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HomeMy WebLinkAbout98-00374 i I , . , 'J I I I ~ , I , , . ~ H I .. ~ , ... ':. , \l i , ~ ~ ~ , ...... \t ~ ~ ')000.... ....Q ~ ,lti / ~ '- ~ :- .:) .. <::J BARBARA J. ELERBY, Plaintiff v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIYIL ACTION - LAW ALLENBERRY, INC., ALLENBERRY ON THE YELLOW BREECHES, ALLENBERRY RESORT INN, Defendant : NO. 98-374 : JURY TRIAL DEMANDED PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARYJUDGMENT PROCEDURAL HISTORY Plaintiff's instituted the above-captioned action on January 21, 1998 via Writ of Summons. On May 17, 1998, Plaintiff filed a Complaint against the Defendants. Defendants filed an Answer and New matter to Plaintiff's Complaint on June 5, 1998. On June 15, 1998 Plaintiff filed an Answer to the New Matter, On October 5, 1998 Defendants' took the deposition of Plaintiff Barbara J. Elerby. On or about February 4, 1999 Defendants' filed a Motion for Summary Judgment. II STATEMENT OF FACTS On or about Sunday, January 21, 1996, Plaintiff Barbara Jean Elerby arrived for a work-related conference at Allenberry on the Breeches, which is under the exclusive ownership and control of Defendants. At the beginning of the week of January 21, a snowstorm had occurred. On Wednesday, January 24, 1996, while attempting to exit the Stone Lodge at Allenberry on the Breeches, Plaintiff slipped on an isolated patch of ice covered with "kitty liter/anti-skid" located directly in front of a step which led to the street level. As she tried to maintain her balance, Plaintiff heard a pop, felt a sharp pain, and twisted her right knee, Plaintiff testified that a light rain had been falling that morning but not at the time of the accident (Plaintiff's deposition at 40). Plaintiff also testified that in the general vicinity of Allenberry on the Breeches there was "a lot of snow in a lot of different places, and there was ice in some other areas," (Plaintiff's - 1 - deposition at 49). Plaintiff had used the walkway leading from the Stone Lodge to the street level many times during her stay at the resort without noticing any Ice or having any difficulties walking, (Plaintiffs deposition at 45). Plaintiff also Indicated the entire walkway was covered with the "kitty liter" and she did not see the patch of Ice prior to her slip. (Plaintiffs deposition at 44). Plaintiff immediately filed an accident report with the receptionist and reported the accident to her immediate supervisor, Carolyn Giddings. Immediately fOllowing the accident and thereafter, Plaintiff experienced pain when walking, sitting or standing for a protracted amount of time. Plaintiff was unable to leave her residence to go to work for an entire week fOllowing her injuries. In February of 1996, Plaintiff began phYSical therapy but was still in pain and suffering from limited mobility by the fall of 1996. On January 9, 1997, Dr, Timothy Janeway performed exploratory surgery on Plaintiffs right knee and discovered that she had recurrent patellar subluxation with early patellar chondromalacia. On March 27, 1996, Plaintiff underwent surgery to correct the problems with her knee and to reduce the likelihood of a total knee replacement in the future. Following the surgery, Plaintiffs doctors did not clear her for return to work unlii November 7, 1997. Although Plaintiff was finally allowed to return to work she continues to experience difficulties including but not limited to, difficulty walking stairs, relying on a cane for walking long distances, using an elevated toilet seat and difficulties in driving and performing the routine duties of her employment. III ARGUMENT Summary jUdgment is proper when the pleadings, depositions, Answers to Interrogatories, admissions on file and Affidavits demonstrate that the exists no genuine issue of material fact and the moving part is entitled to judgment as a matter of law. Pa,R.C.P. 1035.2, In determining whether to grant summary jUdgment a Court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Id, -2- Defendants move for summary judgment on three separate grounds: a. That the Hills and Ridges Doctrine prohibits Plaintiff from proceeding in this action; b. That Plaintiff can not maintain this action because the ice patches were an open and obvious condition which relieved Defendants from a duty of care; and c. That Plaintiffs assumption of the risk bars her from the cause of action as a matter of law. A. The Hills and Ridaes Doctrine does not bar recoverv in this case, In Pennsylvania the general rule is that "there is no liability created by a general slippery condition on the sidewalks. It must appear that there were injurious conditions due to ridges or elevations which were aI/owed to remain for an unreasonable length of time, or were created by Defendants' antecedent negligence." Rinaldi v, Levine. 406 Pa. 74. 78. 176 A.2n 623. 625 (1962). The policy behind this general rule is clear: Requiring ones walks to be free of ice and snow would impose an impossible burden in view of the climatic conditions in this hemisphere, Wentz v. Pennswood ADartments. 359 Pa, SUDer. 1.5.518 A. 2d 314. 316 (1986). Where the doctrine is applicable, i.e. where general Slippery conditions exist in the area, a Plaintiff must prove: 1. That snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; 2, That the property owner had notice, either actual or constructive, of the existence of such condition; 3, That it was the dangerous accumulation of snow and ice which caused the Plaintiff to fal/. Rinaldi. 176 A2d at 625. This general "Hills and Ridges Rule" is subject to a number of exceptions, Thus proof of hills and ridges is not required when the hazard is not a result of general slippery conditions in the community, but of a localized patch of ice, Bacsick v. Barnes. 234 Pa. SUDer. 616. 621. 341 A.2d 157. 160 (1975) quoting Tonik v. ADex Garaaes. Incoo 442 Pa. 373. 275 A.2d 296 (1971 ). - 3- "' Because there Is no per se test for determining what rises to the level of a "general slippery condition", the Courts have been reluctant to apply the Hills and Ridges Doctrine to recent slip and fall cases. See Herbst v. Inven Associates. Dauohin Countv Court of Common Pleas. No. 4791 S 1994 at 7. See Attachment "A". In addressing whether or not a general slippery condition existed, the Commonwealth Court in Mahonev Area School District v. Budwash. 146 Pa. Commw. 72. 604 A.2d 1156 (1992), held that no such condition existed where there had been no precipitation two days prior to a fall and where only patches of ice and snow were found to exist. 604 A.2d at 1158. Moreover, In the Herbst case, and the two related cases, Monteith v. Greaorv James Gove and Woltcheck v. Dauohin Deoosit Bank, the Dauphin County Court of Common Pleas found that several sets of conditions were sufficiently in question that summary judgment would be unwarranted on the bases of "general slippery conditions", In Herbst, the Court found that where the Plaintiff "dodged" icy patches and clumps of Ice/hardened snow, and stepped on what appeared to be a dry spot that was actually ice, summary judgment was unwarranted on the basis of the Hills and Ridges Doctrine. Attachment "A" at 2-3, In the Woltcheck case, a summary judgment motion was similarly denied where the parking lot In question was "generaliy snow covered with intermittent bare spots", and the Plaintiff slipped on what appeared to be a section of bare pavement. Attachment "A" at 4, The summary judgment motion was similarly denied in the Monteith case where ice was visible on the streets but not on the driveway and sidewalks and Plaintiff slipped on ice covered with snow, Attachment "A" at 3-4, Summary judgment at this stage is unwarranted because a genuine question exists as to whether or not general slippery conditions existed at the time of Plaintiff's accident. Plaintiff indicated that she had walked the path where she had slipped the entire time during her stay without experiencing any problems. (Plaintiff's deposition at 45), She also Indicated that it had snowed at the beginning of the week of her stay and that at the time of the accident "there was snow In some areas and ice in other areas". (Plaintiff's deposition at 49). Plaintiff also testified that where she had slipped there was a patch of ice, not general slippery conditions. (Plaintiff's deposition at 47). It is clear -4- that In this matter a doubt exists as to whether or not general slippery conditions prevailed at the time of the accident and whether or not Plaintiff slipped on an isolated patch of ice. Because such doubts must be resolved against the moving party, summary judgment Is unwarranted at this stage In the proceedings because the absence of a general slippery condition and the unrefuted testimony that Plaintiff slipped on an Isolated patch of Ice, would bar implication of the Hills and Ridges Doctrine. B. Summarv Judament should not be aranted on the basis of a Restatement &343A "No Duty Doctrine" Analvsis. Pennsylvania has adopted the "No Duty Doctrine" of Restatement 9343A which provides: A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known and obvious to them, unless the possessor should anticipate the harm despite such knowledge and obviousness. Carrender v, Fitterer. 503 Pa. 178. 185.469 A.2d 120. 123 (1983) c1tina Restatement &343A. For a danger to be "known" to the invitee, it must "not only be known to exist, but.. ,also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated," Carrender. 469 A.2d at 123, A danger is "obvious" when "both the condition and the risk are apparent to and would be recognized by a reasonable man, In the position of the visitor, exercising normal perception intelligence and judgment." Id. Summary Judgment on the question of whether a danger was known or obvious Is appropriate where reasonable minds could not differ as to the conclusion, Carrender. 469 A.2d at 123 citina Restatement &328B Comments C and D. Defendants themselves, in their Memorandum in Support of their Motion, raised issue as to the "obviousness" of the danger Plaintiff encountered: - 5 - , \ I I': . . .. , " , ~', I I , , : t" i I I i. 1'0 I ! f ...J ~! I~ I ~ , I I ! 'I ! o. i 1 I . , " ,,~ J " , , I'" Although Plaintiff alleges that she did not see the smalllflat patch of ice prior to slipping, she did testify that when she slepped down from the walkway, she was looking at the ground and watching where she was going. In fact, she stated that she was "extremely cautious" as to where she was walking. Defendants Memorandum of Law at 5 citina Plaintiff's deDosition at 45. 49. This sequence of facts clearly raises an Issue as to the obviousness of the Ice that caused Plaintiff's injury. Contrary to Defendants' assertion, the record indicates that Plaintiff was aware of the "kitty liter" substance in the vicinity of the accident. See Plaintiff's deposition at 46. Furthermore, these facts raise a genuine Issues as to whether or not Plaintiff knew of the hazard Le, the patch of ice obscured by the anti-skid upon which she slipped. There is also evidence in the record that Plaintiff did not appreciate the probability that her injury would occur. Plaintiff had traversed the walkway in question several times during her stay without encountering ice or slipping. Plaintiff's deposition at 45, Because there exists a genuine issue as to the obviousness and Plaintiff's knowledge of the specific hazard encountered in this case summary jUdgment is not warranted under the No Duty Doctrine. C. Summarv Judament is not warranted on the basis of AssumDtion of the Risk Recovery is prevented under Assumption of Risk only where it is "beyond question" that the Plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Barrett v, Fredavid Builders. Inc.. 454 Pa, SUDer. 162. 166. 685 A.2d 129. 131 (1996). Furthermore, the assumption of the risl\ defense is triggered only where a Plaintiff "fully understands the specific risk, voluntarily chooses to encounter it under circumstances that manifest a Willingness to accept it." Berman v. Radnor Rolls. Inc.. 374 Pa. SUDer. 118. 137.542 A.2d 525. 533 (1988). In reviewing the facts in the light most favorable to the non-moving party, it is clear from the record that Plaintiff did not see the specific risk involved in this case, Le, the patch of ice at the end of the walkway covered with "anti-skid material", (Plaintiff's deposition at 44) Unlike the Plaintiff in Carrender v. Fitterrer, 503 Pa. 178. 469 A.2d ", 'J - 6 - CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiffs Brief in Opposition to Defendants' Motion for Summary Judgment upon Franklin W. Noll, III, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the ;' day of~ 999, from Carlisle, Pennsylvania, addressed as follows: Ar! Franklin W. Noll, III, Esquire 401 Penn Street, Suite 100 Reading, PA 19601 TURO LAW OFFICES ld- 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff .. : \ ' -, , , ! I l i ( , , I- I i I I'. I.. i .. '. ". '-\ _ c"-~ '''I \-, {(\JC\ Ivr () /fI {ift YI/{) n {j 1tfY t1- tJ3 (r3 ) "14 FEBRUARY 1991lARGUMENTCmfRT NANCY HERBST, Plaintiff : IN 'rnE COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYLVANIA v. INVEN ASSOCIATES, a Pennsylvllllia General Partnership, Dc:rcndnm : NO. 4791 S 1994 : CrvlL ACTION" LAW ..--_.-._....-~------_......_-.._-_._-_.........._-------.----- #J6 t"EIiRUARY 1998 ARGUMENT COURT WrLLlAM MONTEITH, Plaintiff : IN TIlE COURT OF COMMON PLEAS : DAUPHIN COUNTY. PENNSYLVANIA v. GREGORY JAMES GaVE and JANE MARLENE GOVE, Defendanl~ : NO. 132 S 1995 : CMLACT/ON. LAW ---..--..-...-------...----.-------.--........--.--------------- #24 FEBRUARY 1.9.911 ARGUMENT COURT JOSEPH WOLTCHECK. Plaintiff : IN TIm COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYLY ANIA v. DA()PHIN DEPOSIT BANK AND TRUST CO.. AND E.H. arvLER & SONS, Detendants : NO. 5402 S 1995 : CIVIL ACTION - LAW Before Tuq,ll!un, Lewis And Evan~, JJ. .... 'J ., . OPlNlON In each of thc three abuve-cuptionetl action~. the plaintiff ~[jppec1 and feU un ~Ol1W aJld iL'C and lnstilllled an aclinn against thc pl'OpCrty uwner amJll'r lh~ party rC$JlI'",<ihll': fnr snow and k;e remuval. Defendant,\ in each actiun have filcd .~ununary jUd!;ment motion.. nn the grouml that th~ "hills and ridge~" doctrine preclutlcs plaintifr.~' rccovery. In turn. each plaintiff ha.. ll~,\erted that rh~ hill.. and ridges doctrine is inapplicable sillcft. ill nrder for it tn apply. there must have heen generally slippery conditions in the community. Each plaintiff argues that Lhi. question raises ;t material issue of fact which re4ui~s denial CJf the summary judgment mntilln. FACTS llerb..t: On the morning uf February 23, 1993, plaintiff Nancy Herbsl prepared to deparr fur work. Upon exiting her apartment, en rOute to hcr vehicle, plaintiff nnticeu that the parkin;; lot nppellred to be icy. Apparently MOW had fallen two days prillI' but had bccn removed by snuw pluws that same day. However, temperatures hall ri.~n ahove thc freezing mark on February 22, 1993, lUul hrul fallen !JeJow freezing that evening and into the following day. Thi. temperature change seemed to have arguably caused any "left-over" snow tu melt and then reo freeze thereby causing an iey cnndition. III an attempt to reach hcr car, plaintiff negutiatcu a path by dodging aJlY ice patches and clUmps of ice/hardened .~now. llluJ stepping on "dry Spots" within the parking lot. Upon reaching her car without. incident, plaintiff started it and returned III her apartment fur a ljuit:k bl'l::akra~l. Approximately ten (10) minutes later. plaintiff ellited her npllrtment and proceeded 10 walk to her vehicle by a,l:ain .\teppin,l: on "dry spots". As plaintiff approached her car. she put her fOOl down 2 nn what appcarcd tll be a dry arca. Howcvcr, this arca was apparently cowrcd by a put~h IIf a c1car glazc of icc. causing hcr Il1 .slip and fall, In an attcmpt to .Ioftcn thc illlpa~t. plainut1 ust:ll , her hanll a-, a brace. AI u result, plaintiff sustained a dcep CUI 00 her right hand, a fracturcd nght wrist, lIlultiplc conlUsillrtS anll abr;c;illlls amI 8 thoracic ,sprain/strain. OJo.seyuently. pluintiff filed a Complaint againsl the deCcnllunt ulleging lhal dcfendant was nCl!ligcnt in allowing thc parkin!: Montcith: In the early morning hours of January 12, 1993, plaintiff William Montcith, whil~. b r I ~ I ~ I I'!~ t I lilt to become coverell with ice and snow, thereby ~ausing a dangcrous cundition. walking his dog. fcll on thc siucwulk adjacent to the driveway of the home owned by Defenll,U1ls Gn:guf)' and Janet Gove. He allege., that he fell duc to WI uccumulation of Sl10W and ice nOI remuvell lly defcndants. The weather repllrt.s illlliculC on J8111101')' I). u half an inch of snow had fillen and on ]WllIllry 10, nearly an inch of snow. However. only a trace fcll on January 11, Ihe day before the accident and on January 12, there was JI(J .snow report~.d to have fallen:' However. the Lower Paxton Township Publl~ Works Deparuuelll was out salling and cindering the arca on thc morning of the incident beginning at 3:30 a.m. and the Harrisburg Palliot News that morning indicated that freezing rain WU,I present. Mr. Monteith indicated in his depllsition that when he awoke on the morning of January " 12, there was nothing coming down at that time in the form of precipitation. Although he claim~ that i<.:e wa.'; visible 011 the streets, he maintain.l that there was nothing nn his urivewuy nnd rh,~ sidewalks were clear a~ he wKlked up to the point where the Gove prnpeny i~ located. As MI'. I ~ : i Mooteith approa~hcd the Gove property he saw ice and snllW; h'-lwever, he claims that he did not know how bad it was until after he t~l1 WIU was lying 011 the sidewalk. attempting to get back un 3 hL~ feel. A~ he was crawling on the grass, Mr. Monteith noticed icc at the locution of hi.~ rull. He claims that he did not anticipate this ice because it was coverl\ll with snow, As a result ot' the lull, Mr. Monteith rece.ivell u .~crious injury to hi.~ Icft ,~houldcr. Wnltcheck: On February I, 1994, plaintiff Joseph Woltcheck arriveLl at the Derry Street branch I . ! ; of Dauphin Deposit hank III inspect renovations 111 a snack har insiLlc thc building. During the [I , I pn:viou.~ night, the area had rceeived a .\mall accumulation of ~now. The precipitation continued illlo Lhe mrl11uJlg of February I, 1994. i\1though the we:uher hnt! ch:ored aJld it war. 5ullny for a largc portion of the day, it rcmained very cold. After arriving at Dauphin Dep"sit, Wnltcheck parkeu hL, truck in the parking area adjacent to the building, Defendant Givler and Sons was responsible for snow and ice removal of the parldng area. Woltche.:k nr,ticcd the parking lot was gcncrally snr,w covcrcd with intcl'lnillclIl barc SpOl~. He did not nb~erve any Ice on the parklng lot or any weather related obstructions blocking hi~ path, After exiting his truck. he walked to the huilding housing the snack har withoul incideot. Upon leaving the builLling, Woltchcck proceeded ()ul.~ide to complctc adLlitional inspections. As Wolteheek reached the camel' of the building. he stepped Onto what he thnughl wa.~ a six foot long, three fOOl wide area of bare pavemem. Wolteheck did nOI believe the arCH was slippery. When he stepped on the bare spot, he feU. After hi~ fall, Woltcheck (Jbserv~d the bare spot again and saw nothing indit:uting the .~pot WI!., slippery. Woltcheck then touched th~ hare sput. Although tlte SPO! looked like macadam pavement. it fell like ice. Wultcheck n:guineu hi~ fcet, tini,hed his inspection and returned to the snack bar inside the boilding. Mtcr the fall, 4 \ "' .~ Wultcheck began to tecll1i~clJmflJrt in his feet, ankles and back. This pain became worse dUring th~ night, anu he sought medicultreatl11cnt the next morning. As a resuh of tili fall. Wulteheck filed a Complaint against the defenuanl.\ uUeging that hi~ fall anu sUhsequent injuries occurred '1.\ a result of their negligence. LEGAL DISCUSSION Summary judgment i\ proper when the pleadings, depnsitioll.l, answer.~ to interrogatories. admissinns un file, and affidavits dem(lIl.~tratc that there exi~ts no genuine issue of material tuct and the moving plllty is entitled 10 judgment as a matter of law, Pa.R.C.P. 1035,2, 42 Pa.C.S.A. In determining whethcr to grant summary judgment. this coun must resolve all duubl.\ against the moving party and examine the record in a light mnst favorable to the oon-muving party. Id. Defendants move for .\nmmury juugment nn the grounds that the undi~putcu facts establi.~h that a generally slippery c(,ndition existed on the parking lot/sidewalk surfaces where plaintiffs llllegedly fell. Because generally ,\lippery conditions existed, defendants argue that the plHimiff., CllJlnllt recuvcr for Wly damages 1'~.sulting frnlll their fall I1ccuuse the snow a.nd ice had nllt accumulated into ridges or elevations of stich chllracter to constitute an obstruction tlItravel OJ' a danger III pedestrians. Therefore, uefemJants sepurately argue that, under "the hilh and rid~es doctrine," they are mil liable where a general slippery conditioll causes the fall. Plaintiffs separately argue genuine issues nf material fact exist lL' to whether or not general slippel')' cunditions existed. The hill~ and ridges doctrine proviues that an owner or occupier' uf land Ls not liable for fa1.ls occurring un his or her pruperty where generally slippery cl.lJlditlon\ exi.~t. uole.~s the 0""'1\,,1' 5 hu.~ permillcli the ice and snow tll unrea.~l1nably aC~lIlDulate in rillge~ nr clevalilln.~. M'Jnll_ Truvclers Resl Motel, In~., 704 A,2ll IO~S, IlJR7 (Pu. Super, 1997): HarJll~Jltu v. Bender, 411 I'u. Super. 371, ciOl A.2d ~37 (1992), i!I1QW llenic;ll. 530 Pu. 655, fillll A.2d JU (1992). The polil:y behind the doctrine is clcar: to requirc thut lInc'.~ walks should always be free (If iee :lJId MOW would impose WI jmpCJ:\.~ible burden in view of the climutic cunditions in this hemisphere. Wentz v. Penmwuud Auartl\lenL~, 35!1 Pa. Super. 1,5.518 A.2ll 314, 316 (1')86). Where, the doctrine is npplicahle. a plaintiff mustlll'ov,~: (I) that snow nnd ice had accumulated on the sidewalk in ridges or e!evatioru; of such size and char~cter liS to unrca.~llnilbJy obstruct travel and constitutc a danger to pedestrian.~ traveling thereon: (2) that the propeny owner had nOlice, either actual or consrn1crive. of thc eJ.istence of such condi tinn: (3) that it WII5 the dangerous accumulation of snow and icc which caused the p11lintiff to fall. RiIlaJl1i -, Lc:_ille, 4(j(, Pa. 74.78,176 A.2d 623. 625 (1962) (citutinns omilled). J lowever. the hill~ and ridges doctrine applies only where there is a generally slippery condition at the time of a.n accillent. Rinaldi v. Levine, ]76 A.2d at 625, The ducuine may he applied only in cases where the snow and ice complained of are the result lIf a recent snowfalltha[ rc"ults in UIl entirely natural accumulation, Harmolta v. Hender. (,111 A,2d at !l41 (citations omitted). Thus. proof of hills and ridges is not nece.~,,1C)' when the hazard is nut the result of a generally ~lippery conuition, but originates from a k.calizcd patch of ice. 1l1, (citing Tnnik.:L. Aoex Gara[!e~. In(;., 442 Pu. 373. 275 A.2u 296 (1971)). (j ,. before dcfcnuanl cuulu have hecn clpeclell tu kmlW abuut the eAi~te"cc of such lL t:l1nllitiun, II the icy conllitiun of the parking lot \/1:1.1. in fact. the rC~L1lt of n recent s"uwfall c(,mbinell with immediate fluctuatinG temperatures, a general ~lippcry condltloll may hil.vC e)<,l~tt:d anti the, "hills anll ridges" doctrine wuuld apply, Hllwever, therr, I.~. un the other hand, te5tUnllny given by plaintiff suggesting that an Icy t:lllldition t:(I115l~te"t1y e,uslell on the PliJ'king lot throughout lhr entire winter due to pllur maintenUJlce. If su, applicatiMllf the doctrine may not be pennittel1. Cllnsequemly, it is our tinding that a CJllc~tion remains as III whether plaintiff s fall was caused by the nlltural at:culUul.1til1n of it.:c folluwing a recent snllVlfll1l. ur a dangerous icy cundition whicil \/IllS a.llowed to re.llulln fur an unreasonable l~ngth of time, Thl~ qucstion can only lw. answered byajury. Delcndant's flfli11 cllOtentiulI is that pluintiff a'iSume(llhe risk of her injuries DY pl'oceelling to vuluntarily encllunter Icy conditions which were lIhvillUS. Such determination shuuld occur unly where it l~ beyond qur..~tion lllat the p1uintiff wlllntarily and knowingly prut:ecded in the face of lII1 obvi\llls and dangerous condition, Barrett 'I. Fredavid Builders. lnc.. 685 A.211 129. 1 ~O (Pa. Super. 1996). In light of the testimony given by plaintiff, we are unclear a.~ to extlctly how "obvious" the icy condition uuly wa.~ as it existed on the parking lot. Funhermul'c, we strongly believe that where rea,lonab1e minds could \liffer as 1I) the conclusion, the issue of whether a plaintiff a."-Illmell the nlk IIf her injurit:s l~ better left for llie determination of a jury. Sr.e. 11.)1. Kaolan 'I. Exxon COr1loration, 126 F.3d 221 (3'" Gr. 1997). 1t is our belief that a differing of condusiuns could reusonilbly occur in this ca~e. l:I . Montcith: In vicwing the lu~t~ most favorable tu the nun-mllvlng IJany. an issue e",ist, a.~ III the weather conditilln.~ in the ~lImmunily althe time. of the uecil1ent. A1thuugh there L' u rep(HI lIt' nil ~igniticunt snllwfall mnre than 24 hours prillI' 10 plaintiff's fall. thcre l~ evidence of freezing rain IIn that nllll'lling, Ile\:uuse plaintiff maintains thaI he dCle.~ nut recall the rain, hL~ testimony. along with (;unllictillg weather re~ords, proviue.~ an i,.~ue of fac!. If precipitation feU the morning of January 12 whic.:h (ausel1 an ice patch tn fornl oofore detendants could be expected to know about it, plaintiff may not recover, If the patch woo, there long enough for tlctt:lIl:lanLS to knuw of illlr they should have knuwn of it, then plaintiff may recover. Those are issues of facI thaI a jury must decidc. Defendants further argue that plaintiff knowingly ami voluntarily encountered the snuwy alld ky c.:onditions of the siutlwalk and therefore the doctrine of assumption uf the risk ,~hou 111 apply thereby relieving defem.lnntl\ of any duty to him for a slip and fhll on the ice. Howevcr, lhe tJelermination thul the plaintiff has asslImeu Ihe risk CIf his injurie~ such that recovery 3 prevr.nled should Occur only where it L~ heyond question that the plaintiff voluntarily and knowingly pwcecded in the facc of an obvious and dangerous conuition, Barrett v. Fredavid Builders. Inc.. !illS A.2d 129 at 13U (pa. Super, 1996) (citations omitted) (cmphll~is added), In the present ea-;p.. it i~ not clear just how obvious rhe ice was on which Mr. Munleith fell T1L~ testimony indicates that while he S:iW somc ke locatl\t1 on the Goves' propcny, he alsu rT1aiJl[ain~ that thcr~ was D lot uf "gray" ice present that wu.s covered with .mnw. Mnreover, plaintiff hns raised issuc., concerning liability and assumption of risk which shlJulu al~n bt: submiucd tilr a juri.~ de[errnin~tion and arc only granted summary judgment in eases [hill are clear !lud free from doubt. Wr.l.~h v. Bur~er.1l911 A.2d 581 (Pa. 1(97) (citations omitted). 9 , ' '. , 'I i #14 FEBRUAKY IWlI ARGUMENT COURT NANCY HERRST, Plaintiff ; IN THE COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYLVANIA v, [NVEN ASSOCIATES, a PeM~ylvanin Genera.! Purtncrship. Defendant : NO. 4791 S J994 : CrvlL ACTION - LAW Before Turgeon, Lewis And Evans, JJ, ORDER AND NOW, thi~ 30lb day of Murch, 1998, Detendwll's Mmlon for Summary Judgment is hercuy DENIED. '. BY THE COURT: Sf IE, Scntt A. Evans, Judge Distribution: JenniferM. McHugh, Esquire. P.O, Rox 1/46, Harrisburg, PA 17108-1146 W. SCott Hcnning, Esquire. P.O, HllX 1177, 319 Market Strect, Harrishurg, PA 17101l /I #16 FEBRUARY 19911 ARGUMENT COURT WILLIAM MON'l'Em--i, Plaintiff : 1N TIiE COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYLV ANIA v, !i : NO. 132 S 1995 !! GREGORY JAMES GaVE and JANE MARl.ENE GOVE, Defendants : CIVIL ACTION . LAW Before Turgeon, Lewis And F.Vlll1li, JJ, ORDER AND NOW, this 30'h day uf March, 199~, DefendanL~' Motion for Summary Judgment is hereby DENIED. BY THE COURT: SI JL Richard A, Lewis. Judge Distribution: John R. MHm:kr., F.~CJ., 2233 N. Front Street, Hbg.. PA 17110 Lisa M. DiBernurdo. Esq.. 110 S. Northern Way, York. PA 17402 12 "' # 24 FEBRUARY 19911 ARGUMENT COURT JOSEPH WOLTCHECK, Plaintiff IN TIlE COURT or COMMON PLEAS : DAUPHIN COUNTY, PENNSYLVANIA v. : NO, 5402 S ] 995 DAUPHIN DEPOSIT BANK AND TRUST CO., AND F..H. CiIVLER & SONS, [)efl:ndant~ : CIVIL ACTION - LAW Before Turgeon. Lewis And Evans, JJ, ORnF.R AND NOW, thi~ 30th dny of March, 199M, Defendants' Motion for Summary Judgment is hereby DENIED, BY Tllli COURT: S I IT Jeannine Turgeon, Judge nislrihutilln: Archie Diveglia. E.~q., 119 Locust St., Hbg.. PA 17101 Robert Teplitz. Esq.. !',O.R. I lIili. Hbg.. PA 17108 Slephen Ueduldig. E.~q.. P,O.B, 999 Hbg.. PA 17108 , , ! i ; ; , \ 13 -' ,\: , . ., " _,,:,_-;",<:;\,'i:.:/-'.>,.,-'-,._- ..,.\,<;.,,:':~:,~',-';:;':;;:;'~lrl~~. l~ ", """""FEB'l'l'1999"'-""""I.\'Ii. , '," ',',,", _:;: _,i >;'.'.-:;' ~ 0';; -', '\<, , .',', ~', :, ;".i;'"'r~:.~,;.',,,:'" ;,r , ,. \ \ _', >.,.;j .. ...<..t~.~...,.:.t '_,I ", _ .' , .'-" ",>,." ,,,. ,.,(~ I., . '. _ ,_ ".f",_ _ ..,', L. '.l,...,;,r", r..!.\ .' _._, .",.', ,,', _ ',~. ., ""',, . ".' ," '-!. " '\.._'~ '-'If'*\f;.'}'~'' '.,,""('I'~'"k~~..~.;~d,''''''' ',-. .:,-..,( .-,',' ," --~,:\:)" ,', """,c'. -'''~!' . :_ "I,j;t~~(~~~~1~'~tJt;;?\?\1t~I~11-~Wl!~;;;'~J:4t,f,:;.~3 t'; ,: ,/_:~_.it<.;:_:,..:.,:;,_lt:';'5~'~,\:::<',i:\'!i ~,T.~~/' '.,r: t,;~r;.\.':', ,oil1:~.!{t,/:%,,?,,~r{:~'l;1t~~~ g~))P~~}!p,. ,,'J,h,: ih,'~'~ ,,', ,'. !.':_; ',' '.;:;;./.' ,'~ ...... :.-,;It:,./_ ~i"'>=j,;(.. ,,,,--,"', ...:.4t1:~..,,,,.", '{'l'l"'.".,,,~,,,..p.- '.-i~I':I...., '!'l'-'" ,,;,, -, ,.' -, "'-,., ' ' ". , It , , " . , (A) STANDAIW FOR SUMMARY JUDGMENT Pcnnsylvonio Rulc of Civil Proccdurc 1035.2 cffeclivc July I, 1996, statcs: "allcr thc rclcvonl plcadings arc closcd, hut wilhin such timc as 10 not um'casonobly dcloy trial, ony party may movc for Summary Judgmcnt in wholc or in port os amottcr of low: (I) whcncvcr thcrc is no gcnuinc issuc of any motcrial foct os to 0 ncccssary c1cmcnt ofthc cousc of oct ion or dcfcnsc which could bc cstoblishcd by odditional discovcry or cxpcrt rcport, or (2) if, allcr complction of discovcry rclcvontlo thc Motion, including thc production of cxpcrt rcports, an odvcrsc porty who will bcar thc burdcn of proof oft rial hos failcd to producc cvidcncc of focts csscntiolto thc cousc of oclion or dcfcnsc which, in ajury trio I, would rcquirc thc issucs to bc submittcd to ajury. Rulc 1035.2, cffcctivc July I, 1996, scts forth thc gcncral principlc t1lOt a Motion for Summory Judgmcnt is boscd on an cvidentiary rccord which cntitlcs thc moving porty to judgmcnt as 0 mottcr of law. Thc cvidcntiury rccord may bc onc of two typcs: Under subparagrnph (I), thc rccord shows that thc matcrial focts orc undisputcd and, thercforc, there is no issuc to bc submittcd to o jury, An cxomplc ofa motion undcr subporagrnph (I) is a motion supportcd by a rccord containing an odmission. By virtuc of the admission, no issuc of fact could bc establishcd by furthcr discovcry or cxpcrt rcport and, to dcfcatthis motion, thc advcrsc party must comc forth with cvidcncc showing thc cxistcncc of the facts ccntral to thc causc of action or dcfcnsc, Notcs and Court Rulcs, appcndcd to Pcnnsylvania Rulc of Civil Procedurc 1035.2, effcctivc July I, 1996, Finally, thc moving party has thc burdcn of proving that no gcnuinc issuc of matcrial facts cxist. Ovcrlv v. Kass, 382 Pa. Supcr 108. 554 A.2d 970 (1989). Howevcr, thc non-moving party may not rcst upon avcrmcnts containcd in its plcadings; thc non-moving party lIlust dcmonstrnlc that thcrc is a gcnuinc issuc for trial. llh (8). HILLS AND RIDGES DOCTRINE Thc Doctrinc of Hills und Ridgcs providcs thut un uwncr ur uccupicr uf lund is nut Iinhlc for gcncl'lllly slippcry conditions. To rClJuirc thut onc's wulks bc ulwuys frec uf icc und snow ,'1 ", " would bc to imposc un impossiblc burdcn in vicw of thc climutic conditions in this hcmisphcrc. Snow und icc upon u puvcmcnt crcutc mcrcly trunsicnt dungcr, und thc only duty upon thc propcrty owncr or tcnunt is to uct within u rcusonublc timc uOcr noticc to rcmovc it whcn it is in u dungcrous condition. Gillil!un v. Villunovn Univcrsitv, 40lPu, Supcr 113, 116-117,584 A,2d 1005, 1007 (1991). In ordcr to rccovcr for a fall on un icc- or snow-covcrcd sidcwulk, a Plaintiff must provc thc following: (I) that snow and icc had uccumulatcd on thc sidcwalk in ridgcs or clcvations of such sizc or chaructcr us to unrcusonubly obstruct tmvcl und constitutc a dangcr to pcdcstrinns tmvcling thcrcon; (2) that thc propcrty owncr hnd noticc, cilhcr aclunl or constructivc, ofthc conditions; (3) that it was a dangcrous accumulation of snow und icc which cuuscd thc Plaintiff to fall. i , , See Gillil!an, supra. See also, Giosa v. School District ofPhiladelohia, 127 Pa. Cmwlth, 537, 540.41, 562 A.2d 411, 413, alloe. dellied. 525 Pa. 629, 578 A.2d 416 (1989). Finally, in Tonik v. Apcx Garal!cs. Ine., 442 Pa. 373, 275 A.2d 296 (1971), the Pennsylvania Suprcme Court addressed thc applicability of the I'lills and Ridges Doctrine. The Court stated...i!!lQr alia, "proof of hills and ridgcs is necessary only when it appcars that the I accident occurred at a time when gencml slippery conditions prevailcd in the community...... 275 A.2d at 298. With these well-establishcd principles in mind, we turn this Honorable Court's attcntion 1 i to the casc at bar in ordcr to show that Plaintiff cannot recovcr against Defendants in this action. I. I' t i bascd upon the \-lills and Ridges Doctrine. , ~ r, l.; ~' Plnintiff Icstilicd tllllt shc was al Dcfcndanls' propcrty for a busincss confcrcncc approximatcly onc wcck. During Ihis timc period, shc notcd that a snow storm occurrcd carly in thc wcck, Thcrcallcr, an anti.skid matcrial was placcd around thc propcrly and on thc walkway/macadam whcrc shc cvcntually slippcd. Of important notc, this anti-skid matcrial was placcd on thc walkway/macadam "prior" to PlaintilT's slip. Although Plaintiff did not cxpcricncc any problcm slipping prior to thc datc of thc accidcnt, shc notcd that on January 24, 1996, shc cxitcd thc stonc lodgc to pull hcr car c1oscr. Thcrcaftcr, shc wcnt into thc rcsort and carricd hcr pursc and garmcnt outsidc to hcr car. As shc cxitcd thc stonc lodgc, shc stcppcd off thc walkway and hcr right foot camc in contact with a small, flat icy patch that was covcrcd with anti-skid matcrial. Although Plaintiff statcd shc was looking down at thc ground whcn hcr slip occurrcd, shc claims shc did not scc thc icy patch or anti-skid matcrial prior to stcpping on this surfacc. Finally, although Plaintifi' statcd shc did not scc thc smalltnat patch of ice prior to slipping, she notcd that the ice patch was "not rcal big" and thc ice patch was flat. As a result of the aforcsaid, thc Plaintiff has failcd to prove the rcquisite elcments rcquircd in the Hills and Ridges Doclrinc, due to the fact that there is no cvidcnce of rccord that snow and icc accumulatcd on Dcfcndants' propcrty in ridgcs or clevations of such sizc or charactcr as to unrcasonably obstruct travcl and constitutc a danger to Plaintiff. In addition, therc is no cvidencc of rccord that thcrc was a dangcrous accumulation of snow or icc which L~ , causcd Plaintiff to slip and thcrc is no cvidcncc of rccord that Dcfcndants' did not act within a reasonablc timc aftcr noticc to rcmovc or attempt to rcmovc thc smalltnat patch of ice. In fact, Plaintiff tcstilicd that thc smalltnat patch of ice was covcrcd with anti-skid matcrial prior to hcr f accidcnt. Thcreforc, Dcfcndants' act cd as a normal and rcasonable busincss cstablishmcnt would in clcaring thcir propcrty and covcring thc smalltnat patch of ice with anti-skid matcrial. ~. ., I t Consequently, PlaintilT fails to mainlnin a cause of IIclion bnsed on the II ills IInd Ridges Doelrine and Summary Judgment must be granled. (C) PLAINTII'I' CANNOT MAINTAIN A CAUSE OF ACTION BECAUSE THE ICE PATCHES WHICH SHE I'ELL WAS AN OPEN AND OBVIOUS CONDITION WHICH RELIEVED TilE DEFENDANTS FROM A DUTY or CARE. Under the "no duty" doctrine, a land owner or possessor has no dUly to protect an invitee from a known or obvious hazard. Under Pennsylvania law, a danger is considered "obvious" when the condition on the land which creales the danger and the danger arc apparent to and would be recognized by a reasonable person in the position of the invitee exercising normal perception, intelligence and judgment. Carrender v. I'itterer, 503 Pa. 178, 185,469 A.2d 120, 123 (1983). I'or a danger to be "known", it must be known to exist and the gravity of the threatened harm must be appreciated. (d. at 185,469 A.2d at 124. In "no duty" cases, a defendant is not liable if a reasonable person in the position of the Plaintiff would have I , , recognized the danger, or if Plaintiff did, in fact, subjeclively appreciale the danger. Berman v. Radnor Rolls. Inc., 374 Pa. Super 118, 542 A.2d 525 (1988). I'inally, questions of whether a hazard is known or obvious may be decided by a Court on Summnry Judgment where rensonable minds cnnnot differ. Carrender, 503 Pa. 178,469 A.2d at 124; Himes v. New Enterprise Slone nnd Lime Co., 399 Pa. Super 30 I, 582 A.2d 353, 358 (1990). Although Plaintiff nlleges she did not see the small/nat patch of ice prior to slipping, she did testify that when she slepped down from the walkway, she was looking down at the ground nnd watching ~ r I I. f where she wns going. In facl, she staled Ihnl she wns "extremely enulious" as to where she wns wlllking. See Exhibit "A" nt45, 49. Nevertheless, Plnintiff clnims she did not see the nnli.skid malerial covering the small/nat patch of ice until atier she slipped. Due to the fact thai Plaintiffstated thnl there was anli-skid mnterinl placed nround Defendnnts' property, couplcd wilh the lactthal I'lninliff stnted she wns looking down nnd "very enutious" when she ,,,,0' IInother route, PJlliulifJ'lIelively elleoulIlered IIn open IInd ohvious eondilion (to Wil, II smallllllll patch of iee eovered with IInli-skid mllterial) IInd Plainliff is held to hllve IIssumed the risk of IIny injury thlltmight '. hllv,: resulted from her 1I':lions. Therefor.:, Summllry Judgment musl he grunted. Respeclfully suhmilled, runklin W. Noll, ~ e 1.0. No. 40 I Penn Street, Suite 100 Rending, PA 19601 Tel. 610-320-4012 AlIorney for Defelldanls, Allenberry, Inc., Allellberry on The Yellow Breeches, and Allenberry Resort Inn i r\ " ~\. ,. " ii l it I. i i .\ 1 ! 't , '. . 8, This localized patch of Ice had been covered with a light brown, gravel like material used to prevent cars from skidding. 9, The localized patch of Ice was not visible to Plaintiff because It was completely concealed by the anti-skid material. 10. The general conditions prevailing In the area where Allenberry on the Breeches Is located were not icy, but rather, some Isolated patches of Ice remained from previous winter storms, 11. There was no handrail beside the steps where Plaintiff slipped. 12. Plaintiff was wearing winter boots, and not high heels. 13. There were no posted signs warning of the presence of a localized, concealed patch of Ice directly below the steps. 14. Neither Plaintiff nor others attending the conference were given verbal warnings concerning the presence of a localized, concealed patch of ice directly below the steps. 15. Plaintiff filed a "Report of Customer Injury" with Allenberry on the Breeches that same day shortly after her slip. A true and correct copy of this report is attached as "Exhibit A." 16. Plaintiff was unable to leave her residence to go to work for an entire week following her injury. 17. Plaintiff began physical therapy in February, 1996. 18. By the fall of 1996, Plaintiff was stili in pain and suffered from limited mobility, despite the ongoing physical therapy. 19. On January 9, 1997, Dr. Timothy Janeway performed exploratory surgery on Plaintiff's right knee and discovered that she had recurrent patella subluxation with early patellar chondromalacia. 20. On March 27, 1996, Plaintiff underwent surgery to correct the problems with her knee, and to reduce the likelihood for the need of a total knee replacement In the future. The type of surgery performed was an open lateral release of the right patella with a Houser transplant at the tibial tubercle. 21. Following the surgery, Plaintiffs doctors did not clear her for return to work until November 7, 1997. 22. Although Plaintiff was finally allowed to return to work, she continues to experience difficulties including, but not necessarily limited to, the following: a. difficulty walking stairs, b. must rely on a cane when walking long distances, c. must continue to use an elevated toilet seat, which creates ;1 :/ ~ t: " ,\ , ~ I , I, _ problems for her when she Is not at home and doesn't have access to such a seat. COUNT I NEGLIGENCE 23. Paragraphs 1 through 22 of Plaintiff's complaint are Incorporated by reference as if fully set forth herein. 24. Plaintiff was a business invitee of Defendants, In that she was invited and " permitted to enter the premises owned and controlled by Defendants for a purpose connected with business dealings between Plaintiff and Defendant. Phillips v. Winters' Cleaners & Tailors. Inc. 344 F.Supp. 1040 (E.D.Pa. 1972). :' . 25. The business dealings Involved Plaintiff's attendance at a conference held on the premises under Defendants' exclusive ownership and control. 26. Defendants are and were at the time of Plaintiff's Injury In the business of renting their premises to groups holding conferences. 27. Plaintiff's employer rented the premises from Defendants for the purpose of holding a conference which Plaintiff attended. 28. Defendants owed Plaintiff, as a business Invitee, the highest duty to any entrant upon their premises. Rippee v. Grand Vallev Mfq. Co., 762 F.2d 25 (C.A.3 1985). 29. Defendants had a duty to Plaintiff to use care to not Injure her by negligent activities, to warn her of latent dangers of which Defendants were aware, to inspect the premises to discover possible dangerous conditions and to take reasonable precautions to protect her from foreseeable dangers. Montaperto v. Split Rock Resort, 765 F.Supp. 852 (M.D.Pa. 1991). 30. Defendants breached their duty owed to Plaintiff in that: a. Defendants were negligent in failing to remove the localized patch of ice on the street immediately in front of the steps, causing a dangerous and hazardous condition which caused Plaintiff's injuries. b. Defendants were negligent in failing to provide a handrail next to the steps to prevent the foreseeable danger that someone may slip on or beside the steps. \ , I ~ , I ! ,., I i " ! ~ . c. Defendants failed to provide Plaintiff with any verbal or written warning of the latent danger posed by a concealed patch of Ice Immediately In front of the steps. 31. Defendants' breach of their duty owed to Plaintiff proximately caused plaintiff's injuries, In that she slipped on ice which Defendants knew of or should have 32. Plaintiff's damages proximately caused by Defendants' negligence ~ : I I I I ~ known about, yet failed to remove and Defendants did not make Plaintiff aware of the danger posed by the concealed Ice. Include the following: a. Lost wages totalling $19,730.29. A true and correct copy of b. Medical expenses totalling $40,152.75. A true and correct copy ~ r~i I' I' Plaintiff's worker's compensation payouts is attached as Exhibit B. of Plaintiff's medical expenses are also contained in Exhibit B. C. Future medical expenses which are, as yet, unascertainable. d. Future lost income which Is, as yet, unascertainable. e. Pain and suffering reducing Plaintiffs overall quality of life. f. Inconvenience In that Plaintiff must use an elevated toilet seat, l I , . I,~ , use a cane when walking long distances and has difficulty using steps. " . I \ 10'." j i.- I~ . , , I I I, I I " I , I I '. '." ......'- ~ '. Po O. 80., 7, B/Jilin, Sprlnll', Prnns,/r.ni. /7007-11007 RUORT OF' CUSTOllER IIUUa, III.JlIREQ PERSOlh C' /. .~7t7r"o.<fI.r?J Jii'1L r.;;,.L1' .. :'l-%._. a 1 /P7 /:J<~<)v??P- -#17~7 (addressl /~~~&th' ..-i:'7J / r \.:> / - ./ Ictty, 'Stat., and Zlp codel Ag... ~ Sex,c- T~lephone ~ ~ (.;) rJ lIat.ure 01 ;injury 7(/ZJ/Pd ~,,~ RtjV If'''iC~Trw.t._ntyQ~1d~ ~~ tl/t4j~i~.. $// 9CJ ~/Z"~/2 '5:/;? ~... . ::';Y;;;':~~t:. ~ 1~'dCl' J.ocat.1oJl ",ot:"'?/J 07 'Ill ./fd'fL ?QcUUO(?~d~>>oCjt1on ~fe, 1,,/f 7~~hj/ /Y4IA /( '" '7';~ :;> y::r-; .' ,r ~ .. D . , .s; ~ro~ab. e Cau_ Q . Property Oa..g_ ~ t "E,..~.... -. (na_1 laddre..' Ite.lephonel Ina_l laddr...l (t.elephDn..) (na_1 Itel_tne, Date >1 . ~, ~ c:. I pl/I'!l, ~. Report coapleted by AFD,'130 DATE OF LOSS, 01/24/96 BARBARA Ell.RBY F:CN,'NC'fAL Or::TAIL O.VH1/'l13 14,44 PENNSYLVANIA SO CB C2115'72 F KAM BES PG 1 OF 23 , ~ ACTION OAT~ ISSU~ OAT~ 03/17/98 03/17/98 AMOUNT STATUG/ACTIoN SO.BO ALLOCATED CHARGE KT.NO TYPE WKS DAYS EXP 89 PAYEEI FIWMI Tal REFERI~NCJ:. : 22000005 AUTH 10: CSY. ~ ACTION DAT~ T.SSUE DATE 03/16/98 03/13/98 AMOUNT STATUS/ACTION S15,68 SYSTEM ISSUE/DC KINO TYPE WKS DAYS MED PAYEEI LAdCORP OF AMERICA HOLDINGS FROM: 03/21/97 TOI 03/21/97 REFERENCE I 588A 57554442 t.,UTH 101 !;/~S k ACTION DATE ISSUE DATE 02/23/98 02/20/98 AMDUNT STATUS/ACTION 550.00 SYBTEM ISSUE/DC KINO TYPE WKS DAYS MED 0000 00 PAYEEI UPMC WORK PARTNERS FROM I 11.128/97 TO I 111:<8/97 REFERENCE: 588A 56506518 t..UTH 101 NCB '" ACTION DATE ISSUE DATE 02/09/98 02/06/98 AMOUNT STATUS/ACTION $103,34 SYSTEM ISSUE/DC KIND TYPE WKS DAYS MED PAYEE I SHADYSI O~ ORTHOPAEDIC ASS FROM: 01120/98 TO I 01120/98 REFERI.NCF I 588A 5513:35118 AU"H I 0 I SYB", '" ACTION DArE ISSUE DATE 01/08/98 01/08/98 I~MOlINT STATUS/ACTION $1.223.00 SYSTEM ISSUE/DC KIND TYP~ WKS DAYS MED 0000 00 PAYEE: THE RACQUET CLUB OF PITTSBURGH FROM: 12/23/97 rOI 12/23/97 REFERENCE I 588A 54300312 AIJrH I D I /(0 98 077 14 444 KOF AFI) I . lao DATE OF LOSSI 01/24/96 BARBARA ELERBY FINANCIAl. OJi:TA.tL 03/113/'i8 14144 PENNSYLVANIA SI) CB C:2115'72 F KAM SEa. PG 6 OF 23 * ACTION DATE ISSUE DATE 09/29/97 09/26/97 AMOUNT srATUB/ACTrON sa22.00 !;YSTEM I!3SUE/OC KINO TYPE WKS DAYS MI~D PAYEEI APRIA HEALTHCARE INC FROMI 0~/02/97 '1'01 08/02/97 REFERENCE I S88A 49780908 AllTH 101 SES " " * ACTION DATE ISSUE DATE 09/29/97 09/26/97 AMOUNT STATUS/ACTION $1,012.65 SYSTEM ISSUE/DC KIND TYPE WKS DAYS MEO PAYEE, COR~ NETWORK LLC FROM: 08/01/97 TOI 08/29/97 REFERENCE I S68A 49780746 AUTH rOI SES * ACTION OrHE I!;SUE DATE 09/29/97 09/26/97 AMOUNT STATUS/ACTION $63.35 SYSTEM ISSUE/DC KIND TYPE WKS DAYS MEO PAYEE: SHADYSIDE ORTHOPAEDIC ASS FROM: 09/12/97 TOI 09/12/97 REFERENCE I 588A 49780~47 AUTH 101 SYS." * ACTION DATE ISSUE DATE 09/20/97 09/20/97 AMOUNT STATUS/ACTION $109.20 TMMS CHARGE KIND TYPE WKS DAYS liED PAYJ~E I FRI)N: Tt) I REFERENCE: 33010987 ALJTH rOI CON " ACTION DATE ISSUE DATE 09/22/97 09/19/97 AMOUNT STATUS/ACTION $1,054.00 SYSTEM ISSUE/DC KIND TYPE WKS DAYS CI~M TT 0002 00 PAYEEI ELERBY, BARBARA FROM: 09/11/97 TO: 09/25/97 REFERENCE I S8BA 49374117 AUTH 101 NAP 9B 077 14 444 KDF AF'(J I 130 DATE OF LOSSI 01/24/96 B~RBARA ELERBY FlNANI:IAL. DETAIL 03/Hl/9B 14144 PENNSYLVANIA SO eEl C2115'i':! F KMl SE:S PO 7 OF 23 * ACTION DATE ISSUE DATE 09/23/97 09/19/97 AMOUNT STATUS/ACTION &161.00 SYSTEM ISSUE/DC I<HID TYPE WKS M":/1 PAYEEI AElElEY HOME HEALTH CARE FROM I 09/02/97 TO I 09/0~!/97 REFERENCE: 588A 49450086 AUTH 10: SES * ACTION DATE IS!,UE DInE 09/12/97 09/11/97 AMOUNT SlATUS/ACTION $83.00 SYSTEM ISSUE/DC KIND TYPE MED PAYEE: TRANSPORTATION SERVICE FROH: 08/25/97 10: 08/25/97 REFERENCE: ~BBA 49021767 AUTH ID: 1<0 * ACTION DATE ISSUE MTE. 09/10/97 09/09/97 AMOUNT STATUS/AC1ION ~249,OO SYSTEM ISSUE/DC KINO TYPE NED PAYEE: TRANSPOR1ATION SERVICE FROM: 08/18/97 TO: 08/20/97 08/22/97 08/22/97 REFERENCE: 588A 48920067 AUTH 10: AEB * ACTION DATE ISSUE DATE 09/09/97 09/08/97 AMOUNl s'r ATUS/ACTION $249,00 SYSTEM ISSUE/DC I<IND TYPE WKS O~ MED 0000 PAYEE: TRANSPORTATION SERVICE FROM: 08/11/97 TOI 08/15/97 REFERENCE: 588A 48868542 AUTH ID: KO * ACTION DATE ISSUE DATE 09/0S/97 09/05/97 AMOUNT STATUS/ACTION $1,054.00 SYSTEM ISSUE/DC KINO TYPE WI<S O(~_ CLM TT 0002 \ , , PAYEE I ELERBY, BARBARA FROMI 08/28/97 TO: 09/11/97 " . REFE.RENCE: SSBA 48741606 AUl'H 10: NAP 98 077 14 444 KOF I., I r AI:'!)'I .t:30 DATE OF LOSS: 01/24/96 BARBARA ELF-HBY ~ ACTION DATE ISSUE DATE 09/04/97 09/04/97 PAYEEI REF'EI~ENl:F.: I :):300713~~ .t ~ ACTION DATE ISSUE DATE 09/04/97 09/03/97 FINANCIAL DETAIL 03/.t tl/'El .t4144 PENN!3YLVANIA Sll CEl C21.t5'i'2 F KAM S1::S PG 8 OF 23 AMOUNT STArUS/ACTION $.t48,20 TMMB CHARGE KINO TYPE WKS DAYS MI::ll FROM: TOI AUT,., IO: CON AMOUNT STATUS/ACTION $249.00 SYSTEM ISSUE/DC KINO TYPE WKS DAYS MEO 0000 00 PAYEE: TRANSPORTATION SERVICE REFERENCE: sa8A 48662262 * ACTION DATE .rSSlJ/:: DMF.. 09/02/97 09/02/97 PAYEE: REFERE:NCE: 3301011::; * ACTION D,~T/:: ISSlJ/:: DATE 09/02/97 09/02/97 PAYEEI REFERENCE: 33009031 * ACTION D,HE IS!,UE DATE 09/02/97 08/29/97 PAYEEI TRANSPORTATION SERVICE REFERENCEr 58tlA 48549114 98 077 14 444 KDF FROMI 07/28/97 TO: 07/30/97 08/0.t/97 08/01/97 AUTH ID: AEB AMOUNT STATUS/ACTION $140.40 TMHS CHARGE KIND TYPE WKS DAYS MED FROM: Tel I AUTH IO I CON AMOUNT STAT/JS/ACTION '904.80 fHMS CHARGE KINO TYPE WKS DAYS MEO FROM: TO: ALITH 10: CON AMOUNT STA'TUS/AcnON $249.00 SYSTEM ISSUE/DC KINO TYPE WKS DAYS MEO 0000 00 FROMI 08/04/97 1'01 08/06/97 013/08/97 08/08/97 AUTH :COI AEB AI.(l-r 130 DATE OF LOSSI 01/24/96 DARBARA ELEROY F INANGIAL Il/::TAII. 03/18/98 14144 PENNSYLVANIA SO ell C211:592 F I(Ml sirs PO 9 OF 23 . ACTION DAT~ ISSU~ DATE 09/02/97 08/29/97 AMOUNT STArUG/ACTION $41.34 SYSTEM ISSUE/DC KIND TYP~ WKS DAYS MED PAYEE, SHAOYSIOE ORTHOPAEDIC ASS FROMI oa/1~/97 TOI 08/15/97 REFERENCE I sa8A 48550653 AUTH IOI SYS* . ACTION DATE ISSUE DATE 09/02/97 08/29/97 t,MDUNT STATUS/ACTWN $906.35 SUMMARY ISSU~/DC KIND TYPE WKS DAYS MEO PAYEE, CORE NETWORK LLC FROMI 07/09/97 TOI 07/30/97 REFERENCE I 591A 70491699 AUTH 101 sirs . ACTION DATE ISSUE DAT~ 08/25/97 08/22/97 AMOUNT STATUS/ACTION $1,054.00 SYSTEM ISSUE/DC KIND TYPE WKS DAYS eLM TT 0002 00 PAYEE, EL~RBY, BARBARA FROMI 08/14/97 TOI 08/28/97 REFERENCE I 588A 48145734 AUTH 101 NAP . ACTION DATlr IS~~IJE Of HE 08/11/97 08/08/97 AMOUNT STATIJS/ACTION $1,054.00 SYSTEM ISSUE/DC KIND TYPE WKS DAYS CI.M rr 0002 00 PAYEE, ELERBY, BARBARA FROMI 07/31/97 TOI 08/14/97 REFERENCE I 588A 47538549 AUTH 10: NAP * ACTION DATE ISSUE DATE 08/08/97 08/08/97 AMOUNT STATUS/ACTION $44.10 ALLOCATED CHARGE KIND TYPE EXP 89 WKS DAYS ~ I" . ! I I I i I I , PAYEEI FROMI TOI REFERENCEr 22000004 AUTH lOr CSr. 98 077 14 444 KDF , I. AFll I 130 DATE OF LOGSI 01/24/96 BARBARA ELF-RBY FINANCIAL DETAIL 03/18/99 14:44 PENNSYI..VANIA' SO CB C211592 F KAM SES PG 10 OF 23 \. * ACTION DATE ISSUE DATE OB/l1/97 OB/08/97 AMOUNT STATUS/ACTION ~41.34 SYSTEM ISSUE/DC KINO TYPE WKS DAYS MED . " PAYEE: SHADYSIDE ORrHOPAEorc ASS FROMI 07/15/97 TO: 07/15/97 .. . , . ' REFERENCE: sa8A 47615166 AUTH 10 I SES ) , I * ACTION DATE ISSUE DATE 08/07/97 08/06/97 AMOUNT STATUS/ACTION $249.00 SYSTEM ISSUE/DC KIND TYPI:: MED WKS DAYS I ! 0000 00 l; , i PAYEE: TRANSPORTATION SERVICE FROM: 07/21/97 Tal 07/23/97 07/25/97 07/25/97 REFERENCE: SS8A 47457522 AUTH 10: AEB . ~ .... ACTION DATE ISSUE DATE 08/07/97 08/06/97 AMOUNT STATUS/ACTIDN $5G8.00 SYSTEM ISSUE/DC KIND TYPE WKS DAYS i1ED PAYEEI SHHS HOME HEALTH AGENCY FROM: 06/01/97 TO: 06/26/97 REFERENCE: S88A 47457792 AUTH 10: SYS.... * ACTION DATE ISSUE DATE 07/30/97 07/29/97 AMOUNT STATUS/ACTION $249.00 SUMMARY ISSUE/DC KIND TYPE WKS DAYS MEO 0000 00 PAYEE: TRANSPORTATION SERVICE FROM: 07/14/97 TO: 07/18/97 REFERENCE: 56BA 47099691 AUTH 10: AEB .... ACTION DATE ISSUE DATE 07/30/97 07/29/97 AMOUNT STATUS/ACTION $166.00 SUMMARY ISSUE/DC KINO TYPE WKS DAYS MEO 0000 00 PAYEE: TRANSPORTATION SERVICE FROM: 07/09/97 TO: 07/11/97 REFERENCE: saBA 47099691 ALJTH rD: AEB 98 077 14 444 KDF AF,'IJ I 1;30 DATE OF LOSSI 01/24/76 BARBARA ELERBY FINANCIAL DETAIL 03/18/98 :l4144 PENNSYLVANI~ SO, CB C::!1l5'12 F KAM SI~S P13 15 OF 23 * ACTION DATE ISSUE DArE 06/02/77 05/30/97 AMOUNT STATUS/ACTION $1,054,00 SYSTEM ISSUE/DC KENO TYPE WKS DAYS CLM TT 0002 00 PAYEEI ELERBY, BARBARA FROMI 0~/22/97 rOI 06/05/97 REFERENCE I 5aaA 44560242 AUTH 10 I NAP * ACTION DATE ISSUE DATE 05/30/97 05/29/97 AMOUNT STATUS/ACTION Sl17.79 SYSTEM ISSUE/DC KENO TYPE WKS DAY~ MEO PAYEEI SHHS HOME HEALTH AGENCY FROMI 03/31/97 TOI 03/31/97 REFERENCE I SBBA 44530776 Aum 10 I S'(8* * ACTION DATE ISSUJ~ DAlE OS/27/97 OS/23/97 AMOUNT STATUS/ACTION i36.49 SUMMARY ISSUE/DC ICIND TYPE MED PAYEEI SHAOYSIDE ORTHOPAEDIC ASS FROMr 04/29/97 TO: 04/29/97 REFERENCE I saaA 44379963 AUTH 101 SYS* * ACTION DATE ISSUE DATE OS/27/97 05/23/97 AMOUNT STATUS/ACTION $41.20 SUMMARY ISSUE/DC KIND TYPE WKS MED PAYEEI SHAOYSIDE ORTHOPAEDIC ASS FROM: 04/08/97 TOI 04/08/97 REFERENCE I 5BBA 44379963 AUTH 101 SYS* * ACTION DATE ISSUE DAlE 05/19/97 OS/16/97 MlOUNT $I ,054 . 00 S'I ATUS/ACTION SYSTEM ISSUE/DC KIND TYPE CLM TT WKS DAYS 0002 00 ~ I '. " PAYEEI ELERBY, BARBARA FROMI 05/08/97 TOI OS/22/97 REFERENCE: S88A 43998507 AUTH ro: NAP 98 077 14 445 KDF " I I I I i .1 , I i I I I , I i , AFI) I 130 DATE OF LOSSI 01/24/96 BARBARA ELER8Y . PI~NNS,(I.VANIA SO CO C2115'n F KAM SI~!:J PG ll, OF 23 nNANl:IAI.. Ol:;TAIL 08/1IJ/9E1 14144 h ACTION OATi ISSUE DATi 05/15/97 05/14/97 AMOUNT STATUS/ACTION $78.00 SUMMARY I8SW~/ol: KINO TYPE WKS DAYS MED 0000 00 PAYEE' TRAVELERS PROPERTY CASUALfY CO FROMI 02/12/97 1'01 02/25/97 REFERENCE I 588A 43920171 AUTH IO I 1(0 * ACTION DATE ISSUE OATE 05/19/97 0~/16/97 AMIJUNT STATUS/ACTION $1,399.16 SYSTEM ISSUE/DC KIND TYPE WKS DAYS MED PAYEE I SHADYSIDE ORTHOFAEDIl: ASS FROM: 03/27/97 TO: 03/27/97 REFERENCE: 588A 44080443 AUIH 10: SES * ACTION DATI~ ISSUE DATE 06/02/97 05/12/97 AMOUNT STATUS/ACTION $836.55 SYSTEM ISSUE/DC KIND TYPE WKS DAYS Mf~O PAYEE: ST FRANCIS MEDICAL CENTER FROM: 01/09/97 TO: 01/09/97 REFERENCE: 588A 43835517 AUTH ro: SES . ACTION DATE ISSUE DATE 05/10/97 05/10/97 AMOUNT STATUS/ACTION $210.60 rMMS CHARGE KINO TYPE WKS DAYS MED PAYEE, FROMI TO: REFERENCI:":I 33003214 AUTH IO: CON . ACTION DATE ISSUE DATE 05/12/97 05/09/97 AMOUNT STATUS/ACTION '128,80 SYSTEM ISSUE/DC KIND TYPE WKS DAYS MED PAYEE' APRIA HEALTHCARE INC FROMI 04/02/97 TO: 04/02/97 REFERENCE, 588A 43777458 AUTH IDI srs. 98 077 14 445 KDF AI~(), :100 DATE OF LOSSI 01/24/96 BARBARA ELERBY FINANCIAL DETAIL 0"'/ Hl/'7H 14,44 PI::NNf3YLVANIA 130' CB C.:!l1:)']2 F KI'IM 131::9 PO 18 OF 23 * ACTION DAT~ ISSUE DATE 04/17/97 04/16/97 AMOUNT STATUS/ACTION $62,72 SYSTEM ISSUE/DC KINO TYPE WKS OAYS HI::O PAYEE I CHARLES J BURKE III HO FROMI 02/11/97 TOI 02/11/97 REFERENCE I SaBA 42758289 AUTH 101 SI::S * ACTION DAT~ ISBU[ DAT~ 10/09/97 AMOUNT STATUS/ACTION $0,00 KIND TYPE WKS DAYE PAYEEI FRON: TO: REFERENCE I AUTH 101 * ACTION DATE ISSUE D~TE 04/02/97 04/02/97 AMOUNT STATUS/ACTION 11,054,00 SYSTEM ISSUE/AETNA KIND TYPE WKS DAYE eLM rT 0002 CC PAYEE: ELERBY, BARBARA L B FROM: 03/27/97 TOI 04/10/97 REFERENCE I AASl 60857808 AUTH 101 NAP i , I * ACTION MTE ISSUE DATE. 03/17/97 03/17/97 AHmJNT STA1UB/ACTION $230.~6 SYSTEM ISSUE/AETNA KIND TYPE WKS DAY! HEO 0000 O. PAYEEI KAMP ANESTHESIA INC FROM: 01/09/97 TOI 01/10/97 REFERENCE I AA51 74048759 f~UTH 101 TXS * ACTION DATE. ISSUE DATE 03/13/97 03/12/97 STATUS/ACTION SYSTEM ISSUE/AETNA KIND TYPE MEO WKS DAY:~' 0000 00 ~ . If AMOUNT ~n37 .95 PAYEEI THE VERTIS GROUP FROM: 03/07/97 TOI 03/08/97 REFERENCE: AA51 74043929 AUTH ro: TXS 98 077 14 445 KDF ~ AlilJ I .1.:30 DATE OF LOSSI 01/24/96 BARBARA ELERBY FINANCIAL DETAIL 03/18/90 14144 " ACTION DATt:: ISSUE (lATE 03/.11/97 03/10/97 AMOUNT STATUS/ACTION '918.23 SYSTEM IS8UE/AETNA PlrNNlm.UANIA SO' CD C21 Hi'n F KAM SES PO 19 OF 23 KINO TYPE WKS DAYS MED 0000 or PAYEEI ST FRANcrs MEO CTR FROMI 01/09/97 fOI 01/10/97 RE~iRENCEI AA51 74040994 ~IUTI-I 101 MCS " ACTION DATE ISSUE DATE 03/04/97 03/03/97 AMOUNT STATUS/ACfION $78.00 MANUAL ISSUE/AETNA KIND TYPE WKS DAYS MED 0000 OC PAYEEI TRAVELERS INSURANCE COMPANY FROMI 01/29/97 Tal 01/30/97 REFERENCE I AA5.1 99999999 AUTH 101 TXS * ACTION DATE ISSUE DATE 02/14/97 02/13/97 AMOUNT STATUS/ACTION $70,13 SYSTEM ISSUE/AETNA KIND TYPE WKS DAYS MED 0000 or PAYEE I HEAL rH AMERICr~ INC FROMI 02/09/96 Tal 02/10/96 R~FERENCEI AA51 74014271 AUTH 10: TXS " ACTION DAfE ISSUE DATE 01/31/97 01/30/97 AMOUNT STATUS/ACTION $430,15 SYS1EM ISSUE/AETNA KINO TYPE WKS DAYS MED 0000 OC PAYEEI SHADYSIDE ORTHOPAEDIC FROMI 01/09/97 TO: 01/10/97 REFERENCE I AA51 73992048 AUTH 101 TXS * ACTION DATE ISSUE DATE 01/22/97 01/21/97 AMOUNT STATUS/ACTION $427.88 SYSTEM ISSUE/AETNA ((IN!) TYPE W((S DAYS L MED 0000 00- I- :! PAYEE: ORTHOPEDIC REHAB SERVICES LTO FROMI 10/21/96 TO, 11/01/96 REFERENCEI AA51 60711631 AurH 10: TXS 98 077 14 445 KOF ~' AFOr 1,:~0 DATE aF LOSSI 01/2~/96 BARBARA ELERGY nNtlNCIAI_ Ol::TAIL 03/tl:1/98 14,44 PENNSYLVANlA sa. ca C~!1.15cn F' KA~1 ~JI:::j PO :a aF 23 * ACTION DATE ISSUE DATE 11/08/96 11/08/96 AHOUNT STATUSIACTIaN $207,56 SYSTEM ISSUE/AETNA KINO TYPE WKS OAYS MED 0000 o~ PAYEEI ORTHOP~DIC REHAB SERVICES LTD FROMI 10/11/96 Tal 10/18/96 REFERENCE I AA51 60505618 AIJ'fH 10, TXS * ACT IaN DATE ISSUE DATE 10/09/96 10/08/96 AMOUNT STATUSIACTION $28.16 SYSTEM ISSUE/AETNA KINO TYPE WKS DAYE MI~O 0000 O( PAYEE: ORTHOPEDIC ASSOCIATES OF' PGH FROMI 09/30/96 TO: 10/01/96 REFERENCE I AA51 60407972 AUTH 10: TXS * ACTION DATE ISSUE DATE 08/17196 08/17196 AHOUN'. STATUS/ACTION $40.21 SYSTEM ISSUE/AETNA KIND TYPE WKS DAYS MED 0000 OC PAYEE: ORTHaPEDIC ASSOCIATES OF PGH FROM: 04/15/96 Ta, 04/16/96 REFERENCE: AA51 60244582 AUTH 10 I rxs * ACTION DATI:: ISSUE DATE 07/30196 07/30/96 AMDUNT STATUS/ACTION '245,90 SYSTEM ISSUE/AETNA KIND TYPE WKS DAYE MED 0000 OC PAYEE: ORTHOPEDIC REHAB SERVICES LTD FROM: 07/11/96 TO: 07/13/96 REFERENCE I AA51 60176163 AUTH lU: TXS * ACTION DAT~ ISSUE DATE 07/03/96 07/03/96 AMOUNT STATUS/ACTION $28.16 SYSTEM ISSUE/AETNA KIND TYPE WKS DAYS MEO 0000 O( PAYEE, ORTHOPEDIC ASSOCIATES OF PGH FROM: 06/03/96 TO: 06/04/96 REFERENCE: AA51 60069778 I~UTH IO I TXS 98 077 14 445 KDF w AflJ'. .130 DATE OF LOOSI 01/24/96 BARBARA ELERUY FINMIGIAI_ O!:'I,UI,. 03/18/90 1.1144 PI::NNSYI_VANiA SIT CO C21.t:5n F KAM SI::8 PO :!2 OF 23 * ACTION DATE ISSUE DATE 06/10/96 06/10/96 AMOUNT STATUS/ACTION 110.00 SYS1EM ISSUE/AETNA KINO TYPE WKS OA' MED 0000 ( PAYEEI HEALTH AMERICA INC FROMI 01/24/96 TOI 01/30/96 REFERENCE I AA51 60010704 AUTH 10, TXS * ACTION DATE ISSUE DATE 06/0S/96 06/03/96 AMOUNT STATUS/ACTION $213.16 SYSTi::M ISSUE/AETNA KINO TYPE WKS DAY MED 0000 0 PAYEEI ORTHOPEDIC ASSOCIATES OF POH FROM: 04/29/96 Tal 04/30/96 REFERENCE: AA51 59~972a6 AUTH 101 TXS * ACTION DATE ISSUE DATE 06/03/96 06/03/96 AMOUNT STATUS/ACTION 1436.25 SYS1EM ISSUE/AETNA KINO TYPE WKS DAY~ MED 0000 0, PAYEE: ORl~OPEOIC REHAB SERVICES LTO FROMI 05/01/96 TO: 05/11/96 REFERENCE I AA51 59982792 AUTH ID: TXS * ACTION DAlE ISSUE DAlE 05/15/96 05/15/96 AMOUNT STATUS/ACTION $349,82 SYSTEM ISSUE/AETNA KIND TYPE WKS DAY~ MED 0000 Oc PAYEE' ORTHOPEOIC REHAB SERVICES LTD FROM: 04/22/96 TO: 04/30/96 REFERENCE: AA51 59870084 AUTH 10: lXS * ACTION DATE ISSUE DATE 05/13/96 05/13/96 AMlJUNl STATUS/ACTION 1138,07 SYSTEM ISSUE/AETNA ~ KINIJ TYPI:: WKS DAYS , MED 0\100 00 I PAYEE: ORTIilJPEOIC REHAB SERVICES LTIJ FROMI 04/15/96 TO: 04/16/96 REFERENCE, AA51 :59863376 ALlTH 10, TXS 98 077 14 445 KOF .." ~,:.< . . n ....., ~:-) ~~ !.>J .1 " [~ -II [l '- -..: . .!::.~ (: , .- ;'.) -- . , (. , .--J ..;!.:j " .. , . .. .- .' -:' -., ., -, . (', ( ; ~ " ( , , I '. , ~ , .~~ '::'1 .. :.\..1 .< I '" ~, " ,. .. . . I" ',( ., " , .' " , ~ ,', '~:.~'''9~f. ;, '.. ~(1:'\' " :;. ''',' '.:' '. :' ;".; '. " '" (:,;,'1'.: .',;- ""'. I,:. ',,'!' \ ,-' ~ , "'<.~' . "'. '.:r .....,. " :',:1 ,.,' , 'r> '~'1 " ; t' , .' "I,. '. , ....' , ' '~" "":i. ':" :," ,'" ~ /' ...... . . '," ';., ',<.- d.;.: :"" " ,', " ,,'. '.', ~ ~ ~.~r.:.' -." "'-', i-,i' " ,...'. ..' 'I,' " " ~ ~ :. t..; , ~; '.;. ".. . ,'~ ' " ,.......~).~.,~ "~', :' " .> . " ...,.... -.,~. " ,:~' . "",\) , ., ,'.' , " .... >" ", '/,.; . ' , ' '1,'- /.A W OFFICES OF RA/.f>II/~ 7'OUCII By: Dnnicl J. Pombnn, Esquirc Attorncy J.D. No. 64604 40 I Pcnn Strcct, Suite 100 Rcnding,l'A 19601 Tcl. 610-320-4286 Fnx 610-320-4767 Attorncy for Dcfendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Barbara J. Elcrby, ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION PLAINTIFF, VS. NO. 98-374 Allenberry, Inc., Allenberry on The Yellow Breeches, Allenberry Resort Inn, DEFENDANTS. RULE TO FILE COMPLAINT AND NOW, this day of , 1998, a Rule is entered under Pennsylvania Rule of Civil Procedure 1037 upon the Plaintiff in the abovc-captioned matter to file a Complnint within twenty (20) days from the service of this Rule or otherwise suffer Judgment of Non Pros. J. DJP/klh 198300025 i' l., CERTIFICATION OF SERVICE I hcrcby ccrtil)o that I havc scrvcd a copy ofthc Pruccipc for Rulc to Filc Complaint, upon nil Iistcd partics or thcir attorncys in thc following manner(s) and in accordancc with all pertincnt Rules of Civil Proccdurc: I. By first-class, United States Mail, postagc prepaid: Ronald A. Turo, Esquire Turo Law Offices 32 South Bedford Street Carlisle, PA 17013 Dated: Mav I. 1998 ~.Y/ i//F.~ Dapieyf.'Poruban, Esquire Attorney for Defendants '~ . , BARBARA J. ELERBY, Plnintiff, v. : IN THE COUll'I' 01" COMMON I'I,I':AH 01" : CUMBERLAND COUNTY, I'lmNHYINANIA : CIVil, ACTION .I,AW ALLENBERRY, INC., ALLENBERRY ON THE YELLOW BREECHES, ALLENBERRY RESORT INN, Defendants ; NO. 08. 'nil 1'1(,//\,1;'1'" : ,JURY "'nIAI, IlI~MANJlIm PRAECIPE FOR ISSUANCI~ OJ~ WllI'J' (W HUMMONH TO THE PROTHONOTARY OF THE SAID COURT: Please issue a Writ of Summons on the above nallle,1 DofondllnlA IIllho following ,uldress: ; 1559 Boiling Springs ROIllI Boiling Springs, P A 17007 /).)1197 Respectfully submitled, TURO LAW OFFICES ~ / ? "CZ~,/-, on Turo, Esquire 32 South Bedford Stroot Carlisle, PA 17013 (717) 245.0088 Atlorney for PlllinlllT Date .. ,\ " .... .....' Commonwealth of Pennsylvanill County of Cumherlllnd Barbara J. Elerby COlin of COIIII'1011 Pie... va. ~II. .___~!I.-.~7LGiyJ)':1'9.1111_m___m__ 19__n Allenberry, Inc., Allenberry on The Yellow Breeches, Allenberry Resort Inn 1559 Boiling Springs Road Boiling Springs, PA 17007 III .._ _ _ C;;J yJJ .lIP.lA9!1.. .':._ r-P..I'ln __00 nm___n__ To _N)._~I}~J:XYI_J_l}gu__l}n~J1Q9r)::y_911:L'11~t_Yellow Breeches, Allenberry Resort Inn You are hereb)' notified dl3t ._---~~~:?_-~~-~-~~:~y------_._---------_.._-_._-_._.---------------------------.-.------------ the Plailltiff ha S commenced an actioll in __Gi,yJ.l.-'~gj:.i.QI}_:_J.Q~__n._uu__.___u.__n___n_nn against )'OU which )'OU arc re'luin'd 10 del"lId or a default jud[llllent ma)' be elltered against you. (SEAL) ~- .-- ow. ___ (____ ______ p Date _nn!?PJ!\!~f.Y_~lJ____m___.. 19?1L II)' __:S~#-;1.1d__C&.&_ n:z_mm tI Deputy i'"7t'-- I . . I ~ I I I I I ~:::;~ld6'~ p. B'~fi?~/3 f ~ 8'!::i 00::> ~ ~U1lJll1ll-' g~~' ~ r '" 0 11l i::J 19'B'~~::> I... >, ~ ~lD~. i ~ ~~g~$ III In ifl ~ cc, ',.... ,.." 0 ~ , 1< jl g~!I,l~f2~ 51 b'lO ~ f;l II::: lXl .0 ..... , '&~ R I I '"d c:a...... . n " ~ 1(03 I I-' "'00 11l , ... . III ' , III Ort lJl ~ 1:1 I~ , b' 1-" !I,l~' ~~ '<: , , w I , rt , , ..... , , ~ I I-' I-' - I , ;3~ /3!!l r , , , , , 0' I-'j , , .., !!l @' ~g 't"'l SHEfdFF'c; flETUrm f\EGULM\ CASE NO: 1998-00374 P COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND ELERBY BARBARA J VS. ALLEN BERRY INC ET AL -LIMOTHY REITZ , Sheriff or Deput}' Sheriff of CUMBERLAND County. Pennsylvania, who being duly sworn according to law, says, the wi thin WRIT OF SUtiMONS was served upon ALLEN BERRY RESORT INN defendant, at 1326: 00 HOURS, on th.: 27th day of J"nuary 1998 at 1559 BOILING SPRINGS ROAD BOILING SPRINGS~A 17007 ,CUMBERLAND County I Pennsylvania, by handing to ~ESLIE STERNER, DIRECTOR OF SALES & PERSON IN CHARGE a true and attested copy of the WRIT OF SUMMONS and at the same time directing Her "ttention to the contents thereof. the Sheriff's Costs: Docketinq ~ ' . ';'lervJ.ce Affidavit Surcharge 5.00 .00 .00 2.00 So answ?~~ ~Thomas Kl~ne, Sher11I StJ.0'LJ RON TURO 01/29/1998 by Sworn and~ubscribCd_10 ['efore me this ..2'/ ~ da}' of ;""''-'-<-; 19 C(r A. D. ~~AZ~ ~pu e ~ _.~~~ ~. }\1, ;P,.. LIf&' rothonotai'y / .' :~JI["R 1 FF' ':: RET'Ilnl IH:GUL/\h CASE NO: 1998-1210371 r COH~IONWEA L Tit OF PEflN:3YL V A III A : COUNTY OF' CUI'IBERLAllr. ELERBY BARBARA J VS. ALLEN BERRY INC ET AL TIMOTHY REITZ . Sher1!! Qr Deputy Sheriff of CUMBERLAND County. Pennsylvan1a. who being duly sworn according to law. says, the within WRIT or SUMMONS upon ALLEN BERRY ON THE YELLOW BREECHES defendant. at 1326:121121 HOURS. on th., 27th d:,y of Januarv 1998 at 1559 BOILING SPRINGS ROAD BOILING SPRINGS. PA 1701217 was sE'{"ved th'2 CountYI Pennsylvania. by handing to LESLIE SALES & PERSON IN CHARGE . CUl1BERLAND STERNER, DIRECTOR OF a true and attested copy of the WRIT OF' SUMMONS and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docl:eting Service Affidavit Surcharge 6.121121 .121121 .00 2.121121 S<J answers:..., .,r" ~' --~/ ,(..~,. ~. . r' ..;,;.~.>..~.~ -/ ;.o..-J">4! R. I homas 1\11n<:>. Sher1!! $~. IZltll IWN TURO 1211/29/1998 by Sworn and subscribed to before me this d. ') ~ day of q.:..... .. " 19 ?~ A.D. Cl...r..=,.9"t~-~ ~ -, rro ~ onot::ary ,....", . , CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the Entry of Appearance upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: 1. By first-class, United States mail, postage prepaid: Ronald A. Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 ) () -..., Dated: Februarv 25, 1998 198300025 ,; I ''-~ 1. ", " .. "/ , 'i~ 1;"<\;1;~ t .;, .,.t.I!'h'~1 . ;.:).,~~..;:,\:~'~;1:'l """t>. j, ",')1~lJ.t' , . 'I"" ,,(.~,,:,:,t 'r~': , ",,' " :fI"',~'~' . i'I {r"("'/i :: ,:";:,:)':;{';li~~1f:' ~ I' ."'\ t' ^ ! "~:'l,"'';';;'<\ 1 <,' ,""', ,. " ~,;. :':-i...,~;'(~I.;,~ , ',', , - ,I 't ~ \ ,:";",".,1..1l;. " "1'/"/' ':l~""\"'rW" ", " :' tl",! r.1!';< }'i)-V~A~: ~f, ",.::': ': ' ,;':,: ::', :t..t,:.uH:'~:< ,~,~t ,\., i ,,_ (, \.1. ,It!' f. ,.,;<!f.....~I^,iL,' . ,."J ~./~ ~.T ,~Il: J:;:' 1 ..~;'Ur~11' . .. 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' ',,' ";" :',\. ~': . " :1. " ".' ',l." . " ~ ',\"': ",', , ., " . " " " .;, '. LAWOFFICESOFRALPll F. TOUCll By: Daniel J. POnlbnn, Esquire Attorney I.D. No. 64604 40 I Penn Street, Suite 100 Rending, P A 1960 I Tel. 6 I 0-320-4286 Fax 610-320-4767 Attorney for Defcndnnts IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Barbara J. Elerby, ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION PLAINTIFF, NO. 98-374 VS. Allenberry, Inc., Allenberry on The Yellow Breeches, Allenberry Resort Inn DEFENDANTS. NOTICE TO PLEAD To: Plaintiff You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment m(;; entered against you. ~ ----:--)),1 ~ . ~ -- \ Daniel J. POnlli. n, Epquire Attorney for Der~n9ants 4. Dcnied. To thc extcnt the IIl1eglltions llfthc corrcsponding parngrnph constitutc Icgal conclusions, thc same lire dcemcd to bc denicd withllutlilrthcr resJlonsc pursuant to the applicablc Pennsylvllnia Rulcs of Civil Procedure. To thc extentthc allcgations of thc corrcsponding paragrnph constitutc factual avenncnls, the samc arc deemcd to bc dcnicd duc to thc fact that after a reasonnble invcstigation, Answcring Dcfendnnts nrc without sutlicicnt information or knowlcdge to form a belief as to the truth or falsity of such nllegation. Proof of same is hereby demanded at the time of trial. 5.-8. Denied. To the extent the allegations of the corresponding parngraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sutlicient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 9.-10. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendants are without sutlicient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 11.-12. Dcnicd. To Ihe extenllhc allcgalions oflhc corrcsponding parngrnph conslitutc I1lclualavermenls, thc same arc deemcd to he dcnied duc to the I1lct thnlafler a rcasonllblc investigation, Answering Defcndants arc without sullicient informal ion or knowledgc to form a bclicf as 10 thc tntth or falsity of such allcgation. Proof of snmc is hcrcby dcmllllded at thc timc of trial. 13.-14. Denied. To the exlent the allegations ofthe corresponding parngraph constitute legal conclusions, the same are deemed to be denied wilhout further response pursuant to thc applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendnnts are without sufficient information or knowledge to form a belief as to the tntth or falsily of such allegation. Proof of same is hereby demanded at the time of trial. J 5.-22. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the f.1ct that after a rensonable investigation, Answering Defendants are without sufficient information or knowledge to form a belief as to the tntth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment be entered in their favor and against Plaintiff, and thus pray that Plaintiff's Complaint be dismissed with prejudice. 35. Plnin!in's ComJllllint filils to state a claim upon which relief can be granted. 36. Plaint ill's Complaint is barred by the applicable Stalute of Limitations. 37. Plaintill's cause of action is barred by operation of the doctrine of assumption of the risk. 38. Answering Defendants were not negligent. 39. The incident and/or damages described in Plaintitrs Complaint were caused, or contributed to by, the Plaintitl: 40. The incident, injuries and/or damages nlleged to have been sustained by the Plaintiff were not proximately caused by the Answering Defendants. 4 I. Plaintiff has failed to properly mitigate her damages. 42. Answering Defendants at all times acted reasonably, prudently, properly, conscientiously and with the fullest due care. 43. Plaintiff's injuries, ifany, were pre-existing and/or were not caused by the accident alleged in Plaintill's complaint. \ VERI FICA rlON The undersigned, being duly sworn according to law, deposes and says that he is counsel for the party or parties indicated on the preceding pnge as being represented by said counsel, that he has examined the pleadings and the entire investigative file made on behalf of snid party or parties, that he is taking this verification to assure compliance with the pertinent rules pertaining to timely filing of pleadings and other documents described by said rules; and that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 PA C.S.A. SECTION 4904 relating to unsworn fhlsification to authorities. The Verification of the attorney is being attached hereto because the Verification of the Defendant(s) cannot be obtained in the time allowed for filing of the subject pleading with the Court. The executed Verification of the Defendnnt(s) will be filed as soon as it is obtained. Date: June 4, 1998 '-'", ~ \ ') '----' <- Daniel J. Poruba~, 0- VERIFICA lION I, Ron Turo, Esquire, attorney for the Plaintiff herein, have sufficient knowledge of the facts contained in this Complaint and verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, based upon information received from the Plaintiff. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. r;~t;r Date z ~ Ron Turo, Esquire CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Answer to New Maller, upon Daniel J. Poruban, Esquire, by depositing same in the United States Mall, first class, postage pre-paid on the I J- day of June, 1998, from Carlisle, Pennsylvania, addressed as follows: Daniel J. Poruban, Esquire Law Offices of Ralph F. Touch 401 Penn Street Suite 100 Reading, PA 19601 TURO LAW OFFICES ~ Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff Cl '0 0 f~ 0) "II -r'h"i '- ;J rnr.' S '-;if!1 /.'::', ~~:ii~:.. -<7- ul '';1\ .:J -JD ~;:..... 2.: ' on ;:5:D j5~~; C;(?, C!? 6r. ..:"- ~,) g ::d U) ~ ,:; , ;.. ..,. LA W OFFICES OF TOUCII, NUZZI & McKEE lly: DUlllel J. I'omhun. Esqnirc AlIorncy I.D. No. 646114 411 I I'cnll Streel. SUilc 11I11 Rcuding, I'A 196111 Tcl. 6111.321142K6 I'IIX 611I-32114767 AlIorncy for Defcndunl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Barbara J. Elerby, VS. ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION PLAINTIFF, NO. 98-374 Allenberry, Inc., Allenberry on The Yellow Breeches, Allenberry Resort Inn DEFENDANTS. PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY; Kindly substitute the original signed verification of Jere Heinze for Allenberry, Inc., et ai, for the verification of counsel filed with the Defendant's Answer and New Malter to Plaintiff's Complaint. 0- -::-\ uire , ~ , CERTIFICATION OF SERVICE I hcrcby ccrtify that I havc scrved n copy of thc forcgoing doculllcnt(s) upon 1111 partics, their nllorneys or reprcscntlltivcs, lInd nil othcr rclcvnnt orgnnizlltions, in thc Illnnncr(s) set forth below: I. By first-class mail. nosta\!e nrenaid: Ronald A. Turo, Esquirc , 32 South Bedford Street Carlisle, P A 170 13 , (C Dnted: Julv 6. 1998 1983000251Poruban ~ 4~"~,,, . . . " - 19HJIIII1I25 VERIFICATION j I, Jere Heinze, the Vice President and General Manager of Allenberry, Inc., et ai, hereby verify that the statements made in the foregoing document are true and correct to the best of my personal knowledge or information and belief. To the extent that the foregoing contains averments which are inconsistent in fact, I verilY that my knowledge and information is sufficient to form a belief that one or more of them is true although I am currently unable, after reasonable investigation, to ascertain which of the inconsistent averments are true. To the extent that the foregoing contains legal conclusions or opinions, I hereby state that my verification is made upon the advice of counsel, upon whom I have relied in the filing of this document. This Verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relative to unsworn falsifications to authorities. Dated; ( n .0 r) c- m " -.' r.__ ~:.J f}~~ , ~ ..4 .;, ~q - r , .- .. "-'~8 , (/:. ,=> .')'1 ~I~ ;... :.I-i. ;::.: :'J , " :!C) . \ :jl I I . C ---I ::7l ....... :-:-:i ~;:l -, I ." -'w :0 , ~' LA W OFFICES OF RALPH F. TOUCH By: Franklin W. Noll, III, Esquire Attorney I.D. No. 67915 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4780 Fax 610-320-4767 / ";1 " N' I : ,I \ Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Barbara J. Elerby, ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION PLAINTIFF, VS. NO. 98-374 Il Allenberry, Inc., Allenberry on The Yellow Breeches, Allenberry Resort Inn DEFENDANTS. '1 ,\ , , PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE .I,l TO THE PROTHONOTARY: Kindly withdraw the appearance of Daniel J. Poruban, Esquire, as counsel of record for Defendant, Allenberry, Inc., Allenberry on The Yellow Breeches and Allenberry Resort Inn and enter in his place Franklin W. Noll III, Esquire, as counset for Defendant, Allenberry, Inc., Allenberry on The Yellow Breeches and Allenberry Resort Inn ~y- f5( Daniel J. Poruban, Esquire Atty. J.D. #64604 401 Penn Street, Suite 100 Reading, PA 19601 I I I, I' i , Dated: I'ebruarv 4. 1999 . - - .~.., ----- ',_"',';",.1,'.:;"""_:" , _ . - -~: ,'. ,- " :-".-, ':ii ",' " . ~ ..' , 1"" ... . , ,.t __" I ,~' . .. LA W OFFICE'S OF TOUCH, RUZZI & MC KEE By: Frunklin W. Noll, III, Esquire Atlorney 1.0. No. 67915 401 Penn Street, Suite ]00 Reading, PA ]9601 Tel. 610-320-4780 Fax 610-320-4767 Atlorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Barbara J. Elerby, CIVIL DIVISION DEFENDANTS. ) ) ) ) ) ) ) ) ) ) NO. 98-374 PLAINTIFF, VS. AlIenberry, Inc., AlIenberry on The Yellow Breeches, AlIenberry Resort Inn ORDER AND NOW, to wit, this day of , 1999, upon consideration of the Motion for Summary Judgment of the Defendants, AlIenberry Inc., AlIenberry on The Yellow Breeches, AlIenberry Resort Inn, it is hereby ORDERED and DECREED that Defendants' Motion flJr Summary Judgment is GRANTED and Plaintiffs Complaint and causes of action are dismissed in their entirety against Defendants. " i' ,\ , :1 : / , J. , . I , ~ \., I . f iI . r; ~) ,~ Ii: . , ~ I, By the Court: \ .. . 4. On Junc 5, 1998, the ubove-euptioned Delcndunts tiled un Answer und New Muttcr to Pluintiff's Compluint. 5. On Junc 15, 1998, PluintilT liIed un Answcr 10 the New Mutter of thc ubove-cuptioncd Dcfcndunts. 6. On Junuury 24, 1996, Plaintiff wus uttending u busincss confercnce ut thc property of thc ubovc-cuptioncd Dcfendunts. Scc Octobcr 5, 1998 dcposition of Pluintiff ut 22. A truc und corrcct copy of thc uforesaid dcposition trllnscript is attached hcrcto us Exhibit "A" and madc a purt hcrcof. 7. Plaintiff wus at Dcfcndunts' propcrty for the uloresaid busincss confcrcnce for approximately onc wcck. Sce Exhibit "A" ut49. 8. There was a snow storm in the beginning of that week. See Exhibit "A" at 49. 9. The entire week Plaintiff was at Defcndants' property, she used the same cxit. See Exhibit "A" at 45. 10. Defendants' placed anti-skid material on the area where Plaintiff's accident occurred prior to Plaintiffs accident occurring. See Exhibit "A" at 46,48-49. 11. Although Plaintiff walked on the walkway for the entire week she was at Defcndant's property, she never experienced any problcms on the walkway in question. See Exhibit "A"ut45. 12. On Januury 24, 1996, Plaintiff parked her cur c10sc to the stone lodge. See Exhibit "A" ut 26. 13. After Pluintiff purked her car, she returncd to the lodge to get hcr purse und gurment bag. See Exhibit "A" ut 26. As Pluintiff cxitcd the stone lodge, she had a purse in hcr right hund and a garment bag in her left hand. See Exhibit "A" at 43. , I I I l'., . . 14. When Plaintiff stepped down from the walkway to the IIsphalt, she lookcd~own ioward the ground and watchcd whcrc shc was walking. See Exhibit "A" at 44-45. 15. Whcn Plaintiffs right foot camc in contacl with thc macadam. hcr right foot came in contact with an anti-skid substance placcd ovcr a patch of icc. See Exhibit "A" at 43, 46, 4S-49. 16. When Plaintiffs right foot came in contact with thc anti-skid substancc and patch of ice, she slippcd, tried to catch hcrsclfand twistcd her knec. See Exhibit "A" at 43. 17. Plaintiff never fell; she only slippcd. Sce Exhibit "A" lit 45. IS. The patch of ice Plaintiffslipped on was "not real big." Sce Exhibit "A" at 44. 19. The ice patch Plaintiff slipped on was "llat". Scc Exhibit "A" at 44. 20. Prior to Plaintiffs accident occurring, Dcfcndants placed anti-skid material/kitty Iittcr over the ice patch that Plaintiff slipped on and also around the gcneral area. See Exhibit "A" at 46, 4S, 49. 21. As a result of the aforesaid slip, Plaintifffilcd for, and reccived, Workers' Compensation benefits. 22. Plaintiff claims that she did not see the patch of icc shc slipped on prior to slipping, evcn though she stated she was looking down at thc ground when she slipped. Sce Exhibit "A" at 44-45. il 23. Thcre is no evidence of record that any othcr persons slipped or fell at the samc spot where Plaintiffslipped prior to Plaintiffs slip. , , I; I , 24. Snow and ice did not accumulate on Dcfendant's property in ridgcs or clevations of such size or character as to unrcasonably obstruct travel and constitute a danger to pcdestrians and/or customers traveling thereon. , " , , . . EXHIBIT 'A' , . EXHIBIT "A" . . '~' " , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY I PENNSYLVANIA BARBARA J. ELERBY Plaintiff VS ALLENBERRY, INC., ALLENBERRY on the YELLOW BREECHES, ALLENBERRY RESORT INN, Defendants --000-- ( ) ) ) Civil Action - Law ) No. 98-374 ) ) ) ) ) ) Jury Trial Demanded Deposition of Barbara J. Elerby, produced, sworn, and examined before Amy J. Patterson, Reporter, Notary PUblic, on Monday, October 5, 1998, at 10:45 a.m., taken by Defendants in the law offices of Ron Turo, 32 South Bedford Street, CarliSle, Pennsylvania, under and by virtue of Notice and Agreement to take Deposition. --000-- , , " (. KEY REPORTERS 1300 Garrison Drive, York, PA 17404 (717) 764-7801 Fax (717) 764-6367 2 1 ( 2 3 4 5 6 7 8 9 10 11 12 C 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: LAW OFFICES OF RON TURO BY: RON TURO, Esquire 32 South Bedford Street Carlisle, Pennsylvania 17013 717.245.9688 For the Plaintiff LAW OFFICES OF RALPH F. BY: DANIEL J. PORUBAN, 401 Penn Street Reading, Pennsylvania TOUCH Esquire 19601 610.320.4286 For the Defendants ! i \ i \ , ~., l \ . I II (, , . 'I " I. i I " 'i ,-..; 1 2 3 4 5 6 7 8 9 10 11 12 ( 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX TO WITNESS Examination by Mr. poruban - pg 5 INDEX TO EXHIBITS ELERBY 1: Drawing MARKED 63 3 4 1 DEPOSITION SUPPORT INDEX 2 3 4 DIRECTION TO WITNESS NOT TO ANSWER 5 6 Page Line Page Line Page Line 7 (None) 8 9 10 11 12 ( 13 REQUEST FOR PRODUCTION OF DOCUMENTS 14 Page Line Page Line Page Line 15 11 21-24 16 17 18 19 20 21 22 QUESTIONS MARKED OR CERTIFIED QUESTIONS 23 Page Line Page Line Page Line 24 (None) ( , 25 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 STIPULATION It is hereby stipulated and agreed by and between counsel for the respective parties that the deposition is being taken for purposes of discovery; that reading I signing, sealing, certification and filing are waived; that all objections, except as to the form of the question, are reserved to the time of trial. * * * * * BARBARA J. ELERBY, called upon by Defendants to give testimony, being duly sworn by me, testified as follows: EXAMINATION BY MR. PORUBAN: Q Good morning, ma'am. My name is Dan Poruban, and I'm the attorney who represents Allenberry, Inc., Allenberry on the Yellow Breeches, and Allenberry Resort Inn; the defendants in this case. Today we're here for your deposition. I'm going to be asking you some questions pertaining to the event occurring on January 24th, 1996. With that I want to ask just a few ground rules, I guess, for today. As you can see we have the court reporter here today, and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 6 she's going to be taking down your responses; and for her benefit as well as everybody here I ask that your responses to my questions be verbal. And also, you allow me to finish a question before you respond so we kind of avoid I guess they call it cross talk in the court reporter parlance. Also, if you answer a question, I'm going to assume that you both heard it and have understood it. If you don't understand a question, just let me know and I'll rephrase it in a better way. Also, if you need to take a break for any reason, let me know or your attorney and I'll grant that. I guess -- May I have your full name, ma'am, for the record? A Barbara Jean Elerby. Q When were you born, ma'am? A September 28th, 1959. Q And what's your current address? A 1125 Allegheny Avenue, Apartment 2, Pittsburgh, PA 15233. Q Okay. Were you living there at the time of the accident, ma'am? 1 2 3 'I 4 I i I , 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I , 25 7 A No, I wasn't. Q Where were you living back in January of '96? A January of '96 I would have been living at 1717 Penn Avenue, Apartment, I believe, 605 Wilkinsburg, PA 15221; and that's also known as Pittsburgh, PA, same zip. Q Ma'am, are you currently taking any medication this morning that would hinder your ability to answer my questions this morning? A No. Q Okay. Where did you go to high school, ma'am? A Sharon Senior High School __ Q And where A Sharon-- Q I'm sorry. Go ahead. I was just going to ask where that was located and you beat me to the punch. Go ahead. A Sharon, Pennsylvania. Q And what year did you graduate I ma'am? A June 1977. Q Okay. I'm going to ask a little Did you go on to college after graduating? 1 2 3 4 A 8 Yes, I did. Q Where did you go, ma'am? A From September '77 through November of '79 I went to Penn State University. 5 6 7 Q Main campus? A Shenango Campus. That's in Sharon, Pennsylvania. I received an Associate's 8 Degree. 9 Q 10 A 11 Q 12 A 13 In what, ma'am? Business Administration. And that was in '79? Right. That was November '79. And then from January '83 till May of '91, I went 14 to Point Park College where I received a , , , 15 Bachelor of Science, Public Administration. 1:- 16 And then from August of '91 to May of '93, I 17 went to St. Francis College where I received a 18 Master of Arts in Industrial Relations 19 Personnel Administration. Can I ask you a 20 question? 21 Q Not reallYI but you can ask your i ~ , , 22 attorney a question. Go ahead. 23 No, you can. You can clarify something. 24 A 25 I don't want to clarify anything. I'm trying to talk in a manner so that you can , , .'-." 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 take notes. 9 Q No. You don't have to worry about that. A Just ignore you? Q Yeah. I'm just making my notes so I can follow them. A Okay. Q We get a copy of that. That's fine. Just conversational. You don't have to __ That's fine. I have a few questions. I just want to back up. Where is Point Park College located in? A Pittsburgh, Pennsylvania. Q And St. Francis? A The main campus in Loretto, PA; but I went to the Pittsburgh campus. Q Okay. And the Master of Arts Degree you received in St. Francis, what was that again? A Industrial Relations Personnel Administration. Q What does that entail, ma'am? A Labor relations, personnel administration. 11 there, ma'am? Joan Bruce. Okay. Are you a salaried worker? Yeah. And what was your hourly rate, if you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 A Q A Q know? A Q A Q At that point? Yes. I'm sorry. Back in -- I'm sorry. I don't remember. Have you filled out federal personal income tax forms? A Yes. Q For the last five years? A Yes. MR. PORUBAN: I'll go off the record for a second. (A discussion was held off the record) BY MR. PORUBAN: Q Ma'am, if you have -- I just asked you prior to going off the record if you had completed federal income tax forms going back to the last five years, and you stated you have. I just wanted to request that you ask your attorney to provide me copies of those if 1 12 you can. That's fine. A Okay. Q Prior to going to PA Social Services Union, ma'am, where did you work? 2 3 4 5 A The Department of Public Welfare in 6 the Bureau of civil Rights Compliance, which is 7 now known as the Bureau of Equal Opportunity 8 under the Department of Public Welfare. 9 Q And when did you begin working there, 10 ma'am? 11 A That was November of '93 until May of 12 '95. , ~ 13 Q Okay. What were your duties there, 14 ma'am? 15 A I was civil Rights Compliance 16 Specialist I, and the job entailed doing site 17 visits, providing technical assistance to 18 insure compliance with federal laws, 19 departmental laws, state laws; doing civil 20 rights compliance reviews, working on 21 investigations of complaints of discrimination 22 or harassment as needed; doing site visits to 23 day care licensing facilities I personal care 24 homes, mental health and mental retardation \. 25 facilities I and children and youth licensed 1 2 Welfare. 3 caseworker. 4 Q 5 A 6 Q 7 A 8 Q 9 A 14 A Pennsylvania Department of Public I was an income maintenance . ,'.' Is that :' , , , Income. Oh, okay. Income. Maintenance caseworker. , I I I I t, And what did that entail? Determining eligibility for client 10 benefits, interviewing clients, participating 11 in appeals hearings as needed, determining C ~i .., I , I 12 client benefits. 13 Q And who was your immediate supervisor ( 14 there, ma'am? 15 A 16 Q 17 name? 18 A 19 Q Barbara Broadwater. , I ~ I' , ! Could you spell the last Sure. B-R-O-A-D-W-A-T-E-R, one word. And when did you start there, ma'am, 20 with that particular position? 21 A 22 Q June of 1988. '1 > , , Okay. So from June '88 to November I, ! i Yes. 23 '93 you were at that position? 24 A l 25 Q And that was also Department of c. \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Public Welfare? A Right. Q Okay. It was just a different position than the A Right. Q Okay. Before June of '88 where did you work, ma'am? A Department of Public Welfare, North County District Office as a Clerk Typist II. Q And that was from -- When did you start there, ma'am? A That would have been May of '87. Q And if you remember, ma'am, do you recall your supervisor there? A Marlene Hobson. Q And what were your responsibilities at that position, ma'am? A Clerical support to income maintenance caseworkers, data entry, telephone answering, check writing, typing. Q Okay. Prior to May of '87, where did you work? malam, A The V.A. Hospital, Oakland. And l that's in Pittsburgh, Pennsylvania; University Drive. I was there from April of '82. I held ..- ,\-. ~~.~ 15 .-. 16 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 several different positions there, so let me It would probably be from April of j ~ ! start at the front and go backwards. '82 until September of '82, I was a file clerk, and from September of '82 till October of '83, I was a unit coordinator -- I mean ward secretary. And then from then I went to the A Yeah. The file clerk was a GS-3 travel or Transportation Department where I worked as a travel clerk through the remainder of the time. Q Up until '87? position I believe. Q Okay. A And the rest of them are for -- The ward secretary was a promotion from file clerk, and then the transportation was a lateral. Q Okay. And what was your -- Strike that. Before April of '82, ma'am, where were you employed? . A In Boyers, Pennsylvania, as a clerk typist Wait, wait, that's wrong. I worked . , . for the Department of Public Welfare as a Clerk Typist II from November of '80 until I went to ~ ~ _ . ~. . '-"';' ....:<\. ".- ' r-. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 \. 25 the V.A. Q Okay. So from November 8, 1980 to April '82? A Yep. Q And do you remember your supervisor there, ma'am? I: " I, " , A Bertha Krause, K-R-A-U-S-E, and also part of that time Anne Carey, which is now Anne Hammond, H-A-M-M-O-N-D. Q Was that particular job with the Department of Public Welfare in November of '80, which you started in November of '80, is that also in Pittsburgh, ma'am? A No. Sharon I Pennsylvania. I'm sorry. Q So I'm just assuming you graduated in November of '79, and you started at the Department of Public Welfare in November of '80. Did you have any jobs between that time? A Yes. You want all of them, huh? Q Yeah. Might as well. A Okay. Let's go backwards. Let's start with June of '77. I started working at McDowell National Bank. Q Could you spell that, ma'am? 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 A M-C-D-O-W-E-L-L. o Where was that located? A Sharon, Pennsylvania. And that was a summer job that ended September of '77, and I started -- I went back to school. Then that following summer I worked at First National Bank, and 0 Where were they located, ma'am? A That's in Hermitage, Pennsylvania. 0 Okay. A From there I worked at - - I had a SETA job. I worked at the IRS for three months that summer. o Anywhere else, ma'am? A Yes. o Okay. A Right after graduating from Penn State I worked for the federal government, Boyer's at the NACI Center. That's N-A-C-I, National Agency on Checks and Inquiries, as a Clerk Typist I. o Any other jobs, ma'am, after that? A I worked at Fashion Bug. o And where was that located, ma'am? A Hermitage in Shenango Valley Mall. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o A Okay. And then from there I went to Kauf 19 Well, at that point it was Straus's; but now it's known as Kaufmann's and that was in the same area. o Any other jobs, ma'am, at that point? A None that I can think of. I don't think so. o That's pretty thorough. A But I've been employed ever since I left high school. o That's apparent. Other than you had your Are there any other degrees you received other than the ones YOU've noted today. You got your B.A. at Penn State. A B.S. o Okay. The B.S. and then you also had the A M.A. o in -- Okay. so, those three. In your current job with PA Social Service Union, ma'am, do you receive any other on-the-job training? A In August of '95 I went to the George Meany Center for one week of arbitration 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 training. Q And where was that located, ma'am? A silver Spring, Maryland. In September of '95 I went to Philadelphia for a week of negotiations training, and it was through S.E.I.U., which is Service Employees International Union. Q Is that labor negotiations, ma'am? A Yes. Q Any other seminars currently you've attended? A Right now I'm in classes. Monday evenings I take a class that just started last week through the Allegheny County Bar Association. I think it's called People and the Law. I have a certificate that I think I got in--let me think--January of '95 from Penn State. I think it's Labor Relations in a I I I ! Unionized Work Place is what the certificate is for. I , I , ~ Q Do you supervise anyone in your current job, ma'am? A I don't so much supervise. I provide technical assistance to stewards, and I think I I, " have a hundred stewards right now. I.... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 21 Q So being a lay person not as familiar with the way unions in the work force work, the " stewards are the leaders of particular locals or particular unions? . .' ".; , A Let me explain it this way. Right J, I now I believe I have 30 shops that I cover. handle it. I provide them with technical And each shop has anywhere from one to five stewards. Okay? As situations occur, the stewards contact me to ask me how they should assistance as needed. If needed, I go out into the field and do, like, on-the-job training for them on how they need to handle a situation. In many r' !!I I' i i I instances I go out because I have to handle the situation dealing with management. Q And is it, when you say how to deal with a situation, you're talking about how to comply with the various laws and that? , ' I A Right. If an employee is pulled in for discipline, a lot of times the stewards aren't sure how to handle that situation. And I go in and advise them, you know, look at the facts of what's going on and advise them of the best way to handle the situation. .. ...... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 22 Do we grieve it? Is it a grievable issue? What can we do to keep the person from being disciplined? Is there another way around it? Is there a way to settle the issue with management? Or if theY're bound and determined they're going to discipline, or if it's something that rises to the occasion of discipline, what's our role? What do we need to do next? And that's also for any other work-related issue. It could be smoking. It could be the fact they don't have a lunchroom. Q I'd like to actually visit the day of the event here, ma'am, January 24th, 1996. From my understanding, were you at Allenberry on the Breeches for a business conference? , , A Yeah. That's one that I did leave off. From that Sunday, we came into Allenberry to start training for the state contract. It , 1 , ~ was a mobilizing training, mobilizing and contract negotiations training. And it started, like I said, that Sunday and it ended that Wednesday. , I . , I ' , Q Had you ever attended a conference at Allenberry before? ; ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (, 25 ", A 23 I had never been there before. No. Q When you say we, ma'am, what -- Your whole department went, or was it __ A I think there's like 20 business agents across the state; but it was business agents, stewards, chapter activists who were going to be there working on the contract or working on mobilization activities. And then there were people there from locals in New York that were helping to do the training, as well as Washington S.E.I.U. personnel. Q So you arrived there on Sunday that week. A Right. Q Okay. What time did you arrive, ma'am? A I'm not sure. Q Were you traveling alone? A Yes. Q Okay. Was there anyone else from your particular department there with you at this seminar? A Okay. What do you mean by, with yOU? Q I don't mean sharing a room. I just mean attending the conference. Were they ... -, ,~.. ~ .... .... 24 1 2 3 4 5 6 7 8 9 10 11 12 13 ( 14 15 16 17 18 19 20 21 22 23 24 25 attending the seminar there? A Okay. Everybody was there for the same reason. Okay? So that's what I'm saying. I don't understand what you mean by, with you. From my area there was another business agent from that area, but we didn't travel together. We traveled separately. I believe she had to be there prior to when I had to be there. Q I'm sorry, ma'am. I just wanted to clarify. Was there anyone else at that conference from your department, if you remember? A Don't say department. That's the word Q Yeah. I want to use the right -- , . , I \ A From the vicinity that I work in , . I I I I there were several people there. Q Okay. That's what I'm getting at. I'm not using the right term and I apologize. ~ Okay. Do you remember who was there? A Charlie Datz was there. Q How do you spell that? 0, " A D-A-T-Z. Q Okay. A And he's a state employee. He works 1 2 3 4 5 6 7 8 9 10 11 12 ( 13 14 15 16 17 18 19 20 21 22 23 24 25 for Pennsylvania Human Relations Commission. 25 Q Okay. Who else, ma'am? A Orson Tartt was there. That's T-A-R-T-T. And he rode home with me. Q After the conference was over? A Right. Joan Bruce, who was at that point a coworker. Q Okay. Anyone else, ma'am? A Not that I can think of right now. Q Okay. A But there were people from all parts of the state. I mean, there were business agents from Erie. There were members from Erie. So, people could have been there from New Castle, Butler, Fayette, Washington, Westmoreland County; any of those areas. Q Do you remember what day of the week your fall occurred, ma'am? A Wednesday. Q Okay. The final day? A Yes, as we were checking out. Q When was checkout that afternoon, ma'am? A I think we had to be out of the rooms by one o'clock. 1 2 3 4 5 6 7 8 9 10 11 12 ( 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. 26 If you could, ~a'am, could you just me give me your account of the events of January 24th, '96? A We went that morning to the last session, and after the last session we were supposed to have lunch. I was not particularly fond of the food at Allenberry, so I went to my room and packed. Orson and I were going to ride together, so what we planned to do was load up the car and then go on in, and he was going to eat and I was just going to relax for awhile before we got on the road. We went to my car first from the conference around It's behind the administrative building, the building you check in. I pulled my car closer to the Stone Lodge so I'd only have to come out with my case. I went in, grabbed my bags, which was a purse and a garment bag, came out, walked down the one step in the building out of the Stone Lodge, walked down the sidewalk, stepped down, and as I stepped down my foot hit ice and gravelly material that looked like kitty litter or something. 27 1 2 3 4 5 6 7 8 9 10 11 12 13 ( 14 15 16 17 18 19 20 21 22 23 24 25 As my foot hit it, it started to slide, and I started to fall and I tried to catch myself. I ended up twisting my knee. I felt this sharp pain and I heard a pop, and then I didn't feel any more pain; so I thought I was okay. So I hit the button on the remote to unlock the trunk, walked over, put my stuff in the trunk, got in the front seat and, you know, discussed with Orson what had occurred; the fact that I had twisted my knee. His comment was something to the effect, yeah, I saw you walking funny. Are you okay? And I said, yeah, I think I'm okay. So we drove around out of Allenberry, went back He decided he was going to go ahead I I ,\ \ , I i } around the front to come in the entrance so we could park closer to the building where the meal was and went in to check out. and get something to eat. He asked me again was I going to get something. I said no. I was just going to check out. So when I went to stuff. She asked how my stay was. And I said, , , " " " . 'I the counter to check out, I gave the woman my it was fine except for I had just twisted my knee. I said, can I have an accident report? ,~ .l.~ : ' 1 2 3 4 5 6 7 8 9 10 11 12 I 13 14 15 16 17 18 19 20 21 22 23 24 25 28 I think I need to fill this out. So she gave me the report. She said, are you okay? What happened? I told her what happened. She said, do you need to see a doctor? I said, well, it's not hurting right now. I think I'm okay. So I told Orson to get my boss, which at that time was Carolyn Giddings. Carolyn came over and I said, just want to let you know I twisted my knee. I think I'm okay, but I wanted to let you know. I said I'm filling out an incident report. So she said okay. So I sat down in a chair to fill out the report, and I filled it out and was finished and went to ask them to make copies of it. When I went to stand up, I couldn't get up. I mean I was in excruciating pain. My leg would not hold me. After a couple minutes I was able to get up with a little assistance. I went over to the counter and asked them to make copies. I gave a copy to Carolyn Giddings. I gave the original to the place, and then I took a copy. They again asked did I want to see their doctor. I have an HMO, and if you're not dead or dying, they don't want you to see anybody else's doctor. So I said I'd wait 29 1 until I got back to Pittsburgh. 2 So, I sat there and waited for Orson. 3 We went out to the car, and he asked me was I 4 going to be okay, and I said I thought so, and 5 my boss said, well, maybe you should have him 6 drive. It will give you some time to rest your 7 leg. 8 I believe he lives in Apollo, PA, 9 which is a few miles from Pittsburgh. I lived 10 at that point in Wilkinsburg, which was closer 11 to Monroeville. So the ride that I had with 12 him -- Once he would get out the car in Apollo, 13 the drive wouldn't be that far, no more than a 14 half an hour. 15 We got in the car, said bye to 16 different folks and then started on the road. 17 And as long as I was sitting in the car I was 18 fine. He asked a couple of times did I need to 19 stop on the road. I was, like, no, I'm okay. 20 We got to the Somerset exit, and he said he was 21 going to go grab something to eat. I said, I I , ,~ . 22 good, because I'm going to go to the ladies' 23 room. I opened the car door to get out of the I. " 24 car and could not stand. He said, well, are 25 you going to be okay? I says, I'll be fine. 1 30 When he went in to get something to 2 eat, I used the car phone to call Health 3 America and ask them if they could see me that 4 night. They told me the best they could do was . .. "') , : 5 give me an eight o'clock appointment. I said, ) I 6 that's fine. I'll be back in Pittsburgh in 7 enough time, because I'm going to have to have I I' I I l ~ 8 somebody drive me. 9 So, I went back to my house, called a 10 girlfriend of mine who told me she would take 11 me to Health America. So we went to the 12 Oakland Sterling Plaza office of the Health \ , J 13 America, and I explained to them what was going 14 on with my knee. '\ I ~ i I I , I I 15 They gave me crutches. They thought 16 I had a torn ligament, but they weren't sure. 17 Just a regular doctor saw me. 18 Q Do you remember his name, ma'am? 19 A Her name. 20 Q Her name. Sorry. 21 A Dettler or something, I think. \. . , J ; I'm 22 not sure. 23 Q Okay. 24 A But what she did was she set up -- 25 She said for me to call them that Monday and ,:... 1 set up 31 No, call them the next day. They'd 2 set up an appointment for me to see an 3 orthopedic surgeon. They took X-rays, which 4 was barrels of fun; but they gave me crutches 5 and sent me home. That Monday they had set me 6 up with an appointment. I believe that was 7 that Monday with Doctor Cohen. 8 Q Did they give you any medication at 9 Health America, ma'am? 10 A They might have given me Daypro or 11 something. I'm not sure. 12 Q Okay. Did you follow up by seeing 13 Doctor Cohen? 14 A Yes, I did. 15 Q When was that, ma'am? 16 A That was, I think, that following 17 Monday. 18 Q Okay. And what were your complaints I i . 19 to him, ma'am? 20 A I told hir, exactly what had occurred. I \~ Ii' , , 21 He did an exam, looked at the X-rays. 22 Q Did he render any treatment, give you ! r' 23 any treatment? 24 A What he did was, you know, told me to 25 stay on the crutches. He thought at first it . , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 32 was torn cartilage, but after he examined me he decided it wasn't that. We followed up with an appointment, I believe, in two weeks after that. And I was allowed to physically go back to work. I saw him from January -- Well, I think February through, I think the beginning of March. He set up an MRI for me to have that done and had me go into physical therapy for my knee. He didn't read the results of the MRI because he left the practice, and referred me to Doctor Nueschwander, N-U-E-S-C-H-W-A-N-D-E-R, I believe. Q Where is he located, ma'am? A Pittsburgh, Pennsylvania; Mellon Pavilion. Q Okay. Did Doctor Nueschwander interpret your MRI, ma'am? A Eventually, yes, he did. Q When did you first go to see him? A It would be March of '96. Q And what were your complaints to him, ma'am? A I explained to him what had happened with my knee, the fact that I couldn't stand 1 for extended periods of time, I couldn't do 33 2 steps without a lot of pain. Actually, it was 3 hurting. Like if I would sit for periods of 4 time my knee would kind of lock. 5 6 7 in therapy. 8 9 Q And what did he do for you, ma'am? A He gave me medications to try, had me Q The prior physical therapy that Doctor Cohen sent you to, where was that? 10 A 11 question. 12 Q 13 I knew you were going to ask that If you remember. If not, your records will provide that. 14 A 15 Q Yeah. They should show. Do you remember where Doctor 16 Nueschwander 17 A Same place, same therapist. He 18 thought I just needed more intense therapy, 19 that the muscles needed to be stretched. 20 Q Did he initially share the torn 21 cartilage view that Doctor Cohen had, or did 22 he 23 A 24 problem. 25 Q He thought it was a ligament And how long did you treat with him, ! .; I'..... 1 2 3 4 5 6 7 8 9 10 11 12 ( 13 14 15 16 17 18 19 20 21 22 23 24 25 ma'am? 34 A I saw him from March until November of that year, at which point I was disgusted because I wasn't getting any better. And I didn't think that the therapy was working at all. So then I went to see Doctor Janeway, Timothy Janeway. He's in Shadyside, which is part of Shadyside Hospital. Q Could you spell that last name, ma'am? A J-A-N-E-W-A_Y. Q And who referred him to you? A Who referred me to him? Cynthia HUdson, a friend of mine. He had done surgery on her shoulder. Q Was he an orthopedic surgeon? A Yes, he's an orthopedic surgeon. Q And when did you first see him, ma'am? A It would have been, I believe, November of that year. Q And what were your complaints to him? r ~ . A Same as -- I had ran through the ~. J . " whole scenario of what had occurred; the fact , , that I had seen Doctor Cohen; that I had seen ~ 1 35 Doctor Nueschwander; that I was not getting any 2 better. I was having the same problems. 3 Q What did he prescribe? 4 A Well, first he did a physical exam; 5 and then he told me to stop taking the 6 medication that I was taking because it was not 7 helping. I had taken Daypro, Naprosyn. They 8 kept trying different medications, because 9 nothing would work, and I can't remember all 10 the names of them because he didn't think that 11 that's what the problem was. 12 What he told me was he thought that 13 he needed to do arthroscopic surgery to get in 14 there to see what was going on. At that point, 15 you could actually -- When I sat on the side of 16 the exam table, when I would straighten my knee 17 out, you would hear all kinds of noise. And 18 when I would bend it, it would catch and it was 19 a lot of problems. 20 Q At that point, ma'am, were you still 21 using the crutches? 22 A No. 23 Q Were you able to walk at all? 24 A I was, but it was painful. Steps 25 killed me. 1 2 3 4 5 6 7 8 9 10 11 12 ( 13 14 15 16 17 18 19 20 21 22 23 24 25 36 Q Okay. Which leg was it again, ma'am? A Right leg, driving leg. And I do a lot of driving. I do even more so on the job, but I do a lot of driving because a lot of it's site work. And then trips to Harrisburg, probably on an average of once every six to eight weeks I go to Harrisburg. Q So when you identified as driving leg, you mean the one that pushes the gas pedal? A Yes. Q And do you drive a stick, ma'am? A No, automatic. Q What kind of car do you drive, ma'am? A Now I have a Buick Century. At that time I had a Ford Taurus. Q How long did you use the crutches for, ma'am? A I think I used the crutches about a month. Q would the pain in your right knee occur when you put weight on the knee, ma'am, or would it just hurt? A It would just hurt if I did like a 1 37 lot of walking or driving or a lot of sitting. I mean it was a problem. Q Okay. And how many days of work did you miss because of the fall, ma'am? A Let's see. I think I missed two ) I I .~ ," , 2 , I,: I' I', 3 4 , "'1 f " 5 6 days, and then after that I did work from home. 7 So I technically didn't miss work at first. , \ ' I , ! It 8 wasn't until I had the second surgery -- Well, 9 the first surgery that I missed work. . , 10 Q The arthroscopic surgery? 11 A Yeah. 12 Q How many days did you miss as a 13 result of that? 14 A The surgery was done January 9th. I 15 didn't go back to work until January 27th, and 16 in that time there was one holiday. I \ 1 I ,I , 17 Q So that was January 9th of '97? 18 A Correct. 19 Q What was done during that surgery, , i ~ I , ,~ I~ I, 20 ma'am? 21 A Arthroscopic surgery? He went in to 22 see what the problem was, and it verified a 23 thought that he had that my kneecap was , . 'I 24 dislocated. He was able to show me on the ~ : 25 films the dislocatiori. When he looked at the I I t I \; r I " r j" l' ~~~ 38 1 MRI scan, it had looked as though my kneecap 2 was dislocated; however, it hadn't been picked 3 up by Doctor Nueschwander. 4 Q After that arthroscopic surgery, 5 ma'am, did he later go in to repair the -- 6 7 8 place? 9 10 11 A 12 A Yes, he did. , " Q Do you know when that surgery took A March 27th of '97. Q Okay. And I didn't go back to work until November 27th. 13 Q After returning November 27th of '97, 14 did you have any other surgeries on your knee? 15 A 16 Q 17 No. The March 27th, '97 surgery, was that successful, ma'am? 18 A 19 Q 20 As far as we're concerned, yeah. What follow-up treatment did you receive after the surgery? 21 A 22 hospital. 23 I had -- Let's see. ,~ , , , I was in the I was discharged that Sunday. I was home doing -- I had a -- A nurse would come in 24 and check on me. I think she came for maybe 25 two or three weeks. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 39 A physical therapist came in and an occupational therapist came in. They had me doing, as I got stronger, exercises at home; and then I was actually put in core physical therapy. The information should be in there because you guys were billed -- Well, they were billed for the treatment. I think I was in therapy from July until I think the beginning of October. Q Where was the arthroscopic surgery performed, ma'am? A St. Francis Hospital in Pittsburgh, Pennsylvania. Q And where was the second surgery performed? A Same hospital. Q Other than your right knee, ma'am, did you suffer any other injuries as a result of your fall? A No. Q Did anyone actually witness your fall, ma'am? A There was no one else in the area except for Orson, and what he indicated to me is that he saw me come out of the building and 1 40 he turned his head and was looking around, and , ,,' 2 when he turned back around I was limping. 3 Q Okay. So he saw you after the fall 4 walking towards the car? 5 A 6 Q 7 fall? 8 A And he saw me before the fall. Okay. But he didn't see your actual No. It only took a matter of a 9 couple seconds. 10 Q Other than Orson, do you have any 11 knowledge that anybody witnessed the fall, 12 ma'am? 13 A 14 area. 15 Q 16 ma'am? 17 A 18 19 No. There was no one else in the What was the weather like that day, It had been raining. Q What was the temperature like? A It was cold. I was cold the whole 20 time I was in Allenberry. 21 Q Was it straight rain? I mean was it , , ! , ' 22 a mixture of sleet and rain or was it rain? : I 23 24 25 A I believe it was straight rain. Q Was it raining when you fell, ma'am? I , I I I I , I. f' i f..: A I don't think so. 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 when I slipped. Q Okay. And that was a pathway. So is it fair to say the pathway leading from the exit was going right to the car door? A No. Q Oh, okay. A Because this was a pathway with a step. And then this was a street. So the pathway stopped at the step and the street started at the step. , , !' Q Okay. If you could, ma'am -- A You want me to draw. Q Kind of a layout. I know not being an artist A How do you know I'm not an artist? Q You might be able to. It doesn't have to be to scale in other words. A (Witness complies). Q Okay. So this is the Stone Lodge walkway. There's a step here? A Yeah. Q And if you could, ma'am, if you could just indicate with an X where you fell. A (Witness complies). ( 1 2 Q 43 So you testified earlier that you Which foot were you stepping down with, ma'am, A Right foot. 3 from the step? 4 5 6 Q And you testified earlier your right foot Was it your right foot that hit the 7 patch of ice? 8 9 10 A Yes. Q And how did you fall, ma'am? Did your feet fly out from you, or did you stumble, 11 or the mechanics of how you fell? 12 13 A I stepped off of this step down onto the patch of ice and gravelly kitty litter 14 looking stuff, and as my foot hit it, my foot 15 went from under me, and then I tried to catch 16 myself and twisted my knee and heard a pop. 17 Q Were you carrying anything at that ! I' Ii I \ 18 time, ma'am? 19 A 20 Q A purse and a garment bag. Okay. Which hand was your purse in? Right hand. And which hand was your garment bag " !I 21 A Probably left. , , '\ ! 22 Q " ' And what kind of shoes were you ,e ~', ~; 23 in? 24 A 25 Q 1 wearing, ma'am? 44 2 A Winter boots, short boots, like a 3 tennis shoe type; ties up. 4 5 6 Q Do you still have those shoes, ma'am? A No. Q What kind of clothing were you A Jeans, short jacket, sweater. 7 wearing, ma'am? Did you have a coat on? 8 9 10 Q Did you see the patch of ice prior to your fall, ma'am? 11 12 Q 13 A 14 Q 15 A No. How big was the patch of ice? Not real big. Was the character of the ice, was it flat with the surface of the walkway? I , , 16 A 17 Q Yeah. What was the walkway made of, ma'am, 18 if you know? Was it macadam, was it -- 19 A 20 Q 21 blacktop. 22 A 23 What's macadam? Like blacktop, sorry, What I stepped cff of was like regular sidewalk material, the brownish color, 24 onto asphalt. I guess it's asphalt because it 25 was a street, like a road. ..~ 1 45 Q Where were you looking when you were , II" I' , I.'. '., f' ) t , , ;ti 2 stepping off the step, ma'am? 3 A I was looking around probably, 4 watching where I was going as well as looking 5 ahead to make sure no cars were coming. 6 Q When you said watching where you were 7 going, were you looking down at the ground when 8 you were watching where you were going? 9 A Yep. 10 Q Had you walked that particular path 11 during your stay there at all, ma'am? 12 A Yes, the whole time I was there. ( 13 That's the only exit that was available. 14 Q Did you have any problems prior to 17 Q Was the ground wet when you fell I I , I I I e I I I 15 the day you fell walking on that walkway? 16 A No. 18 ma'am, when you hit the ground? 19 A I didn't hit the ground. 20 Q Okay. I was under the impression 21 that you fell. You never hit the ground? 22 A No. I slipped. 23 Q So you slipped and you popped your 24 knee, but you never fell? 25 A No. I'm sorry. 1 Q 46 Did you make any protective movements 2 with your hands, ma'am, while you were falling? 3 A I don't believe so. 4 Q Were both your purse and your garment 5 bag still in your hand? 6 A They were on my shoulder. 7 Q Okay. I just wanted to clarify for 8 the record, were you holding them in your hand 9 or you had them draped over your shoulders? 10 Because earlier you said you had them in your 11 hands. 12 A I never said I had them in my hand. 13 Q All right. I just want to clarify. 14 I'm just trying to get a picture. 15 A You asked me was I holding them. 16 They were on my shoulder. I never said I had 17 them in my hand. Because I always carry a 18 shoulder bag like this one. This is a little 19 bigger than normal. The garment bag has a 20 shoulder strap. 21 Q Okay. This gravelly kitty litter 22 substance, ma'am, was that anywhere -- Where 23 was that located? 24 A It was in this area. They had it all 25 over the place. :. , , 1 2 Q 47 place, on the Okay. When you say allover the 3 4 5 6 7 8 A Allover the facility. Q On the walkways? A Yes, on the walkways, on the steps. Q Do you know what it was? A I thought it was some kind of antiskid material. 9 10 Q After you fell, did you see the ~ particular patch of ice that you slipped on? Yeah. I turned around to see, you 12 know, as I went by it, I turned around to see ~ ~) f . 1\ /. I; , ' i , 13 what I had slipped on, and I saw that it was 14 the gravel, the kitty litter looking stuff and 15 ice in that area. i I 16 Q You say you don't recall. Was the I ) I i , 17 patch of ice bigger than a foot? What foot do you mean? A measured In diameter -- I mean a measuring . I ~ \ , . I 11 A I don't think it was bigger than a . , , , " " Was it bigger than six inches in \ , .. '..... 18 A 19 foot or 20 Q 21 foot. 22 A 23 foot. 24 Q 25 diameter? 48 1 A That'd be hard to say. It wasn't 2 like a circle. 3 Q What shape was it? 4 A probably closer to like an oval. 5 Q Okay. Was it larger than your foot. 6 Now I'm talking about your physical foot; your 7 appendage. 8 A I don't remember how big it was. 9 Q Did Orson, do you know, ma'am, did he 10 see the ice at all, the patch of ice? 11 A No, because he wasn't at that 12 building. 13 Q You said you went in and filled out 14 the accident report. Did you speak with anyone 15 at Allenberry regarding the ice situation? 16 A Yeah. I talked to the lady at the 17 desk. 18 Q Okay. What did you say? 19 A I explained to her what had occurred. 20 I told her it was icy over there. That's when 21 she told me they had put down the antiskid 22 material. I said, well, it ain't workin' 23 because I slipped. 24 Q Was the antiskid material on the 25 walkway in the prior days that you were walking I, , , ~; ~' ; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ( 25 on that pathway? 49 A Yeah. They had had a snowstorm at the beginning of the week, and actually that was the nicest day it had been. Q Okay. So the last day you were there, that was -- When you say nicest is weather wise as far as __ A Yeah. I mean it was raining, but it was better than I mean there was a lot of snow in a lot of different places, and there was ice in some of the other areas. Q Prior to that Wednesday, ma'am, you mentioned earlier that you had used that pathway to -. A Yeah. Q Did you ever encounter any ice along that pathway prior to the day you fell on Wednesday the 24th? A I don't remember any ice. I mean, I know there was snow in the area, but because of the way that the weather had been, I was what I feel was extremely cautious as to where I was walking. Q Did you yell -- If you remember, ma'am, did you yell out anything as you were \, " I , , . , , 1 slipping? 2 A 3 Q 50 No. You filed a workers' compensation 4 claim in this matter, ma'am? 5 A 6 Q 7 A Yes. Do you remember when you filed that? I gave the copy of the letter to my 8 boss that day. 9 Q And when you say letter, you mean the 10 accident report? 11 A Yeah, the accident report. And then 12 when I went back to work, I would have done the \ 13 actual workers' comp claim. And I know there 14 was a problem with it when it was filed because 15 I filled out the paperwork and sent it into 16 Harrisburg, and it got misplaced by someone 17 there and I had to end up redoing the forms. 18 Q 19 ma'am? 20 A 21 Q Okay. Is that claim still ongoing, Yes. And do you have an attorney handling ~~ . , , I 22 that claim for you, ma'am? 23 A 24 Q '.. 25 A Yes, I do. r ! And who is the attorney? Charles Warren and Ron Turo. '. !.'", 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 Q What's the status of that claim, ma'am? Are you currently receiving workers' compensation benefits? A No. I've been back to work since, I believe it's November 27th. Q Of '97? A '97. Q Okay. I forgot to ask, ma'am. Are you married? A I'm single. Q So am I. Don't feel so bad. you had any children, ma'am? A No. Have Q How do you feel currently today, with your knee, that is? A It hurts. It doesn't hurt as it did prior to the surgery, but it's still healing. Q Are you currently seeing any doctors regarding your knee? A Doctor Janeway. Q What's that for, ma'am; follow-up? A Yes. Follow-up checkup. Q Are you currently undergoing any physical therapy? A No. 1 52 Q Is he giving you any medication at 2 all? 3 A No. I haven't taken medication for 4 months. 5 Q Are you having any difficulties on 6 the job? 7 A Yes. 8 Q What problems are you having? 9 A If I drive, and this is going back to 10 even before the surgery. If I drive, like I 11 drove up here yesterday, and when I got out of 12 the car I had, you know, a lot of stiffness. 13 It's not as bad as it was, but with 14 the work that I do, I'm in a car a lot, a whole 15 lot; so the stiffness with that. When it comes 16 time for rallies -- Like next Monday I'm 17 supposed to do a rally at a nursing home where 18 I'm negotiating a contract. The rally's 19 supposed to start at one-thirty. I already 20 know that I'll spend probably the rest of the 21 week icing my knee, elevating my leg, and I'll 22 probably be sore. 23 Q Do you take any anti-inflammatories 24 for your knee, Ibuprofen or anything? 25 A Yeah, as needed. I'," -~ . 53 1 2 3 4 5 6 7 8 9 10 11 12 13 \ 14 15 16 17 18 19 20 21 22 23 24 25 Q Any other problems other than when you drive, ma'am; currently I'm talking about? A Yes. Walking for extended periods of time. Q How long? A If I have to walk for maybe more than 15 minutes, and the walking comes into play for, like, if we have rallies at work. Like I said, I'm in the middle of negotiating one contract and getting ready to start another. If either of these groups of people go on strike, I'm required to be on the picket line with them the whole time. I don't think I'm going to be able to fulfill that part of my job, which is going to be a big problem because I am the staff person assigned, standing for extended periods' of time. Q When you returned to work, ma'am, did you return to your current, or rather your prior position before the accident happened? A Yeah. The only difference was, prior to the surgery, the area that I covered was Allegheny County. While I was off, they did a 1 54 redistricting, and then staff were permitted to 2 bid on areas based on seniority. 7 my shops are 50 miles away or further. It also 3 The guy that I work with has more 4 seniority than I do, so he got Allegheny 5 County. I have Washington, Westmoreland, 6 Fayette, and Green County; which means some of 8 means that I'm in the car even more now than I 9 was before. 10 Q Okay. So, other than, I guess the 11 geographic territory you cover, was your job 12 the same job? ~ 13 A Yes. 14 Q Okay. And did you experience any -- 15 Strike that. 16 When you returned to work after the 17 surgery, ma'am, and you recuperated, did you 18 receive the same salary that you did before you 19 were injured? 20 A I think we might have gotten a raise 21 in that period of time. So I got all raises I I- Ii 22 would have been entitled to. 23 Q Have you been promoted at all since [ . i 24 the accident, ma'am? ~ 25 A There is no promotion. , , ~l.~ 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And are there any other problems you're currently experiencing, ma'am? A Yes. I can only used handicapped accessible bathrooms. That would be bathrooms with handrails or raised toilet seat. Stuff like going to the show is a big problem. I went to the show for maybe the second time since I've had the initial accident, last month; and the chairs in the theaters are low, so when I go to get up, if it's a low chair, I have problems with getting up. I can't sit for extended periods of time. Again, stuff like the show is a problem because the seats are low, it cramps my knees. Our church had a church revival this summer at Soldiers and Sailors Hall in Oakland in Pittsburgh. I could not sit in the chairs due to the cramping for more than maybe 45 minutes. What I ended up doing was sitting out in the hallway on the steps where there was a handrail so that I could use that to pull up, because the chairs were just too uncomfortable because of the lack of room for my knee, my leg rather. Q Any other problems? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 A Prior to this I had -- Prior to the surgery, I had been going to Weight Watchers trying to, you know, get my weight down. I had also been doing some walking. I did go through a period where I was kind of depressed and discouraged because I had been losing a little bit of weight, but once I had the surgery and couldn't get around I kind of, you know, like I said I got depressed and wasn't able to continue with that program. I have started to walk some now. Q Are you thinking about returning to a program similar to Weight Watchers at all? A Yeah. Q And when you said depressed, ma'am, did you see anyone clinically for that or were you just overall A No. Q And at the time of the accident, January 24th, '96, ma'am, what was your weight at that time? A what it I don't remember, and I don't know is now. I just know that it's more. 57 1 Q Have you ever had any prior 2 accidents -- Strike that. 3 Have you ever had any bodily 4 injuries, ma'am, prior to the January 24th, '96 5 fall? 6 A I had bodily injuries. As a ~ , child? 8 Q Yes. Serious injuries. 9 A No. I never broke anything. The 10 only thing was in November of '95, I lifted a 11 box at work that was too heavy, and they said I 12 had sciatic something or other. I forget what 13 it was, but I was in physical therapy for that. 14 Q Did you file a workers' comp claim 15 for that, ma'am? 16 A Yeah. But I didn't miss any work. 17 Q How long did that condition last, 18 ma'am? 19 A Not long, because you figure I was 20 injured in November. I was in therapy 21 November, December, and the beginning of 22 January I was through. And then January is 23 when I hurt my knee. 24 Q You said sciatic. What part of your 25 body did you hurt when you lifted the box, 1 ma'am? 2 3 4 problem? 5 6 7 8 9 A 10 Q 11 A 12 Q 58 A My back. Q Did you see any doctors for that A Health America; Doctor Sahovey. Yes. Q How do you spell that, ma'am? A S-A-H-O-V-E-Y. Q What did he do for you, ma'am? Put me in therapy. And where was the physical therapy? Health America. And how long was that, ma'am, the 13 physical therapy? 14 A 15 of January. 16 Q 17 A 18 Q 19 ma'am -- 20 A From November till January, beginning And did that work at all? Yes. Other than November of '95, Excuse me one second, sir. Can I use 21 your ink pen a minute, please? 22 Q Other than that injury, have you 23 suffered any other serious injury prior to 24 January of '96, ma'am? 25 A No, I haven't. I " . , .. I ~'.... , 59 1 Q Have you been involved in any 2 automobile accidents prior to January of '96? 3 A Yeah. It would have been the winter 4 of maybe '79 or '80, something like that. 5 Q And what happened then, ma'am? 6 A I was going around the curve, it was 7 in Hermitage, Pennsylvania. I was going around 8 a curve and I was on ice, and I was trying to 9 get off the road and hit some man in a Pinto. 10 Q Did you rear end his car or slide 11 into his car? 12 A Well, actually I was trying to get \, 13 off the road, so I was veering to the left and 14 he kept coming; so the front right end of my 15 car totalled the front of his Pinto. 16 Q Okay. He was travelling in the other 17 direction? 18 A Yep. 19 Q Were you injured at all in that 20 accident, ma'am? ! . !, , 23 A No. Q Do you know if the man was hurt? A No, he wasn't. Q Other than that auto accident - - Strike that. ; I 21 22 24 ( 25 I.. 1 60 Have you been -- suffered any bodily 2 injuries, ma'am, after your fall in January of 3 1996? 4 A No. 5 Okay. Q Have you been involved in any 6 automobile accidents after January 24th, 1996? 7 A No. 8 Q Okay. Are there any things in your 9 personal life, ma'am, that you cannot do now 10 that you were able to do prior to your fall? 11 A Yes. I'm very active in my church, 12 and the church means a whole lot to me. 13 Q What denomination are you, ma'am? 14 A African Methodist Episcopal. 15 Probably one of the things that upsets me more 16 than anything else is not being able to kneel 17 and take communion. 18 Q Has your church made any 19 accommodations, ma'am? 20 A Yes, they did. But, it's not the 21 same. For months I had to -- When I went to 22 church I participated in the service by being 23 in the first floor versus the actual sanctuary. 24 We're lucky because we do have an intercom 25 system so I could hear the service. 61 1 2 3 4 5 6 7 8 9 10 11 12 \ 13 14 15 16 17 18 19 20 21 22 23 24 25 Things like I have a five-year-old niece. I have to be careful as to what happens with her. While she was younger I couldn't carry her like you normally would've because I couldn't be sure I could carry her and walk without adding to my knee. Add to that the fact that I can't get on the floor and play with her because of my knee. Q Anything else, ma'am? I ~ A Walking up and down steps is still a ramifications afterwards. Driving for extended problem. I can do it, but there's periods of time is a problem. Like I said ( before, going to the show, going to plays, law SAT test earlier this year at Duquesne, and J I, 1 I' ! I going to -- I mean even stuff like I took the there was a problem because of the way that the chairs were set up. I had to have them bring in a special chair for me to use, you know a regular chair versus the attached chairs because I had to make sure I had enough room ~ . I: for my leg to stretch out. Q When was the last time, other than your follow-up visits to the doctor who performed the surgery on your knee, ma'am, when , 62 \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was the last date you received any medical treatment other than the follow-ups? A Well, I saw him Friday to do a checkup. Q Okay. When you say Friday you mean, what was that, the 2nd? A Yeah. Q Okay. Other than those follow-up visits, are you seeing any other doctors? A Not for that. I have an allergist that I saw until Health America canceled their allergy program. Q What kind of allergies do you have, ~ ma'am? A Grass, pollen, perfume, dogs, cats, fresh cut grass. Did I say flowers? Smoke. Q Have you ever been diagnosed with diabetes at all, ma'am? A No. Q Have you have had diagnosed any condition which would affect your walk or gait? A No. Q Have you ever been diagnosed with any injury that may affect your sense of balance? A No. 63 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PORUBAN: I have no further questions at this moment, ma'am. I just ask if I could have the picture labeled as Elerby 1 attached to the transcript. (Elerby Exhibit Number 1 was marked for identification) MR PORUBAN: Follow up? MR. TURO: No follow up. THE WITNESS: One thing I forgot. Shopping, stuff like when I go shopping for shoes is a problem because of the problems that I have bending my knee. It's not as bad now, but it's still like a problem bending my knee to get a shoe back on to tie back up. So if there's not a salesperson there, like Payless or some place like that, or just looking for a little casual shoe is a problem. MR. PORUBAN: Thank you, ma'am. Thanks for your time. (At or about 11:55 a.m., the deposition concluded) * * * * * \ 64 1 C 8 R T I F I CAT E ( 2 I, Amy J. Patterson, Reporter, Notary 3 Public, duly commissioned and qualified in and 4 for the County of York, Commonwealth of 5 Pennsylvania, certify that there came before me 6 the Deponent, who was duly sworn by me to 7 testify to the truth of his knowledge 8 concerning the matters in controversy in this 9 cause. 10 The questions and answers were 11 recorded by me in stenotype and subsequently 12 reduced to computer printout under my {, 13 supervision. The deposition is a true and 14 correct record of the testimony given by the 15 Deponent at the time and place indicated 16 herein. 17 I further certify that I am not a 18 relative or employee of counselor the parties 19 hereto, nor financially or otherwise interested 20 in the outcome of this action. 21 Dated this 15th day of October, 1998. 22 ~~Q-. Amy J. Patterson - Reporter Notary Public 23 24 \. 25 My commission expires 5/21/01 ..... CERTIFICATION OF SERVICE I hereby certify that I hnve served u copy of the Motion for Sumll1ury Judgment UpOI1 all purties. their attorneys or representativcs, and all othcr rclevul1t organii"..lIliol1s, in thc I1UlI1l1cr(s) set forth below: 1. By first-c1uss ll1uil. oostal!e oreoaid: Ronuld A. TurD, Esquire 32 South Bedford Street Carlisle, P A 17013 Dated: Februarv 4. 1999 Fra lin W. Noll, III, Esquire Attorn r Defendant I 98300025/NolI .' (") <.0 ~ ~ <.0 ,~ -., ~~ " rT.1 rTl O)~H CD "'-- ZI;- '04 :g qj.. ,~ i:'j :J ~E; ~ 1:a 2"8 .7 . - C)n :;;c e51T1 C .. ~ 0 ~ , (::I -:; 4. BARBARA J. ELERBY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . : V. . . . . : ALLENBERRY, INC., ALLENBERRY ON THE YELLOW BREECHES, ALLENBERRY RESORT INN : NO. 98-0374 CIVIL TERM : . . : CIVIL ACTION - LAW . . . . IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER. P.J.. HESS. GUIDO. J.J. ORDER OF COURT AND NOW, this 11H1. day of APRIL, 1999, it appears to the Court that there are genuine issues of material fact which would preclude the grant of summary judgment. Therefore, Defendant's Motion for Summary Judgment is DENIED. Edward E. Guido, J. Ron Turo, Esquire For the Plaintiff C...u~,..,;."'t,c<cL 'f /:1.,) Ie,? . -u ,..!>, ~'. Franklin W. Noll, III, Esquire For the Defendant :sld , " i I " I { I,' I I,.. I , f. \ (") U) () c '0 -n ~~: ...; -Or.> r= ::1 :1] D:!u I r- oO"::. ~. I ""J:;l ?:.~' '.0 . l(:':" ~~.~.: ::;'{:, ~t:! """1:':'1 .-" .;:. - -rl 2(:: - :~:lf~ .--{ ,J t.'? ;J> c:: '.J ~ U1 =;.:.! ~i-J '.0 -<