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Home My WebLink About97-06926 J I I I j ~ ~ ~ , I ... td 'I . ~ . I ~~ ~ s . ~ .51 I ~ j ~ . j ~h I~~ &PN" I Ii II '" ! N If' 0\ '" mdl ..: '" "?Oli I r!. . , ..:t>1 0\ i~ ~' ~ Oli... I . N ' , ~O. I' I NO 1"0 ~ tl . CD. ....t, ! ~~ I"H I I I l ..,. \.n (l~ ,,-; t,. I il; I ~ ".' , " ( ) ~ f'.' .L.:"; 1'1.. ~Ijf,:. . , ,-:':1 (~_!, lJ,I' 1,,'-"; ....'1. Jill G.:. 1,1_ f - j 1I.. C':l .1 ,~) "'.... C) 2, Admitted in part. Plainllff's counsel postlJoned bUI did nol cancel the deposition, rescheduling it for FebruMY 3, 1990, The deposition was rescheduled because Plaintiff's counsel received documents tram counsel for Defendants Emanato and Pizza 'N Stuff which suggested Ihat an addilional Defendant, Memrni's Bakery, needed to be joined, The delJosilion was continued in order to afford Memmi's the opportunily 10 be sued and afford time for the Writ to be served and counsel to el1ler an aplJearance on behalf of the Additional Defendant. By way of further answer, Attorney Jack Hartman has now entered appearance on behalf of Memmi's and Stephen Shull1aker, its employee, By way of further answer, neither counsel for Pasqlj,lle and Blagio Em,mato and Pizza 'N' Stuff, Inc., nor counsel for Memmi's and Stephen Shull1aker have objected to the deposition of the Plaintiff scheduled for FebruMY 3, 1998, 3, Admitted, By way of further answer, the Plaintiff Grace Weaver was born on October 24, 1917 and allhe present time is 110 years old, Plaintiff believes and therefore avers th,ll she wOldd qualify as an aged individual pursuanl to rule Pa,R,C.P, 4007,2(b)(1), 4, Admitted in parI and denied In P,Ht. it is admitted that counsel informed Pldintiff's counsel by means of a letter ddted 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 DefElndant counsel's December 29, 1997 letter with a letter dated December 30,1997, A copy of that letter is attached hereto as Exhibit B ,1I1d speaks for itself. (" II is admitted that Defend,1I1t's counsel responded by letter of January 5, 1998, A copy of this letter is attached herelo as Exhibit C and speaks for itself, 7, Denied, On the contrary, Telephone conferencing would most. certainly properly allow the Defendant to pMticipate in the active defense of her case, as would the use of a telephone hookup, 2 SHollENBERGER & JAN\llll, UP 1.'i!L' \.Ii'll il.F,S'I\ l\\iN Rl1:\ll . I'll, I\l 'x I\lJH~ . H.'\HIU~!-Illlh;, 1':\ I ill'l'1,\~Hj [:17121-1-\;,,\1 . Ft\XI7111 !\4.'i!1! 8, Admitted, If the Defend.lIlt wishes to cOllle and face Ms, Weaver, she l110st certainly can, She has h,ld notice of this defJosltlon since at least December 29, 1997, She chose to Illake 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 tho Court Is being asked to do Is balallce tho Interest of the Defendant remaining In Florida through the middlo of March and the Plaintiff's rights under Pa,R,C.P, 4007,2 to give her dopositlon so as to preserve her testimony on the Issue of both liability and damages should she not be capable of testifying when this c,]se goos to trial. Plaintiff bolioves and thorefore avers that if these two interests aro balancod, tho Plaintiff must be given the right to pro.::eed with her deposition on February 3, 1998, 9, Denied, Plaintiff and Plaintiff's counsel is unawaro of any Rule of Civil Procedure that mandates that ,1 p.Jrty t,lko the discovery deposition of any other party to the action or witnesses prior to the time of trial or prior to testimony being taken for use .lt the time of trial. In f,\Ct, Pa,R,C.P, 4007,2 suggests the contrary, 10, Denied, On the contrary, Defend.lnt's counsel can take the discovery deposition of the Plaintiff, PI.lintiff'~1 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 We.lver, at .lny time prior to February 3, 1998, By W<lY of further answer, Defendant's Insurer was given permission to and did take a detailed in persall record\!d statement of the Plaintiff. A copy of the transcript of that statement 15 att,lChed as Exhibit D, The only reason Plaintiff's discovery deposition h.ls not been taken prior to now is because Defense counsel never <lsked for It to be taken, 11, Denied, On the contr.lry, Defend.lnt Franklin can participate in the prepar.ltion and defense of the civil case by corning b.lck from her vacation in Florid.l or by listening to the deposition on telephone or by reviewing the 3 SHllllENnERl,ER &. JANlJlll.llP ['\2l11.1Nl ;LEc;Tl \\X,'N \{, ),\[1 . I'll I" 'x 1l1)'Hi . H.-\HHI....I\Ulh i, I'A I; Il'tH'H~ 1~'17)!\.I \,\"0 . F,V{(717J!HH!I~ LAW OFFICES OF HARRINGTON, KAUFFMAN & SHILLING 100 Pille Slreel, Suile 300, Harrisburg, PA 17101 TIM ), IIARRlNOTON. JR. 1I0W ARD D, KAUFfMAN C. WILtIMI SIllLLJNO TELF.I'1I0NE, (717)720./1700 fACSIMILE, (717)2l6'90Hil January 5, 1998 Timothy A, Shollenberger, Esquire 1820 Linglestown Road P,O. Box 60545 Harrisburg, l' A 17106-0545 ,",. , I., .''':, ,. II 'I"~II' 4 , .,-, Re: Grace A. Weaver and Merle E, Weaver, Her Husband v. Thelma Franklin, Pasquale and Diaglo Emanato and Pizza 'N' Stuff, 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 letter 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 ou 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 of approximately 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, ;Y~) It William Shilling CWSlbes cc: John Flounlacker, Esquire Thelma Franklin Cathy Marshall // / EXHIBIT I~- 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,1 can't say exactly how, but you came out of the door where I lived and just 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 10:00 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 what 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 fine. 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, A, OK. And I usually like to get there shortly, to get his prescriptions filled, I I I Q, A, Is this generally when you normally went to go get a prescription filled? Yes, 1".... Q, Around the same time, A, Right. . Q, And hoY! 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, (Attorney: 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, (Attorney: 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, (Attorney: Well, that's a different question, The door can open out, if the hinges were left or right,) Q, OK, let's do both oflhem, Did it open to the outside of the .>treet or I'm assuming it's not open to the inside, It opened, did it open to the outside of the street? A,Right. ',- _"f ,,~ ,-- - , " II" , , I , (". r l- .. I l" ~ . Gr~ce A. Weaver and Merle Weaver, Her Husband, In the Court of Common Pleas Cumberland County, Penna. Plaintiffs v. No. 97-6926 Civil Action - Law G. Memmi & Sons Bakery and Stephen Shumaker, Defendants Jury Trial Demanded Praecipe for Discontinuance To the Prothonotary: Please mark the above-captioned action ended, settled and discontinued without prejudice. Respectfully submitted, Shol.lenberger & Janu2zi, LLP ~ys for Plaintiffs Date: February~, 1998 ,;t 'I6;;'?'; f .J. / I 40 LO 4 /. Jtl -/J ~, '7fO- J ltt c~ ,,!J Jc.L i v ~. ~ t' e'l .J. " t( tChv ,'] ~ ~ 6 ~ (I iI~ tJ f " " StlOLLEN8ERClHR &. lANUm, LLP IH~\J LlI-iULESTUWN RUM) . ro_ 11,0;( 6IJH~ . t1ARRI,"iI\LJRU, l\~ 17J0('H)H~ \711)l!i.17l,.'\} . Ft\.'((1I1JH"H!ll 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 Q, MEMMI & SONS BAKERY, INl'. and STEPHEN SHUMAKER, Delendants No. 97-6926 JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS. G, MEMMI AND SONS BAKERY. INC, AND STEPHEN SHUMAKER. TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, come the Detendants, G. Memmi and Sons Bakery, Inc, and Stephen Shumaker (hereinafter "Responding Ddendants"), by and through their attorneys, Hartman & Miller, P.C" and in response to Plaintiffs' Amended Complaint aver as follows: ANSWER 1.6. After reasonable investigation, Responding Defendants lack knowledge or information sufficient to torm a belief as to the truth of the averments contained in Paragraphs I through 6 of Plaintiffs' Amended Complaint; the averments are therefore denied. and strict proof thereof is dll11anded at trial. 7. Admitted. 8. Admitted. 9. The averments contained in Paragraph 9 of Plaintiffs' Amended Complaint are conclusions of law or fact to which no response is necessary. To the extent that a response is de~l11ed necessary. the averments are denied as stated. It is admitted only that Stephen Shumaker was an employee ofG. Memmi & Sons Bakery, Inc.. acting within the scope of his employment. 10. Denied as stated. It is admitted only that pursuant to a Stipulation entered into by counsel on February 3, 1998. the incidcnt in question occurred on February 29, 1996. Alicr rcasonable investigation, Responding Defendants lack kll\lw1cdge or information sufficient to form u belief as to thc truth of thc rcmaining avcmlents containcd in Paragraph 10 of Plaintiffs' Amendcd Complaint; thc averments arc thcrc!<lrc denied, and strict proof tlu:rcof is dcmandcd ut trial. 11.12. Allcr reasonable invcstigation, Responding Defendants lack knowledge or information sufficicnt to form a belief as to the truth of the averments contained in Paragraphs II and 12 of Plaintiffs' Amcnded Complaint; the avennents are therefore denied. and strict proof thereof is demandcd at trial. 13. Admitted. 14.25. The averments contained in Paragraphs 15 through 24 of Plaintiffs' Amcnded Complaint are denied pursuant to Pa. R,C.I'. 1029(e). 26-17. After reasonable investigation, Responding De!endants lack knowledge or information suflicicnt to form a belief as to the truth of the avemlents contained in Paragraphs 26 and 27 of Plaintiffs' Amended Complaint; thc avermcnts are therc!IJrc denicd. and strict proof thereof is demanded at trial. 28.32. The averments contained in Paragraphs 28 through 32 of Plaintiffs' Amended Complaint arc conclusions of law or fact to which no response is nccessary . To the extent that a response is dcemed necessary, the averments are dcnied pursuant to Pa. R.C.P. l019(e). 33.38. The avermlmts containcd in Paragruphs 33 through 38 of Plaintiffs' Amended 2 Complaint arc dirc~tcd to II party other than Responding Defendants. and no tilrthel' responsc is required. To thc cxtent that a rcsponse is dccmcd ncccssary, the avcrnlcnts arc dcnicd pursuant to Pa. R.C.!', 1029(e). 39-48, The avcrmcnts containcd inParugraphs 39 through 48 of Plaintiffs' Amcndcd Complaint are dircctcd to a party othcr than Responding Dd'endants, and no furthcr rcsponsc is required. To thc cxtcnl that a response is dcemed ncccssary, thc avermcnts are dcnied pursuant to Pa. R,C,P. 1029(e). 49. Paragraphs I through 48 of Responding Delendants' Answcr to Plaintiffs' Amended Complaint are incorporatcd hercin by rclercncc, as though fully sct forth herein. 50. Thc avcrments containcd in Paragraph 50 of Plaintiffs' Amcnded Complaint are conclusions of law or fact to which 110 rcsponsc is necessary. To the cxtcnt that a response is deemed necessary, the averments arc dcnied pursuanllo Pa. R.C.P. 1029(e). By way of further Answer, Defendants hercby incorporate by reference Paragraph 56 of their Ncw Matter as though fully sct forth herein. 51. Paragraphs I through 50 of Responding Defendants' Answer to Plaintiffs' Amcnded Complaint arc incorporated hcrein by refcrencc, as though !iilly set forth herein. 52. The avennents contained in Paragraph 51 of Plaintiffs' Amended Complaint lue conclusions of law or fact to which no rcsponsc is necessary. To the extent that a response is deemed necessary, the averments are dcnied pursuant to !'a. R.C.I'. I029(e). WHEREFORE. Detendants. G. Memmi & Sons Bakery. Inc. and Stephen Shumaker, 3 demandjudgmtlnt in their !i.\Vor and against Plaintiffs, and that Plaintiffs' Amend~d Complaint bc dismissed with prcjudice and costs of this action. ~~ 53. The avcrmtlnts sct I<mll in Plaintifl:s' Amendcd Complaint lililto state a claim or cause of action against Rcsponding Defendants upon which rclicf may bc grantcd. 54. Any claim or causc of action sct Ilmh in Plaintiffs' Amcnded Complaint is barrcd by operation of thc contributory/comparative ncgligcnce of Plaintiff Grace Wcaver as may be dcvcloped during discovery. 55. Any claim or causc of actiun set forth in Plaintiffs' Amtlnded Complaint is barred by the operation of Plaintiff Gracc Weaver's assumption ofa known risk. as may be developed during discovtlry. 56. Any claim or causc of action set forth in Plaintiffs' Amended Complaint is barred by the ~pplicable statute oflimitations. including specifically, but not limited to, any claim or cause of action which. by reason of lack of specificity of pleading. is not directly or specilically set!orth in the language of Plaintiffs' Amcnded Complaint. but which Plainti ITs scek to raise at a later time by further amendment. claiming to have preservc such claim or cause of action within Plaintiffs' Amended Complaint. 57. The injuries alleged to have been suffered by Plaintiff Grace Weaver as a result of this accident are not the result of any negligence on the part of Responding Dcfendants, but instead either existed prior to February 29, 1996, or arc the rcsult of th~ pre-existing medical 4 conditions or subsequent injuries ofPlnintiffGrucc Weavcr. 58. If PlainliffGracc Weaver sustained injury and damage as a result ofthc actions or inactions of individuals or entities, liS allegcd in Plaintiffs' Complaint, such actions or inactions wcre of individuals or entities other than Responding Defendants, their agents, servants, or employecs, cnd over whom Responding Defendants neither cxerciscd, nor had the right or duty to e.~ercise, control, and for whose actions or inactions Rcsponding Defendants tlre not rcsponsible or otherwise legally liable. 59. The injuries alleged to havc been suffered by Plaintiff Grace Weavcr as a result of this incident wcre caused or contributed to by conditions over which thc Responding Defendants had no control, and lor which they arc not responsible or otherwise legally liable. 60. The injuries alleged to havc been suflercd by Plaintiff Grace Weavcr as a result of this incident were caused and/or contributed to by thc negligcnce, carelessness and reckiessness of other parties over whom the Responding Delendants had no control, and for whom they are not responsible or otherwise legally liable. 61. The injuries alleged to have been suflered by Plaintiff Grace Wcaver as a result of this incident are not thc result of any negligence on the part of Responding Defcndants, but instead were caused or contributed to by an act of God, specifically extremely wind)- conditions, over which Responding Defendants had no control, and for which they are not responsible or otherwise legally liable. WHEREFORE. Defendants, G. Meml11i & Sons Bakery, Inc. and Stephen Shumaker, 5 VERIFICATION I. Stephen Shumaker, hereby vcrify and state that the facts set forth in the foregoing . docul11ent are true and correct to the best of my information, knowledge and belief. I understand that false statements hcrein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 , relating to unsworn verification to authorities. o""1l'lp f~U umaker ~ J GRACE A. WEAVER und MERLE E. WEAVER, hcr husband, Plaintiffs IN THE COURT OF COMMON PLEAS . OF CUMBERLAND COUNTY, PENNSYl.VANIA CIVIL ACTION . LAW v. G. MEMMI & SONS BAKERY and STEPHEN SHUMAKER, Dcfendants No, 97-6926 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 Matter of Defendants, G, Memmi & Sons Bakery, Inc. and Stephen Shumaker, to Plaintiffs' Amended Complaint upon the person(s) and in the manner indieated below, which service satisfies the requirements 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. Bo)( 60545 Harrisburg, P A 17106-0545 (Counsel to Plaintiffs) C. William Shilling. Esquire Harrington. Kaufmann & Shilling 100 Pine Street, Suite 300 Harrisburg, P A 17101 John Flounlacker, Esquire Thomas. Thomas & Hafer P.O. Bo)( 999 Harrisburg, PA 17108-0999