boal, an orthopedic physician. IV. WITNESSES. Mr. Servano Ascani Dr. Richard J. Boal, via videotaped deposition. V. EXHIBITS. A. Carlisle Hos;>ital records. B. Plaintiff's application for treatment with Dr. Dragonette. C. Plaintiff's treatment records with Dr. Goodwin. D. Any exhibits attached 10 the videotaped deposition of Dr. Boal. 2 VI. SETTLEMENT NEGOTIA liONS. Plaintiff has demanded $32,500. Defendant has offered $15,000. Respectfully submitted, LAW OFFICES OF WESLEY R. PAYNE J n C. Swartz, Jr., Esquire I.D. NO. 62012 Hillside Corporate Center 5001 Louise Drive, Second Floor Mechanicsburg, PA 17055 Attorney for Defendant, Associated Wholesalers, Inc. t1d/b1a Nell's Market 3 CERTIFICATE OF SERVICE I, John C. Swartz, Jr., Esquire, hereby certify that I have this Ji.- day of June, 1999, caused to be served via fist class United States Mail, postage prepaid, a true and correct copy of the foregoing pleading upon the following: William A. Addams, Esquire 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 ('j Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013.3307 The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3307 I ) ,:':. .~- 'l: _' ~ .. ~ \" ADDAMS .. RUNDLE ATTORNEYS AT LAW . . 28 BOl/TH PITT STREI!T CARUSI.E, PENNSYLVANIA 17013 TELEPHONE (717) 24H300 , , . ~- , . . .' 'j , , I ~ I of , ,-- \ '';'_'=3~_''~'~,,r,,-=~,,,,-;=:\:, " THELMA SALLIE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-6078 CIVIL TERM v. ASSOCIATED WHOLESALERS, INC. t/d/b/a NELL'S MARKET, Defendant JURY TRIAL DEMANDED MOTION IN LIMINE AND NOW, comes the plaintiff, Thelma Sallie, by her attorneys, Addams & Rundle, and makes the following motion in limine for spoliation of evidence, and in support thereof states the following: 1. This action arises out of a trip and fall accident that occurred at Nell's Market on January 3, 1996. 2. The plaintiff alleges that as she was leaving the store she tripped on a mat which had buckled up due to its unstable, dangerous and defective condition. 3. A witness reported to the defendant that the plaintiff "suddenly tripped on a 'knot' in the rug and fell straight forward. " 4. The defendant has filed an answer denying that the mat was in a defective condition. 5. On September 25, 1998 the plaintiff served a request for production of various documents and the mat that was involved in the accident. 6. On November 25, 1998 the defendant served a response stating, "Defendant is attempting to locate the mat at this time." 7. With the file material submitted in response to the request for pr.oduction, che store manager is reported to have stated: Found out that they rent the long rugs out from a company. The rugs are picked up once a week and replaced w/clean ones. Not permanently installed. However, mentioned that after they are delivered it is their responsibility to take care of them. Said that the carts do cause the carpets/rugs to roll up a little cause the (sic) catch but they try to make sure that they are straightened out prior to anyone falling." 8. As yet, the defendant has not produced the floor covering for inspection. 9. The defendant was immediately aware of the accident and obtained an accident report, but failed to maintain and preserve the floor covering in question. 10. Serious sanctions, including summary judgment, may be imposed for spoliation of evidence. schroeder v. Commonwealth. Deot. of Transo., 710 A.2d 23 (Pa. 1998). 11. In accordance with Schroeder, suora, in ruling on a motion for spoliation of evidence, the following factors are to be considered: (1) The degree of fault of the party who altered or destroyed the evidence; (2) The degree of prejudice suffered by the opposing party; and fC: ..:t '- . . ;'.: " , " , ( ~ I . , (~) , " ' ,"J <"1 ~~t .., 'j < '.l.. " <,:, .''i l , Ul V i ~ ~ I ) . >~, '" i .,,. ;r. ..z ~ a"- ," . . ADDAMS A RUNDLE ATTORNEYS AT LAW 28 souTH PITT irREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 24H300 ~ " ; . " " , j ! t' " , ,..-, ~- .~~....--~..... ..-..... .~---..._.!;::.. I Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-6078 CIVIL TERM THELMA SALLIE, v. ASSOCIATED WHOLESALERS, INC. t/d/b/a NELL'S MARKET, Defendant PRAECIPE Sir: Please mark this action settled and discontinued. ADDAMS & RUNDLE By: . ~L' 11 i . Addams Supreme Court I.D. No. 06265 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 (717) 249-8300 Attorneys for Plaintiff TO: Curtis Long. Prothonotary DATE: August 1, 1999 " i :,\i},~~",':--r:'1":r'\ ;'- " "'; i ~ :; ; I ? - ~:'I'J ('j ~ \. . .. ~ . "