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HomeMy WebLinkAbout00-08572 '~" "-'"' ~.- , , ',",',"" ,.'-'" "'~,,~' ,~.."' ,~'" ,_' ~"'," 'C ~'.--'-.'"'..,~"",' "-C' .",-"",.,,,~='",,,,,~_""~..',,,' ,,,;,,.('~ Thomas E. Brenner, Esquire LD. #32085 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street p, 0, Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel for DOUGLAS DEITRICH and LUCINDA DEITRICH, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Defendant : CIVIL ACTION-LAW : NO: ()O - rf'S'l d G(JlL'-r~ v. CRAIG CHARLES, : JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the fol1owing paged, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personal1y or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money 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 Lawyer Referral Service Cumberland County Bar Association Carlisle, PA 17013 (717) 249-3166 . "~""' "',..,-,' ,'," '_'-"." -- . ,"'~' ~ ,"", ,'~" ,,,,,, ... ",,;,~," "..,',"",.., "''''~''''''' ,,,"," '>''',,<F.'', .,-"',,,. , ~ ^,"" ~'i,l NOTICIA Le has demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguintes, useted tiene viente (20) dias de plaza al partir de las fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion y por cualquier quja 0 puede perder dinero 0 sus propiendades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUGICIENTE DE P AGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OPICINA CUY A DIRECCI90N SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUlR ASISTENCIA LEGAL. Cumberland County Lawyer Referral Service Cumberland County Bar Association Carlisle, PA 17013 (717) 249-3166 ,,- "n__ '^o' T~ ~ "'~.'" "''','~' ',~~'r""~"''''''~~''^'. '"^, ~'" ,~ >'''"'''f; Thomas E. Brenner, Esquire J.D. #32085 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel for DOUGLAS DEITRICH and LUCINDA DEITRICH, Plaintiffs v. : IN TIIE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : NO: 01;- 'i!s7.;z (1;:J I~ CRAIG CHARLES, Defendant : JURY TRIAL DEMANDED ~\t:~:~:t~mtW:~H\Wt\! ::::::::::::::::::::~ ::::::::::n::::~::::~ <<<~:., ~ ~h" ~1~t~y!tjt-~1,%~~l0r~\~~!t~~rfr{;~;?1~Vf;~;;~~t~;:;r<;:' ,::':-:-'x x .,.,:i'... ...~$~,x,:=: ...",,,,'~~-.;.<:-:-':=::=: .........,...'$:"..:<;.:,::; '" ,~::::~","''''''''' AND NOW, come the Plaintiffs, by and through their attorneys, Goldberg, Katzman & Shipman, P.C., and state: COUNT I 1. Plaintiffs Douglas Deitrich and Lucinda Deitrich, his wife, are adult individuals residing at 1308 Rt. 209, Millersburg, Dauphin County, Pennsylvania. 2. Defendant Craig Charles is an adult individual residing at 3 Spend-A-Buck Drive, Dillsburg, York County, Pennsylvania 17019. 3. This matter arises from a recreational sports injury sustained by Plaintiff Douglas Deitrich on January 5, 1999. 4. On that date Plaintiff Douglas Deitrich and Defendant Craig Charles were preparing to play stick baJI in a gymnasium maintained by Pennsylvania Hospital Insurance Company located near Mechanicsburg, Cumberland County, Pennsylvania. 5. Defendant Craig Charles negligently threw a baJI in the direction of Plaintiff ," ~"",,-, '"','~-- ,"''"~''','''~- < ,~-\,,',' ,~.,,,,,,,--,,*"~""='C~':{<""H<~." ," "~'U","" Douglas Deitrich, striking him near the left eye and causing injury to him. 6. Defendant Charles was negligent in that he: ( a) negligently hurled a ball in the direction of Plaintiff Deitrich; (b) caused the ball to strike Plaintiff Deitrich in the area of his left eye; ( c) failed to assure that no one was in the area where he was attempting to throw the ball when he released it from his hand; and (d) hurled the ball with such velocity that it would cause injury to any person struck by the biil1. 7. Solely as a result of the negligence of Defendant Craig Charles, Plaintiff Douglas Deitrich sustained a significant injury to his left eye, including: (a) the accumulation of blood in and about the left eye; (b) accumulation of blood between the eye lens and cornea; ( c) partial detachment of the vitreous body, with likely retinal detachment in the future; (d) cloudiness in vision that continues to this date; ( e) flashing in peripheral vision. 8. As a direct result of the negligence of Defendant Charles, Plaintiff Deitrich has undergone medical treatment with an eye specialist and continues to suffer the ill effects of this eye injury. 9. Plaintiff Douglas Deitrich continues to have eye problems including: (a) constant observation of significant and large floaters and snow effect in his left eye; 2 .'~ "'.~ '^, ',' ~ '__ 0" '0' ",,,,,,:,.,,'0" ,',.,-,,~.' '",""" ',".'C ,-,_,""""''''~'-rr-''A''''c''''''''- "'~ ,,' -ce:.', ,~C",y~ (b) constant flashing in peripheral vision with eye movement; (c) required to wear sunglasses because of the effect of light upon his eyes; (d) is bothered by flourescent lighting which he constantly encounters in his work environment; and ( e) difficulty in reading necessitating the utilization of reading glasses. 10. By reason of this eye injury, Plaintiff Douglas Deitrich has been required to incur the cost for medical treatment, medications and eyewear to his damage and loss. 11. The injuries to the left eye of Douglas Deitrich are permanent and will require ongoing medical care and possible surgery and claim is made for these expenses. 12. As a direct result of the aforesaid injury, Plaintiff Douglas Deitrich has undergone, and will in the future undergo, great physical and mental pain and suffering, great inconvenience in carrying out his daily activities, loss of life's pleasures and enjoyment and claim is made for these damages. 13. As a direct result of the aforesaid injury, Plaintiff Douglas Deitrich has been subjected to great humi1iation and embarrassment and claim is made for these damages. 14. As a direct result of the aforesaid injury, Plaintiff Douglas Deitrich has sustained and in the future will likely sustain work loss and an impairment of earning capacity and a clainl is made for these damages. WHEREFORE, Plaintiff Douglas Deitrich demands judgment against Defendant Craig Charles in an amount not less than Fifty Thousand Dol1ars ($50,0000) together with interest and costs of suit. 3 '-- <' -'~,' "<C'" ~... ,;,,,.,,,',"' ' ' "= . _,_,__,' ';",,,"'0' "","';" ;""'-"~"''''''.' C' '" '''''<o",.~'","",,;;,~ " ';" COUNT II Lucinda Deitrich v. Crail! Charles 15. The averments of paragraph 14 are incorporated by reference. 16. Plaintiff Lucinda Deitrich is the wife of Plaintiff Douglas Deitrich. 17. As a result of the injuries sustained by her husband from the negligence of Defendant Charles, Plaintiff Lucinda Deitrich has been deprived, and may in the future, be deprived of the care, companionship, consortium and society of her husband, all of which are and will be to her great detriment and a clainl is made for these damages. WHEREFORE, Defendant Lucinda Deitrich demands judgment against Defendant Charles in an amount not less than Fifty Thousand Dol1ars ($50,000) together with interest and costs of suit. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.c. BYC!~ Thomas E. Brenner, Esquire Attorney I.D. No. 32085 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs Date: 12. 'lc 0 0 4 - "", "'=~ ,~'-'''''' '0. 'o~' ''''".' ',''''-'"''. ' '';;.' ":.'.., "'''''.~''''~'''~';~-':-;.',~' , '~:~,j VERIFICATION I hereby acknowledge that I have read the foregoing document and that the facts stated herein are true and correct to the best of my knowledge, information and belief The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsifications to authorities. By: d-tj/)( itz !Jr; ix:r jJ Lucinda Deitrich DATE: //-/(., - (f'(J 50374.1 VERIFICATION I hereby acknowledge that I have read the foregoing document and that the facts stated herein are true and correct to the best of my knowledge, information and belief The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsifications to authorities. By: DATE: //-/& - (70 50374.1 ';<. ~- ~ . ~ !>cl'IT,,~1l>t~(! SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2000-08572 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND , DEITRICH DOUGLAS ET AL VS CHARLES CRAIG R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: CHARLES CRAIG but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT & NOTICE On January 5th , 2001 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge Dep. York County 18.00 9.00 10.00 51.20 .00 88.20 01/05/2001 GOLDBERG, KATZMAN p~~ R. Thomas Kline Sheriff of Cumberland County & SHIPMAN Sworn and subscribed to before me this ..1.0 ~ day of ~"~r c2.tJ-0} A. D. C)yJ- got{::~~~~ty# ' "~- '" ]ji~'t ^' . -'i':':JliIl~~~ ,~ <___"~""-.&;H;~'~L~ . .~"~""- n';~ ~ iikIlli.~'! COONTY 01: YORK OFFICE OF THE SHERIFF SERVICE CALL (717) 771-9601 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 2. COURT NUMBER 4. TYPE OF WRIT OR COMPLAINT Notice & Complaint 1. PLAINTIFFISI Sif { Cumberland OUT OF COU:iTY CmABERLAVfD ADVANCED FEE PAID BY SHERIFF .."" ,:.__.J'"; NOTE ONLY APPUCABLE ON W~IT.OF EXECUTION: N.B. WAIVER OF WATCHMAN. Any deputy sheriff levying upon or anaching any property under within writ may leave same without a watchman, in custocfv of whomever is found in possession, after notifying person of levy or anachment, without liability on the part of such deputy or the sherjff to any plaintiff herein for any loss, destruction, or removal of any property before sheriff's sale thereof. 9. TYPE NAME AND ADDRESS of ATTORNEY/ORIGINATOR aod SIGNATURE ~ R 10, TELEPHONE NUMBER 11. DATE FILED GOLDBERG, KATZMAN & SHIPMAN PC 320 MARKET ST. HARRISBURG; PA 1710 234-4161 "12-12-00 12. SEND NOTICE OF SERVICE COpy TO NAME AND ADDRESS BELOW: (Thts.area must be completed If notice Is to be mailed). CUMBERLNAD CO. SHERIFF 22. REMARKS: 1\ ~ Aefu 43. 44. Signature of De . Sheriff 45. Signature of York County Sheriff WILLIAM M. HOSE 46. Signature of Foreign Coun Sheriff RN SIGNATURE ~ 1/2/01 49. Date 51. Date Received 4. BLUE - Sheriff's Office /' ----., ,J. CO~ YORK ".~ '. C{~"i~QfFICE OF THE SHERIFF 28 EAST MARKE:T ST., YORK, PA 17401 "<<oles Deitrt~h, 3. DEFENDANT/Sf et. a,~. SERVICE CALL (717) 771-9601 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN /' 1. PLAINTIFF/Sf 2.CO RTNUMBER 130-8'572 CiVl, 4. TYPE OF WRIT OR COMPLAINT Nott(~e & Complainr ~Cratq Charles "SERVE { 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION. ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD. . Craig ChArles 6. ADDRESS (STREET OR RFD WITH BOX NUMBER, APT NO.. CITY, BORO, TWP., STATE AND ZIP CODE AT < Spend-A-Bucl< Drive, DU1sburg, FA 17019 7.INDlCATE SERVICE: [J PERSONAL [J PERSON IN CHARGE DEPUTlz~um~9JaaMl [J 1 ST CLASS MAIL [J POSTED ~o,w .l~'} </~n _ . '".. .,.,19 .., ), ,"R!F!',.q~!9,PL\l'I U!O!A~.dO<h~~~yjl"l?utiz"th,shl!l!i~Of , ".' '. "..... "o,rk' . ." . " '.. i , . ,COUNTY to execute thiS . t and make return thereof accDrdlng to law; This deputation 'being made atthe request and risk ofthe plaintiff: " , SHERIFF 's. SPECIAL INSTROCTIONS ,OR ,OTHEA: INFORMATION THAT, WILL.ASSIST IN EXPEDITING SERVICE: , >', ',' , Q OTHER ~OF X~~'X COUNTY Cumber1 ?~,nd A9JANCEO FEE PAID BY SHERIFF ( .. .~ ! OUT OF COUNTY CUMBERLAND N:j)TE; .-ONLY A,P~~ICABLE ON'WRIT OF EXECUT,ION: N.H. WAiVER"OF, \NATCHMAN ~ Any deputy sheriff levying upon or attaching any property under within writ may leave ,Jliffi8 without a watchman,,: in ,custodY',:o,f whomever is, found in possession, after- no~fying person of levy or,attachment, w.itJ:Iout liability on the, part 'of such deputy or- the sheriff to any ~inti,ff herej~ for, any ross, d~structi~,n" or,~mo;val 6f any propel1Y:before ,sheriff's s .e thereof. ~/' ~., , ,.9: TVP~A'fIlJ:AQDR~Sof~ORtiEYlOllIGJI'AA~R am)SIGNATUR.I!;;'::POaO{l(z,6Z~i';):',~< -to. T~LEP'i\lNE NU~BER 'O~OBER.&. KATZMA.N & SHIPMAN PC 320 MARI<ET ST. HARRISBURG. PJ(1.7108 234..4161 . ..' 1)iDATE FILED 12-12-00 12. ~END :NOTICE OF, SERVICE COPY TO"NAME,AND ADDAI;SS' BELOW: '(This'8re8 must be co'mpleted if notice is to be mailed). 'I " 16. HOW SERVED, PERSONAL ( ) R..AHRENS RESIDl!oNCE ~~~ 12-14-00 1-11-01 SHERIFF'S OFF ( ) OTHER ( ) SEE REMARKS, POSTED' ( ) POE ( 17. a I hereby certify and, return,s 'N,OT FOl,.!ND b~cal.!se j'''alTl unable to locate the individual, company. corporatton, etc, nalJled above. (See remarkS.:~low.) 18. NAME AND TITLE OF INDIVIDUAL SERVI!D I LIST ADD,RESS HERE IF NOt SHOWN ABOVE (Relallonship to Defendent) ...0/7 (') rj';'" I. '.. ., - 1;f!P. . . . (::c t>7C. (": ('tv /.f.~) I_I" 22. REMARKS: ",' 'l" ; '''. ',S ~~ \.' ~) ::3 ~ SO ANSWER. 41. AFFIRMED an~'.~,~'~briti~dto 'oofo~;me 'this 42. day of 2ND 44. Signature of De . Sheriff 45. Signature of York County'Sheriff -;r::;;j,,,,,,,,, 4J:Jiat ;;:;8 /~v 48. Date 43. f)'" " ~....,"- 1/2/01 49. Date '..".--.." 51. Date Received 1. WHITE - Issuing Authority 2. PINK - Attorney 4. BLUE - Sheriff's Office , .";,c,j', , ",~',",' ",,~,<"'O '~',' ,r."""~,' ,," ",,'ro,.' ,..l__, ;, ,~', .- { ,>~' '~~"" 'k C,,,",__,"," ,;,,:,~ ,,';; ," ",,,,;;.".~,,;'~,;, ;,";:' 'G"";~i,'",~;. ,-i., "'~" . ';,'<'~ ;~::I " DOUGLAS DEITRICH and LUCINDA DEITRICH, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs v. : No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED TO: Douglas Deitrich and Lucinda Deitrich, Plaintiffs c/o Thomas E. Brenner, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITIllN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Respectfully submitted, By: THOMAS, THO ER,LLP ,..-......,.l~ '(. r i: ~ K. Thomas, II, Esqwre 305 North Front Street P.O. Box 999 Harrisburg, P A 171 08 (717) 255-7617 Attorney for Defendant Dated: \/15/6\ ;"'", --' -" .',,, >'~ ~,,'~ ~ .', "i<,. h, . :, ";,;,.'" ~<;:,;,'; "'" >>:" "-<~~';,,,;,:~, ,'" ,'''~ ',1, ;,> ';:'-';',;~'" ,::,,!;,', ;'~~',;,::'~,~',,~ ',' ^ ' ,:;',',-,,;',:\;:;1 DOUGLAS DEITRICH and LUCINDA DEITRICH, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED Defendant, Craig Charles, by and through his attorneys, Thomas, Thomas & Hafer, LLP, and J=es K. Thomas, II, Esquire, hereby files the following Answer with New Matter to Plaintiffs' Complaint: COUNT I 1. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph I and hence it is lienied and proof is demanded at time of trial. 2. Admitted. 3. Denied as stated. It is admitted that this matter arises from allegations that an injury was sustained in the course of a recreational sports activity performed during and at the premises of Plaintiff and Defendant's employer on January 5, 1999. Any and all other averments of paragraph 3 are denied. 4. Admitted in part and denied in part. It is admitted that Plaintiff, Douglas Deitrich and Defendant Craig Charles, were preparing to play stick ball in the gymnasium maintained by their employer, Pennsylvania Hospital Insurance Company. Any and all other averments of paragraph 4 are specifically denied. 5. Denied as stated. It is denied that Craig Charles negligently threw the ball in the direction of Plaintiff Deitrich. Any and all other averments of paragraph 5 are denied and proof is demanded at time of trial. 6. Denied. The averments of paragraph 6 are denied pursuant to Pa.R.C.P. Rule 1029(e). - ""-,,,-, '~" '~ ,"'. '" ~,'~,~ ";',', ,- ""__"" ",,,,>, ' ""..[ h' ;..-,;".:,;'",;~__>", ""','J ,:"~" ~':";~'~'k'\ 7. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 7 and hence they are denied and proof is demanded at time of trial. 8. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 8 and hence they are denied and proof is demanded at time of trial. 9. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 9 and hence they are denied and proof is demanded at tinle of trial. 10. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 10 and hence they are denied and proof is demanded at time of trial. 11. Denied. Any averments ofnl;gligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 11 and hence they are denied and proof is demanded at time of trial. 12. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 12 and hence they are denied and proof is demanded at time of trial. 13. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 13 and hence they are denied and proof is demanded at time of trial. 14. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 14 and hence they are denied and proof is demanded at time of trial. WHEREFORE, the Defendant requests this Honorable Court to dismiss Plaintiffs' Complaint. COUNT II 15. The answering Defendant incorporates the answers of paragraphs 1 through 14 as if set forth in full. 2 --~<,,~"'" ; , ,'., ,"cl," ,,..",,J ;-,-'..;';" "" _ ~ '. -' ,_:1 ""~' ,--""c,,',,'>', ,,':-"',.,wL "'0 r' - """;j 16. Denied. Answering Defendant is without information and belief as to the truth of the averments of paragraph 16 and hence they are denied and proof is demanded at time of trial. 17. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 17 and hence they are denied and proof is demanded at time of trial. WHEREFORE, the Defendant requests this Honorable Court to dismiss Plaintiffs' Complaint. NEW MATTER I. At all tinles relevant to the subject Complaint, Plaintiff and Defendant were both employees of Pennsylvania Hospital Insurance Company ("PHI CO"). 2. The incident occurred in a gymnasium, which was part of the business premises owned, occupied and controlled by PHICO where Plaintiff and Defendant worked. 3. The "stick ball" game to wp.icl1 Plaintiffrefers in paragraph 4 of his Complaint, was a regularly scheduled event with various teams of PHICO employees, known as the PHICO Stick Ball League. 4. The CEO of PHI CO and other PHICO employees were participating in the games on the day in question. 5. PHICO provided bats, balls and other equipment for the games. 6. Only PHICO employees were participating in the games on the day of the incident. 7. Prior to entering the gymnasium, Plaintiff observed Defendant, Jim Micelli and others throwing balls against a wall. 8. As Plaintiff walked between the pitchers and the wall, throwing stopped until he walked past. 9. 10. After Plaintiff passed, the throwing resumed. After Plaintiff passed Defendant, Defendant resumed throwing balls against the wall. 11. Plaintiff took a position near the batter's box. 12. A pitch thrown by Defendant struck Plaintiff. 3 .. ~ , ,',(,(, ,",'00'",',,< ','"";,,, "',.,__",~.~,:.,~,~O,,,,,, ",,-" "'";",<,:',,,~-:ic~,~>-,,,__o ,,;',-;;"',:,," 13. Plaintiff and Defendant were co-employees of PHI CO. 14. Defendant is immune from liability pursuant to the provisions of the Pennsylvania Worker's Compensation Act. 15. Plaintiff was a voluntary participant in the sport activity of stick ball on his employer's premises. 16. Defendant did not owe Plaintiff any duty which would provide a basis for liability in this action. 17. Plaintiff knew or should have known of the risk inherent in the activities in which he engaged and voluntarily assumed that risk which bars his clainl. 18. Some or all of Plaintiff claims may be barred or reduced by the comparative and/or contributory negligence of Plaintiff, Douglas Deitrich, including but not limited to the following: a. failing to observe other participants who were preparing to and/or playing the game; b. failing to be on the look out for balls being thrown; c. failing to wear appropriate protective eye or other equipment to protect against potential injury, particularly because of prior injury; d. failing to exercise due care to protect himself against injuries which he knew or should have known could have arisen from preparing to and/or playing the game at said time, date and location. WHEREFORE, Defendant requests this Honorable Court dismiss Plaintiffs' Complaint. By: Respectfully submitted, THOMAS, T~ HAFER, LLP 0~'- James K. Thomas, II, Esquire 305 North Front Street Post Office Box 999 Harrisburg, P A 171 08-0999 (717) 255-7617 Date: \AS/o\ :119603.1 4 "' --~ ~^< ^"'.'''''~' '< c"', " -,'", - '~;; ".""__"'"""C""'_"'~ H ,\ "";"';;',.::.~e,';'.-- VERIFICATION I hereby verify that the averments made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. By: //} Dated: :119653.1 1-/3-CJ/ rles ,.' ,~ , ~ ,~ ,,'. , ~ '.j", "".""',,",,, ""c.'' '_ .', ,",";' ',:'"ii;',,;,;,~,e,;', ,j'. ''i "-<"i CERTIFICATE OF SERVICE AND NOW, this J 5~ay of :;a fJlA.CUY ,200 I, I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Thomas E. Brenner, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108 ~ ~~'~""~1Q~-'~'V'~-,""d~~~jllill~~~"'" -~,- ,~. ~,-~ ~ ~,="~~"~,- ". - ~~ - -.~" ,. ~ . " " - ~" IiIIIIi ,~ '--"'"'~ D~ ,--'~-',"""R ~'" - _ ~. V,' ,. -c':' ev1'.: : L~_" -r,"-- ""-. ~ (J) . ~. ~:~-: 7. .. (~(-, .J;;O -,-- .~,.~ .......::.. =2 ~ ~ ~- . - C) C .~,; (,1 - _~,,"J , "II 1-_"" 'to) . DOUGLAS DEITRlCH and LUCINDA DEITRlCH, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v, : No.: 00-8572 CIVIL TERM Defendant : CIVIL ACTION - LAW : JURY TRlAL DEMANDED CRAIG CHARLES, ~-.~:~':~~~;1~~_~~j~~~~~t;:~2i;:~.ft~~~~~Jl~~~~~Q.!!~~!!;!!1!rrd~@~_~,~ TO: Douglas Deitrich and Lucinda Deitrich, Plaintiffs c/o Thomas E. Brenner, Esquire Goldberg, Katzman & Shipman, P.c. 320 Market Street Harrisburg, P A 17108 YOU ARE HEREBY NOTIFIED TO FILE A WRlTTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Respectfujjy submitted, By: ~ Dated: \/,5/6\ ames K. Thomas, II, Esquire 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 (717) 255-7617 Attorney for Defendant I' ",' " d I. ffi .1 '~'--~, '" " < -- ,- -' -~ ' J, i'161 . . DOUGLAS DEjTRICH and LUCINDA DEITRICH, : IN THE COURT OF COMMON PLEAS ; CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs v. : No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED 'iCANS:wER~TH~W'MATTER:OF':OEFENDANTjWO;PJiAIl'llTJF;F,S?ICOMRT$.iUNT.tlij -- ,~~",,~.....Ai:l;;~__~ ,:'.\.o";..~,....."...."",~,.,:",_,,,,'I3f~~'4,,,,,,,,,~~_,"4..~~;:'~.,,,,,,~~,~,,,,,,~.;:,>~..~_~~,__~~_,,~ Defendant, Craig Charles, by and through his attorneys, Thomas, Thomas & Hafer, LLP, and James K. Thomas, II, Esquire, hereby files the following Answer with New Matter to Plaintiffs' Complaint; COUNT I 1. Denied. Answering Defendant is without information or belief as to the truth of the averments of paragraph I and hence it is denied and proof is demanded at time of trial. 2. Admitted. 3. Denied as stated. It is admitted that this matter arises from allegations that an injury was sustained in the course of a recreational sports activity performed during and at the premises of Plaintiff and Defendant's employer on January 5,1999. Any and all other averments of paragraph 3 are denied. 4. Admitted in part and denied in part. It is,admitted that Plaintiff, Douglas Deitrich and Defendant Craig Charles, were preparing to play stick ball in the gymnasium maintained by their employer, Pennsylvania Hospital Insurance Company. Any and all other averments of paragraph 4 are specifically denied. 5. Denied as stated. It is denied that Craig Charles negligently threw the ball in the direction of Plaintiff Deitrich. Any and all other averments of paragraph 5 are denied and proof is demanded at time oftrial. 6. Denied. The averments of paragraph 6 are denied pursuant to Pa.R.C.P. Rule 1029(e). :l , ;" ~" . 7. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 7 and hence they are denied and proof is demanded at time of trial. 8. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 8 and hence they are denied and proof is demanded at time of trial. 9. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 9 and hence they are denied and proof is demanded at time of trial. 10. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the bajance of the averments of paragraph 10 and hence they are denied and proof is demanded at time of trial. 11. Denied. Any averments of negligence of Defendant Craig are specificaljy denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 11 and hence they are denied and proof is demanded at time of trial. 12. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 12 and hence they are denied and proof is demanded at time of trial. 13. Denied. Any averments of negligence ofpefendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 13 and hence they are denied and proof is demanded at time of trial. 14. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 14 and hence they are denied and proof is demanded at time of trial. WHEREFORE, the Defendant requests this Honorable Court to dismiss Plaintiffs' Complaint. COUNT II 15. The answering Defendant incorporates the answers of paragraphs j through 14 as if set forth in full. 2 , ~, <~'-': ., .~ =, , ,,-~~ -. .,; ~, ~~.;' 16. Denied. Answering Defendant is without information and belief as to the truth of the averments of paragraph 16 and hence they are denied and proof is demanded at time of trial. 17. Denied. Any averments of negligence of Defendant Craig are specifically denied. Answering Defendant is without any information or belief as to the balance of the averments of paragraph 17 and hence they are denied and proof is demanded at time of trial. WHEREFORE, the Defendant requests this Honorable Court to dismiss Plaintiffs' Complaint. NEW MATTER 1. At all times relevant to the subject Complaint, Plaintiff and Defendant were both employees of Pennsylvania Hospital Insurance Company ("PHICO"). 2. The incident occurred in a gymnasium, which was part of the business premises owned, occupied and controlled by PHICO where Plaintiff and Defendant worked. 3. The "stick ball" game to which Plaintiff refers in paragraph 4 of his Complaint, was a regularly scheduled event with various teams of PHICO employees, known as the PHICO Stick Ball League. 4. The CEO of PHI CO and other PHICO employees were participating in the games on the day in question. 5. PHICO provided bats, balls and other equipment for the games. 6. Only PHICO employees were particip~ting in the games on the day of the incident. 7. Prior to entering the gymnasium, Plaintiff observed Defendant, Jim Micelli and others throwing balls against a wall. 8. As Plaintiff walked between the pitchers and the wall, throwing stopped until he walked past. 9. 10. After Plaintiff passed, the throwing resumed. After Plaintiff passed Defendant, Defendant resumed throwing balls against the waIL 11. Plaintiff took a position near the batter's box. 12. A pitch thrown by Defendant struck Plaintiff. 3 d ' , _"-~, f.~;._-' "'-~ ""1 13. Plaintjffand Defendant were co-employees of PHI CO. 14. Defendant is immune from liability pursuant to the provisions of the Pennsylvania Worker's Compensation Act. 15. Plaintiff was a voluntary participant in the sport activity of stick ball on his employer's premises. 16. Defendant did not owe Plaintiff any duty which would provide a basis for liability in this action. 17. Plaintiff knew or should have known of the risk inherent in the activities in which he engaged and voluntarily assumed that risk which bars his claim. 18. Some or all of Plaintiff claims may be barred or reduced by the comparative and/or contributory negligence of Plaintiff, Douglas Deitrich, including but not limited to the following: a. failing to observe other participants who were preparing to and/or playing the game; b. failing to be on the look out for balls being thrown; c. failing to wear appropriate protective eye or other equipment to protect against potential injury, particularly because of prior injury; d. failing to exercise due care to protect himself against injuries which he knew or should have known could have arisen from preparing to and/or playing the game at said time, date and location. WHEREFORE, Defendant requests this Honorable Court dismiss Plaintiffs' Complaint. By: Respectfully submitted, ~~~F~LLP James K. Thomas, II, Esquire 305 North Front Street Post Office Box 999 Harrisburg, P A 17108-0999 (717) 255-7617 Date: \/\$ft\ :119603.1 4 ~., t-, .' ~'j VERIFICATION I hereby verifY that the averments made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. By: ~/ ,/ / / "7 / ::2 !,~r1es '-/ Dated: :119653.1 /-13-{)/ " L ,t ~'.';O-'; , ' CERTIFICATE OF SERVICE . rill ---- AND NOW, this /~ dayof JcrrJl.,H!f\l - / , 200.!..!, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Maij, postage prepaid, to the following: Thomas E. Brenner, Esquire Goldberg, Katzman & Shipman, P.c. 320 Market Street Harrisburg,PA 17108 ~L- Coleen M. Polek Ui~~""-- ",",j, '~" '--H"-~""''l~'~ ,. '~"_;f;"-" ,,~, :0.11 -~" ~ ~ - ~ ~ ;, ,--' - 0"'.<'" "" ,jJM' ,~ _ c_ ".- ~ ,....- I_UMiitiJ (") f,~ -.-,;---, 'J',. ?'~~_: ..<::-- ~- (f) ,: ~ r'~~ ~-::::: ~:L: 7 " --'J "'" - . ~ - , , C-', ::) {jj , .. - -.- ~. ~- -~,I ~-_ - '. " , -.~:.J; ~ . ~"' . -'",.~, -. '"p->' ~'-',,--"-~-; -- - " - c';': "'~'i Thomas E. Bl't'nner, Esquire LD.#32085 GOLDBERG, KATZMAN & SIDPMAN, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel for Plaintiffs DOUGLAS DEITRICH and LUCINDA DEITRICH, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CML ACTION-LAW CRAIG CHARLES, : NO: 00-8572 Defendant : JURY TRIAL DEMANDED :~::::~ AND NOW, comes the Plaintiffs, by and through their attorneys, Goldberg, Katzman & Shipman, P.C., and state: 1. Denied in part. At the time of the incident neither Plaintiff Deitrich nor Defendant Charles were engaged in the course and scope of their employment duties. 2. Denied in part. The gymnasium is located on property owned by PIllCO. Plaintiffs do not believe that the gymnasium is part of the "business premises" of PIll CO. 3. Denied. The injry did not occur during a stick ball game. 4. Denied. This is denied pursuant to Pa.R.C.P. 1029(e). 5. Denied. This is denied pursuant to Pa.R.C.P. 1029(e). 6. Denied. The injury did not occur during a stick ball game. Persons present were not acting as PIllCO employees at the time of the injury to Doug Deitrich. 7. Denied. This is denied pursuant to PaRC.P. 1029(e), , ~ ,"-. , , " " .., . " . . . I,,, - _,c .. c_, " , e" '''''~~-'''; .' ,'." " "'-, .. o~: j ",...'__,oL,,' 'l<,':;, ~~ ~-- 8. Denied as stated, Persons who were throwing balls stopped to allow Mr. Deitrich to pass. 9. Denied. Defendant Charles did not throw again until he threw the ball that struck the Plaintiff as set forth in the Complaint. 10. Denied. Defendant Charles did not throw again until he threw the ball that struck the Plaintiff as set forth in the Complaint. 11. Denied. This is denied pursuant to Pa.R.C.P, 1029(e). 12. Denied as stated. The ball was thrown by the Defendant that struck the Plaintiff. It is denied that this throw was a "pitch" as part of a game. 13. Admitted with clarification. The Plaintiff and the Defendant were not performing job duties at the time of this incident. 14. Denied, This paragraph states a legal conclusion to which no response is necessary. 15. Denied. Plaintiff was not involved in a stick ball game at the time of the injury. 16. Denied. This paragraph states a legal conclusions to which no response is necessary. 17. Denied. This paragraph states a legal conclusions to which no response is necessary. Moreover, Plaintiff was not involved in an organized sports activity at the time of the throw by the Defendant causing injury to him. 18. Denied. This paragraph states a series oflegal conclusions to which no response is necessary. -." ~. 0 ." ~ ,-~ -~ - _..c....,. " ' -''''- ~_ - .--7.i-", --;,,~,--,-'" ~ , .' .,~'.. ,.-",--'",--i-."',-,' _-,'0_'~_,,';*,_ .;,--:::-;j WHEREFORE, Plaintiffs request that the New Matter of the Defendant be dismissed with prejudice and the relief set forth in their Complaint be granted. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: cr '''-.:.:'''' Thomas E. Brenner, Esquire Attorney lD. No. 32085 320 Market Street P,O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiffs ) ,..., -01 Date: -;- 58214.1 ,-" c-, . .. .', 'U~:'7 ",- ..~, -f__ C'---''"'".' ,~'-' . , .-,1 ,. "-',. , ~'.)- .- .L"-' ",,--.-- ,,:,,;..;-- ,.-. ",-"." ,\~ -<_"."i.'....,_,-, -- ,-,-ct""'-'.:;f.""'""'!};,,'...-'-,,,,-_' ,--, ,_t' 'J~m , VERIFICATION I, Douglas Deitrich, hereby acknowledge that I am a Plaintiff in this action and that I have read the foregoing document and that the facts stated therein are true and correct to the best of " i1 iJ; i~ ',,- my knowledge, infonnation and belief. ;', ~, ~~ I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. fj' i:~ Section 4904, relating to unsworn falsification to authorities. r- i; , ~, r ~' t' t I !~ r i: Date: f t:- o fC , l'- .~ [, }: .~iW> 'l"'.- 'r ~; li!l:l..-, "-'- - '-"->:::<T "' ,- -,'--'"" ,"-~,~ _'~--'---'~~,,' ,,,,."', "'-'j-,-", VERIFICATION I, Lucinda Deitrich, hereby acknowledge that I am a Plaintiff in this action and that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pac C.S. Section 4904, relating to unsworn falsification to authorities. dfifM~d..lJp~jJi-, c& ucinda Deitrich Date: "'~ .- - "ie-,";_', . ,I~ -~".. """ . """-.',..,.'. ~ _0 "," ""'''',.'' ---.1,,; - ,,-, '_-_;o--,:,,~,.'<_" ,,---',-~_:;--~ -'>,',-,"--".- ;' "",-,,~,_:~_"_ ,-""'-~;-_,i_~___',;:~.xi:/';"-::",_ ,~.i~' _;;,~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all counsel of record by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on the /~ , day of N pJlUjU-' 2001, addressed as follows: James K. Thomas, IT, Esquire Thomas, Thomas & Hafer LLP 305 N, Front Street Harrisburg, P A 17101 GOLDBERG, KATZMAN & SHlPMAN, P,C. By (;~~ ThomasE.Brenn~,E~uire Attorney I.D. No. 32085 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiffs p ,-', ",.!-.,-' - "",,'"-,~-"'. ,'J ~)' , ,C', ,"',,',_,' --" ~,_ "__,'" -eo_"",;"_ -',,-,.'-,":w'"C,<.'.t,;.,"-;J./; ',,'~^ ..,,:" ~" Brooks R. Foland, Esquire 1. D. No. 70/02 305 North Front Street P. O. Box 999 Harrisburg. P A 17/08 (717) 255-7626 Attorneys for Defendants DOUGLASDlliTIDCR~dLUCThillA DEITIDCR, IN THE COURT OF COMMON PLEAS CUMBERLAND CO, PENNSYL VANIA Plaintiffs v. No.: 00-8572 CML TERM CRAIG CHARLES, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant intends to serve subpoenas identical to the ones that are 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 subpoenas If no objection is made, the subpoenas will be served. THOMAS, THOMAS & HAFER LLP Date: April 12, 2001 By: ~~k ~ BROOKS R. FOLAND Attorney for Defendant, ~C -- ,,,,'"~ ,--~ '-._ '-;-"" r; ~",.-:__ -:'-"". "-".;.,'",,,","" _~-:,,,,,:,,,_ .'"-'~l1'^'-".,, '~'_.~,-j__.;:!,_:,\;~,~; -~.i-,'-2:'.'~-- ." CERTIFICATE OF SERVICE AND NOW, this 12th day of April, 2001, BARBARA ONORATO, a paralegal in the law firm of Thomas, Thomas & Hafer LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, first class, postage prepaid, to the following: Thomas Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN 320 Market Street Harrisburg, PA 17108 15ttfk~{) (~. Barbara A. Onorato Paralegal Date: April 12, 2001 , '" "v DOUGLAS DEITRICH and LUCINDA DEITRICH, IN THE COURT OF COMMON PLEAS CUMBERLAND CO, PENNSYLVANIA Plaintiffs v. No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Retina Consultants, 220 Grandview Avenue, Camp Hill, PA 17011 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records and/or documents, including but not limited to your entire file pertaining to Douglas Deitrich, 1308 Route 209, Millersburg, PA 17061 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this .request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the thit,gs Sought. If you fail to produce the documents Of things required by this subpoena, within twenty (2,0) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: I NAME: Brooks R. Foland. Esquire ADDRESS 305 N. Front Street. POB 999 Harrisburg PA 17108 TELEPHONE: (717) 255-7626 SUPREME COURT ID No: 70102 A ITORNEY FOR: Defendant Prothonotary/Clerk, Civil Divislon Deputy DATE: Seal of the Court DOUGLAS DEITRICH and LUCINDA DEITRICH, IN THE COURT OF COMMON PLEAS CUMBERLAND CO, PENNSYL VANIA Plaintiffs v. No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: PHICO INSURANCE COMPANY, Mechanicsburg, PA 17055 (Name of Person or Entity) Within twenty (20) days after service of this subpoena. you are ordered by the court to produce the following documents or things: Any and all interoffice memorandums, e-mails, announcements, schedules, invoices, equipment lists, jour sponsor sheets, correspondence, writings, etc., concerning the company Stickball league from January 1, present at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena. together with the certificate of compliance. to the party making this 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 after Its seNiea, the party serving this subpoena may seek a court order compelling you to comply with it. THiS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Brooks R. Foland Esauire AODRESS 305 N Front Street. POB 999 Harrisburg. PA 17108 TELEPHONE: (717\ 255-7626 SUPREME COURT ID No: 70102 ATTORNEY FOR: Defendant Prothonotary/Clerk, Civil Division Deputy DATE: Seal of the Court DOUGLAS DEITRICH and LUCINDA DEITRICH, IN THE COURT OF COMMON PLEAS CUMBERLAND CO, PENNSYLVANIA Plaintiffs v. No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. Weller (Name of Person or Entity) Within twenty (20) days after service of this subpoena. you are ordered by the court to produce the following documents or things: Any and all medical records and/or documents, including but not limited to your entire file pertaining to Douglas Deitrich, 1308 Route 209, Millersburg, PA 17061 at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance. to the party making this 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 after its service. the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Brooks R. Foland. Esouire ADDRESS 305 N. Front Street. POB 999 Harrisburg PA 17108 TELEPHONE: (717) 255-7626 SUPREME COURT to No: 701 02 ATTORNEY FOR: Defendant Prothonotary/Clerk. Civil Division Deputy DATE: Seal of the Court > ~(. l, l", -~ J- ,~-, """'"'"'.~1lL DOUGLAS DEITRICH and LUCINDA DEITRICH, IN THE COURT OF COMMON PLEAS CUMBERLAND CO, PENNSYL VANIA Plaintiffs v. No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: PHICO INSURANCE COMPANY, Mechancisburg, PA 17055 (Name of Person or Entity) Within twenty (20) days after service qf this subpoena, you are ordered by the court to produce the following documents or things: Any and all interoffice; memorandums, e-mails, announcements, team schedules for games and/or '; ; :.1 I practice, (outlining dates: times and locations), invoices, awards, award certificates, trophies, invoices, equipment lists, journals, sponsor sheets, waivers or home harmless agreements executed by either the teams or individual players, corrEispondence, writings, etc. referencing the PHICO stickball team or league or your participation in an intracompany league or mural. at THOMAS, THOMAS & HAFER, LlP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 You may deliver or mail legible copies- of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this '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 after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOllOWING PERSON: NAME: Brooks R. Foland Esquire ADDRESS 305 N. Front Street POB 999 Harrisbura. PA 17108 TELEPHONE: (717) 255-7626 SUPREME COURT ID No: 70102 ATTORNEY FOR: Defendant Prothonotary/Clerk, Civil Division DATE: Seal of the Court Deputy ,.-- . ~ - ,-~" ^ , -.-"--,~ ., ,.-. --, --'.-, - . - .. .,~ -~"-",,--,,,.".~ , ="'="-,' ___""L.:<" _,.-_,~", -~"~.---."-~ '-"=.''''-/'>''h;-, -" c"-; j :'i PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) , l" TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. DOUGLAS DEITRICH and LUCINDA DEITRICH, Plaintiffs v. CRAIG CHARLES, Defendant No.: 00-8572 Civil 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant Craig Charles's Motion for Summary Judgment. 2. Identify counsej who will argue case: (a) For Plaintiffs: Address: Thomas E. Brenner, Esquire 320 Market Street Harrisburg, P A 17108 (b) For Defendant: Derek D. Bahl, Esquire Address: Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 3. argument. I will notify all parties in writing within two days that this case has been listed for 4. Argument Court Date: fe t..LliN''1 I ~ , 2002 ~~b.R~ Derek D. Bahl, Esquire Dated: January 10,2002 :154329.1 , -~ JIj .~IIIi!il. ,L",J. '.' .~,^,-,ltlU~,:[J!,;'I,~1 ';$ '-'i',Y" ^., ,'"_,_,,, '" -c' _v,~"__,, ""'lI~~~~..~....JJ ,",,',' ,- ,"'~,~,~,,' ~-.. .[ ,J<. 'tU:' *,~.. " ._., n.... n nn Q C') C) '-. ['0 -'11 ?;~ , "U c:' J~ -C m f1 . -7 I'""" ~ :-n L: , :Y:J CO -< i~j ';,..-} c:: ;?; w"D .. C: 0 ~: Cj r"" C.) nl r- L .-< -<! (.11 ~ <:n -< ___---"Z; '"" ~ L._' '.c;^"-,~~c ,- ., '_:",___~ ,.;.."'",",,,H.;,::' ;~.,",".,:,o.i~"',"''^' "-~ '-,V.;;,-_';;,~,^-" ,~,-_, , 'i",\ .. , DOUGLAS DEITRICH and LUCINDA DEITRICH, IN THE COURT OF COMMON PLEAS CUMBERLAND CO, PENNSYLVANIA Plaintiffs v. No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2001, upon consideration of the Motion for Summary Judgment of Defendant Craig Charles, it ORDERED that the Motion is GRANTED and Summary Judgment is entered in favor of the Defendant. BY THE COURT: J. _.--, _~, ,:,,-,,',',,,';;-"'>"- >'''0: - -"I - - -;-"~_L_ _ CJ'''-"". ,.;" C_.',;."'._' '''_,i-.,;:''-~ ;,;--".;,. , r;" , I'; DOUGLAS DEITRICH and LUCINDA DEITRICH, IN THE COURT OF COMMON PLEAS CUMBERLAND CO, PENNSYLVANIA pjaintiffs v. No.: 00-8572 CIVIL TERM CRAIG CHARLES, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT CRAIG CHARLES'S MOTION FOR SUMMARY .JUDGMENT Defendant Craig Charjes, by and through his attorneys, Thomas, Thomas & Hafer, LLP, now moves this Court for Summary Judgment, and in support thereof, avers the following: 1. On or about December 12,2000, Plaintiff Douglas Deitrich ("Plaintiff') commenced the above-captioned negligence action by filing a Compjaint against his fellow Pennsylvania Hospital Insurance Company ("PHICO") empjoyee and stick balj partner, Defendant Craig Charjes ("Charjes"), seeking recovery for alleged injuries suffered on January 5, 1999 while preparing for a stick ball match in PHICO's gymnasium. (A copy of Plaintiff s Compjaint is attached as Exhibit "A"). 2. Plaintiff was at all material times a Director, Assistant Vice President of PHICO, while Charles was at all material times a Cjaims Specialist for PHICO. (Depo. of Plaintiff Douglas Deitrich pg. 11, In. 2 and pg. 12, lns. 11-14) (a copy of the transcript of Plaintiff Douglas Deitrich's deposition is attached as Exhibit "B"). 3. PHICO owned and operated a gymnasium which was attached by a glass walkway to its business offices jocated at One PHICO Drive, Mechanicsburg, PA 17055. ffi!. at pg. 14, lns. 22-23 and pg. 15, lns. 6-12). 4. Onjy PIDCO empjoyees, family members of employees and guests of employees were permitted to use the gymnasium, which was available for use before, during and after work ,., . -, '-";."'- "" -'-.-,,~;;.----,-", .""- ';--;;-,,', :-',,1 __"",~,j ':. ", ~i ",,,,',,,,, 'i.,'-.' ,0,,"" .,Y ,..;,;....,,- ,<,;;;-;,~:--~,:"t_-,:-_I_.'.' ~"1: . '," '~ i~ 1'; hours. (Id. at pg. 15, Ins. 19-25 and pg. 16, Ins. 1-3). In fact, PHICO empjoyees could gain access to the gymnasium only by using a pass key provided to them by PHICO, ag. at pg. 16, jn. 12). :f' 5. Prior to January 5, 1999, Plaintiff had played basketball, volleyball and stick ball in ri' the PHICO gymnasium and had also utijized the PHICO gymnasium's workout equipment, sauna, steam room and whirlpool. ag. at pg. 17, jns. 11-17). 6. Pjaintiff began playing stick ball in the PHICO gymnasium in a stick ball jeague ( :1;' ", I~ ~:[ made up exclusivejy of PHICO employees in either the spring or falj of 1998. ag. at pg. 24, Ins. 2- !i~ ;~ ![' 25; pg. 25, Ins. 1-15; and pg. 33, Ins. 17-24). i~J I, !:: 7. At his deposition, Plaintiff identified several directors, officers and empjoyees of ; ~ ; Ii} Ir. I( I( I" 1;- Ii if, PHICO who were participating in the stick ball league as of January 1999, including PHICO's CEO Barry Persofsky, PHICO Medical Director Dr. Penndrack, Claims Supervisor Jim Micelli and PHICO officers Mr. Amice, Joe Palumbo and Joe Carmasine, and Information Services Department employee Mr. Binger. ag. at pg. 24, Ins. 2-25; pg. 25, Ins. 1-15; and pg. 29, Ins. 10-25). 8. Defendant Charjes was Plaintiffs partner in the PHICO stick ball league. ag. at pg. 26, Ins. 1-2). 9. A schedule setting up stick balj matches between the 8-10 teams in the PHICO empjoyee stick ball league was initially prepared by Defendant Charles himsejf in approximately the fall of 1998. Id. at pg. 27, jns. 21-24; Depo. of Defendant Craig Charles, pg. 11, jn. 2). (A copy of the transcript of the deposition of Defendant Craig Charles is attached as Exhibit "C"). 10. Defendant Charles circulated a list of stick balj rules among the various PHICO employees participating in the league. (Depo. of Defendant Craig Charles, pg. 11, Ins. 14-16). 11. The PHICO e-maij system was used to notify stick balj jeague participants of schedule changes and team standings, and bats and balls stored in the PHICO gymnasium 2 , ~, "," [, <,'.~/,.~~ ",'~-" (;::~,-,- '-,..,,^ ',- ---,-"",:',"'w,'- - C'_~ '-, --." ~ equipment room were made available for use by stick ball jeague participants. QQ. at pg. 12, Ins. 1- 6; Depo. of Pjaintiff Douglas Deitrich pg. 31, jns. 10-18). 12. Playoff stick ball matches took place in the fall of 1998, and stick ball match scores and/or stick ball team winlIoss records were kept track of at jeast as of January 1999. (Depo. of Pjaintiff Dougjas Deitrich at pgs. 32-33 and pg. 34, jns. 1-8). 13. Plaintiff arrived at the PIDCO gymnasium at approximatejy 7:00 a.m. on January 5, 1999, changed clothes in the PIDCO locker room and began warming up for a stick ball match between Plaintiff and his partner Charjes and PIDCO CEO Barry Persofsky and his partner, PIDCO Claims Supervisor Jim Micelli. QQ. at pg. 35, Ins. 1-18 and pg. 40, jn. 24). 14. As was their usual practice, Pjaintiff and the other participants wanned up by throwing tennis baljs against a wall in the PIDCO gymnasium. QQ. at pg. 35, Ins. 19-25; pg. 36, Ins. 1-11; and pg. 40, Ins. 19-24). 15. While the other stick ball match participants, including Charles, continued to throw tennis balls against the wall, Plaintiff walked over to the area of the batters box, which was along the same walj, and began stretching with his bat. QQ. at pg. 39, Ins. 11-17). 16. As pjaintiff was stretching with his bat along the wall, Charles made an errant throw, which struck Plaintiff in the left eye, causing Plaintiffs alleged injuries. QQ. at pg. 41, In. 25 and pg. 42, Ins. 1-10). 17. Plaintiff owns safety goggles, which he had purchased after injuring his right eye while playing basketball in 1992. QQ. at pg. 44, Ins. 22-25 and pg. 45, Ins. 13-22). 18. However, even though Pjaintiff had witnessed other stick ball league participants being hit by pitches and had himself been hit by pitches on a few occasions, Plaintiff was not wearing his safety goggles at the time of the January 5, 1999 incident. QQ. at pg. 49). 3 ~. '~ ,'. .h, ,.w ., .:'~ .-',,~ "'k""~;,,,,<;_;_-, ',.j. -.,__~,i ,-,-,j~-,',>.- 19. Furthermore, Pjaintiff has not presented any evidence indicating that his partner, Mr. Charjes, intended to strike him with the aforementioned ball. 20. Summary judgment is properly granted when there is no genuine issue of material fact with regard to a necessary element of the cause of action, or, after completion of discovery an adverse party has failed to produce evidence of facts that would support the adverse party's burden of proof sufficiently to require submission of the issue to a jury. See Pa.R.c.p. 1035.2. 21. Discovery in the instant jawsuit is now complete and the pleadings are closed. 22. Defendant Craig Charles now moves for Summary Judgment on the basis that (1) he owed Plaintiff no duty of care because being struck by an errant throw was a risk inherent in stick ball, and (2) it is clear that pjaintiff s alleged injuries occurred in a work rejated setting and Plaintiff s claim is therefore barred by the exclusivity provision of the Pennsyjvania Workers Compensation Act. I. DEFENDANT CRAIG CHARLES IS ENTITLED TO SUMMARY JUDGMENT BECAUSE. AS A MATTER OF LAW. HE OWED NO DUTY OF CARE TO PROTECT PLAINTIFF FROM THE RISK OF BEING STRUCK BY AN ERRANT THROW INHERENT IN THE GAME OF STICK BALL. 23. Paragraphs 1 through 22 above are hereby incorporated by reference as if fully set forth herein. 24. In Count I of his Complaint, Pjaintiff alleges that Charles breached a duty of care owed to Plaintiff when, whije preparing to play stick ball in the PIDCO gymnasium, Charles threw a balj in the direction of pjaintiff which struck Plaintiff near the left eye and caused significant injury. 25. While stretching with his bat along the wall at which Charles and other stick ball match participants were throwing tennis balls, Plaintiff knowingly accepted the reasonable risk inherent in and incident to games like stick ball that he could be struck by an errant throw. 4 ,:- ~ - - -;~':-d iil j:1 [) "i ':i , " ;;1 ;'1 ::i iii 111 i:! !i ;'i ~i '! " .. 'i I~ " " I~ Ir ~ 6 'I H I') II A , ,." _ ~..- lr..iJ<",' - ': ~-' -~""'. - _d- 'I, --.' , '.:,,.'.,~:_" '..,'-'J,", ~;. 'ld'"",i.,,,<,-~'-'~_~,_,,,~_,;,,,,,,,~,,_,:~,, '..-; "j' ""~'-i 26. This rule of law has frequently been applied by the Pennsyjvania courts to both spectators at and participants in sporting events. See M, Amon v. Shemaka, 419 Pac 314,214 A.2d 238,240 (1965); Malinder V. Jenkins Ejevator and Mach. Co., 371 Pac Super. 414, 538 A.2d 509, 519 (1988); Pestalozzi V. Phila. FIvers Ltd., 394 Pa. Super. 420, 576 A.2d 72 (1986) (spectator struck by hockey puck); Iervo1ino V. Pittsburgh Athletic Co., 212 Pa. Super. 330,243 A.2d 490 (1968) (allocatur denied) (spectator seated in stands struck by batted ball); Schentzel V. PhiJa. Nat. League Cjub, 173 Pac Super. 179,96 A.2d 191 (1953) (spectator struck by batted ball). 27. Although frequently couched in terms of "assumption of the risk," cases such as the case at bar and those cited above have more recently been analyzed in terms of a "no duty" analysis. See M, Jones V. Three Rivers Mgmt. Corp., 483 Pac 75, 394 A.2d 546 (1978); Telga V. Sec. Bureau. Inc., 719 A.2d 372 (1998). 28. The "no duty" analysis recognizes that there are certain inherent risks assumed by spectators and participants in viewing and taking part in sporting events against which the Defendant, whether he be a participant or possessor of jand, has no duty to protect. See, id. 29. illdeed, the Pennsylvania courts have repeatedly applied the "no duty" analysis when presented with facts similar to those of the instant case. See M, Johnson V. Walker, 376 Pac Super. 302,545 A.2d 947 (1988); Bowser V. Hershev Baseball Ass'n, 357 Pac Super. 435, 516 A.2d 61 (1968); Oliver v. Chartiers-Houston Athletic Ass'n, 28 Pac D.&C. 4th 484 (1995). ill Bowser, 516 A.2d at 63, the Superior Court of Pennsylvania affirmed the trial court's entry of a compulsory nonsuit on the basis that, as a matter oflaw, plaintiff baseball coach had assume the risk of being struck by a batted ball by positioning himself on or near the fiejd of play for the purpose of observing baseball team tryouts. 5 <';"', , ,l" -L ,t. _C~_' ,.''''-C, "i' - "'0 ,'i __, ~~:-,\-,:" ';,-j L- ,;.' ,,-,--, '~. ',.j"~-"'J,_;~"'-" ,-',,~:i""-'':;'-''j' "~,',. }i<';{. ';~'-"",-"-..,,,;_ --0' ,,_ ,'; .',"', , 30. In reaching its decision, the court in Bowser made no distinction between baseball tryouts and/or batting practice and an actual baseball game. In fact, the Superior Court opined that during batting practice, "the risk of being struck by a batted ball is even greater than in a regulation game, for during batting practice more than one ball is frequently in use." 31. Therefore, in the instant case, Plaintiff cannot argue that the "no duty" analysis employed in Bowser is inapplicable because Plaintiff was merejy warming up rather than actually participating in a game of stick ball. 32. Citing Bowser, the Superior Court of Pennsyjvania also applied the "no duty" analysis to a case invojving stick balj in Johnson v. Walker, 545 A.2d at 949, in which the Plaintiff was struck in the right eye by a foul ball while standing taking a break at a location off the fiejd of play in much the same way that Plaintiff in the case at bar was injured while stretching at a location next to where fellow participants were warming up. 33. As the Superior Court opined in Johnson, 545 A.2d at 949, "[p]laintiffs would have us find that in any situation where someone is hurt by the inadvertent and unintentional act of another, the actor should be held liable. We refuse to hold to such an extreme result. 34. In the instant case, Plaintiff has presented no evidence that Charles's errant throw, much jike a foul ball, was anything other than an inadvertent and unintentional act for which, as a matter of law, he cannot be hejd liable. 35. Indeed, only if a plaintiff is struck by a ball intentionaljy thrown into the stands, or a puck intentionally shot into the seats, for example, can a plaintiff spectator or participant in a sporting event be deemed not to have assumed the risk of being so struck. See Bullman v. Giuntoli, 2000 Pac Super. 284, 761 A.2d 566, 573 (2000). 6 "~, ,-,.;,-.',,' ,-. ,1,,",-:--' '__,- W',-" "'<.~j,_- co, ',.:., ",;,"-, 36. The case at bar is nearly identical to that before the Washington County Court of Common Pleas in Oliver, 28 Pac D.&C. 4th 484, in which the pjaintiff softball player was struck in the head by an errant throw while taking to teammates on the sideline during warm ups prior to a softball game and the court granted judgment on the pleadings for the minor defendant. 37. Just as in Bowser, the court reasoned that the fact that the actual game had not yet started was irrelevant because "[a]s a matter of common knowjedge, risks inherent in warm ups are more likely to be serious, for in warm ups many [participants] are catching and throwing many balls." Id. 38. The court in Bowser analogized being struck by an errant throw to being struck by a batted ball, and held that being struck by an errant throw was a common, frequent and expected risk assumed by softball spectators and/or participants. Id. 39. In the absence of any evidence that Defendant Charles's errant throw was anything other than inadvertent and/or unintentional act, the applicable Pennsyjvania case law makes clear that Charles neither owed nor breached a duty of care because being struck by an errant throw is a common, frequent and expected risk assumed by all stick ball spectators and/or participants whether during warm ups or the actual game itself. 40. Accordingly, Defendant Charles is entitled to judgment as a matter of law. II. DEFENDANT CRAIG CHARLES IS ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF'S NEGLIGENCE CLAIM IS BARRED BY THE EXCLUSMTY PROVISION OF THE PENNSYLVANIA WORKERS COMRENSATION ACT. 41. Paragraphs 1 through 40 above are hereby incorporated by reference as if fully set forth herein. 7 . " . .. ., .-" ~--,-, ,. I; ". .',,,", .-,';'" , --,"", ;""O;.C'c- .-,>,,~ ',-'j' e-'J;""_; 'ro'__", . , _c'" 42. Even if this Court were to detennine that Defendant Charles had in fact breached a duty of care, it is clear that pjaintiff s negligence claim is nonethejess barred by the exclusivity provision of the Pennsyjvania Workers Compensation Act. 43. The exclusivity provision ofthe Pennsylvania Workers Compensation Act pertaining to the liability of fellow employees, 77 P.S. ~72, provides that: [i]f disability... is compensable under this Act, a person shall not be liable to anyone in common jaw. .. on account of ir: I: , if: such disability... for any act or omission occurring while such person was in the same empjoy as the person disabled... except for intentional wrong. 44. As such, the compensation provided by the Pennsylvania Workers Compensation Act is an employee's exclusive remedy if injury caused by a fellow employee is compensabje under i'- the Act, because the exclusivity provision of the Act immunizes fellow employees from liability for their negligence. See, Albright v. Fagen, 448 Pac Super. 395, 671 A.2d 760, 762 (1996). 45. To be compensable under the Pennsylvania Workers Compensation Act, an injury must arise in the course of employment and be related thereto. See, Dennis V. Kravoco Co., 2000 PA Super. 319, 761 A.2d 1204, 1206 (2000). Section 411 (a) of the Act provides that an injury "arising in the course of employment" includes: All injuries caused by the condition of the premises or by the operation of the employer's business or affairs thereon, sustained by the employee, who, though not so engaged, is injured upon the premises occupied by or under the controj of the employer, or upon which the employer's business or affairs are being carried on, the employee's presence thereon being required by the nature of his empjoyment. 46. Whether an employee is acting within the course and scope of employment at the time of injury so as to fall within the purview of the Act is a question of law for the Court to be determined on the basis offmdings of fact. Albright, 671 A.2d at 762. 8 ~ '~ ,- i ,,,: , ~"-,,-, '. "' .,-,0" ,,'. ; 0.,""- "'" 1...- _ -';d. -_';..,V;,t",t'~<>""-'_'""l:'.'_"j.';; "" "J~'-'-'_'_ 'n:"'-'"" ,J. c.",,, i I. 47. Even though not actualjy engaged in the employer's work, an employee will be considered to have suffered an injury in the course of employment if the injury occurred on the empjoyer's premises at a reasonabje time before or after the work period. Id. at 762-63. 48. The Pennsylvania Supreme Court has held that an injury occurring to an employee "up until the time he leaves the premises of the employer, provided that it is reasonably proximate to work hours, is compensable." See, Epler v. North American Rockwell Com., 482 Pac 391, 393 A.2d 1163, 1165 (1978). 49. Furthermore, the Pennsylvania Supreme Court expjained in Kohler V. McCrory Stores, 532 Pac 130,615 A.2d 27,30 (1992), that employee injuries suffered on the employer's premises creates a rebuttabje presumption that such injury is work related. 50. The record in the case at bar makes clear that pjaintiff's injuries were incurred on its employer's premises. Therefore, this Court must decide whether Plaintiff can overcome the rebuttable presumption that Plaintiff's injuries are work related for purposes of Workers Compensation Act exclusivity. 51. Pennsylvania courts have repeatedly held that injuries sustained whije engaged in athletic activities on an employer's premises were compensable under the Workers Compensation Act. See~, Henry v. Lit Brothers, 193 Pac Super. 543, 165 A.2d 406 (1960) (employee injured during touch football game with fellow employees on company premises); Sinko v. Bethlehem Steel Co., 104 Pac Super. 357, 159 A. 230 (1932) (employee injured during boxing bout on employer's premises); McCovv. SpriggS, 102 Pac Super. 500, 157 A. 523 (1931) (empjoyee injured during friendly wrestling match on employer's premises). 52. The Superior Court of Pennsyjvania further explained in!km:y, 165 A.2d at 409, that: 9 ,-~ - -~ ~~-" ,~ -- -I-~"- ~_- ,'",n" .._'^'~' '. '--;,>,";;i_k ""-~'_-.,,,___~ -,_e,,'_ d"'d'o,-~i--;"l""-~-_>" ::_c__,,,,~:;,,:::; fi ~- !; , i; An employee is entitled to compensation for every injury received on the premises of his empjoyer during the hours of ernpjoyment, regardless of whether he is actually required to be at the particular place where the injury occurred, so jong as there is nothing to show that he had abandoned the course of his employment or was engaged in something wholly foreign thereto. ," , " I, 53. In each of the cases cited above, Pennsylvania courts determined that neither touch football games, boxing bouts, nor friendly wrestling matches engaged in on an employer's premises constituted abandonment of empjoyment or were wholly foreign to empjoyment. 54. Furthermore, the Commonwealth Court in Feaster v. S.K. Kelso and Sons, 22 Pac Commw. 20, 347 A.2d 521, 523 (1975), noted the importance to employers of social events which serve to sustain the morale and interest of employees in hojding that a deceased employee's estate could recover under the Workers Compensation Act when decedent had drowned at a voluntary company picnic. 55. In Feaster, the picnic was announced by means of a poster displayed at the decedent's workpjace. Simijarjy, in the instant case, the participants in the PIDCO stick ball league communicated by using the PIDCO email system and circulating a stick ball league schedule. 56. The Commonwealth Court also held in Tredvffrin- Easttown Schooj Dist. v. Brever, 48 Pac Commw. 81,408 A.2d 11,94, 1195 (1979), that a teacher and assistant track coach who lost site in his right eye when struck by a football at a track team picnic sustained compensable injury in the course of empjoyment, opining that "[i]t cannot be gain said that the picnic in the instant case promoted the school district's interest and good relationship between its teachers and their students and the vitality of its athletic programs." 57. The PIDCO empjoyees' stick ball league, indeed the very PIDCO gymnasium itself, both of which promote the health, well being and goodwill of PIDCO empjoyees, are no different than any company social event or office/school picnic in this regard. 10 " ~. - ~'I.- '-.-~ ~ .--'j .-,,'",-'--'.:,>;!,j __J.-c,:'U ' ~, .-__ ~ h'-_,.' ,j-.'. ,'".'"",':B,;f.J~ ,,,'-'-'_:,.;__,'-'_~'_ih'; ,-", ':,'J..; ,-., "., ';;~L.:,--'_~O;"j;: - - - ~, ", '" ,;, i I 58. Plaintiff s accidental injury suffered in the PIDCO gymnasium during participation r" I' I in a stick ball league comprised entirejy of PIDCO employees using equipment provided by PIDCO is clearly a work related injury compensable under the Pennsylvania Workers Compensation Act. ;, 'J 59. Defendant Charles is therefore entitled to judgment as a matter of law for the WHEREFORE, Defendant Craig Charjes respectfully requests that this Honorable Court ii Ii ,. Ii P. r~ ij additional reason that Plaintiff's claim is barred by the exclusivity provision of the Pennsyjvania Workers Compensation Act. Respectfully submitted, ~~ i: i, , I. grant his Motion for Summary Judgment and enter judgment in favor of the Defendant. ~bJ3JJ I," ri I.' i' THOMAS, THOMAS & HAFER, LLP By: !': Brooks R. Foland, Esquire I.D. No. 70102 Derek D. Bahl, Esquire I.D. No. 87851 305 North Front Street 6th Floor POB 999 Harrisburg, P A 17108-0999 (717) 255-7626 !f :i ~ :148479.1 11 ,=-"Ll' ~~ [, ~- ~~'~"'!IJI Thomas E. Brenner, Esquire J.D. #32085 GOLDBERG, KATZMAN & SIDPMAN, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel for DOUGLAS DEITRICH and LUCINDA DEITRICH, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Defendant : CIVIL ACTION-LAW ~NO: /Y) - '(>~7:J....... Go~L Cy~" v. CRAIG CHARLES, . . : JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following paged, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money 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 HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. U- L:._ on:: :'-.2::1 \J..1 o(~ E: lU ::c n: D-- '''~ <f) _ ~'"'. u_ ~ \':'~J. 0 0:: ::r ~ :", " (:J r-i. .r:~: '~ >- rl Lr> ('oj ~ Cumberland County Lawyer Referral Service Cumberland County Bar Association Carlisle, PA 17013 (717) 249-3166 L'- c...:.J lJ..J C) t.'.~ C) = C::J ~ TRUE COPY FROM RECORD 111 Ti.\Q!mt.rrj Wlllli"oof, I h.lIf~ lllltiJlllIi my haOO :'$'!;~~~ , otary A ,~ L __,l '- ~ ~~ NOTICIA Le has demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguintes, useted tiene viente (20) dias de plaza aI partir de las fecha de la demanda y la notificacion. U sted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion y por cualquier quja 0 puede perder dinero 0 sus propiendades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUGICIENTE DE P AGAR TAL SERVICIO, V AY A EN PERSONA 0 LLAME POR TELEFONO A LA OPICINA CUY A DIRECCI90~ SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Lawyer Referral Service Cumberland County Bar Association Carlisle, PA 17013 (717) 249-3166 "I ~- .~ . ~ [" .....~ l' <-- '1-._, ,~~ Thomas E. Brenner, Esquire I.D. #32085 GOLDBERG, KATZMAN & SIDPMAN, P.C. 320 Market Street P. O. Box 1268 fUrrrisburg,PPl 17108-1268 (717)234-4161 Counsel for DOUGLAS DEITRICH and LUCINDA DEITRICH, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION-LAW CRAIG CHARLES, : NO: Defendant : JURY TRIAL DEMANDED tltl~f.tt!i~lltJl~~i~iiI1tttlll~1~.1.. :~ ~~.. AND NOW, come the Plaintiffs, by and through their attorneys, Goldberg, Katzman & Shipman, P.C., and state: COUNT! 1. Plaintiffs Douglas Deitrich and Lucinda Deitrich, his wife, are adult individuals residing at 1308 Rt. 209, Millersburg, Dauphin County, Pennsylvania. 2. Defendant Craig Charles is an adult individual residing at 3 Spend-A-Buck Drive, Dillsburg, York County, Pennsylvania 17019. 3. This matter arises from a recreational sports injury sustained by Plaintiff Douglas Deitrich on January 5, 1999. 4. On that date Plaintiff Douglas Deitrich and Defendant Craig Charles were preparing to play stick ball in a gymnasium maintained by Pennsylvania Hospital Insurance Company located near Mechanicsburg, Cumberland County, Pennsylvania. 5. Defendant Craig Charles negligently threw a ball in the direction of Plaintiff ~.~ ,l- Douglas Deitrich, striking him near the left eye and causing injury to him. 6. Defendant Charles was negligent in that he: (a) negligently hurled a ball in the direction of Plaintiff Deitrich; (b) caused the ball to strike Plaintiff Deitrich in the area of his left eye; ( c) failed to assure that no one was in the area where he was attempting to throw the ball when he released it from his hand; and (d) hurled the ball with such velocity that it would cause injury to any person" struck by the ban. 7. Solely as a result of the negligence of Defendant Craig Charles, Plaintiff Douglas Deitrich sustained a significant injury to his left eye, including: (a) the accumulation of blood in and about the left eye; (b) accumulation of blood between the eye lens and cornea; (c) partial detachment of the vitreous body, with likely retinal detachment in the future; (d) cloudiness in vision that continues to this date; ( e) flashing in peripheral vision. 8. As a direct result of the negligence of Defendant Charles, Plaintiff Deitrich has undergone medical treatment with an eye specialist and continues to suffer the ill effects of this eye injury. 9. PjaintiffDouglas Deitrich continues to have eye problems including: (a) constant observation of significant and large floaters and snow effect in his left eye; 2 ""- '""~~1ik' ""~" ~ ~~, "~~" - -~ ~ "" .. j-~l ~-~"'llf;1t!;l~- (b) constant flashing in peripheral vision with eye movement; (c) required to wear sunglasses because of the effect oflight upon his eyes; (d) is bothered by flourescent lighting which he constantly encounters in his work environment; and (e) difficulty in reading necessitating the utilization of reading glasses, 10. By reason of this eye injury, PlaintiffDougJas Deitrich has been required to incur the cost for medical treatment, medications and eyewear to his damage and loss. 11. The injuries to the left eye of Douglas Deitrich are permanent and will require ongoing medical care and possible surgery and claim is made for these expenses. 12. As a direct result of the aforesaid injury, Plaintiff Douglas Deitrich has undergone, and will in the future undergo, great physical and mental pain and suffering, great inconvenience in carrying out his daily activities, loss oflife's pleasures and enjoyment and claim is made for these damages. 13, As a direct result of the aforesaid injury, Plaintiff Douglas Deitrich has been subjected to great humiliation and embarrassment and claim is made for these damages. 14. As a direct result of the aforesaid injury, Plaintiff Douglas Deitrich has sustained and in the future will likely sustain work loss and an impairment of earning capacity and a claim is made for these damages. WHEREFORE, Plaintiff Douglas Deitrich demands judgment against Defendant Craig Charles in an amount not less than Fifty Thousand Dollars ($50,0000) together with interest and costs of suit. 3 ~. ,-I,. " COUNT IT Lucinda Deitrich v. Crail.! Charles 15. The averments of paragraph 14 are incorporated by reference. 16. Plaintiff Lucinda Deitrich is the wife of Plaintiff Douglas Deitrich. 17. As a result of the injuries sustained by her husband from the negligence of Defendant Charles, Plaintiff Lucinda Deitrich has been deprived, and may in the future, be deprived of the care, companionship, consortium and society of her husband, all of which are'and will be to her great detriment and a claim is made for these damages. WHEREFORE, Defendant Lucinda Deitrich demands judgment against Defendant Charles in an amount not less than Fifty Thousand Dollars ($50,000) together with interest and costs of suit. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.c. BYCZ~ Thomas E. Brenner, Esquire Attorney I.D. No. 32085 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs Date: 12" 'leVU 4 ""-<,: '""'.k.oi.r~'i~, ~ 0 ~ OJ;' ~ '. ~, ~i ~~- VERIFICATION I hereby acknowledge that I have read the foregoing document and that the facts stated herein are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pac C.S. 94904 relating to unsworn falsifications to authorities. By: cllfl//J1;li{ /1;if:rJj Lucinda Deitrich DATE: //-/& - crcJ 50374.1 _Y"iI'li \1 h1lIii.1iil>.lit!rilOi..-<3i VERIFICATION I hereby acknowledge that I have read the foregoing document and that the facts stated herein are true and correct to the best of my knowledge, information and belief The undersigned understands that the statements therein are made subject to the penalties of 18 Pac C.S. ~4904 relating to unsworn falsifications to authorities. ~ Do By: I DATE: //-/& - C70 50374.1 "", j~_.~ 6~;.l; .'" .l' C__ r _. -~"-~< h ~ll~: In The Matter Of: Douglas Deitrich & Lucinda Deitrich v. Craig Charles Douglas 1. Deitrich June 14, 2001 Filius & McLucas Reporting Service, Inc. 1427 East Market Street, York, PA 4309 Linglestown Road, Harrisburg, PA (717) 845-6418 or (717) 236-0623 Original File DD061401.PRN, 71 Pages Min-U-Script@FileID: 1722501829 Word Index included with this Min-U-Scripb " i~-'">'!j' -w-.,.....~'V". Douglas Deitrich & Lucinda Deitrich v. Craig Charles ~,~ ,l-"_""~~i Douglas L. Deitrich June 14, 2001 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS DEITRICH and LUCINDA DEliRICH, Plaintiffs. VS. . CIvil ActIon ~ Law . Number 00~B572 CRAIG CHARLES, Defendant . . . . . . . . . . . . . Jury Trial Demanded Deposition at: DOUGLAS L. DEITRICH Taken by Date Place : Defendant : June 14,2001, 1:35 p.m. : Goldberg, Katzman & Shipman, P .C. 320 Market Street Harrisburg, Pennsylvania Reporter : Glenda S. Travitz Reglstlared Professional Reporter NCltary Public APPEARANC~S: GOLDBERG, KATZMAN & SHIPMAN, P.C. By: THOMAS E. BRENNER, ESQUIRE For. Plaintiffs THOMAS, THOMAS & HAFER, LLP By: BROOKS R. FOLAND, ESOUIRE For ~ Defendant ALSO PRESENT: CRAIG D. CHARLES Page 3 [1] STIPULATION 121 It is hereby stipulated by and between [31 counsel for the respective parties that [4[ reading, signing, sealing, certification and [5[ filing are hereby waived; and all objections 16J except as to the form of the question are [7) reserved to the time of triaL ['J [9) DOUGLAS L. DEITRICH, called as a witness, ,[lOJ being duly sworn, testified as follows: 1[11J EXAMINATION I12J BY MR. FOLAND: [13J Q: Mr. Deitrich, my name is Brooks Foland.We [14J just met. I'm here on behalf of Mr. Charles 1'5[ today in a lawsuit that you and your wife, [16J Lucinda, filed against Mr. Charles as a result [17) of an accident that occurred I believe shortly [1'J before a stickball game was to COmmence back in 119] January of 1999. Does that sound about right [20J to you? [21J A: Yes. [22) Q: Have you ever been deposed before? [23J A: Yes. [24J Q: When were you deposed previously? [2~ A: I can't give you dates, Page 4 [1J INDEX [2[ WITNESS 13J DOUGLAS L DEITRICH [4] By Mr. Folland [51 16J [7) [9] 19] 110] [11] [1~ [13] [14J [15J 1'~ [17) [181 119] [20] ''<!1] ,22] [23[ [24J [2~ Page 2 ExaminatIon 3 [1J Q: Were you a party in a prior lawsuit? [2) A: No, [3J Q: Just to refresh your recollection, a deposition 14J is a chance for me to get to ask you some [~ questions about this January 1999 incident, [6J questions regarding stickball league, other [7) players that were invulved in playing in the [8J league. 19] I'm going to use that term league. I know 110) your counsel may object to that term, but I'm [11J going to use it anyway. What I mean by that is [12[ when everybody gets together to play stickball. [13J I'm going to call that the stickball league, [14J but I don't mean anything about it. [15J MR. BRENNER: League has different [16) connotations, I appreciate the definition [17) you've JUSt given, Brooks, but note an [18J objection to the use of the word stickball [19J league just for the record so it's there. 1201 MR. FOLAND: See how I anticipated that. BY MR. FOLAND: [21J [2~ Q: If at any time you don't understand my [23] question, let me know, and I'll repeat it or [24[ rephrase It, I'm not trying to be tricky or [25J difficult. I'm just trying to find out what (3) - Page 4 Filius & McLucas Reporting Service, Inc. Min-U-Script@ .'~' -~ "'""'" Douglas L. Deitrich Jun~ 14, 2'001 I 1- _........,.""'."'_< _ ija~ Douglas Deitrich & Lucinda Deitrich v. Craig Charles {1] happened, trying to find out what injuries you {2] sustained, trying to find out about your {3] treatment, dOlCtors that you saw, your current {4] condition today, and what you may know or not {5] know about your prognosis for the future. {6] Again, if you don't understand my {7] question, let me know, and I'll repeat it or {8{ rephrase it. ~] If at any time you'd like to take a break, {10] that's fine. It's not an endurance contest. I [11] don't think we'll be here too long. [12] Please answer my questions verbally. {13] That's because the court reporter, sitting to {14] your left and to my right, is typing down {15] everything that we say. If we talk over one {16] another, that makes her job difficult. In [17] kind, I will allow you to finish your question {1B] before I proceed to the next question. {19] Is that fair? {20] A: Yes. {21] Q: Please don't guess at anything. Don't assume {22] anything. Don't do any of that. We're here to {23] just get the facts. If you want to estimate, {24] that's okay. If you want to approximate, {25] that's okay. Just let me know that you're Page 5 Page 7 {1] Q: Your social security number, sir. {2] A: 184-48-8195. {3] Q: And your date of birth. {4] A: II/la/57. {5] Q: Very briefly, did you grow up in the area? {6{ A: Yes. ~] Q: Where did you grow up? {8] A: In the Millersburg area. ~] Q: Where did you attend high school? {10] A: MiIlersburgArea High School. {11] Q: I assume you graduated. {12] A: Correct. {13] Q: What year? [14] A: 1975. [15] Q: What did YOll do after high school? [19] A: Became employed by INA Insurance Company. [17] Q: Is that right after high school? [1B) A: Correct, within a few months. [19) Q: What did you do for INA? (20) A: Over the years or initially? {21] Q: Initially, and as things changed, how did they [22] change and when, approximately? [23] A: I was hired in 1975 as what was then titled an [24] auto analyst position. I served in that {25] position for maybe a year and then held [1] doing that when you're answering. Is that [2] okay? ~] A: Yes. [4] Q: If you answer a question, I'm going to assume [5] that you heard the question and that you [6] understood the question. Is that fair? {7] A: Yes. {8] Q: Are you taking any medications today, Mr. ~] Deitrich, that would affect your ability to be {10) accurate and truthful in your responses to my {11) questions? {12] A: No. {13] Q: Can you give us your full name, please. [14] A: Douglas Lee Deitrich. [15] Q: Where do you currently live, Mr. Deitrich? [19] A: 1308 Route 209, MiIlersburg, Pennsylvania [17] 1706l. (18) Q: How long have you lived at that address? [19] A: Since 1979. [20] Q: Have you lived there with anybody else? {21] A: Yes. (22) Q: With whom? [23] A: My wife, Lucinda; my son, Matthew. [24] Q: Howald is Matthew? {25] A: He's currently 11. Page 6 Page 8 [1] numerous other positions over the next, {2] roughly, 10, 10 and a half years. ~] Q: And what positions, in summary, did you hold {4] over the next 10, 10 and a half years? [5] A: Claim representative, numerous different levels (6) of claim representative, supervisory positions. {7] Q: Supervising other claims reps? [8] A: Correct. {9] Q: What types of claims were you handling during [10] those years or supervising during those years? [11] A: A variety of types. Primarily general [12] liabillty, automobile, property. Actually, (13) property I was not a supervisor. My [14] supervisory responsibilities were auto and {15] generalliabillty. [16] Q: So that takes us up through about mid 1980s [17] sometime? {1B) A: Late '85, early '86. {19] Q: What did you do at that point? [20{ A: Left employment with INA, which was at that [21] time called CIGNA because of a prior merger/ {22] acquisition issue, and then became employed {23] with PHICO Insurance Company. {24] Q: And you're currently employed with PRICO? [25] A: Correct. Page 5 - Page 8 (4) Min-U-Script@ Filius & McLucas Reporting Service, Inc. ,"'~ ~,<,'-<"-",-",,,,'- Douglas Deitrich & Lucinda Deitrich v. Craig Charles I ~~ n ~J "_ l!i:l_y!ltJ~_,; ,~ Douglas L. Deitrich June 14, 2001 Page 9 [1] 0: You've been with PHICO continuously since 1986? ,~ A: Yes. ~] 0: What was your first job title with PHICO? [4[ A: Claims examiner. [~ 0: What types of claims were you examining? [6] A: Medical malpractice, general liability, [7] 0: Is that your current position today? [S] A: No. [9] 0: After claims examiner, how did your job duties [10] or position change? [11] A: I was changed to a claims supervisor: from [12] supervisor to senior claims specialist, I [13] believe was the title; to corporate claims (14] cOIlSultant; to director; to assistant vice [1~ president. [16] Q: If we could go back and just get a thumbnail on [17] each of those, what types of claims were you [18] supervising as the claims supervisor? [19] A: They would have been medical malpractice and ~O] general liability. ~1] Q: And how many folks were you overseeing at that ~2] time? ~3] A: I believe two, possibly three. [24] Q: When did you become the senior claims ,~ specialist, do you recall? Page 11 [1] title is a director. [~ A: Director, assistant vice oresident. ~] Q: What are your job responsibilities or duties as [4] director/assistant vice president? [5] A: They vary. Essentially, it is to assist in the [6] establishment of policy and procedure as it [7] would relate to claims handling, the dtafting [S] or assisting in drafting of those policies and [9] procedures. It would be to review and grant [10] authority to other members of staff when [11] suggestion is made or request is made for [12] authority. It is to review issues of coverage [13] as to whether a policy should or should not [14] respond under certain circumstances. J15] Q: You say director or assistant vice president. [16] Is this for a particular region, or is thIs for [17] the entire company? [18] A: My title does not restrict itself to a [19] particular region. It is a company title. [20] However, I currently work primarily with those ~1] individuals on a file-specific basis who are [22J associated with our northeastern regional [23] office. ~4] Q: How many folks in the northeastern regional [25] office do you oversee? Page 10 [1] A: Not in terms of year, no. Probably - I'm [2] estimating here. Let's see. I became employed [3] in '86. It may have been, give or take, 1990. [4] Q: That's fme. What were your job duties as [~ senior claims specialist? [6] A: Essentially, they were the same duties. It was [7] jUst simply a title change or recognition of [S] performance. [9] Q: As corporate claims consultant, what did that (10] mean? [11] A: I was serving in a capacity in the corporate [1~ office, as opposed to what would have been our [13] regionai claims office, serving in an advisory [14] capacity to some of our other offices, [15] specifically related to claims and the proper [16] or improper handling of claimS. [17] Q: Was there an authority level that you had as a [18] corporate claims consultant? You only handled [19] cases in =cess of two hundred fifty or five ~O) hundred thousand dollars or- [21] A: No. 12] Q: Would that inclnde medical and general [23] liability claims? ~4] A: Correct. [2~ Q: And you indicated that, I believe, your current Page 12 [1J A: You're going to have to rephrase that question [2] in terms of - I'm not sure what yon're ~] looking for. [4] Q: Do you work with Mr. Charles here? [5] A: In what capacity? Again, I'm not sure what [6] your question is. r] Q: Let me ask you this. In January 1999 did you [S] work with Mr. Charles in any capacity? [9] A: Yes. [10] Q: What was that relationship? [11] A: Mr. Charles was a claim representative. I [12] think his title was D&O claim specialist I [13] believe at that time or claim specialist at [14] that time. Mr. Charles was at that time a [15] direct report to me on those types of claims, [1~ directors and officers, employment litigation [17] type of claims. [1S] Q: In January of 1999, did anyone else report [19] directly to you? [20] A: No, not as a direct report. ~1] Q: Where are you physically located as director/ [22] assistant vice president at PHICO? ~3] A: I'm not sure - ~4] 0: Where is your office? Where do you go evety ~5] day? Filius & McLucas Reporting Service, Inc. (5) Page 9 - Page 12 Min-U-Script@ .",cr" ~~~ H~""",,,,_,,,,~ Douglas L. Deitrich June 14, 2001 .l; ~"l "~~ "~ ~ ,,l[J,&I,.:JIii n' ~~~ Douglas Deitrich & Lucinda Deitrich v. Craig Charles [1] A: In terms of where in the building? [2l C: Yes. ~J A: It's on the third floor. [4] C: Is there an office nnmber, your name placard [5] over the top of the door? [6] A: There's a name hanging on the side of my [7) cubical. I do not have a four-walled office. [8] C: In January 1999 who was the CEO of the company? [9) A: A gentleman by the name of Mr. Barry Persofsky. [10] C: Who were the other officers or directors back [11] at that same time period, January of '99? [12] A: January of '99. I believe it would have been [13] Gary Schultz - I think he was the chief [14) financial officer - Mark Mitchell, senior vice [15] president of claims:Judy,JudithAnderson, I [16] believe was titled as the vice president, maybe [17] senior vice president - I'm not sure - of [18] risk management; Robert Curry was vice [19) president of claims; Robert Ryan I believe was [20] also vice president of claims. [21] I'm not sure that each of these [22] individuals served in an officer's capacity in ~3] the insurance company, but they may have served [24] in an officer's capacity in one of the [25] divisions of the company. PHICO is actually Page 13 Page 15 [1] January of 1999 to work? [2] A: I believe that's fairly accurate, a reasonable [3] estimate of the nnmber, yes. [4) C: That's fair. Did PHICO have a gym back in [5] January of 1999? [6] A: We had a gymnasium on premises, yes. [7) C: Was it a part of the main - See, I've never [8] been over there, and I wish I had at this [9] point. Is the gymnasinm part of the main [10] office building, or is it a separate structure? [11] A: It is a separate structure which is attached by [12] a glass walkway. [13] C: Who was permitted to - Now I'm talking about [14] January 1999, unless I throw a different date [15] at you. Okay? [16] A: Vh.huh. [17] C: Who was permitted to use the gymnasinm at PHICO [18] back at that time period? [19] A: Employees, spouses, family members, and any [20J guest that you chose to bring. [21] C: What time were employees such as yourself [22] permitted to use the gymnasinm? [Zl] A: You could use it early morning hours. You ~4] could use it during lunch, your what I'll call [25] non-working time, such as lunchtime, after [1] PHICO Group, and within the group there are [2] several companies. Some of these individuals [3] probably served in all capacities. Others may [4] have served in just some capacities on behalf [5J of one or more of the organiZational divisions. [61 Also as officers would have been Mike [7) SuIlivan, Michael Sullivan, as senior vice [8] president of underwriting; Victoria Reider I [9] believe as general counsel; I believe Kevin [10] Burke would at that time have been vice [11] president of human resources. [12] I'm probably missing some folks. But [13J there's been some changes and some turnover, [141 and today I just can't recall exactly who all [15] was or was not there in '99 and what positions [16) they held. [17.1 Q: That's fllle. How many employees were at your [18] facility in January '99? {19] A: I would estimate, give or take, 350. [20) Q: What is the street address of the PHICO [21] building in which you report to work? [22] A: It's One PHICO Drive, Mechanicsburg, ~3] Pennsylvania 17055. ~4] Q: It's your testimony that about 350 people ~5] showed up every day at One PHICO Drive back in Page 14 Page 16 [1] work, weekends.And that would apply for all ~] those categories of individuals that I ~] mentioned-spouses, guests, et cetera. [4] Q: If you were a night owl, could you go to the [5J gym at 2:30 in the morning and work out if you [6] wanted to? [7) A: I'm not sure I know the answer to that. [8] Q: Well, how would you gain access to it? Let's [9] say you wanted to work out early in the [10] morning. How would you gain access to it [11] bright and early? [12] A: A pass key. [13] Q: And did you have a pass key inJanuary 1999? [14] A: Yes. [15] Q: Was that the same or a different pass key that [16] you would use to enter the office bnilding to [17] go to work? [18J A: It's the same pass key. [19] C: All 350 employees have their own pass key? [20] A: I can't say that with certainty, no. I don't ~lJ know the answer to that. ~2] Q: When you used the pass key and entered the [23] gymnasinm whenever you used the gymnasinm, did [24] you have to sign any kind of log.in book or ~5] log-out book or anything like that? Page 13 - Page 16 (6) Min-U-Script@ Filius & McLucas Reporting Service, Inc. (..jIJij.I~"-~- ~~.~. Douglas Deitrich & Lucinda Deitrich v. Craig Charles j" -MillJllW'''''Tttll;" Douglas L. Deitrich June 14,2001 Page 17 Page 19 [1] A: No, ~ Q: Do you know whether or not PIDCO ever required [3] that you sign a waiver in case you got injured [4] while you were working out at the gymnasium or [5] playing basketball or any other activity in the ['I gym? [7] A: I don't recall. [8] Q: Did you use the gymnasium in January 1999 at [9] all? [10] A: Yes, [11] Q: What types of things did you use the gym for? [12] A: Basketball, Of course, January of '99 is when [13] this injury occurred. So, obviously, to [14] participate in playing stickball. [15] Q: Did you ever do anything else in the gym other [16] than play basketball or stickball? [17] A: Sure. In the past I would have played [18] volleyball on occasion. Occasionally worked [1~ out on the equipment, used the sauna, steam [20] room, whirlpool that's available. [21] Q: We'll get to stickball in just a minute. In [22] the past when had you played volleyball in the [23] gynmasium? ~4] A: I can't give you specific dates or even 5] specific years. [1] you know when to show up? [2] A: With volleybll? [3] Q: Yes. [4] A: With volleyball, historically, if there was [5] going to be a more organized game of volleyball ['I or time of volleyball, usually there would be [7] something published that would come out to [8] basically say you can sign up to play 19] volleyball. [10] We have an employee fellowship association [11] at the office. They from time to time take [1~ charge of organizing a variety of things. I [13] don't recall specifically. They may have been [14] the parties who organized the volleyball, what [15] I call more organized volleyball, in the past. [16] I just don't recall. [17] Q: You say sign up. Do you mean there's an actual [18] sheet that you would put your name on if you [19] wanted to play this organized volleyball? ~O] A: I can't recall that there was an actual sheet. ~1] You would express interest, and I can't recall [22] how exactiy that would take place. [23] Q: And I think you may have touched on it. We [24] didn't really get into it too much. How did [25] you know when to show up and all that to play Page 18 Page 20 [1] Q: With whom did you play volleyball in the [~ gymnasium? ~] A: Other people who were employed at PIDCO, their [4] spouses, their friends, their gnests. [5] Q: Were these just pickup volleyball games, or was ['I there a set time that you were to arrive and [7] play and all that? [8] A: I would say over the years there were both ~] situations. [10] Q: Which were you involved in, in terms of the [11] volleYball now? [1~ A: 130th. Both pickup and also that which was more [13] organized. [14] Q: The stuff that's more organized, the volleyball [15] that was more organized, who was doing this [16] organization? [17] A: 1 have no idea. [18] Q: Again, is that with other employees and their [19] family members, that type of thing? ~O] A: Participants would have been other employees, [21] family members, guests, whoever they chose to "] be involved. [23] Q: You say that you did both-organized and I'll ~4] call the other kind of volleyball unorganized ~5] volleyball, for lack of a better term. How did [1] this organized volleyball? [~ A: Typically, if there was a more organized [3] volleyball game, what we were just talking [4] about, there would be a sheet hung on the [5] bulletin board or maybe you would get it in [~ interoffice mail or whatever that would [7] basically say, This is the time that this game [8] is going to be scheduled or be played or [9] whatever. [10] In those situations usually there was a [11] team captain, and they would take charge of [12] scheduling or canceling a game because people [13] couldn't be available for other commitments or (141 reasons or business reasons or whatever. [15] Q: Was there a particular team that you played on [1~ for volleyball, organized volleyball? [17] A: No. I can't recall specifically. I mean it [18] was no specific team. It was a team. [19] Q: When did you first start playing stickball at [20] the gymnasium at PIDCO? [21] A: Probably estimating fall of 1998. [22] Q: How did you find out about stickball at that [23] facility? [24] A: I learned that there were a few guys getting [25] together occasionally in the mornings to get Filius & McLucas Reporting Service, Inc. (7) Page 17 . Page 20 Min-U-Scrlpt<i> ,,".'"~"""" """- n-~j~' -, - <~" Douglas L.,Deitrich June 14, 2001 k. -~; "~"1!hWjll\~ ,~ - Douglas Deitrich & Lucinda Deitrich v, Craig Charles [1] some exercise. This was an activity that they [2) were engaging in and decided to check it out. ~J Q: From whom did you learn that there were a few [4J guys getting together in the gym playing [~ stickball in the morning? [6J A: It was word of mouth. {7] Q: Bur you can't recall specifically where you [8] learned it? [9J A: I may have learned it from Mr. Charles, or I [10] just may have just heard it, again, by word of [11J mouth. I don't recall. [12] Q: Did you learn from Mr. Charles or from anyone [13] else that these stickball games or matches or [14] whatever had been going on for a few years [15] before you got involved? [16] A: A few years? I don't believe so, no. [17] Q: Well, had you learned from Mr. Charles or [18] someone else that they had been playing before [19] you got involved, at least? [20] A: I learned that there were a few people getting [21] together and playing in the gym.And that was [2~ before, obviously, I found out about it, yes. [23] Q: Did you express interest in playing yourself? [24] A: Yes. [25] Q: Had you ever played stickball before that, the Page 21 Page 23 [1] shows a strike zone. If the ball enters that [2] particular arez, '''''It' considered a strike. If 13] it goes outside of that area, it's considered a [4] ball. [5J Q: Speaking specifically to the PIDCO stickball in [6J which you became involved in the fall of 1998, [7] were there any referees or umpires? [8] A: No. [9] Q: You don't actually run bases, though, in [10] stickball. do you? [11] A: No. [12J Q: My understanding is, from what you're saying, [13J it's a two-on-two game. [14] A: It can be two on two. It can be one on one. [16] It can be as many players as you wish to have. [16] Q: Before you started playing in the fall of '98, [17] had you seen any written rules about how you [18] were to be playing the game in the gym at [19] PIDCO? [20] A: Not that I recall, no. [21] Q: From Mr. Charles or from whomever, did you [22] learn the names of the fellows that were [23] playing stickball in the gym before you got [24] involved? [25] A: I learned of who some of the individuals may [1] fall of '98? [2J A: Where? ~] Q: Anywhere in your whole life. [4] A: Sure. [5] Q: I've never played stickball. What is it? How [6] do you play it, and how do you keep score and [7] that kind of thing? [8] A: Stickball is a game that you grow up playing as [9] a kid. People call it different things. Some [lOJ people call it strikeout. We called it [11] strikeout when I was a kid. [12] You have a pitcher. You have a batter. [13] The 0 bj ective of the game is, obviously, have [14] the pitcher try to strike out the batter. The [16] objective of the batter, obviously, is to try [16] to hit the ball. If you hit the ball a certain [17] distance or to a certain location, it scores as [18] a single or a double or a triple. [19] It's played pretty much just like baseball [20] in terms of outs, how you make an out. If a [21] ball is caught, obviously, you get an out. If [22] you strikeout, it's obviously an out. [23] Typically you either - You scratch ]24] something on the ground to signify a plate, or [25] you put something behind you on a wall that Page 22 Page 24 [1] have been that were participating. [2] Q: Who did you hear that was playing down there? [3] A: I heard Mr. Persofsky was playing. I heard [4] Mr. Miceli was playing. I heard that - I [~ believe it was Dr. Pendrak was playing. [6] Mr.Amice I believe was playing. A gentleman [7] by the name of Mr. Palumbo, who also - Now [8] that I think about it he was an officer of the [9] company back at that time. I forgot about him. [10] He's no longer at PIDCO. I believe he was [11] playing at the time. There may have been [12] others. I just don't recall. [13] Q: What was Mr. Miceli's position at the time in [14] January of '99 or fall of '98? [16] A: I believe he was a claims supervisor. He may [16] at that time have moved to one of our other [17] divisions, but I just don't recall with [18] certainty. [19] Q: And Barry Persofsky, he was CEO at the time? [20] A: Yes. [21] Q: You said a Dr. - [22] A: Pendrak. [23] Q: Who is he? [24] A: He was medical director, also would have been [25] an officer of the company. '.'" Page 21 - Page 24 (8) Filius & McLucas Reporting Service, Inc. Min-U-Script@ _.~._.'-~ -"""~- ~ ~ ,Douglas Deitrich & Lucinda Deitrich v. Craig Charles ~ ~ - '" ~<~=~..I~, Douglas L. Deitrich June 14, 2001 Page 25 [lJ Q: And you mentioned a Mr. Palumbo, who was an .'] officer at the time but has now left the employ [3J ofPIDCO. [4] A: Correct. [5] Q: You mentioned one other name. [s] A: Mr.Amice. p] Q: Yes. Who is Mr.Amice? IS] A: He also would have been an officer. He would [9] have been in charge of I think at that time [10] perhaps the northeastern regional office at [II] that time, I believe. [12] There were some other folks who I believe [13] also were playing who were people from the IS [14] department. Possibly a gentleman by the name [15] ofJoe Carmasine. [16] Q: What was Joe's title? [171 A: I don't know. I think he is - I don't know [18] what his title is. 119] Q: In the fall of '98 - When specifically did ~O] you start playing stickball? What month? [21] A: I don't recall. (22] C: Sometime in the fall, you think? ~3] A: I believe it was the fall of '98, yes. t24] Q: Did you have a teammate? 5] A: I'm sorry. Page 27 [1] Q: Your answer is - [2] A: When I began playing stickball in the fall of ~] - I believe it was the fall of '98, it was [4] simply fmd two other guys that have interest [5] in playing who either have been playing or want [6] to play and get together early in the morning (7] and playa game. [8] C: At some point did that change, that it became [9] more formal and there were schedules that were [10] prepared or made? [11] A: As more and more people found out about people [12] playing this game for recreation and exercise, [13] the group of people interested gOt a little [14] larger. At that point I believe it was [15] Mr. Charles who took it upon himself to try to 116] put together some kind of a loose schedule, if [17] you will, to allow everyone to play each other [18] so that everyone kind of had an idea who was (le( interested and possibly when you could get (20] together. [21J C: Using your term, when did Mr. Charles put (22] togetherthis loose schedule? (23J A: I believe that was probably shortly before the (24] holidays in the fall of 1998, I believe. (26] Q: Do you have a copy of the schedule that was Page 26 Page 28 [1] Q: Did you have a teammate? [2] A: Mr. Charles. ~] Q: And you knew Mr. Charles through work? [4J A: Yes. [5] Q: I asked you about volleyball. Do you know how [6] you signed up to play stickball? (7] A: You didn't sign up to play. IS] Q: How did you know - Was there a schedule or [II] list that told you when you and Mr. Charles [10] were going to be playing another team or [11] anything like that? [121 A: When we initially started playing, it was 113] simply you found who else had an interest in [14J playing and you got together and said, When can [16] you make it? [16J Q: So your testimony is there was never any [17] schedule of who was going to play who at what [18J time and where? [19] A: No, that's not my testimony. [20] C: Was there any written schedule telling you that ~1] you were to play so-and-so, another team, at a !2] particular time on a particular day? (23J A: At any time or in the fait of '98. [24] C: Well, first the fait of '98, (25) A: No, there was no schedule in the fall of '98. [1] generated sometime before the holidays in 1998? [2] A: No, I do not. [3] Q: Do you know where that would be? [4] A: No, I do not. [5] C: Did you actUally get your own copy that you [6] stuck on your corkboard in your office or put (7] in your desk drawer to refer to? [8] A: Yes, I believe I did. [91 C: Was the schedule for games to be played the [10] following year, 1999, right after the holidays? [11] A: I don't recall when that actually began, [12] whether it was pre-holidays or post-holidays. [13J C: January 5, 1999 is the date on which we're here [14] about today. Do you know whether or not there [15J was a schedule in place as of that date? 116] A: Yes, I believe there was. [17] C: You think Mr. Charles prepared that? [16] A: I believe so. 119] C: Did Mr. Charles post that anywhere? (20] A: Not that I'm aware of, no. [21] C: Did he hand one to you personally? (22] A: I believe so, yes. [23] C: Who else was involved in the stickball - we (24] have an ongoing objection - league in January 12S] 1999? Filius & McLucas Reporting Service, Inc. (9) Page 25 - Page 28 Min-U-Script@ ,~~IIiI_~" Douglas L. Deitrich June 14, 2001 L .-.;.1 "" ~ ~. ~i, Douglas Deitrich & Lucinda Deitrich v. Craig Charles [lJ A: Can I ask a question of my counsel please? [2] Q: Sure. If you don't undersranrl the question, ~J I'd be more than happy to rephrase it for you. [4J A: No. It has to do with the reference to the [5] league. [6] Q: Right.We've agreed that we're going to agree r] to disagree on the use of that term.We're [B] going to fight over whether or not that's a [9] legal term or not. [10] But my question is:Who else was playing [11J stickball at PillCa in January of 1999? How [12] abOut that? [13] A: Okay. In addition to Mr. Charles and myself, [14] Mr. Persofsky, Mr. Miceli, Mr. Binger, [15] Mr. Pendrak, Mr.Amice, Mr. Carmasine. [16] Q: Yourself and Mr. Ch~rles, obviously. [17] A: Yes, I believe I said them first. [16J Q: Quicker than I can write. [19] A: Names are escaping me at the moment. I'm sure [20] there were ntore than that, but those are the [21] ones who come to mind immediately. [22] Q: You didn't mention Mr. Binger before, I don't [23J think. Who is he? [24] A: Mr. Binger is - At that time he was an [25] employee in our IS department, He is now the Page 29 Page 31 [1] people brought. Personally I would bring a [2[ tennis ball, and I wouid bring a baseball glove [3] and on occasion brought a bat. [4] 0: On the occasion that you didn't bring your bat, [5[ what bat would you use? [6] A: Mr. Charles's bat. [7j 0: Did PillCO have an equipment room adjacent to [B] the gymnasium that had baseball bats and tennis [~ balls and things of that nature? (101 A: PillCO had a general equipment room, yeah. [11] Q: Do you know whether or not that general [12] equipment room contained baseball bats and [13J tennis balls? [14] A: Yes, it did. [15] Q: Were those items available for you to use to [15] play stickball or whatever other reason you [17] wanted to use it? [18] A: Yes. [1~ Q: Did you guys wear jerseys? [20] A: No. [21J Q: Just wore what you would normally wear to the [22] local gym? [23] A: Correct. [24J 0: Shorts and tee shirts, stuff like that? [25] A: Correct. [lJ vice president of our information services [2] division or department. [3] Q: Deals with computers? [4J A: Yes. [5] Q: How did you learn that all of these other folks [8J were playing stickball in January of '99? [7j A: Some of which I knew from word of mouth from [B] previously having played against them in just [9J the run-of-the.mill get-together type of game. [10] Others perhaps when Mr, Charles handed me the [11] game schedule or the theoretical game schedule [12J or whatever you want to call it and saw that [13] they were on there. [14J Q: What did this game schedule sayan it, on the [15] top of it? Do you recall? [15] A: No, I do not. [17] Q: How many stickball games could go on in the [18] PillCO gym at the same time? [19] A: Just one. [20] Q: In January of '99, were you guys playing two on [21[ two? [22] A: Yes. [23] Q: Did you have your own stickball equipment that [24] you brought with you? [25] A: Some did. Others used other equipment other Page 30 Page 32 [1] 0: Did they have shower or locker room facilities [2] there? [3] A: Yes. [4] Q: When you played a game - Had you played any [5] games in 1999 before January 5? [6] A: No. [7j Q: The first game of the new year? [~ A: Correct. [9J 0: In the fall of '98 when you srarted playing [10] stickball, you were playing with Mr. Gharles as [11J well. How did you record your scores, lf you [12] did, after a match? [13[ A: I don't believe anybody was recording scores. [14] I don't recall that anyone was recording scores [15] in the fall of '98. [15] Q: At some point did someone start recording [17] scores? 116] A: I believe Mr. Charles was keeping track of 11~ them, yes. 120] Q: When was Mr. Charles keeping track of them? [21] A: The beginning of 1999.After the loose, what 122] I'll call loose schedule was pur out that [23] created some sense of who was going to play 124] whom when and other types of things, there was [25] an effort made to keep track of who was winning Page 29 - Page 32 (10) Filius & McLucas Reporting Service, Inc. Min-U-Script@ d' "".;.,~ -.~~"=~~-~ illl>lillil~",-...I,'" . Douglas Deitrich & Lucinda Deitrich v. Craig Charles L_t' Li ~_ Douglas L. Deitrich June 14, 2001 Page 33 Page 35 11] what games, for bragging rights if nothing .'] else, I believe at that point Mr. Charles was [3] keeping track of scores. [4] Q: Just so that I'm clear and the record Is clear, [5] is it your testimony that scores were not kept [~ before your accident in January I999? [7] AI I don't recall that they were, no. [a] Q: But they may have been? You just don't know? [9] A: I don't recall. [10] Q: At the end of a season - And I don't know how [11] long a season lasts. Well, you tell me. How [12] long did a season last? [13] A: There was no season, per se. [14] Q: Was there anytime that there would be any, [1~ quote/unquote, playoffs? [1~ A: I believe in perhaps the fall of '98. [1n Actually, as I sit here and think about it, [18] maybe we started playing in the spring of '98. [19] Q: Does that change any of your answers regarding [20] when schedules came out and when scores were [21] kept or recorded? [2~ A: I would have to say - As I sit here today,l [23] seem to recall that this schedule, as you want [24] to call it, began in the fall of 1998. It may ~ have begun earlier than that,As I sit here [1] you know what time you got to the gymnasium? [2] A: Approximately 7 o'clock in the morning, 7 [3] o'clock a.m. [4] Q: We're talking about the gymnasium of Pill CO at [~ One PHICO Drive? [S] A: Correct. [7] Q: What did you do when you got to the gym? [8] A: Immediately? [9J Q: Sure. Just kind of walk us through it, if you [10] would. [11] A: Upon entering the gym, I would have dropped my [121 gym bag in the locker room; taken off my coat, [13] sweat pants in the locker room area; gotten [14] ready to go out into the gym to loosen up, [1~ throw, stretch, all those things that you would [1~ typically do in preparation for any kind of an [1n athletic event that you might be going to [18] participate in. [19] Q: Was that pretty customary for you, once you got' [20] changed in the locker room to go out into the [21] gym and stretch and warm up before a match? [2~ A: Yes. [23J Q: And would you observe other players do the same [24] thing, stretch and throw ball and warm up? [2~ A: Yes. If there were others in the gymnasium, Page 34 Page 36 [1] today, I seem to recall that we may have [2] acttlally had some sort of a little, informal [3] playoff of who maybe seemed to be the better of [4] the teams in the fall of 1998. [5] Q: And those playoffs would be among those various [~ individuals that you've already listed for us [7] today- [S] A: Yes. ~] Q: - to the best of your knowledge? [1~ Was there any trophy or plaque or [11] certificate that the winners of the playoffs [1 ~ would get? [13) A: Not that I'm aware of, no. [14] Q: Have you ever seen a plaque on the wall at [1~ PHlCO regarding the stickball games or matches? [16] A: No. [1n Q: Have you and Charles ever won the, quote/ [18) unquote, playoffs? [19] A: No. [201 Q: Do you know if anyone - Other than yourself [21] on January 5,1999, obviously, do you know if '~ anyone else playing stickball in the gym was (23) ever injured before? [24] A: I do not know. [25] Q: Let's talk about January 5, if we could. Do [1] yes. [2] Q: In addition to throwing ball, would another way [3] in which one could warm up be to practice [4] hitting? [5] A: Yes. [6] Q: In terms of throwing to warm up, would it be [7] uncommon when you went out there for warmups fS1 that players would be throwing a tennis ball [9] against a wall repeatedly to assist in warming [10] up? [11] A: Yes, that's correct. [12J Q: Is it true that - and I believe you intimated [131 to this earlier - that in order to throw a [14] strike in a stickball game you have to throw [15] the tennis ball in a little, taped square on [16] the wall? Would that be accurate? [1n A: That's correct. [181 Q: Are these pitchers throwing these balls [19] underhanded or overhanded? [20J A: Overhand. [21] Q: How far back from this taped square on the wall [22] do these pitchers stand? 1231 A: I would have to estimate the distance. [24J Q: That's fine. [2~ A: Forry-five feet perhaps. Filius & McLucas Reporting Service, Inc. (11) Page 33 - Page 36 Min-U-Script@ _E~ _""J~~,""~J"_'""",,,,,,"",,^~^," " ~~, ,_ "'- Dmtglas I.. Deitrich June 14, 2001 "'.~-,.... - J()~ Douglas Deitrich & Lucinda Deitrich v. Craig Charles I'] Q: Is the pitcher's mound, for lack of a better [2J term- [3] A: No. Let me retract that. That can't be right, [4J 45 feet. 15] Q: That's a long way. [6] A: It's approximately the width - about three- [~ quarters of the width of the court that is [BJ there, that court being approximately half of a [9] small basketball court. 1'm going to estimate IIOJ a distance from the pitching surface or the [1'] designated pitching area to the wall would have ['2] to be, give or take, maybe 30 feet, 25 to 30 I13J feet. 1'4) Q: Who put the tape on the wall to show the strike [15J zone? [16] A: I do not know. ['~ Q: You said a designated pitching Spot. Was there [18] tape on the flOat where the pitcher would [19] stand? [20] A: Yes. [21] Q: Who put that tape on the floor? Do you know? [22] A: I do not know. [23] Q: Are there out-of-bounds markers on either side [24) of the batter? [2~ A: No. Page 37 Page 39 [1J warm up? [21 ^: Initially simply some loosening of my arms [3] through general stretching motions. And then I [4] took up a position at the taped area that you [5] were referring to where the pitcher would [6] normally stand, and I was throwing at the wall [7] at the square. [B] Q: And how long did you do that? [9] A: Possibly, estimating, five to seven minutes. [10] Q: What did you do after that? [11] A: After that I waiked around: picked up a bat: ['~ took up a position with the bat to what I will [13J call the far right of the gymnasium, the [141 playing area of the gyrrmasium; and proceeded to [15] stretch with the bat in my hand, stretching my [16] back, bending over, side to side type of {i7] stretching activities. [18] Q: Like you would with a golf club kind of? [19] A: Exactly. [20] Q: How far away - You say far right. In terms [21] of the taped square on the wall, how far were [22] you away from that when you were doing this [23] bending and whatnot with the bat? [24] A: Approximately eight feet. [2~ Q: What was Mr. Charles doing at this time? [lJ Q: So everywhere in the gym is fair game? [2] A: I don't understand your question. [3] Q: Is there a foul ball in stickball? [4] A: Yes. [~ Q: What demarks a foul ball? [6] A: A foul ball being, as would be in any game of [7] baseball, a ball that is tipped and goes behind IB] you, fouled off behind you. or a ball that [9] travels at an angle where it would hit the side ['0] walls of the gymnasium. [11] Q: So anything that drops on the floor is a fair [12] ball? ]131 A: Yes. [14] Q: If it hits the side walls as the batter is [1~ facing out, that's a foul ball? [' ~ A: Correct. [17] Q: That's what I waS getting at. There isn't tape [18] to show the foul lines in stickball, at the ['9] PillCO gym anyway? [201 A: Correct. [21] Q: It was a terrible question. [2~ You got there around 7 o'clock.You went [23J in the locker room, and you changed or got [24] undressed, and then you went out into the gym [2~ to stretch and to warm up. What did you do to Page 38 Page 40 ['I You're about eight feet from the square, and [2J you're stretching and bending with the bat. ~] A: As I recall, Mr. Charles was talking with, I [4) believe, Mr. Persofsky, who was standing to his [5] immediate left. [~ Q: And where were the two of them standing? [7] A: The two of whom? [B] Q: Mr. Charles and Mr. Persofsky. [9] A: Going back to where I had been standing when I ]10J was throwing and warming up, I was standing at [11] the taped area. I' 2] Mr. Charles was standing to my left the [13J distance of probably eight feet, maybe ten, [14] throwing the ball directly forward against the [1~ wall. [16] Mr. Persofsky was another eight feet or so [in farther left, and Mr. Miceli was another [18] distance to his left. [19] So, essentially, if you go back in time to [20] where I was when I was throwing, as I recall [2'] there were four people essentially standing [2~ side by side some distance apart, each throwing [23] directly forward against the wall-myself, (24) Mr. Charles, Mr. Persofsky, and Mr. Miceli. [2~ Q: When you broke off from the three of them, did Page 37 - Page 40 (12) Min-U-ScriptlBl Filius & McLucas Reporting Service, Inc. ,".<,,' "'~'"~~- ~ ~,~ .Douglas Deitrich & Lucinda Deitrich v. Craig Charles , ~. j ':"~'- "I, ,. ........."".,.;;;.;.,'; Douglas L. Deitrich June 14, 2001 Ii] \hey continue to \hrow against \he wall? .2] A: When I broke off from them, I walked behind [3] \hem, walked down along the left wall of the [4] gymnasium, proceeded to pick up a bat. [5] Each of those individuals acknowledged my (6] presence, ceased throwing, allowed me to walk 171 directly across in front of all three of them, [8] which was the only way to get to where really I [9J was headed. They all stopped throwing and [10] allowed me to walk completely across the front, [11] take up my position to the far right of the [i2] gymnasium. [13] G: You say take your position. What do you mean [i4J by that? [15] A: That position approximately eight feet from [16] that square area that I mentioned earlier. [17] G: You don't mean - When I hear position, I [18] think of a batter taking his stance in the [19] batter's box. You don't mean that at all? [20] A: No. [21] G: Eight feet away from the box, squared tape; and 122] you're doing your stretching and bending with [23] the bat. That's what you meant by position? [24] A: Correct. 5] G: What happened? Ii] A: I got hit. [2] G: What were you doing when you got hit? [3J A: I was still stretching. [4] G: What in particular were you doing? Were you [~ stretching your arms up in the air? Were you [6] bending over with the bat? 171 A: As I recall, I had the bat in front of me with [8J - basically as you were describing earlier [9] with a golf club, two hands on it, basically [10] swinging from side to side. [11] G: Which way were you facing? [12] A: I wouid have been - Well, it's kind of tough I13J to describe. If that is the wall that would [14] have the taped square on it, I would have been [i~ facing as you are sitting essentially right [16) now; which would be with my'right shoulder [i7] angled toward the back wall of the building [16J with my left shoulder angled somewhat out [19] toward - [20J G: The pitching area? [21] A: - the pitching area, somewhat facing - not "] completely facing forward, obviously not facing [23] backward but on an angle.As I was turning, [24] obviously, my position would have changed in [25] terms of where - In other words. if my head Page 41 Page 43 Page 42 Ii] was facing straight with my shoulders as you [2] would sit in a chair and look forward, I would [3] have been constantly in that changing motion [4] position. [5] G: How long after you had arrived at your position [6] about eight feet from the taped square were you 171 hit? What kind of period oftime elapsed? [8] A: Approximately two minutes. [9] G: What were you doing during that two minutes? [iO] Can you tell us? [11] A: I was stretching. [i2] G: What were these other three fellows doing [13] during those three minutes? [i4] A: Mr. Miceli, as I recall, was throwing over to [15] the far left against the wall. As I recall [16] what occurred that morning, Mr. Charles and [i7] Mr. Persofsky were having a conversation, and [16] then I got hit. [i9] G: Did you see who threw the ball? [20] A: No, I did not. [2i] G: Did you later learn who threw the ball? [22] A: I later learned who threw the ball, yes. [23] G: How did you learn who threw the ball? [24] A: Mr. Charles told me he had thrown the ball. [25] G: How did the events unfold? You were hit.What Pege 44 [1] happened? [2] A: I was hit. I went to my knees. My contact [3] lens was knocked out of my eye. I immediately [4] realized I was in serious trouble. I would say {5J a sense of panic set in, knowing that I had [6J been hit in my eye and that I had been hit hard 171 in my eye. [8] G: Referring to your left eye? [9] A: Yes. [i 0] G: I want to spend just maybe 10 or 15 minutes [11] talking about your treatment and your injury [i2] and whamot. Can we take a one- or two-minute [13J break? Would that be okay with you? [i4] MR. BRENNER: That's fIne. [15] (Recess taken.) [18] [i7] G: Before we get into your injuries, Mr. Deitrich, [16] did you wear any protective equipment when you [i9] played stickball? [2~ A: No. [21J Q: Did you ever wear any safety glasses or goggles [22] when you played stickbal!? [23J A: No. [24] Q: Did you own a pair of safety goggles or glasses [25] at that time, January 1999? BY MR. FOLAND: Filius & McLucas Reporting Service, Inc. Min-V-Script(<) (13) Page 41 - Page 44 "..~- . ....>~~- "=, .........,.. ,- '- Douglas L, Deitrich June 14, 2001 Page 45 [1] A: Yes. ~J Q: And under what circumstances would you wear ~] your safety goggles or glasses at that time [4] period? [5] A: I'm not sure exactly what you're asking me when [61 you say circumstances. [7] Q: When would you wearthem? I'] A: I wore - In '99 when I would - Or ninety - [9] Yeah, '99. I would wear those goggles that I'm [10] referring to when I would play basketball. [11] Q: When did you get the safety goggles? [12] A: In probably the fall of1992. [13] Q: Was there a particular reason that you [14] purchased safety goggles in the fall of 1992 to [15] play basketball? [16] A: Yes. [17] Q: What was that? [lB] A: I had previously suffered an injury to my right [19] eye while playing basketball when I had a ~O] finger, or a thumb, actually, stuck into my [21] right eye and had suffered a retinal ~21 detachment. [23J Q: Obviously, you saw an ophthalmologist or a ~4] medical doctor for that problem, that injury. [25] A: Yes. Page 46 [1J Q: Who did you see for that injury? ~] A: Dr. Prensky was my specialist. [3] Q: Is he an ophthalmologist? [4] A: He is a surgeon. I believe he is a retinal and [5] oculoplastic surgeon. [~ Q: Did you treat with anyone else as a result of [7] that '92 basketball injury? I'] A: I also saw an optometrist at Vision World in [9] Camp Hill. [10] Q: Do you wear contact lenses? [11] A: Yes, I do. [12] Q: 1 think you said that at some point your [13] contact lens was knocked out as a result of [14] this incident. [15] A: Correct. [18] Q: When did you start wearing contact lenses? [17] A: Oh, goodness. Probably when I was about 23, 24 [18] years of age. [19] Q: Do you know before January 1999 when you were [20] last fitted with contact lenses? ~1] A: Probably sometime during that year. ~2] Q: Ninety-eight? [23] A: Ninety-eight. I'm sorry. [24] Q: That's okay. I knew what you meant. ~5] Who was your eye doctor in '98? Page 45 - Page 48 (14) ., - !.- ~ ......i-rlll'lIu.~;~,- Douglas Deitrich & Lucinda Deitrich v. Craig Charles Page 47 [1] A: That would have been Dr. Steven Weller, ~] W-E.L-L.E-R. He is an optometrist. ~] Q: Where is Dr. Weller located? [4] A: In Millersburg. [5] Q: Is he your eye doctor today? [6] A: He is one of the physicians who I see. [7] Q: And when did you fIrst start going to I'] Dr.Weller? [9] A: I treated with Dr. Weller when I was much [10] younger, and then I ceased treatment with hlm . [11] for a number of years and began again treating [12] with hlm following my 1992 injury. [13] Q: And why did you purchase the goggles after your [14] 1992 injury? [15] A: For purposes of playing basketball. [18] Q: What in particular were your concerns when you [17] were playing basketball which made you wear the [18] goggles? [19] A: To prevent a finger from being stuck in my eye [20] again. [21] Q: Do you still have them today, the same goggles? [22] A: I do not have the same pair. I have another ~3] pair. [24] Q: Is this just your second pair of goggles since ~5] the '92 goggles? Page 46 [1] A: Yes. [2] Q: When did you get the new goggles? [3] A: I don't recall. I slmply replaced the old ones [4] with a new pair because the old ones were [5] getting scratched. [~ Q: Did you get the new ones before or after [7] January of '99? ['] A: I believe after. [9] Q: Were you playing basketball in the fall of '98? [10] A: Yes. [11] Q: Where were you playing basketball in the fall [12] of '98? [13] A: Severallocations. [14J Q: Including the PliCa gym? [15] A: Yes. [1~ Q: And other gymnasiums? [17] A: Yes. [lB] Q: Were you wearing your goggles to play [19] basketball in the fall of '98? ~~ A: Yes. [21J Q: Those would have been the old goggles? [22] A: Yes. They're exactly the same. It's simply a ~3] different pair. That's all. [24] Q: I play racquetball, and I wear goggles. So I ~5] know what you mean. They get kind of icky Min-U-Script\ID Filius & McLucas Reporting Service, Inc. ~~,""",,'~ , Douglas Deitrich & Lucinda Deitrich v. Craig Charles "~, ~,~ Douglas L. Deitrich June 14, 2001 Page 49 Page 51 [1] after a while. .21 Is there any reason why you didn't wear [3) them to play stickball? [4] A: Didn't believe it was necessary. IS] Q: Have you ever been hit as a batter playing [6] stickball? [7] A: I'm not sure I understand your question. [e] Q: There's a pitcher who stands at that taped mark [9] Out in the gym, and they throw the ball at that [10] taped square on the wall. Sometimes our aim [11] isn't as precise as we'd like it to be, and the [12] ball goes one way or the other. Did you [13] yourself playing stickball, being a batter, [14] ever get hit by a tennis ball thrown by the [15] pitcher out there? [16] A: Yes. [17] Q: And did that happen before January 1999? [1B] A: Yes. [19] Q: On how many occasions playing stickball and [20] being the batter had you been hit with a ball [21J on prior occasions? ~2] A: A few times. [23] Q: Had you ever seen other batters being hit by an [24] errant throw, for lack of a better word? "] A: Yes. Page 50 [1] Q: You keep your goggles in a gym bag in the trunk [2] of your car? ~] A: I don't keep my gym bag in the trunk of my car. [4] Q: I was being a little cute. Where do you keep [5] your goggles? [5] A: It really depends on where I'm going to be or [7] what I'm doing, I mean there's not a [e] panicular place that I keep my goggles. [9] Q: I didn't mean to be too cute. Some people [1~ leave their gym stuff in their car because they [11] go to the gym four or five times a week. I [12) leave my golf clubs in the back of my truck [13] because I play golf whenever. [14] I was just trying to see whether or not [15] you had a ready-made bag in your trunk or in [15] your car with your goggles in case you got a [17] call from a buddy who wanted to play basketball [1B] or something else. I take it your answer to [19] that question is no. Is that correct? [20] A: I'm not really sure what the question is at ~1] this point. I'm sorry. Z2] Q: You keep your goggles at home unless you know [23] you're going to play basketball that evening? [24] A: Yes. [25] Q: That's really what I was getting at. [1] You were hit by the ball on January 5 in ~] the left eye; correct? [3] A: Correct. [4] Q: Did you go down to the ground after you were [5] hit? [6] A: I went to my knees. [7] Q: And what happened after that? [e] A: As I mentioned earlier, I realized immediately [9] that I was in trouble. I could not see. What [10] I saw was simply white, what I'll call white [11] light, at that point for a few seconds. [12] Realized my contact had been knocked out of my [13] eye. [14] Mr. Charles, Mr. Persofsky both came [15] rather quickly to my aid. They looked at me, [15] saw that I clearly had been hit, looked at my [17] eye. I believe someone began looking for the [1B] contact lens. I don't recall who that may have [19] been. I think I probably mentioned my contact ~O] went flying out or something. So, obviously, ~1] somebody went looking for it. [22] I realized that I had a serious problem ~3] immediately based on how hard I had been hit [24] and the fact that what I was seeing was not ~5] normal. I went into the locker room, the Page 52 [1J restroom area, looked in the mirror. My eye ~] was no longer normal white around the colored [3] portion of the eye. It was bright red. [4] I came back out of the gymnasium, said to [5] the gentlemen in the gym, Look at my eye. I'm [6] done. I've got to leave. I've got to go get [7] care. [8] I believe someone at that time went to get [9] an ice pack. I gathered up my things, left the [10] gym, went up to my desk, got a phone book, [11] looked up my specialist's name, telephone [12] number, and immediately called him to see if I [13] could immediately come over. [14] Q: Dr. Prensky? [15] A: Dr. Prensky. [16] G: As you sit here today, do you have any reason [17] to believe that Mr. Charles threw that ball at ]1B] you intentionally? [19J A: I have no idea why Mr. Charles threw the ball ~O] that day. ]21] Q: Well, my question is a little more pointed. [22) How about my next question being a little more ~3] pointed. Do you have any reason to believe as ~4] you sit here today that Mr. Charles intended to ~5] thro'Y that ball and hit you with it? Filius & McLucas Reporting Service, Inc. (15) Page 49 - Page 52 Min-U-ScriptGl --""-~""""""~ . "".l!~_~'~ - -~ D01aglas L. Deitrich June 14, 2001 ~~- = > r ~'f~ Douglas Deitrich & Lucinda Deitrich v. Craig Charles Page 55 [1] A: I can only answer that question by saying I [2] would ~ertainly hope not. ~] Q: But based on your - He was your teammate, [4] right, at that time? [5] A: He was my teammate. If we were going to be [6] playing, he was my teammate, yes. [7J Q: You didn't have any reason to believe - You [8J got along with him before that? [9] A: To the best of my knowledge, yes. [10J Q: You worked together; right? [11] A: Correct. [12] Q: Didn't have any personal disagreements as far [13] as you knew at that time? [14] A: I would have to say I don't believe there were [15] any significant personal disagreements. [16] Q: We all have certain disagreements with our [17] bosses certainly. But outside of that, nothing [18] that sticks out in your mind? He didn't tell [19] you that your kid stunk in little league or [20J anything like that? [21J A: No. No. [22] Q: When did you see Dr. Prensky? [23] A: That same day, January 5th, 1999. [24] G: What did he do for you? [25] A: He examined my eye, told me as best he could at Page 54 [1] that time what he saw, told me what he believed [2] to be the positives and the negatives about [3] what he saw. He prescribed some eye drops and [4] scheduled me for a revisit. [~ Q: When was the revisit? [6] A: I believe it was probably, as I recall, a week [7J to ten days, possibly two weeks. I just don't [8] recall the exact date. [9] Q: What happened at that second visit? [10] A: He again examined the eye, advised me at that [11J time of new developments which had occurred, [12] things that he was not able to previously see [13] because of blood being in the eye, and again [14] cautioned me in terms of long-term prognosis. [1~ Q: What was he telling you in terms of prognosis [16] at that time? Do you recall? [17] A: He told me at that time that what he now was [18] seeing was a significant vitreous detachment in [19] the back of the eye, that that would be [20] permanent. There was no way to fIX it, that [21] the symptoms which I was experiencing would in [22] all likelihood continue to be permanent, that [23] there was really nothing that could be done for [24] them short of significant surgical procedures [2~ which carried significant surgical risk and Page 53 [1] potential blindness, and that he would continue (2J to follow me indefinitely for, at minimum, six ~J months and probably - every six months and [4] possibly at some point be able to go to at [5] least every year, as opposed to every six [6] months, and that would continue indefinitely. [7J Q: What were the symptoms to which he was [8] referring? [9] A: Symptoms were flashing lights with movement of [10] the eye from any particular direction, whether [111 it's up, down, side to side. There is a [12] flashing that takes place out here on the [13] periphery of the vision which continues to this [14] day. [15] Q: Is that only with movement. the flashing on the [16] periphery, or is that all the time? [17] A: It's with movement of the eye. If you move the [18] eye up or down or sideways, you will get a [19) flash. He explained to me that that Is as a [20J result of the vitreous body being tugged and [21] hitting, bouncing essentially off the retina, [22] and that when that contact occurs that flash [23] takes place. It's impacting constantly because [24] it's loose. He described it as essentially a [2~ curtain that's flapping in the wind back there, Page 56 [1] and every time that you move the eye it flaps [2] and hits against the retina and it causes the [3J flash over in this section. The flash [4] correlates to the area of the eye that the [5] detachment has occurred. [6J The other symptoms which he has told me [7J will remain permanently again, subsequent to [8] any surgical procedure, without surgery of some [9] sort, are the shadows or what I will call [10] floaters, which are numerous in the eye, again [11) from the vitreous body being damaged. And they [12] cast shadows as they float around onto the [13] retina. It's essentially taking and blocking [14J the light from getting to the retina. The [15] light that comes through the eye, it blocks and [18] then it casts a shadow every time that it comes [17] through and is blocked. [18J There's numerous of those there. so that [19] as I'm looking at you these things are [20] constantly just floating around in there [21] casting shadows. and you become an issue of [22] solid and broken types of a picture because of [23] the shadow. [24J Q: That's continuous as long as you have your eyes [2~ open? Page 53 - Page 56 (16) Filius & McLucas Reporting Service, Inc. Min-U-Script@ - ~~ ,". ~m_' , DougJas Deitrich & Lucinda Deitrich v. Craig Charles _..........- ~" ~-. l.ijjll"'~ :~_ Douglas L. Deitrich June 14, 2001 Page 59 [1] A: Correct. ,2] C: You perceive this? [3] A: Correct. [4] C: It doesn't depend on lighting conditions or [5] movement of the eye or anything like that? [~ A: Lighting conditions will make it worSe. [7] C: What lighting conditions make it worse? ['I A: Florescent lights or bright days. Now, the [9] brighter the sunlight outside, essentially the [10] better the situation because your pupils [11] constrict. Therefore, the light is coming [12] through more focused. [13] The grayer the day, like a day today [14] outside when I came in here, is terrible simply [1~ because you don't have a bright light. Your [16] pupils is open fanher. More light is coming [1~ in, allows for more of those shadows to be [18J cast. [19] C: I see that you have a couple pairs of glasses [20] on the table in front of you. Are those yours? [21] A: Yes. [22] C: One appears to be a sunglass, and the other may [23] be a reading glass. [24] A: Correct. "] C: Are they special sunglasses designed to help Page 57 [1] A: Correct. [2J C: Has he said anything in terms of what it looks [3] like for the future for the vision aspect of [4] it? [5] A: With respect to prescription changes or just [6] general vision aspect? [7] C: You can answer both. [8] A: With respect to general vision aspect, both [9] Dr. Prensky and Dr. Weller have both advised me [10] that what I currently have will not improve. [11] It will either stay the same or continue to get [12] worse as I continue to age and run the risk of [13] more problems developing. [14] C: I'm sorry. Are we talking about vision now, or ]15] are we talking about these other problems that [1~ you've already discussed? [17] A: Both. [18] C: When had your prescription changed before the [19] accident last? [2~ A: My prescription had been fairly stable for [21] quite some time, little or no change. [2~ C: Both eyes? [23] A: Both eyes. [24] C: Teil me about this surgery which you described [2~ as fairly risky. When did Dr. Prensky talk to [1] your problems? [2] A: No. They're simply an off-the-rack sunglass. ~] Simply the darker the lens the better because [4] it cuts down on the light. So I will wear [5] essentially a sunglass anytime I'm outside. [~ Q: Are you no longer able to wear contact lenses? [7] A: No. I still wear contact lenses. ['I Q: What are the glasses in the case for then? [9] A: They're reading glasses. ]1~ Q: Flashing lights onthe periphery, shadows or [11] floaters. Any other symptoms which you [12] experienced at that time which you continue to [13] experience today? [14] A: The flashing, the floaters, the shadows as I'll [1~ call them, and I have had prescription changes [16] in that eye since. [17] C: How many script changes have you had in that [18] left eye since the accident? [19] A: I believe two. [20] C: What has Dr. Prensky said ahont future [21] prescription changes, if he's commented on that 22J at all? [23] A: Dr. Prensky has not commented on that. He has [24] nothing to do with the prescription changes. [2~ C: Dr. Welleris your optometrist? Page 58 Page 60 [1] you about that, and what did he tell you? [2] A: Dr. prensky and I have talked on several [3] occasions since the January 5 incident about [4] what can we do, if anything, to get rid of [~ these shadows and flashers and so forth, [~ because they're extremely annoying and [7] extremely frUStrating. [8] He has advised me that there is a [9] procedure called a vitrectomy which is the only [1~ real option to try to deal with them, but he [11] does not recommend it. He has indicated at [1~ this point he would not perform it unless I [13] absolutely insisted upon it simply because of [14J the risks. [1~ C: What are the risks? Blindness? [16] A: Loss of vision. So he has advised me [17] basically, Learn to live with it until such [19] time as you can't and then we'll see what we [19] can do. [20] C: Are you still able to drive a vehicle? [21] A: Yes. [22] C: Do you still participate in recreational or [23] spotting activities? [24] A: Not to any degree as I did before. [2~ C: What aren't you doing now in terms of Filius & McLucas Reporting Service, Inc. (17) Page 57 - Page 60 MID-V-Script@> ",",,~~ ."',~~ . Douglas L, Deitrich June 14, 2001 - ., ~'-'-'~, Douglas Deitrich & Lucinda Deitrich v. Craig Charles Page 61 Page 63 [1] recreation or sporting activities that you were [2J doing before January of '99? ~J A: No longer play stickball for one. No longer [4J play basketball. I no longer water ski. I no [5] longer play any competitive sport on any kind [6J of an organized basis, whether it be softball [7) or baseball, any of that type of thing. [BJ I continue to hunt. I'm a hunter. It has [9] made it more difficult because of visual acuity [10] and a concern for safety. [11] I continue to golf but with great [12J frustration because the left eye is the eye [13] that you line up - As a right-handed golfer, [14J it's the eye you use to line up to hit the [15] ball. I don't know if you're a golfer or not. [16J But as you can well imagine, as you are trying [17J to use your left eye to line up a golf ball and [lBJ suddenly the ball disappears because of a [19] shadow, it's pretty difficult to make good ~OJ contact. So while I continue to do it, it's ~1J enormously frustrating. [22) Q: Do you track your handicap? ~3] A: Informally. [24J Q: How long have you been tracking it? [25J A: For years. [1J not really advice, but the concerns that ~J Dr. Prensky ami Dr Weller have both made ~J mention of in terms of at all costs avoid any [4J possibiliry of head trauma. Don't get hit on [5] the head because the support mechanism for the [6] retina is not there, and trauma will increase [7) substantially the risk of a retinal detachment [BJ in that eye. So with respect to water skiing, ~J it doesn't warrant the risk of taking a header [10J at 25 or 30 miles an hour. [1'J Q: Stickball and basketball and water skiing, you [1~ gave all of those up immediately after this [13] incident? [14J A: Correct. I may have water skied once [15J subsequent to the incidentfor a brief period. [16] Not been on the basketball court since. Not [17) played stickball since. [18J Q: How how often do you see Dr. Prensky? Every [19] six months? [20) A: Yes. ~lJ Q: When was the last time you saw him? ~2J A: Approximately a month ago. He has now [23J scheduled me for a one-year return visit. [24J Q: So your next appointment is not until next May? [25] A: I believe so, yes, Mayor June. I see Page 62 [lJ Q: Do you do it on a computer at home, or do you [2J do it at a golf club, or how do you do it? ~] A: Neither. Simply informally. [4) Q: Where do you play golf? [5J A: I play any number of places. I don't have a [5] particular club that I play at. [7) Q: You say you do hunt. Is this for deer? [BJ A: Primarily for large game, yes. [9J Q: Did you hunt the last couple of seasons? [10] A: Yes. [11] Q: Did you score anything? [12] A: Yes. [13] Q: Why is it that you don't play stickball, [14J basketball, or water ski? [15] A: I don't play stickball any longer because, [16J frankly, I can't see the ball clearly enough to [17) be able to participate in that sport.Again, [18J I'm a right-handed batter. The left eye is the [19J eye that, obviously, you are going to use to [20] focus on the ball coming. So that is out of [21J the question. [22] Golf, you know, again, for the same [23J reason. It's the left eye focus. ~4] Basketball and water skling I have given [25] up primarily at the advice of - the concerns, Page 64 [1] Dr. Weller tomorrow. ~J Q: What do you see him for? [3J A: Routine follow-up. [4] Q: And how often are you seeing Dr. Weller? [5J A: Every six months. [~ Q: Are you taking any medications or anything like [7) that for your eye? [BJ A: No. ~J Q: Do you have to wear any special patch on it in [10] the evening or anything like that? [11J A: No. [12] Q: Does it cause you any pain as you sit here and [13] talk to me this afternoon? [14J A: No, not physical pain. [15] Q: Understood. Does it tear up or drip or [16J anything like that? [17) A: No. [lB] Q: Did you make a claim for workers' compensation [19] benefits as a result of this incident in [20J January of 1999? [21J A: No. [22J Q: You're not receiving workers' compensation [23J benefits from Hartford Insurance Company as a ~4] result of the stickball accident? [25] A: I believe the Hartford may have paid the Page 61 - Page 64 (1S) Filius & McLucas Reporting Service, Inc. Min-U-Script@ ,~' ,-~ ",,""',,'~ -" ""~ '.'-._E ~~~_ ~. . Douglas Deitrich & Lucinda Deitrich v. Craig Charles ,. , ~~- I~" "~_~ ._ J; Page 65 Douglas L. Deitrich June 14, 2001 [1] initial office visit and a follow-up visit. .'] 0: Where did you learn that? [3J A: I'm sorry. Where did I learn - [4] 0: Where did you learn that Hartford had only paid [~ for the initial visit with Dr. Prensky and [6] possibly a follow-up visit? Where did you find [7J that out? [8] A: I'm sorry. You'll have to ask me the question [9] again. [10] 0: Where did you learn that Hartford had only paid [HJ for the initial office visit with Dr. Prensky [12] and possibly the follow-up visit as well? [13] A: I believe that is what they have paid based on [14] what I have been told. [1~ 0: That's what I'm trying to get at. Who told [16] you? [17) A: I believe that information came from [18] Dr. Prensky's office, who told me at some point {19j that the Hartford had been billed and paid for [20] the initial visit, I believe on a follow-up [21] visit they told me that they had also received [2~ payment for a follow-up visit. [23] Subsequently thereafter, as I understand [24] it, the bilis have been forwarded to Blue Cross '5] and Blue Shield. Page 67 [1] 0: Your wife has filed a loss of consortium claim [2] in this case. Do you know what that means? [3] A: Yes, I do. [4] 0: I figured, being in the insurance business, you [5] would. Stuff that you can't do around the [8] house that you used to be able to do. What's [7J the basis for her claim? Do you know, or wonld (8J I have to ask her? ~J A: I think the basis of her claim - But, again, [10] I'm speculating here to some extent, obviously, [H] because I can't speak for her. But the basis [1~ of her claim is really more an issue of what I [13] may not be able to do into the future and that [14] she may have to begin to do if the eye should [1 ~ either worsen or I should sustain a retinal [16J detachment and lose vision in that eye, which [17) is, as I understand it, a very real [18] possibility. [19] 0: What's the current status of the right eye, the [20] prognosis for that right eye? [21] A: It is stable. It is also evaluated every year [22] for ongoing potential problems, complications [23] arising from the prior retinal detachment in [24J that eye. [2~ I have what is called a scleral buckle Page 66 [lJ 0: So do you recall one way or the other whether [2] or not you filled out - and I'm not a camp [3J lawyer - an application for workers' [4] compensation benefits? [~ A: I have never filled out an application for [6] workers' compensation benefits. [7J 0: Or someone at PHICO on your behalf filled out [8] such an application? [~ A: I do not know that. [10] 0: Do you know if Blue Cross-Blue Shield has paid [11J the remainder of those medical bills? [1~ A: Yes, they have. [13] 0: Off the top of your head, do you know what the [14] total of those medical bills is? [1~ A: No, I do not. I'd have to estimate, and I'd [16] have to do that based on number of visits times [17) some arbitrary amount per visit. [18] 0: That's okay. We can get that information. [19J Other than Drs. Prensky and Weller, have [20] you seen anybody else since January 1999 for [21] your left eye? ,~ A: No, I have not. [23] 0: Was your right eye affected at all as a result [24] of this incident? [25] A: No, it was not. Page 68 [1] procedure having been performed on that eye to [2] reattach, as best you can reattach, the retina. [s] I can see with it. [4] My nearsightedness, which I am an [~ extremely nearsighted individual, was made [6] worse from that prior injury such that [7) obtaining 20/20 vision with my right eye, while [8] it's possible, is enormously difficult because [9] of the severity of the myopia because of that [10] prior injury as well as my just generally being [HJ a nearsighted person. [12] 0: So right now the right eye is stable, hasn't [13J had any changes one way or the other for the (14] last several years. Is that right? [1~ A: No significant changes. [16] 0: What changes have occurred then at all? [17) A: Very minor prescription change. Simply with [18] the normal aging process the eye doesn't react [191 as it would when it was much younger. [20] 0: You testified earlier, Mr. Deitrich, that you [21J don't recall any plaques regarding any PHICO [2~ stickball league or tournaments or matches or [23J games, whatever you want to use.Wasn't that [24] your testimony before, you don't recall any [25] such thing? .0: Filius & McLucas Reporting Service, Inc. (19) Page 65 - Page 68 Min-U-Script@ '-",1,~","""a<~ ="~~IWiit'..;"""",,-~ " > w=" " DOllglas L. Deitrich June 14,2001 ..""'~~--'. I' ~' ~ !~" . oj, _ ~ I",. Douglas Deitrich & Lucinda Deitrich v. Craig Charles [1] A: Related to stickball? [2] Q: Yes. [3] A: Yes. I recall no such plaque or trophies or [4] anything of that nature. [~ Q: Were there plaques or trophies for other [6] recreational sporting activities that took [7] place on the PRIeD premises? [9] A: Yes. [9] Q: Like what? [10] A: Volleyball. [11] Q: Is it a plaque for volleyball? [12] A: Yes. [13] Q: What did the plaque say? [14] A: I believe it indicated like such and such year [15] champion or something of that natnre, as well [16] as there is a plaque hanging in the gynmaSium [17] with respect to basketball years ago. My name [18] happens to be on that plaque for a three-on- [19] three basketball tournament. [20] Q: Are many of these plaques still On the wall [21] today? [22] A: They are still there, yes. [23] G: Are they on the wall at the gym, or where are [24] they displayed? In a case or wall? [2~ A: No. They're on the wall in the gym. Page 691 Page 71 [1] COMMONWE\LTH OF PENNSYLVANIA) ) 5S. [2] COUNTY OF DAUPHIN [3] l. Glenda S. Travitz, Registered Professional Reporter and Notary Public in and [4J for the Commonwealth of Pennsylvania and County of Dauphin, do hereby certify that the [5] foregoing testimony was taken before me at the time and place hereinbefore set forth and that [6J it Is the testimony of: [7] DOUGLAS L. DEITRICH [8J t further certily that said witness was by me duly sworn to testlfy the [9J whole and complete truth in said cause; that the testimony then given was reported by me [10] stenographically and subsequently transcribed under my direction and supervision and that the [11] foregoing is a fuJi, true and correct transcript of my original shorthand notes. [1] MR. FOLAND: That's all I have. Thank 121 you. ~] MR. BRENNER: I have no question~ for [4] Mr. Deitrich. [5] (Whereupon, the deposition conCluded at [6] 3:13 p.m.) [7] [9] [9] [10] [111 t12] [13] [14] [15] [1~ [17] [18] [19] [20] [21] [22] [23] [24] [2~ [12] Page 70 I further certify that I am not counsel [13] for nor related to any of the parties to the foregoing cause, nor employed by them or [14] their attorneys and am not Interested In the subject matter or outcome thereof. 11~ Dated at Harrisburg, Pennsylvania, this [16] 3rd day of July 2001. I1n [19] [19] Glenda S. Tmvnz Registered Professional Reporter [20] Notary Public [21] (The foregoing certification of this transcript does not apply to any reproduction [22] of the same by any means unless under the direct control and/or supervision of the [23] certifying reporter.) [24] [2~ Page 69 . Page 71 (20) Filius & McLucas Reporting Service, Inc. Min-U-Script@ ,,- ~ ~"~~ ~-~~. " . , ~rt ~I~t:~ II I In The Matter Of: Douglas Deitrich & Lucinda Deitrich v. Craig Charles Craig D. Charles June 14, 2001 Filius & Mclucas Reporting Service, Inc. 1427 East Market Street, York, PA 4309 Linglestown Road, Harrisburg, PA (717) 845-6418 or (717) 236-0623 Original File CC061401.PRN, 29 Pages Min-U-Script@FileID: 1428237001 Word Index included with this Min-U-Scrip"h ~!~".-"i"".'<< I~.o ""~"" ' .._. - Douglas Deitrich & Lucinda Deitrich v. 'Craig' Charles 1 J. ~ craig U. LnarleS June 14, 2001 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS DEITRICH and LUCINDA DE]TRICH, Plaintiffs. Vs. . Civil Action - Law . Number 00-8572 CRAIG CHARLES, Defendant . ............ . Jury Trial Demanded Deposition of: CRAIG 0, CHARLES Taken by : Plaintiffs Date : June 14, 2001,3:15 p.m. Place : GOldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, Pennsylvania Reporter : Glenda S. Travltz Registered ProfessIonal Reporter Notary Public APP<ARANCES: GOLDBERG, KATZMAN & SHIPMAN, P.C, By: THOMAS E. BRENNER, ESQU]RE For ~ Plaintiffs THOMAS, THOMAS & HAFER, LLP By: BROOKS R. FOLAND, ESQUIRE For - Defendant ALSO PRESENT: DOUGLAS L. DEITRICH Page 2 [1] INDEX [2] WITNESS [3] CRAIG D. CHARLES [4l By Mr, Brenner [5] 15] [7] [8] [9] [101 111] [12] [13] [14] [15] [15] [17] [19] [19] [20] ]21J 2] ]23] [24] ]25] Examination 3 Page 3 [1] STIPULATION [2] It is hereby stipulated by and between [3] counsel for the respective parties that [4] reading, signing, sealing, certification and [5] fding are hereby waived; and all objections [6] except as to the form of the question are [7] reserved to the time of trial. [8] [9] CRAIG D. CHARLES, called as a witness, [10] being duly sworn, testified as follows: [11] EXAMINATION [12] BY MR, BRENNER: [13] Q: Would you state your name please, siI. [14J A: Craig David Charles. [15] Q: Mr. Charles, what is your present address? [16] A: Three Spend-A-Buck Drive, Dill5burg 17019. [17] Q: We met earlier, Mr. Charles. My name is Tom [18] Brenner. I represent the interests of Mr. and I19J Mrs. Deitrich in this matter. [20] You just sat through Mr. Deitrich's [21] deposition. I think you have an idea of the [2~ format and procedure we're going to follow. [23] Just let me review briefly a couple of ground (24) rules, [25] If I ask a question that you don't Page 4 [1] understand, tell me that, and I'll rephrase the [2] question. As you can see, there's a young lady ~] down at the end of the table that's making a [4] record for uS here today. So it's important [5] that you understand the questions before you [6] answer them. [7] Make your answers oral so that she can [8] hear something and take it down.A gesture or [9] nod of the head is not going to be picked up. [10] You're represented here by counsel. If {11] you want to take a break and talk with your 11~ attorney at any point, you can do that. [13] I don't think we'll be overly long. But [14] if for comfort reasons you want to take a [15] break, just say so, and we'll stop the [15] proceeding, [17] How old are you, sir? [18] A: Forty. [19] Q: Are you a native of this area? [20] A: Lansdale, Pennsylvania, I was born. [21] Q: How long have you lived in Central [2~ Pennsylvania? [23] A: I would say since 1976. [24] Q: How long have you worked for PHICO? [25] A: Since December 1993. Filius & McLucas Reporting Service, Inc. (3) - Page 4 Min-U-ScriptGl ~~~,... ~~- .~"-~.~~,- ~ ~~ Craig D. Charles June 14, 2001 ,- J" " , ' ~ I , A'-':;"'\i Douglas Deitrich & Lucinda Deitrich v. Craig Charles Page 5 [1] Q: Did you have any insurance background before [2] coming to PHICO? (3] A: Yes. (4] Q: For whom did you work? [5] A: Transpon Insurance Company. [6J Q: What were your job duties or position at (7] Transpon? [8] A: Litigation claims handler. [9] Q: How long were you with Transpon? {1O] A: A year and a half. From August of '88 until {11J February of 1990. (12] Q: You indicated you staned with PHICO in '93, I [13J believe. What did you do between February of (14] '90 and December of '93? (15] A: I worked for Gary Lightrnan law offices from [16] about March of '90 until April of '92. [17] Q: What did you do for Mr. Lightrnan? [18] A: I was a personal injury plaintiff's attorney, (19] also handled divorce, child custody, suppon ~O] matters, and then did state police, municipal ~1] police disciplinary hearings. ~2] Q: April of '92 you leave Mr. Lightrnan. I believe ~3] you told us you staned with PHICO in December ~4] of '93. What did you do between April of '92 ~5] and December of '93? Page 7 (1] A: Claims specialist. (2] Q: What do you do day to day in that position? (3] A: I do some medical malpractice cases. I do (4] staff privileges, directors and officers, and (5] employment practices liability cases. (5] Q: Is there a panicular territory that you're (7] assigned to? (8] A: Across the country. (9) Q: Back in January of 1999 did you work on a [10] regular basis with Mr. Deitrich at that time? [11] A: Yes. {12] Q: What was your position at that time? Do you {13] recall? (14] A: Corporate claims specialist. [15] Q: Other than your work with PHICO and your law [16] practice, any other gainful employment that [17] you're involved in at the present time? [18J A: No. (19] Q: We had asked in the written discovery requests ~O] for information about insurance, and I know ~1] your Travelers policy was identified, and I (22] believe you're being represented presently ~3] under that policy by Mr. Foland's office. [24J Some persons have personal umbrellas and ~5] excess policies, and I think you're familiar [1] A: I had my own law practice. ~] Q: Do you have a current state license? [3] A: Yes. (4] Q: You kept that up? [5] A: Vh-huh. (6] Q: Are you doing any legal work at all at the (7] present time? (8] A: Yes. [9) Q: Do you still maintain an office? (10] A: Yes, out of my home. [11] Q: What son of legal matters do you handle [12] presently, just in a general sense? (13] A: Personal injury, some domestic, a myriad of (14] things. Mostly family, friends of family. (15] Q: Out of your home. So this would be out ofthe [1 ~ Dillsburg area? [17] A: Yes. [18] Q: Do you maintain any staff to assist you with (19J your law practice? (20] A: My wife is my secretary. She does all the [21J computer work. {22] Q: Have you worked continuously with PHICO since {23] December of 1993? (24] A: Yes. {25] Q: What is your current position with PHICO? Page 6 Page 8 (1] with those terms from your work. Do you or (2] your household maintain any other personal [3] insurance that might be applicable to this [4] matter? (5] A: No, not that's applicable to this matter. (6] Q: Do you have other types of personal insurance? (7] A: Yes. [8) Q: What types of insurance do you maintain? {9J A: Auto insurance as well as legal malpractice. (10] Q: Have you ever had a personal umbrella or excess [11] policy? {12] A: No. [13] MR. FOLAND: Off the record. (14] (Discussion off the record.) BY MR. BRENNER: Q: Stickball at PHICO, when did it begin that (1~ (16] [17] you're aware of? [18] A: Around the general time that Doug said it began [19J in 1998. [20] Q: He remembered fall, and then thinking back [21] later he thought maybe it was a little earlier. [22] What's your best recollection of when it ~3] started? [24] A: I think it informally started between a couple ~~ teams. Like Batry got together with Jim and Page 5 - Page 8 (4) Filius & McLucas Reporting Service, Inc. Min-U-Script@ ~,,"I' '''1.''''''''".4' ~ '.""~ ~ - Douglas Deitrich & Lucinda Deitrich v. . Craig Charles . ~,~, Craig D. Charles June 14,2001 [1] played a couple guys sometime in the middle of '2] '98. Then word got around, and then a formal [3] league started sometime around late '98 but [4] didn't end until, say, March of '99 or [5] somewhere in there. [6] Q: So this league that you're referring to, late [7] '98 into '99, this is the first occasion that [8] there was some type of league for the [9] stickball? [10] A: Yes. [11] Q: The matches before that or games or whatever [12J were get together tomorrow after.r;toon and we'll [13] play each other type thing? [14] A: Yes, informally. [15] Q: Who was involved in setting up this league, as {1SJ you referred to it, in late '98 into '99? [H] A: Well, it's one of those things that came [18] together, and I kind of assumed the [19] resporulibility of setting the league up because [2OJ a lot of teams, apparently, were playing each ~1] other - I shouldn't say a lot. Several teams [22] were playing each other. It piqued interest in ~3] other people who like to do those type of ~4] things. So we decided to organize. '25] Q: When you say "we decided to organize," who was Page 10 [1] involved in organizing? [2] A: Probably me; Barry Persofsky, the CEO; his son [3] Noah Persofsky: and Shawn Sullivan, who I [4] believe played initially there: Joe Palumbo. [5] Just the people who were there at the time as [5] word got around. [7] Q: What was done to get this league going? Were [8] people asked to sign up? Was there some [9] written solicitation? How do you remember that [10] coming together? [11] A: Well, like I said, earlier it was informal. [12] Then Once we decided that we had - And I say [131 we.At this point I wasn't exactly the person [14] to go to. I kind of fell into that.We [15] decided something should be organized formally, [16] and I volunteered to make a schedule up, and it (17] just went from there. /18] Q: I know there were questions asked of [19] Mr. Deitrich about a schedule, and I know [20] there's been a discovery request generated to ~1] the company for a copy of the schedule. Do you (22] have a copy of the schedule or whatever that ,23] existed in '98 or '99? ~4] A: No. [25] Q: Do you recall how many teams were involved in Page 9 Page 11 [1] that '98, '99 schedule? [2] A: I think we might have had eight to ten teams. [3) Q: These would have been two-man teams? [4J A: Two-man teams. [5] Q: Any women involved in this program at all? [5] A: No. [7] Q: Were there any rules? [8] A: Yes. [9] Q: Was there a list of rules? [10] A: Initially there was - I wouldn't say [111 arguments, but there were disagreements over [121 where a foul ball was, where a home rUn was, [13] those type of things. [14] In the first season, I sent around about [15] 15 stickball rules that ended up being modified (16] in subsequent seasons. Then once everybody [1~ knew the rules, I JUSt didn't send them around [181 anymore. [19] Q: Those rules as existed for that fltst season, ~O] do you have a copy of those yet? {21] A: No. [22] Q: Other than the schedule and the rules, were [23] there any other written directions, memos, ~4] anything at all about this stickball program [25] that you can recall? Page 12 [1] A: Some e-mails at PHICO. [2] Q: What would have been the subject in the [3] e-mails? [4] A: For example, this team canceled this game. [5] Could you reschedule it with - Here's the /5] standings, that kind of - [7] Q: In terms of equlpment, was there ever any [9] directive to the persons participating about [9] either what equlpment they should bring or what [10] equipment was available to them? [11] A: No. Just informally they knew that there was [12] equipment available from the equipment room. [13] If we ran out of tennis balls, somebody would [14] usually come up with a pack of tennis balls. I [15] think the tennis balls that PHICO supplied at [16] that point initially were the ones when we [1~ started the league that were in the equipment [19J room. We tore them up so much that people just [19] had to bring them in. ~O] Q: Just so we understand the equipment, a [21] regulation tennis ball would be the ball that ~2] was thrown for the batter to hit: is that 1231 correct? ~4] A: Yes. [25] Q: Would the pitcher wear a baseball type glove? Filius & McLucas Reporting Service, Inc. (5) Page 9 - Page 12 Min-U-Script@ "'*'.....,..._~'><.,-...j.'j!lt"~'._...""" Craig D. Charles Jun~ 14, 2001 . u. -, -' ,'~'" J>ii,;.., Douglas Deitrich & Lucinda Deitrich v. Craig Charles [1] A: Sometimes. [2] Q: The other person on their team, would they play [3] a defensive field position? [4] A: Yes, depending on whether it was a right. or [5] left.handed batter. [6[ Q: Would the fielder wear a glove? [7] A: Yes, usually. [6] Q: The bats that were used, were they regular [9] baseball or softball type bats or was there [10) some restriction on what could be used? [11] A: They were softball bats from our PRICO softball [12] league. [13] Q: Any limitation on size, weight, dimension, [14] anything of that son for the bats? [15] A: Well, no, no formal limitation. A lot of {16J different items were brought in to be used as [17] bats, you know, like sticks or little kids' [16] plastic, big bats. But basically we just used [19] aluminum softball bats. [20] Q: How about the distance? If y<m stood out to [21] throw the ball, do you agree with Mr. Deitrich [22J that there was a taped square on the wall to [23] serve as the strike zone, if you will? [24] A: Yes. [25] Q: What was the distance, as you recall it, back Page 13 Page 15 [1] stickball match had staned? [2J A: Yes. [3J Q: And in terms of who threw the ball that struck [4] Mr. Deitrich, you would agree that it was your [5] throw that struck Mr. Deitrich? [6] A: That's correct. [7] Q: Do you remember what time you arrived in the [6] gym that morning? [9J A: Not exactly. I think it may have been around [toJ - Games usually started at seven, 7:15. So [11] it was probably around ten of seven. [1~ Q: As best you recall, what you did from the time [13] you arrived to the time of the throw that [14] struck Mr. Deitrich. Walk through that with us [15] please, [15] A: I was warming up, throwing the tennis ball [17] against the wall. Jim Miceli was - As I'm [16] facing the wall where Doug is standing,Jim [19] Miceli was on the far left. Barry Persofsky [20J was right next to me, and I was on the far [21J right. [2~ Q: Mr. Deitrich recalled that there was a period [23] of time that maybe all four of you were [24] throwing balls against the wall. Do you [25] remember that? [1] in '99,January of '99, the distance from where [2] a pitcher would srand to where that square on [9] the wall was? [4J A: My recollection is it was around 55 feet. Now, [5] it's srill there in the gym if anybody wants to [6] go measure it, but 1 believe we measured it one [7] time. ['] Q: How about safety equipment, was there any [9] requirement that, for example, batters wear [1~ helmets or anything of that son? [11J A: No. [1~ Q: Any type of padding, shin guards, any type of [13] shoulder padding, anything of that son? Any [14] requirements for that? [15] A: No requirements for that. [16J Q: Bringing your attention forward to January 5th [17] of 1999, do you recall that day? [16] A: Yes. [19] Q: Was there to be a stickball game that was going [2OJ to occur a little later in the morning [21J involving you and Mr. Deitrich and [22] Mr. Persofsky and Mr. Miceli? [23] A: Yes. [24J Q: Are you in agreement that when the injury [25] occurred this was a time before the actual Page 14 Page 16 [1] A: 1 don't recall that personally. It may be that [2] that's correct. [3] Q: Just prior to the time that he was injured, his [4] position - You've told us about the three [5] people out away from the wall. Was he in [6J closetto the wall at that point? [7J A: When he was injured? ['] Q: Yes. [9] A: Which wall are you talking about? [to] Q: The wall where the target or strike zone is [11] located. Was he in closetto that wall than [1~ your position where you were throwing the ball? [13] A: Yes. [14] Q: Just to set this, at the time that he was [15] injured, were the three of you-yourself, [16] Mr. Persofsky, and Mr. Miceli-still out, if [17] you will, away from the wall facL'lg the wall [16J that the balls were being thrown against? [16] A: Yes. [20] Q: In terms of the target on the wall and where [21] you were standing to throw the ball, where were [2~ you in relation to that target at that time? [23J A: 1 was approximately five to ten feet left of [24] that target. [25] Q: If we can, we're looking across the table at Page 13 - Page 16 (6) Min-U-Script@ Filius & McLucas Reporting Service, Inc. ,""""'., -..."",,~,- "-~~.~ -,.-' ..~ Dou~las Deitrich & Lucinda Deitrich v. Craig Charles ..1 ,,,~~~,~" , ~'t!i Craig D. Charles June 14, 2001 Page 1 9 {1] each other, and try to help us on the record. :<J If I'm standing in the area of where the target ~] is, you would be five or ten feet left of that (<] as you're facing the wall; is that correct? [S) A: Yes, because I was to the ieft of the pitcher's [5] tape, and the pitcher's tape I remember was to I7J the right. I always have a way of looking down fa) before I throw in my warmup. {'1 Q: Is the pitcher's tape in a position that it is, {iD] if you will, directly aligned with where this [11J strike Zone is on the wall? [12] A: Yes. {13] Q: Where was Mr. Deitrich just prior to the time {14] you made the throw that struck him? [15] A: JUSt prior to when I released it? [16J Q: Yes. [1 ~ A: He was to the right of the box. I remember {18] when I released it I saw it going towards him. {19] So I have the mental picture of exactly what [20] was happening. He was to the right of the box [<l] and turning around. [2~ Q: Just so I'm clear on this, when you say to the [23] right of the box - Again, appreciating the [24] position, we're sining across the table from ,5] each other. If I'm in the area of the box - Page 17 {1] were you attempting to throw it when you [2] released the ball? {3] A: At the far wall straight in front of me. {4] Q: If the ball had followed the path that you [5] intended, it would have struck the wall, and {6] Mr. Deitrich would have been several feet right {7] of where it struck the walLIs that correct? [8] A: Yes. {O] Q: I have to ask this question so we have it on [10] the record. Did you intend to throw the ball [llJ at or near Mr. Deitrich when you teleased it? {12] A: No. [13] Q: Fair statement, did the throw get away from you [14J as you threw it? [15] A: Yes. It's early in the morning. Throwing it, [16] it's different than in the afternoon. You're {17] not warmed up, and all kinds of strange throws [18] {19] Q: In terms ofthrowing in the stickball league. {20] do you and others as pitchers experiment with {21] c1ifferent grips on the ball to try to make the {22] ball do different things as it's coming towards {23] the baner? {24] A: Not necessarily. I can speak for myself. You {25] can't do that with a tennis ball because it's [lJ And I assume that's the strike zone you're [2] talking about. [3] A: Vh-huh. {4] Q: You would be, if I'm looking straight ahead, to {5] the left of that, where you're standing with [6] the ball. From that position of the box, [7] Mr. Deitrich would be farther to the right of {8] that at the point in time that you threw the {O] ball that struck him. Is that correct? [10] A: Well, he was turning around. It's c1ifficult {11] because you have a box on the wall instead of {1~ - You don't have a batter's box. He was in [13] the batter's box where you would stand to hit [14] the ball, which was actually left of - He was {1~ standing left of the box on the wall. [16] So l1e was getting ready to swing his bat [i~ through the box on the wall, or he was putting [18] himself in a position to swing his bat through {19] the box on the wall. 120] Q: He recalled that he thought he might have been 121] eight feet away from where that box oothe wall '22] was when he was struck. Would you agree or {23] disagree with that statement? [24] A: I would disagree. [2~ Q: The ball that was thrown that struck him, where Page 18 Page 20 [1] got fuzz around it, but a baseball or softball {2] you can because it's got a different type of {3] cover. {4] Q: Did you have a chance to alert Mr. Deitrich in {5] any fashion-sound, noise, scream, whistle- {6] that you perceived that the ball was heading [7] for him and try to alert him that it was [6] coming? {9] A: No chance. No chance. {10] Q: From the time that you released the ball until [11] it struck him, can you give us an idea of what {12] we're talking about? Seconds, less than {13] seconds? [14] A: I would just have to estimate how long it takes [is] a ball to get 55 feet. It seemed like a split {16] second, but maybe a second and a half, {17] something like that. {18] Q: But in terms of an effort to alert him, you had {19] no opportunity to do that; is that correct? {20] A: No. I mean that is correct. [21] Q: Did you attempt to alert him in any fashion? {22] A: Your mind says do it, but it happened so fast 123] that there was just no time to get it out. By {24] that time, he was down on his knees. {25] Q: You had mentioned the distance. If you're Filius & McLucas Reporting Service, Inc. Min-U-Script@ (7) Page 17 - Page 20 ~.~ "'~''''' ~~-~.,"-,,~ "'" ~".,---~"'" ~ Craig D. Charles . . . June 14, 2001 -,~ '...........Jm _ ..c'.~ "'""" , Douglas Deitrich & Lucinda Deitrich v. Craig Charles [1] standing directly in frOnt of the square on the (2) wall, that would have been about the 55 feet. [3J A: Yes. [4] Q: Would you agree with me that with your being [5J positioned not directly on that line but off to [6] the side the distance that the ban traveled [7) until it struck him would probably have been (8) more than 55 feet? [9] A: I'm sure there's some formula for this, but I [10] would say maybe a foot more than 55 feet. [11J Q: You were not trying to throw the ball in a [12] position near him so that he could take a swing [13] or attempt to take a swing as a baner would at [14] that ball: is that correct? [15] A: That's correct, because when I first saw him [16] when I released the ball he wasn't even ttttned [17] around yet. [18] Q: He recalled doing various stretching exercises [19J with the bat in terms of getting himself ready. (20) When you were releasing the ball, which [21] direction was he facing at that time? Do you [22] recall that? [23J A: Wen, I remember when I released the ban [24J seeing him just turning his head like this, and [25] I mean right - The ban was right - As he [1] got his head (demonstrating), the ban was [2] there. There was nothing he could have done. [3J Q: Do you believe then that when you released the [4] ball he was not looking at you? [5) A: I don't know what he was doing prior to the (6) release of the ball. [7) Q: But you have this recollection that as the ban [a] is heading in his dire<:tion you remember his [9] head rotating in a situation that came directly [10J in line with the ball? [11J A: It only takes a Split second to do that. When [12) you're walking from the right to the left of [13] the box, to turn around, it's only a split [14J second. I'm sure there was a split second [15) where he was not facing me. [16) Q: When had you last thrown the ball before you [17] made the throw that ended up hitting him in the [18] head? [19] A: I can't recall. [2oJ Q: He recalled that Mr. Miceli was throwing the [21] ball, and he thought you and Barry were having [22] a discussion about something ior a period of [23] time and may not have been throwing the ball [24J for some period of time. (25) Do you have a re<:ollection of talking to Page 21 Page 23 [1] Barry a bit before you made the next throw? [2] A: Not specifically, but I'm sure we did talk, and [3] not before throwing the next throw. I know you [4] talk back and forth. You throw a couple [5] pitches, and then you talk a little bit more. [6] So I can't tell you what the sequence of [7) throwing versus talking was. [aJ Q: There could have been a pause of maybe a few [9] seconds or some period of time between throws [10J as you and Barry exchanged comments? [11J A: Sure. [12J Q: And the ball that was thrown and struck him, ir [13] was a standard tennis ball? [14] A: Yes. [15J G: After the injury occurred, do you remember [16) Mr. Deitrich being down on his knees? [17] A: Yes. [18J Q: You came to his aid at that time? [19] A: Yes. [20] Q: What did you do for him in that time when he [21J was in the gym? Do you recall? [22] A: We were looking for his contact lens on the [23J floor. That's the first thing I recall. He (24) was looking down, so I didn't see where exactly (25) he was struck. Page 22 Page 24 [1] Q: He recalled going into the locker room or [2] something and coming back out after I guess [3] looking in the mirror and seeing his eye. Do [4] you remember him coming out and saying, Look at [5) my eye? [6) A: No, I don't rememberthat. [7) Q: Did you get a look at his eye that morning [8] before he left PHICO to go to Dr. prensky's )9] office? (10) A: Yes. [11J Q: What do you remember seeing? [12] A: It was red. I thougbt it would get black and [13] blue the way it looked. [14] Q: Is it correct that you actually drove him to [15) Dr. prensky's office? [16] A: No. I drove him home in his truck. [17] G: Did you have any conversations with (18) Mr. Deitrich that day or subsequently trying to [19] figure out what happened and why the ball went [2DJ from your hand and ended up striking him in the [21] face? (22) A: We didn't speak about exaCtly why it came out [23] of my hand the way it did and struck him in the [24] face. We talked generally about his injury. [25) Q: Did you ever indicate to him that as you were Page 21 - Page 24 (8) Min-U-Script@ Filius & McLucas Reporting Service, Inc. .~ -~,...~"~~ ---"- Douglas Deitrich & Lucinda Deitrich v. , Craig Charles - -< ... ~~.-~~{; .~ , ,~ Craig D. Charles June 14,2001 Page 25 Page 27 1'] throwing the ball it had slipped out of your '2J grip and that's what you believe caused it to [3] strike:: llrm? 14] A: I don't know if I used the word slipped out of 15] my hand. I might have used the phrase it was 16] an errant throw, something like that. Again, [?J remembering specific, shon conversations three 18] years ago is difficult. 19] Q: Did you complete any rype of paperwork for [10J PRICO, any rype of event repon or injury [11] repon or anything of that son that was filed 11<] with. the company with regard to this incident? [1~) A; I don't recall that. I don't recall filling [14] out anything for PRICO. I may have been asked I"] about it from - No, I can't recall anything. [1f3} 0: There were questions raised about Hartford had I"] apparently paid a conple of medical bills with I,"] regard to this. Were you ever contacted by [1OJ Hartford and asked what had happened either in [20] an interview situation or fill out any [21] paperwork for them? [22J A: I don't believe so. 12'J Q: With regard to your own homeowner's carrier, [24] Travelers, did you ever provide a statement or ~S] fill out any forms for them relating what had [1J or something that would have been transcribed, [2] being taken of hitn? [3] A: Again, I don't have personal knowledge of what [4) Travelers did and who they interviewed. but I IS} don't believe that they - You know, I may be 16] wrong. I can't say. (7) Q; I'm just asking your recollection, because 18} we've indicated earlier from records there's no I~ indication of statements. I'm just asking if 110} you're aware of any that would prompt funher [11] research. 1121 A: I don't know if they even called them 1'3] informally. [14] Q: There was one other person identified in some 115] of the record notices about this case, a Cindy [16} Rossboro. Do you know who that is? 117] A: Yes. That was Barry's secretary. 118] Q: Was she in the gym when this happened? [19J A; No. But she would probably have knowledge 120] through what Barry might have said happened. [21J Q: If you will, she wasn't a person who was [22] present who would have been an eye witness, if [23J you will, to something? [24] A: There were only four people with firsthand [2S] knowledge. 11] happened? I2J A: Yes. 13] Q: What did you do for them that you recall? [4] A: 1 believe I gave them a statement over the IS] phone as to what happened. [6] Q: Have you ever seen that statement? 171 A: No, not in paper form. No. [8] MR. BRENNER: Let's go off the record for (9] a moment. [10] (Discussion off the record.) 111] BY MR. BRENNER: [12] Q: Just so we're clear on this point - we 113] discussed it off the record - you recall being [14] interviewed over the phone? 116] A: By the Trave1ers adjustor, yes. I don't know [16] if he recorded it or what he did. I don't [17] remember that, 118] Q: The other rwo persons present in the gym when [16] this occurred, Mr. Miceli, are you aware of any [:10] statement being taken from him that were either 121} written or recorded with regard to what he may '22] have observed that morning? .<3] A: No. [24J Q: Mr. Persofsky, the former CEO of the company, 125] are you aware of any statements, either written Page 26 Page 28 11J MR. BRENNER: Let's take a break for a [2] second. [3J (Recess taken.) [4] MR. BRENNER: I have no funher questions IS} of Mr. Charles at this time. [6] MR. FOLAND: No questions. [7] (Whereupon, the deposition concluded at 18] 3:50 p.m.) [9] 110] 111] 112J 113] [14] 115] [16] [17] 118] [19] [20] [211 [22] 123] [24J [25J Filius & McLucas Reporting Service, Inc. Min-U-ScriptlID (9) Page 25 - Page 28 -'".........~..~"= . Craig D. Charles June i':i, 2001 Page 29 [1] COMMONWEALTH OF PENN8YI-VAN[A) ) 88. [2] COUNTY OF DAUPHIN [3] I, Glenda S. Travitz, Register$d Professional Reporter and Notary Public in and (4] for the Commonweallh of Pennsylvania and County of Dauphin, do hereby certity that the [5] foregoing testimony was taKen before me at the time and place hereinbefore set forth and that (6] 11 Is the testlmony of: [7] CRAIG D. CHARLES [8] I further certify that said witness was by me duly sworn to testify the [9] whole and complete truth In said Cliuse; that the testimony then given was reported by me {to] stenographically and subsequently transcribed under my direction and supervislot'l and that the (11) foregoing Is a full, true and correct transcript of my orlginal shorthand notes. 112] I further certify that I am not counsel [13] for nor related to any of the parties to the foregoing cause, nor employeCJ by them or [14] their attorneys and am not Interested In the subject matter or outcome thereof, [i5] Dated at Harrisburg, Pennsytvania, this [i 6} 4th day of Ju~ 2001. [i7] [18] 119] GlendaS. Travitz Registered Professional Reporter [20] Notary Publlc [211 (The foregoing certification of this transcript does not apply to any reproduction [22} of the same by any means unless under the direct control andlor supelVlslon Of the [23] certifying reporter.) [24J [25} l' ". , -~ _, ,_, r", Douglas Deitrich & Lucinda Deitrich v. Craig Charles Page 29 - Page 29 (10) Min-U-ScriptIID Filius & Mducas Reporting Service, Inc. . . :il,lli.)iii'iIU~~\fci=\,j;-,",,,,i"'8>i!IJ.<:;,;..miM~~'~ib~O<>'I;~lMef,'_M-,d,J--M*I;;41~__r,,"-.~-illi1M~~~ihl_ --..""'''"''" ~~~;"='H.",~,;;g'iI!!I;;ji;i;i,hl~'~",~1 ~-- ~, :l L UlI II '1 ~ ,_ __ .M")I,<_",,,,__,,w,'~>ru'.> ,..~' - n ~; ~(:f;~ Zr'- ~)?;: rob ~. e(~} ~'C~I Pc: ~ ~ ~ C:) o " ::,;J l~hiill E~~ ;---1;1 ~~ 0'''' """' :b -< "~ -':"J "''':::: r'0 '-1 ~ '='? 0'1 Thomas E. BreDDer. Esquire I.D.#32085 GOLDBERG, KATZMAN & SIDPMAN, P.C. 320 Market Street P. 0. Box 1268 Harrisburg,PA 17108-1268 (717) 234-4161 Counsel for Plaintiffs DOUGLAS DEITRICH and LUCINDA DEITRICH, Plaintiffs v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW CRAIG CHARLES, Defendant : NO: 00-8572 : JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, come the Plaintiffs, by and through their attorneys, Goldberg, Katzman & Shipman, P.C., who state: 1. Admitted with clarification. Neither the employment nor the status of Defendant Charles as a partner in a stick ball league, were involved in the injury to the Plaintiff Douglas Deitrich. 2. Admitted with clarification. The employment of Plaintiff Deitrich and Defendant Charles are not material to the incident resulting in injury to Douglas Deitrich. 3. Admitted. 4. Denied in part. PHICO employees were notto use the gym during work hours. 5. Admitted. ,<'-.--',---,,- 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied. 10. Denied. 11. Denied in part. available for any use. 12. Admitted. 13. Admitted. 14. Admitted. The equipment room contained various sports equipment 15. Denied as stated. It is admitted that Defendant Charles was throwing a tennis ball against the wall. Plaintiff was not in the area of a batter's box when he was struck by the errant throw. 16. Admitted. 17. Admitted. 18. Admitted with clarification. Plaintiff was not participating in a stick ball match when he was struck by the throw of Defendant. 19. Admitted. 20. This paragraph states a conclusion of law to which no response is required. 2 '~"",""'- ..,-'-.'-',_Lc".- ;", .,-,c"i",,,,, . 21. Denied. 22. Denied. This paragraph states legal conclusions which are inapplicable to this case. 23. The answers to paragraphs I - 22 are incorporated herein by reference. 24. Admitted. 25. Denied. Doug Deitrich was not participating in a stick ball game at the time of the incident. Moreover, Doug Deitrich was standing away from the area where Defendant was throwing the ball and it was only as a result of the negligent throw of Mr. Charles that Doug Deitrich was struck. 26. Denied. This paragraph states legal conclusions inapplicable to this case. 27. Denied. This paragraph states legal conclusions inapplicable to this case. 28. Denied. This paragraph states legal conclusions inapplicable to this case. 29. Denied. This paragraph states legal conclusions inapplicable to this case. 30. Denied. This paragraph states legal conclusions inapplicable to this case. 31. Denied. This paragraph states legal conclusions inapplicable to this case. 32. Denied. This paragraph states legal conclusions inapplicable to this case. 33. Denied. This paragraph states legal conclusions inapplicable to this case. 34. Denied. Doug Deitrich was not participating in a sporting activity when Defendant Charles negligently threw a ball striking him near the eye. 3 '-i~'-,"__ '. 35. Denied. This paragraph states legal conclusions inapplicable to this case. 36. Denied. This paragraph states legal conclusions inapplicable to this case. 37. Denied. This paragraph states legal conclusions inapplicable to this case. 38. Denied. This paragraph states legal conclusions inapplicable to this case. 39. Denied. This paragraph states legal conclusions inapplicable to this case. 40. Denied. This paragraph states a legal conclusion to which no response is necessary. 41. The answers to paragraphs 1 - 40 are incorporated herein by reference. 42. Denied. This paragraph states a legal conclusion to which no response is necessary. 43. Denied. This paragraph states a legal conclusion inapplicable to this case. 44. Denied. This paragraph states a legal conclusion inapplicable to this case. 45. Denied. The injury did not occur in the course or scope of employment. 46. Admitted. 47. Denied. This paragraph states a legal conclusion inapplicable to this case. 48. Denied. This paragraph states a legal conclusion inapplicable to this case. 49. Denied. This paragraph states a legal conclusion inapplicable to this case. 4 50. Denied. The mere fact that the injmy occurred on an employer's premises at a time when Doug Deitrich was not engaged in work activities, does not show that it is a This paragraph states a legal conclusion inapplicable to this case. This paragraph states a legal conclusion inapplicable to this case. This paragraph states a legal conclusion inapplicable to this case. This paragraph states a legal conclusion inapplicable to this case. This paragraph states a legal conclusion inapplicable to this case. This paragraph states a legal conclusion inapplicable to this case. 57. Denied. This paragraph states a factual conclusion that is not supported by the facts and circumstances of this case. 58. Denied. Plaintiff's injmy did not occur during participation in a stick ball league game. 59. Denied. This paragraph states a legal conclusion to which no response is necessary. work related injmy. 51. Denied. 52. Denied. 53. Denied. 54. Denied. 55. Denied. 56. Denied. 5 .,.----"-,,-,+- WHEREFORE, Plaintiff Douglas Deitrich respectfully requests that Defendant's Motion for Summary Judgment be denied. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: ,/7) , ~ Thomas E. Brenner, Esquire Attorney 1.0. No. 32085 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintijft Date: ). - 6 - 0 J-.. 6 ",",,-- - ".h-->'.--' CERTIFICATE OF SERVICE I, hereby certify that on this it!:.... day of February, 2002, a true and correct copy of the foregoing document was selVed upon the following by depositing same into the United States Mail, first-class mail, postage pre-paid to: Derek Bahl, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 GOLDBERG, KATZMAN & SHIPMAN, P.C. ~ By: Thomas E. Brenner, Esquire Attorney for Plaintiffs ~~~' ,;- "Jiilmil_diIllJ '"'-"!1:J,1IJ: ,,"~ "''''''~~''','__1-''"""," ,~'" ;.,..--Mim....~*~-'> - ~- -, - ,,~" ,"d .~~~- '":~ ?.. r~' ",. - - "",;., " ,,". 0 c~~ () C r') '"I-j -::;-,;." ..,., ~, r:-' .~ r'( iT'i 7 co,!:] ::~.,,- -' , ,~- C/i CC -<~ ~~~~ C )> ". , ..... C '-"..,l ~ -".1" '1-': L, :::> ~,., -""1 n', ~, -~ -~ .' f1 ~<' .-.. , " -,' . ',-. ~-~ ,,--~ - ':',-- , DOUGLAS DEITRICH AND LUCINDA DEITRICH, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CRAIG CHARLES, DEFENDANT 00-8572 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY. J AND GUIDO. J. OPINION AND ORDER OF COURT AND NOW, this ORDER OF COURT ~ day of March, 2002, the motion of defendant for summary judgment, IS GRANTED. . ~as E. Brenner, Esquire For Plaintiffs ~ek D. Bahl, Esquire For Defendant Edgar B. Bayley, J. t opies f\)~\~d.. 03-07-0;).lR{f / :saa i """"', , ~ ' ., ><. ,,-'~ ,~- -,-,_. -;.,.- ~\LF:Q' r\.:,:nCE ~j.:, !~','\'r\~(I\f'I'\"( \ n',.,:,'-kr in nc ,-", 02 loW) -11 PH It: 11 ~ 1"'0'\1\ .... CUlv;Br:kl.ilNJ COUI~iY 'PENNSYLVANIA , " 'jlll l! 'T - .,_~.;.., ...~_.~., .'c~__ ~'__,'_~_'" ^~ ",r. h>. ~'. >,,_,~_ - ~~'A.'__" - ''''-.''~~''~ . "..,-",.,- =O"",,~"~'\!f'II~~~~""!,*11~f1't~paw~1iI'>~~~"'h,,., !..r.HlI'JlIJi-\\'1!!!mI'l!!!I~!!I!"","Wjl"1 ~~ ..,~ -" _>_"-,"=>'-J~_";"''''_' ,-,,~ '-''''_'''_''; DOUGLAS DEITRICH AND LUCINDA DEITRICH, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CRAIG CHARLES, DEFENDANT 00-8572 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY. J AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., March 6, 2002:-- Plaintiffs, Douglas Deitrich and Lucinda Deitrich, his wife, instituted this suit against defendant, Craig Charles, for damages resulting from an injury to the eye of Douglas Deitrich on January 5, 1999. Defendant filed a motion for summary judgment that was briefed and argued on February 13, 2002. In deciding the motion, "we must view the record in a light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Washington v. Baxter, 719 A.2d 733 (Pa. 1998). The record in a light most favorable to plaintiffs is as follows. Douglas Deitrich and defendant were employees of PHICO at its Cumberland County headquarters. PHICO operates a gymnasium which is attached to the headquarters. Only PHICO employees, family members of employees and guests of employees are permitted to use the gymnasium. The gymnasium can be used before, during, and after work hours. PHICO employees enter the ~- < , ,-,-, "';.-1 00-8572 CIVIL TERM gymnasium with a passkey provided by PHICO. Plaintiff and defendant were in a stickball league made up of PHICO employees. A schedule setting up stickball matches was prepared by defendant, it was distributed to league participants, and a PHICO email system was used to notify its participants of schedule changes and league standings. Equipment stored in the gymnasium was available for use by stickball league participants. On January 5, 1999, plaintiff and defendant went to the gymnasium at approximately 7:00 a.m., to participate in a league stickball match before going to work. Plaintiff, defendant, and two other men were warming up by throwing tennis balls against the wall about 25 to 30 feet away. The men were standing about eight feet apart. Plaintiff who was to the right, and next to defendant, decided to stretch with a bat. He walked to his left behind the other men, and then went to the wall where they had been throwing balls, to get a bat. He got a bat and walked along the wall in front of the other men who stopped throwing so he could get to the other side. Plaintiff went to a taped square box at the front of the wall which was about eight feet to the right and 25 to 30 feet to the front of defendant. He began stretching with the bat similar to how a golfer uses a golf club to stretch. After about two minutes, defendant threw a ball that instead of it hitting the wall, accidentally struck plaintiff in the left eye. Plaintiff alleges that defendant was negligent in striking him in the eye with the ball. Defendant filed this motion for summary judgment, maintaining that (1) he owed plaintiff no duty of care, and (2) plaintiffs remedy is exclusively under the Pennsylvania Worker's Compensation Act. As to the first proposition, in Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. 2000), the Superior Court of Pennsylvania stated: -2- ,- , - c. ., , ." ,'_ ~".,^-. .'oi-.. -"-, ,,; 00-8572 CIVIL TERM Our supreme court appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court's duty analysis, and not a matter for jury determination. Howellv. Clyde, 533 Pa.151, 160-64, 620A.2d 1107, 1112-13 (1993) (plurality). See also Struble v. Valley Forge Military Academy, 445 Pa.Super. 224, 232, 665 A.2d 4, 8 (1995). In Hardy v. Southland Corp., 435 Pac Super. 237, 243-45, 645 A.2d 839, 842 (1994), appeal denied, 539 Pac 679, 652 A.2d 1324 (1994), this court concluded that until the supreme court adopts clearer standards, assumption of risk should be analyzed according to the lead (plurality) opinion in Howell. Under this "modified" form of the doctrine, assumption of risk is no longer an affirmative defense in most cases;6 rather, it is incorporated into an analysis of whether the defendant owes a duty to the plaintiff. Id.; Zinn V. GichnerSys. Group, 880 F.Supp. 311, 318 (M.D.Pa. 1995). "Howell states that the trial court is obligated to review the factual scenario and determine whether '[u]nder those facts, . . . the defendant, as a matter of law, owed the plaintiff no duty of care.''' Hardy, 645 A.2d at 842, citing Howell, supra at 162-64, 620 A.2d at 1113. This court has also held that "a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries." Struble, 665 A.2d at 6, citing Long V. Norriton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995), appeal denied, 544 Pac 611, 674 A.2d 1074 (1996) (emphasis in Struble). As the plurality observed in Howell, supra, "the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury." Howell, supra at 162, 620 A.2d at 1113 (plurality). As the Howell court continued, "If, on the other hand, the court is not able to make this determination and a nonsuit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory." Id. The Howell court noted that "[u]nder this approach. . . assumption of the risk would no longer be part of the jury's deliberations or instructions." Id. (Footnotes 5 and 7 omitted.) (Emphasis added.) 61n products liability cases, assumption of risk is still analyzed as an affirmative defense rather than as part of a 'no duty' analysis. Hardy, 645 A.2d at 842. -3- 00-8572 CIVIL TERM See also Romeo v. Pittsburgh Associates, 787 A.2d 1027 (Pa. Super. 2001). In Bowser v. Hershey Baseball Association, 357 Pac Super. 435 (1986), the defendant operated a baseball program. The plaintiff was a commissioner of one of the leagues. During tryouts, batters would bat from a point between home plate and a backstop. Except for the pitcher, batter, and on-deck batter, all other players were scattered on the field. As part of his duties to ensure that each participant was evaluated, the plaintiff kept track of the roster, and called participants from the field to bat. After he had been standing behind the backstop for about two hours, the plaintiff walked to a player's bench where other adults were standing. As he turned his back to call on two more participants, he was struck in the eye by a batted ball. In affirming a compulsory nonsuit against plaintiff, the Superior Court concluded that the plaintiff voluntary exposed himself to the risks inherent in baseball, such as being hit by a batted ball, thus, defendant owed no duty to plaintiff. In Johnson by Johnson v. Walker, 376 Pac Super. 302 (1988), the Superior Court of Pennsylvania stated that "[u]nless the record reveals a duty owed by [defendant] to [plaintiff], the foundation of a negligence claim is absent, thus, [plaintiff has] no basis for recovery." The facts were that the plaintiff and the defendant were playing one-on-one stickball on a street in Philadelphia. After two innings, the defendant asked the plaintiff if he could take a turn at bat. The plaintiff handed the broomstick/bat to the defendant and proceeded to walk to a car about ten feet away. A few minutes later, the plaintiff saw defendant swing at a ball, hitting it in his direction. Before he could react, the ball struck the plaintiff in his right eye, causing him to lose sight in the eye. In upholding a grant of summary judgment by the trial court, the Superior -4- ,-. , .'--C,'- ,"- - . - ,', - " " 0' 00-8572 CIVIL TERM Court stated: We find nothing on the record which evidences, even remotely, a cause of action against appellees for negligence. The deposition testimony reveals the boys were playing ball in a normal fashion, according to the rules as they knew them with no one acting in a dangerous or unreasonable manner and no horseplay was involved. Obviously, foul balls do occur and unfortunately this one hit appellant in the eye. As tragic as it may be, accidents happen everyday in which people get hurt and often no one is at fault. Appellants would have us find that in any situation where someone is hurt by an inadvertent and unintentional act of another, the actor should be liable. We refuse to hold to such an extreme result. In Oliver v. Chartiers-Houston Athletic Association, 28 D. & C.4th 484 (Washington County 1995), the facts were: On May 8, 1992, the minor plaintiff, Nicholle Oliver, was struck in the head by a softball at Hickory Field, Mt. Pleasant Township, Washington County, Pennsylvania. Resolving facts and inferences in favor of the plaintiffs, as we must, the court finds that although Nicholle was dressed in her softball uniform, she was not going to play that day. As members of her team were engaged in warm-ups prior to the game, Nicholle was standing and talking to some teammates at a point off the field of play but near the batting cages. Robin Theiss, one of the defendants, retrieved a softball which she had missed catching; she picked up the ball and threw it back to her teammate in the path of the area where Nicholle was standing. Unfortunately, the ball struck Nicholle in the right temple, causing serious injuries. Citing Bowser v. Hershey Baseball Association, supra, the trial court concluded: [w]e note that the Bowser court refused to distinguish a tryout from an actual game. The same situation is extant in this scenario: the plaintiff was standing off the field itself, but the fact that no actual game was in progress is of no moment. Whether spectator or participant, Nicholle was in the zone of danger, and one within this zone must assume the common, frequent, and expected risks inherent in the sport. These risks include being struck by a batter ball and an errant ball thrown by another participant. Moreover, whether she was near the batting cage or off the main field of play is of no real concern in this context. The record shows she was near the playing field itself, not in an area protected from the field. As a matter of common knowledge, risks inherent in warm-ups are more likely to be more serious, for in warm-ups many youths are throwing and -5- """""""""'"""" ".. -"',-- ,'~.-.' ~., ','- '.;; ~,;!: , , 00-8572 CIVIL TERM catching many balls. * * * In the instant case the minor plaintiff was in uniform, a member of the team, though she would not be playing that day. She knew warm-up was going on. She was standing and talking to her friends, at a place near the main field where the warm~up was taking place. The no-duty rule applies to this situation where the risks are common, frequent, and expected: the minor plaintiff can be properly charged as a matter of law with the risk of being struck by a softball improperly thrown by other participants during warm-up. The analysis made by the trial court in Oliver, which we view as correct, fits the facts in the case sub judice. The no-duty rule applies here because plaintiff was warming up on the gymnasium floor where defendant and others were throwing tennis balls nearby. The risk of being accidentally struck by an errantly thrown ball during warm-ups for the stickball game was a type of common, frequent, and expected risk inherent in such an athletic activity. Accordingly, the following order is entered.' ORDER OF COURT AND NOW, this ~ day of March, 2002, the motion of defendant for summary judgment, IS GRANTED. , This resolution makes it unnecessary to decide if plaintiffs remedy is exclusively under the Pennsylvania Worker's Compensation Act. -6- -"'- , ,'-' "I ~~"~:"-r~ ~, 00-8572 CIVIL TERM Thomas E. Brenner, Esquire For Plaintiffs Derek D. Bahl, Esquire For Defendant :saa -7-