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HomeMy WebLinkAbout01-04178r 4 MURAREM NEZIC Plaintiff VS. ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, :PENNSYLVANIA NO. 01-4178 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED REPLY TO NEW MATTER OF DEFENDANT MOUNTZ 20. Admitted upon information and belief. 21. Admitted that Plaintiff was assigned as a part of his duties to be a fork lift operator. 22. Denied. Plaintiff is without knowledge or information sufficient to answer to the allegations of paragraph 22, such knowledge or information being in the exclusive control of persons other than Plaintiff and therefore denies the same. By way of further answer, Plaintiff never received any instructions or directions from Mountz regarding the performance of his work. 23. Denied. Plaintiff never received directions from Defendant as to the manner of his work performance, and Plaintiff at all times performed his work in a proper, workmanlike manner. 24. Denied. 25. Denied. Plaintiff is without knowledge or information sufficient to answer to the allegations of paragraph 25, such knowledge or information being in the exclusive control of persons other than Plaintiff and therefore denies the same. By way of further answer, Plaintiff never spoke to Mountz about anything. 26. Denied. 27. Denied. The damages and injuries sustained by Plaintiff are as alleged in his Complaint. 28. Admitted in part and denied in part. It is admitted only that a third person intervened after Mountz assaulted Plaintiff and injured him as stated in the Complaint. It is specifically denied that the actions occured "as described in the foregoing paragraphs. 29. Denied. It is denied that the action taken by Defendant occurred in the manner stated and that such action was defensive. 30. Denied. By way of further answer, Plaintiff has had no dental problems and has, at all times, maintained good dental hygiene. 31. Admitted in part. It is admitted that Plaintiff, through his understanding and through the assistance of an interpreter, was able to take direction in the performance of his work. 32. Denied. WHEREFORE, Plaintiff demands judgment in his favor, and against Defendants, in accordance with the allegations of his Complaint. Respectfully submitted, By Andrew I Ostrowski, Esquire Supreme Ct. I.D. No. 66420 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: February 19, 2002 I? VERIFICATION I, Muharem Nezic, hereby state that I am the Plaintiff herein and that I have reviewed the foregoing Reply to New Matter and that the facts stated therein are true and correct to the best of my knowledge, information and belief; and, that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Dated: 02 - 1'K- DZ Muharem Nezic -A ?` I eo.., v 1?/ G iw CERTIFICATE OF SERVICE I, Andrew J. Ostrowski, hereby certify that the foregoing document is being served, by depositing a copy of the same in the U.S. mail, first-class mail, and addressed as follows: Thomas J. Johanson, Esquire Goldfein & Hosmer 1600 Market Street, 33`" Floor Philadelphia, PA 19103-7288 Roger M. Morgenthal, Esquire Fishman & Morgenthal 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 Andrew J. 6strowski 4311 North Sixth Street Harrisburg, PA 17110 717-221-9500 Date: February 19, 2002 r; rl rC _? cn A MUHAREM NEZIC VS. ROSS STORES, INC, and MICHAEL LEE MOUNTZ APR 8 2004 0. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION No.: 01-4178 ORDER AND NOW, on this k day of April, 2004, upon consideration of Plaintiff's Petition for Writ of Habeas Corpus, it is hereby ORDERED that the Warden of SCI Waymartis to arrange for the deposition of Michael Lee Mount-z, FN 1548 on the following date! AM0 at the State Correctional Institute at Waymart. Counsel for Plaintiff is directed to forward a copy of this Order to the Warden and to confirm the necessary arrangements with Defendants' Counsel. J. a k ? u;. r MUHAREM NEZIC COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. CIVIL DIVISION ROSS STORES, INC. and MICHAEL LEE MOUNTZ No.: 01-4178 PETITION FOR WRIT OF HABEAS CORPUS AND NOW comes Plaintiff, Muharem Nezic, by and through his attorney, Andrew J. Ostrowski, Esquire and in support of his Petition for Writ of Habeas Corpus avers as follows: 1. Defendant Michael Lee Mountz, FN 1548, is currently incarcerated at the State Correctional Institution at Waymart. 2. Defendant Mountz is, of course, a material witness to this action, indeed, he is the person who assaulted Plaintiff, and Plaintiff wishes to take Mr. Mountz' deposition prior to listing this case for trial. 3. Inasmuch as Mr. Mountz is in the custody of the Department of Corrections, Petitioner requests the issuance of a Writ of Habeas Corpus Ad Testificandum to the Warden of the State Correctional Institute at Waymart directing the Warden to make arrangements for the purpose of taking the deposition of Defendant Mountz on April 28, 29 or 30, 2004. r WHEREFORE, Plaintiffrespectfiilly request that this Court issue a Writ of Habeas Corpus. Respectfuily submitted, BAILEY, STRETTON & OSTROWSKI By: tIT-17 / Andrew . Ostrowskl, Esquire PA I.D. No.: 66420 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: April 9, 2004 r CERTIFICATE OF SERVICE I, Angela L. Hewitt, an employee of Andrew J. Ostrowski, hereby certify that the foregoing document is being served, by depositing a copy of the same in the U.S. mail, first-class mail, and addressed as follows: Joseph N. Bongiovanni, IV, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1200 1880 John F. Kennedy Boulevard Philadelphia, PA 19103. Roger Morganthall, Esquire 2515 North Front Street Harrisburg, PA 17110-1150 Angela L. Hewitt 4311 North Sixth Street Harrisburg, PA 17110 717-221-9500 Date: April 9, 2004 A t1 N o 'tf N rJ -i7 T n TTI K IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this day of , 2005, upon consideration of Defendant, Ross Stores, Inc.'s Motion for Summary Judgment and any responses thereto, it is hereby ORDERED that: 1. A Rule is issued upon the Respondents to show cause why Ross Stores, hic. is not entitled to the relief requested; 2. The Respondents may file a Response to the Motion for Summary Judgment of Ross Stores, Inc., on or before BY THE COURT: J. PH111924.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC Vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2005, upon consideration of Defendant, Ross Stores, Inc.'s Motion for Summary Judgment and any responses thereto, it is hereby ORDERED and DECREED that the Motion for Summary Judgment is GRANTED and all claims and crossclaims against Ross Stores, Ina are dismissed with prejudice. BY THE COURT: J. PH111924.1 MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: JOSEPH N. BONGIOVANNI, IV, ESQUIRE IDENTIFICATION NO. 87848 1880 JOHN F. KENNEDY BLVD., 12TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 228-69990 MUHAREM NEZIC VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ ATTORNEY FOR DEFENDANT, ROSS STORES, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION NO. 01-4178 DEFENDANT ROSS STORES, INC.'S MOTION FOR SUMMARY JUDGMENT Defendant, Ross Stores, hie., by and through its attorneys, Marks, O'Neill, O'Brien and Courtney, P.C., hereby moves this Honorable Court to grant its Motion for Summary Judgment, pursuant to Pa. R.C.P. 1035.2, as to all parties on all claims for the reasons set forth herein: Plaintiff s Complaint states that on October 29, 1999, Muharem Nezic was assaulted by a co-worker, Michael Lee Mountz, while working at the Ross Distribution Center in Carlisle, Pennsylvania during a regularly scheduled work shift. (See Plaintiff s Complaint, a copy of which is attached as Exhibit "A.") 2. Nezic provided a statement to his employer, Ross Stores, immediately following the assault. Plaintiff reported that he was involved in a verbal argument with Mike Mountz, a Ross Stores' PH111924.1 C co-worker, over roller space that ended in Mountz punching Plaintiff in the mouth. (See, Statement of Muharem Nezic, a copy of which is attached as Exhibit "B.") 3. There was no allegation, in the statement or in the Complaint, that the injuries were not work related or that Nezic was assaulted by the co-worker for purely personal reasons. 4. Nezic filed a Police Report on November 1, 1999, in which he stated that he had been assaulted on October 29, 1999, while working at the Ross Distribution Center by a co-worker. The report stated that, "[T]he incident occurred over a work problem that Mountz [co-worker] tried to rectify through his own personal manner." (See, Carlisle Police Report, a copy of which is attached as Exhibit "C.") 5. There was no allegation, in the Police Report, that the claimed injuries were non-work related or that Nezic was assaulted by the co-worker for purely personal reasons. 6. On January 31, 2001, Andrew J. Ostrowski, Esquire advised Ross Stores that he represented "Muharem Nezic who was injured when assaulted by Michael Lee Mountz [co-worker] on October 29, 1999, during the course of employment." (See, Ostrowski correspondence of January 31, 2001, a copy of which is attached as Exhibit "D.") There was no allegation by counsel that the claimed injuries were non-work related or that Nezic was assaulted by the co-worker for purely personal reasons. 8. Under Pennsylvania Workmen's Compensation Act, 77 P. S. §1 et seq., an employer, such as Ross Stores, shall be liable for compensation for personal injury to an employee for an injury sustained in the course of his employment without regard to negligence. PH111924.1 -2- 9. Plaintiff presented a claim and received benefits, pursuant to the Pennsylvania's Workmen's Compensation Act, from Ross Stores for the injuries allegedly sustained in the assault by a co-worker on October 29, 1999, during the course of his employment over a work problem. 10. On or about July 9, 2001, Andrew J. Ostrowski, Esquire, on behalf of Muharem Nezic, filed a Complaint against Ross Stores and the co-worker, Michael Lee Mountz, for the injuries allegedly sustained by Plaintiff on October 29, 1999, following an assault "during a regularly scheduled shift being worked by Plaintiff." (See, Plaintiff's Complaint, a copy of which is attached as Exhibit "A.") 11. Ross Stores filed an Amended Answer with New Matter to the Complaint on or about September 26, 2001, in which it denied any liability to Plaintiff. (See, Defendant, Ross Stores, hic.'s Amended Answer to Plaintiff s Complaint with New Matter, a copy of which is attached as Exhibit "E.") 12. Ross Stores, in its New Matter, averred that Plaintiff s sole remedy, if any, was under Workmen's Compensation Act as Plaintiff s claimed injuries were suffered while at work as an employee of Ross Stores. (See, Exhibit "E," at Paragraph 7.) 13. Ross Stores filed a Motion for Summary Judgment on January 15, 2002, alleging that Workers Compensation was the sole remedy for plaintiff. 14. Said Motion for Summary Judgment was denied as premature on April 2, 2002. (See, Exhibit "E".) 15. Plaintiff has not, in any pleading, denied that his sole remedy, as to Ross Stores, in under the Workmen's Compensation Act. PHI 11924.1 -3- Y' 16. There is no evidence that the injuries sustained by Plaintiff, Muharem Nezic, were inflicted for personal reasons. 17. During his deposition on October 22, 2003, Plaintiff was asked about his relationship with Mr. Mountz. Said questioning was submitted through an interpreter which explains some of the inconsistencies in the transcript with the personal pronouns. The relevant portions of the deposition are as follows: Q: Did you and Mr. Mountz get along before this incident? A: [Plaintiff] saw [Mountz], but they never had a conversation. Q: [You] never spoke before? A: No. Q: Did [you] have any interactions in the workplace before this incident? A: No, because [we] did not officially meet. (See Exhibit "G," page 15, line 24 through page 16, line 9). 18. During his deposition on March 22, 2005, Defendant Mountz was asked about his relationship with Plaintiff. The relevant portions of the deposition are as follows: Q: Had you ever spoken to him? A: Not really, no. Q: Okay A: I mean, other than what I had to while working with him. But prior to that, I hadn't spoken to him before. Q: Do you recall ever having any personal conversations with him outside the job? A: No. Never. PH111924.1 -4- f Q: Would it be fair to say that all of your conversations with him related to work? A: Right. Of course. (See Exhibit "H," page 13, line 15 through page 14, line 2). 19. Later in the March 22, 2005 deposition, Defendant Mountz was asked again about his conversations with Plaintiff. The relevant portions of the deposition are as follows: Q: Okay. Now, all of the conversations that you just said you had, you talked to him many times about this particular work issue, were they all related to work or was there any personal conversation involved? A: No, this definitely -- oh, I never talked to him about anything outside of work. This all -- definitely all had to do with work at the time, you know, what we were doing, you know, work-wise. (See Exhibit " H," page 19, lines 1 through 10). Mr. Mountz further testified: Q: Okay. But I just want to go back to this one question that I asked you before, about your conversations with him that initiated this physical altercation between the two of you, did they all have to do with work or [Mountz's] job performance, or was there anything personal in nature? A: There was nothing personal -- absolutely nothing personal about it. It all had to do with work. (See Exhibit "H," page 20, lines 8 through 17). 20. Following additional testimony, Mr. Mountz concluded the deposition with the following exchange: Q: I just want to clarify. Is the only communication that you and Mr. Nezic has, was it only about work-related things? A: If you are asking me if I discussed anything other than work with that man, it was only work. I've not once talked to him about anything other than work. Px111924.1 -5- ( (See Exhibit " H," page 43, line 21 through page 44, line 3). 21. Ross Stores, as the employer of Muharem Nezic, is entitled to immunity from civil suit for the alleged negligence causing harm to Plaintiff. 22. Ross Stores, as the employer of Muharem Nezic, also has immunity from the Crossclaim of Co-Defendant. 23. The Complaint of Plaintiff, and any Crossclaim of the Co-Defendant, must be dismissed with prejudice because, as a matter of law, Ross Stores is the employer of Plaintiff Muharem Nezic, and, as such, is immune from suit. WHEREFORE, Defendant, Ross Stores, Inc., respectfully request this Honorable Court grant its Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc., and against all parties. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. By: Josep . Bongiovanni uire Attey for Defendant, Ross Stores, Inc. Date: r ?? bs PH111924.1 -6- MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: JOSEPH N. BONGIOVANNI, IV, ESQUIRE IDENTIFICATION NO. 87848 1880 JOHN F. KENNEDY BLVD., 12TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 228-69990 MUHAREM NEZIC vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ ATTORNEY FOR DEFENDANT, ROSS STORES, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION NO. 01-4178 MEMORANDUM OF LAW IN SUPPORT OF ROSS STORES. INC.'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Muharem Nezic, has filed suit against his employer, Ross Stores, Inc. ("Ross Stores"), and co-worker, Michael Lee Mountz, for claimed injuries, a fractured jaw and the loss of several teeth, following an assault at work by co-worker, Michael Mountz, on October 29, 1999. Nezic and Mountz were employed by Ross Stores at their Distribution Center in Carlisle, Pennsylvania as Merchandise Processors. On October 29, 1999, Nezic and Mountz were operating forklifts in the Receiving Dock area. Nezic was placing empty skids in the Roller Space Line while Mountz was taking loaded skids from the Roller Space Line to the Bulk area. The placement of the empty skids on "the line," by Plaintiff, allegedly interfered with Mountz taking his skids to the Bulk area. PH111924.1 A disagreement arose between Nezic and Mountz over the placement of the empty skids on "the line" by Plaintiff. This work-related disagreement, between co-workers, culminated in Mountz punching Plaintiff in the mouth. In a statement taken from Nezic, immediately following the incident, he reported that he was involved in a verbal argument with Mike Mountz, a co-worker at Ross Stores, over roller space that ended in Mountz punching him in the mouth. (See, Statement of Muharem Nezic, Exhibit "B") Nezic, in the statement, did not claim that the assault was not work related or that the assault by Mountz was motivated by purely personal reasons. Nezic, on November 1, 1999, filed a report with the Carlisle Police Department in which he stated that he had been assaulted, while working at Ross Distribution, over a "work problem" with Michael Mountz, a co-worker. (See, Carlisle Police Report, Exhibit "C.') At no point in time did Nezic claim that the assault by Mountz was not work related or that the assault by Mountz was motivated by purely personal reasons. Nezic received workmen's compensation benefits from Ross Stores following this incident. Nezic, at some point in time, retained Andrew J. Ostrowski, Esquire, as his attorney. Ostrowski, with the knowledge and assent of Nezic, advised Ross Stores on July 9, 2001, of his representation of Nezic "who was injured when assaulted by Michael Lee Mountz [co-worker] on October 29, 1999, during the course of his employment" (emphasis added). (See, Ostrowski correspondence, Exhibit "D.") At no point did Ostrowski allege that the assault by Mountz was not work related or that the assault by Mountz was motivated by purely personal reasons. I 1 It is interesting to note that there was no allegation that the attack was the result of personal reasons until the filing of the Complaint on July 28, 2001, 21 months after the event, in which it baldly Px111924.1 -2- Ross Stores filed an Amended Answer with New Matter to the Complaint on or about September 26, 2001, in which it denied any liability to Plaintiff. (See, Defendant, Ross Stores, hic.'s Amended Answer to Plaintiff's Complaint with New Matter, a copy of which is attached as Exhibit "E.'). In its New Matter, Ross Stores averred that Plaintiff's sole remedy, if any, was under Workmen's Compensation Act as Plaintiffs claimed injuries were suffered while at work as an employee of Ross Stores. (See, Exhibit "B," at Paragraph 7.) Further, Ross Stores filed a Motion for Summary Judgment on January 15, 2002 alleging that workers compensation was the sole remedy for plaintiff. Said Motion for Summary Judgment was denied as premature on April 2, 2002. STANDARD FOR MOTION FOR SUMMARY JUDGMENT Pennsylvania Rule of Civil Procedure 1035.2 governs summary judgment and states, in pertinent part: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for Summary Judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the Motion, including the production of expert reports, and adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial require the issues to be submitted to a jury. was averred, [U]pon information and belief, Mountz' [sic] beating of Plaintiff was motivated by his personal animus toward Plaintiff and not for any employment-related reasons." (See, Exhibit "A," at Paragraph 6.) PHI 11924.1 -3- The Pennsylvania Supreme Court, in Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512 (1996), embraced the reasoning of the U.S. Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986), and Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505 (1986), with regard to the standard of review to be applied to a motion for summary judgment. The court, in recognizing the unreasonableness of "allowing non-moving parties to avoid summary judgment where they have no evidence to support an issue on which they bear the burden of proof," held: [A] non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Id., 674 A.2d at 1042. The burden now rests with the non-moving parties, the Plaintiff and Michael Mountz in this instance, to come forward with evidence to negate the motion for summary judgment of Ross Stores. It is not enough for Plaintiff to avoid summary judgment, to rest on the mere allegations contained in the Complaint. Wilkinson v. K-Mart, 412 Pa. Super. 434, 603 A.2d 659 (1992). Nor is it enough for the Co-Defendant, to avoid summary judgment, to rest on boilerplate averments contained in a cross-claim. SUMMARY JUDGMENT IS PROPER AS TO ROSS STORES, INC. Ross Stores is the employer of Muharem Nezic and is entitled to immunity from civil suit for negligence claims. Pxi 11924.1 -4- As a general rule, the Pennsylvania Workmen's Compensation Act provides the exclusive remedy for an employee, such as Nezic, who seeks recovery for injuries sustained in the course of his employment. Wagner v. Natural Indemnity Co., 492 Pa. 154, 422 A.2d 1061, 1064 (1980). The Act provides a specific exception, however, in cases where the injury is caused intentionally by third parties. Section 301(c) of the Act provides, in pertinent part: The term "injury arising in the course of his employment," as used in this article, shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him an employee or because of his employment... (emphasis added.) 77 P.S. §411(1). This provision of the Act has been narrowly constructed by the courts to allow recovery only in cases where the third party's actions against the employee were motivated by personal reasons unassociated with that particular employee's employment. Bachman Co. v. W.C.A.B. (Spence), 683 A,2d 1305, 1310, 1996 Pa. Cmwth. LEXIS 427 (Pa. Cmwth. 1996). Applying this principle of law to the facts of the case, Plaintiff does not fit within this narrow exception to the Act and Ross Stores is immune from civil suit because Ross Stores is the employer of Nezic. Immediately following this incident, when recollections were fresh and uncluttered by other considerations, Nezic stated that he was assaulted by a co-worker, following a verbal argument over a roller space in the Ross Distribution Center. (See, Statement of Muharem Nezic, Exhibit "B.") The statement provided by Nezic did not make any claim that the assault was motivated by personal animosity, or reasons, between himself and Michael Mountz, a co-worker. PHI 11924.1 -5- The Commonwealth Court, in Bachman Co. v. W.C.A.B. (Spence), 683 A.2d 1305, 1996 Pa. Cmmw. LEXIS 427 (Pa. Cmwlth. 1996), was faced with a similar set of facts. The claimant in Bachman, was assaulted following an argument over his refusal to back-up a company truck while purchasing gasoline. Although the assailant was not a co-worker, the court held that the attack was directly related to claimant's employment because the attack was precipitated by claimant's refusal to back-up the company truck and was not inflicted for personal reasons. As such, the injuries sustained by claimant did not fit within the meaning of the exclusionary provisions of Section 301 of the Act. Id. at 1310. In this case, Plaintiff was assaulted following an argument over roller space in the Ross Distribution Center. Under these facts, the narrow exception to the Act allowing Plaintiff to bring a negligence action against his employer only applies a non-work related act provided the impetus for the assault. Kandra v. W.C.A.B (Hills Dept. Store, 159 Pa. Cmwlth 251, 632 A.2d 1069, 1072 (1993).2 There is no credible evidence that the assault was related to anything but Nezic's employment. There is no evidence, of any type, that a non-work related act provided the impetus for the assault of Nezic by Mountz. Plaintiff, therefore, cannot satisfy his burden of proving that the assault was the result of personal reasons by Mountz. Further support that the claim of Plaintiff, and Crossclaim of Defendant, should be dismissed with prejudice as to Ross Stores is found in the admission of counsel which is binding upon Plaintiff. Counsel for Plaintiff, by correspondence dated January 31, 2001, advised Ross Stores that he 2 Furthermore, there is a rebuttable presumption that an injury is work related, and does not fit within this narrow exception, when it occurs on the employer's premises. Kohler v. McCpz Stores, 532 Pa. 130, 615 A.2d 27, 30 (1992). PH111924.1 -6- represented "Muharem Nezic who was injured when assaulted by Michael Mountz [co-worker] on October 29, 1999, during the course of his employment. (See, Ostrowski correspondence, Exhibit "D.") Plaintiff was "copied" on this correspondence. There was no mention that the assault of Nezic was the result of personal reasons unassociated with Nezic's employment with Ross Stores. Neither counsel nor Nezic repudiated this admission' during the almost six month interval prior to filing the Complaint on, or about, July 9, 2001. Following this Honorable Court's denial of the Motion for Summary Judgment previously filed - said Order specifically denied the Motion as premature - discovery commenced. Quite simply, there continues to be no evidence that the injuries sustained by Plaintiff, Muharem Nezic, were inflicted for personal reasons. During his deposition on October 22, 2003, Plaintiff was asked about his relationship with Mr. Mountz. Said questioning was submitted through an interpreter which explains some of the inconsistencies in the transcript with the personal pronouns. The relevant portions of the deposition are as follows: Q: Did you and Mr. Mountz get along before this incident? A: [Plaintiff] saw [Mountz], but they never had a conversation. Q: [You] never spoke before? A: No. ' Such an admission of counsel is binding and admissible as to a client where, as in this case, the attorney had the authority to make the admission and did so with the full knowledge and assent of his client. Hatbob v. Brown, 394 Pa. Super. 234, 575 A.2d, 607, 613 (1990). PH111924.1 -7- Q: Did [you] have any interactions in the workplace before this incident? A: No, because [we] did not officially meet. (See Exhibit "G," page 15, line 24 through page 16, line 9). During his deposition on March 22, 2005, delayed solely due to scheduling difficulties in locating Mr. Mountz and arranging for his deposition, Defendant Mountz was asked about his relationship with Plaintiff. The relevant portions of the deposition are as follows: Q: Had you ever spoken to him? A: Not really, no. Q: Okay A: I mean, other than what I had to while working with him. But prior to that, I hadn't spoken to him before. Q: Do you recall ever having any personal conversations with him outside the job? A: No. Never. Q: Would it be fair to say that all of your conversations with him related to work? A: Right. Of course. (See Exhibit "H," page 13, line 15 through page 14, line 2). Later in the March 22, 2005 deposition, Defendant Mountz was asked again about his conversations with Plaintiff. The relevant portions of the deposition are as follows: Q: Okay. Now, all of the conversations that you just said you had, you talked to him many times about this particular work issue, were they all related to work or was there any personal conversation involved? PHI 11924.1 -8- A: No, this definitely -- oh, I never talked to him about anything outside of work. This all -- definitely all had to do with work at the time, you know, what we were doing, you know, work-wise. (See Exhibit "H," page 19, lines 1 through 10). Mr. Mountz further testified: Q: Okay. But I just want to go back to this one question that I asked you before, about your conversations with him that initiated this physical altercation between the two of you, did they all have to do with work or [Mountz's] job performance, or was there anything personal in nature? A: There was nothing personal -- absolutely nothing personal about it. It all had to do with work. (See Exhibit "H," page 20, lines S through 17). Following additional testimony, Mr. Mountz concluded the deposition with the following exchange: Q: I just want to clarify. Is the only communication that you and Mr. Nezic has [sic], was it only about work-related things? A: If you are asking me if I discussed anything other than work with that man, it was only work. I've not once talked to him about anything other than work. (See Exhibit "H," page 43, line 21 through page 44, line 3). There is simply no evidence, in the admission of counsel or the extensive discovery that has taken place, that the assault of Nezic was related to anything but Plaintiff's employment. There is no Px111924.1 -9- evidence, in the admission of counsel or the extensive discovery that has taken place that a non-work related act provided the impetus for the assault of Nezic by Mountz. Plaintiff cannot satisfy his burden of proving that the assault was the result of personal reasons by Mountz. CONCLUSION A party opposing a motion for summary judgment must adduce sufficient evidence on the issues on which it bears the burden of proof It is not enough, to avoid summary judgment, for a party to rest on the mere allegations contained in the Complaint or the Crossclaim. The non-moving party, or parties in this case, must come forward with evidence to negate the motion.. Failure to adduce such evidence establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512 (1996). The evidence of record reveals that Plaintiff, Muharem Nezic, reported to both his employer, Ross Stores, and the Carlisle Police Department that the assault, at work, on October 29, 1999, was the result of a work problem. Neither statement contained any allegation that the assault was due to personal, or non-work related, reasons. Counsel for Plaintiff reiterated this admission, with the knowledge and assent of his client, to Ross Stores in his letter of representation. It was not until the filing of the Civil Action that there was a bald averment that the assault was not work related.4 Despite this bald averment, there is no evidence of record to support such a claim. 4rUpon information and belief, Mountz' [sic] beating of Plaintiff was motivated by his personal animus towards Plaintiff and not for any employment-related reasons." (See, Complaint, Exhibit "A," at Paragraph 6.) Px111924.1 -10- Ross Stores has engaged in lengthy -- and costly -- discovery which has further revealed that the altercation was the result of a work problem. The relevant portions of the deposition transcript are attached to this pleading. Muharem Nezic, as an employee of Ross Stores, has forfeited any rights to damages from Ross Stores but for the remedy available under the Workmen's Compensation Act. The immunity from suit afforded Ross Stores, as the employer of Muharem Nezic, mandates that any crossclaim of the Co- Defendant be dismissed with prejudice. WHEREFORE, Defendant, Ross Stores, hic. respectfully requests this Honorable Court grant its Motion for Summary Judgment, enter judgment in its favor against Plaintiff, and dismiss all claims and crossclaims against them with prejudice. By: Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. 'Bongiovanni, IV for Defendant, Date: 014-05 Ross Stores, Inc. PH1119241 -11- - MEUO ' THE HARRISBURG AREA POLICE INFORMATION RESOURCE SYSTEM (ICRIPINC) PAGE: 1 09/10/01 LDK1 CAR2 INC#: CAR 19991001313 DT,TM: 1999 10 31 1755 SUN TO: -- ------------------------------------------------------------------ --------- PUCR: 0450 STATUS: R DT CLEAR: 1999 11 O1 JUV CLEAR: N DIST JUST: 09201 SYNOPSIS: MUHAREM NEZIC CAME ON STATION AND REPORTED THAT HE WAS THE VICTIM OF AN ASSAULT AT ROSS DISTRIBUTION AND WOULD LIKE TO PURSUE A CHARGE OF ASSAULT AGAINST MICHEAL MOUNTZ. BIAS MOTIV - ETHNIC: RELIG: RACIAL: SEXUAL: CRIM SCENE SEARCHED: N PRINTS TAKEN: N BY: # OF OFFENDERS: 1 PHOTOS TAKEN: N BY: WAS THERE A WITNESS .................................................: Y SUSPECT NAME OR GOOD DESCRIPTION ....................................: Y KNOWLEDGE OF SUSPECT LOCATION .......................................: Y DESCRIPTION WHICH IDENTIFIES VEHICLE USED BY SUSPECT ................: N LIMITED OPPORTUNITY FOR SUSPECT TO COMMIT CRIME .....................: Y LIMITED NUMBER OF PERSONS AS POSSIBLE SUSPECTS ......................: Y BELIEF THAT CRIME CAN BE SOLVED WITH REASONABLE INVESTIGATIVE EFFORT: Y BELIEF THAT A MAJOR CRIME CAN BE SOLVED BY PUBLICITY ................: N PRESENCE OF SIGNIFICANT PHYSICAL EVIDENCE TO ID SUSPECT OR ACCUSED..: N PROPERTY WITH CHARACTERISTICS, MARKS, NUMBERS THAT CAN BE TRACED....: N POSITIVE RESULTS FROM A CRIME SCENE EVIDENCE SEARCH FOR PRINTS......: N MODUS OPERANDI: 404 - - - --------------------------------------------------------------------- UCR INCIDENT-CRIME-CODES DESCRIPTION - -- - -- - #CT ------- -------------------------------------------------------------------- 0450 18 2701 Al SIMPLE ASSLT - ATTEMPT TO OR CAUSE BODILY -- INJU 1 ------------------------------------------------------------------------------ NOFF A/C LOC #PREM SUSP-USE CRIM-ACT WEAP/FORC-USED BIAS ------------------------------------------------------------------------------ 13B C 05 00 N 99 00 00 99 METRO THE HARRISBURG AREA POLICE INFORMATION RESOURCE SYSTEM (ICRIPINC) PAGE: 2 09/10/01 LDK1 CAR2 INC#: CAR 19991001313 DT,TM: 1999 10 31 1755 ------------------------------------------------------------------------------ REPORT NO : 01 IC INITIAL CRIME STATUS: 0 ------------------------------------------------------------------------------ LOC, GRID: W SOUTH ST 00053 CARLISLE PA 0400 REPORT OFF: 3 STEPHEN M LATSHAW 11/01/99 1738 PLAT: SECT: P VEH INFO: INS,OUT: I LIGHT: U WEATHER: U TEMP. 999 F ASSIGN OFF: 00/00/00 DUE: APPROV OFF: 31 BARRY E WALTERS 00/00/00 CV HANDBK: N PCCD V/W FORM: N DOM RELAT FORM: N EXT SIGNED DOC: N SEC SURVEY: N DEFERR PROSECUT: N STMT / CONFESS: N ARREST(S): Y FURTHER ARRESTS: N CRIM SUMMONS: Y WARRANT: N REC FOLLOW UP: N REC ASSIGN TO: P MUHAREM NEZIC CAME ON STATION AND REPORTED THAT HE HAD BEEN ASSAULTED WHILE HE WAS WORKING AT ROSS DISTRIBUTION. HE WAS ASSAULTED ON 10-29-99 DURING HIS SHIFT BY MICHEAL MOUNTZ. MR NEZIC WAS PUNCHED IN THE FACE BY MOUNTZ AND HAD TO BE TAKEN TO THE CARLISLE ER. AT THE ER, THEY TOOK X-RAYS AND THERE WAS NO FRACTURE BUT HE HAD SEVERAL TEETH THAT WERE LOOSE DUE THE PUNCH HE RECIEVED FROM MOUNTZ. THE INCIDENT OCCURRED OVER A WORK PROBLEM THAT MOUNTZ TRIED TO RECTIFY THROUGH HIS OWN PERSONAL MANNER. NEZIC AND MOUNTZ WERE BOTH WORKING WITH SKIDDED MATERIAL AND APPARENTLY MOUNTZ BE CAME UPSET WITH THE WAY NEZIC WAS PERFORMING HIS TASKS. ACCORDING TO WITNESSES, MOUNTZ BEGAN TO VERBALLY ABUSE NEZIC. NEZIC, WHO SPEAKS VERY LITTLE ENGLISH, APPROACHED MOUNTZ AND ASKED HIM TO CALM DOWN. AT THIS TIME, MOUNTZ GRABBED A HOLD OF NEZIC BY THE SHIRT AND THREATENED HIM. NEZIC PUSHED MOUNTZ AWAY AND APPARENTLY HIS HAND MAY HAVE STRUCK MOUNTZ. MOUNTZ SUSTAINED NO INJURIES AND ONCE THEY WERE SEPARATED TWO EMPLOYEES, STIPO JURINOVIC AND ALBERTO JOUBERT STEPPED IN AND SEPARATED THE TWO. AFTER BEING SEPARATED, THE WITNESSES HEARD MOUNTZ STATE "YOUR LUCKY THAT I LOVE MY JOB OR ELSE I WILL FUCK YOU UP RIGHT HERE" MOUNTZ THEN TURNED TO LEAVE AND TOOK TWO STEPS AND THEN CAME BACK AND PUNCHED NEZIC IN THE MOUTH. WITNESSES STATED THAT NEZIC DID NOT RETALIATE IN ANY WAY AND JUST STOOD THERE AND STARED AT HIM AND TOUCHED HIS MOUTH. ART KOONCE, A SUPERVISOR AT ROSS DISTRIBUTION CAME TO THE SCENE OF THE INCIDENT AND CONDUCTED AN INVESTIGATION. HIS INVESTIGATION REVEALED THAT MOUNTZ DID STRIKE NEZIC AND THAT MOUNTZ WAS THE AGGRESSOR. NEZIC WAS TAKEN TO THE CARLLISLE ER FOR INJURIES AND MOUNTZ WAS SUSPENDED. MOUNTZ WAS CALLED INTO WORK ON SATURDAY AND HE SPOKE WITH MARK ALTMYER WHO IS IN THE HUMAN RESOURCES DEPARTMENT AT ROSS. AT THIS TIME, MR.ALTMYER INFORMED MOUNTZ THAT HIS EMPLOYMENT AT ROSS WAS TERMINATED FOR HIS ASSAULT ON NEZIC. MOUNTZ WAS AGITATED AND STORMED OUT OF THE BUILDING. I SPOKE WITH MOUNTZ AND HE STATED THAT HE DID STRIKE NEZIC BUT HE SAID IT WAS IN SELF DEFENSE. HE WAS ADVISED THAT HE WOULD BE RELIEVING A SUMMONS TO APPEAR BEFORE DJ CORREAL ON THE CHARGE OF SIMPLE ASSAULT. NEZIC WAS TREATED AT THE CARLISLE ER AND WAS ALSO TO SEE AN ORAL SURGEON FOR HIS TEETH. HE HAS YET TO SEE THE ORAL SURGEON AT THE TIME OF THIS REPORT. A STATUS OF HIS CONDITION WILL METRO THE HARRISBURG AREA POLICE INFORMATION RESOURCE SYSTEM (ICRIPINC) PACE: 3 09110101 LDK1 CAR2 INC#: ------ CAR 19991001313 DT,TM: 1999 10 ----------------- - 31 1755 REPORT ------ -- ----------- NO : 01 IC INITIAL CRIME ----------------------------- --------------------- ------------------ STATUS: -- 0 ------ ----------------------------------------- BE UPDATED WHEN THE INFORMATION BECOMES AVAILABLE. -------------------- - ----------- MUHAREM NMN NEZIC -------------------------------- --------------------- ------------------ RSA: WM 52 -- ----- VICT WITN KEPT-BY --------------------------------------- CDS: 4 7 15 DJ,CRT APPEAR: -- 2 DOB: 470101 SS#: 155021379 RESIDENT STATUS: R HISP: N CUBN: N ADDR: 520 THIRD ST CARLISLE PA 17013 PHONE: 717 249 2469 EMPL: ROSS DISTRIBUTION OCCUP: ADDR: SHEARER DR 01707 WRK HRS: CARLISLE PA 17013 PHONE: 717 240 1407 OLN: WANT CHK: VICTIM - CO-OP: Y TYP-INJ: MT COND: G MED AID: Y TAKEN TO: CARLISLE ER NOTIFIED KIN: N, COR: N, DA: N COMM: ------------------------------------- ALBERTO NMN JOUBERT ------------------------------------- --------------------- ------------------- RSA: WM 30 - WITN --------------------- CDS: 4 15 ------------------- DJ,CRT APPEAR: - 2 DOB: 691008 SS#: 582298134 RESIDENT STATUS: N HISP: H CUBN: U ADDR: 668 SCHUYKILL ST HARRISBURG PA 17110 PHONE: 717 233 0259 EMPL: ROSS DISTRIBUTION OCCUP: ADDR: SHEARER DR 01707 WRK HRS: CARLISLE PA 17013 PHONE: 717 240 1407 OLN: WANT CHK: COMM: ------ STIPO ------------------------------- NMN JURINOVIC --------------------- ------------------ RSA: WM 38 - --- -- -- ------ ------------------------------- WITN --------------------- CDS: 4 15 ------------- - DJ,CRT APPEAR: 2 DOB: 610705 SS#: 180783144 RESIDENT STATUS: R HISP: N CUBN: N ADDR: 519 S WEST ST CARLISLE PA 17013 PHONE: 717 232 0568 EMPL: ROSS DISTRIBUTION OCCUP: ADDR: SHEARER DR 01707 WRK HRS: CARLISLE PA 17013 PHONE: 717 240 1407 OLN: WANT CHK: COMM. ------------------------------- - ---- MICHAEL LEE MOUNTZ -------------------- - ------------------- RSA: WM 29 ------------------- -- -- ------ ------------------------------- ----------------- -- CDS: 1 DJ,CRT APPEAR: 2 ACLU ARREST#: 420121 C/F: DOB: 701026 SS#: 175580543 RESIDENT STATUS: N HISP: N CUBN: N ADDR: 262 MT ZION RD CARLISLE PA 17013 PHONE: 717 245 9019 EMPL: U.S ARMY WAR COLLEGE OCCUP: SALESMAN ADDR: CARLISLE BARRAC99999 WRK HRS: VARY CARLISLE PA 17013 PHONE: 717 240 1407 OLN: 22767108 SUSP PA WANT CHK: Y N 4210 CHAPOSKY GEORGE J COMM: MUTTARI;M NEZIC Plaintiff IN TIIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNS'YL'VANIA VS. ROSS STORES, INC,; and MICIIAEL LEE MOUNTZ, Defendants NO.: OI - i/17? CIVIL ACTION - LAW RECEIVED JURY TRIAL DEMANDED JUL 2 3 2001 MARKS. ASKANAS GENERAL COUNSEL, "HR NOTICE You have been sued in court. Ifyou wish to defend the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 judgement may be entered against you by the court without further notice for any money claimed in the petition or for any other claim or relief requested by the plaintiff. You nay 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 TIC OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GE T LEGAL HELP. Cumberland County Lawyer Referral Service 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 TRUE COPY FRC*( RECORD la Vary to >F; `., I sue; a unto s9 my hant a"9 Vfs to . y,? .:r Y at iiA' . Pa. T day 0 T0/900 2 N3UUM TWO 8499 M 9Za %tld 4Z:TT TO/TC/90 4 fJ' MUHAREM NEZIC Plaintiff VS. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, :PENNSYLVANIA NO.: ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants : CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff, Muharem Nezic, by his attorney, Andrew Ostrowski, Esquire, and in bringing this action before this Court avers as follows: 1. Plaintiff Muharem Nezic, an adult individual, resides at 520 Third Street, Carlisle, Pennsylvania 17013. 2. Defendant, Ross Stores, Inc. is, upon information and belief, a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its registered office or principal place ofbusiness located at 1707 Shearer Drive, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Michael Lee Mountz, an adult individual, resides at 262 Mt. Zion Road, Carlisle Cumberland County, Pennsylvania 17013. 4. At all times relevant hereto, Plaintiff and Defendant Mountz were employed by Defendant Ross Stores Inc.. 1 OTO/9000 N32R[VA IUYD M9 M M %V3 VZ:TT TO/Tc/9o Q 10 5. On Oct. 29, 1999, Defendant Mountz physically assaulted Plaintiff, intentionally and without cause or provocation, by beating Plaintiff with his hands and fists in and around Plaintiff's face and head, fracturing Plaintiff s jaw, causing the loss of several teeth and other contusions and lacerations, for all of which Plaintiff required and sought to medical attention. 6. Upon information and belief, Mountz' beating of Plaintiff was motivated by his personal animus towards Plaintiff and not for any employment-related reasons. 7. The beating Plaintiff suffered at the hands of Mounts occurred on the premises of Defendant Ross Stores, Inc. during a regularly scheduled shift being worked by Plaintiff. 8. Upon information and belief Defendant Ross Stores, Inc. had actual and/or constructive knowledge ofthe violent propensities ofDefendani Mountz through past actions and/or conduct of Mountz where he exhibited such tendencies towards other employees. COUNTI 9, Plaintiff incorporates paragraphs 1-8 of his Complaint as if fully rewritten herein. 10. Defendant Ross Stores, Inc. owes a duty of care to Plaintiff to provide him with a workplace free from the risk of violence inflicted by employees with a propensity for such behavior against other employees for reasons unrelated to their work. 11. Defendant Ross Stores, Inc. was negligent by failing to exercise the degree of care necessary to protect Plaintiff from the violent assault inflicted upon him by Defendant Mountz when Defendant Ross stores Inc. new and/or should have known of the risk of harm to Plaintiff as a result of such actions- 2 OTO/L00Q] NHMA 'INVO 099 M M %Bd 6Z:TT TO/TV/R0 C? D 12. Asa direct and proximate result of the negligence and carelessness ofDefendant Ross Stores, Inc., Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 13. As an additional direct and proximate result of Defendants' negligence and carelessness, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. 14, As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order-to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiff demands judgment in his favor, and againstDefendant Ross Stores, Inc., for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. COUNT TWO 15. Plaintiff incorporates paragraphs 1-14 of his Complaint as if fully rewritten herein. 16. Defendant Mountz' beating of Plaintiff constitutes the intentional tort of assault and battery for which Plaintiff may recover damages at law for the injuries inflicted upon him. 17. As a direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 18. As an additional direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. 3 010/900 (n Na"VM quo 9499 9C6 296 3 BZ'.TT IO/TC/90 19, As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiffdemands judgment in his favor, and against Defendant Michael Lee Mountz, for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. Respectfully submitted, BY Andrew J. Andrew ski, Esquire Supreme Ct. I.D. No. 66420 4311 North Sixth Street Harrisburg PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: July 6, 2001 4 OTO/600(A N32rX m "Ivo 9699 9C6 M %V3 99:TT TO/TC/90 VERMCATTON I, Muharem Neao, hereby state that I am the Plaintiff herein and that I have reviewed the foregoing Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief, and, that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. Dated: 0/7- 06 ° 0/ JA4t0r4W &or- /G Muharem Nenc OTO/OTOIZ Na2RIM RiVO Ot99 9C6 296 %V3 99:TT TO/TC/90 Cent/ Pointe 165 Lennon Lane Suite 101 Walnut Creek, CA 94596 (925) 938-6660 (800) 998-4763 Fax: (925) 9318- 6648 1 FAX To: Tom Johanson Phone: Fax Phone: 215-628-4174 CC: August 31, 2001 RICHARD L. MILLER REMARKS: Please take immediate action to protect Ross Stores, Inc.. We received this yesterday and suspect it is subject to default. Formal transmittal will follow by mail. OTO/T00 Z NaUVM 'IUD 9699 9C6 SZ6 M U:TT TO/TC/90 //?? CARL WARREN ffi CO. ?/ Lnswancc Adjustors Claims Management and Adndnistradon TEN PAGES f 7 55^ ??/ /O •z9 9S t i c CL V lfl t C 4-,e -j- /" 7- ' ,CJ• ?c](- i.(.'?JC.Y? / / l?2-c? L /X.c?u,c.HhJ/? WTllf /"(iK? c:?%? ,9.?on,t,? Q/p?.?-ram-. /???.?K,.•+.s../?,- ?????J/??.. S?n,?c? fz?JSv? ?NO pc.1? t NiS!/iy Vubh? c?) /?(/S f3 10i/C,L_ &-JAS ?tft?:7 sue, rr yla k w /?/ 0-?, rc L. T v t R ?t?rd ALL f j L! y 4W ?o o? off 3 i L?r rl/? tvrORr? 34•J. 5;lfr?? Jai d)V A)Dl' 1 p,•t Xrr el.,01 Ax,(- ?1f?Tv , ANDREW J. OSTROWSKI ATTORINEY AT LAW 2080 Linglestown Road Harrisburg, PA 17110 Telephone: 717-540-9170 January 31, 2001 Ross Stores, Inc. 1707 Shearer Drive Carlisle, PA 17013 ATTN: Liability Claims Re: Muharem Nezic Facsimile: 717-540-5431 Dear Sir and/or Madam: Please be advised that I represent Muharem Nezie who was injured when assaulted by Michael Lee Mountz on October 29, 1999 during the course of employment. Mr. Nezic was seriously injured in connection with that incident and continues to experience pain and suffered permanent disfigurement as a result of the conduct of your employee. Mr. Nezic intends to proceed with appropriate action against Mr. Mountz and/or Ross Stores, Inc. to seek his remedies for these actions and has authorized me to accept $75,000.00 in full and final settlement of any and all outstanding claims he may have. I will look forward to your response. n Si el , Andrew J. Ostrowski • 02 0 /be cc: Muharem Nezic L'ausmowskiWezic-Ross 119.doc GOLDFE/N $ BEN By: Thomas J- n identification No. 1600 Market Street 33rd Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, inc. VS. Plaintiff ROSS STORES, INC. and MICHAEL LEE MOUNTZ Defendant CUMBERLAND COUNTY PLEAS c rn -n C" -v W NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED DEFENDANT, ROSS STORES, INC. AMENDED ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER 1. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 2. Denied. Ross Stores, Inc. is a corporation organized under the laws of the State of California with its principle place of business in Newark California. 3. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 4. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 5. Den' as 6. ant is without sufficient information to form a belief as to the truth of ' Phis paragraph, therefore they are denied. 7. Denied: nt is without sufficient information to form a belief as to the truth of the avernent$ cotakied in this paragraph therefore they are denied. All other allegations in this paragraph are denied as conclusions of law. i COUNTI 8. Answering Defendant incorporates its response to paragraphs 1 through 8 as if fully set forth herein. 9. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 10. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 12. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 13. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 14. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment in its favor and against Plaintiff. COUNT II 15. Answering Defendant incorporates its responses to paragraphs 1 through 14 as if fully set forth herein. 16. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 17. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. i 18. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 19. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment in its favor and against Plaintiff. NEW MATTER 1. Plaintiff claims against Ross Stores, Inc. are barred by the applicable statute of limitations. 2. Plaintiffs damages if any were caused in whole or in part by the negligence/ carelessness and/or recklessness of the Plaintiffs and the right to recover is barred or limited to comparative and/or contributory negligence. 3. Plaintiff assumed the risk of his injuries. 4. Plaintiffs injuries occurred at a location under the control of others and not occupied, maintained or controlled by Ross Stores, Inc. 5. Plaintiffs claims are barred by the Doctrine of Laches waiver and/or estoppel. 6. Plaintiffs injuries were caused by the intentional or negligent acts of another or others for whom Ross Stores are not responsible. 7. Plaintiffs sole remedy, if any, is Worker's Compensation as his alleged injuries were suffered while he was at work by an employee of Ross Stores, Inc. WHEREFORE, Defendant Ross Stores, Inc. demand judgment in it's favor. GOLDFEIN 8 HOSMER Thomas J. Johanson, Esquire ?- Attorney for Defendant, Ross Stores, Inc. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the Answer to Complaint and New Matter was served upon the following via U.S. Mail, First Class, postage pre-paid: Andrew Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 Roger M. Morgenthal, Esquire Fishman & Mogenthal 95 Alexander Spring Road, Suite 3 Carlisle, Pennsylvania 17013-9137 GOLDFEIN & HOSMER c By: THOMAS J. JOHANSON, ESQUIRE DATE : y y ?? MUHAREM NEZIC Plaintiff V. ROSS STORES, INC., and MICHAEL LEE MOUNTZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4178 CIVIL TERM IN RE: MOTION OF DEFENDANT ROSS STORES, INC. FOR SUMMARY JUDGMENT Before HOFFER, P.J., OLER, J. and GUIDO, J. ORDER OF COURT AND NOW, April 2, 2002, after careful consideration of the briefs and oral argument, the defendant's motion is refused as being premature. By the Court, Andrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 For the Plaintiff Thomas J. Johanson, Esquire 1600 Market Street, 33`d Floor Philadelphia, PA 19103-7396 For Defendant Ross Stores Roger M. Morgenthal, Esquire 95 Alexander Spring Road, Ste. 3 Carlisle, PA 17013 For Defendant Mountz e P.J. ? ; t M1, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 15 A. When this happened, he got suspension. And then when Mr. Nezic go to the police, probably police contacted Ross, and then Ross fired him. Q. Okay. So he was fired by Ross I Stores? A. Yes. Q. In his own words, please ask Mr. Nezic to tell me what happened on October 29th, 1999. Pardon me. Have him break up the story in I pieces so you can give me an accurate translation. A. This night was Halloween. They had, like always, come to job. Sometime after dinner something happened with him, and he started to scream on him. At this moment he doesn't understand almost nothing, but he knows what means F word, you know. Q. You can say it. It's okay. A. He say something about fuck. Q. Okay. Do you know why Mr. Mountz was screaming at you? A. He doesn't know what, because he didn't understand anything what he was saying. Q. Did you and Mr. Mountz get along Esquire Deposition Services 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 before this incident? A. He saw him, but they never have conversation. 16 Q. They never spoke before? A. No. Q. Did they have any interaction in the workplace before this incident? A. No, because they did not officially meet. Q. Did they work together? A. Yeah, he work with merchandise driving one side, he does other merchandise on his side. Q. So they did work together? A. Th ey drive merchandise from receiving. He drive for Marlene Fisher, which she was a supe rvisor in his department, and he drive for -- he drive for another area. It's not same area. Q. Okay. Who was Mr. Nezic's supervisor at Ross Stores? A. Mark Garuty. He was actually supervisor for all forklift drivers. Q. And Michael Mountz was a forklift Esquire Deposition Services 13 MICHAEL LEE MOUNTZ 1 Q. Had you known him before this date? 2 A. I didn't know him until -- I think 3 I knew hi m briefly, you know, before -- he was 4 under me before he started, you know, being my 5 helper. I seen him in the store a few times, 6 you know, working, but I didn't really know him 7 until he started -- you know, until they had 8 him as my helper, which was only a couple 9 months, s o... 10 Q. Was it a couple months before this 11 accident or -- 12 A. Might have only been, like, maybe 13 two month s that he was working with me. 14 Q. Okay. Had you ever spoken to him? 15 A. Not really, no. 16 Q. Okay. 17 A. I mean, other than what I had to 18 while wor king with him. But prior to that, I 19 hadn't sp oken to him before. 20 Q. Do you recall ever having any 21 personal conversations with him outside the 22 job? 23 A. No. Never. 24 Q. Would it be fair to say that all of ESQUIRE DEPOSITION SERVICES MICHAEL LEE MOUNTZ 14 1 your conversations with him related to work? 2 A. Right. Of course. 3 Q. okay. Do you recall giving a 4 statement following the accident? 5 A. I'm sure I did. 6 MR. BONGIOVANNI: Okay. This is 7 his statement that was in the personnel 8 file that was produced. 9 BY MR. BONGIOVANNI: 10 Q. Is this your handwriting? 11 A. Yeah, I believe it is. 12 Q. It is? Okay. Does it look 13 familiar to you, this particular document? And 14 take your time if you want to look it over. 15 MR. MORGENTHAL: Is that the only 16 page of it? 17 MR. BONGIOVANNI: Yeah. 18 MS. COOVER: That's what I was 19 going to ask. 20 THE WITNESS: I thought there was 21 more, yeah, because it looks like I 22 didn't sign anything at the bottom and I 23 thought maybe I -- and it looks like 24 unfinished. But yeah, I do... ESQUIRE DEPOSITION SERVICES imm is MICHAEL LEE MOUNTZ . . a 1 BY MR. BON GIOVANNI: 2 Q. Our understanding, because Ross 3 obviously had your personnel file -- and this 4 was the on ly page of it that was in the 5 personnel file. So where the other page would 6 have been, if there were more than one page, we 7 certainly don't know. 8 I'm more going to ask you, though, 9 about some of the details of this particular 10 page, so i t really doesn't matter that there's 11 additional pages. 12 A. Okay. t; 13 Q. If you could just take a moment to 14 read that over. If you have any problems with 15 the readin g of it, let me know. 16 A. It brings back memories. 17 is (Pause) 19 20 Yeah, I do remember this now. 21 Yeah, I re member. 22 Q. Have you finished? Did you have a 23 chance to read it? 24 A. Yeah. ESQUIRE DEPOSITION SERVICES MICHAEL LEE MOUNTZ 19 1 Q. Okay. Now, all the conversations 2 that you just said you had, you talked to him 3 many times about this particular work issue, 4 were they all related to work or was there any 5 personal conversation involved? 6 A. No, this definitely -- oh, I never 7 talked to him about anything outside of work. 8 This all -- definitely all had to do with work 9 at the time, you know, what we were doing, you 10 know, work-wise. 11 Q. Okay. And the actual physical 12 altercation between the two of you, was that at f 13 all -- did that have anything to do with any 14 personal issues between the two of you? 15 A. See, I kind of start to remember 16 what happened was, I went to him to ask him 17 about the order, about what happened here, you 18 know, why he moved my stuff. And I remember 19 that he grabbed ahold of me. He grabbed ahold 20 of my face and pushed me back and snapped my 21 neck back forcefully. And I then remember that 22 I did, you know, kind of lost my temper and I 23 did swing at him and I did hit him. 24 And then they -- you know, after ESQUIRE DEPOSITION SERVICES MICHAEL LEE MOUNTZ 20 1 that, then I think we were separated and I was 2 taken to one room, you know, and I guess I 3 started filling this out. And he was taken 4 somewhere else and they talked to him, you 5 know, as to what happened on his side and they 6 talked to me as to what happened on, you know, 7 my side. 8 Q. Okay. But I just want to go back 9 to this one question that I asked you before, 10 about your conversations with him that 11 initiated this physical altercation between the 12 two of you, did they all have to do with work 13 or his job performance, or was there anything 14 personal in nature? 15 A. There was nothing personal -- 16 absolutely nothing personal about it. It all 17 had to do with work. 18 Q. Okay. 19 A. I went to him nicely to ask him 20 what happened, you know, with my order and, you 21 know, I knew that it was something that, you 22 know, he had done in the past. Okay? But I 23 went to him nicely and it was -- it was nothing 24 personal, it was all about work. It was all ESQUIRE DEPOSITION SERVICES MICHAEL LEE MOUNTZ 43 1 size, is Mr. Nezic larger or smaller than you 2 height and weight-wise? 3 A. He's bigger -- he was bigger than 4 me then. I don't know if he was stronger or 5 anything. He was -- 6 Q. He was generally larger? 7 A. He was larger, yeah. Definitely 8 larger. 9 MR. MORGENTHAL: I think that's all 10 I ha ve. 11 MR. BONGIOVANNI: I have an 12 addi tional question for clarification. 13 14 EXAMINATION 15 16 BY MR. BONG IOVANNI: 17 Q. You just indicated that you felt 18 that it was a communication problem between you 19 and Mr. Nez ic, right? 20 A. (Witness nods head.) 21 Q. I just want to clarify. Is the 22 only commun ication that you and Mr. Nezic had, 23 was it only about work-related things? 24 A. If you're asking me if I discussed ESQUIRE DEPOSITION SERVICES 44 MICHAEL LEE MOUNTZ 1 anything other than work with that man, it was 2 only work. I've not once talked to him about 3 anything other than work. 4 MR. BONGIOVANNI: Okay. Thank you. 5 MS. COOVER: Nothing further. 6 MR. MORGENTHAL: Nothing further. 7 MR. BONGIOVANNI: I have nothing 8 further. Thank you very much for your 9 time today. 10 11 (Witness excused.) 12 13 (Whereupon, the deposition was 14 concluded at 2:54 p.m.) 15 * t r 16 17 18 19 20 21 22 23 24 ESQUIRE DEPOSITION SERVICES VERIFICATION I, Joseph N. Bongiovanni, IV, Esquire, hereby state that I am the attorney for Ross Stores, Inc,; that I am authorized to make this Verification on its behalf; that I have read the foregoing Motion for Summary Judgment; and, the averments set forth therein are true and correct to the best of my knowledge, information and belief. Further, I understand that this Verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Date: b 14 Q Px1119z4.1 y CERTIFICATE OF SERVICE I, Joseph N. Bongiovanni IV, Esquire, hereby certify that a true and correct copy of the Motion for Summary Judgment of Defendant, Ross Stores, Inc. was served via first-class, U.S. mail, postage prepaid, on the parties below listed: Andrew J. Ostrowski, Esquire 2080 Linglestown Road Harrisburg, PA 17110 Roger M. Morgenthal, Esquire Salzmann, DePaulis, Fishman & Morgenthal, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 Date: UJ !? Josep ongiov , Esqu re PHI 11924.1 V ? r r n n? F i r j no 15 S 51? , f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, CIVIL DIVISION Plaintiff No. 01-4178 V. ROSS STORES, INC., and JURY TRIAL DEMANDED MICHAEL LEE MOUNTZ, Defendant ORDER AND NOW, this day of 2005, upon consideration of Plaintiff Muharem Nezic's Response in Opposition to Defendant Ross Store's Motion for Summary Judgment and Plaintiff Muharem Nezic's Brief in Opposition to Defendant Ross Stores, Inc.'s Motion for Summary Judgment, it is hereby ORDERED and DECREED that the Motion for Summary Judgment is DENIED. By the Court: J. BAILEY & OSTROWSKI Andrew J. Ostrowski, Esquire Attorney ID 66420 Sheri D. Coover, Esquire Attorney ID 93285 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 MUHAREM NEZIC, Plaintiff V. ROSS STORES, INC. and MICHAEL LEE MOUNTZ, Defendants ATTORNEY FOR PLAINTIFF Muharem Nezic COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION NO. 01-4178 PLAINTIFF MUHAREM NEZIC'S RESPONSE IN OPPOSITION TO DEFENDANT ROSS STORES, INC.'S MOTION FOR SUMMARY JUDGMENT Admitted. 2. Denied. The referenced document is not signed by Plaintiff and, by its terms, the referenced document is not a statement of Plaintiff s. 3. Denied. In light of the previous answer, this allegation is denied. 4. Denied that Exhibit "C" is a police report "filed" by the Plaintiff. That document is an Initial Crime report prepared by someone other than Plaintiff - namely Stephen Latshaw, who, upon information and belief is a police officer. Further it should be noted that the police report states that the subject of the incident was initially over a work problem, defendant Mountz used a "personal" manner to rectify the situation, and, therefore, acted outside of the scope of his employment during the incident. 5. Admitted as stated, but immaterial. 6. Admitted with the clarification that the statement "during the course of employment" only refers to the time and place of the incident and cannot be construed as a legally binding admission for any purpose whatsoever. Admitted. However, for further clarification, counsel claims that defendant Mountz used means that were non-work related and outside of the scope of his employment to resolve the issue with Plaintiff. 8. The allegation of Paragraph 8 constitute conclusions of law to which no response is required. 9. Denied. While it is admitted that Plaintiff presented a claim for Pennsylvania Workmen's Compensation, Plaintiff withdrew the Claimant's Claim petition before the Plaintiff received benefits. (See, Plaintiff's Exhibit "A", Department of Labor and Industry Bureau of Workers' Compensation, Decision dated July 24, 2003). 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted with the clarification that the referenced paragraph of Defendant's Answer with New Matter constituted a conclusion of law to which, under Pa. R. Civ. P. 1027, no response is require and the allegation is deemed denied. 16. Admitted with the clarification that the method employed by Defendant Mountz to resolve the issue with Plaintiff was outside of the scope of his employment. 2 17. Admitted. However, Plaintiff denies that he had not officially met Defendant Mountz prior to the encounter on October 29, 1999. Defendant Mountz admits in his deposition testimony that Plaintiff was assigned as his helper for several months prior to the incident. The relevant portion of the deposition states as follows: Q: Had you known him before this date? A: I didn't know him until - - I think I knew him briefly, you know, before - - he was under me before he started, you know, being my helper. I seen him in the store a few times, you know working, but I didn't really know him until he started - - you know, until they had him as my helper, which was only a couple of months, so... Q: Was it a couple months before this accident or - - A: Might have only been, like, maybe two months that he was working with me. (See, Plaintiff's Exhibit "B", Deposition of Defendant Mountz. p.13). 18. Admitted. 19. Admitted. By way of further clarification, it is admitted that Plaintiff made the listed statements in his deposition. However, Defendant Mountz asserts that he believed that the problem between him and Mountz had to do with their inability to communicate because of language difficulties. The relevant portion of Defendant Mountz's deposition states as follows: Q: Okay. And did you feel that the behavior you complained to him about was intentional on his part, that he was doing something to gum up the work, shall we say? A: That I do not - - I don't think so. I don't think so. Q: Okay. Could it have ...been a communications problem because of the language? A: I think it was solely a communication problem - - yeah, I definitely think it was just a communications problem. I don't think it was anything to hurt the company or anything, just to hurt me or anything. (See, Plaintiff's Exhibit "B", Defendant Mountz Dep. p. 40-41). Further, although Defendant Mountz stated in his deposition that there was nothing personal about the incident, he admits in his deposition that the lack of communication between Defendant Mountz and the Plaintiff had influenced his feelings about the Plaintiff. In referring to the language barrier, Defendant Mountz stated in his deposition: Q: [W]hen [Plaintiff] did these things, for whatever reason, did that reflect back on your performance with the company? A: Yeah. I mean, if I got questioned or yelled at for not having the orders, you know, there or where this was or where that was, you know and having to constantly, you know, explain, you know, well this happened again, you know. It did affect - - it did affect my performance. I think it definitely affected me. Q: So it was more than just an inconvenience or annoyance to you? A: Yeah. (See, Plaintiff's Exhibit "B", Deposition of Defendant Mountz, p. 41). 20. Admitted. However, by way of further explanation, as stated in paragraph 19, there was a communications barrier that created difficulties in communication between the Plaintiff and Defendant Mountz. 21. The allegations of Paragraph 21 constitute conclusions of law to which no response is required. 22. The allegations of Paragraph 22 constitute conclusions of law to which no response is required. 23. The allegations of Paragraph 23 constitute conclusions of law to which no response is required. WHEREFORE, Plaintiff Muharem Nezic respectfully requests that this Honorable Court deny Defendant Ross Stores, Inc. Motion for Summary Judgment. Respectfully submitted, BAILEY & OSTROWSKI .1 By: A 4ew J. Ostrowski, Esquire orney ID 66420 Sheri D. Coover, Esquire Attorney ID 93285 4311 North Sixth Street Harriburg, PA 17110 (717) 221-9500 CERTIFICATE OF SERVICE I, Sheri D. Coover, Esquire, hereby certify that a true and correct copy of PLAINTIFF MUHAREMNEZIC'S RESPONSE IN OPPOSITION TO DEFENDANT ROSS STORES, INC. 'S MOTION FOR SUMMARYJUDGMENT was served via first-class, U.S. mail, postage prepaid, on the parties below listed: Joseph N. Bongiovanni IV, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. 1880 John F. Kennedy Boulevard Suite 1200 Philadelphia, PA 19103 Roger M. Morgenthal, Esquire Saltzmann, DePaulis, Fishman & Morgenthal, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 By: -I Ga? deFri D. Coover, Esquire Attorney ID 93285 4311 North Sixth Street Harrisburg, PA 17110 Attorney for Plaintiff Dated: 7- 5 2005 0? c ON r? C7 -ca o W f7 ?j IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC Plaintiff NO. 01-4178 CIVIL TERM vs. ROSS STORES, INC.; and CIVIL ACTION-LAW MICHAEL LEE MOUNTZ JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD TO: Muharem Nezic and his Attorney, Andrew J. Ostrowski, Esquire: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Roger M. Morgenthal, Esquire ID#17143 FISHMAN & MORGENTHAL 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC Plaintiff NO. 01-4178 CIVIL TERM vs. ROSS STORES, INC.; and CIVIL ACTION-LAW MICHAEL LEE MOUNTZ JURY TRIAL DEMANDED Defendants ANSWER OF DEFENDANT MICHAEL LEE MOUNTZ AND NOW comes Defendant Michael Lee Mountz and makes the following Answer to Plaintiff s Complaint: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. On the contrary, Defendant was acting in self-defense after being assaulted by Plaintiff; and it is specifically denied that Plaintiff sustained any of the stated injuries; after reasonable investigation, Defendant is without sufficient information to answer the said averments, said information being in the exclusive control of Plaintiff, and proof if relevant is demanded at trial. 6. Denied. On the contrary, Plaintiff had no personal animus toward Plaintiff, and the alleged incident arose while Defendant was attempting to ' P:\rogd2\IWgation\Nezic v. Mountz\Answer & New Matter,doc resolve an employment-related matter when assaulted by Plaintiff, as more particularly set forth in New Matter below. 7. Defendant denies that Plaintiff suffered a "beating" as alleged, but it is admitted that the alleged incident, such as it was, occurred on the premises of Ross Stores, hie., during a regularly scheduled shift being worked by both parties. Denied as a legal conclusion to which no reply is required. By way of further answer, it is denied that Defendant had "violent propensities" or that he had engaged in any conduct that would give rise to such a conclusion. COUNTI 9. Defendant incorporates his answers to Paragraphs 1-8 by reference. 10. Denied as a legal conclusion to which no reply is required. 11. Denied as a legal conclusion to which no reply is required. 12. Denied as a legal conclusion to which no reply is required. By way of further answer, Defendant Michael Lee Mountz denies that Plaintiff suffered the injuries claimed, and proof if relevant is demanded at trial. 13. Denied. After reasonable investigation, Defendant Michael Lee Mountz is without sufficient information to form a belief as to the truth of the averments, and proof if relevant is demanded at trial. PArogel\litigation\Nezic v. Mountz\Answer & New Matter.doc 14. Denied. After reasonable investigation, Defendant Michael Lee Mountz is without sufficient information to form a belief as to the truth of the averments, and proof if relevant is demanded at trial. COUNT II 15. Defendant incorporates his answers to Paragraphs 1-14 by reference. 16. Denied as a legal conclusion to which no reply is required. 17. Denied. After reasonable investigation, Defendant Michael Lee Mountz is without sufficient information to form a belief as to the truth of the averments, and proof if relevant is demanded at trial. 18. Denied. After reasonable investigation, Defendant Michael Lee Mountz is without sufficient information to form a belief as to the truth of the averments, and proof if relevant is demanded at trial. 19. Denied. After reasonable investigation, Defendant Michael Lee Mountz is without sufficient information to form a belief as to the truth of the averments, and proof if relevant is demanded at trial. WHEREFORE, Defendant Michael Lee Mountz requests that your Honorable Court dismiss the Plaintiff s Complaint, with costs on the Plaintiff. NEW MATTER 20. At the time of the alleged incident on October 29, 1999, Defendant Michael Lee Mountz was a forklift operator for Ross Stores, Inc. 21. At said time, Plaintiff was also a forklift operator for Ross Stores, Inc. #Y. PArogef\1itigation\Nezic v. Mountz\Answer & New Mattendoc 22. Defendant Michael Lee Mountz had been given authority by his supervisor at Ross Stores, Inc., to direct the work being done by Plaintiff due to Defendant's greater experience in said work. 23. Plaintiff, for reasons unknown to Defendant, failed to follow directions and apparently intentionally did work incorrectly causing difficulty for Defendant and slowing the work process for the employer. 24. On the date in question, prior to the alleged incident, Plaintiff had taken skids of merchandise and placed them in an incorrect location and possibly hiding them intentionally. 25. When said skids of merchandise were not at their proper location, Defendant, acting for his employer's benefit, went to Plaintiff to question him about the missing skids and to determine the reasons for Plaintiff's actions. 26. Plaintiff became angry at being questioned and grabbed Defendant's face roughly and aggressively with his hand, pushing Defendant backwards. 27. As Defendant was falling backward, he struck at Plaintiff with his left and weaker hand to try to break Plaintiff s grip on his face. 28. As soon as the actions described in the foregoing paragraph had occurred, another employee intervened between the parties and the incident was ended. 29. Other than the defensive action taken by Defendant, Defendant did not strike or touch the Plaintiff in any way. ' P:\rogdk1itiga[ion\Nezic v. Mountz\Answer & New Mattendoc 30. Defendant believes, and therefore avers, that Plaintiff had severe dental problems, not having been examined by a dentist for many years, and any loss of teeth suffered by Plaintiff was a result of poor dental hygiene and was unrelated to the alleged incident. 31. Plaintiff, although believed to be a native of Bosnia, was able to understand and speak the English language sufficiently to understand communications relating to his work duties, and in addition, an interpreter employed by Ross Stores, Inc., was available for his assistance at all times. 32. Plaintiff, through his actions and failure to follow Defendant's directions regarding work, and in grabbing Defendant's face as described, is solely responsible for the alleged incident. WHEREFORE, Defendant Michael Lee Mountz requests that your Honorable Court dismiss the complaint, with costs on the Plaintiff. Respectfully submitted, Roter M. Morgenthal, Esquire ID#17143 Attorney for Defendant FISHMAN & MORGENTHAL 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 ' PArog&\1itigation\Nezic v. Mountz\Answer & New Mattendoc VERIFICATION I, MICHAEL LEE MOUNTZ, verify that I am the defendant in this action and that the foregoing Answer with New Matter is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unworn falsification to authorities. Michael Lee Mountz Date: 9 ? ' \\MAINSERVER\PUBLIC\roger\litigation\Nezie v. MountzTERTIFICATE OF SERVICE.doe IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC Plaintiff vs. NO. 01-4178 CIVIL TERM ROSS STORES, INC.; and CIVIL ACTION-LAW MICHAEL LEE MOUNTZ JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Answer with New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first class postage prepaid, addressed as follows: Andrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 Attorney for Plaintiff Date: J-69VI-01 Ross Stores, Inc. 1707 Shearer Drive Carlisle, PA 17013 Defendant Roger M. Morgenthal, Esquire Attorney ID# 17143 FISHMAN & MORGENTHAL 95 Alexander Spring Rd., Suite 3 Carlisle, PA 17013 Attorneys for Defendant (717) 249-6333 Cl f ? ? "` ? f ?? ^? ?L'f. ?-',' = 3 ? ?. J, r"l' '. _? .. _i °7 ? ?? To: Plaintiff(s) You are hereby notified to plead to the within NEW MATTER within Thirty (30) days of Service hereof or a judgment may be entered against you. Thomas J. Johanson, Esquire GOLDFEiN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street Attorney for Defendant, 33'd Floor Ross Stores, Inc. Philadelphia, PA 19103 (215) 979-8200 MUHAREM NEZIC COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY vs. ROSS STORES, INC. and NO. 01-4178 MICHAEL LEE MOUNTZ CIVIL ACTION JURY TRIAL DEMANDED Defendant DEFENDANT, ROSS STORES, INC. ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 2. Denied. Ross Stores, Inc. is a corporation organized under the laws of the State of California with its principle place of business in Newark California. 3. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 4. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 5. Denied. 6. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 7. Denied. 81 Denied. Answering Defendant is without sufficient information to form a belief as to the t truth of the averments contained in this paragraph therefore they are denied. All other allegations in this paragraph are denied as conclusions of law. COUNTI 9. Answering Defendant incorporates its response to paragraphs 1 through 8 as if fully set forth herein. 10. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 11. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 12. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 13. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 14. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment in its favor and against Plaintiff. COUNT II 15. Answering Defendant incorporates its responses to paragraphs 1 through 14 as if fully set forth herein. 16. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 17. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 18. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 19. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment in its favor and against Plaintiff. NEW MATTER 1. Plaintiff claims against Ross Stores, Inc. are barred by the applicable statute of limitations. 2. Plaintiffs damages if any were caused in whole or in part by the negligence/ carelessness and/or recklessness of the Plaintiffs and the right to recover is barred or limited to comparative and/or contributory negligence. 3. Plaintiff assumed the risk of his injuries. 4, Plaintiffs injuries occurred at a location under the control of others and not occupied, maintained or controlled by Ross Stores, Inc. 5. Plaintiffs claims are barred by the Doctrine of Laches waiver and/or estoppel. 6. Plaintiffs injuries were caused by the intentional or negligent acts of another or others for whom Ross Stores are not responsible. WHEREFORE, Defendant Ross Stores, Inc. demand judgment in it's favor. GOLDFEIN & HOSMER B-,iliv?? Thomas J. Johanson, Esquire Attorney for Defendant, Ross Stores, Inc. J CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the Answer to Complaint and New Matter was served upon the following via U.S. Mail, First Class, postage pre-paid: Andrew Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 Roger M. Morgenthal, Esquire Fishman & Mogenthal 95 Alexander Spring Road, Suite 3 Carlisle, Pennsylvania 17013-9137 GOLDFEIN & HOSMER By: c THOMAS J. JOHANSON, ESQUIRE DATE : 3 G? d@?k? . _ ._,P+?T' .Fw.x_l?rre . s ruP,3 €fi'_ne,i ,. i. ?, ,, ,.._ ' ?!?tygdg+?d `? "?' """ V® ? "sums '- . < ? f;7 (..) ?' :.n -c; [? ry ? ,,? Z. ? .. ? ? Ups= ?3 ' : ?? ? : _?^ `=' n ? >? ?- ?, y>- __, :n rv -t or GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33`d Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC Plaintiff vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED Defendant ORDER AND NOW, on this day of , 2002, upon consideration of Defendant, Ross Stores Inc.'s Answer to Plaintiff s Motion, to Strike Defendant's Motion for Summary Judgment, and any response thereto, it is hereby ORDERED and DECREED that Defendant's Motion for Summary Judgment is GRANTED. 2 7 2002 a J. GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33rd Floor Philadelphia, PA 19103 (215) 979-8200 MUHAREM NEZIC Plaintiff vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ Attorney for Defendant, Ross Stores, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED Defendant DEFENDANT, ROSS, STORES. INC.'S ANSWER TO PLAINTIFF'S MOTION TO STRIKE Defendant Ross Stores, Inc., by it's attorney Thomas J. Johanson in answer to Plaintiffs Motion To Strike avers as follows: 18. The allegations made in defendant's previously filed Motion for Summary Judgment are incorporated herein by reference in their entirety. 19. Denied. On the contrary defendant's Motion shows clearly that the incident arose solely from employment and not as a result of any personal animus. 20. Denied. After reasonable investigation, moving defendant is unable to determine the truth of the averment therefore it is denied. 21. Denied. Defendant's Motion speaks for itself, all other allegations are denied as a conclusion of law. 22. Denied. The facts are clearly laid out in and defendant's Motion for Summary Judgment. Defendant, Mountz struck plaintiff Nezic as the result of a dispute about work. Moreovere Plaintiff's Answer and Motion to Strike do not raise any disputed factual issues. Plaintiff instead relied on a purely conclusive allegation, not supported by any facts. WHEREFORE, moving Defendant, Ross Stores, Inc. respectfully request that this Honorable Court Grant it's Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc. and against all parties. Respectfully submitted, GOLDFEIN & HOSMER By: THOMAS J.JOHANSON Attorney for Defendant, Ross Stores, Inc. r MUHAREM NEZIC Plaintiff Vs. ROSS STORES, INC,; and MICHAEL LEE MOUNTZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.. CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 judgement may be entered against you by the court without further notice for any money claimed in the petition or for any other claim or relief requested by the plaintiff. You nay 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 o w MUHAREM NEZIC Plaintiff VS. ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, :PENNSYLVANIA :NO.: D/- g17S ecva- T;1- : CIVIL ACTION - LAW : JURY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff, MuharemNezic, by his attorney, Andrew Ostrowski, Esquire, and in bringing this action before this Court avers as follows: 1. Plaintiff, Muharem Nezic, an adult individual, resides at 520 Third Street, Carlisle, Pennsylvania 17013. 2. Defendant, Ross Stores, Inc. is, upon information and belief, a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its registered office or principal place ofbusiness located at 1707 Shearer Drive, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Michael Lee Mountz, an adult individual, resides at 262 Mt. Zion Road, Carlisle Cumberland County, Pennsylvania 17013. 4. At all times relevant hereto, Plaintiff and Defendant Mountz were employed by Defendant Ross Stores Inc.. 1 5. On Oct. 29, 1999, Defendant Mountz physically assaulted Plaintiff, intentionally and without cause or provocation, by beating Plaintiff with his hands and fists in and around Plaintiffs face and head, fracturing Plaintiff's jaw, causing the loss of several teeth and other contusions and lacerations, for all of which Plaintiff required and sought to medical attention. 6. Upon information and belief, Mountz' beating of Plaintiff was motivated by his personal animus towards Plaintiff and not for any employment-related reasons. 7. The beating Plaintiff suffered at the hands of Mountz occurred on the premises of Defendant Ross Stores, Inc. during a regularly scheduled shift being worked by Plaintiff. 8. Upon information and belief, Defendant Ross Stores, Inc. had actual and/or constructive knowledge ofthe violent propensities ofDefendant Mountz through past actions and/or conduct of Mountz where he exhibited such tendencies towards other employees. COUNTI 9. Plaintiff incorporates paragraphs 1-8 of his Complaint as if fully rewritten herein. 10. Defendant Ross Stores, Inc. owes a duty of care to Plaintiff to provide him with a workplace free from the risk of violence inflicted by employees with a propensity for such behavior against other employees for reasons unrelated to their work. 11. Defendant Ross Stores, Inc. was negligent by failing to exercise the degree of care necessary to protect Plaintiff from the violent assault inflicted upon him by Defendant Mountz when Defendant Ross stores Inc. new and/or should have known of the risk of harm to Plaintiff as a result of such actions. 2 J 12. As a direct and proximate result of the negligence and carelessness ofDefendant Ross Stores, Inc., Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 13. As an additional direct and proximate result of Defendants' negligence and carelessness, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. 14. As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiffdemands judgment in his favor, and against Defendant Ross Stores, Inc., for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. COUNT TWO 15. Plaintiff incorporates paragraphs 1-14 of his Complaint as if fully rewritten herein. 16. Defendant Mountz' beating of Plaintiff constitutes the intentional tort of assault and battery for which Plaintiff may recover damages at law for the injuries inflicted upon him. 17. As a direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 18. As an additional direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. J 19. As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiffdemands judgment in his favor, and against Defendant Michael Lee Mountz, for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. Respectfully submitted, By Andrew J. Ostro ski, Esquire Supreme Ct. I.D. No. 66420 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: July 6, 2001 4 VERIFICATION I, Muharem Nezic, hereby state that I am the Plaintiff herein and that I have reviewed the foregoing Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief, and, that this statement is made subject to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsification to authorities. Dated: 0 06-- 4l ... 4Fgrvw (Sr 1G 17- Muharem Nezic ?£u rd La.?aJi ?e fvs.E's_a,F v-t.v?.. x? ?La = re"?tsvaNW F 4 ? II ? c d ?i . l 0 1 O r 1' r: lM G v. Mountz\entry of appearance.doe IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC Plaintiff NO. 01-4178 CIVIL TERM VS. ROSS STORES, INC.; and MICHAEL LEE MOUNTZ Defendants CIVIL ACTION-LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Please enter my appearance for MICHAEL LEE MOUNTZ, one of the defendants in the above-captioned matter. Roger M. Morgenthal, Esquire ID#17143 FISHMAN & MORGENTHAL 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 0 O -a A u). C>. ,mac MUHAREM NEZIC : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC.; and NO. 2001-4178 CIVIL TERM MICHAEL LEE MOUNTZ CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 15M day of DECEMBER, 2004, upon consideration of Plaintiff's Response to the Rule to Show Cause issued on October 13, 2004, the parties are directed to appear for argument before this Court on THURSDAY, JANUARY 6, 2005, at 3:00 p.m. Counsel for Defendant Ross Stores is directed to bring the copies of the disputed items from Defendant Mountz's personnel file for the Court to review. By the Co Edward E. Guido, J. Sheri D. Coover, Esquire 4311 North 6TH Street Harrisburg, Pa. 17110 Joseph N. Bongiovanni IV, Esquire Patrick C. Lamb, Esquire 1880 John Kennedy Blvd., Suite 1200 Phila., Pa. 19103 Roger M. Morgenthal, Esquire 95 Alexander Spring Road Carlisle, Pa. 17013 :sld and r ?r ?J7 • i MUHAREM NEZIC : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC. and MICHAEL LEE MOUNTZ NO. 2001-4178 CIVIL ORDER OF COURT AND NOW, this 13TH day of OCTOBER, 2004, a Rule is issued upon Plaintiff to Show Cause why Defendant-Ross Store's "Motion in Limine to Prohibit Disclosure of Documents from Michael Lee Mountz`s Employee Personel File" should not be granted. Rule returnable ten (10) days after service. Andrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, Pa. 17110 Lefoseph N. Bongiovanni IV, Esquire y 1880 John Kennedy Blvd., Suite 1200 Phila., Pa. 19103 1,R6ger M. Morgenthal, Esquire 2515 North Front Street, 1t Floor Harrisburg, Pa. 17110 :sld JpLt? 1011 "', "OZ MrA$KS, O'NEILL, O'BRIEN & COURTNEY, P.C. 1Y: Y?ATRICK C. LAMB, ESQUIRE JOSEPH N. BONGIOVANNI, IV, ESQUIRE IDENTIFICATION NOS. 70817/87848 ATTORNEYS FOR DEFENDANT, 1880 JOHN F. KENNEDY BLVD., 12TH FLOOR ROSS STORES, INC. PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 228-69990 MUHAREM NEZIC VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION NO. 01-4178 ORDER AND NOW, this day of 2004, upon consideration of Defendant, Ross Stores, Inc.'s Motion in Limine and any response thereto, it is hereby ORDERED and DECREED, that said Motion is GRANTED, thereby prohibiting any disclosure of documents from Michael Lee Mountz' employee personnel record related to relationships with co-employees, identified as simply C.B. and W.B. in order to protect their privacy. BY THE COURT: J. PH079902 MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICK C. LAMB, ESQUIRE JOSEPH N. BONGIOVANNI, IV, ESQUIRE IDENTIFICATION NOS. 70817/87848 ATTORNEYS FOR DEFENDANT, 1880 JOHN F. KENNEDY BLVD., 12TH FLOOR ROSS STORES, INC. PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 228-69990 MUHAREM NEZIC vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION ROSS STORES, INC. and MICHAEL LEE MOUNTZ NO. 01-4178 DEFENDANT ROSS STORES, INC.'S MOTION IN LIMINE TO PROHIBIT THE DISCLOSURE OF DOCUMENTS FROM MICHAEL LEE MOUNTZ' EMPLOYEE PERSONNEL FILE And now, Defendant, Ross Stores, Inc., by and through its attorneys, hereby moves this Honorable Court for an Order in Limine, and in support thereof avers as follows: Plaintiff filed suit alleging injuries from a work-related altercation on October 29, 1999. (See Complaint, which is attached without admission thereto, as Exhibit "A.") Plaintiff, in his Complaint, alleges that he sustained injuries when co-defendant, Michael Lee Mountz assaulted him during their regularly scheduled shift at the Ross Stores East Coast Distribution Center in Carlisle, Pennsylvania. Plaintiff, in his Request for Production of Documents, has requested a copy of co- defendant's personnel file from Defendant, Ross Stores, Inc. Plaintiff also requested a copy of his own personnel file. 4. Defendant Ross Stores, Inc. produced plaintiffs personnel file on April 1, 2004. PH079802 5. Defendant Ross Stores, Inc. filed a Motion for Protective Order seeking to absolve the discovery obligation to produce co-defendant Michael Lee Mountz' employee personnel file. 6. In consideration of the Motion for Protective Order, and plaintiff s response hereto, this Honorable Court issued an Order dated April 20, 2004 scheduling a conference on May 6, 2004. 7. The Honorable George E. Hoffer, President Judge, presided over said conference, in chambers, with counsel for plaintiff, and counsel for defendant Ross Stores, hic. Counsel for defendant Michael Lee Mountz failed to appear. 8. Counsel for defendant Ross Stores, hie. argued that under Pa. R.C.P. 4012, protective orders are permitted where, upon good cause shown, justice requires protection of a party from, inter alia, unreasonable annoyance, embarrassment, oppression, burden or expense. 9. The documents requested by plaintiff are personnel records for Michael Lee Mountz, a former employee of Ross Stores, Inc. These records contain, inter alia, non-public benefits information, private benefits information, non-public employee application documents, and statements from co- employees with whom Michael Lee Mountz appeared to have consensual relations. 10. In the context of discovery, it is well-established that a party wishing to obtain an order of protection over discovery material must demonstrate that "good cause" exists for the order of protection. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (citation omitted). See also Fed.R.Civ.P. 26(c). In considering whether cause exists for a protective order: [T]he court ... must balance the requesting party's need for information against the injury that might result if uncontrolled disclosure is compelled. When the risk of harm to the owner of... confidential information outweighs the need for discovery, disclosure [through discovery] cannot be compelled, but this is an infrequent result. Once the court determines that ... the materials be disclosed, the issue becomes whether they should "be disclosed only in a designated way," as authorized by Rule 26(c)(7).... Whether this disclosure will be limited depends on a judicial balancing of the harm to the party seeking protection ... and the importance of disclosure to the public. PH079802 Pansy, 23 F.3d at 787. The Third Circuit instructed that courts should consider the following non- exhaustive list of factors when considering whether good cause exists to grant a request for a protective order: (1) whether the disclosure will violate any privacy interest; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure will cause a party embarrassment; (4) whether the information is important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentially is a public entity or official; (7) whether the case involves issues important to the public; and (8) whether an order of confidentiality will promote settlement of the lawsuit. Id. at 787-88. See also Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (same). 11. As per the April 20, 2004 Order of Court, counsel for defendant Ross Stores, Inc. brought the personnel file to the May 6, 2004 conference. President Judge Hoffer reviewed the disputed documents in camera. 12. President Judge Hoffer issued an Order of Court, dated May 6, 2004 (attached hereto as Exhibit "B") whereby defendant Ross Stores, Inc. is to furnish a copy of the personnel file, except for two incidents dealing with female employees and defendant Michael Lee Mountz, 13. One incident allegedly involved inappropriate behavior with a female associate, C.B., on or about September 18, 1999. The other incident allegedly involved inappropriate comments concerning another female associate, W.B., on or about October 6, 1999. 14. Disclosure of documents related to these incidents will not further any legitimate purpose. Instead, it will cause embarrassment and public humiliation to two individuals who are not a party to this litigation. PH079802 15. There is no legitimate purpose in disclosing these documents as the underlying case involves a work-related altercation between co-defendant, Michael Lee Mountz and plaintiff during their regularly scheduled shift at the Ross Stores East Coast Distribution Center in Carlisle, Pennsylvania. 16. A deposition of the Ross Stores, hie. corporate representative is scheduled for May 28, 2004. Further, plaintiff s counsel has filed a Writ of Habeas Corpus to depose co-defendant Michael Lee Mountz, currently incarcerated. Said deposition will take place in the immediate future at the convenience of the warden and counsel. WHEREFORE, Defendant, Ross Stores, hie. respectfully requests this Honorable Court enter an Order in the form attached hereto. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. z ?_Z1---2 ? By: Patric X. Lamb, Esquir Jose h N. Bongiov Esquire Attorneys for Defendant, Ross Stores, Inc. PH079802 MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICK C. LAMB, ESQUIRE JOSEPH N. BONGIOVANNI, IV, ESQUIRE IDENTIFICATION NOS. 70817/87848 ATTORNEYS FOR DEFENDANT, 1880 JOHN F. KENNEDY BLVD., 12TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 ROSS STORES, INC. Our File No. 228-69990 MUHAREM NEZIC vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION ROSS STORES, INC. and MICHAEL LEE MOUNTZ NO. 01-4178 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ROSS STORES, INC.'S MOTION IN LIMINE Brief Summary of Facts: Plaintiff filed suit alleging injuries from a work-related altercation on October 29, 1999. In his complaint, Plaintiff alleges that he sustained injuries when co-defendant, Michael Lee Mountz, assaulted him during their regularly scheduled shift at the Ross Stores East Coast Distribution Center in Carlisle, Pennsylvania. Plaintiff, in his Request for Production of Documents, has requested a copy of co-defendant's personnel file from Defendant, Ross Stores, Inc. Plaintiff also requested a copy of his own personnel file. Defendant produced plaintiffs personnel file on April 1, 2004. Under Pa. R.C.P. 4012, protective orders are permitted where, upon good cause shown, justice requires protection of a party from, inter alia, unreasonable annoyance, embarrassment, oppression, burden or expense. The outstanding documents requested by plaintiff are personnel records for Michael Lee Mountz, a former employee of Ross Stores, Inc. These records contain, inter alia, statements from female associates with whom Michael Lee Mountz appeared to have consensual relations. PH079802 Summary of Law: In the context of discovery, it is well-established that a party wishing to obtain an order of protection over discovery material must demonstrate that "good cause" exists for the order of protection. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (citation omitted). See also Fed.R.Civ.P. 26(c). In considering whether cause exists for a protective order: [T]he court ... must balance the requesting party's need for information against the injury that might result if uncontrolled disclosure is compelled. When the risk of harm to the owner of... confidential information outweighs the need for discovery, disclosure [through discovery] cannot be compelled, but this is an infrequent result. Once the court determines that ... the materials be disclosed, the issue becomes whether they should "be disclosed only in a designated way," as authorized by Rule 26(c)(7).... Whether this disclosure will be limited depends on a judicial balancing of the harm to the party seeking protection ... and the importance of disclosure to the public. Pansy, 23 F.3d at 787. The Third Circuit instructed that courts should consider the following non- exhaustive list of factors when considering whether good cause exists to grant a request for a protective order: (1) whether the disclosure will violate any privacy interest; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure will cause a party embarrassment; (4) whether the information is important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency, (6) whether a party benefitting from the order of confidentially is a public entity or official; (7) whether the case involves issues important to the public; and (8) whether an order of confidentiality will promote settlement of the lawsuit. Id. at 787-88. See also Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (same). Here, the disclosure would not only violate Michael Lee Mountz' privacy interests, but it may also cause embarrassment for the two, non-party female associates. Further, as the information sought will not PH079802 further a legitimate purpose. Defendant, Ross Stores, Inc. seeks the Court's protection through the granting of the Motion in Limine. A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. Meridian Oil & Gas Eters., Inc. v. Penn Cent. Corp., 418 Pa. Super. 231, 614 A.2d 246 (1992). Pennsylvania Courts have recognized that motions in limine maybe used in both jury and non jury trials. See Commonwealth v. King, 456 Pa. Super. 72, 689 A.2d 918 (1997); Commonwealth v. Griscom, 411 Pa. Superior Ct. 49, 600 A.2d 996 (1991); Commonwealth v. Perry, 403 Pa. Superior Ct. 212, 588 A.2d 917, petition for allowance of appeal denied, 529 Pa. 619, 600 A.2d 535 (1991). The purpose of a motion in limine is twofold: 1) to provide the trial court with a pre-trial opportunity to weigh carefully and consider potentially prejudicial and harmful evidence; and 2) to preclude evidence from ever reaching a fact finder that may prove to be so prejudicial that no instruction could cure the harm, thus reducing the possibility that prejudicial error could occur at trial which would force the trial court to either declare a mistrial in the middle of the case or grant a new trial at its conclusion. 75 Am.Jur.2d § 94 & § 98. Moreover, a ruling on a pre-trial motion in limine provides counsel with a basis upon which to structure trial strategy. Blumenkopf, The Motion in Limine: An Effective Procedural Device With No Material Downside Risks, 16 N.Eng.L.Rev. 171 (1981). WHEREFORE, for the reasons stated above, Defendant, Ross Stores, Inc. respectfully requests this Honorable Court enter an Order in the form attached hereto. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. Patric. Lamb, Esquire Joseph N. BongiovsquireEsquire Attorneys for Defendant, Ross Stores, Inc. PH079802 MUHAREM NEZIC IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA VS. NO.: 01 C.."tuil. ROSS STORES, INC,; and MICHAEL LEE MOUNTZ, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 ajudgement may be entered against you by the court without further notice for any money claimed in the petition or for any other claim or relief requested by the plaintiff. You nay 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 TRUE COPY FROM RECORD la Tyr W O, ! N unto 39 nw haw MUHAREM NEZIC Plaintiff VS. ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA NO.. : CIVIL ACTION - LAW : JURY TRIAL DEMANDED COMPLAINT ANDNOW COMES Plaintiff, MuharemNezic, byhis attorney, Andrew Ostrowski, Esquire, and in bringing this action before this Court avers as follows: 1. Plaintiff, Muharem Nezic, an adult individual, resides at 520 Third Street, Carlisle, Pennsylvania 17013. 2. Defendant, Ross Stores, Inc. is; upon information and belief, a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its registered office or principal place ofbusiness located at 1707 ShearerDrive, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Michael Lee Mountz, an adult individual, resides at 262 Mt. Zion Road, Carlisle Cumberland County, Pennsylvania 17013. 4. At all times relevant hereto, Plaintiff and Defendant Mountz were employed by Defendant Ross Stores Inc.. I On Oct. 29, 1999, Defendant Mountz physically assaulted Plaintiff, intentionally and without cause or provocation, by beating Plaintiff with his hands and fists in and around Plaintiff's face and head, fracturing Plaintiff's jaw, causing the loss of several teeth and other contusions and lacerations, for all of which Plaintiff required and sought to medical attention. 6. Upon information and belief, Mountz' beating of Plaintiff was motivated by his personal animus towards Plaintiff and not for any employment-related reasons. The beating Plaintiff suffered at the hands of Mountz occurred on the premises of Defendant Ross Stores, Inc. during a regularly scheduled shift being worked by Plaintiff. Upon information and belief, Defendant Ross Stores, Inc. had actual and/or constructive knowledge of the violent propensities ofDefendant Mountz through past actions and/or. conduct of Mountz where he exhibited such tendencies towards other employees, COUNT I 9. Plaintiff incorporates paragraphs 1-8 of his Complaint as if fully rewritten herein. 10. Defendant Ross Stores, Inc. owes a duty of care to Plaintiff to provide him with a workplace free from the risk of violence inflicted by employees with a propensity for such behavior against other employees for reasons unrelated to their work. 11. Defendant Ross Stores, Inc. was negligent by failing to exercise the degree of care necessary to protect Plaintifffrom the violent assault inflicted upon him byDefendant Mountz when Defendant Ross stores Inc. new and/or should have known of the risk of harm to Plaintiff as a result of such actions. 12. Asa direct and proximate result ofthe negligence and carelessness ofDefendant Ross Stores, Inc., Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 13. As an additional direct and proximate result of Defendants' negligence and carelessness, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. 14. As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiffdemandsjudgment in his favor, and againstDefendant Ross Stores; Inc., for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. COUNT TWO 15. Plaintiff incorporates paragraphs 1-14 of his Complaint as if fully rewritten herein. 16. Defendant Mountz' beating of Plaintiff constitutes the intentional tort of assault and battery for which Plaintiff may recover damages at law for the injuries inflicted upon him. 17. As a direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 18. As an additional direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. 19. As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiff demands judgment in his favor, and against Defendant NfichaelLee Mountz, for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. Respectfully submitted, By Andrew 1.Ostro ski, Esquire Supreme Ct. I.D. No. 66420 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: July 6, 2001 VERIFICATION I, Muharem Nezic, hereby state that I am the Plaintiff herein and that I have reviewed the foregoing Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief; and, that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. Dated: D - D6- 0/ ,J/X'40rz#H ?"/r(? /G Muharem Nezic MUHAREM NEZIC : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC.; and : NO. 200.1-4178 CIVIL TERM MICHAEL LEE MOUNTZ : : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 201R day of APRIL, 2004, a conference on Defendant Ross Stores, Inc., request for a protective order is scheduled before the undersigned on THURSDAY, MAY 6, 2004,.at 3:30 u.m. Defense counsel is directed to bring the disputed material to the conference. Andrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, Pa. 17110 Joseph N. Bongiovanni IV, Esquire Patrick C. Lamb, Esquire 1880 John Kennedy Blvd., Suite 1200 Phila., Pa. 19103 Roger M. Morgenthal, Esquire 95 Alexander Spring Road Carlisle, Pa. 17013 sld Edward E. Guido, J. MUHAREM NEZIC : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004=41787 CIVIL TERM ROSS.STORES, INC. and CIVIL ACTION - LAW MICHAEL LEE MOUNTZ ORDER OF COURT AND NOW, May 6, 2004, in response to the Order of Court of April 20, 2004, the Court held a conference in chambers with counsel for plaintiff, Andrew J. Ostrowski, Esquire, and counsel for defendant Ross Stores, Inc., Joseph N. Bongiovanni IV, Esquire. Defendant Michael Mountz is separately represented by Roger Morgenthal, Esquire, who did not appear. Ross Stores agrees to furnish to plaintiff a copy of the complete file, except for two incidents dealing with female employees and defendant Mountz. The Court having reviewed these documents in camera, the Court makes no ruling regarding these documents pending the filing of a motion in limine by Ross Stores relating to the ultimate admissibility of this evidence. Andrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 Joseph N. Bongiovanni IV, Esquire 1880 John Kennedy Blvd., Ste. 1200 Philadelphia, PA 19103 rt, P.J. Roger M. Morgenthal, Esquire 2515 North Front Street, 1st Floor Harrisburg, PA 17.110 pmerx" I .. • CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant Ross Stores, Inc.'s Motion in Limine to Prohibit the Disclosure of Documents from Michael Lee Mountz' Employee Personnel File and Memorandum of Law in Support Thereto was sent by first-class U.S. mail, postage prepaid, to the counsel below listed: Andrew J. Ostrowski, Esquire Bailey, Stretton & Ostrowski 4311 N. Sixth Street Harrisburg, PA 17110 Counsel for Plaintiff Roger M. Morgenthal, Esquire Law Office of Roger M. Morgenthal 2515 North Front Street, I' Floor Harrisburg, PA 17110-1150 Counsel for Defendant, Michael Lee Mountz Date: Joseph N Oova , Es luire PH079802 . T, r C'? ? C _3rn ? , n _ =s t ?ti UCH r = N =?7 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, No.s 4 1'S'T99S 0(- `T n Plaintiffs CIVIL ACTION LAW V. ROSS STORES, INC., and MICHAEL LEE MOUNTZ Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION FOR A PROTECTIVE ORDER And now, Plaintiff, Muharem Nezic, by and through his attorney, Sheri Coover, Esquire, in response to this Court's October 12, 2004 Rule to Show Cause requests this Honorable Court to deny the Defendant's Request for a Protective Order and to compel the Defendant, Ross Stores, Inc., to produce Michael Lee Mountz's personnel file from his employment with Ross Stores, Inc. In support of this motion, Plaintiff avers: Plaintiff filed suit from damages suffered as a result of an assault initiated by Defendant Mountz on the Plaintiff. (See Complaint, which is attached as Exhibit "A.") At the time of the assault, both Plaintiff and Defendant Mountz were employees of Defendant Ross Stores, Inc. 3. The beating suffered by Plaintiff at the hands of Defendant Mountz occurred on the premises of Defendant Ross Stores, Inc. during a regularly schedule shift being worked by Plaintiff. 4. Plaintiff, in his Request for Production of Documents, has requested a copy of co- defendant's personnel file from Defendant Ross Stores, Inc. Plaintiff also requested a copy of his own personnel file. 5. Defendant produced Plaintiff's personnel file on April 1, 2004. On April 2, 2004, Defendant filed a Motion for a Protective Order to request relief from complying with Plaintiff's request for production of the personnel file of Defendant, Michael Lee Mountz. Defendant, Ross Stores, Inc. wishes to avoid producing the record because of potential embarrassment that may be suffered by Defendant Mountz as a result of the disclosure. 6. As stated by Defendant, Ross Stores, Inc, in their Motion, it is well-established that a party wishing to obtain an order of protection over discovery material must demonstrate that "good cause" exists for the order of protection. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786(3d. Cir. 1994). As indicated by the Defendants, in making a decision on whether to grant a protective order from producing requested evidence, "the Court... must balance the requesting party's need for information against the injury that might result if uncontrolled disclosure is compelled." Pansy at 787. 7. It is well-established law in Pennsylvania that an employer may be negligent if he knew or should have known that his employee had a propensity for violence and causes harm to a third person. Dempsey v. Walso Bureau, 246 A.2d 418,421 (Pa. 1968). The Supreme Court of Pennsylvania stated in Dempsey that "the knowing employment of a dangerous employee who inflicts injury upon a fellow employee constitutes a common law tort on the part of the employer." Dempsey at 420. Further, an employer may be negligent for failing to exercise reasonable care in determining an employee's propensity for violence. See, generally, Dempsey. 8 It is contended by Plaintiff that Defendant Ross Stores had actual and/or constructive knowledge of the violent propensities of Defendant Mountz through past actions and/or conduct of Mountz, where he exhibited such tendencies toward other employees. The contents of Mountz's personnel file may contain information of other violent incidents in which Mountz was involved and reveal that his employer, Ross Stores, Inc., had knowledge of Mountz's violent propensities. Therefore, the contents of the file are highly relevant to Plaintiff s case and establishing the liability of Defendant, Ross Store, Inc. in this case. The information sought will, therefore, further a legitimate purpose in advancing this lawsuit. 9. The interest in fairness to all litigants in the development of all issues in this case outweighs the interest advanced by Defendant in avoiding potential embarrassment on the part of the Defendant, Michael Lee Mountz. As such, the Defendant has failed to establish "good cause" that warrants the grant of a protective order from producing the requested evidence. WHEREFORE, Plaintiff, Muharem Nezic respectfully requests this Honorable Court DENY the Defendant, Ross Stores, Inc. MOTION FOR A PROTECTION ORDER and order the Defendant to produce Michael Lee Mountz's employee personnel record. Resp LLctfully submitted, By: /(2 ?t Gt tel? eri D. Coover, Esquire Admission Date: October 15, 2004 43 11 N. 6`h Street Harrisburg, PA 17100 (717) 221-9500 Attorney for Plaintiff Dated: October 25, 2004 r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, Plaintiffs CIVIL ACTION LAW V. ROSS STORES, INC., and MICHAEL LEE MOUNTZ Defendant ORDER AND NOW, this _ day of No.: 4741 S 1995 2004, it is hereby ORDERED and DECREED, that Defendant's Motion for a Protective Order is DENIED and order Defendant to produce to Plaintiff Michael Lee Mountz's employee personnel record. BY THE COURT: J. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs Answer to Defendant's Motion for a Protective Order was sent by first-class U.S. mail, postage prepaid, to the counsel below listed: Patrick C. Lamb, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. 1880 John F. Kennedy Blvd, 12' Floor Philadelphia, PA 19103 Counsel for Defendant, Ross Stores, Inc. Roger M. Morgenthal, Esquire Fishman & Morgenthal 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013-9137 Counsel for Defendant, Michael Lee Mountz 4?D S eri D. Coover, Esquire Bailey, Stretton & Ostrowski 4311 N. 6`s Street Harrisburg, PA 17110 Counsel for Plaintiff lD o,4 ? Inn r- ?p r? C.. 0? i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, Plaintiffs V l 1 - ?? / x No..-?r? . AryA+ r +? I IV\ CIVIL ACTION LAW V. ROSS STORES, INC., and MICHAEL LEE MOUNTZ Defendant PRAECIPE TO ENTER APPEARANCE Kindly enter the appearance of Sheri D. Coover, Esquire to assist Andrew J. Ostrowski, Esquire as counsel for Plaintiff in this case. Respectfully submitted, Sheri D. Coover Admission Date: October 15, 2004 43 11 N. 6th Street Harrisburg, PA 17110 (717)221-9500 Date; October 25, 2004 i CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs Answer to Defendant's Motion for a Protective Order was sent by first-class U.S. mail, postage prepaid, to the counsel below listed: Patrick C. Lamb, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. 1880 John F. Kennedy Blvd, 12' Floor Philadelphia, PA 19103 Counsel for Defendant, Ross Stores, Inc. Roger M. Morgenthal, Esquire Fishman & Morgenthal 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013-9137 Counsel for Defendant, Michael Lee Mountz ri D. Coover, squire Jhe Bailey, Stretton & Ostrowski 4311 N. 6s' Street Harrisburg, PA 17110 Counsel for Plaintiff my t 1 - '?`:. k`?f?3hV3?eYstiu'?dtr?.?,es C.} C .1 f`J r r; u. l1, 1 '+ i J 7,7 08524812142004 Cumberland County Prothonotary's Office Page 3 PYS835 Docket Entries 12/14/2004 Case No 2001-04178 NEZIC MUHAREM (VS) ROSS STORES INC ET AL Date Filed TO FORWARD A COPY OF THIS ORDER TO THE WARDEN AND TO CONFIRM THE NECESSARY ARRANGEMENTS WITH DEFTS COUNSEL - BY THE COURT EDWARD E GUIDO J COPIES MAILED ---------------------------------------------- ------------------ 22 4/22/04 ORDER OF COURT - DATED 4/20/04 - A CONFERENCE ON DEFT ROSS STORES INC REQUEST FOR A PROTECTIVE ORER IS SCHEDULED BEFORE THE UNDERSIGNED ON 5/6/04 AT 3:30 PM DEFENSE COUNSEL IS DIRECTED TO BRING THE DISPUTED MATERIAL TO THE CONFERENCE - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------------------- 23 5/07/04 ORDER OF COURT - DATED 5/6/04 - IN RESPONSE TO THE ORDER OF COURT 4/20/04 THE COURT HELD A CONFERENCE IN CHAMBERS WITH COUNSEL FOR PLAINTIFFANDREW J OSTROWKSI ESQ AND COUNSEL FOR DEFENDANT ROSS STORES INC JOHSEPH N BONGIOVANNI IV ESQ - DEFENDANT MICHAEL MOUNTZ IS SEPARATELY REPRESENTED BY ROGER MORGENTHAL ESQ WHO DID NOT APPEAR - ROSS STORES AGREES TO FURNISH TO PLAINTIFF A COPY OF THE COMPLETE FILE EXCEPT FOR TWO INCIDENTS DEALNG WITH FEMALE EMPLOYEES AND DEFENDANT MOUNTZ - THE COURT HAVING REVIEWED THESE DOCUMENTS IN CAMERA THE COURT MAKES NO RULING REGARDING THESE DOCUMENTS PENDING THE FILING OF A MOTION IN LIMINE BY ROSS STORES RELATING TO THE ULTIMATE ADMISSIBILITY OF THE EVIDENCE - BY GEORGE E HOFFER PJ - COPIES MAILED 5/7/04 ----------------------------------------------------------- ----------- 24 5/07/04 ORDER OF COURT - DATED 5/6/04 '- BY THE COURT GEORGE E HOFFER PJ COPIES MAILED -------------------------------------------------------- ---------- 25 5/21/04 DEFENDANT ROSS STORES INC'S MOTION IN LIMINE TO PROHIBIT THE DISCLOSURE OF DOCUMENTS FROM LEE MOUNTZ' EMPLOYEE PERSONNELL FILE - BY PATRICK C LAMB ESQ FOR DEFT ---------------------------------------- -------------------------- 26 10/13/04 ORDER OF COURT - DATED 10/13/04 - A RULE IS ISSUED UPON PLFF TO SHOW CAUSE WHY DEFT ROSS STORE'S MOTION IN LIMINE TO PROHIBIT DISCLOSURE OF DOCUMENTS FROM MICHAEL LEE MOUNTZ'S EMPLOYEE PERSONEL FILE SHOULD NOT BE GRANTED - RULE RETURNABLE 10 DAYS AFTER SERVICE - BY THE COURT EDWARD E GUIDO J COPIES MAILED 10/13/04 --------------- --------------------------- ---- ----- 27 10/25/04 ENTRY OF APPEARANCE TO ASSIST PLFF'S COUNSEL - SHERI D COOVER ESQ --------- ------------ ----- ---------------------------- 28 10/25/04 PLAINTIFF'S ANSWER TO DEFT'S MOTION FOR A PROTECTIVE ORDER - SHERI D COOVER ESQ - ATTY FOR PLFF ----------------------- End of Docket Entries - ------------------- 08524812142004 Cumberland County Prothonotary's Office Page 2 PYS835 Docket Entries 12/14/2004 Case No 2001-04178 NEZIC MUHAREM (VS) ROSS STORES INC ET AL Date Filed ---- -------------- ---- --- ---------- 1 7/09/01 COMPLAINT - CIVIL ACTION ------------------------------ ------- ------------- - 2 7/18/01 SHERIFF'S RETURN FILED Litigant.: ROSS STORES INC SERVED • 7/17/01 COMPLAINT CARLISLE PA Hnd To: ALVIN BROWN SENIOR LOSS PREVENTION MGR Costs....: $31.25 Pd By: ANDREW OSTROWSKI 07/18/2001 ----------- ----------- --------------------------------------- 3 7/18/01 SHERIFF'S RETURN FILED Litigant.: MOUNTZ MICHAEL LEE SERVED : 7/17/01 COMPLAINT CARLISLE PA Costs....: $19.25 Pd By: ANDREW OSTROWSKI 07/18/2001 ---------- -------------------------------------------------- 4 8/07/01 ENTRY OF APPEARANCE FOR DEFTS BY ROGER M MORGENTAL ESQ FOR DEFTS ----------- -------------- 5 8/27/01 ANSWER OF DEFENDANT MICHAEL LEE MOUNTZ - BY ROGER M MORGENTHAL ESQ ----------------- ---------------------------------------- 6 9/07/01 ENTRY OF APPEARANCE FOR DEFT - BY THOMAS J JOHANSON ESQ ------------------------------------------------------------------ 7 9/17/01 DEFENDANT ROSS STORES INC ANSWR TO PLFFS COMPLAINT WITH NEW MATTER - BY THOMAS J JOHANSON ESQ FOR DEFT ----------------------- ---------- ----- 8 9/26/01 DEFENDANT ROSS STORES INC AMENDED ANSWER TO PLFF'S COMPLAINT WITH NEW MATTER - BY THOMAS J JOHNSON ESQ FOR DEFT ------------------------------------------------------------------------------- 9 1/15/02 MOTION FOR SUMMARY JUDGMENT OF DEFT ROSS STORES INC - BY ROBERT M STROH ESQ FOR DEFT ---------------------------------------- ------------------------------ 10 2/11/02 ANSWER TO DEFT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE - BY ANDREW J OSTROWSKI ESQ FOR PLFF 11 2/14/02 ORDER OF COURT - DATED 2/14/02 IN RE ANSWER TO DEFT 'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE - RULE RETURNABLE 20 DAYS AFTER SERVICE - IF DEFT RESPONDS TO THE MOTION TO STRIKE EITHER PARTY MAY THEN LIST BOTH MATTER FOR ARGUMENT COURT - BY THE COURT EDWARD E GUIDO J COPIES MAILED 2/14/02 --------------------- -------------------------------------------------- 12 2/20/02 REPLY TO NEW MATTER OF DEFENDANT ROSS STORES BY ANDREW J OSTROWSKI ATTY FOR PLFF ------------------------- ------------------------------------------------ 13 2/20/02 REPLY TO NEW MATTER OF DEFENDANT MOUNTZ BY ANDREW J OSTROWSKI ATTY FOR PLFF ------------------------------------------------------------------------------- 14 2/25/02 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT - BY THOMAS J JOHANSON ESQ FOR DEFT ------------------ ------ ---- -------------------------------- l5 2/22/02 DEFENDANT ROSS STORES INC'S ANSWER TO PLFF'S MOTION TO STRIKE - BY THOMAS J JOHANSON ESQ FOR DEFT ---- -------------------------------------------------------------- 16 4/02/02 ORDER OF COURT - DATED 4/2/02 - IN RE MOTION OF DEFT ROSS STORES INC FOR SUMMARY JUDGMENT - AFTER CAREFUL CONSIDERATION OF THE BRIEF AND ORAL ARGUMENT THE DEFTS MOTION IS REFUSES AS BEING PREMATURE - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED 4/2/02 ------------------------------------------------------------------------------- 17 6/20/03 WITHDRAWAL OF APPEARANCE FOR DEFT - BY THOMAS J JOHANSON AND ENTRY OF APPEARANCE FOR DEFT - BY PATRICK C LAMB ------------------------------------------------------------------------------- 18 4/08/04 DEFENDANT ROSS STORES INC'S MOTION FOR A PROTECTIVE ORDER - BY PATRICK C LAMB ESQ FOR DEFT -- ----------------------------------------------------------------------- 19 4/12/04 PLAINTIFF'S RESPONSE TO DEFT ROSS STORES INC'S MOTION FOR A PROTECTIVE ORDER - BY ANDREW J OSTROWSKI ESQ FOR PLFF ------- ----------------------------------------------------------------- 20 4/12/04 PETITION FOR WRIT OF HABEAS CORPUS - BY ANDREW J OSTROWSKI ESQ FOR PLFF ------------------------------------------------------------------------------- 21 4/16/04 ORDER - DATED 4/16/04 - IN RE PLFF'S PETITION FOR WRIT OF HABEAS CORPUS - IT IS HEREBY ORDERED THAT THE WARDEN OF SCI WAYMART IS TO ARRANGE FOR THE DEPOSITION OF MICHAEL LEE MOUNTS FN 1548 ON THE FOLLOWING DATE CONVENIET TO THE WARDEN AND COUNSEL - AT THE CORRECTIONAL INSTITUTE AT WAYMART - COUNSEL FOR PLFF IS DIRECTED MUHAREM NEZIC : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC.; and : NO. 2001-4178 CIVIL TERM MICHAEL LEE MOUNTZ : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 20TH day of APRIL, 2004, a conference on Defendant Ross Stores, Inc., request for a protective order is scheduled before the undersigned on THURSDAY, MAY 6, 2004, at 3:30 mm. Defense counsel is directed to bring the disputed material to the conference. Edward E. Guido, J. /Andrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, Pa. 17110 v,roseph N. Bongiovanni IV, Esquire Patrick C. Lamb, Esquire 1880 John Kennedy Blvd., Suite 1200 Phila., Pa. 19103 Xoger M. Morgenthal, Esquire 95 Alexander Spring Road Carlisle, Pa. 17013 I . sld iLM, I ,r. sr?; , Hit' ??? Sri MOHAREM NEZIC Vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ A??004 COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION No.: 01-4178 ORDER AND NOW, this day of April, 2004, upon consideration of Plaintiff's Response to Defendant Ross Stores, Inc.'s Motion for Protective Order, it is hereby ORDERED the Defendant Ross Stores, Inc is directed to produce the personnel file of Michael Lee Mountz to the Plaintiff within ten days. BY THE COURT, J. MUHAREM NEZIC VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION Nor: 01-4178 PLAINTIFF'S RESPONSE TO DEFENDANT ROSS STORES, INC.'S MOTION FOR A PROTECTIVE ORDER AND NOW, comes Plaintiff, Muharem Nezic, by and through his attorney, Andrew I Ostrowski, Esquire, and in support of his Response to Defendant Ross Stores, Inc.'s Motion for a Protective Order avers as follows: 1. On or about October 22, 2003, Plaintiff served Defendant Ross Stores Inc. with a Request for the Production of Documents which included the request of Defendant Michael Lee Mountz, a former Ross Stores employee, personnel file. 2. On or about April 2, 2004 Defendant Ross Stores, Inc. filed a Motion for Protective Order stating that the personnel file of Defendant Mountz contains information, the disclosure of which would violate Defendant Mountz' privacy interest. 3. In his Complaint, Plaintiff alleges that he suffered injuries due to an altercation with Defendant Mountz that occurred during a shift worked by both Plaintiff and Defendant Mountz who is currently in prison and no longer employed by Ross Stores, Inc. 4. Plaintiff further alleges that Defendant Ross Stores had actual and/or constructive knowledge of the violent propensities of Defendant Mountz through past actions and/or conduct of Mountz where he exhibited such tendencies towards other employees. 5. The requested information is directly relevant and material to Plaintiff's case-in-chief against Ross Stores, Inc., and to Plaintiff's ability to respond to Defendant Ross Workers' Compensation exclusivity defense. 6. Plaintiff submits that a protective order is not appropriate under these circumstances and asks this Court to direct Defendant Ross Stores to produce the requested information. WHEREFORE, Plaintiff respectfully request that this Court issue and Order denying Defendant Ross Stores, Inc.'s Motion for a Protective Order and directing Defendant Ross Stores, Inc. to produce the requested information. Respectfiilly bmitted, Andrew 7. strowski, Esquire PA I.D. No.: 66420 BAILEY, STRETToN & OmowsKI 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: April 9, 2004 *4 { ? l CERTIFICATE OF SERVICE I, Angela L. Hewitt, an employee of Andrew J. Ostrowski, hereby certify that the foregoing document is being served, by depositing a copy of the same in the U. S. mail, first-class mail, and addressed as follows: Joseph N. Bongiovanni, IV, Esquire Marks, O'Neill, O'Brien & Courtney, P.C. Suite 1200 1880 John F. Kennedy Boulevard Philadelphia, PA 19103 Roger Morganthall, Esquire 2515 North Front Street Harrisburg, PA 17110-1150 Angela L. Hewitt 4311 North Sixth Street Harrisburg, PA 17110 717-221-9500 Date: April 9, 2004 t? 8 23 23 ?' e T Tf '? C N I MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICK C. LAMB, ESQUIRE JOSEPH N. BONGIOVANNI, IV, ESQUIRE IDENTIFICATION NOS. 70817/87848 1880 JOHN F. KENNEDY BLVD, 12TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 228-69990 MUHAREM NEZIC VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ NPR 2004 ATTORNEY OR DEFENDANT, ROSS STORES, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION NO. 01-4178 ORDER AND NOW, this day of , 2004, upon consideration of Defendant, Ross Stores, hic.'s Motion for Protective Order and any response thereto, it is hereby ORDERED and DECREED, that said Motion is GRANTED, thereby absolving Defendant, Ross Stores, Inc. from its obligation to produce Michael Lee Mountz' employee personnel record. BY THE COURT: J. V PHO76084 4 MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICK C. LAMB, ESQUIRE JOSEPH N. BONGIOVANNI, IV, ESQUIRE IDENTIFICATION NOS. 70817/87848 ATTORNEY FOR DEFENDANT, 1880 JOHN F. KENNEDY BLVD, 12TH FLOOR ROSS STORES, INC. PHILADELPHIA, PA 19103 (215) 564-6688 Our File No. 228-69990 MUHAREM NEZIC VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION ROSS STORES, INC. and MICHAEL LEE MOUNTZ NO. 01-4178 DEFENDANT ROSS STORES. INC.'S MOTION FOR A PROTECTIVE ORDER And now, Defendant, Ross Stores, Inc., by and through its attorneys, hereby moves this Honorable Court for a protective order under Pa. R.C. P. 4012(a) thereby absolving Ross Stores, Inc. from its obligation to produce Michael Lee Mountz' personnel file from his employment with Ross Stores, Inc. In support of this motion, Defendant avers as follows: Plaintiff filed suit alleging injuries from a work-related altercation on October 29, 1999. (See Complaint, which is attached without admission thereto, as Exhibit "A.") 2. Plaintiff, in his Complaint, alleges that he sustained injuries when co-defendant, Michael Lee Mountz assaulted him during their regularly scheduled shift at the Ross Stores East Coast Distribution Center in Carlisle, Pennsylvania. Plaintiff, in his Request for Production of Documents, has requested a copy of co-defendant's personnel file from Defendant, Ross Stores, Inc. Plaintiff also requested a copy of his own personnel file. 4. Defendant has produced plaintiffs personnel file on April 1, 2004. PHO16084 Under Pa. R.C.P. 4012, protective orders are permitted where, upon good cause shown, justice requires protection of a party from, inter alia, unreasonable annoyance, embarrassment, oppression, burden or expense. 6. The outstanding documents requested by plaintiff are personnel records for Michael Lee Mountz, a former employee of Ross Stores, Inc. These records contain, inter alia, non-public benefits information, private benefits information, non-public employee application documents, and statements from co-employees with whom Michael Lee Mountz appeared to have consensual relations. In the context of discovery, it is well-established that a parry wishing to obtain an order of protection over discovery material must demonstrate that "good cause" exists for the order of protection. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (citation omitted). See also Fed.R.Civ.P. 26(c). In considering whether cause exists for a protective order: [T]he court ... must balance the requesting party's need for information against the injury that might result if uncontrolled disclosure is compelled. When the risk of harm to the owner of... confidential information outweighs the need for discovery, disclosure [through discovery] cannot be compelled, but this is an infrequent result. Once the court determines that ... the materials be disclosed, the issue becomes whether they should "be disclosed only in a designated way," as authorized by Rule 26(c)(7).... Whether this disclosure will be limited depends on a judicial balancing of the harm to the party seeking protection ... and the importance of disclosure to the public. Pansy, 23 F.3d at 787. The Third Circuit instructed that courts should consider the following non- exhaustive list of factors when considering whether good cause exists to grant a request for a protective order: (1) whether the disclosure will violate any privacy interest; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure will cause a party embarrassment; (4) whether the information is important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentially is a public entity or official; (7) whether the case involves PH076084 issues important to the public; and (8) whether an order of confidentiality will promote settlement of the lawsuit. Id. at 787-88. See also Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (same). 8. Here, the disclosure would violate Michael Lee Mountz' privacy interests. Further, it may cause embarrassment for Michael Lee Mountz and non-party individuals. As the information sought will not further a legitimate, purpose, Defendant, Ross Stores, Inc. seeks the Court's protection. WHEREFORE, Defendant, Ross Stores, Inc. respectfully requests this Honorable Court enter an Order in the form attached hereto. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. By: Z;2?? Patric Lamb, Es ire Joseph N. Bongiova i, IV, Esquire Attorneys for Defendant, Ross Stores, Inc. PH076084 MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICK C. LAMB, ESQUIRE JOSEPH N. BONGIOVANNI, IV, ESQUIRE IDENTIFICATION NOS. 70817/87848 1880 JOHN F. KENNEDY BLVD, 12TH FLOOR PHILADELPHIA, PA 19103 (215) 564-6688 ATTORNEY FOR DEFENDANT, ROSS STORES, INC. Our File No. 228-69990 MUHAREM NEZIC vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION ROSS STORES, INC. and MICHAEL LEE MOUNTZ NO. 01-4178 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ROSS STORES, INC.'S MOTION FOR A PROTECTIVE ORDER Brief Summary of Facts: Plaintiff filed suit alleging injuries from a work-related altercation on October 29, 1999. In his complaint, Plaintiff alleges that he sustained injuries when co-defendant, Michael Lee Mountz, assaulted him during their regularly scheduled shift at the Ross Stores East Coast Distribution Center in Carlisle, Pennsylvania. Plaintiff, in his Request for Production of Documents, has requested a copy of co-defendant's personnel file from Defendant, Ross Stores, Inc. Plaintiff also requested a copy of his own personnel file. Defendant produced plaintiffs personnel file on April 1, 2004. Under Pa. R.C.P. 4012, protective orders are permitted where, upon good cause shown, justice requires protection of a party from, inter alia, unreasonable annoyance, embarrassment, oppression, burden or expense. The outstanding documents requested by plaintiff are personnel records for Michael Lee Mountz, a former employee of Ross Stores, Inc. These records contain, inter alia, non-public benefits information, private benefits information, non-public employee application documents, and statements from co-employees with whom Michael Lee Mountz appeared to have consensual relations. Summary of Law• In the context of discovery, it is well-established that a party wishing to obtain an order of protection over discovery material must demonstrate that "good cause" exists for the order of protection. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (citation omitted). See also Fed.R.Civ.P. 26(c). In considering whether cause exists for a protective order: PRO76094 [T]he court ... must balance the requesting party's need for information against the injury that might result if uncontrolled disclosure is compelled. When the risk of harm to the owner of... confidential information outweighs the need for discovery, disclosure [through discovery] cannot be compelled, but this is an infrequent result. Once the court determines that ... the materials be disclosed, the issue becomes whether they should "be disclosed only in a designated way," as authorized by Rule 26(c)(7).... Whether this disclosure will be limited depends on a judicial balancing of the harm to the party seeking protection ... and the importance of disclosure to the public. Pansy, 23 F.3d at 787. The Third Circuit instructed that courts should consider the following non- exhaustive list of factors when considering whether good cause exists to grant a request for a protective order: (1) whether the disclosure will violate any privacy interest; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure will cause a party embarrassment; (4) whether the information is important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentially is a public entity or official; (7) whether the case involves issues important to the public; and (8) whether an order of confidentiality will promote settlement of the lawsuit. Id. at 787-88. See also Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (same). Here, the disclosure would violate Michael Lee Mountz' privacy interests. Further, it may cause embarrassment for Michael Lee Mountz and non-party individuals. As the information sought will not further a legitimate purpose, Defendant, Ross Stores, hic. seeks the Court's protection. PH076084 WHEREFORE, Defendant, Ross Stores, Inc. respectfully requests this Honorable Court enter an Order iti the form attached hereto. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. By: Patric amb, uire Jose Bongio ', IV, Esquire Attorneys for Defendant, Ross Stores, Inc. PH076084 MUHAREM NEZIC Plaintiff vs. IN TIC COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: OI , 417 ROSS STORES, INC,; and MICHAEL LEE MOUNTZ, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 judgement may be entered against you by the court without further notice for any money claimed in the petition or for any other claim or relief requested by the plaintiff. You nay 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 r TRUE COPY FROM RECORD la TWA*wy w -, I %wee unto sot rtig Mod am ow sto (r .'t-a q'tw t at,Caai'liSle, PL MUHAREM NEZIC Plaintiff VS. ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, :PENNSYLVANIA : NO.. : CIVIL ACTION - LAW : JURY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff, Muharem Nezic, by his attorney, Andrew Ostrowski, Esquire, and in bringing this action before this Court avers as follows: 1. Plaintiff, Muharem Nezic, an adult individual, resides at 520 Third Street, Carlisle, Pennsylvania 17013. 2. Defendant, Ross Stores, Inc. is, upon information and belief, a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its registered office or principal place ofbusiness located at 1707 ShearerDrive, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Michael Lee Mountz, an adult individual, resides at 262 Mt. Zion Road, Carlisle Cumberland County, Pennsylvania 17013. 4. At all times relevant hereto, Plaintiff and Defendant Mountz were employed by Defendant Ross Stores Inc.. 1 On Oct. 29, 1999, Defendant Mountz physically assaulted Plaintiff, intentionally and without cause or provocation, by beating Plaintiff with his hands and fists in and around Plaintiff's face and head, fracturing Plaintiff's jaw, causing the loss of several teeth and other contusions and lacerations, for all of which Plaintiff required and sought to medical attention. 6. Upon information and belief, Mountz' beating of Plaintiff was motivated by his personal animus towards Plaintiff and not for any employment-related reasons. The beating Plaintiff suffered at the hands of Mountz occurred on the premises of Defendant Ross Stores, Inc. during a regularly scheduled shift being worked by Plaintiff. 8. Upon information and belief, Defendant Ross Stores, Inc. had actual and/or constructive knowledge of the violent propensities ofDefendant Mountz through past actions and/or. conduct of Mountz where he exhibited such tendencies towards other employees. COUNTI 9. Plaintiff incorporates paragraphs 1-8 of his Complaint as if fully rewritten herein. 10. Defendant Ross Stores, Inc. owes a duty of care to Plaintiff to provide him with a workplace free from the risk of violence inflicted by employees with a propensity for such behavior against other employees for reasons unrelated to their work. 11. Defendant Ross Stores, Inc. was negligent by failing to exercise the degree of care necessary to protect Plaintiff from the violent assault inflicted upon him by Defendant Mountz when Defendant Ross stores Inc. new and/or should have known of the risk of harm to Plaintiff as a result of such actions. 12. Asa direct and proximate result ofthe negligence and carelessness ofDefendant Ross Stores, Inc., Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment, 13. As an additional direct and proximate result of Defendants' negligence and carelessness, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. 14. As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiff demandsjudgment in his favor, and against Defendant Ross Stores; Inc., for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. COUNT TWO 15. Plaintiff incorporates paragraphs 1-14 of his Complaint as if fully rewritten herein. 16. Defendant Mountz' beating of Plaintiff constitutes the intentional tort of assault and battery for which Plaintiff may recover damages at law for the injuries inflicted upon him. 17. As a direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 18. As an additional direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. 19. As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiff demands judgment in his favor, and against Defendant NEchael Lee Mountz, for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. Respectfully submitted, By Andrew J. Ostro ski, Esquire Supreme Ct. I.D. No. 66420 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: July 6, 2001 VERIFICATION I, Muharem Nezic, hereby state that I am the Plaintiffherein and that I have reviewed the foregoing Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief, and, that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Dated: O/W- 06- I Muharem Nezic CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant Ross Stores, Inc.'s Motion for a Protective Order and Memorandum of Law in Support Thereto was sent by first-class U.S. mail, postage prepaid, to the counsel below listed: Andrew J. Ostrowski, Esquire Bailey, Stretton & Ostrowski 4311 N. Sixth Street Harrisburg, PA 17110 Counsel for Plaintiff Roger M. Morgenthal, Esquire Fishman & Morgenthal 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013-9137 Counsel for Defendant, Michael Lee Mountz Jose . Bongi6vfvff, squire Date: 4 /Z/b? PH076084 [mil r.) rc.? l7 F 7 co _ 1. "? r 1 ' ?J ?af1 \ O Fk2'7 2002 GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33'd Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC Plaintiff vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED a Defendant ORDER AND NOW, on this day of , 2002, upon consideration of Defendant, Ross Stores Inc.'s Answer to Plaintiffs Motion to Strike Defendant's Motion for Summary Judgment, and any response thereto, it is hereby ORDERED and DECREED that Defendant's Motion for Summary Judgment is GRANTED. J. ru: GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33`d Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC Plaintiff VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ Defendant COURT OF COMMON PLEASi= ; CUMBERLAND COUNTY, PA L' NO. 01-4178 % CIVIL ACTION JURY TRIAL DEMANDED DEFENDANT, ROSS STORES, INC.'S ANSWER TO PLAINTIFF'S MOTION TO STRIKE Defendant Ross Stores, Inc., by it's attorney Thomas J. Johanson in answer to Plaintiffs Motion To Strike avers as follows: 18. The allegations made in defendant's previously filed Motion for Summary Judgment are incorporated herein by reference in their entirety. 19. Denied. On the contrary defendant's Motion shows clearly that the incident arose solely from employment and not as a result of any personal animus. 20. Denied. After reasonable investigation, moving defendant is unable to determine the truth of the averment therefore it is denied 21. Denied. Defendant's Motion speaks for itself, all other allegations are denied as a conclusion of law. 22. Denied. The facts are clearly laid out in and defendant's Motion for Summary Judgment. Defendant, Mountz struck plaintiff Nezic as the result of a dispute about work. Moreoverc Plaintiffs Answer and Motion to Strike do not raise any disputed factual issues. Plaintiff instead relied on a purely conclusive allegation, not supported by any facts. WHEREFORE, moving Defendant, Ross Stores, Inc. respectfully request that this Honorable Court Grant it's Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc. and against all parties. Respectfully submitted, GOLDFEIN & HOSMER By. THOMAS J.JOHANSON Attorney for Defendant, Ross Stores, Inc. 4M 7 2002 GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33'a Floor Philadelphia, PA 19103 (215) 979-8200 MUHAREM NEZIC Plaintiff VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ Defendant Attorney for Defendant, Ross Stores, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED ORDER AND NOW, on this day of , 2002, upon consideration of Defendant, Ross Stores Inc.'s Answer to Plaintiff s Motion to Strike Defendant's Motion for Summary Judgment, and any response thereto, it is hereby ORDERED and DECREED that Defendant's Motion for Summary Judgment is GRANTED. a J. GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33'' Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC Plaintiff vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ Defendant COURT OF COMMON PLEAS; CUMBERLAND COUNTY, PAS r c NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED " DEFENDANT. ROSS STORES. INC.'S ANSWER TO PLAINTIFF'S MOTION TO STRIKE Defendant Ross Stores, Inc., by it's attorney Thomas J. Johanson in answer to Plaintiffs Motion To Strike avers as follows: 18. The allegations made in defendant's previously filed Motion for Summary Judgment are incorporated herein by reference in their entirety. 19. Denied. On the contrary defendant's Motion shows clearly that the incident arose solely from employment and not as a result of any personal animus. 20. Denied. After reasonable investigation, moving defendant is unable to determine the truth of the averment therefore it is denied. 21. Denied. Defendant's Motion speaks for itself, all other allegations are denied as a conclusion of law. 22. Denied. The facts are clearly laid out in and defendant's Motion for Summary Judgment. Defendant, Mountz struck plaintiff Nezic as the result of a dispute about work. Moreover, Plaintiffs Answer and Motion to Strike do not raise any disputed factual issues. Plaintiff instead relied on a purely conclusive allegation, not supported by any facts. WHEREFORE, moving Defendant, Ross Stores, Inc. respectfully request that this Honorable Court Grant it's Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc. and against all parties. Respectfully submitted, GOLDFEIN & HOSMER By: V??. ?? ?YC? THOMAS J.JOHANSON Attorney for Defendant, Ross Stores, Inc. FEB 2 7 202 GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33`d Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC Plaintiff VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED a Defendant ORDER AND NOW, on this day of , 2002, upon consideration of Defendant, Ross Stores Inc.'s Answer to Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment, and any response thereto, it is hereby ORDERED and DECREED that Defendant's Motion for Summary Judgment is GRANTED. J. GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33'd Floor Philadelphia, PA 19103 (215) 979-8200 MUHAREM NEZIC Plaintiff vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ Defendant Attorney for Defendant, Ross Stores, Inc. COURT OF COMMON PLEAS r._ CUMBERLAND COUNTY, PA ,f NO. 01-4178 CIVIL ACTION = - JURY TRIAL DEMANDED DEFENDANT. ROSS STORES, INC.'S ANSWER TO PLAINTIFF'S MOTION TO STRIKE Defendant Ross Stores, Inc., by it's attorney Thomas J. Johanson in answer to Plaintifrs Motion To Strike avers as follows: 18. The allegations made in defendant's previously filed Motion for Summary Judgment are incorporated herein by reference in their entirety. 19. Denied. On the contrary defendant's Motion shows clearly that the incident arose solely from employment and not as a result of any personal animus. 20. Denied. After reasonable investigation, moving defendant is unable to determine the truth of the averment therefore it is denied 21. Denied. Defendant's Motion speaks for itself, all other allegations are denied as a conclusion of law. 22. Denied. The facts are clearly laid out in and defendant's Motion for Summary Judgment. Defendant, Mountz struck plaintiff Nezic as the result of a dispute about work. Moreover, Plaintiffs Answer and Motion to Strike do not raise any disputed factual issues. Plaintiff instead relied on a purely conclusive allegation, not supported by any facts. WHEREFORE, moving Defendant, Ross Stores, Inc. respectfully request that this Honorable Court Grant it's Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc. and against all parties. Respectfully submitted, GOLDFEIN & HOSMER THOMAS J.JOHANSON Attorney for Defendant, Ross Stores, Inc. F€k 7 2002 11 GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33`d Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC Plaintiff VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ Defendant AND NOW, on this COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED ORDER day of , 2002, upon consideration of Defendant, Ross Stores Inc.'s Answer to Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment, and any response thereto, it is hereby ORDERED and DECREED that Defendant's Motion for Summary Judgment is GRANTED. J. a GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33rd Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC Plaintiff vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA- -7i NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED i DEFENDANT. ROSS STORES. INC.'S ANSWER TO PLAINTIFF'S MOTION TO STRIKE Defendant Ross Stores, Inc., by it's attorney Thomas J. Johanson in answer to Plaintiffs Motion To Strike avers as follows: 18. The allegations made in defendant's previously filed Motion for Summary Judgment are incorporated herein by reference in their entirety. 19. Denied. On the contrary defendant's Motion shows clearly that the incident arose solely from employment and not as a result of any personal animus. 20. Denied. After reasonable investigation, moving defendant is unable to determine the truth of the averment therefore it is denied. 21. Denied. Defendant's Motion speaks for itself, all other allegations are denied as a conclusion of law. 22. Denied. The facts are clearly laid out in and defendant's Motion for Summary Judgment. Defendant, Mountz struck plaintiff Nezic as the result of a dispute about work. Moreover Plaintiffs Answer and Motion to Strike do not raise any disputed factual issues. Plaintiff instead relied on a purely conclusive allegation, not supported by any facts. WHEREFORE, moving Defendant, Ross Stores, Inc. respectfully request that this Honorable Court Grant it's Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc. and against all parties. Respectfully submitted, GOLDFEIN & HOSMER THOMAS J. JOHANSON Attorney for Defendant, Ross Stores, Inc. ri },a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, Plaintiff vs. ROSS STORES, INC., and MICHAEL LEE MOUNTZ, Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this day of , 2002, upon consideration of the Motion for Summary Judgment of Ross Stores, Inc., it is hereby ORDERED that: 1. A Rule is issued upon the Respondents to show cause why Ross Stores, Inc., is not entitled to the relief requested; 2. The Respondents may file a Response to the Motion for Summary Judgment of Ross Stores, Inc., on or before BY THE COURT: J. r •. ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, Plaintiff vs. ROSS STORES, INC., and MICHAEL LEE MOUNTZ, Defendants ORDER AND NOW, this day of , 2002, upon consideration of the Motion for Summary Judgment of defendant, Ross Stores, Inc., and any Response thereto, it is hereby ORDERED and DECREED that the motion is GRANTED and all claims, including cross-claims, against Ross Stores, Inc., are dismissed with prejudice and judgment is entered in favor of Ross Stores, Inc., and against all parties in this matter. BY THE COURT: COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, Plaintiff vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY ROSS STORES, INC., and NO. 01-4178 MICHAEL LEE MOUNTZ, CIVIL ACTION JURY TRIAL DEMANDED Defendants ----------------I------------------------------------------------------------------------------------- MOTION FOR SUMMARY JUDGMENT OF DEFENDANT. ROSS STORES. INC. Defendant, Ross Stores, Inc. ("Ross Stores"), by and through its attorneys, Goldfein & Hosmer, hereby moves this Honorable Court to grant its Motion for Summary Judgment, pursuant to Pa. R.C.P. 1035.2, as to all parties on all claims for the reasons set forth herein: 1. Plaintiff, Muharem Nezic, was assaulted on October 29, 1999, by a co-worker, Michael Lee Mountz, while working at Ross Distribution during his regularly scheduled shift. 2. Nezic provided a statement to his employer, Ross Stores, immediately following the assault. Plaintiff reported that he was involved in a verbal argument with Mike Mountz, a Ross Stores' co-worker, over roller space that ended in Mountz punching him in the mouth. (See, Statement of Muharem Nezic, a copy of which is attached as Exhibit "A.") 1 y 3. There was no allegation, in the statement, that the injuries were not work related or that Nezic was assaulted by the co-worker for purely personal reasons. 4. Nezic, filed a Police Report on November 1, 1999, in which he stated that he had been assaulted on October 29, 1999, while working at Ross Distribution by a co-worker. The report stated that, "[T]he incident occurred over a work problem that Mountz [co-worker] tried to rectify through his own personal manner." (See, Carlisle Police Report, a copy of which is attached as Exhibit "B.") 5. There was no allegation, in the Police Report, that the claimed injuries were not work related or that Nezic was assaulted by the co-worker for purely personal reasons. 6. On January 31, 2001, Andrew J. Ostrowski, Esquire, advised Ross Stores that he represented "Muharem Nezic who was injured when assaulted by Michael Lee Mountz [co-worker] on October 29, 1999, during the course of employment." See, Ostrowski correspondence of January 31, 2001, a copy of which as attached as Exhibit T.") 7. There was no allegation, by counsel, that the claimed injuries were not work related or that Nezic was assaulted by the co-worker for purely personal reasons. 8. Under the Pennsylvania Workmen's Compensation Act, 77 P.S. §1 et seg., an employer, such as Ross Stores, shall be liable for compensation for 2 personal injury to an employee for an injury sustained in the course of his employment without regard to negligence. 9. Plaintiff presented a claim and received benefits, pursuant to the Pennsylvania Workmen's Compensation Act, from Ross Stores for the injuries allegedly sustained in the assault by a co-worker on October 29, 1999, during the course of his employment over a work problem. 10. On or about July 9, 2001, Andrew J. Ostrowski, Esquire, on behalf of Muharem Nezic, filed a Complaint against Ross Stores and the co-worker, Michael Lee Mountz, for the injuries allegedly sustained by plaintiff on October 29, 1999, following an assault "during a regularly scheduled shift being worked by plaintiff." (See, plaintiffs Complaint, a copy of which is attached as Exhibit 11. Ross Stores filed an Amended Answer with New Matter to the Complaint on or about September 26, 2001, in which it denied any liability to plaintiff. (See, Defendant, Ross Stores, Inc., Amended Answer to Plaintiffs Complaint with New Matter, a copy of which is attached as Exhibit T.") 12. Ross Stores, in its New Matter, averred that plaintiffs sole remedy, if any, was under the Workmen's Compensation Act as plaintiffs claimed injuries were suffered while at work as an employee of Ross Stores. (See, Exhibit "E," at Paragraph 7.) 13. Plaintiff has not, in any pleading, denied that his sole remedy, as to Ross Stores, is under the Workmen's Compensation Act. 3 14. There is no credible evidence that the injuries sustained by plaintiff, Muharem Nezic, were inflicted for personal reasons. 15. Ross Stores, as the employer of Muharem Nezic, is entitled to immunity from civil suit for alleged negligence causing harm to plaintiff. 16. Ross Stores, as the employer of Muharem Nezic, also has immunity from the cross-claim of co-defendant. 17. The Complaint of plaintiff, and any cross-claim of the co-defendant, must be dismissed with prejudice because, as a matter of law, Ross Stores is the employer of plaintiff, Muharem Nezic, and, as such, is immune from suit. WHEREFORE, defendant, Ross Stores, Inc., respectfully requests that this Honorable Court grant its Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc., and against all parties. Respectfully submitted, GOLDFEIN & BY: Thomas J/Johanson Robert M. Stroh Attorneys for Defendant, Ross Stores, Inc. 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY VS. ROSS STORES, INC., and NO. 01-4178 MICHAEL LEE MOUNTZ, CIVIL ACTION JURY TRIAL DEMANDED Defendants ------------------------------------------------------------------------------------------------------ MEMORANDUM OF LAW OF ROSS STORES, INC., IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Plaintiff, Muharem Nezic, has filed suit against his employer, Ross Stores, Inc. ("Ross Stores"), and co-worker, Michael Lee Mountz, for claimed injuries, a fractured jaw and the loss of several teeth, following an assault at work by a co- worker, Mountz, on October 29, 1999. Nezic and . Mountz were employed by Ross Stores at their Distribution Center in Carlisle, Pennsylvania as Merchandise Processors. On October 29, 1999, Nezic and Mountz were operating forklifts in the Receiving Dock area. Nezic was placing empty skids in the Roller Space Line while Mountz was taking loaded skids from the Roller Space Line to the Bulk area. The placement of the empty skids on "the line," by plaintiff, interfered with Mountz taking his skids to the Bulk area. A disagreement arose between Nezic and Mountz over the placement of the empty skids on "the line" by plaintiff. This work-related disagreement, between co-workers, culminated in Mountz punching plaintiff in the mouth. In a statement taken from Nezic, immediately following this incident, he reported that he was involved in a verbal argument with Mike Mountz, a co- worker at Ross Stores, over roller space that ended in Mountz punching him in the mouth. (See, Statement of Muharem Nezic, Exhibit "A.") Nezic, in the statement, did not claim that the assault was not work related or that the assault by Mountz was motivated by purely personal reasons. Nezic, on November 1, 1999, filed a report with the Carlisle Police Department in which he stated that he had been assaulted, while working at Ross Distribution, over a "work problem" with Michael Mountz, a co-worker. (See, Carlisle Police Report, Exhibit "B.") At no point in time did Nezic claim that the assault by Mountz was not work related or that the assault by Mountz was motivated by purely personal reasons. Nezic received workmen's compensation benefits from Ross Stores following this incident. Nezic, at some point in time, retain attorney. Ostrowski, with the knowledge Stores on July 9, 2001, of his Andrew J. Ostrowski, Esquire, as his assent of Nezic, advised Ross of Nezic "who was injured when assaulted by Michael Lee Mountz [co-worker] on October 29, 1999, during the course of his employment." (emphasis added). (See, Ostrowski correspondence, Exhibit "C.") At no point did Ostrowski allege that the assault by Mountz was not 2 work related or that the assault by Mountz was motivated by purely personal reasons.' STANDARD FOR MOTION FOR SUMMARY JUDGMENT Pennsylvania Rule of Civil Procedure 1035.2 governs summary judgment and states, in pertinent part: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment.. as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. The Pennsylvania Supreme Court, in Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512 (1996), embraced the reasoning of the U.S. Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986), and Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505 (1986), with regard to the standard of review to be applied to a motion for summary judgment. The court, in recognizing the unreasonableness It is interesting to note that they was no allegation that the attack was the result of personal reasons until the filing of the Complaint on July 28, 2001, 21 months after the event, in which it baldly was averred, "[U]pon information and belief, Mountz' [sic] beating of plaintiff was motivated by his personal animus toward plaintiff and not for any employment-related reasons." See, Exhibit "D;" at Paragraph 6.) 3 of "allowing non-moving parties to avoid summary judgment where they have no evidence to support an issue on which they bear the burden of proof," held: [A] non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Id., 674 A.2d at 1042. The burden now rests with the non-moving parties, the plaintiff and Michael Mountz in this instance, to come forward with evidence to negate the motion for summary judgment of Ross Stores. It is not enough for plaintiff, to avoid summary judgment, to rest on the mere allegations contained in the Complaint. Wilkinson v. K-Mart, 412 Pa. Super. 434, 603 A.2d 659 (1992). Nor is it enough for the co-defendant, to avoid summary judgment, to rest on boilerplate averments contained in a cross-claim. SUMMARY JUDGMENT IS PROPER AS TO ROSS STORES. INC. Ross Stores is the employer of Muharem Nezic and is entitled to immunity from civil suit for negligence claims. As a general rule, the Pennsylvania Workmen's Compensation Act provides the exclusive remedy for an employee, such as Nezic, who seeks recovery for injuries sustained in the course of his employment. Wagner v. Natural Indemni Co., 492 Pa. 154, 422 A.2d 1061, 1064 (1980). The Act 4 provides a specific exception, however, in cases where the injury is caused intentionally by third parties. Section 301(c) of the Act provides, in pertinent part: The term "injury arising in the course of his employment," as used in this article, shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment... (emphasis added.) 77 P.S. §411(1). This provision of the Act has been narrowly construed by the courts to allow recovery only in cases where the third party's actions against the employee were motivated by personal reasons unassociated with that particular employee's employment. Bachman Co. v. W.C.A.B. (Spence), 683 A.2d 1305, 1310, 1996 Pa. Cmmw. LEXIS 427 (Pa. Cmwth.1996). Applying this principle of law to the facts of the case, plaintiff does not fit within this narrow exception to the Act and Ross Stores is immune from civil suit because it is the employer of Nezic. Immediately following this incident, when recollections were fresh and uncluttered by other considerations, Nezic stated that he was assaulted by a co-worker, following a verbal argument over roller space in the Ross Distribution Center. (See, Statement of Muharem Nezic, Exhibit "A.") The statement provided by Nezic did not make any claim that the assault was motivated by personal animosity, or reasons, between himself and Michael Mountz, a co-worker. 5 The Commonwealth Court, in Bachman Co. v. W.C.A.B.(Spence), 683 A.2d 1305, 1996 Pa. Cmmw. LEXIS 427 (Pa. Cmwlth. 1996), was faced with a similar set of facts. The claimant, in Bachman, was assaulted following an argument over his refusal to back-up a company truck while purchasing gasoline. Although the assailant was not a co-worker, the court held that the attack was directly related to claimant's employment because the attack was precipitated by claimant's refusal to back-up the company truck and was not inflicted for personal reasons. As such, the injuries sustained by claimant did not fit within the meaning of the exclusionary provisions of Section 301 of the Act. Id. at 1310. In this case, plaintiff was assaulted following an argument over roller space in the Ross Distribution Center. Under these facts, the narrow exception to the Act allowing plaintiff to bring a negligence action against his employer only applies if a non-work related act provided the impetus for the assault. Kandra v. W.C.A.B. (Hills Dept. Store), 159 Pa. Cmwlth. 251, 632 A.2d 1069, 1072 (1993).2 There is no credible evidence that the assault was related to anything but Nezic's employment. There is no evidence, of any type, that a non-work related act provided the impetus for the assault of Nezic by Mountz. Plaintiff, therefore, cannot satisfy his burden of proving that the assault was the result of personal reasons by Mountz. 2 Furthermore, there is a rebuttable presumption that an injury is work related, and does not fit within this narrow exception, when it occurs on the employer's premises. Kohler v. McCrory Stores, 532 Pa.130, 615 A.2d 27, 30 (1992). 6 Further support that the claim of plaintiff, and cross-claim of defendant, should be dismissed with prejudice as to Ross Stores is found in the admission of counsel which is binding upon plaintiff. Counsel for plaintiff, by correspondence dated January 31, 2001, advised Ross Stores that he represented "Muharem Nezic who was injured when assaulted by Michael Mountz [co-worker] on October 29, 1999, during the course of his employment." (See, Ostrowski correspondence, Exhibit "C.") Plaintiff was "copied" on this correspondence. There was no mention that the assault of Nezic was the result of personal reasons unassociated with Nezic's employment with Ross Stores. Neither counsel nor Nezic repudiated this admission3 during the almost six month interval prior to filing the Complaint on, or about, July 9, 2001. There is no evidence, in the admission of counsel, that the assault of Nezic was related to anything but plaintiff's employment. There is no evidence, in the admission of counsel that a non-work related act provided the impetus for the assault of Nezic by Mountz. Plaintiff, based upon the admission of his counsel, cannot satisfy his burden of proving that the assault was the result of personal reasons by Mountz. CONCLUSION A party opposing a motion for summary judgment must adduce sufficient evidence on the issues on which it bears the burden of proof. It is not enough, to 3 Such an admission of counsel is binding and admissible as to a client where, as in this case, the attorney had the authority to make the admission and did so with the full knowledge and assent of his client. Hatbob v. Bra, 394 Pa. Super. 234, 575 A.2d 607, 613 (1990). 7 avoid summary judgment, for a party to rest on the mere allegations contained in the Complaint or the crossclaim. The non-moving party, or parties in this case, must come forward with evidence to negate the motion. Failure to adduce such evidence establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512 (1996). The evidence of record reveals that plaintiff, Muharem Nezic, reported to both his employer, Ross Stores, and the Carlisle Police Department that the assault, at work, on October 29, 1999, was the result of a work problem. Neither statement contained any allegation that the assault was due to personal, or non- work related, reasons. Counsel for plaintiff reiterated this admission, with the knowledge and assent of his client, to Ross Stores in his letter of representation. It was not until the filing of the Civil Action that there was a bald averment that the assault was not work related.4 Despite this bald averment, there is no evidence of record to support such a claim. Muharem Nezic, as an employee of Ross Stores, has forfeited any rights to damages from Ross Stores but for the remedy available under the Workmen's Compensation Act. The immunity from suit afforded Ross Stores, as the a ,Upon information and belief, Mountz' [sic] beating of plaintiff was motivated by his personal animus towards plaintiff and not for any employment-related reasons" (See, Complaint, Exhibit "D," at Paragraph 6.) 8 employer of Muharem Nezic, mandates that any crossclaim of the co-defendant be dismissed with prejudice. WHEREFORE, defendant, Ross Stores, Inc., respectfully requests that this Honorable Court grant its Motion for Summary Judgment and enter judgment in favor of Ross Stores, Inc., and against all parties. Respectfully submitted, GOLDFEIN & HOSMER By: Thdmas J. Jo?(anson Robert M. Stroh Attorneys for Defendant, Ross Stores, Inc. 9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC, Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY VS. ROSS STORES, INC., and MICHAEL LEE MOUNTZ, NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Robert M. Stroh, Esquire, co-counsel for defendant, Ross Stores, Inc., hereby certify that a true and correct copy of the Motion for Summary Judgment of Defendant, Ross Stores, Inc., was served, on thisl& day of January 2002, via first class U.S. Mail, postage prepaid on: Andrew J. Ostrowski, Esquire 2080 Linglestown Road Harrisburg, PA 17110 Roger M. Morgenthal, Esquire Salzmann, DePaulis, Fishman & Morgenthal, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 I Rob rt M. Stro 7: 5'5- I,?/ /o z 9. 9 19 /f/i/2eri// NK 2 / C i Uo/6c 2 U?C? &Q-O C - /Jt? ?r ?r?rO;y c Per s?.ps hY a ;?// ?? ?n o f !./1 ?? wr?J /.? !?a-? /i?t ? ?„e? u,c..-r mot' w, n? /?a ? /l' (H n c r 1lfi J ?? 43 tDJV,J- A/+92 L /.? 7TVf - / 114 l? ui-S Ly 4w,;., :o a &ti siAI-Ai jlit" A'Y'RTz- . METRO THE HARRISBURG AREA POLICE INFORMATION RESOURCE SYSTEM (ICRIPINC) PAGE: 2 09/10/01 LDK1 CAR2 INC#: C'AR 19991001313 DT,TM: 1999 10 31 1755 ------------------------------------------------------------------------------ REPORT NO : 01 IC INITIAL CRIME STATUS: 0 ------------------------------------------------------------------------------ LOC, GRID: W SOUTH ST 00053 CARLISLE PA 0400 REPORT OFF: 3 STEPHEN M LATSHAW 11/01/99 1738 PLAT: SECT: P VEH INFO: INS,OUT: I LIGHT: U WEATHER: U TEMP: 999 F ASSIGN OFF: 00/00/00 DUE: APPROV OFF: 31 BARRY E WALTERS 00/00/00 CV HANDBK: N PCCD V/W FORM: N DOM RELAT FORM: N EXT SIGNED DOC: N SEC SURVEY: N DEFERR PROSECUT: N STMT / CONFESS: N ARREST(S): Y FURTHER ARRESTS: N CRIM SUMMONS: Y WARRANT: N REC FOLLOW UP: N REC ASSIGN TO: P MUHAREM NEZIC CAME ON STATION AND REPORTED THAT HE HAD BEEN ASSAULTED WHILE HE WAS WORKING AT ROSS DISTRIBUTION. HE WAS ASSAULTED ON 10-29-99 DURING HIS SHIFT BY MICHEAL MOUNTZ. MR NEZIC WAS PUNCHED IN THE FACE BY MOUNTZ AND HAD TO BE TAKEN TO THE CARLISLE ER. AT THE ER, THEY TOOK X-RAYS AND THERE WAS NO FRACTURE BUT HE HAD SEVERAL TEETH THAT WERE LOOSE DUE THE PUNCH HE RECIEVED FROM MOUNTZ. THE INCIDENT OCCURRED OVER A WORK PROBLEM THAT MOUNTZ TRIED TO RECTIFY THROUGH HIS OWN PERSONAL MANNER. NEZIC AND MOUNTZ WERE BOTH WORKING WITH SKIDDED MATERIAL AND APPARENTLY MOUNTZ BE CAME UPSET WITH THE WAY NEZIC WAS PERFORMING HIS TASKS. ACCORDING TO WITNESSES, MOUNTZ BEGAN TO VERBALLY ABUSE NEZIC. NEZIC, WHO SPEAKS VERY LITTLE ENGLISH, APPROACHED MOUNTZ AND ASKED HIM TO CALM DOWN. AT THIS TIME, MOUNTZ GRABBED A HOLD OF NEZIC BY THE SHIRT AND THREATENED HIM. NEZIC PUSHED MOUNTZ AWAY AND APPARENTLY HIS HAND MAY HAVE STRUCK MOUNTZ. MOUNTZ SUSTAINED NO INJURIES AND ONCE THEY WERE SEPARATED TWO EMPLOYEES, STIPO JURINOVIC AND ALBERTO JOUBERT STEPPED IN AND SEPARATED THE TWO. AFTER BEING SEPARATED, THE WITNESSES HEARD MOUNTZ STATE "YOUR LUCKY THAT I LOVE MY JOB OR ELSE I WILL FUCK YOU UP RIGHT HERE" MOUNTZ THEN TURNED TO LEAVE AND TOOK TWO STEPS AND THEN CAME BACK AND PUNCHED NEZIC IN THE MOUTH. WITNESSES STATED THAT NEZIC DID NOT RETALIATE IN ANY WAY AND JUST STOOD THERE AND STARED AT HIM AND TOUCHED HIS MOUTH. ART KOONCE, A SUPERVISOR AT ROSS DISTRIBUTION CAME TO THE SCENE OF THE INCIDENT AND CONDUCTED AN INVESTIGATION. HIS INVESTIGATION REVEALED THAT MOUNTZ DID STRIKE NEZIC AND THAT MOUNTZ WAS THE AGGRESSOR. NEZIC WAS TAKEN TO THE CARLLISLE ER FOR INJURIES AND MOUNTZ WAS SUSPENDED. MOUNTZ WAS CALLED INTO WORK ON SATURDAY AND HE SPOKE WITH MARK ALTMYER WHO IS IN THE HUMAN RESOURCES DEPARTMENT AT ROSS. AT THIS TIME, MR ALTMYER INFORMED MOUNTZ THAT HIS EMPLOYMENT AT ROSS WAS TERMINATED FOR HIS ASSAULT ON NEZIC. MOUNTZ WAS AGITATED AND STORMED OUT OF THE BUILDING. I SPOKE WITH MOUNTZ AND HE STATED THAT HE DID STRIKE NEZIC BUT HE SAID IT WAS IN SELF DEFENSE. HE WAS ADVISED THAT HE WOULD BE RELIEVING A SUMMONS TO APPEAR BEFORE DJ CORREAL ON THE CHARGE OF SIMPLE ASSAULT. NEZIC WAS TREATED AT THE CARLISLE ER AND WAS ALSO TO SEE AN ORAL SURGEON FOR HIS TEETH. HE HAS YET TO SEE THE ORAL SURGEON AT THE TIME OF THIS REPORT. A STATUS OF HIS CONDITION WILL METRQ THE HARRISBURG AREA POLICE INFORMATION RESOURCE SYSTEM (ICRIPINC) PAGE: 3 09/10/01 LDK1 CAR2 INC#: ----- CAR 19991001313 DT,TM: 1999 --- 10 31 1755 -------------------------- REPORT NO : 01 IC INITIAL CRIME -------------------------- ----------------------- -- --------------------- STATUS: O -- -------- BE UPDATED WHEN THE ------------- ---- -------------------------------------- INFORMATION BECOMES AVAILABLE. --------------- MUHAREM NMN NEZIC -------------------- ----------------------- ------- - RSA: WM 52 -------------- VICT WITN REPT-BY ----------------------- CDS: 4 7 --------------------- 15 DJ,CRT APPEAR: 2 DOB: 470101 SS#: 155021379 RESIDENT STATUS: R HISP: N CUBN: N ADDR: 520 THIRD ST CARLISLE PA 17013 PHONE: 717 249 2469 EMPL: ROSS DISTRIBUTION OCCUP: ADDR: SHEARER DR 01707 WRK HRS: CARLISLE PA 17013 PHONE: 717 240 1407 OLN: WANT CHK: VICTIM - CO-OP: Y TYP-INJ: MT TAKEN TO: CARLISLE ER COMM: COND: G MED AID: Y NOTIFIED KIN: N, COR: N, DA: N ----------------------- ALBERTO NMN JOUBERT --- -------- -------------------- RSA: WM 30 ---------------------------- WIT- ---- - - -------- CDS: 4 15 -------------- DJ,CRT APPEAR: 2 DOB: 691008 SS#: 582298134 RESIDENT STATUS: N HISP: H CUBN: U ADDR: 668 SCHUYKILL ST HARRISBURG PA 17110 PHONE: 717 233 0259 EMPL: ROSS DISTRIBUTION OCCUP: ADDR: SHEARER DR 01707 WRK HRS: CARLISLE PA 17013 PHONE: 717 240 1407 OLN: WANT CHK: COMM: STIPO NMN JURINOVIC - RSA: WM 38 ----------------------------- WITN ------------- CDS: 4 15 DJ,CRT APPEAR: 2 DOB: 610705 SS#: 180783144 RESIDENT STATUS: R HISP: N CUBN: N ADDR: 519 S WEST ST CARLISLE PA 17013 PHONE: 717 232 0568 EMPL: ROSS DISTRIBUTION OCCUP: ADDR: SHEARER DR 01707 WRK HRS: CARLISLE PA 17013 PHONE: 717 240 1407 OLN: WANT CHK: COMM: ------------------------------------- MICHAEL LEE MOUNTZ ---------- -------------- RSA: WM 29 ---------------- ----- ---------------- --------- -- ---- CDS: 1 DJ,CRT APPEAR: 2 ACCU ARREST#: 420121 C/F: DOB: 701026 SS#: 175580543 RESIDENT STATUS: N HISP: N CUBN: N ADDR: 262 MT ZION RD CARLISLE PA 17013 PHONE: 717 245 9019 EMPL: U.S ARMY WAR COLLEGE OCCUP: SALESMAN ADDR: CARLISLE BARRAC99999 WRK HRS: VARY CARLISLE PA 17013 PHONE: 717 240 1407 OLN: 22767108 SUSP PA WANT CHK: Y N 4210 CHAPOSKY GEORGE J COMM: 'RETRO4 THE HARRISBURG AREA POLICE INFORMATION RESOURCE SYSTEM (ICRIPINC) PAGE: 1 09/10/01 LDK1 CAR2 'INC#! CAR 19991001313 DT,TM: 1999 10 31 1755 SUN TO: ------------------------------------------------------------------------------ PUCK: 0450 STATUS: R DT CLEAR: 1999 11 01 JUV CLEAR: N DIST JUST: 09201 SYNOPSIS: MUHAREM NEZIC CAME ON STATION AND REPORTED THAT HE WAS THE VICTIM OF AN ASSAULT AT ROSS DISTRIBUTION AND WOULD LIKE TO PURSUE A CHARGE OF ASSAULT AGAINST MICHEAL MOUNTZ. BIAS MOTIV - ETHNIC: RELIG: RACIAL: SEXUAL: GRIM SCENE SEARCHED: N PRINTS TAKEN: N BY: # OF OFFENDERS: 1 PHOTOS TAKEN: N BY: WAS THERE A WITNESS .................................................: Y SUSPECT NAME OR GOOD DESCRIPTION ....................................: Y KNOWLEDGE OF SUSPECT LOCATION .......................................: Y DESCRIPTION WHICH IDENTIFIES VEHICLE USED BY SUSPECT ................: N LIMITED OPPORTUNITY FOR SUSPECT TO COMMIT CRIME .....................: Y LIMITED NUMBER OF PERSONS AS POSSIBLE SUSPECTS ......................: Y BELIEF THAT CRIME CAN BE SOLVED WITH REASONABLE INVESTIGATIVE EFFORT: Y BELIEF THAT A MAJOR CRIME CAN BE SOLVED BY PUBLICITY ................: N PRESENCE OF SIGNIFICANT PHYSICAL EVIDENCE TO ID SUSPECT OR ACCUSED..: N PROPERTY WITH CHARACTERISTICS, MARKS,, NUMBERS THAT CAN BE TRACED....: N POSITIVE RESULTS FROM A CRIME SCENE EVIDENCE SEARCH FOR PRINTS......: N MODUS OPERANDI: 404 ------------------------------------------------------------------ ------ UCR INCIDENT-CRIME-CODES DESCRIPTION #CT ------------------------------------- -------------- - ------ 0450 18 2701 Al SIMPLE ASSLT - ATTEMPT TO OR CAUSE BODILY INJU 1 NOFF A/C LOC #PREM SUSP-USE CRIM-ACT WEAP/FORC-USED BIAS 13B C 05 00 N 99 00 00 99 MRR.19.2001 11:48HM KUbb b1VMC 0 GI..LI.. IVC ANDREW J. OSTROWSIa ATTORNEY AT LAW 2080 Linglestown Road Harrisburgg PA 17110 Telephone: 717-540-91 b0 January 31, 2001 Mess Stores, Inc. 1707 Shearer Drive Carlisle, PA 17013 ATTN: Liability C1 tuns Re: Mut rem Nezic Facsimile: 717-5 ?0-5481 Dear Sir and/or Maa! am: please be ad Wised that I represent Muharem Nezic who was injured when assat1 ted by Michael Lee Moun, ? on October 29, 1999 during the course of employment. Mr. Ne;?c was seriously injured in Connection with that incident and continues to experience pain and sluff red permanent disflgur, ?nent as a result of the conduct of your employee. Mr. Nezic intt nds to proceed with appro; hate action against Mr. Mountz and/or Ross Stores, Inc. to seek his n medies for these actions aro I has authorized me to accept $75,000,00 in full and final settlement of any and all outstanding t claims he may have. i I I will look f4.rward to your response. S, el , I Andrew J. Ostrowski roe ' cc: Muharem 11 ezic L!\%os"%0a\Ne21e\a055I-Z doe 1 IL.:25, 2001 3:35PM MUHAREM NEZIC Plaintiff 10Sc- ME } NO. 4176 P, I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ROSS STORES, INC,; and MICHAEL LEE MOUNT4 Defendants NO.: Ol - J1171 ',, c- y CIVIL ACTION - LAW RECEIVED JURY TRIALDEMANDFI) JUL 2 3 2001 MARK S. AM" OENEMCOUNSEL. S" NOTICE Cumberland County Lawyer Referral Service 2 Liberty Avenue Carlisle, PA 17013 (717)249.3166 TRUE COPY FROM RECORD Ill TMlBMAY v h,;evM.: Mx,ro L'nlo svt ?n9 hdia! ,tllg s.+e i? 4+.+a`I at t:irlwa. PL r ? a N i ?<?s---- "am" You have been sued in court. If you wish to defend the claim set forth in the following pages, you must take action within twenty (20) days titter this Complaint is served, by entering a written appearance personally orby attorney and fling in writing with the court your defenses or objections to the claims aot forth against you. You are warned that if you fail to do so the case may proceed without you and a judgement may be entered against you by the court without furtber notice for any money claimed in the petition or for any other claim or relief requested by the plaintiff You nay lase 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 TIIE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. r. < iL AL-25. 2001 3:35PI ROSS -- ;ORE C NO. 4170 P. 2 MUHARIr.,'M NEZIC : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, ;PENNSYLVANIA VS. NO.: ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants : CIVIL ACTION - LAW ; .YuRY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff Muharem Ntzic, by his attorney, Andrew OstrowsU, Esquire, and in briVag this action before this Court avers as follows. 1. Plaintiff, Muharem Nezic, an adult individual, resides at 520 Third Street, Carlisle, Pennsylvania 17013. 2. Defendant, Ross Stores, Inc. is, upon information and belief, acorporation organized and existing under the laws of the Commonwealth of Pennsylvania with its registered office or principal place ofbusiness located at 1707 Shearer Drive, Carlisle, Cumberland County, Perui.sylvania 17013. 3. Defendant, Michael Lee Mountz, an adult individual, resides at 262 Mt. Zion Road, Carlisle Cumberland County, Pennsylvania 17013. 4. At all times relevant hereto, Plaintiff and Defendant Mountz were employed by Defendant Ross Stores Inc.. 1 r•? JUL..25.2001 3.35PM ROSO-JORE NO. 4176 P. 3 5. On Oct. 29, 1999, Defendant Mountz physically assaulted Plaintiff, intentionally and without cause or provocation, by beating Plaintiff with his hands and fists in and around Plaintiffs face and head, fracturing Plaintiff s jaw, causing the loss of several teeth and other contusions and lacerations, for all of which Plaintiff required and sought to medical attention. 6. Upon inforration and belief, Mountz' beating of Plaintiff was motivated by his personal animus towards Plaintiff and not for any employment-related reasons. 7. The beating Plaintiff suffered at the hands of Mountz occurred on the premises of Defendant Ross Stores, Inc. during a regularly scheduled shift being worked by Plaintiff. B. Upon information and belief, Defendant Ross Stores, Inc. had actual and/or constructive knowledge o£theviolent propensities of Defendant Mountz through past actions and/or conduct of Mountz where he exhibited such tendencies towards other employees. COUNTI 9. Plaintiff incorporates paragraphs 1-8 of his Complaint as if Copy rewritten herein. 10. Defendant Ross Stores, Inc, owes a duty of care to Plaintiff to provide him with a workplace free from the risk of violence inficted by employees with a propensity for such behavior against other employees for reasons unrelated to their work. 11. Defendant Ross Stores. Inc. was negligent by failing to exercise the degree of care necessary to protect Plaintiff from the violent assault inflicted upon him by Defendant Mountz when Defendant Ross stores Inc, new and/or should have known of the risk of harm to Plaintiffas a result of such actions, 2 JUL, 25.2001 3.36PM ROZ 'ORE NO. 1176 P, d 12. Asa direct and proximate resultofthe negligence and carelessness of Defendant Ross Stores, Inc., Plaintiff suffered a fractured jaw, the loss of several teeth and other contusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 13. As an additional direct and proximate result of Defendants' negligence and carelessness, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering W permanent disfigurement as a result of the beating inflicted upon him. 14. As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE,Plaintiffdemandsjudgmentin his favor, andagainstDef MantRossStores, Inc., for compensatory damages, punitive damages and all such further relief to which he may be endded at law, in an amount in excess of the threshold for compulsory arbitration. COUNT TWO 15. Plaintiff incorporates paragraphs 1-14 of his Complaint as if 9tlly rewritten herein. 16. Defendant Mountz' beating of Plaintiff constitutes the intentional tort of assault and battery for which Plaintiff may recover damages at law for the injuries inflicted upon him. 17. As a direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff suffered a fractured jaw, the loss of several teeth and other comusions and lacerations to his face and head, for all of which Plaintiff sought and received medical treatment. 18. As an additional direct and proximate result of the acts and conduct of Defendant Mountz, Plaintiff has suffered, and will continue to suffer, tremendous physical and emotional pain and suffering and permanent disfigurement as a result of the beating inflicted upon him. JUL 25. 2001 3.36?M R05CORE C,) NO.4176 P. 5 19. As a further direct and proximate result of the Defendant's negligence, Plaintiff has incurred medical expenses in order to cure, heal and alleviate his injuries, pain and suffering and may be obligated to incur additional sums in the future. WHEREFORE, Plaintiff demands judgment in his fkvor, and against Defendant Michael Lee Mountz, for compensatory damages, punitive damages and all such further relief to which he may be entitled at law, in an amount in excess of the threshold for compulsory arbitration. Respectfully submitted, s Andrew I Ostro ski, Esquire Supreme Ct. I.D. No. 66420 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: July 6, 2001 1 4 . 25. 2001 3:36P11 ROgs - -ORE r • , .JUL. • N0.4176 P. 6 'VERIFICATION I, Muharem Nebo, hereby state that 1 am the Plaintiff herein and that I have reviewed the foregoing ComPlaiut and that the facts stated therein are true and correct to the best of my knowledgc, information and belief, and, that this statement is made subject to the penalties of 18 Pa. C.S, Section 4904 relating to unswom falsification to authorities. Dated: - D 6 - 0/ ___-I g r C /p it Muharem Nezic . GOLDFE/N & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33rd Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC Plaintiff COURT OF COMMON CUMBERLAND COUNTY vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED AS r C_ Defendant DEFENDANT, ROSS STORES, INC. AMENDED ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 2. Denied. Ross Stores, Inc. is a corporation organized under the laws of the State of California with its principle place of business in Newark California. 3. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 4. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 5. Denied. 6. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph therefore they are denied. All other allegations in this paragraph are denied as conclusions of law. ., COUNTI 8. Answering Defendant incorporates its response to paragraphs 1 through 8 as if fully set forth herein. 9. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 10. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 12. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 13. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 14. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment in its favor and against Plaintiff. COUNT 11 15. Answering Defendant incorporates its responses to paragraphs 1 through 14 as if fully set forth herein. 16. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 17. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. . - 1 18. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 19. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment in its favor and against Plaintiff. NEW MATTER 1. Plaintiff claims against Ross Stores, Inc. are barred by the applicable statute of limitations. 2. Plaintiffs damages if any were caused in whole or in part by the negligence/ carelessness and/or recklessness of the Plaintiffs and the right to recover is barred or limited to comparative and/or contributory negligence. 3. Plaintiff assumed the risk of his injuries. 4. Plaintiffs injuries occurred at a location under the control of others and not occupied, maintained or controlled by Ross Stores, Inc. 5. Plaintiffs claims are barred by the Doctrine of Laches waiver and/or estoppel. 6. Plaintiffs injuries were caused by the intentional or negligent acts of another or others for whom Ross Stores are not responsible. 7. Plaintiffs sole remedy, if any, is Worker's Compensation as his alleged injuries were suffered while he was at work by an employee of Ross Stores, Inc. WHEREFORE, Defendant Ross Stores, Inc. demand judgment in it's favor. GOLDFEIN & HOSMER By: 'Thomas J. Johanson, Esquire Mzz? Attorney for Defendant, Ross Stores, Inc. w CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the Answer to Complaint and New Matter was served upon the following via U.S. Mail, First Class, postage pre-paid: Andrew Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 Roger M. Morgenthal, Esquire Fishman & Mogenthal 95 Alexander Spring Road, Suite 3 Carlisle, Pennsylvania 17013-9137 GOLDFEIN & HOSMER BY: THOMAS J. JOHANSON, ESQUIREZZ' DATE : Z i za t ,? ,. - ,, CASE NO: 2001-04178 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NEZIC MUHAREM VS ROSS STORES INC ET AL DT SHANNON SUNDAY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ROSS S DEFENDANT the , at 1119:00 HOURS, on the 17th day of July , 2001 at 1707 SHEARER DRIVE CARLISLE, PA 17013 by handing to ALVIN BROWN SENIOR LOSS PREVENTION MGR a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.25 Affidavit .00 Surcharge 10.00 .00 31.25 Sworn and Subscribed to before me this Zy ?- day of -zao / A. D. P othonotary So Answers: ¢ R. Thomas Kline 07/18/2001 ANDREW OSTROWSKI By: --,17.`Y?2. Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2001-04178 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NEZIC MUHAREM VS ROSS STORES INC ET AL DEP SHANNON SUNDAY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MOUNTZ MICHAEL LEE the DEFENDANT , at 1103:00 HOURS, on the 17th day of July , 2001 at 262 MT ZION ROAD CARLISLE, PA 17013 by handing to MICHAEL LEE MOUNTZ a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof Sheriff's Costs: Docketing 6.00 Service 3.25 Affidavit .00 Surcharge 10.00 .00 19.25 Sworn and Subscribed to before me this ILl ? day of ate/ A.D. w Prothonotary So Answers: R. Thomas Kline 07/18/2001 ANDREW OSTROWSKI By: rp2nvr?Pri 7n L • ?l Deputy Sheriff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MUHAREM NEZIC COURT OF COMMON PLEAS Plaintiff vs. ROSS STORES, INC. and MICHAEL LEE MOUNTZ Defendant CUMBERLAND COUNTY NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant, Ross Stores, Inc. in the above captioned matter. Thomas J. Johanson ID# 29350 GOLDFEIN & HOSMER 1600 Market Street, 33`d Floor Philadelphia, PA 19103 (215) 979-8278 ca ? o l0 ? _, GOLDFEIN & HOSMER By: Thomas J. Johanson Identification No. 29350 1600 Market Street 33" Floor Philadelphia, PA 19103 (215) 979-8200 Attorney for Defendant, Ross Stores, Inc. MUHAREM NEZIC COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED Defendant DEFENDANT, ROSS STORES, INC. AMENDED ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 2. Denied. Ross Stores, Inc. is a corporation organized under the laws of the State of California with its principle place of business in Newark California. 3. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 4. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 5. Denied. 6. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph, therefore they are denied. 7. Denied. Answering Defendant is without sufficient information to form a belief as to the truth of the averments contained in this paragraph therefore they are denied. All other allegations in this paragraph are denied as conclusions of law. COUNTI 8. Answering Defendant incorporates its response to paragraphs 1 through 8 as if fully set forth herein. 9. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 10. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 12. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 13. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. 14. Denied. All allegations of negligence or carelessness are specifically denied. All other allegations in this paragraph are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment in its favor and against Plaintiff. COUNT II 15. Answering Defendant incorporates its responses to paragraphs 1 through 14 as if fully set forth herein. 16. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 17. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 18. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. 19. Denied. After reasonable investigation answering defendant is unable to determine the truth of the allegations therefore it is denied. All other allegations of this paragraph are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment in its favor and against Plaintiff. NEW MATTER 1. Plaintiff claims against Ross Stores, Inc. are barred by the applicable statute of limitations. 2. Plaintiffs damages if any were caused in whole or in part by the negligence/ carelessness and/or recklessness of the Plaintiffs and the right to recover is barred or limited to comparative and/or contributory negligence. 3. Plaintiff assumed the risk of his injuries. 4. Plaintiffs injuries occurred at a location under the control of others and not occupied, maintained or controlled by Ross Stores, Inc. 5. Plaintiffs claims are barred by the Doctrine of Laches waiver and/or estoppel. 6. Plaintiffs injuries were caused by the intentional or negligent acts of another or others for whom Ross Stores are not responsible. 7. Plaintiffs sole remedy, if any, is Worker's Compensation as his alleged injuries were suffered while he was at work by an employee of Ross Stores, Inc. WHEREFORE, Defendant Ross Stores, Inc. demand judgment in it's favor. GOLDFE/N & HOSMER Thomas J. Johanson, Esquire Mzz:? Attorney for Defendant, Ross Stores, Inc. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the Answer to Complaint and New Matter was served upon the following via U.S. Mail, First Class, postage pre-paid: Andrew Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 Roger M. Morgenthal, Esquire Fishman & Mogenthal 95 Alexander Spring Road, Suite 3 Carlisle, Pennsylvania 17013-9137 GOLDFEIN & HOSMER THOMAS J. JOHANSON, ESQUIRE? DATE: y? ?, ?; ' c_ -- ? ? - - ..., - ?;? y ?; ?_: :,, - ?s;: ?;, ?? `_ . Vii- T _ _=; ?. ?.= : - ?_ .. ,{ ?- =< ?,? MUHAREM NEZIC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC.; and NO. 2001-4178 CIVIL TERM MICHAEL LEE MOUNTZ CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 14TH day of FEBRUARY, 2002, a Rule is issued upon Defendant to Show Cause why Plaintiff's Motion to Strike should not be granted. Rule returnable twenty (20) days after service. If Defendant responds to the Motion to Strike, either party may then list both matters for Argument court. Edward E. Guido, J. vlAndrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, Pa. 17110 ?homas J. Johanson, Esquire 1600 Market Street, 33rd Floor Phila., Pa. 19103-7288 /Roger M. Morgenthal, Esquire 95 Alexander Spring Road Carlisle, Pa. 17013 lU? > 02-I q 02 R s toil; 1? i• ??,,,?,, t;i?l??iV?p,,i??.a ?'= ? ?,,? C ?I? , .._ _ _.I _}_? ?? ._, . AV FEB 12 2002 i MUHAREM NEZIC Plaintiff VS. ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, :PENNSYLVANIA : NO. 01-4178 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ORDER NOW, this _ day of , 2002, upon consideration of Plaintiff's Answer to Defendant's Motion for Summary Judgment and Motion to Strike, it appearing that Defendant has not properly supported its Motion for Summary Judgment, and that Plaintiff cannot respond for the reasons stated in its Answer and Motion to Strike, it is herby Ordered that Defendant's Motion for Summary Judgment is stricken from the record without prejudice to renew its motion after adequate time for discovery. ? By the Court, J. fd MUHAREM NEZIC Plaintiff VS. ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA NO. 01-4178 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ANSWER TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE AND NOW COMES Plaintiff, Muharem Nezic, by his attorney, Andrew Ostrowski, Esquire, and in support bringing this action before this Court avers as follows: 1. Admitted. 2. Denied. By its terms, the referenced document is not a statement of Plaintiff. 3. Denied. In light of the previous answer, this allegation is denied. 4. Denied that the Exhibit is a police report "filed" by Plaintiff; rather, that document is an Initial Crime report prepared by someone other than Plaintiff, namely, Stephen Latshaw, who, upon information and belief, is a police officer. 5. Admitted as stated, but immaterial. 6. Admitted with the clarification that the statement "during the course of employment" only refers to the time and place of the incident and cannot be construed as a legally binding admission for any purpose whatsoever. 7. Admitted. 8. The allegations of Paragraph 8 constitute conclusions of law to which no response is required. 1 t r 9. Denied. The allegation of paragraph 9 is insufficient for purposes of Defendant's Motion for Summary Judgment inasmuch as it is not verified, is not supported by any competent evidenc upon which this Court can determine whether it is factually sufficient. Moreover, to the extent that this allegation was properly supported, the mere receipt of benefits, without any adjudication, is insufficient to raise any bar to claims sounding ion tort against the employer. See Kohler v. McCrory Stores, 615 A.2d 27 (Pa. 1992). 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted with the clarification that the referenced paragraph of Defendant's Answer with New Matter constituted a conclusion of law to which, under Pa. R. Civ. P. 1027, ne response is required and the allegation is deemed denied. 14. Denied as stated. Plaintiff, in a verified Complaint, has stated that the reasons were personal and not for any employment-related reason. In addition, Plaintiff has not yet taken the deposition of Mr. Mountz or any other witnesses and, as such, cannot provide the factual information beyond his verified allegation. Plaintiff intends to pursue further discovery and requests that this Court give him the opportunity to do so. 15. The allegations of Paragraph 15 constitute conclusions of law to which no response is required. 16. The allegations of Paragraph 16 constitute conclusions of law to which no response is required. 17. The allegations of Paragraph 17 constitute conclusions of law to which no response is required. WHEREFORE, Defendant's Motion for Summary Judgment must be denied. 2 4 l , NEW MATTER/MOTION TO STRIKE 18. The allegations of paragraphs 1 through 17 are incorporated herein by reference in their entirety. 19. Defendant's Motion for Summary Judgment does not present an adequate basis upon which to determine whether there is an absence of disputed issues of fact that entitle it to judgment as a matter of law. 20. Moreover, the "statement" attached to Defendant's Motion was never previously provided to Plaintiff. 21. Defendant styles its Motion as one for summaryjudgment; however, it is in the nature of a motion for judgment on the pleadings, and Defendant recognizes that Plaintiff has pleaded the necessary allegation to overcome the worker's compensation bar. 22. Under the circumstances, Defendant's Motion for Summary Judgment is procedurally improper and/or premature and must be stricken. WHEREF ORE, P laintiffrespectfully requests that Defendants Motion for Summary Judgment be stricken from the record. Respectfully submitted, By Andrew J. O row ki, Esquire Supreme Ct. I.D. No. 66420 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: February 11, 2002 Y J.. CERTIFICATE OF SERVICE I, Andrew J. Ostrowski, hereby certify that the foregoing document is being served, by depositing a copy of the same in the U.S. mail, first-class mail, and addressed as follows: Thomas J. Johanson, Esquire Goldfein & Hosmer 1600 Market Street, 33`d Floor Philadelphia, PA 19103-7288 Roger M. Morgenthal, Esquire Fishman & Morgenthal 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 Date: February 11, 2002 Harrisburg, PA 17110 717-221-9500 " MAYfl.SkYk4UG?ffi? A, 3u.?wc: ,w??. (? " -J v V ? ? ? 77 n r MUHAREM NEZIC Plaintiff VS. ROSS STORES,INC.; and MICHAEL LEE MOUNTZ, Defendants IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 01-4178 CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER OF DEFENDANT ROSS STORES 1. The allegations of Paragraph 1 of Defendant's New Matter constitute conclusions of law to which no response is required; the same are therefore deemed denied. 2. The allegations of Paragraph 2 of Defendant's New Matter constitute conclusions of law to which no response is required; the same are therefore deemed denied. 3. The allegations of Paragraph 3 of Defendant's New Matter constitute conclusions of law to which no response is required; the same are therefore deemed denied. 4. Denied. 5. The allegations of Paragraph 5 of Defendant's New Matter constitute conclusions of law to which no response is required; the same are therefore deemed denied. 6. The allegations of Paragraph 6 of Defendant's New Matter constitute conclusions of law to which no response is required; the same are therefore deemed denied. WHEREFORE, Plaintiff demands judgment in his favor, and against Defendants, in accordance with the allegations of his Complaint. Respectfully submitted, Andrew I Ostrowski, Esquire Supreme Ct. I.D. No. 66420 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Dated: February 19, 2002 VERIFICATION I, Muharem Nezic, hereby state that I am the Plaintiff herein and that I have reviewed the foregoing Reply to New Matter and that the facts stated therein are true and correct to the best of my knowledge, information and belief, and, that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Dated: MuharemNezic'/A0' arCW '-//6'/C ?? _ ? 2- CERTIFICATE OF SERVICE I, Andrew J. Ostrowski, hereby certify that the foregoing document is being served, by depositing a copy of the same in the U. S. mail, first-class mail, and addressed as follows: Thomas J. Johanson, Esquire Goldfein & Hosmer 1600 Market Street, 33rd Floor Philadelphia, PA 19103-7288 Roger M. Morgenthal, Esquire Fishman & Morgenthal 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 Andrew J. trowski 4311 North Sixth Street Harrisburg, PA 17110 717-221-9500 Date: February 19, 2002 ?W` n&5affi?W13a?'aY.za.a2uea 4>? .imp, -as=?sau ??rcaevk?ua?taarmavmxkar' i' ' w C? fill y :'J L ?. Ci PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) MUHAREM NEZIC (Plaintiff) VS. (Defendant) No. O 1 - 41 7 R Civil 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurer to complaint, etc.): MOTION FOR SUMMARY JUDGMENT 2. Identify counsel who will argue case: (a) for plaintiff: Andrew J. Ostrowski, Esquire Address: a 4311 North Sixth Streett Harrisburg, PA 17110 (b) for defendant: THOMAS J. JOHANSON, ESQUIRE Address: 1600 Market Street 33rd Floor Philadelphia, PA 19103 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: ROSS STORES, INC.; and MICHAEL LEE MOUNTZ, Dated: .7- 1 I zcf 9 10`z Attorney for ROSS STORES, INC. n c -- - -, ?; i-, ?i. -. , .. t. -? v _. ' ?= l c _. _ ?' _ j MUHAREM NEZIC Plaintiff V. ROSS STORES, INC., and MICHAEL LEE MOUNTZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4178 CIVIL TERM IN RE: MOTION OF DEFENDANT ROSS STORES. INC. FOR SUMMARY JUDGMENT Before HOFFER, P.J.. OLER. J. and GUIDO, J. ORDER OF COURT AND NOW, April 2, 2002, after careful consideration of the briefs and oral argument, the defendant's motion is refused as being premature. By the Court, Andrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 For the Plaintiff Thomas J. Johanson, Esquire 1600 Market Street, 33rd Floor Philadelphia, PA 19103-7396 For Defendant Ross Stores Roger M. Morgenthal, Esquire 95 Alexander Spring Road, Ste. 3 Carlisle, PA 17013 For Defendant Mountz GOLDFEIN do HOSMER, P.C. By: Thomas J. Johanson Identifica91on No.: 29350 1600 Market Street, 33`d Floor Philadelphia, PA 19103 (215) 979-8200 MUHAREM NEZIC, Plaintiff, VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ, Defendants. Attorney for Defendant, Ross Stores, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 01-4178 CIVIL ACTION JURY TRIAL DEMANDED WITHDRAW OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of defendant, Ross Stores, Inc. in the above- captioned matter. GOLDFEIN & HOSMER By:i?r?-s-r? THOMAS J. JOHANSON ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant, Ross Stores, Inc. in the above- captioned matter. MARKS, O'NEILL, O'BRIEN & COURTNEY By: SUAi .z Y Dated: l3 3 &-Al a- 0. ??? cn ? ? ??rr ? N ' to ? `? '. -, n Cam, ?`3 -zJ -tL:? _? T. D` C tV .;r CJ _ C? rn .._ `? ? MUHAREM NEZIC : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA a1- N/7,0 V. NO. -29 f CIVIL TERM ROSS STORES, INC. and CIVIL ACTION -LAW MICHAEL LEE MOUNTZ ORDER OF COURT AND NOW, May 6, 2004, in response to the Order of Court of April 20, 2004, the Court held a conference in chambers with counsel for plaintiff, Andrew J. Ostrowski, Esquire, and counsel for defendant Ross Stores, Inc., Joseph N. Bongiovanni IV, Esquire. Defendant Michael Mountz is separately represented by Roger Morgenthal, Esquire, who did not appear. Ross Stores agrees to furnish to plaintiff a copy of the complete file, except for two incidents dealing with female employees and defendant Mountz. The Court having reviewed these documents in camera, the Court makes no ruling regarding these documents pending the filing of a motion in limine by Ross Stores relating to the ultimate admissibility of this evidence. P.J. Andrew J. Ostrowski, Esquire 4311 North Sixth Street Harrisburg, PA 17110 Joseph N. Bongiovanni IV, Esquire 1880 John Kennedy Blvd., Ste. 1200 Philadelphia, PA 19103 k01u. p ? ?"\C-? , &ny Roger M. Morgenthal, Esquire 2515 North Front Street, 1St Floor Harrisburg, PA 17110 s _ :« - WN MUHAREM NEZIC : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC.; and : NO. 2001-4178 CIVIL TERM MICHAEL LEE MOUNTZ : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 151H day of DECEMBER, 2004, upon consideration of Plaintiff's Response to the Rule to Show Cause issued on October 13, 2004, the parties are directed to appear for argument before this Court on THURSDAY, JANUARY 6, 2005, at 3:00 p.m. Counsel for Defendant Ross Stores is directed to bring the copies of the disputed items from Defendant Mountz's personnel file for the Court to review. By the Co Edward E. Guido, J. Sheri D. Coover, Esquire 4311 North 6"' Street Harrisburg, Pa. 17110 Joseph N. Bongiovanni IV, Esquire Patrick C. Lamb, Esquire t? ?,,, i a - 1 G ° U Y 1880 John Kennedy Blvd., Suite 1200-" " Phila., Pa. 19103 0 Roger M. Morgenthal, Esquire 95 Alexander Spring Road Carlisle, Pa. 17013 :sld ?:.'; -. c -`' - ??c? MUHAREM NEZIC, Plaintiff V. ROSS STORES, INC., and MICHAEL LEE MOUNTZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-4178 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of January, 2005, after conference with counsel, and having reviewed the documents at issue, which are several statements from employees and supervisors dealing with inappropriate behavior of a sexual nature taking place in the work place, we feel that the privacy issues outweigh any benefit the Plaintiff might receive from being provided with copies of the documents. In other words, there is no indication of assaultive or violent behavior on the part of the Defendant Mountz in any of the incidents related to these documents. Therefore, the employer need not provide the documents in discovery. A copy of these documents are attached and sealed to this Order so that they may be available for any further review. By Edward E. Guido, J. ,/ndrew J. Ostrowski, Esquire Sheri D. Coover, Esquire Attorneys for Plaintiff ,/Joseph N. Bongiovanni IV, Esquire Attorney for Defendant Ross Stores, Inc. ,/Roger M. Morgenthal, Esquire Attorney for Defendant Mountz ` srs Z O.6 ?qv 0 1 WI 50124 MUHAREM NEZIC, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC., and MICHAEL LEE MOUNTZ, Defendants NO. 2001-4178 CIVIL TERM AMENDING ORDER AND NOW, this 11th day of January, 2005, the final sentence of the Order of Court dated January 6, 2005, is amended as follows: "A copy of these documents are attached and sealed to this Order so that they may be available for appellate review." In all other respects, the Order shall remain the same. Edward E. Guido, J. Andrew J. Ostrowski, Esquire Sheri D. Coover, Esquire Attorneys for Plaintiff Joseph N. Bongiovanni IV, Esquire ,yy p?? /?/3 dSl Attorney for Defendant Ross Stores, Inc. Roger M. Morgenthal, Esquire Attorney for Defendant Mountz srs r ,. 6C :11 V ? I IIIV+';Cu7 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) MLHAREM NEZIC (Plaintiff) VS. ROSS STORES INC., and MICHAEL LEE MOUNTZ (Defendants) No. 01-4178 State the matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, Etc.): Defendant Ross Stores. Inc's Motion for Summary Judgment 2. Identify counsel who will argue cases: (a) for Plaintiff: Andrew J. Ostowski, Esquire / Sheri D. Coover, Esq (Name and Address) Bailey & Ostrowsld. 4311 N. 6t' Street, Harrisburg. Pa 17110 (b) for Defendant, Ross Stores, hic.: Joseph N. Bongiovanni, IV, Esquire (Name and Address) Marks, O'Neill, O'Brien & Courtney P.C. 1880 JFK Blvd., Ste 1200. Phila. PA 19103 (c) for Defendant, Michael Lee Mountz: Roger M. Morgenthal, Esquire (Name and Address) Law Offices of Roger M. Morgenthal. 2515 N. Front St. V Fl. Harrisburg, Pa 17110 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: Print your name Ross Stores Inc. Attorney for PH120560.1 flJ GIt 1 f t J MUHAREM NEZIC, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROSS STORES, INC. and MICHAEL LEE MOUNTZ, DEFENDANTS 01-4178 CIVIL TERM IN RE: MOTION OF DEFENDANT ROSS STORES. INC. FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this 11^ day of November, 2005, the motion of defendant, Ross Stores, Inc., for summary judgment, IS GRANTED. Lth o E dgar ayley, J. 1 v6drew J. Ostrowski, Esquire 4311 North 6th Street Harrisburg, PA 17110 For Plaintiff /seph N. Bongiovanni, IV, Esquire 1880 John Kennedy Blvd. 12th Floor `l Philadelphia, PA 19103 For Ross Stores, Inc. Roger M. Morgenthal, Esquire For Michael Lee Mountz sal ?C a? ,i r C\i C C'i w c -Y a t ?-V U I MUHAREM NEZIC, PLAINTIFF V. ROSS STORES, INC. and MICHAEL LEE MOUNTZ, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4178 CIVIL TERM IN RE: MOTION OF DEFENDANT ROSS STORES. INC. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND GUIDO, J. OPINION AND ORDER OF COURT BAYLEY, J., November 14,2005:-- On July 9, 2001, plaintiff, Muharem Nezic, filed a complaint against defendants Ross Stores, Inc., and Michael Lee Mountz. Plaintiff alleged in the complaint that on October 29, 1999, while at work at Ross Stores, Inc., where he and Mountz were employed, Mountz intentionally assaulted him, causing serious injury. Plaintiff further alleged that, "Upon information and belief, Mountz's beating of Plaintiff was motivated by his personal animus toward Plaintiff and not for any employment-related reasons." The pleadings are closed. Discovery, including depositions, has been taken. Ross Stores, Inc., filed a motion for summary judgment which was briefed and argued on October 20, 2005. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: ... must view the record in the 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, Pennsylvania State 01-4178 CIVIL TERM University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). The Workers' Compensation Act, 77 P.S, § 1 et seq., provides an exclusive remedy for an employee who seeks recover for an injury sustained in the course of employment. See, Kohler v. McCrory Stores, 532 Pa. 130 (1992). As a result of the injuries plaintiff incurred on July 9, 2001, during the course of his employment, he filed a claim for worker's compensation benefits. Benefits were awarded and received by plaintiff. Ross Stores, Inc., maintains in this motion for summary judgment that plaintiff has not adduced sufficient evidence that Ross is not immune from liability under the Workers' Compensation Act. Plaintiff maintains that an exception at 77 P.S. Section 411(1) applies. It provides: The term "injury arising in the course of his employment," as used in this article, shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment .... (Emphasis added.) In Hammerstein v. Lindsay, 655 A.2d 597 (Pa. Super. 1995), the Superior Court of Pennsylvania, commenting on an opinion of the Supreme Court of Pennsylvania in Kohler v. McCrory Stores, supra, stated: [t]hat in order for an employee to set forth a valid cause of action against his employer under the personal animus exception, "an employee must assert that his injuries are not work-related because he is injured by a co- worker for purely personal reasons." Id. 532 Pa. at 137-38, 615 A.2d at -2- 01-4178 CIVIL TERM 31 (emphasis in original). Where the animosity between the third party and the injured employee is developed because of work-related disputes, the animosity is developed because of the employment, and the injured employee's remedy is exclusively under the Workmen's Compensation Act. Repco Products Corp. v. Workmen's Comp. App. Bd., 32 Pa.Cmwlth. 554, 557, 3790 A.2d 1089, 1090 (1977). Furthermore, "the lack of pre- existing animosity between the combatants strongly suggests that the motive for the attack was work-related and not because of reasons personal to the assailant." Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 391, 421 A.2d 251, 255 (1980). Besides pleading in his complaint only a conclusion, as contrasted to facts, that Mountz's assault on him "was motivated by his personal animus towards [him] and not for any employment-related reasons," plaintiff has testified in depositions contrary to that allegation: Q: Did you and Mr. Mountz get along before this incident? A: [Plaintiff] saw [Mountz], but they never had a conversation. Q: [You] never spoke before? A: No. Q: Did [you] have any interactions in the workplace before this incident? A. No, because [we] did not officially meet. Q: Had you ever spoken to him? A: Not really, no. Q: Okay A: I mean, other than what I had to while working with him. But prior to that, I hadn't spoken to him before. Q: Do you recall ever having any personal conversations with him outside the job? A: No. Never. Q: Would it be fair to say that all of your conversations with him related to work? A. Right. Of course. -3- 01-4178 CIVIL TERM Q: Okay. Now, all of the conversations that you just said you had, you talked to him many times about this particular work issue, were they all related to work or was there any personal conversation involved? A: No, this definitely - oh, I never talked to him about anything outside of work. This all - definitely all had to do with work at the time, you know, what we were doing, you know, work-wise. (Emphasis added.) Q: Okay. But 1 just want to go back to this one question that I asked you before, about your conversations with him that initiated this physical altercation between the two of you, did they all have to do with work or [Mountz's] job performance, or was there anything personal in nature? A: There was nothing persona [sic] - absolutely nothing personal about it. It all had to do with work. (Emphasis added.) Q: I just wanted to clarify. Is the only communication that you and Mr. Nezic has [sic], was it only about work-related things? A: If you are asking me if I discussed anything other than work with that man, it was only work. I've not once talked to him about anything other than work. Notwithstanding, plaintiff argues in his brief: Although there is no dispute that the assault on Plaintiff by Defendant Mountz occurred at their place of employment and was initiated by a dispute over roller space, the underlying reason for the assault was due to personal animosity that Defendant Mountz had toward Plaintiff due to communication problems caused by the language barrier. Defendant Mountz admits that the language difficulties caused him problems with his job and were more than an annoyance to him. In his deposition, Defendant Mountz stated: Q. Okay. And did you feel that the behavior you complained to him about was intentional on his part, that he was doing something to hum up the work, shall we say? A. That I do not - I don't think so. I don't think so. Q. Okay. Could it have ...been a communications problem because of the language? A. I think it was solely a communication problem - yeah, I definitely think it was just a communication problem. I don't think it was anything to hurt the company or anything just to hurt me or -4- J 01-4178 CIVIL TERM anything. Q. However, when he did these things, for whatever reason, did that reflect back on your performance with the company? A. Yeah. I mean, if I got questioned or yelled at for not having the orders, you know, there or where this was or where that was, you know, and having to constantly you know, explain, you know, well, this happened again, you know. It did affect - it did affect my performance. I think it definitely affected me. Q. So it was more than just an inconvenience or annoyance to you? A. Yeah. At most, all Mountz said is that a communication problem affected the work performance of plaintiff, which in turn affected his own work performance. Any communication problem, as plaintiff testified, was not personal, "it all had to do with work." The testimony of Mountz, coupled with all other evidence adduced by plaintiff including his own deposition testimony, does not raise a factual issue whereby a jury could find that the injury to plaintiff falls within the personal animus exception to Section 411(1) of the Workers' Compensation Act. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this 1? day of November, 2005, the motion of defendant, Ross Stores, Inc., for summary judgment, IS GRANTED. By the Bayley, J. Andrew J. Ostrowski, Esquire 4311 North 6th Street Harrisburg, PA 17110 For Plaintiff -5- 01-4178 CIVIL TERM Joseph N. Bongiovanni, IV, Esquire 1880 John Kennedy Blvd. 12th Floor Philadelphia, PA 19103 For Ross Stores, Inc. Roger M. Morgenthal, Esquire For Michael Lee Mountz :sal -6- MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICK C. LAMB, ESQUIRE IDENTIFICATION NO. 70817 ATTORNEY FOR DEFENDANT, 1800 JOHN F. KENNEDY BOULEVARD ROSS STORES, INC. 19TH FLOOR PHILADELPHIA, PENNSYLVANIA 19103 (215) 564-6688 228-69990 MUHAREM NEZIC VS. ROSS STORES, INC. and MICHAEL LEE MOUNTZ COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION NO. 01-4178 NOTICE OF CHANGE OF ADDRESS The undersigned counsel hereby files this Notice of Change of Address with this Honorable Court and all parties to this action that effective December 5, 2005, the law firm of Marks, O'Neill, O'Brien & Courtney is now located at: 1800 John F. Kennedy Boulevard suite 1900 Philadelphia, Pennsylvania 19103 215-564-6688 215-564-2526 (fax) Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: ? Z ? / PAT CK C. LAM , QUIRE Attorney for Defendant PH131584.1 i.. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Change of Address was sent by first-class U.S. mail, postage prepaid to the counsel below listed: Andrew J. Ostrowski, Esquire Bailey, Stretton & Ostrowski 4311 N. Sixth Street Harrisburg, PA 17110 Roger M. Morgenthal, Esquire Law Office of Roger M. Morgenthal 2515 North Front Street, 1 st Floor Harrisburg, PA 17110-1150 Jos N. Bongiovwu Esquire Date: December 21, 2005 PH131584.1 I A ° O v cr bEC? Vii.- - j - rE -.0 rb N ??T