HomeMy WebLinkAbout00-08087
, L, ',~
",
,.' ,j
. ,
',,-,-.',-
,
F:\FILES\DATAFILE\Macdod,cur\108_ans,lInlm
Created; 06/11/01 09:37:36 AM
Revised: 06111/01 10;04:41 AM
9500,108
''''----------"-"~'"---,."'~,,.--------~~"~._--"~~ -"
......~,~'"~.~~~_.~-_..._-,--~-'''~-''''
.----------;
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
."..~._~,~,.".o~,,~,,~~..~_.___~ .
PATRICIA A. MECK and
FRANK MECK, husband and wife
Plaintiffs
NO. 2000-8087
/
CIVIL ACTION-LAW /
. /
. ....."",'
GIANT FOOD STORES, -:---~_._,..,-'"._..,_...,--'--------------
Defendant /: JURY TRIAL OF TWELVE DEMANDED
---------------_./'"
\
I
./
v.
DEFENDANT'S ANSWER TO PLAINTIFFS' COMPLAINT
AND NOW, comes the Defendant Giant Food Stores and hereby responds to Plaintiffs'
Complaint as follows:
1-2. After reasonable investigation, the answering Defendant is without knowledge or
information sufficient to form a belief as to the truth or falsity of the averments contained in these
paragraphs. The averments are therefore deemed denied and proof is demanded.
3. Denied. To the contrary, the correct corporate name is Giant Food Stores, LLC.
Giant Food Stores, LLC does currently operate a store located at 255 South Spring Garden Street,
Carlisle, Cumberland County, Pennsylvania.
4. Admitted that during the relevant time hereto, the Defendant leased and operated a
grocery store in the interior of255 South Spring Garden Street, Carlisle, Pennsylvania.
5. Admitted.
6-15. Denied pursuant to Pa. R.C.P. 1029(e).
WHEREFORE, Defendant demands judgment in its favor and dismissal of Plaintiffs'
Complaint with prejudice.
COUNT II
16. Defendant hereby incorporates by reference the answers to paragraphs 1 through 15
oftms Answer.
17. Denied pursuant to Pa. R.C.P. 1029(e).
,
""," I~
~'" ,.'
"'" ,,; ".J
~"..' , ^,.,,'
< ""'E
WHEREFORE, Defendant demands judgment in its favor and dismissal of Plaintiffs'
Complaint with prejudice.
MARTSON DEARDORFF WILLIAMS & OTTO
By
George B. aller r.,
LD. Number 49 3
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Defendant
Date: ?J ~ 3O).;:lOO1
.J.
;,;,
_1""" "
,--- -.r ,,,,'" i.'~ . ,,'
-' j,.-
VERIFICATION
TIMOTHY REARDON, who is Vice President-Risk Management and Support Services of
Giant Food Stores, LLC and acknowledges that he has the authority to execute this Verification in
behalf of Giant Food Stores, LLC certifies that the foregoing Defendant's Answer to Plaintiffs'
Complaint is based upon information which has been gathered by my counsel in the preparation of
the lawsuit. The language of this Answer is that of counsel and not my own. I have read the
document and to the extent that the Answer is based upon information which I have given to my
counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that
the content of the Answer is that of counsel, I have relied upon counsel in making this Verification.
This statement and Verification are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal penalties.
Dated:
F:\FILES\DATAFILE\Macdoc,cur\lOS-ans.l
.
., "~iI!!I".,,~,
CERTIFICATE OF SERVICE
I, Nichole 1. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Defendant's Answer to Plaintiffs' Complaint was served this date
by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as
follows:
Robert 1. O'Brien, Esquire
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
MARTS ON DEARDORFF WILLIAMS & OTTO
ByJ{du-t1 Y\ ~f1U-
Nichole 1. Myers
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated:
vJo -SOl ~Ol
,0,;,
'I'
~
~
,'~
-'- Lli'~aI~~~~B411tllI'jf,jU'--i1iif ::..~'." :'L.M.'
,e,."
",
.--.-,'
"'
~':I:'
i;~ f
(-, c'"
~;
)
1~.' ,.
-~
:.'~l
i :;J
''''''j
I
;!.
M
~,~",I ,
o
k
.1
.J~ <."
"
..-
!'.,.;\FILES\DATAFILE\MISC\arb.memolnlm
Created: 01/28102 10:10:11 AM
Revised: 01/28f021O:12:20AM
DEFENDANT'S MEMORANDUM REGARDING BURDEN OF PROOF
IN PREMISES LIABILITY CASE
DISCUSSION:
1. Plaintiffs burden of proof:
A property owner is not an insurer of the safety of its invitees. Moultrev v. Great Atlantic
& Pacific Tea Companv, 281 Pa. Super. 525, 529-30, 422 A. 2d 593, 596 (1980). Moreover, the
mere existence of a harmful condition in a public place of business, or the mere happening of an
accident due to such a condition is neither, in and of itself, evidence ofa breach of the proprietor's
duty of care to his invitees, nor raises a presumption of negligence.
rd. at 530, 422 A.2d at 596. Mvers v. Penn Traffic, 414 Pa. Super. 181,606 A.2d 926 (1992).
The governing legal provision in premises liability cases is 9343 ofth~ Restatement of Torts
(Second) which provides:
"A possessor of land [such as Defendant] is subj ect to liability for physical harm caused to
his invitees by a condition on the land if, but only if, he
(a) Knows or by the exercise ofreasonable care would discover the condition,
and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) Should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
o (c) Fails to exercise reasonable care to protect them against the danger."
Moultrev v. Great Atlantic & Pacific Tea Co., Supra.
Under 9343, Plaintiff must establish as part of his burden of proof that Defendant (1) knew
or had notice of the dangerous condition; (2) expected that Plaintiff would not discover or realize
the danger or protect herself against it and (3) failed to take reasonable steps to protect Plaintiff
against the danger.
Under 9343, Plaintiff must prove that he could not have discovered or realized the danger
in order to protect himself against it. Defendant believes Plaintiff can not establish that the
substance or slush was there long enough to establish constructive notice on the Defendant.
Section 343A of the Restatement of Torts (Second) also emphasizes that a possessor ofland
C is not liable where the invitee should know of the danger. Section 343A states:
o
o
_n
O~,
"
o
c
c
e
.J
#
(1) A possessor of land is not liable to his invitees for physical hann caused to
them by any activity or condition on the land whose danger is known or obvious to them,
unless the possessor should anticipate the hann despite such knowledge or obviousness.
(2) [Not applicable-applies to public land/utility].
The above Section has been adopted by the Pennsylvania Superior Court. Chiricos v. Forrest
Lakes Council, 571 A.2d 474 (Pa. Superior Ct. 1990). Comment (e) to Section 343A states:
(e) In the ordinary case, an invitee who enters land is entitled to nothing more
than knowledge of the conditions and dangers he will encounter ifhe comes. Ifhe knows
the actual conditions, and the activities carried on, and the dangers involved in either, he is
free to make an intelligent choice as to whether the advantage to be gained is sufficient to
justifY him in incurring the risk by entering or remaining on the land. The possessor of the
land may reasonably assume that he will protect himself by the exercise of ordinary care, or
that he will voluntarily assume the risk of hann if he does not succeed in doing so.
Reasonable care on the part of the possessor therefore does not ordinarily require
precautions, or even warning, against dangers which are known to the visitor, or so obvious
to him that he may be expected to discover them.
Respectfully Submitted,
MARTS ON DEARDORFF WILL
e:,
S & OTTO
By
George B. Faller, Jr., Esquire
LD. Number 49813
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
"'.
-"~.!1'IN
,< ., ~-
"
~ --'
"< 't(
"
~ F:\FILES\DATAFILE\Macdoc.cur\108-pra.lImah
Created: 12/13100 04:10:12 PM
Revised; 12/13/00 04:21:07 PM
9500,108
.-'
PATRICIA A. MECK and FRANK
MECK, husband and wife,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
NO. 2000-8087 CIVIL
CIVIL ACTION-LAW
GIANT FOOD STORES, INC.,
Defendants
JURY TRIAL OF TWELVE DEMANDED
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Enter the appearance of MARTS ON DEARDORFF WILLIAMS & OTTO on behalf of
Defendant, Giant Food Stores, Inc., in the above matter. Defendant hereby demands a twelve juror
jury trial in the above captioned action.
MARTSON EARDORFF WILLIAMS & OTTO
By
George B. Faller, Jr., Esq
J.D. Number 49813
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Defendant Giant
Food Stores, Inc.
Date: December 13, 2000
,
,
I,
,~o , ,.
~ ., -' '
" ,=
-, .,' ---<, "," wn.....
,
CERTIFICATE OF SERVICE
I, Melinda A. Hall, an authorized agent for Martson Deardorff Williams & Otto, hereby
certifY that a copy of the foregoing Praecipe was served this date by depositing same in the Post
Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows:
Robert L. O'Brien
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, P A 17013
MARTSON DEARDORFF WILLIAMS & OTTO
BYU(~~ (l \lIvU
Melind . Hall
Ten East High Street
Carlisle, P A 17013
(717) 243-3341
Dated: December 13, 2000
~~~lM!1ili>i1!~J~NiI>H~~iml~~'!"""'::i"",,gd,:;\'fA..~ill,~;ci!:;:!~~~~~~.
.'
'~, ~ -~ ->
--'-<1
~
,
() (::J- C;
C <::) "'1
Z': i::J
-ofY f-r, -
~ nlrTl ,:m; ~,"i -:D
Z::C ;\~~
z:C CO
~;E,
r:;CJ J::'1l"
~CJ :::r. ';'::: --n
~'.~(}
);.9 cD C;i;Tl
~ ,-.i
z: :..J ~-~
-=1 _v
-< '0 -<
~_ ,OV ~"=
" ~
-
, ~, ~ ,
.~ v~ ^.~
, .~ .
ff:
,
,~,' ~.,
PATRICIA A. MECK and
FRANK MECK
husband and wife,
Plaintiffs
vs.
, M-
__ L,
. , ;, J
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000- 9cB( CIVIL
CIVIL ACTION - LAW
GIANT FOOD STORES,
Defendants
Dear Prothonotary:
PRAECIPE
Please note that the judgment in the above captioned action has been satisfied.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
,
By ,-- I < c20,M.LAI'---
Robert L. O'Brien, Esquire
Attorney for Plaintiff
1.0. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
'''-',,',' >\'
~.
~t
.~
\
{,.
;;:
('
,"
I.i
It>c;
't
,
\~
\
"'...:::.............,....i}.
", ~
,',;,
i':,-
::.\
;,,If
;,~1~
,
')1
,,';/'
;l
i~47
"
W
,,/
, i
'i
;..#
4
,
,
..'u =,~,_,
~llij'~~~~~~~illil~tm'i"fM_~~i~~_'i!i~~~.aW"'..".~-r " .'~i!llili!!ili";!!!llili~""-v.
.
~' ~ ",
..<,'J _, <,~,O~"
0 c: 0
C L~; -n
s: -.., .'
~. ,~ n"
,.J.~
rT1 n ::;:J
Z C
2~ "j..'
~g
,....:;: l~ : t-,
S; :.::-" u._
;;:~ :x:: .,
1<__, : 1
L- :5 '-
';P '-' ,-'-, n'l
C ~',
:z; c- ".
:!.]
-~ G'> -~
{is
&j
'^~ ~ ,",,~..~~~,
Id,
~twu (j , >>u;~k-
F fiAVh. >1tz Jv
)LA- ~7/' ~'-
,iI.
,
<----
~ ..........."-"'<
l
)
)
2
)
)
)
)
In The Court of Common Pleas of
Cumberland County, Pennsylvania
C!-
)lO.~"
g'O"'ii7
fJwd Il~ - ;l~(
19
OATH
We do solemnly swear (or affirm) that we
the Constitution of the United States and the
wealth and that we will discharge the duties
r~~~dA(br~{o~,
~~~
--t==V~
will support, obey and defend
Constitution of this Common-
- our office wi -~idelity.
<---'
r ,
<-t. )) ) . ~L
:2 ~r:nan
AWARD
We, the undersigned arbitrators, having been duly appointed and sworn
(or affirmed), make the following award:
(Note: If damages for delay are awarded, they shall be
separately stated.)
~~~~~~~
'1 Ii 0 Q(),()() l. 1,*
Ai,
~.......i'
. Arbitrator, dissents. (Insert name i=
applicable. )
Date of Hearing:
1 h1 wl6 ..-
/ ~LIZ--
Date of Award:
~W\6L
. ~ ~r.nan
NOTICE OF ENTRY OF AWARD
Now, the 1.-..1- day of ~ , ll:t .2ooJ., at!.s2..:..e!.., LJI'!., the above
award was entered upon the docket and notice thereof given by mail to the
parties or their attorneys.
Arbitrators' compensation to be
paid upon appeal:
$ J.9o.(Jl)
.,
~ Rr~ ......~
~ . .rdC~onOtary
~C ~PP. ,
Deputy
By:
~","
;">~N:,""""_k" .,; ~ '.'" "'.',," . ,~,
r.fl'i1;M.~~.~~~Ilffilfu1lli~m:~,lif,[!Ilill)ji'"'"" ~"'lil~~iIllt'~"~ '--''.~~,.".' "~-
-:Wa.iJ
~ .
~ R iJ~~, ~. ~ ,~~ - li1/-b au ~~ rfJ.. ~. (2. I7O"--S:
QL.- tvL. 2<>-1&..:- , ~.
~e..
3, /0',0 >-
<}...
(') 0 0
C N "
-uffi 3: .._I
92Y:1 """ '~;~I r~'~
::u
~;i: I -Tj f"n
- i}O
-<2: ,:~,(l)
~o -0 :::J"'f
)"'0 .J_ ..-l
3: 0-'-
zd ~ -:70
J>c: r-;Ill
~ ;::::j
(:) )>
I.D ::::!
~.~.t,;
Iltw- ()~ ,4,
~ ;8 d~, fjv. ~-
';~..!l""."';;}"-- ~.
,,,,,
"
~--" '~'),
ARBITRATION MEMORANDUM
Injured Parties:
Patricia Meck
Frank Meck
Date of Occurrence: Sunday, November 14, 1999
Place of Occurrence: Giant Store
255 South Spring Garden Street
Carlisle, PA 17013
History
On Sunday, November 14, 1999, Pat Meck traveled with her husband, Frank Meek, to the
Giant Store in Carlisle to purchase grocery items. The weather was clear that day and Pat was
wearing rubber soled shoes which were in good condition and had a sole pattern which was
designed for good traction.
One of the items Pat wanted to purchase was pudding mix. She went to the aisle
containing this product and found the mixes were located on the bottom shelf unit. Pat bent
down on one knee to pick up a package of the mix. When she bent down she noticed that dry
pudding mix was spread onto the shelf unit. Picking up one package and holding it over the
shelf, she noticed that pudding mix was coming out of the package. She replaced the package
onto the shelf and choose another package which did not appear to be leaking. As she attempted
to stand, her feet slipped out from underneath her and she landed hard onto her buttocks on the
tile floor.
Pat immediately experienced severe pain in her coccygeal area, lower lumbar spine and
lumbrosacral areas. Pat remained on the floor. EMT's were called to the site but Pat refused to
be transported by ambulance. Her refusal resulted from the fact that she had driven to the store
with her husband. Frank Meck is a retired school teacher who is disabled and not permitted to
drive a car. Had Pat been transported by ambulance, she was afraid that Frank would not be able
to get home.
At the time of the accident, Pat was a secretary at the Claremont Nursing Home which is
operated by Cumberland County. The next day the pain continued to persist. By Tuesday,
November 16, 1999, Pat found it impossible to report to work as a result of the pain and she
presented to Dr. Taylor, her family physician at Masland Associates located in the Medical Arts
Building at 220 Wilson Street in Carlisle.
~-,
( '",-,-~~I
,~,'""'-,,;.,~ 'jiji"j
Medical and Work History
Dr. Taylor first saw Pat on November 16, 1999. The Doctor concluded that Pat had
suffered at least a coccygeal bone fracture and ordered x-rays to be taken. Keith Pumroy, M.D.
reviewed the x-rays and found a compression fracture inferior end plate L 1. Pat was prescribed
Flexural and Vioxx to deal with the pain associated with the fracture. She was instructed to rest
for the next few days. Pat attempted to return to work on November 23, 1999 with restrictions
regarding lifting. Her employer contacted Dr. Taylor's office to inform the Doctor that no
alternative duty was available for Pat with her restrictions. Dr. Taylor responded by directing
that Pat be excused from work for the next two (2) weeks.
Pat came back to work after this two week period still experiencing considerable pain in
her lower back. The pain would be most severe after any extended period oftime on her feet.
By January 10, 2000, the original prescription of pain medications had run out and Dr.
Taylor directed that she be prescribed more of either medication to deal with the continuing pain.
On February 2S, 2000, Pat went to Alexander Spring Rehab to seek physical therapy in an
attempt to overcome the pain she had in her lower back. At her initial meeting with Alexander
Spring Rehab, Pat reported her impairments as follows: pain, "severe", range of motion,
"severe" and strength, "moderate-severe" despite the fact that the accident had occurred more
than three months earlier. Moreover, Pat reported moderate limitations to her activities of daily
living. Two to three therapy sessions per week were scheduled for a five week period.
On interim evaluation of Pat's progress at Alexander Spring Rehab was conducted on or
about May 10,2000. Functionallirnitations remained the same, however, the pain and range of
motion limitations were noted as being moderate as compared to severe prior to rehabilitation
and she was scheduled for an additional four weeks of physical therapy at two to three sessions
per week.. In March, 2000, Pat was given a TENS unit with instructions on its use. This unit
gave Pat relief from her pain but, when her insurer denied coverage for the unit, she was forced
to return it as she was not financially able to pay privately for the unit.
Prior to the accident, Pat had been in generally good health and she enjoyed and looked
forward to walking almost everyday for exercise.
F or several years Pat has worked part -time in the evenings for a cleaning service cleaning
the offices of a large manufacturing facility in the Carlisle area. Her hours were 4pm to Spm
Monday through Friday. Since the accident, Pat has been unable to work the same number of
hours for the cleaning company as a consequence of the pain she experiences. She also must rely
on her co-workers to perform duties, such as lifting and carrying, which she was able to
perform prior to the injury. She presently is working fourteen hours per week.
In past years, Pat worked every weekday with the cleaning company at a wage rage of
$7.90 per hour. Twenty hours of work per week came to 1,040 hours per year with a reduction of
,~""""'~,
,)
, :" - I ~ .
.;.;. "
~"
",j, .~':
24 hours for six unpaid holidays (New Year's, Good Friday, Memorial Day, Thanksgiving, Day
after Thanksgiving and Christmas). Her typical hours in a given year totaled 1,016 @ $7.90 /hr.
for a yearly gross income of $8,026.40. Because of the injury she has a reduction of 312 hours
on an annual basis constituting an annual loss of$2,464.80.
Presently, Pat has been unable to work on the days noted below:
Claremont Nursing Home
Date:
Nov.15 cqgfl
Nov. 16
Nov. 17
Nov. 18
Nov. 19
Nov. 22
Nov. 23
Nov. 24
Nov. 26
Hours Mixed:
8
4.5
8
8
8
8
sent home
8
8
60.5 hrs. @ $14.55 = $880.28
Cleaning Service
1999 64 hrs. @ 7.90= $505.60
2000 312 hrs.@7.90= $2464.80
2001 312 hrs.@7.90=$2464.80
2002-2005(Sept.) 1,170hrs.@7.90= $9243.00
TOTAL LOST WAGES: $18,023.28
Pat continues to experience significant pain on a daily basis and her ability to perform day
to day activities of living have been and continue to be impaired. Moreover, Pat has been
informed by several of her health care providers that she can expect to have to deal with
continuing pain from the accident for the rest of her life. Pat has made a conscious decision to
approach this pain in the best way she can. When the pain becomes most debilitating, she takes
hot baths, applies moist heat pads and takes medication.
As mentioned, Pat's husband Frank is retired and disabled. He had a brain tumor
removed followed by 34 radiation sessions. He has a deficit in his intellectual capabilities and
requires significant care and attention from Pat. Much of Pat's time is spent caring for her
husband. Last year, 2001, Frank fell and broke his hip, further increasing the care and attention
. c..
"~~~
,I. "
~,' I I...
~;, . ".
,,'.
<'$__
needed from Pat. The pain resulting from the fall is one additional factor that impacts on Pat and
constitutes Frank's request for compensation.
Liability
The duty which a store owner owes to its customers is found at Section 343 in the
Restatement 2nd of Torts. This Section states that a possessor ofland is responsible for injuries
caused to his invitees if:
1. He knows or by the exercise of reasonable care would discover the
condition and should realize that it involves an unreasonable risk of harm
to invitees;
2. He should expect that invitees will not discover or realize the danger, or
will fail to protect themselves against it, and
3. He fails to exercise reasonable care to protect against the danger.
This Section has been adopted by appellate courts in Pennsylvania. See, Myers v. Penn
Traffic Co., 606 A.2d 926 (Pa. Super. 1992) and Zito v. Merit Outlet Stores, 647 A. 2d 573
(1994).
Instantly, the fact that pudding mix was spread across the lowest shelf unit should have
been discovered by the company and remedied. The pudding mix was difficult to see on the
floor and Pat noticed the pudding mix on the floor only after she slipped and was lying on the
floor. Reasonable inspection of the floor area and the shelf would have revealed the condition to
store personnel. The Zito opinion contains the following:
It is true that a less degree of attention in the placement of the feet is required of
customers in stores who "walk along the aisles where goods are displayed upon every hand [436
Pa.Super. 219] for the very purpose of catching the eye and attracting the attention of those who
use the passageways," than is required of pedestrians on sidewalks, and that the contributory
negligence of a person falling over obstacles under such circumstances is usually for the jury.
(Citations omitted).
647 A.2d 573, 436 Pa.Super. 213, Zito v. Merit Outlet Stores, (Pa.Super. 1994)
------------ Excerpt from page 647 A.2d 576
Conclusion
The Pat and Frank request that the panel find the store negligent in permitting the pudding
mix to fall and remain on the floor and that they be reasonably compensated for their injuries.
"",...,"",,~~,~ "~
~, ,
~'" -' . ~ ^'
, .
"' '--H
'~,
647 A.2d 573,436 Pa.Super. 213, ZilO v. Merit Outlet Stores, (Pa.Super. 1994)
*573 647 A.2d 573
436 Pa.Super. 213
Superior Court of Pennsylvania.
Barbara ZITO, and Joseph Zito, her husband,
Appellants,
v.
MERIT OUTLET STORES and Bernard Spain
and Murray Spain,
Partners tla Spain's Gifts, and John Doe
(Fictitious) Jointly, Severally, or in
the Alternative, Appellees.
Argued May 12, 1994.
Filed Sept. 12, 1994.
Store patron brought action against store owners
alleging that dangerous conditions in store caused
patron to fall. The Court of Common Pleas,
Philadelphia County, Civil Division, November
Term, 1998 No. 817, Herron, J., granted
compulsory nonsuit in favor of store owners, and
patron appealed. The Superior Court, No. 3973
Philadelphia 1993, Del Sole, J., held that: (I)
patron presented sufficient evidence to avoid
nonsuit, and (2) sanctions for delay were properly
imposed against patron.
Affirmed in part, and reversed in part.
McEwen, J., concurred in result.
West Headnotes
[I] Trial ~142
388 ----
388VI Taking Case or Question from Jury
388VI(A) Questions of Law or of Fact in
General
388kl42 Inferences from Evidence.
Nonsuit is appropriate only if facts are so clear
that reasonable persons could not differ about
finality of their evidentiary significance.
[2] Negligence ~1076
272 ----
272XVII Premises Liability
272XVll(C) Standard of Care
272k1075 Care Required of Store and Business
Proprietors
272k1076 In General.
Page 1
(Formerly 272k32(2.8))
[See headnote text below]
[2] Negligence ~ 1095
272 -..-
272XVII Premises Liability
272XVII(D) Breach of Duty
272k1095 Slips and Falls in General.
(Formerly 272k48)
In order to recover damages in slip and fall case,
where invitee is injured in a store, invitee must
present evidence which proves that store owner
deviated in some way from his duty of reasonable
care under existing circumstances; evidence must
show that proprietor knew, or in exercise of
reasonable care, should have known, of existence of
harmful condition, and that store owner helped to
create harmful condition or that owner had actual or
constructive notice of condition. Restatement
(Second) of Torts 9 343.
[3] Negligence ~111O(1)
272 .---
272XVII Premises Liability
272XVII(D) Breach of Duty
272kllOO Buildings and Structures
272k11 10 Steps, Stairs and Ramps
272k11 10(1) In General.
(Formerly 272k52)
Jury could have inferred that store owners had
duty to warn and failed in their duty of care where
patron fell on ramp which had existed for entire
time owners leased out store, and owners knew
about ramp's existence and degree of slope, and
where there was evidence that displays designed to
attract shoppers' attention caused patron not to see
ramp.
[4] Costs ~2
102 ----
1021 Nature, Grounds, and Extent of Right in
General
102kl Nature and Grounds of Right
102k2 In General.
Sanctions were properly imposed against injured
patron of store when, after jury was selected and
trial set to begin, patron requested recess to take
deposition of physician, since cost of delay was
directly attributable to failure of counsel to prepare
timely for trial or earlier advise court of scheduling
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
,,~-_.~' ~ ~
.--~
'~'~ ..'~,
647 A.2d 573,436 Pa.Super. 213, Zito v. Merit Outlet Stores, (Pa.Super. 1994)
problem.
[436 Pa.Super. 214] Sharon K. Galpern,
Philadelphia, for appellants.
James B. Corrigan, Philadelphia, for appellees.
Before McEWEN, OLSZEWSKI and DEL SOLE,
n.
DEL SOLE, Judge:
In this appeal, Barbara and Josepb Zito challenge
the grant of a compulsory non-suit in favor of Merit
Outlet and Bernard and Murray Spain, and the
imposition of sanctions in the amount of $1,250.00.
We affIrm in part and reverse in part.
'574 At trial, Mrs. Zito testified that she was
shopping in the Appellees' store. Appellant
described the store as "winding and snakey" with
merchandise piled very high. As she looked at
merchandise stacked to her left, she took a step with
her right foot, encountered a downward sloping
ramp, and fell. She sustained a dislocated knee. At
the time the accident [436 Pa.Super. 215] occurred
Appellees had been leasing the property for three
years.
The accident occurred in December shortly before
Christmas of 1986. Mrs. Zito entered the store,
picked up a shopping basket and began filling it with
merchandise. The aisle in the store had many areas
which required patrons to navigate between boxes.
Since the aisles were very narrow, Appellant had to
carry the shopping basket in front of her. After
finishing her shopping, Mrs. Zito moved toward the
cash register. At that time, she was intrigued by an
item on her left. As she turned to grab this item,
she also had to step forward. Unfortunately, there
was nothing to step on, due to the ramp. Her leg
then twisted causing her to fall.
Norman R. Goldstein, an engineer, was called by
Appellants as an expert in the area of ramp safety
and ergonomics with regard to ramp safety. He
testified that, based on the BOCA (Building OffIcials
and Code Administrators) 1987 National Building
Code, the ramp was twice as steep as it should be
with a slope of 12.5 degrees. Goldstein further
testified based upon a report supplied to him by
Appellants' counsel which included a statement by
Andre Branison, a Merit Outlet employee, that
Page 2
warning tape was on the floor at the time of Mrs.
Zito's fall.
At trial, Mr. Goldstein stated that the ramp Starts
about a foot before the end of the cashier's station,
dropping at a twelve-and-a-half degree incline over a
twenty inch length of run. He could not testify
about how the store was stocked or whether the
aisles were overcrowded with merchandise at the
time that Appellant fell since he did not examine the
store until three years after the accident. He could
only testify that, based upon what he read in Mrs.
Zito's deposition, the store was heavily stocked with
merchandise and the passageway was somewhat
narrow requiring her to carry her basket in front of
her. As she was looking forward toward the cash
register and her downward vision was obstructed by
her basket, all of these factors played a role in Mrs.
Zito's accidel1t. Goldstein also mentioned that the
ramp was covered in grey carpeting and was not
easy to see, but there was [436 Pa.Super. 216] no
problem with the lighting. He further testified that
after observing the ramp and the area in and around
the ramp, it was his opinion that the ramp was
excessive and very steep based upon the building
codes known to him. Mr. Goldstein attached the
1987 BOCA National Building Code to his report.
He admitted that this code was not in effect at the
time that Mrs. Zito fell.
The trial court granted Appellees' Motion for
Compulsory Nonsuit deciding that Appellants failed
to show that Appellees had either actual or
constructive notice of any harmful defect in the
design of the ramp.
[1] We begin by noting that "[a] judgment of
nonsuit may be entered only in clear cases and the
appellant must be afforded the benefit of every fact
and reasonable inference arising from the evidence. "
Canty v. Sun Transport, Inc., 422 Pa.Super. 607,
620 A.2d I, 2 (1992). A nonsuit)s only appropriate
if the facts are so clear that reasonable persons could
not differ about the finality of their evidentiary
significance. Id.
[2] Section 343 of the Restatement (Second) of
Torts sets forth the duty owed to invitees:
A possessor of land is subject to liability for
physical harm caused to his invitees by a condition
on the land if, but only if, he
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
"",,;..Ok,-",,-,IW{'
~~
.~ -.
'-'
, C_L
(M;.\.'1t~%R
-
647 A.2d 573,436 Pa.Super. 213, Zito v. Merit Outlet Stores, (Pa.Super. 1994)
(a) knows or by the exercise of reasonable care
would discover the condition, and should realize
that it involves an unreasonable risk of harm to
such invitees, and
(b) should expect that they will not discover or
realize the danger, or will fail to protect
themselves against it, and
(c) fails to exercise reasonable care to protect them
against the danger.
Myers v. Penn Traffic Co., 414 Pa.Super. 181,
606 A.2d 926 (1992), appeal denied, 533 Pa. 625,
620 A.2d 491 (1993). The owner of *575 the
store, however, is not an insurer of the safety of its
patrons. Id. Additionally, "the mere existence of a
harmful condition in a public place of business, or
the mere [436 Pa.Super. 217] happening of an
accident due to such a condition is neither, in and of
itself, evidence of a breach of the proprietor's duty
of care to his invitees, nor raises a presmnption of
negligence." Moultrey v. Great A. & P. Tea Co.,
281 Pa.Super. 525, 422 A.2d 593, 596 (1980). In
order to recover damages in a "slip and fall" case
such as this, the invitee must present evidence which
proves that the store owner deviated in some way
from his duty of reasonable care under the existing
circumstances. Id. This evidence must show that
the proprietor knew, or in the exercise of reasonable
care should have known, of the existence of the
harmful condition. Id. Section 343 also requires
the invitee to prove either that the store owner
helped to create the harmful condition, or that it had
actual or constructive notice of the condition. Id.
[3] Appellants assert the evidence established
Appellees had actual notice of the dangerous
condition, and, therefore, the entry of the non-suit
was error. We agree.
The ramp existed for the entire time the Appellees
leased the store. They were obviously aware of its
existence and its degree of slope. The question for
the jury is did Defendant have a duty to warn the
Plaintiff-invitee of its existence. Normally, a person
is responsible to observe that which can be seen.
However, the evidence presented by the plaintiff
was that the defendants created an enviromnent
which was designed to attract the shoppers attention
to various displays. In doing so, it prevented the
plaintiff from seeing the ramp. Under these
circumstances, the matter should have been
Page 3
submitted to the jury .
The jury should have been permitted to determine
if the Appellees had acted in such a fashion that they
could not rely on the Appellant observing the
existing ramp. In answering this question, they
would consider the placement of displays and the
width of the aisle. Given the conditions testified to
by Appellant, the jury could determine if the
defendants were required to warn the plaintiff of the
ramp.
Section 343 A of the Restatement (Second) of
Torts provides some guidance in this area. It states:
[436 Pa.Super. 218] Known or Obvious Dangers
(I) 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 or
obvious to them, unless the possessor should
anticipate the harm despite such knowledge or
obviousness.
Comment f to subsection (I) of ~ 343 A of the
Restatement explains in part that:
Such reason to expect harm to the visitor from
known or obvious dangers may arise, for example,
where the possessor has reason to expect that the
invitee's attention may be distracted, so that he
will not discover what is obvious, or will forget
what he has discovered, or fail to protect himself
against it. Such reason may also arise where the
possessor has reason to expect danger because to a
reasonable man in his position the advantages of
doing so would outweigh the risk. In such cases
the fact that the danger is known, or is obvious, is
important in determining whether the invitee is to
be charged with contributory negligence, or
assumption of risk. (See ~~ 466 and 4960.) It is
not, however, conclusive in determining the duty
of the possessor, or whether he has acted
reasonably under the circumstances.
In Rogers v. Max Azen, Inc., 340 Pa. 328, 16
A.2d 529 (1940), the defendant, a fur store,
appealed the judgment in favor of plaintiff who sued
to recover for injuries sustained when she fen on
defendant's premises. Plaintiff testified that she was
directed to take a set of stairs to the second floor and
turn right. When she did, she tripped over the end
of a half-inch high base which anchored the banister
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
,~~ rltll" <<
~
~.
'I
~' .....~"'~\
~< '
-~
647 A.2d 573, 436 Pa.Super. 213, Zito v. Merit Outlet Stores, (Pa.Super. 1994)
to the floor. The court disagreed with plaintiff's
contention that the railing was improperly
constructed and reversed the judgment because
plaintiff testified that she was not looking at the base
protruding from the stairway and there was nothing
to divert her attention from where she was stepping.
The court, nevertheless, opined:
*576 It is true that a less degree of attention in
the placenlent of the feet is required of customers
in stores who "walk along the aisles where goods
are displayed upon every hand [436 Pa.Super. 219]
for the very purpose of catching the eye and
attracting the attention of those who use the
passageways," than is required of pedestrians on
sidewalks, and that the contributory negligence of
a person falling over obstacles under such
circumstances is usually for the jury. (Citations
omitted).
Id. 340 Pa. 328, 332, 16 A.2d 529. See also
Beary v. Container General Corp., 368 Pa.Super.
61, 533 A.2d 716, allocatur denied, 520 Pa. 586,
551 A.2d 213 (1987) (Even if electrical wires were
obvious, sufficient evidence was presented to allow
the jury to infer that the company for whom storage
tank was to be constructed should have anticipated
that while working in vicinity of wires with its
mobile crane and its boom, the independent
contractor's employees might be distracted and
inadvertently come into contact with wires);
Hallbauer v. Zarfoss, 191 Pa.Super. 171, 156 A.2d
542 (1959) (Even though shopper fell down unlit
stairs, where evidence established that the stairs
were for use by customers, and store owner
constructed displays in a manner that would attract
the customers attention, issues of defendants
negligence and plaintiff's contributory negligence
were for jury); Yarkosky v. The Caldwell Store,
Inc. 189 Pa.Super. 475, 151 A.2d 839 (1959)
(When determining whether a business visitor's
failure to observe a dangerous condition relieves the
possessor of liability, the fact that the possessor has
objects on display which diverted the visitor's
attention is an important factor, and a lesser degree
of attention is required of customers in the stores
under such circumstances).
We [md that sufficient evidence was presented to
avoid the entry of a non-suit against Appellant.
Based on Appellant's evidence that the ramp was too
steep, the merchandise in the store was distracting
and the aisles overcrowded requiring her to carry
Page 4
her basket in front of her so that her view was
obstructed, a jury, given the opportunity, could have
inferred that Appellees failed in their duty of care
under the Restatement (Second) of Torts ~~ 343 and
343 A and were liable to Appellant for the injuries
that she sustained. (FN 1)
[436 Pa.Super. 220] [4] Finally, Appellants claim
the trial court erred when it imposed sanctions
against them for delay. After the jury was selected
and the trial set to begin, Appellants requested a
half-day recess to permit the taking of a physician's
video deposition. They contend they could not
obtain this deposition until the first day of the trial.
They argue that the trial court abused its discretion
by ordering the financial sanctions of $1,250.00 for
the one-half day delay.
This case was placed into the Day Backward
Program of the Civil Case Delay Reduction Strategy
which was implemented to address the backlog of
untried cases pending for four or more years. At
the trial scheduling conference on May 11, 1993, the
trial was scheduled for June 1st through June 4,
1993. Appellants also received notice that the trial
could start within one week of the trial scheduling
conference. At this time, the physician had not been
deposed, nor was his availability for trial
established. After the scheduling conference,
Appellants learned that Dr. Distefano was on
vacation and would not be available except for video
deposition on June 1st in the afternoon. This
information was not communicated to the trial court
until three days prior to the scheduled trial date of
June 1. As a result, the court was unable to
schedule another case on such short notice.
The trial court explained on the record that the
order was entered because the one-half day
postponement poses a delay in administration of
justice solely to accommodate Appellants' failure to
earlier prepare for trial. The $1,250.00 sanction
was to reimburse the City and County of
Philadelphia and this represented one-half of the
daily cost of operating the courtroom. The delay
and more importantly, the cost of the delay is
directly attributable to the failure of counsel to
timely *577. prepare for trial or earlier advise the
court of scheduling problems. While we are aware
and sympathetic to the problems of counsel in
scheduling witnesses, particularly experts, for trial,
we cannot [md that a court abuses its authority
when, in appropriate circumstances, it imposes the
Copyright (c) West Group 2001 No claim to original U.S. Gov!. works
,".~~ ,~~.
,'C
"~
-
647 A.2d 573,436 Pa.Super. 213, Zito v. Merit Outlet Stores, (Pa.Super. 1994)
costs occasioned [436 Pa.Super. 221] by a litigant
on that litigant. Courts are under tremendous
pressure to dispose of ever increasing caseloads in
the face of shrinking resources. To protect the
public's resources by requiring reimbursement is not
unreasonable. (FN2)
We reverse the grant of the compulsory non-suit in
favor of Merit Outlet and Bernard and Murray
Spain, and we affirm the order imposing sanctions
against Appellants.
McEWEN, J., concurs in the result.
(FN1.) Appellants also raise the claim that the trial
Page 5
court erred by limiting their expert's testimony.
Since we have determined that the entry of the
nonsuit was improper, a discussion of this issue
will not be necessary.
(FN2.) We note that the trial court, contrary to
Appellant's argument, did not impose the financial
sanction pursuant to Philadelphia local rule of civil
procedure 212.2 which bestows authority on the
court to impose sanctions for failure to settle a
case. The rule was referred to because it itemizes
the costs of operating a court in Philadelphia on a
daily basis. Appellants challenge the imposition of
a sanction, not the amount.
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
'._1....-<<-=,..,
.
J
606 A.2d 926,414 Pa.Super. 181, Myers v. Penn Traffic Co., (Pa.Super. 1992)
*926 606 A.2d 926
414 Pa.Super. 181
Superior Court of Pennsylvania.
Doris S. MYERS, Appellant,
v.
The PENN TRAFFIC COMPANY.
Argued Oct. 31, 1991.
Filed April 13, 1992.
Customer brought negligence action against store
after she suffered injuries as result of slip and fall.
The Court of Common Pleas, Centre County, Civil
Division, Nos. 1478 of 1988 and 1515 of 1988,
Brown, J., granted store's summary judgment
motion, and customer appealed. The Superior
Court, No. 375 Harrisburg 1990, Rowley, President
Judge, held that: (I) absent evidence that grapes
were on floor or that store had knowledge of grapes
on floor, customer did not raise any triable issues of
fact concerning store's negligence, and (2) small
groove in wax on floor in general vicinity of
customer's fall was not proof that store negligently
applied wax or negligently allowed wax to
accumulate.
Affirmed.
Wieand, J., med dissenting opinion.
Olszewski, J., med dissenting opinion with whieh
Kelly and Ford Elliott, JJ., joined.
West Headnotes
[I] Negligence <8:;;:> 1076
272 '---
272XVIl Premises Liability
272XVIl(C) Standard of Care
272k1075 Care Required of Store and Business
Proprietors
272k1076 In General.
(Formerly 272k32(2.8))
While store owner owes duty of care to patrons of
store, owner is not insurer of safety of its
customers.
[2] Negligence <8:;;:> 1708
272 ----
272XVlII Actions
Page 1
272XVIII(D) Questions for Jury and Directed
Verdiets
272k1705 Premises Liability
272k1708 Buildings and Other Structures.
(Formerly 272kI36(22), 272kI36(16))
Even if store employee's statement that someone
near scene of accident had told him that customer
slipped on grapes was admissible, evidence did not
show that store had notice of condition or failed to
exercise reasonable care, and, thus, testimony of
store employee did not raise triable issue of fact
concerning store's negligence.
[3] Negligence <8:;;:> 1595
272 ----
272XVlII Actions
272XVIII(C) Evidence
272XVIII(C)2 Presumptions and Inferences
272k1592 Premises Liability
272k1595 Buildings and Other Structures.
(Formerly 272kI21.l(8))
Record did not support inference that grape was on
floor at time customer slipped and fell absent any
evidence to show whether customer dropped grape,
store employees dropped grape or even that grape
was actually on floor.
[4] Negligence <8:;;:>1599
272----
272XVIII Actions
272XVIII(C) Evidence
272XVIII(C)2 Presumptions and Inferences
272k1599 Proximate Cause.
(Formerly 272kI21.5)
Customer did not show that store failed to exercise
reasonable care even if employees were all on break
at time customer fell, as fact that employees were on
break did not in and of itself create inference that
store's negligence was cause of customer's fall.
[5] Negligence <8:;;:>1104(7)
272 ----
272XVlI Premises Liability
272XVIl(D) Breach of Duty
272k1100 Buildings and Structures
272k11 04 Floors
272k1104(7) Objects and Debris.
(Formerly 272k44)
Fact that produce frequently fell to floor in store
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
. "
, ~~'~^W:T.
" ,.~~.
, ~, .'.--,
L l_. ,,---'c' I . ~',
606 A.2d 926, 414 Pa.Super. 181, Myers v. Penn Traffic Co., (Pa.Super. 1992)
when employees filled produce cases did not
establish store's negligence in causing customer's
slip and fall.
[6] Negligence ~ 1104(7)
272 ----
272XVll Premises Liability
272XVll(D) Breach of Duty
272k1100 Buildings and Structures
272k1104 Floors
272k1104(7) Objects and Debris.
(Formerly 272k44)
Lack of reasonable care on part of store is not
established merely because employee working in
produce department was on break when customer
slipped and fell.
[7] Negligence ~ 1104(8)
272 ----
272XVll Premises Liability
272XVll(D) Breach of Duty
272k1100 Buildings and Structures
272k11 04 Floors
272k1104(8) Cleaning and Waxing.
(Formerly 272k44)
For purposes of determining whether store was
negligent in allowing accumulation of wax on floor
or in applying wax on floor, question is whether
alleged improper application created conditions so
obviously dangerous as to amount to evidence from
which inference of negligence would arise;
customer may recover if skid mark caused by heel
had raised sides as if someone had slid through mud.
[8] Negligence ~1670
272 ----
272XVIII Actions
272XVI11(C) Evidence
272XVIII(C)5 Weight and Sufficiency
272k1667 Premises Liability
272k1670 Buildings and Other Structures.
(Formerly 272kI34(5.1), 272kI34(5))
Evidence of small groove in wax located in general
vicinity of customer's fall was not proof that store
negligently applied wax.
*927 [414 Pa,Super. 183] Thomas A. Beckley,
Harrisburg, for appellant.
Robert A. Mix, Bellefonte, for appellee.
Page 2
Before ROWLEY, P.J., and CAVANAUGH,
WIEAND, CIRILLO, OLSZEWSKI, KELLY,
JOHNSON, HUDOCK and FORD ELLIOTT, n.
ROWLEY, President Judge:
On July 9, 1986, while shopping in Riverside
Market, a supermarket operated by appellee The
Penn Traffic Company (Penn), appellant Doris S.
Myers slipped in the aisle leading from the produce
department to the bakery department. She
subsequently filed a complaint against Penn, (FN I)
alleging that it negligently maintained the aisle in an
unsafe and slippery condition, failing to warn
customers of this condition. Ms. Myers claimed
damages in an amount exceeding $180,000.00. On
February 8, 1990, Penn filed a motion for summary
judgment, which the trial court granted. Ms. Myers
then filed this timely appeal.
In this appeal, appellant contends that the trial
court erred by failing to read the record in the light
most favorably to her, thereby disregarding genuine
issues of material fact. After thoroughly
considering the parties' arguments [414 Pa.Super.
184] and the applicable case law, we affirm the
summary judgment entered in favor of appellee.
In reviewing the trial court's decision regarding
summary judgment, our standard of review is as
follows:
[T]his court must determine whether the pleadings,
depositions, answers to interrogatories, admissions
and affidavits show that there is no genuine issue
as to any material fact, and that the moving party
is entitled to judgment as a matter of law.
However, summary judgment may ouly be entered
in those cases which are clear and free from doubt.
We must determine whether there exists any
genuine issue of triable fact.... [T]he *928
record must be examined in the light most
favorable to the nonmoving party[, and] ... we
must accept as true all properly pleaded facts, as
well as all reasonable inferences which might be
drawn therefrom.
Overly v. Kass, 382 Pa.Super. 108, 110-11, 554
A.2d 970, 971-72 (1989) (citations and internal
quotation marks omitted). Although the moving
party has the burden of showing that no genuine
issue of material fact exists, ld., 382 Pa. Superior
Copyright (c) West Group 2001 No claim to original U. S. Govt. works
606 A.2d 926, 414 Pa.Super. 181, Myers v. Peun Traffic Co., (Pa.Super. 1992)
Ct. at 111, 554 A.2d at 972, "once the motion for
summary judgment has been properly supported, the
burden is upon the non-movant to disclose evidence
that is the basis for his or her argument resisting
summary judgment." Samarin v. GAF Corp., 391
Pa.Super. 340, 347, 571 A.2d 398, 402 (1989),
allocatur denied, 524 Pa. 624, 574 A.2d 66 (1990).
This "assure[s] that the motion for summary
judgment may 'pierce the pleading' and ...
require[s] the opposing party to disclose the facts of
his claim or defense." Roland v. Kravco, Inc., 355
Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986),
allocatur denied, 517 Pa. 599, 535 A.2d 1058
(1987) (quoting Goodrich Amrarn, Procedural Rules
Service 2d ~ 1035(d):5) (emphasis omitted).
Finally, the trial court's decision to grant summary
judgment will be affirmed absent an error of law.
Overly, supra, 382 Pa.Super. at 111, 554 A.2d at
972.
-~,.."..,- -,-
-
[1] It is unquestionable that a store owner owes a
duty of care to the patrons of the store. However,
the owner of [414 Pa.Super. 185] the store is not an
insurer of the safety of its customers. Moultrey v.
Great Atlantic & Pacific Tea Company, 281
Pa.Super. 525, 529-30, 422 A.2d 593, 596 (1980).
Moreover,
the mere existence of a harmful condition in a
public place of business, or the mere happening of
an accident due to such a condition is neither, in
and of itself, evidence of a breach of the
proprietor's dUty of care to his invitees, nor raises
a presumption of negligence.
Id., at 530, 422 A.2d at 596.
The parties agree that the duty which the owner of
a store owes to its customers is set forth in
Restatement (Second) of Torts ~ 343. (FN2)
Section 343 provides as follows:
A possessor of land is subject to liability for
physical harm caused to his invitees by a condition
on the land if, but only if, he
(a) knows or by the exercise of reasonable care
wonld discover the condition, and should realize
that it involves an unreasonable risk of harm to
such invitees, and
(b) should expect that they will not discover or
realize the danger, or will fail to protect
" ,i~
I"
<_'" ., 1-"
'",
Page 3
themselves against it, and
(c) fails to exercise reasonable care to protect
them against the danger.
Appellant contends that the evidence present in the
record, viewed in the light most favorably to her,
supports her allegation that appellee was negligent
under the above standard. Because we conclude that
the trial court did not commit an error of law in
determining that no triable factual issue exists, we
affirm the summary judgment entered in favor of
appellee.
In support of her claim against appellee, appellant
asserted that either a grape on the floor or an
accumulation of [414 Pa.Super. 186] wax caused her
to fall. We will address these two theories
separately. In support of her allegation that she
slipped on a grape, appellant relies on a note
allegedly written by her immediately after the
accident. This note says she "fell on produce on
slippery floor." (FN3) Appellant also emphasizes
the *929 deposition testimony of one of the store's
employees, Timothy Snyder. Mr. Snyder stated that
he had heard from another employee that somebody
had slipped on grapes. Mr. Snyder could not
remember who told him this, but he stated that it
was someone who was at the scene of the accident.
Mr. Snyder also stated that although he could not
say that the other employee was referring to
appellant, he knew of no other accidents where
someone had slipped on grapes.
[2] Appellee asserts that because the note and Mr.
Snyder's statement are hearsay, and therefore
inadmissible, they should not be considered as
raising a triable factual issue. Appellant, on the
other hand, argues that the note and Mr. Snyder's
statement are admissible under, respectively, the
past recollection recorded and the admission by a
party exceptions to the hearsay rule. Because
resolution of this issue will not affect our disposition
of the case, we will assume for purposes of our .
discussion that the evidence would be admissible at
trial.
Even assuming that the above evidence would be
admissible, appellant would still not prevail because
she has presented no evidence that appellee had
notice of the condition or failed to exercise
reasonable care. (FN4) See section 343, supra.
Although appellant contends that the trial court erred
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
:;~~-'
..0 _
y
.'.,
.,.
, --1ii;~
606 A.2d 926,414 Pa.Super. 181, Myers v. Peun Traffic Co., (Pa.Super. 1992)
by failing to view the record in the light most
favorable[414 Pa.Super. 187] to her, the inferences
which she draws from the record in support of her
allegation of negligence are not reasonable.
Under section 343, a store must have notice of the
harmful condition. In' determining whether this
element is met, the following principles apply:
[IJf the harmful transitory condition is traceable to
the possessor or his agent's acts, (that is, a
condition created by the possessor or those under
his authority), then the plaintiff need not prove any
notice in order to hold the possessor accountable
for the resulting harm. In a related context, where
the condition is one which the owner knows has
frequently recurred, the jury may properly fmd
that the owner had actual notice of the condition,
thereby obviating additional proof by the invitee
that the owner had constructive notice of it.
Where, however, the evidence indicates that the
transitory condition is traceable to persons other
than those for whom the owner is, strictly
speaking, ordinarily accountable, the jury may not
consider the owner's ultimate liability in the
absence of other evidence which tends to prove
that the owner had actual notice of the condition or
that the condition existed for such a length of time
that in the exercise of reasonable care the owner
should have known of it.
Moultrey, supra, 281 Pa.Super. at 530-31, 422
A.2d at 596.
Appellant argues that because the condition, that
is, produce on the floor, frequently recurred,
appellee had actual notice. In support of this
argument, she emphasizes the deposition testimony
of employees which she contends shows that
"produce on the floor in that particular area of the
supermarket was a constant, day-long problem
which required 'full-time' attention." Appellant's
Brief at 13. Specifically, appellant emphasizes the
deposition of Mr. Hunter, who stated that the
employees working in the produce section must
clean the entire time that they are on duty because
filling the produce cases makes a mess. However,
there is nothing in the record to indicate that the
produce cases had been filled near the time that
appellant [414 Pa.Super. 188] fell. The fact that
putting produce in the cases makes a mess is not
relevant if there is nothing to show that the produce
cases were iu fact filled prior to appellaut' s
Page 4
accident.
Citing to the deposition of Robert Parkes, another
employee of appellee, appellant also contends that
"appellee knew that the problem was so common
that [it] had assigned two employees to watch over
*930 that particular sectiou, so that if one of them
went on break, the other could cover for him." Id.
at 13-14 . We disagree with appellant that the
inference which she draws from Mr. Parkes'
statements is reasouable. To the contrary, when
asked if another employee was supposed to cover for
him when he took a break, Mr. Parkes answered
"Not all the time.... [M]ost of the time we do try to
keep someone out on the floor, you know, for
customer service; but, whenever we are ouly taking
a IO-minute break, sometimes we both just go...."
Reproduced Record (R.R.) at 226a. Mr. Parkes did
not, as appellant asserts, state that one employee is
always present in the produce aisle. Furthermore,
he stated that most of the time someone is available
for customer service; he did not state that someoue
is always available to clear produce from the floor.
Although the non-moving party must be given the
benefit of all reasonable inferences, that party need
not be given the benefit of inferences not supported
by the record or of mere speculation.
Appellant also argues that constructive notice can
be inferred from the employees' antecedent actions
in replenishing the produce cases. In support of this
argument, she cites the case of Clark v. Glosser
Brothers Department Stores, 156 Pa.Super. 193, 39
A.2d 733 (1944). In Clark, the plaintiff fell on
tapes which were used in packaging merchandise.
The tapes either fell or were thrown to the floor
when the defendant store's employees unpacked the
merchandise. The defendant claimed that the
plaintiff presented no proof of constructive notice of
the condition caused by the tapes. In affirming the
judgment entered in [414 Pa.Super. 189] favor of
the plaintiff, this Court held that proof of
constructive notice was unnecessary because the
plaintiff's proof
show[ ed] that the injuries sustained by her were
due to the direct negligence of the defendant's
employes in throwing the tapes in the aisles or not
taking reasonable precaution to prevent their
falling to the floor.... The defendant's employes
had actual notice of their own alleged negligent
acts, which were within the apparent scope of their
authority and in the furtherance of the master's
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
_..l"
,~ ~"".......
"
~~~.ji
606 A.2d 926, 414 Pa.Super. 181, Myers v. Penn Traffic Co., (Pa.Super. 1992)
business. The defendant is accordingly chargeable
with their dereliction.
Id., 156 Pa. Superior Ct. at 195-96, 39 A.2d at
734.
[3] Appellant contends that the holding in Clark
should be controlling in the present case on the basis
of Mr. Hunter's testimony that replenishing the
produce cases makes a mess. Appellant contends
that this testimony reveals that, as in Clark, the
antecedent actions of the store's employees caused
the dangerous condition. In the present case,
however, nothing in the record supports an inference
that the grape was on the floor because the store's
employees dropped it there when putting produce in
the caseS. It is just as likely that another customer
of the store dropped the grape on the floor. Without
evidence that one or the other of these two equally
likely occurrences caused the grape to be on the
floor, there is no issue to be tried. Any decision
would be based on mere speculation. See Manino
v. Great Atlantic & Pacific Tea Company, 419 Pa.
229, 213 A.2d 608 (1965).
[4] Furthermore, appellant has presented no
evidence that appellee failed to exercise reasonable
care. The only fact which she alleges to support her
argument is that "although two persons typically
were assigned to this area of the supermarket, no
one was watching over it for a period of
approximately twenty minutes--during a mid-day
break tal.<en by one of Peun Traffic's employees--on
the day of the accident." Appellant's Brief at
18-19. The fact that the employee was on a break
when appellant fell does [414 Pa.Super. 190] not in
and of itself create an inference of negligence on the
part of appellee.
A case substantially similar to the present case was
considered by our Supreme Court in Manino v.
Great Atlantic & Pacific Tea Company, 419 Pa.
229, 213 A.2d 608 (1965). In Martino, the plaintiff
had slipped on a grape on the floor of the
defendant's store. As in the present case, the
plaintiffpresented testimony that produce frequently
fell to the floor. Grapes were an especially
pervasive problem, because *931 the scale used to
weigh the grapes was located across the aisle from
the grape counter. Accordingly, grapes fell to the
floor as customers carried them to the scale. The
testimony also revealed that, as in the present case,
an employee was required to keep the produce area,
Page 5
including the floor, clear of debris. In affirming the
non-suit entered in favor of the defendant, the
Supreme Court held the following:
So far as this record discloses, the offending grape
might have found its way to the .floor as a result of
the actions by husband appellant or wife appellant.
There is no evidence from which the jury might
reach a conclusion as to the cause of the presence
of the grape in the aisle, and jurors may not be
permitted to reach conclusion based upon guess or
conjecture.
Nor can we accept appellant's argument to the
effect that the display of non-packaged grapes on a
counter some seven feet from the bags and across
an aisle from the scale constitutes negligence in
and of itself, since every reasonable effort was
made to keep the passageway clean.
Id., 419 Pa. at 234,213 A.2d at 610.
[5][6] Similarly, in the present case, appellant has
presented no evidence as to the cause of the
presence of the grape on the floor. In addition,
negligence is not established by the fact that produce
frequently fell to the floor when employees f1lled the
produce cases. Furthermore, a lack of reasonable
care is not established merely because the employee
working in the produce department was on a [4 I 4
Pa.Super. 191] break when appellant fell. These
facts do not lead to a reasonable inference that
appellee or its agents were negligent and that
negligence caused the grape to be on the floor. A
jury would not properly be able to reach a
conclusion of negligence on these facts as such a
conclusion would be based on guess or conjecture.
If other evidence existed upon which appellant
could sustain this theory, that evidence should have
been disclosed in opposition to appellee's motion for
summary judgment. See Roland, supra, 355
Pa.Super. at 500-02, 513 A.2d at 1033-34 (holding
that if undisclosed evidence might have affected the
disposition of the summary judgment motion, the
plaintiffs chose not to disclose the basis of their
claim, and they did so at their own risk); Brecher
v. Cutler, 396 Pa.Super. 211, 578 A.2d 481 (1990)
(holding that summary judgment was not improper
merely because there was a possibility that literature
not yet produced would support the claim); but see
Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691
(1989) (holding that summary judgment was
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
-"'''''''':.....",-''''''''''''~~"~
1-
~~"".
."
I ~: l rJ
-, "'t"<l""~O
606 A.2d 926,414 Pa.Super. 181, Myers v. Peun Traffic Co., (Pa.Super. 1992)
improperly granted where record did not disclose
that the plaintiff would be unable to produce
supporting evidence at trial). For the above reasons,
we conclude that the trial court did not err in fmding
no triable issues of fact as to appellant's grape
theory .
We will now address appellant's second theory of
recovery, namely, that appellee had negligently
allowed wax to accumulate on the spot where she
slipped. To support her theory, appellant relies on
her own assertion that the floor was slippery and the
deposition testimony of one of appellee's employees,
Robert Kelley. Mr. Kelley stated that upon
checking the entire aisle in the area in which he
thought appeIlant fell, he saw a scuff mark in the
wax. He also stated that although he could not see
whether there was a groove in the wax, he could
feel a little groove when he bent down and touched
the floor. Appellant contends that this testimony is
sufficient to preclude summary judgment. We
disagree.
[414 Pa.Super. 192] [7] "The real question [in
negligent accumulation or application of wax cases]
is not whether there was an improper application but
whether such alleged improper application created a
condition so obviously dangerous as to amount to
evidence from which an inference of negligence
would arise." Bowser v. J. C. Penney Company,
354 Pa. I, 5, 46 A.2d 324, 326 (1946) (citations
omitted). Recovery has been permitted where the
skid mark caused by the plaintiff's heel had raised
sides as if someone had slid through mud and
appeared in a yellow waxy substance, Penn v. IsaZy
*932 Dairy Company, 413 Pa. 548, 198 A.2d 322
(1964); where the floor on which the plaintiff fell
had been waxed two and one-half hours prior to the
accident and was still oily and gummy, and the
plaintiff's heel left an indentation twelve to fourteen
inches in length and one-fourth inch in depth, Strout
v. American Stores Company, 385 Pa. 230, 122
A.2d 797 (1956); and where the plaintiff fell on a
floor which had just been waxed, there was a greasy
and waxy substance on the floor similar in
consistency to "thick Vaseline," the wax on the floor
where the plaintiff fell was from one to one and
three-fourths inches thick, and two other customers
slid on the floor near the same time that the plaintiff
fell. Ralston v. Merritt, 117 Pa.Super. 487, 178 A.
159 (1935).
[8] In the present case, one cannot reasonably infer
Page 6
that appellee negligently applied wax, or negligently
allowed wax to accumulate, merely on the basis that
a small groove in the wax was located in the general
vicinity of appellant's fall. As stated above,
negligence of a store owner cannot be inferred
merely because a customer has an accident.
We recognize that proving negligence in a
supermarket slip and fall case "is often a heavy
burden on a plaintiff even in a meritorious easel.
a]nd ... under some circumstances the difficulties of
proof of negligence may be insurmountable...."
DeCZerico v. Gimbel Brothers, Inc., 160 Pa.Super.
197, 199, 50 A.2d 716, 717 (1947). This is
especially true where, as here, the medical problems
allegedly caused by the fall do not arise immediately
after the fall. [414 Pa.Super. 193] In such a case,
the person would have no reason to anticipate the
need for evidence to support his or her future claim.
Nonetheless, in a supermarket slip and fall case it is
still incumbent upon the plaintiff to allege sufficient
facts and present sufficient evidence to sustain a
cause of action against the store owner. In the
present case, that burden has not been met.
For the above reasons, we conclude that no
genuine issues of material and triable fact exist.
Therefore, we affirm the summary judgment in
favor of appellee.
Summary judgment affirmed.
WIEAND, J., files a dissenting opinion.
OLSZEWSKI, J., files a dissenting opinion which,
was joined by KELLY and FORD ELLIOTT, JJ.
WIEAND, Judge, dissenting:
I respectfully dissent. In my judgment, there is
evidence in this case which is sufficient to establish
a prima facie case of negligence against Penn
Traffic Company under the principle of law
articulated in Section 344 of the Restatement
(Second) of Torts.
This section of the Restatement imposes liability
upon a possessor of land for the negligent acts of
third persons under circumstances identified in the
rule as follows:
~ 344, Business Premises Open to Public: Acts of
Third Persons or Animals
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
~~-,~,""""',
- ~
o~..~~ ._..._.
.
"' ,;,.,1
-~ , '-
L
~ ~
- ..-....'h<l\>i.,"I.m'i,;,;'-
606 A.2d 926, 414 Pa.Super. 181, Myers v. Peun Traffic Co., (Pa.Super. 1992)
A possessor of land who holds it open to the public
for entry for his business purposes is subject to
liability to members of the public while they are
upon the land for such a purpose, for physical
harm caused by the accidental, negligent, or
intentionally harmful acts of third persons or
animals, and by the failure of the possessor to
exercise reasonable care to
(a) discover that such acts are being done or are
likely to be done, or
[414 Pa.Super. 194] (b) give a warning adequate
to enable the visitors to avoid the harm, or
otherwise to protect them against it.
The principle may, in limited circumstances,
impose upon a storekeeper a duty to police his or
her premises. This duty is explained in comment f
as follows:
f Duty to police premises. Since the possessor is
not an insurer of the visitor's safety, he is
ordinarily under no duty to exercise any care until
he knows or has reason to know that the acts of the
third person are occurring, or are about to occur.
He may, however, know or have reason to know,
from past experience, that there is a likelihood of
conduct on the part of third persons in general
*933 which is likely to endanger the safety of the
visitor, even though he has no reason to expect it
on the part of any particular individual. If the
place or character of his business, or his past
experience, is such that he should reasonably
anticipate careless or criminal conduct on the part
of third persons, either generally or at some
particular time, he may be under a duty to take
precautions against it, and to provide a reasonably
sufficient number of servants to afford a
reasonable protection.
The Restatement's duty to police was adopted and
applied to a grocery store owner in Miller v. Peter
J. Schmitt & Co., Inc., 405 Pa.Super. 502, 592
A.2d 1324 (1991). There, a majority of the Court
imposed upon a storekeeper the duty to supervise an
independent contractor who delivered ice to the store
in order to protect customers against the possibility
that the contractor would leave water on the floor
causing it to become slippery. The majority thus
found liability even though the customer had fallen
within moments after the contractor had placed ice
in an ice machine and before the contractor had
Page 7
completed his delivery. It did so because the ice
had been delivered on a hot day and had been
unloaded in an area that was not air conditioned and
because the store owner had failed to police the
delivery of ice or otherwise take adequate
precautions to protect customers. Liability was
imposed even though all the evidence was that the
contractor, who had been making deliveries of [4 14
Pa.Super. 195] ice for several years, had never
before caused a slippery condition by allowing water
on the floor.
The evidence in the instant case presents a stronger
case of negligence by the store owner than in Miller.
Here, there was evidence that the store had been
aware that dirt, debris, and produce regularly fell to
the floor in the produce area of the market so as to
require that personnel frequently attend to the area
in order to keep the floor clean. Although the
plaintiff was uncertain about what had caused her to
fall, she initially believed it to be produce, and a
store employee identified the produce as grapes.
Her fall occurred while the produce department was
unattended.
The majority has declined to consider the
applicability of Section 344 of the Restatement
(Second) of Torts because its applicability was not
discussed by appellant. Although appellant has not
referred specifically to Section 344 of the
Restatement or the decision in Miller v. Peter J.
Schmitt & Co., Inc., supra, her argument is clearly
premised upon the storekeeper's duty to police his
premises. (FNl) Indeed, it is this duty to police the
premises which has caused our colleague, Judge
Olszewski, to write also in dissent. He, however,
would rely upon language appearing in a Superior
Court decision in Moultrey v. Great Atlantic and
Pacific Tea Company, 281 Pa.Super. 525, 422 A.2d
593 (1980). I am satisfied, therefore, that it is the
duty of a storekeeper to police his premises which is
at the heart of the dispute in this case and that
Section 344 of the Restatement (Second) of Torts
speaks to that issue.
[414 Pa.Super. 196] Moreover and in any event, it
is the duty of this reviewing court to examine the
entire record and determine whether the facts there
appearing will support a recovery under any theory,
whether or not that theory has been argued by the
plaintiff-appellant. In making this determination, a
court examines the record in a manner similar to the
manner in which a court reviews the pleadings when
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
-"~-"
-
-';'
_ J,_
_~'O
606 A.2d 926,414 Pa.Super. 181, Myers v. Peun Traffic Co., (Pa.Super. 1992)
faced with a motion for judgment on the pleadings
or preliminary objections in the nature of a demurrer
to *934 the complaint. With respect to the latter,
the Superior Court has said,
... a plaintiff is not obliged to state the legal theory
or theories underlying his complaint. Pa.R.C.P.
1019(a) requires only allegations of the "material
facts on which a cause of action .., is based."
Assertions of legal rights and obligations in a
complaint may be construed as conclusions of law,
which have no place in a pleading and need not be
denied in preliminary objections. Goodrich-
Amram 2d, Standard Pennsylvania Practice ~
1019(a): 12 (collecting cases). This system of fact
pleading may sometimes cause both the court and
the defendant uncertainty as to the legal grounds of
the complaint. Here, for example, the trial court
discerned only one possible cause of action, that of
fraud and deceit. The complaint, however, stated
at least one other cause of action. The obligation
to discover the cause or causes of actions is on the
coun: the plaintiff need not identifj them. See
Schreiber v. Republic Intermodal Corp., 473 Pa.
614, 375 A.2d 1285 (1977).
McClellan v. Health Maintenance Organization of
Pennsylvania, 413 Pa.Super. 128, ----, 604 A.2d
1053, 1059-60 (1992), quoting DelConte v.
Stefonick, 268 Pa.Super. 572, 577, 408 A.2d [[51,
[[53 (1979) (emphasis added). In the case of a
motion for summary judgment, it is the court which
must deternline whether, on the facts appearing of
record, there is any legal theory under which the
plaintiff can recover.
In considering a motion for summary judgment, a
court "must examine the whole record, including the
. pleadings, [414 Pa.Super. 197] any depositions, any
answers to interrogatories, admissions of record, if
any, and any affidavits filed by the parties. From
this thorough examination the ... court will
determine the question of whether there is a genuine
issue as to any material fact. On this critical
question, the party who brought the motion ha[ s] the
burden of proving that no genuine issue of fact
exists. All doubts as to the existence of a genuine
issue of a material fact are to be resolved against the
granting of summary judgment." Penn Center
House, Inc. v. Hoffman, 520 Pa. 171, 176, 553
A.2d 900, 903 (1989). In the instant case, this
burden was on the defendant-appellee. A summary
judgment would have been proper only if it appeared
Page 8
from the record that the material facts were not
disputed and that the plaintiff-appellant was not
entitled to recover under any theory of law
applicable to the facts appearing of record. Because
in this case there is a dispute about whether the
storekeeper breached a duty to police the produce
department of his store, the entry of summary
judgment, in my judgment, was inappropriate.
Therefore, I would reverse and remand for further
proceedings.
OLSZEWSKI, Judge, dissenting:
I respectfully dissent from the majority's
affirmance of the trial court's order granting
summary judgment in favor of defendant-appellee,
Peun Traffic Company ("the store"). I agree with
the majority's statement of the standard of review in
summary judgment cases. I do not believe the
majority properly applies this standard because it
fails to give Myers the benefit of the doubt, as we
are required to do at this stage of the proceedings.
The majority first dismisses the produce on the
floor theory because it believes that appellant
presented no evidence that the store had notice of
the condition or failed to exercise reasonable care,
as required by the Restatement (Second) of Torts ~
343. The majority characterizes the inferences
which may be drawn from the record in favor of
appellant as unreasonable. I disagree.
[414 Pa.Super. 198] As to the store's notice of the
condition of the floor, I too point to Moultrey v.
Great Atlantic & Pacific Tea Company, 281
Pa.Super. 525, 422 A.2d 593 (1980), and interpret
it to mean precisely what it says. "[W]here the
condition is one which the owner knows has
frequently recurred, the jury may properly find that
the owner had actual notice of the condition...." Id.
at 530-531, 422 A.2d at 596 (citing, Borsa v. Great
Atlantic & Pacific Tea Co., 207 Pa.Super 63 at 68,
215 A.2d 289 at 292 *935 (1965); Clark v.
Glosser Bros. Dept. Stores, 156 Pa.Super. 193, 39
A.2d 733 (1944)). All that was required for a
showing of actual notice, therefore, was evidence
that the store knew that produce frequently fell to
the floor and posed safety hazards to customers.
The store's employees admitted in deposition
testimony that produce on the floor in the area
where appellant allegedly fell was a constant
problem. Thus, there was sufficient evidence to
send the case to a jury so that they could determine
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
'-1~*.i<l=" - ,- ~ ~ ",.-, ~~~~
-
"
~..; L
- k!iltliiill-T_:
.Le'
, "'
,~ ..b:""'..
606 A.2d 926,414 Pa.Super. 181, Myers v. Peun Traffic Co., (Pa.Super. 1992)
whether the store had actual notice of the condition.
The majority fmds no evidence of lack of
reasonable care. Again, I disagree. The key
evidence Myers presented on this point was the
testimony of Robert Parkes, wherein he admitted
being on break for a period preceding the fall and
that, despite store policy to have two employees in
that section, to his knowledge he worked alone that
day. A jury could infer lack of care from these
facts.
I would characterize the evidence as follows: a
genuine factual dispute whether produce was on the
floor, an admission that produce on the floor was a
recurring problem, and evidence from which it
could be inferred that the store did not follow its
own policy as to cleaning the area. All doubts must
be resolved against the moving party. Thompson
Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-204,
412 A.2d 466, 468-469 (1979). Thus, reading the
record to favor Myers, there are material, disputed
issues of fact as to the existence of a dangerous
condition, actual notice and lack of reasonable care.
[414 Pa.Super. 199] As to the improperly waxed
surface theory, the majority affirms the sununary
judgment order because Myers has not shown that
the uneven surface caused her fall. Once again, I
disagree. The majority does not believe that floor
wax could have contributed to Myers' fall because
one of the store's employees testified that he could
not see an indentation in the floor but could feel one
when he touched the floor. The majority
characterizes the case law on this issue as requiring
evidence of extremely serious defects in the surface.
Recovery on this theory, however, has been allowed
when the evidence indicated a scuff mark 1/8 to 1/
4 inch deep. Strout v. American Stores Co., 385 Pa.
230, 232, 122 A.2d 797, 798 (1956). Further, the
majority doubts whether the evidence of the
uneveuness is causally attributable to Myers' fall.
Contrary to the majority's interpretation of prior
case law, an imperfect surface in the area of the fall
is sufficient to send the case to the jury. The Strout
Court allowed recovery where the evidence revealed
a sCliff mark in the area of the floor which marked
the scene of the plaintiff's fall. I fail to see the
distinction between the specificity of that evidence
and the evidence presented by Myers that there was
a scuff mark in the area where she fell. At this
point in the proceedings, Myers is entitled to the
benefit of this inference.
Page 9
One of the roles of the jury would be to determine
whether floor wax contributed to Myers' fall. At
the summary judgment stage of the proceedings, the
scuff does not resolve this issue. Rather, it merely
indicates that there is an issue which allows the case
to proceed to trial. To allow this case to pass
summary judgment because the wax had not
accumulated to the point of being sticky or gummy
is to intrude upon the fact fmding province of the
jury.
In summary, I believe the majority improperly
engages in an assessment of the weight of the
evidence presented by Myers rather than inquiring
whether any material factual disputes exist. The
majority does not read the record to favor Myers,
nor does it give her the benefit of any doubt; this is
contrary to the law of summary judgment. While I [
414 Pa.Super. 200] do not opine as to whether
Myers' evidence would be convincing enough to
prevail at trial, (FNl) I believe *936. there have
been enough doubts raised so that Myers should be
allowed to have her day in court. Accordingly, I
dissent.
(FNI.) Riverside Markets, Inc. and Crown
American Corporation were also named as
defendants in this complaint. Riverside Markets,
Inc. was dismissed as a defendant by agreement of
the parties. Summary judgment was entered in
favor of Crown American Corporation, and no
appeal has been tal.<en from that summary
judgment. Accordingly, Riverside Markets, Inc.
and Crown American Corporation are no longer
parties to this suit.
(FN2.) In his dissent, Judge Wieand concludes that
appellant has established a prima facie case under
section 344 of the Restatement, entitled "Business
Premises Open to Public: Acts of Third Persons
or Animals." However, appellant did not invoke
this section as a basis for recovery, and neither
party has discussed its applicability to the present
case. In fact, appellant specifically limits her
theory of recovery to section 343. See Appellant's
Brief at 10, 13,20.
(FN3.) Appellant produced this note after repeated
prior statements that she did not see what was on
the floor. However, credibility of witnesses is not
a proper consideration at this juncture as the
determination of credibility is a jury function. See
Melmed v. Motts, 341 Pa.Super. 427, 431, 491
Copyright (c) West Group 2001 No claim to original U.S. Govt. works
"'-"'-"-~"'"'''''"",,''' ~~
~~
"
.,
-
"'"'",~$th"
606 A.2d 926,414 Pa.Super. 181, Myers v. Peun Traffic Co., (Pa.Super. 1992)
A.2d 892, 893 (1985).
(FN4.) Appellee does not contend that appellant has
not satisfied the second element of section 343,
namely, whether it shonld have expected that its
customers would not discover or realize the danger
or fail to protect themselves against it.
(FNI.) The issues are framed in appellant's
statement of questions as follows:
1. Did the lower Court err by restrictively reading
the factual record to ignore facts showing that (a)
the defendant's own employees had a hand in
creating the dangerous condition of the floor;
[and] (b) the floor in the particular area of the
supermarket where the plaintiff fell was constantly
littered with debris and required "full-time"
attention to keep it clean....
2. Did the lower Court err by failing to recognize
Page 10
that "notice" of a dangerous condition may be
inferred (or satisfied), from a factual showing that
the defendant knew that the particular condition
was constant, recurring, and needed "full-time"
attention?
(FNI.) The majority relies greatly upon Martino v.
Great Atlantic & Pacific Tea Co., 419 Pa. 229,
213 A.2d 608 (1965), in which the Supreme Court
concluded that the injured party had not presented
a clear case, as is required to survive a motion for
a compulsory non-suit. This case differs greatly
from Manino. In Martino the burden was upon
the plaintiff, the non-moving party, to present
clear and convincing evidence of negligence. In
this case, the burden was upon the store, the
moving party, to show that no genuine issue of
material fact existed. The majority not only shifts
the burden to Myers, it places the compulsory non-
suit standard upon her prior to her being permitted
to present her factual issues to a jury .
Copyright (c) West Group 200! No claim to original U.S. Govt. works
"
.~
roC_c. ,'....,_-,",.,_1._
~_,,1'_,_ .L-N .;.- ',""" ,,,c,""-c.o,J'_',, -','~ -,,,,:,~ "\:r
PATRICIA A. MECK and
FRANK MECK, husband and
wife
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
NO. 2000-8087
CIVIL ACTION-LAW
GIANT FOOD STORES,
Defendant
NOTICE OF ARBITRATION HEARING
The Board of Arbitrators appointed in the above captioned case, have fixed Friday,
March 1,2002, at 10:00 o'clock, A. M., in the Second Floor Hearing Room ofthe Old
Courthouse, Carlisle, Pennsylvania, as the time and place for the hearing.
Anyone finding this time unsuitable will please make appropriate arrangements with
all counsel involved for another time, including the scheduling ofthe Hearing Room.
L.-
n M. Eakin, Chairman
ket Square Building
Mechanicsburg, PA 17055
February 6, 2002
cc: Robert L. O'Brien, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, P A 17013
Attorney for Plaintiff
George B. Faller, Jr., Esquire
Martson Deardorff Williams & Otto
Ten East High Street
Carlisle, PA 17013
Attorney for Defendant
Craig A. Diehl, Esquire
3464 Trindle Road
Camp Hill, PA 17011
Arbitrator
Glenn R. Davis, Esquire
4720 Old Gettysburg Road
Mechanicsburg, P A 17055
Arbitrator
Office of Court Administrator
1 Court House Square
Carlisle, PA 17013
Bulletin Board
~,c.._ _,
'-. J"_ --~ _,_. _. .. "~' _. . ~'r.
. ""-~~&
PATRICIA A. MECK and
FRANK MECK, husband and
wife
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
NO. 2000-8087
CIVIL ACTION-LAW
GIANT FOOD STORES,
Defendant :
NOTICE OF ARBITRATION HEARING
The Board of Arbitrators appointed in the above captioned case, have fixed Friday,
March 1, 2002, at 10:00 o'clock, A. M., in the Second Floor Hearing Room of the Old
Courthouse, Carlisle, Pennsylvania, as the time and place for the hearing.
Anyone finding this time unsuitable will please make appropriate arrangements with
all counsel involved for another time, including the scheduling of the Hearing Room.
n M_ Eakin, Chairman
ket Square Building
Mechanicsburg, PA 17055
February 6, 2002
cc: Robert L. O'Brien, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, P A 17013
Attorney for Plaintiff
George B. Faller, Jr., Esquire
Martson Deardorff Williams & Otto
Ten East High Street
Carlisle, PA 17013
Attorney for Defendant
Craig A. Diehl, Esquire
3464 Trindle Road
Camp Hill, P A 17011
Arbitrator
Glenn R. Davis, Esquire
4720 Old Gettysburg Road
Mechanicsburg, PA 17055
Arbitrator
Office of Court Administrator
1 Court House Square
Carlisle, P A 17013
Bulletin Board
'" ~."
1"",,",---';:-1' - ''',,,
, "-'.."."""'.",,,,'>"__0'-.',.'_""
,", ,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
.'
MECK"& MECK
Vs.
NO. 2000 8087
GIANT FOOD STORES
CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena(s) for documents and things
pursuant to Rule 4009.22 GEORGE FALLER, ESQUIRE certifies that:
1. A Notice of Intent to Serve the Subpoena(s) with a copy of
the subpoena(s) attached thereto was mailed or delivered to
each party at least twenty days prior to the date on which
the subpoena(s) is sought to be served,
2. A copy of the Notice of Intent, including the proposed
subpoena(s) is attached to this certificate,
3. No objection to the subpoena(s) has been received, and
4. The subpoena(s) which will be served is identical to
the subpoena(s) which is attached to the Notice of Intent
to Serve the Subpoena(s) .
Date: 07/17/01
//"7 ,0"'-
,,/~
GEORGE FALLER, ESQUIRE
MARTSON DEARDORFF WILLIAMS
TEN EAST HIGH STREET
CARLISLE, PA 17013
717-243-3341
ATTORNEY FOR DEFENDANT
INQUIRIES SHOULD BE ADDRESSED TO:
MEDICAL LEGAL REPRODUCTIONS, INC.
4940 DISSTON STREET
PHILADELPHIA PA 19135
(215) 335-4907
By: Jacqueline Ciarrocchi
File #: M276476
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
MECK &"MECK
Vs.
GIANT FOOD STORES
TO: ROBERT O'BRIEN
No. 2000 8087
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE
DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
DEFENDANT intends to serve a subpoena(s) identical to
the one(s) attached to this notice. You have twenty (20) days
from the date listed below in which to file of record and serve upon
the undersigned an objection to the subpoena. If no objection is
made the subpoena may be served.
Date: 06/25/01
Enc(s): Copy of subpoena(s)
Counsel return card
File #: M276476
GEORGE FALLER, ESQUIRE
MARTSON DEARDORFF WILLIAMS
TEN EAST HIGH STREET
CARLISLE, PA 17013
ATTORNEY FOR DEFENDANT
INQUIRIES SHOULD BE ADDRESSED TO:
MEDICAL LEGAL REPRODUCTIONS, INC.
4940 DISSTON STREET
PHILADELPHIA, PA 19135
(215) 335-4907
By: Jacqueline Ciarrocchi
,~- -' ,,- -- -
-~" , , ~,,' " ,'-- !-.. ,~- .
~THOF .PENNSYLVANIA
0XJNl'Y OF alMBERIAND
MECK & MECK
VS.
Fi le No.
2000 8087
GIANT FOOD STORES
SUBPOENA TO PRODUCE DOCl.t1ENTS OR TH I NGS
FOR DlsroVERY PURSUANT TO RULE 4009.22
MASLAND ASSOCS INC, MEDICAL ARTS BLDG, CARLISLE PA 17013
TO:
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to
produce the fOllowing docunent" orSfltn9!TTACHEI> ADDENDUM
at
MEDICAL LEGAL REPRODUCTIONStA~~ss'940 DISSTON ST., PHILA., PA
You may deliver or mail legible copies of the documents or produce things requested h)
this subpoena, together with the certificate of carpliance, to the party making thiE
request at the address 1 isted above. You have the right to seek in advance the reasonab IE
cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within t~enty
(20) days after its service, the party serving thin !;uhpoena may seek a court orde"
c.:a:rpe 11 ing YOll to carp ly with it.
THIS SUBPOENA WAS
NAr>E :
ADDRESS:
ISSUED AT THE REQUEST OF THE FOLLONING PERSON:
GEORGE FALLER, ESQ
MARTSON DEARDORFF WILLIAMS
CARLIOLE, rA 17013
TELEPHONE:
SUPREI1: OOJRT 10#
ATTORNEY FOR:
215-33:,-3;'!1;'!
49813
DEFENDANT
M276476-01
)
DATE: llA/flP) c9'i'i, rJ.QJL
ea 1 of the CoUrt
(Eff. 1/97)
W',l - ''-''L',,,,,- '" ~b,'
;,);1-.' ~,.., - "0 ,', ,-,;~l-: ",_' c: -
, --j,-","- ;',: ' --,--, ' -' ", ..,,,--- ~'Ji~
ADDENDUM TO SUBPOENA
MEeK & MEeK
Vs.
No. 2000 8087
GIANT FOOD STORES
CUSTODIAN OF RECORDS FOR: MASLAND ASSOCS INC
ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE,
MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER
INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO:
NAME: PATRICIA MECK
ADDRESS: 126 W PARK ST CARLISLE PA
DATE OF BIRTH: 02/05/40
SSAN: 168320840
CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
RECORD CUSTODIAN - COMPLETE AND RETURN
[ ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of
records that, to the best of my knowledge, information and
belief all documents or things above mentioned have been produced.
NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search
has been made and that no record of the following documents have
been located (CHECK THE APPROPRIATE BOX) :
(
(
RECORDS
X-RAYS
) PATIENT BILLING
) RECORDS / XRAYS have been destroyed
Date
Authorized s1gnature for
MAS LAND ASSOCS INC
CUMBERLAND
M276476-01
*** SIGN AND RETURN THIS PAGE ***
~"'-w ,~"'~ _ ,,_'; '--"J-."
. c" - ",,-', '" ""-"h_,"","";,_!-'",,~~,,,""_-"._~'~",^..ol_,.-';l.:'-,-.,-: _
<XJMM:lNWEM.TH OF PENNSYLVANIA
axJNl'Y of CllMIiERIlIND
MECK & MECK
VS.
File No.
2000 8087
GIANT FOOD STORES
SUBPOENA TO PRODUCE ocx:Lt1ENTS OR TH I NGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
ALEXANDER SPRING REHAB, 27 BROOKWOOD AVE, CARLISLE PA 17013
. TO:
(Nane of Person or Entity)
within twenty (20) days after service of this subpoena, you are ordered by the court to
produce the following docunent!'l orSE!ltn1t.TTACHED ADDENDUM
at
MEDICAL LEGAL REPRODUCTIONS,( INC, 4940 DISSTON ST., PHILA., PA
Address)
You may deliver or mail legible copies of the documents or produce things requested h)
this subpoena, together with the certificate of carpliance, to the party making thi,
request at the address 1 i sted above. You have the right to seek in advance the rea sonab 1 E
cost of pre9aring the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty
(20) days after its servke, the party serving thh r;ubpoena may seek a court orde;'
carpelling you to carply with it.
THIS SUBPOENA WAS
NAI'E :
AOORESS:
I SSUED AT THE REQJEST OF THE FOLLOii 1 NG PERSON:
GEORGE FALLER, ESQ
MARTSON DEARDORFF WILLIAMS
CARLI OLE , VA 17013
TELEPI-KlNE :
SU'REI-E OOJRT I D ~
ATTORNEY FOR:
215-33!:>-j;!L;!
49813
DEFENDANT
DATE: 3rJ/fl-t r18, O){!:()/
Sea 1 of the cOurt
\.
M276476-02
(Eff. 1/97)
~ "
,- ,"'~, - ,,' "'''. -,,-~
"I .~ """"" 'i", _ """",',^_,,,:!,_,,~,_,;; :_, >i,,i';;__i';:'_;~:C:2'.1_'_._
>.J,,'(:
ADDENDUM TO SUBPOENA
MECK & ME~K
Vs.
No. 2000 8087
GIANT FOOD STORES
CUSTODIAN OF RECORDS FOR: ALEXANDER SPRING REHAB
ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE,
MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER
INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO:
NAME: PATRICIA MECK
ADDRESS: 126 W PARK ST CARLISLE PA
DATE OF BIRTH: 02/05/40
SSAN: 168320840
CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE.
- - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
RECORD CUSTODIAN - COMPLETE AND RETURN
] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of
records that, to the best of my knowledge, information and
belief all documents or things above mentioned have been produced.
NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search
has been made and that no record of the following documents have
been located (CHECK THE APPROPRIATE BOX) :
RECORDS
PATIENT BILLING
RECORDS / XRAYS have been destroyed
X-RAYS
Date
Authorized slgnature for
ALEXANDER SPRING REHAB
CUMBERLAND
M276476-02
*** SIGN AND RETURN THIS PAGE ***
CQMM)NWmLTH OF FmNSYLVANIA
CXXJNl'Y OF aJMBERIAND
MECK & MEeK
VS.
File No.
2000 8087
GIANT FOOD STORES
SUBPOENA TO PRODUCE DCCU1ENTS OR 11-1 I NGS
FOR DISCOVERY PURSUANT TO RULE 4009. 22
. TO:
CLAREMONT NURSING HOME, 375 CLAREMONT DR, CARLISLE PA 17013
ATTN: PERSONNEL DEPT
(Nc.ne of Person or Entity)
. Within twenty (20) days after service of this subpoena, you are ordered by the court to
produce the following docunent,; orS:mtn~TTACHED ADDENDUM
at
MEDICAL LEGAL REPRODUCTIONStAJ~~sst940 DISSTON ST., PHILA., PA
You may deliver or mail legible copies of the documents or produce things requested h,
this subpoena, together with the certificate of carp liance , to the party making thi~
request at the address listed above. You have the right to seek in advance the reasonablE
cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within tw.enty
(20) days after its serv~ce, the party serving thb subpoena may seek a court crde;-
CQrpelling YOlJ to carply with it.
lllfS SUBPOENA WAS
NJItoE :
ADDRESS :
ISSUED AT lllE REQUEST OF TI-iE FOLLOtVING PERSON:
GEORGE FALLER, ESQ
MARTSON DEARDORFF WILLIAMS
CARLIGLE, rA 17013
TI';lEPI-PNE:
suPR8'E OOJRT I D #
ATTORNEY FOR:
215-335-3212
49813
DEFENDANT
M276476-03
DATI';: ~JA1.t, ~~ r-JQJL
Sea I of the rt
(Eff. 1/97)
ADDENDUM TO SUBPOENA
MECK & MECK
Vs.
No. 2000 8087
. GIANT FOOD STORES
CUSTODIAN OF RECORDS FOR: CLAREMONT NURSING HOME
ANY EMPLOYMENT APPLICATIONS, EARNINGS, LEDGER SHEETS, TIME CARDS
REVIEWS, ATTENDANCE SHEETS, ANY AND ALL MEDICAL ~ECORDS AND REPORTS
AND PRE-EMPLOYMENT PHYSICALS, WORKMEN'S COMPENSATION CLAIMS MADE, ANY
W-2 WITHHOLDING TAX FORMS, AND ANY OTHER INFORMATION PERTAINING TO:
NAME: PATRICIA MECK
ADDRESS: 126 W PARK ST CARLISLE PA
DATE OF BIRTH: 02/05/40
SSAN: 168320840
CERTIFIED PHOTOCOPffiS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE.
- - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
RECORD CUSTODIAN - COMPLETE AND RETURN
[ RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of
records that, to the best of my knowledge, information and
belief all documents or things above mentioned have been produced.
] NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search
has been made and that no record of the following documents have
been located (CHECK THE APPROPRIATE BOX) :
RECORDS
X-RAYS
PATIENT BILLING
RECORDS / XRAYS have been destroyed
Date
Authorized signature for
CLAREMONT NURSING HOME
CUMBERLAND
M276476-03
*** SIGN AND RETURN THIS PAGE ***
CCJ!M)NWE2\LTH OF PENNSYLVl'INIA
c::.ooNIT OF ~
MEC1c & MECK
VS.
Fi Ie No.
2000 8087
GIANT FOOD STORES
. TO:
SUBPOENA TO PRODUCE DOCl..t1ENTS OR TH I NGS
FOR D I SOOVERY PURSUANT TO RULE 4009. 22
CARLISLE SYNTEC INC, 1285 RITNER HWY, CARLISLE PA 17013
ATTN: PERSONNEL DEPARTMENT
(Ncrne of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to
produce the fol.1owing docunent" ~~inKTTACHED ADDENDUM
at
MEDICAL LEGAL REPRODUCTIONS'(1!dPres~r40 DISSTON ST., PHILA., PA
You may deliver or mail legible copies of the documents or produce things requested hI
this subpoena, together with the certificate of carpliance, to the party making thiz
request at the address listed above. You have the right to seek in advance the rea~onable
cost of preparing the copies or producing the things sought.
I f you fai I to produc:e the docunents or things required by this subpoena within twenty
(20) days after its serv~ce, the party serving thir; ~;ubpoena may seek a court orde'-
o::rrpelling you to carply with it.
THIS SUBPOENA WAS
N.4JoE :
ADDRESS :
I SSUED AT THE REQUEST OF THE FOLLON I NG PERSON:
GEORGE FALLER, ESQ
MARTSON DEARDORFF WILLIAMS
C~.RLIDLE, rA 17013
215-335-3212
TELEPHONE:
SU'REI'E ~T I D#
A lTORNEY FOR:
49813
DEFENDANT
DATE:~j/11 f. ~I (lOOt
Sea I of the Court
C1;qlCI " C; 1i;
_ jA LPLlfflll
BY
M276476-04
(Eff. 7/97)
".",
-,-- -',,-.~., ,- -"I-~,'."'" ,__':h','_ '''''''-''"''~'''"'-'''-J^'~ '-'_~'~'._"_<_~ '" ~'~_,'
ADDENDUM TO SUBPOENA
MECK & MEeK
VS.
No. 2000 8087
. GIANT FOOD STORES
CUSTODIAN OF RECORDS FOR: CARLISLE SYNTEC INC
ANY EMPLOYMENT APPLICATIONS, EARNINGS, LEDGER SHEETS, TIME CARDS
REVIEWS, ATTENDANCE SHEETS, ANY AND ALL MEDICAL RECORDS AND REPORTS
AND PRE-EMPLOYMENT PHYSICALS, WORKMEN'S COMPENSATION CLAIMS MADE, ANY
W-2 WITHHOLDING TAX FORMS, AND ANY OTHER INFORMATION PERTAINING TO:
NAME: PATRICIA MECK
ADDRESS: 126 W PARK ST CARLISLE PA
DATE OF BIRTH: 02/05/40
SSAN: 168320840
CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE.
- ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
RECORD CUSTODIAN - COMPLETE AND RETURN
[ RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of
records that, to the best of my knowledge, information and
belief all documents or things above mentioned have been produced.
] NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search
has been made and that no record of the following documents have
been located (CHECK THE APPROPRIATE BOX) :
RECORDS
PATIENT BILLING
RECORDS / XRAYS have been destroyed
X-RAYS
Date
Authorized signature for
CARLISLE SYNTEC INC
CUMBERLAND
M276476-04
*** SIGN AND RETURN THIS PAGE ***
f~~~..'~'"
,. ~
,
k-.
,~.. ~
_~W:>:i_
SHERIFF'S RETURN - REGULAR
CASE NO: 2000-08087 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MECK PATRICIA A ET AL
VS
GIANT FOOD STORES
DAWN L. KELL
, Sheriff or Deputy Sheriff of
Cumberland County,pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
GIANT FOOD STORES
the
DEFENDANT
, at 0013:50 HOURS, on the 20th day of November, 2000
at 1149 HARRISBURG PIKE
CARLISLE, PA 17013
by handing to
HAVEN FISH (LEGAL ADMIN.)
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
18.00
3.10
.00
10.00
.00
31.10
r~ "~~-i
R. Thomas Kline
11/22/2000
O'BRIEN, BARIC & SCHERER
Sworn and Subscribed to before
By:
0a-um~. ~
Deputy Sheriff
me this /A?-
day of
~ OL fhJi) A.D.
Q'{'L/ (). ~ ~
rothonotary I
"~- ,.~
.
-
- ~ .. "l
~ ~
. ~. '~:'
Plaintiffs
I~ THE COURT OF COMMON PLEAS OF
CL"MIlERLAND COUNTY. PENNSn.VANIA.
NO. 2000-8087 CIVIL
PATRICIA A. MEeK and FRANK MEeK,
husband and wife,
,
:
v.
GIANT FOOD STORES,
Defendant
RULE 1312-1, The Petition for Appointment of Arbitrators shall be substantially
in the following form:
PETITION FOR APPOINnlENT OF ARIHTRATORS
TO THE HONORABLE. THE JUDG;5 OF SAID COURT:
Georcje B. Faller, 'Jr., Estroi~e . counsel for the ~defendant in
the above action (or actions). respectfully represencs thac:
1. The above-captioned acCion (or actions) is (are) aC issue.
2. The claim of the plainciff in the accion is $ Unliquidated
The counterclaim of the defendant in the acCion iSNot Aoolicahle
The following accorneys are
wise disqualified to sit as
interested in the case(s) as counselor are other-
arbitrators:
T.AY nffi ~P- nf M.:=IY't"~nn. n~.:=Irnnrff.
Williams & otto and Law Office of OiBr;en, BAric & ~~hp-rp-r
WHEREFORE. your petitioner prays your Honorable Courc co appoinc three (3)
arb1tracors to whom che case shall be submitced.
ORDER OF COt!RT
A."lD NOW, ~ g " tVt?.;J,in consideration of the
foregoing petiti n, .... ~r C,rt:/eu.u Esq. " ~ A2~
Esq.. and . Pl1- ;r1 uft .Esq., are appoinced arbitrators in the
above-captioned action (or actions) as prayed for.
submitted.
Geo
ler, Jr., Esquire
By the
P. J.
~
~
",'~
mVlJ"l
,.
OF T;"
Fl:::I)-{)rfiCE
C.(,'(':-:-; !r)h~(TI'i\R')f
;' " '__,'r -j'~,. t,
02 JiJ.N -8 Mill: 25
CUiv!BEhu'i-{) COUNIY
PENNSYlVAf\liA
,~
,.,
~;'O'.., _~,' <
~t~~
,.~"'"
.~
~ -\)
~\
3
,
c
'-'.
~~~~Ij\Ili\t:!~I!i.-..",_oMiiJlIlm!iJ'!iUI!i[",,,,, .~
~~~~ffl;'\. '_''---__
~ -,I
~L I'
'-
II 1_' ,~
- . <_, _', "o,:"~ - _. r~
- ,,~ :c
CERTIFICATE OF SERVICE
I, Melinda A. Han, an authorized agent for Martson Deardorff Winiams & Otto, hereby
certifY that a copy of the foregoing Petition for Appointment of Arbitrators was served this date by
depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as
fonows:
Robert L. O'Brien
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, P A 17013
MARTSON DEARDORFF WILLIAMS & OTTO
By~MuiL(}~
Melin a A. Hall
Ten East High Street
Carlisle, P A 17013
(717) 243-3341
Dated; January 4, 2002 .
F:\Fll.ES\DATAFll.E\Macdoc,cur\l OB-cer_ ]
~ti~~~I~M~lJt,jgjj;~';j\;;,tii;;,.w.{Ij~.!(w;*,~~'~-'-;...g.
- '~l!U"~~-"~-~>-' ~ - IY:! ~"'
~ 'a
." ,...
,~-
0 C' ()
c: 1'0 -''[1
~ (J -lq. Z - - -~
-00: "Ie;""
f{ ....... \J;1\!\ ;;;e: _-',bl
~ ...-~J.-, , ;_~~1 ~~}
~ g ::<,;r; --J
"- ~ C,j"'7
eCI ..--",;
b :;:.... ~)~
t - --if'"
?2.0 -
Jf! -0 s: r,n1
~ ):>c ::::,
6v ~ - ~
0"' '<
r ~
iclJI!j!lilUi~
, ~
..if,:
PATRICIA A. MECK and
FRANK MECK
husband and wife,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO. 2000- tiC!>?
CIVIL
vs.
CIVIL ACTION - LAW
GIANT FOOD STORES,
Defendants
NOTICE
You have been sued in court. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this complaint
and notice are served, by entering a written appearance personally or by an attorney
and filing in writing with the court, your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so, the case may proceed without you
and a judgment may be entered against you by the court without further notice for any
money claimed in the complaint or for any other claim or relief requested by the
plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
"
,
I ~ _ ~ ,C _
, ~"--"*,-
PATRICIA A. MECK and
FRANK MECK
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000- 'i08'! CIVIL
vs.
CIVIL ACTION - LAW
GIANT FOOD STORES,
Defendants
COMPLAINT
COUNT I
1. Plaintiff, Patricia A. Meek, is an adult individual who resides at 126 West
Park Street, Carlisle, Cumberland County, Pennsylvania 17013.
2. Plaintiff, Frank Meek is an adult individual who resides at 126 West Park
Street, Carlisle, Cumberland County, Pennsylvania 17013.
3. Defendant is Giant Food Stores, a corporation licensed to operate in
Pennsylvania and having a store located at 255 South Spring Garden Street, Carlisle,
Cumberland County, Pennsylvania 17013.
4. At all times relevant hereto, the Defendant owned, operated, leased or
sub-leased the area identified as the Giant Food Store, located at 255 South Spring
Garden Street, Carlisle, Pennsylvania 17013.
5. At all times relevant hereto, the Defendant, by and through its agents,
employees, servants and/or licensees, managed, controlled, possessed, operated and
maintained the aforesaid premises.
6. On or about Sunday, November 14, 1999, the Plaintiff, Patricia A. Meek
was a patron at the premises, having come to purchase items sold by the Defendant at
its store.
-I;
,'.
':';n:Ii/
7. Mrs. Meck was interested in purchasing a package of pudding mix. The
pudding mix was located on the bottom shelf of the corridor shelving. She bent down
on one knee to pick up a package of the mix. While she was down on one knee, she
noticed that dry pudding mix was spread onto the shelf unit. She noted that the
pudding mix appeared to be leaking from one of the packages. She chose a package
and as she attempted to stand, her feet slipped out from underneath her and she
landed hard on her buttocks on the tile floor. After her fall she noted the presence of
pudding mix on the floor.
8. As a result of the fall on the Defendant's premises, Mrs. Meck
experienced a severe pain in her coccygeal, lower lumber spine and lumbar sacral
areas. X-rays taken on November 16, 1999, showed a compression fracture in Mrs.
Meck's spine.
9. Mrs. Meck avers that her fall was caused by the Defendant permitting or
allowing dry pudding mix to collect on the waxed tile floor, which resulted in rendering
that portion of the floor, inherently slippery and dangerous to the store's patrons.
10. Defendant knew and/or should have known of the dangerous and
therefore defective condition, and of the likelihood that its patrons would be exposed to
the risk of slipping and falling.
11. The injuries sustained by Mrs. Meck were caused solely by the
negligence, carelessness, and recklessness of the Defendant, said Defendant having
acted with disregard to the health, safety and welfare of Mrs. Meck, its customer.
1...
,,--
.
, ~ I
--.iF
12. The negligence, carelessness, and recklessness of the Defendant
consisted of, but is not necessarily limited to the following:
a. Failure to maintain proper supervision of the premises;
b. Failure to warn Mrs. Meck of the insecure and dangerous condition
of the premises;
c. Failure to respond in a timely manner to the dangerous condition
caused by the pudding mix being on the floor;
d. Being otherwise negligent; and,
e. Such other negligent acts and/or failures to act as may be
discovered during the course of Discovery in this action.
13. Solely, as a result aforesaid negligence, carelessness, and recklessness
of the Defendant, Mrs. Meck sustained serious and disabling injuries, including a
fracture of the spine, multiple bruises and contusions in the gluteus muscle group, as
well as injury to the back and her lower extremities. Some or all of Mrs. Meck's injuries
are permanent in nature and effect. Mrs. Meck further makes claim herein for those
injuries, damages and consequences resulting from the incident of which she has no
present knowledge.
14. As a further result of the Defendant's negligence, carelessness and
recklessness as aforesaid, Mrs. Meck has incurred medical expenses and will be
obliged to receive further medical attention, resulting in additional future medical
expenses, including, but not limited to prescription pain medication and therapy.
-
L~. =1
'.~, -,~-'-'-' ,.
". -, --mliJ~&"
15. By reason of the aforesaid injuries, Mrs. Meck has suffered pain and
mental anguish and has been prevented and/or hindered from attending to her daily
duties, employment and functions, all to her great damage and loss.
WHEREFORE, Plaintiff Patricia A. Meck, hereby demands judgment against the
Defendant, Giant Food Stores in an amount in excess of $25,000.00, interest, costs
and delay damages.
COUNT II
16. The Plaintiffs' incorporate Paragraphs 1 thru 15 herein.
17. Frank Meck is the husband of Patricia Meck. As a result of the aforesaid
accident he has suffered and will suffer a loss of consortium, sex, society and services
of his wife due to the injuries sustained in the above described accident.
WHEREFORE, Plaintiff Frank Meck, hereby demands jUdgment against the
Defendant, Giant Food Stores in an amount in excess of $25,000.00, interest, costs
and delay damages.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
I
By ~ ~ro~
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
dab.dir/litigation/mecklmeck.com
- ill
.
., ,
-,.;,'-'- '.-" 0 '-j_ 'Ii-",.i_.,
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements made herein are made subject to the penalties of 18
Pa. C.S. 9 4904, relating to unsworn falsification to authorities.
Qro-.z;-;_ " :, Q. ~ .A .;
Patricia A. Meck
Date: /.// /d Joe)
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements made herein are made subject to the penalties of 18
Pa. C.S. 94904, relating to unsworn falsification to authorities.
~'1n~
Frank Meck
Date: /1-/0 -00
PATRICIA A. MECK and
FRANK MECK
husband and wife,
Plaintiffs
VS.
GIANT FOOD STORES,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000- ~O~'7 CIVIL
CIVIL ACTION - LAW
NOTICE
You have been sued in court. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this complaint
and notice are served, by entering a written appearance personally or by an attorney
and filing in writing with the court, your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so, the case may proceed without you
and a judgment may be entered against you by the court without further notice for any
money claimed in the complaint or for any other claim or relief requested by the
plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
PATRICIA A. MECK and
FRANK MECK
husband and wife,
Plaintiffs
VS,
GIANT FOOD STORES,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000- ¢~'? CIVIL
· CIVIL ACTION - LAW
COMPLAINT
COUNT I
Plaintiff, Patricia A. Meck, is an adult individual who resides at 126 West
Park Street, Carlisle, Cumberland County, Pennsylvania 17013.
2. Plaintiff, Frank Meck is an adult individual who resides at 126 West Park
Street, Carlisle, Cumberland County, Pennsylvania 17013.
3. Defendant is Giant Food Stores, a corporation licensed to operate in
Pennsylvania and having a store located at 255 South Spring Garden Street, Carlisle,
Cumberland County, Pennsylvania 17013.
4. At all times relevant hereto, the Defendant owned, operated, leased or
sub-leased the area identified as the Giant Food Store, located at 255 South Spring
Garden Street, Carlisle, Pennsylvania 17013.
5. At all times relevant hereto, the Defendant, by and through its agents,
employees, servants and/or licensees, managed, controlled, possessed, operated and
maintained the aforesaid premises.
6. On or about Sunday, November 14, 1999, the Plaintiff, Patricia A. Meck
was a patron at the premises, having come to purchase items sold by the Defendant at
its store.
7. Mrs. Meck was interested in purchasing a package of pudding mix. The
pudding mix was located on the bottom shelf of the corridor shelving. She bent down
on one knee to pick up a package of the mix. While she was down on one knee, she
noticed that dry pudding mix was spread onto the shelf unit. She noted that the
pudding mix appeared to be leaking from one of the packages. She chose a package
and as she attempted to stand, her feet slipped out from underneath her and she
landed hard on her buttocks on the tile floor. After her fall she noted the presence of
pudding mix on the floor.
8. As a result of the fall on the Defendant's premises, Mrs. Meck
experienced a severe pain in her coccygeal, lower lumber spine and lumbar sacral
areas. X-rays taken on November 16, 1999, showed a compression fracture in Mrs.
Meck's spine.
9. Mrs. Meck avers that her fall was caused by the Defendant permitting or
allowing dry pudding mix to collect on the waxed tile floor, which resulted in rendering
that portion of the floor, inherently slippery and dangerous to the store's patrons.
10. Defendant knew and/or should have known of the dangerous and
therefore defective condition, and of the likelihood that its patrons would be exposed to
the risk of slipping and falling.
11. The injuries sustained by Mrs. Meck were caused solely by the
negligence, carelessness, and recklessness of the Defendant, said Defendant having
acted with disregard to the health, safety and welfare of Mrs. Meck, its customer.
12. The negligence, carelessness, and recklessness of the Defendant
consisted of, but is not necessarily limited to the following:
a. Failure to maintain proper supervision of the premises;
b. Failure to warn Mrs. Meck of the insecure and dangerous condition
of the premises;
c. Failure to respond in a timely manner to the dangerous condition
caused by the pudding mix being on the floor;
d. Being otherwise negligent; and,
e. Such other negligent acts and/or failures to act as may be
discovered during the course of Discovery in this action.
13. Solely, as a result aforesaid negligence, carelessness, and recklessness
of the Defendant, Mrs. Meck sustained serious and disabling injuries, including a
fracture of the spine, multiple bruises and contusions in the gluteus muscle group, as
well as injury to the back and her lower extremities. Some or all of Mrs. Meck's injuries
are permanent in nature and effect. Mrs. Meck further makes claim herein for those
injuries, damages and consequences resulting from the incident of which she has no
present knowledge.
14. As a further result of the Defendant's negligence, carelessness and
recklessness as aforesaid, Mrs. Meck has incurred medical expenses and will be
obliged to receive further medical attention, resulting in additional future medical
expenses, including, but not limited to prescription pain medication and therapy.
15. By reason of the aforesaid injuries, Mm. Meck has suffered pain and
mental anguish and has been prevented and/or hindered from attending to her daily
duties, employment and functions, all to her great damage and loss.
WHEREFORE, Plaintiff Patricia A. Meck, hereby demands judgment against the
Defendant, Giant Food Stores in an amount in excess of $25,000.00, interest, costs
and delay damages.
COUNT II
16. The Plaintiffs' incorporate Paragraphs 1 thru 15 herein.
17. Frank Meck is the husband of Patricia Meck. As a result of the aforesaid
accident he has suffered and will suffer a loss of consortium, sex, society and services
of his wife due to the injuries sustained in the above described accident.
WHEREFORE, Plaintiff Frank Meck, hereby demands judgment against the
Defendant, Giant Food Stores in an amount in excess of $25,000.00, interest, costs
and delay damages.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
dab.dirllitigationlmeck/meck.com
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements made herein are made subject to the penalties of 18
Pa. C.S. § 4904, relating to unsworn falsification to authorities.
Patricia A. Meck
Date: /J/'/~
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements made herein are made subject to the penalties of 18
Pa. C.S. § 4904, relating to unsworn falsifiCation to authorities.
Frank Meck
Date: //-'/O ~ d 0
SHERIFF'S RETURN - REGULAR
CASE NO: 2000-08087 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MECK PATRICIA A ET AL
VS
GIANT FOOD STORES
, Sheriff or Deputy Sheriff of
DAWN L. KELL
cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
the
GIANT FOOD STORES
DEFENDANT ,
at 1149 HARRISBURG PIKE
CARLISLE, PA 17013
at 0013:50 HOURS, on the 20th day of November., 2000
HAVEN FISH (LEGAL ADMIN.)
by handing to
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 3.10
Affidavit .00
Surcharge 10.00
.00
31.10
Sworn and Subscribed to before
me this /~/' day of
~ ~6wD A.D.
I~rothonotary
So Answers:
Thomas Kline
11/22/2000
O,BRIEN, BARIC & SCHERER
Deputy Sheriff
SHERIFF'S RETURN - REGULAR
CASE NO: 2000-08087 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MECK PATRICIA A ET AL VS
GIANT FOOD STORES
, sheriff or Deputy sheriff of
DAWN L. KELL
Cumberland county,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
-- the
GIANT FOOD STORE_~S
-- -- HOURS, on the 20___t~ day of Nov____ember__, 20_--09
DEFENDANT at 0013:50
at 1149 HARRISBURG pIKE
~ by handing to
CARLISLE, PA 17013
HAVEN FISH (LEGAL ADMIN.)~ -
together with
a true and attested copy of COMPLAINT & NOTICE ~
and at the same time directing H_~i~ attention to the contents thereof-
' f, CostS:
sherlf s 18.00
Docketing 3.10
Service .00
Affidavit 10.00
Surcharge .00
sworn and Subscribed to before
me this /~ __ day of
A.D.
So Answers:
R. Thomas Kline
11/ .2/2ooo
O'BRIEN, BARIC & SCHERER
F:\F iLES~DATAFILE~Iacdoc cur~108-pr a. t/mah
Created: 12/13/00 04:10:12 PM
Revised: 12/13/00 04:21:07 PM
PATRICIA A. MECK and FRANK
MECK, husband and wife,
Plaintiffs
Vo
GIANT FOOD STORES, INC.,
Defendants
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-8087 CIVIL
CIVIL ACTION-LAW
JURY TRIAL OF TWELVE DEMANDED
PRAE__.~CIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Enter the appearance of MARTSON DEARDORFF WILLIAMS & OTTO on behalf of
Defendant, Giant Food Stores, Inc., in the above matter. Defendant hereby demands a twelve juror
jury trial in the above captioned action.
MARTSON EARDORFF WILLIAMS & OTTO
Geb'~ B. Faller, Jr., Esqu~
I.D. Number 49813 /r
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Defendant Giant
Food Stores, Inc.
Date: December 13, 2000
CERTIFICATE OF SERVICE.
I, Melinda A. Hall, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post
Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Robert L. O'Brien
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
MARTSON DEARDORFF WILLIAMS & OTTO
Melind~bA. Hall
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: December 13, 2000
IN THE COURT OF COMMON PLEAS OF CUMBERI.AND COUNTY
MECK '& MECK
VS.
GIANT FOOD STORES
NO. 2000 8087
:
CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena(s) for documents and things
pursuant to Rule 4009.22 GEORGE FALLER, ESQUIRE certifies that:
1. A Notice of Intent to Serve the Subpoena(s) with a copy of
the subpoena(s) attached thereto was mailed or delivered to
each party at least twenty days prior to the date on which
the subpoena(s) is sought to be served,
2. A copy of the Notice of Intent, including the proposed
subpoena(s) is attached to this certificate,
3. No objection to the subpoena(s) has been received, and
4. The subpoena(s) which will be served is identical to
the subpoena(s) which is attached to the Notice of Intent
to Serve the Subpoena(s).
Date: 07/17/01
File #: M276476
GEORGE FALLER, ESQUIRE
MARTSON DEARDORFF WILLIAMS
TEN EAST HIGH STREET
CARLISLE, PA 17013
717-243-3341
ATTORNEY FOR DEFENDANT
INQUIRIES SHOULD BE ADDRESSED TO:
MEDICAL LEGAL REPRODUCTIONS, INC.
4940 DISSTON STREET
PHILADELPHIA PA 19135
(215) 335-4907
By: J&cqueline Ci&rrocchi
IN ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
MECK &'MECK
Vs.
GIANT FOOD STORES
No. 2000 8087
TO: ROBERT O'BRIEN
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE
DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
DEFENDANT intends to serve a subpoena(s) identical to
the one(s) attached to this notice. You have twenty (20) days
from the date listed below in which to file of record and serve upon
the undersigned an objection to the subpoena. If no objection is
made the subpoena may be served.
Date: 06/25/01
GEORGE FALLER, ESQUIRE
MARTSON DEARDORFF WILLIAMS
TEN EAST HIGH STREET
CARLISLE, PA 17013
ATTORNEY FOR DEFENDANT
INQUIRIES SHOULD BE ADDRESSED TO:
MEDICAL LEGAL REPRODUCTIONS, INC.
4940 DISSTON STREET
PHILADELPHIA, PA 19135
(215) 335-4907
By: jacqueline Ci&rrocchi
Enc(s):
File #:
Copy of subpoena(s)
counsel return card
M276476
o0~TH OF p~SYLVANIA
, :
MECK & MECK :
:
Vs. : File No.
:
GIANT FOOD STORES :
:
2000 8087
TO:
SUBPOENA TO PROOI,.K~ DOCUMENTS OR TH I NGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
MASLAND ASSOCS INC, MEDICAL ARTS BLDG, CARLISLE PA 17013
(Name of Person oc Entity)
Within twenty (20) days afte~ service of this subpoena, you a~e o~de~ed by the court to
prc~luce the fol lowing d~t.~ orSj~bl~ne/~~DE~L~
MEDICAL LEGAL REPRODUCTIONS~A~%~s 940 DISSTON ST., PHILA., PA
you may deliver o~ mail legible copies of the documents o~ produce things requested .%
this subpoena, together with the certificate of cc~liance, to the pa~ty making thi~
request at the address listed 'above. you have the right to seek in advance the reasonable
cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty
(20) days afte~ its se~v'~ce, the party serving 'this subpoena may seek a court orde,'
ou,~ellir~3 you to co~oly with it.
TH I S SUBPOENA WAS I SSUEO AT THE REG(JEST OF THE FOLLON I NG PERSON:
TELEPHONE:
SUPREI~ OX. JRT ID fi:
A'rI'ORNEY FOR:
M276476-01
DATE:
GEORGE FALLER, ESQ
DEARDORFF WILLIAMS
C ........ ~ 17013
215_3~'-r3-2~
49813
DEFENDANT
Weal of th~Codrt ~-
(Eff. 7/97)
ADDEND UM TO SUBPOENA
MECK & MECK
Vs.
GIANT FOOD STORES
No. 2000 8087
CUSTODIAN OF RECORDS FOR: MASLAND ASSOCS INC
ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE,
MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER
INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO:
NAME: PATRICIA MECK
ADDRESS: 126 W PARK ST CARLISLE PA
DATE OF BIRTH: 02/05/40
SSAN: 1683208~0
CERTI~D PHOTOCOP~S ~LL BE ACCEDED IN LIEU OF YO~ PERSONAL ~pE~CE.
RECORD CUSTODIAN - COMPLETE AND RETURN
[ ]
RECORDSAREAFTACHED HERETO:I hereby certify as custodian of
records that, to the best of my knowledge, information and
belief all documents or things above mentioned have been produced.
] NODOCUMENTSAVAILABLE:I hereby certify that a thorough search
has been made and that no record of the following documents have
been located (CHECK THE APPROPRIATE BOX):
( ) RECORDS ( ) PATIENT BILLING
( ) X-RAYS ( ) RECORDS / XP~AYS have been destroyed
Date
CUMBERLAND
M276476-01
Authorized signature for
MASLAND ASSOCS INC
* ** SIGN AND RETURN THIS PAGE ** *
MEC~ & MECK
Vs.
GIANT FOOD STORES
c~TH OF p~m~SYLVANIA
: File No.
2000 8087
TO:
SUBPOENA TO PROOUCE EXlCLJ~NTS OR THINGS.
FOR Dm SOOVERY PURSUANT TO RULE 4009.22
ALEXANDER SPRING REHAB, 27 BROOKWOOD AVE, CARLISLE PA 17013
(Name of person o~ Entity)
Within twenty (20) days afte~ service of this subpoena, you ere ocde~ed by the court to
produce the following doc~rnent~ Ors~n~[~TACH~D ADDE~L~*[
at ZSSTO ST., PSX -,' .....
,EOZC '. R" O OCTZO S,(Ai $ 'ss
you may delive~ or mail legib]e copies of the docuTents cc produce things requested b~
this subpoena, togetheP with the certificate of ccrnpiiance, to the party making thi--
request at the address listed -above. You have the right to seek in advance the rea~onabl~
cost of preparing the copies or producing the things sought.
If you fail to produce the docunents cc things required by this subpoena within twenty
(.20) days afte~ its serv':ce, the party serving this .~ubpoena may seek a court order'
oj,oei)ing you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE RE(IUEST OF THE FOLLOWING PERSON:
GEORGE FALLER, ESQ
TELEPHONE:
~UPREI~ COURT ID ~
ATTORNEY FOR:
M276476-02
DATE:
~EARDORFF WILLIAMS
CA~.LISLE, -~ .7013
215-335-3212
49813
DEFENDANT
Seal otr the (~urt~ - '
BY Tk
p r othono~/~l er~-.~ ~ .v i ~ Divis~on
(Elf. 7/97)
ADDEND UM TO SUBPOENA
MECK & MEeK
Vs.
GIANT FOOD STORES
No. 2000 8087
CUSTODIAN OF RECORDS FOR: ALEXANDER SPRING REHAB
ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE,
MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER
INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO:
NAME: PATRICIA MECK
ADDRESS: 126 W PARK ST CARLISLE PA
DATE OF BIRTH: 02/05/40
SSAN: 168320849
CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE.
RECORD CUSTODIAN COMPLETE AND RETURN
] RECORDSAREATTACHED HERETO:I hereby certify as custodian of
records that, to the best of my knowledge, information and
belief all documents or things above mentioned have been produced.
] NO DOCUMENTS AVAILABLE:I hereby certify that a thorough search
has been made and that no record of the following documents have
been located (CHECK THE APPROPRIATE BOX):
( ) RECORDS ( ) PATIENT BILLING
( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed
Date
CUMBERLAND
M276476-02
Authorized signature for
ALEXANDER SPRING REHAB
*** SIGN AND RETURN THIS PAGE ***
MECK & MECK
Vs.
GIANT FOOD STORES
c~TH OF p~LVANIA
:
:
:
: Fi le No.
:
:
:
2000 8087
SUBPOENA TO PROOUCE~NTSORTHINGS
FOR DISCOVERY PURSUANT TO ~ULE 4009.22
CLAREMONT NURSING HOME, 375 CLAREMONT DR, CARLISLE PA 17013
ATTN: PERSONNEL DEPT
TO: (Name of Person o~ Entity)
Within twenty (20) days afte~ service of this subpoena, you a~e o~de~ed by the court to
pF~ce the followi~ docu~ent.~
at __ ~940 DISSTON ST. , PHILA., PA
You may deliver cc mail legible copies of the docL~nents cc produce things requested b~
this subpoena, to9ether with the certificate of cu-;oliance, to the pa~ty makin9 this
request at the address listed above. You have the right to seek in advance the rea~onabl~
cost of preparing the copies or producin9 the thin~s sought.
If you fail to produce the docunents cc things required by this subpoena within twenty
(20) days afte~ its service, the party serving this subpoena maY seek a court order'
OoToelling You to cu~Oly with it.
TH I S SUBPOENA WAS ISSUED AT THE RE(/tlEST OF THE FOLLOW I NG PERSON:
GEORGE FALLER, ESQ
TELEPHONE:
SUPRE~ COURT ID ~
ATTORNEY FOR:
EARDORFF WILLIAMS
CAI ...... FA 17013
215-335-3212
49813
DEFENDANT
M276476-03
DATE: Seal ois the Cx~Jrt - -- '
(Eff. 7'/97)
ADDEND UM TO $UBPOENA
MECK & MEeK
Vs.
· GIANT FOOD STORES
No. 2000 8087
CUSTODIAN OF RECORDS FOR: CLAREMONTNURSINGHOME
ANY EMPLOYMENT APPLICATIONS, EARNINGS, LEDGER SHEETS, TIME CARDS
REVIEWS, ATTENDANCE SHEETS, ANY AND ALL MEDICAL RECORDS AND REPORTS
AlqD PRE-EMPLOYMENT PHYSICALS, WORKMEN'S COMPENSATION CLAIMS MADE, ANY
W-2 WITHHOLDING TAX FORMS, AND ANY OTHER INFORMATION PERTAINING TO:
NAME: PATRICIA MECK
ADDRESS: 126 W PARK ST CARLISLE PA
DATE OF BIRTH: 02/05/40
SSAN: 168320840
CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE.
RECORD CUSTODIAN COMPLETE AND RETURN
[ ]
[ ]
RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of
records that, to the best of my knowledge, information and
belief all documents or things above mentioned have been produced.
NO DOCUMENTS AVAILABLE:I hereby certify that a thorough search
has been made and that no record of the following documents have
been located (CHECK THE APPROPRIATE BOX):
( ) RECORDS ( ) PATIENT BILLING
( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed
Date
CUMBERLAND
M276476-03
Authorized signature for
CLAREMONTNURSING HOME
*** SIGN AND RETURN THIS PAGE ***
MEC~ & MECK
Vs.
GIANT FOOD STORES
~'l~-I OF p]~lqt,]..qyLVlnlqlA
File No.
2000 8087
TO:
SUBPOENA TO PROCtLCE ~NTS OR THINGS
FOR D I SCOVERY PURSUANT TO RULE 4009.22
CARLISLE SYNTEC INC, 1285 RITNER HWY, CARLISLE PA 17013
ATTN: PERSONNEL DEPARTMENT
(Name of Person oc Entity)
Within twenty (20) days afte~ service of this subpoena, you a~e ccde~ed by the court to
produce the ~l..l~incJ document~ %~-~i CH ADDEi~i~Tvl
MEDICAL LEGAL REPRODUCTIONS,( ~S
You may deliver c~ mail legible copies of the documents o~ produce things requested bt
this subpoena, together with the certificate of cu,~liance, to the pa~ty making thi[
request at the address listed above. You have the right to seek in advance the reasonable
cost of prepa~ing the copies or producing the things sought.
If you fail to produce the doc~nents o~ things required by this subpoena within twenty
(20) days afte~ its se~v';ce, the party serving this :~ubpoena may seek a court o~de~'
~,~ell~r~j you to cc~ly with it.
TH I S SUBPOENA WAS ISSUED AT THE REQUEST CE THE FOLLOW I NG PERSON:
TELEPHONE:
SUPREME COURT ID
ATtoRNEY FOR:
GEORGE FALLER, ESQ
N DEARDORFF WILLIAMS
CA~LIDLE, PA 17013
49813
DEFENDANT
M276476-04
seal of'~h~-Codrt
(Eff. 7/97)
ADDENDUM
MECK & MEeK
Vs.
GIANT FOOD STORES
TO SUBPOENA
No. 2000 8087
CUSTODIAN OF RECORDS FOR: CARLISLE SYNTEC INC
ANY EMPLOYMENT APPLICATIONS, EARNINGS, LEDGER SHEETS, TIME CARDS
REVIEWS, ATTENDANCE SHEETS, ANY AND ALL MEDICAL RECORDS AND REPORTS
AND PRE-EMPLOYMENT PHYSICALS, WORKMEN'S COMPENSATION CLAIMS MADE, ANY
W-2 WITHHOLDING TAX FORMS, AND ANY OTHER INFORMATION PERTAINING TO:
NAME: PATRICIA MECK
ADDRESS: 126 W PARK ST
DATE OF BIRTH: 02/05/40
SSAN: 168320840
CARLISLE PA
CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE.
RECORD CUSTODIAN COMPLETE AND RETURN
[ ]
[ ]
RECORDSAREA~FACHEDHERETO:I hereby certify as custodian of
records that, to the best of my knowledge, information and
belief all documents or things above mentioned have been produced.
NO DOCUMENTSAVAILABLE:I hereby certify that a thorough search
has been made and that no record of the following documents have
been located (CHECK THE APPROPRIATE BOX):
( ) RECORDS ( ) PATIENT BILLING
( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed
Date
CUMBERLAND
M276476-04
Authorized signature for
CARLISLE SYNTEC INC
*** SIGN AND RETURN THIS PAGE ***
F:helLES~,DATAF iLEXMaedoe cur\ 108- ans 1/nlm
Created: 06/11/01 09:37:36 AM
Revised: 06/11/01 10:04:41 AM
9500.108
PATRICIA A. MECK and
FRANK MECK, husband and wife
Plaintiffs
Vo
GIANT FOOD STORES,
Defendant
: 1N THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000-8087
CIVIL ACTION-LAW
JURY TRIAL OF TWELVE DEMANDED
DEFENDANT'S ANSWER TO PLAINTIFFS' COMPLAINT
AND NOW, comes the Defendant Giant Food Stores and hereby responds to Plaintiffs'
Complaint as follows:
1-2. After reasonable investigation, the answering Defendant is without knowledge or
infomtation sufficient to form a belief as to the truth or falsity of the averments contained in these
paragraphs. The averments are therefore deemed denied and proof is demanded.
3. Denied. To the contrary, the correct corporate name is Giant Food Stores, LLC.
Giant Food Stores, LLC does currently operate a store located at 255 South Spring Garden Street,
Carlisle, Cumberland County, Pennsylvania.
4. Admitted that during the relevant time hereto, the Defendant leased and operated a
grocery store in the interior of 255 South Spring Garden Street, Carlisle, Pennsylvania. 5. Admitted.
6-15. Denied pursuant to Pa. R.C.P. 1029(e).
WHEREFORE, Defendant demands judgment in its favor and dismissal of Plaintiffs'
Complaint with prejudice.
COUNT II
16. Defendant hereby incorporates by reference the answers to paragraphs 1 through 15
of this Answer.
17. Denied pursuant to Pa. R.C.P. 1029(e).
WHEREFORE, Defendant demands judgment in its favor and dismissal of Plaintiffs'
Complaint with prejudice.
MARTSON DEARDORFF WILLIAMS & OTTO
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Defendant
Date: ~% c~3 ~ ;~-DO ~
VERIFICATION
TIMOTHY REARDON, who is Vice President-Risk Management and Support Services of
Giant Food Stores, LLC and acknowledges that he has the authority to execute this Verification in
behalf of Giant Food Stores, LLC certifies that the foregoing Defendant's Answer to Plaintiffs'
Complaint is based upon information which has been gathered by my counsel in the preparation of
the lawsuit. The language of this Answer is that of counsel and not my own. I have read the
document and to the extent that the Answer is based upon information which I have given to my
counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that
the content of the Answer is that of counsel, I have relied upon counsel in making this Verification.
This statement and Verification are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unswom falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal penalties.
Dated:
rlECFIVEL
JUN 2 5 2001
~4DWr'
CERTIFICATE OF SERVICE.
I, Nichole L. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Defendant's Answer to Plaintiffs' Complaint was served this date
by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as
follows:
Robert L. O'Brien, Esquire
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
MARTSON DEARDORFF WILLIAMS & OTTO
Nichole L. Myers
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
PATRICIA A. MECK and FRANK MECK,
husband and wife,
V.
GIANT FOOD STORES,
Plaintiffs
Defendant
RULE 1312-1.
: NO. 2000-8087
:
:
:
:
:
· :
:
:
IN THE COURT OF CO~glON PLEAS OF
CI~,'HBERLANI) COUNTY, P~NSYLVANIA'
CIVIL
The Petition for Appointment of Arbitrators shall be substantially
the follovin$ rom:
PETITION FOR APPOIITDIENT OF ARBITRATORS
TO THE NONORABLE. TI~ JUDG,~S OF SAID COURT:
Geo~e B. Faller¢-Jr.{ Es~i~e , counsel for the~defendant in
the above action (or actions), respectfully represents chat:
1. The above-captioned accion (or accions) is (are) ac issue-
2. The claim of che plaintiff in the acciou is $ Unliqui~ated
The councerclaim of che defendant in the acclon Is~ot Ao~licable ·
The following a~zorneys are interested in che case(s) as counsel or are ocher-
your peciCioner prays your Honorable Cour~ to appoint three (3)
arbitra~ors co vhom che casa shall be submiCced.
lsubmitced,
ler, Jr., Esquire
CERTIFICATE OF SERVICE
I, Melinda A. Hall, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Petition for Appointment of Arbitrators was served this date by
depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as
follows:
Robert L. O'Brien
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
MARTSON DEARDORFF WILLIAMS & OTTO
B),~f~~ ~. ~
Melin~a A. Hall
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: January 4, 2002
F: ~FILES~DATAFILEkMacdoc.cur\ 108 -eer 1
PATRICIA A. MECK and
FRANK MECK
husband and wife,
Plaintiffs
VS.
GIANT FOOD STORES,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2000- c~'~ CIVIL
CIVIL ACTION- LAW
PRAECIPE
Dear Prothonotary:
Please note that the judgment in the above captioned action has been satisfied.
By
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873