HomeMy WebLinkAbout01-0130 FX
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JUN 2 8 2004 \J
A RECfONAL DEFENSE LlTfGATlON LAW FIRM
MARsHAll, DENNEHEY, WARNER, COLEMAN & GoGGIN I
A PROfESSIONAL CORPORATION
www.marshalldeo.nehey.com
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Bethlehem
Doykstown
Erio
Harrisburg
Newtown Square
Norristown
PhiladeJphi~
Pittsburgh
Scranton
Williamsport
4200 Crums Mill Road, Suite B . Harrisburg, P A 17112
(717) 651-3500 . Fax (717) 651-9630
NEWJI\Il8E1'
Chotty !till
, Roseland
June 25, 2004
Dl!LA.'Ii'&RIl
Wilmington
Om.
Akron
........
Ft. Lauderda1e
Orlando
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Direct Dial: 215-575-
Email: jmurphy@mdwcg.com
Judge Hoffer
Cumberland County Court of Common Pleas
One Courthouse Square
Carlisle, P A 17013
II
RE: Don Lee Hunt v. Flying J Inc.
CCP (Cumberland County) No.: 2001-7130 (Civil Term)
Our File # 20614-00145
Dear Your Honor:
Enclosed please find Defendant's Proposed Points for Charge in the above-captioned case. By copy of this letter I
am providing plaintiffs counsel with a copy of the requested points.
So far as defendant's Stipulation to Plaintiffs Economic Loss is concerned, defendant will stipulate to the amount
of plaintiffs medical expenses ($13,185.08) and plaintiffs loss of earnings ($10,203). However, defendant does not admit
that the alleged negligence of the defendant caused these damages. In addition, defendant stipulates to the amount of
these damages before application of comparative negligence. In light of the fact that defendant stipulates to the amount of
these damages, the amount of the damages are irrelevant to the jury's consideration of this matter. Defendant submits that
including a stipulation of these damages in the charge to jury can only cause confusion. Accordingly, defendant
respectfully requests that the court simply mold any verdict that may be entered against defendant in favor plaintiff by
adding these damages to any damages that the jury may award.
I thank Your Honor for your consideration in this case.
JFM:jw
co: William A. Addams, Esquire
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
DEFENDANT'S POINTS FOR CHARGE
I. STANDARD POINTS FOR CHARGE
1.34,1.36, 1.42 (defendant requests that court include "that the plaintiff actually sustained the hann
about which he complains" after the words "that the defendant was negligent," in the fourth paragraph), 1.44,
1.45,3.00,3.03,3.50,5.04,5,07,5.30,5.40,5.50, 7.04 (defendant requests that the court include the following
words at the end of this charge: "if the plaintiff cannot establish all of these elements, defendant is entitle to
judgment"), 20.00.
II. REQUESTED POINTS FOR CHARGE
I) The mere happening of an accident does not establish that one of the parties was
negligent. Young v. Commonwealth DOT, 560 A. 2d 373,376,744 A.2d 1276, 1277 (2000). In
order recover anything in this case, the plaintiff has the burden of proving by a preponderance of
the evidence that the defendants had a duty of care to the plaintiff, that the defendants in some
fashion breached that duty of care, that the breach ofthe duty caused the injuries complaint of by
the plaintiff, and that the plaintiff did in fact suffer those injuries. If any of those elements are
missing, then you must hold in favor of the defendants and against the plaintiff. Lazar v. Rur
Industries. Inc" 337 Pa. Super. 450, 487, A.2d 32 (1985); Saiatovich v. Transit Bus Co. 314 Pa.
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573, 172 A. 151 (1934); Sheridan v. Horn & Hardart Baking Co. 366 Pa. 485, 77 A. 2d 362
(1951).
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2) In the event that you fmd that plaintiff has sustained his burden of proof under the hills and
ridges doctrine as I have explained that principle oflaw to you, then you must go on to determine whether the
defendant has breached its duty of care to plaintiff under Pennsylvania law. [Thereafter charge the jury on
standard points 7.00, 7.0IA, 7.02A (defendant respectfully requests that the court add the following language to
7.02A: "but only if" at the end of the first paragraph, but before the subparts, as set forth in the Restatement of
Torts (Second) S 342; and after subpart (3) the following language: "a possessor of land is subject to liability
only if all three criteria have been established by plaintiff"). Heimes v. New Enterprise Stone & Lime Co. Inc.,
399 Pa. Super. 301, 307, 582 A.2d 353,356 (1990).
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3) If you decide that the plaintiff has satisfied his burden ofproofto establish that the defendant
was negligent and caused injuries to plaintiff, you must go on to consider whether plaintiff Don Lee Hunt was
himself negligent. "If there is anything settled in the law of negligence in Pennsylvania, it is the duty of a
person to look where he is walking and see that which is obvious." Villano v. Securitv Saving Association, 268
Pa. Super. 67,407 A.2d 440 (1979). When an individual can assure his own safety by the use of his senses, he
must do so or abide by the consequences of his carelessness. Keiper v. Marquart, 192 Pa. Super. 88, 92, 159
A.2d 33, 35 (1960). A person may not recover for injuries which are received as a result of a failure on his part
to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed. Bream
v. Berger, 388 Pa. 433, 436,130 A.2d 708,709 (1957). A person who is walking on a sidewalk or in a parking
lot has a duty to himselfto look and watch where he is walking. Strawhacker v. Stephen F. Whitman & Son,
147 Pa. Super. 33, 37, 23 A.2d 349,351 (1941); Moore v. Baltimore & O.R. Co., 136 Pa. Super. 182,7 A.2d
162, 166 (1939). A defendant in such a case as this is not required to take extraordinary precautions to save
adults in apparent possession oftheir reasoning faculties from the consequences of their own inattentiveness
and carelessness. Brancato v. Kroger Co. Inc., 312 Pa. Super. 448, 456, 458 A.2d 1377, 1381 (1983).
Everyone has a right proceed under the assumption that those to whom he owes a duty of care are normal in
every respect and prepared on their part to exercise the care of a prudent person generally. ld. at 456, 458 A.2d
at 1381-82 (quoting Jefferson v. YMCA, 354 Pa. 563, 567,47 A.2d 653,655) it is a well-established rule that a
victim cannot recover damages for injuries sustained by him ifhe could have avoided the injury by the exercise
of ordinary care. Id. At 456, 458 A.2d at 1382.
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4) In order for you to decide in favor of the plaintiff, you must base your decision upon evidence
which supports plaintiff's version as to how the accident occurred. Theories as to what may have transpired in
this accident may not be employed as a substitute for actual evidence. You may not base your verdict on mere
speculation or guess work since a guess or speculation does not amount to proof. Loeb v. Alleghanv County.
394 Pa. 433, 146 A. 2d 336 (1959). Circumstantial evidence that only proves the possibility of negligence or
causation and leaves the issue to surmise or conjecture is not sufficient to sustain a verdict. Farnese v. SEPTA,
339 Pa. Super. 130,487 A. 2d 887 (1985); Churilla v. Barner, 269 Pa. Super. 100, 105 (1979).
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5) When the plaintiff fails to establish that his claimed injury is a direct result of
accident, the defendants are entitled to a verdict even thought they may have been negligent.
Sisk v. Duffev, 201 Pa. Super. 213, 192 A. 2d 251 (1963); Tackach v. B.M. Root Companv, 279
Pa. Super. 167,420 A. 2d 1084 (1980). Accordingly, if you find that the defendants were
negligent but that plaintiff failed to establish by competent medical testimony that the injuries he
complained of were directly caused by this accident, then you must hold in favor of the
defendants and against the plaintiff.
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6) Thus far, the principles of law which I have explained to you bear only on the issues
of liability and causation. If you fmd that a defendant is liable to the plaintiff on the theory of
negligence as I have eXplained that doctrine to you, then you must go on and consider the issue
of damages. The fact that I charge you on damages does not mean that I am of the opinion that
plaintiff is entitled to damages. It is my responsibility to instruct you as to all of the applicable
principles of law, and it is your responsibility to apply the facts to the law as I have stated it.
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7) Damages are not punishment, and the amount of damages should not be viewed as
intended to punish the defendant, nor should damages be viewed as a reward. You are not
entitled you reward someone just for having undergone an experience no matter how unfortunate
that experience might have been. You are to award damages as compensation only for those
items of damages for which the law grants compensation. Incollingo v. Ewing, 444 Pa. 263, 282
A. 2d 206 (1971); Mancini v. Morrow, 312 Pa. Super. 192,458 A. 2d 580 (1983).
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8) Damages for pain and suffering should not be awarded on the basis of sympathy,
benevolence or sentimentality. Such damages should be limited to reasonable compensation for
the injury sustained. Bostwick v. Pittsburgh Railwavs, 255 Pa. 390, 100 A. 2d 123, 124 (1917);
Burgan v. Pittsburgh, 373 Pa. 611, 612, 96 A. 2d 891,892 (1953).
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9) A person who suffers injury and damages by the negligence of anther is under an
obligation to exercise due care to mitigate the damages which that person has suffered. Bartunek
v. Koch, 400 Pa. 1,170 A. 2d 563 (1961). The term "mitigate" means to make less severe.
Black's Law Dictionary 1002 (6th ed. 1990). Mitigation of damages includes obtaining and
participating in appropriate medical treatment and rehabilitation. When determining damages for
personal injuries in Pennsylvania, it is proper for a jury to consider the failure of the plaintiff to
undergo medical treatment that an ordinarily prudent man would have submitted to under the
circumstances in an effort to better his condition. Yost v. Union Railroad Co., 380 Pa. Super.
236,244-45, 551 A. 2d 317,322 (1988). Accordingly, if you find that plaintifffailed to undergo
medical treatment that an ordinarily prudent man would have submitted to under the
circumstances in an effort to better his condition, you may determine that plaintiff is not entitled
to damages for permanent pain and suffering and disability. In addition, where inability to work
is claimed, the duty to mitigate damages also requires that a person seek ways to adjust their
occupational endeavors so that they do not suffer loss of income. McGinlev v. United States,
329 F. Supp. 62 (E. D. Pa. 1971); Hilscher v. IcKinger, 194 Pa. Super. 237, 166 A. 2d 678
(1961).
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Respectfully submitted,
MARSHALL, DENNEHEY, W AHNER,
COLEMAN & GOGGIN
DATE: ~ - 75 - ol/
BY, J~~ ~QUlRE
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4200 Crums Mill Road, Suite B
Harrisburg,PA 17112
(717) 651-3509
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joseph F. Murphy, an employee of Marshall, Dennehey, Wamer, Coleman & Goggin, do hereby
certify that all this z-::>
day of ,k/l7-(J
, 2004, I served a true and correct copy of the foregoing
document via United States First Class Mail, postage pre-paid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
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06-30-2004 08:43
From-MARSHALL DENNE HEY
+T1T2321848
T-m P.OOl
F-171
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I M.A:RsH.ALL. IlENNElmY. WARNER, COLEMAN &' 9<;looINI
A 1"ltOI' l!<l1'l ION 1\ I. CUo.'il'nR^TI{~1II .WwW..lDilrs~.com.
4200 Crums Mill Road, Suite B, Harrisburg, P A 17112
FACSIMILE TRANSMISSION SHEET
TO:
Judge Hoffer
COMPANY,
T€LEl'l'!:ONE FAX NUMBER(S):
240-fi4t"
Cumberland County Court of
Common Pleas
ATTORNEY: Joseph P. Murphy
OUR Fll..J& It: 2061400145 DATE: 06/30/04
NOMBER: 8(j9
CAS);: NAME. Hunt v. Flying,T
ORIGINATOR; jw
CLAIM #:
NUMBER OF PAGES: 14 (InclUding cover page)
IF COpy IS ILLEGIBLE OR INCOMPLETE
PLEASE CAll (717) 651-3500 IMMEDIATELY .FOR RETRANSMISSION
OUR FAX NUMBER IS: (717) 651-9630
(ThlS space to be \Ised fot shorr or 'upplmenwl me. sap)
"''''CONFIDENTIALITY NOTICE""'''
The docllmenrs accompan}rine: this releoopy transmissiOn conlain information from the law nnn nfMa,'!.hall. TJennflhf!}', Wamf!t. r.nlf:m>1T1 k Gocc;m whi('h is:
cQ11Rdenaa,l and/or legally privileged, This irtfornw.tion is intendtd only for the use of the indiviaual 0,' c:ndty named on ibis transtnission sheet. If you art: not
the intended teci))i~n~ you ate hoteby l\ouflOd that yOu should TOfrain trom readmE the contents of the amlSmission. 1hal an)' discln..Ii.i.1l'4'. ~yi"8:. dimlbulion
Of me: tAki1'i1; of any act10n in reliDIIGG on the Gont:cnts dthi.s tdG(;o'frl.-c.d lnMr...U1.uon j:5 ~~fi"t.11 Ylollwik J. Mud (lw~ 111~ .1UllUUlGll~ idlUuhllE n:\.tJI'IIW W Illilli
Firm immedialely. In this rcgnrd} if you have received this: tC:lecopy in CITOI', please l10tify uS by U:leptlJl1Cl immcdbLtely so that we ma.y amtl841 rot the te[um of
the ori.rinal documents to us.
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06-30-2004 08:44
From-MARSHALL OENNEHEV
+7172321849
T-275 P. 002
F-171
A REGIONAL DEHNSE L~T1GATION LAW ffRM
r MARsHALL, DENNEHEY, WARNER, COLEMAN f6 GoGGIN]
A I'\il:O"E&,SrONA.L COIl.OB.A.Tl0N
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4200 Crums Mill Road, Suite B . Harrisburg, P A 17112
(717) 651-3500 . Fax (717) 651-9630
June 25, 2004
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Direct Dial: 215-575-
EmaU: jmurphy@mdwcg.com
Judge Hoffer
Cumberland County Coun of Common Pleas
cmeCourthouseSqu~e
Carlisle, PA 17013
RE: Don Lee Hunt v. Flying J Inc.
CCP (Cumberland County) No.: 2001-7130 (Civil Term)
Our File # 20614-00145
near Your Honor:
Enclosed pl"'1se find Oefenclllnt'o Proposed Points for Charge in the abovc-captioncd case. Oy eopy ofthi. letter I
am providing plaintiff's counsel with a copy of the requested points.
So far as deftmdant's Stipulation to Plaintiff's Economic Loss is concemed, defendant will stipulate to the amount
ofplaintitrs medical expenses ($13,185.08) and plaintiff's loss of earnings ($10,203). However, defendant does not admit
that the alleged negligence of the defendant caused these damages. In additior., defendant stipulates to the amount of
these damages before application of comp~ative negligence. In light of the faut that defendant stipulates to the amOunt of
these damages. the amount of the damages are irrelevant to the jury's consider"tion of this matter. Defendant submits that
including a .stipulation of these damages in the charge to jury can only cause cunfusion. Accordingly, defendant
~"'''f1e<::tf" l1y reqilests that the court simply mold any verdict that may be enl,md againsr defendant in favor plaintiff by
adding these daJllllges to any damages that the jury may award.
I thank Your Honor for your consideration in this case.
JFM:jw
cc: William A. Addams, Esquire
IIJIUMlilUI - -~~fli!8\":
06-30-2004 08:44
Frcm-MARSHALL OENNEHEY
+7172321849
T-275 P.003/014 F-171
DON LEE HUNT,
Plaintiff
IN nIE COURT OF COMMON PLEAS
CUMBTIRlAND COUNTY, PENNSYL VANIA
v.
No.: 2001-7130 (Civil Tenn)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
DEFENDANT'S POINTS FOR CH.\RGE
I. STANDARD POINTS FOR CHARGE
1.34,1.36, 1.42 (defendant requests that court include "that the plaintiff actually sustained the harm
about which he complains" after the words "that the defendant was negl,gent," in the fourth pamgraph), 1.44,
1.45,3.00,3.03,3.50, ;;.04, 5.07, 5.30, 5.40, 5.50, 7.04 (defendant reqUt,sts that the court include t.I1e rollowing
words at the end of this charge: "if the plaintiff cannot establish all of these elements, defendant is entitle to
judgment"), 20.00.
II. REQUESTED POINTS FOR CHARGE
1) The mere happening of an accident does not eHtablish that one of the parties was
negligent. YOWl!! v. Commonwealth DOT. 560 A. 2d 373, 376, 744 A,2d 1276, 1277 (2000). In
order recover anything in this case, the plaintiff has the bLlrden of proving by a preponderance of
the evidenoe that the defendants had a duty of Care to the plaintiff, that the dcfcndllnt$ in some
fashion breached that duty of care, that the breach of t.I1e .My caused the mjunes complaint of by
the plaintiff, and that the plaintiff did in fact suffer those lnjuries. If any of those elements are
missing, then you must hold in favor of the defendants ar,d against the plaintiff. Lazar v. Rur
Industries. Inc.. 337 Pa. Super. 450, 487, A.2d 32 (1985); Saiatovich v. Transit Bus Co. 314 Pa.
06-30-2004 08:44
.. .~l~ . '. ~ ~'~.t-~~.;!
From-MARSHALL DENNE HEY
+7172321849
T-m P004!014 F-171
573,172 A. 151 (1934); Sheridan y, Horn & Hardart Baking Co. 366 Pa. 485, 77 A. 2d 362
(1951).
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06-30-2004 08:44
From-MARSHALL DENNE HEY
+7172321849
T-275 P.005/014 F-171
2) In the event that you find that plaintiff has sustained his burden of proof under the hills and
ridges doctrine as I have explained that principle of law to you, then YDtl must go on to detennine whether the
defendant has breached its duty of care to plaintiff under Pennsylvania l.lw. [Thereafter charge the jury on
standard points 7,00, 7.0lA, 7,02A (defendant respectfully requests that the court add the follnwiT181anguage to
7.02A: "but only if" at the end of the fIrst poragrapb, but before the subpans, as set [Ollli in lht= Rt:Slalement of
Tons (Second) ~ 342; and after subpart (3) the following language: "a P'lssessor ofIand is subject to liability
only if all tbtee criteria have been established by plaintiff'). Heimes v, New Enterprise Stone & Lime Co. Inc..
399 Pa. Super. 301, 307, 582 A.2d 353,356 (1990).
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06-30-2004 08:44
From-MARSHALL DENNEHEY
+7172321849
T-275 P.006/014 F-171
3) !fyou decide that the plaintiff has satisfied his burden of proof to establish that the defendant
was negligent and caused injuries to plaintiff, you must go on to consider whether plaintiff Don Lee Hunt was
himself negligent. "If there is anything settled in the law of negligence j'1 Pennsylvania, it is the duty of a
person to look where he is walI9ng and see that which is ohviOlls." Villano v. Se.curity Sl'Iving Association, 268
Pa. Super. 67,407 A.2d 440 (1979). When an individual can a88lU" hi~ own ~af"ly by the use of his senses, he
must do so or abide by the consequences of his carelessness. Keiper v. 11arauart, 192 Pa. Super. 88. 92, 159
A.2d 33, 35 (1960). A person may not recover for injuries which are rec.::ived as a result ofa failure on his part
to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed. Bream
v. Berger. 388 Pa. 433, 436, 130 A.2d 708. 709 (1957). A remon who is walking on a sidewalk or in a parking
lot has a duty to himscIfto look and watch where he is walking. Stra'wl",ck<;:r v. Sltmhen F. WhilIl1ll11 & Son.
14/1:'a. Super. 33, 37, 23 A.2d 349, 351 (1941); Moore v. Baltimore & CI.R. Co., 136 Pa. Super. 182,7 A.2d
] 62.166 (1939). A defendant in such a case as this is notrequired to take extraordinary precautions to save
adults in apparent possession of their reasoning faculties from the consequences of their own inattentiveness
and carelessness. ;Brancato v. Krolier (;0 lnc. 312 Pa. Super. 448, 45/1, ,k'iR A.?il B77, 1381 (1983).
Bveryone hIlS II right proceed under the assumption that those to whom h,~ owes a dnty 1)( "'lire lire normal in
every respect and prepared on their part to exercise the care of a prudent I,erson generally. Id. at 456, 458 A.2d
at 1381-82 (quoting Jefferson v. YMCA. 354 Pa. 563, 567, 47 A.2d 653, 655) it is a well-established rule that a
victim camot recover damages for injuries sustained by him ifhe could l,ave avoided the injury by the exercise
of ordinary care. Id. At 456, 458 A.2d at 1382.
'~"-"'IIolld~:ili"
06-30-2004 08:45
From-MARSHALL DENNEHEY
+7172321849
T-275 P.007/014 F-171
4) In ordef for you to decide in favor ofthe plaintiff, you must base your decIsIon upon evidence
which supports plaintiff's version as to how the accident occurred. Theories as to what may have transpired in
this accident may not be employed as a substitute for actual evidence. You may not base your verdict on mere
speculation Of guess work since a guess or speculation does not amount (0 proof. Loc]:l v. Alleghanv County,
194 PR. 433, 146 A. 2d 336 (1959). Circ1.lD1stantial evidence that only pl'Oves the possibility of nc:gligCl'lCc or
causaliull lUnl ll:llVtlS Lhe issue to surmise or conjecture is not sufficient to sustain a verdict. l'arnese v. SEPTA,
339 Pa. Super. 130,487 A. 2d 887 (1985); Churilla v. Barner. 269 Pa. Super. 100, 105 (1979).
_" JJ
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06-30-2004 08;45
From-MARSHALL DENNE HEY
+7172321849
T-m P.008/014 F-171
:>) When the plamtl1t1iulS to establish that his claimed inj1.1J)' is a direct result of
accident, the defendants are entitled to a verdict even thoaght they may have been negligent.
Sisk v. Duffey. 201 Pa. Super. 213, 192 A. 2d 251 (19631; Tackach v. B.M. Root Company, 279
Pa. Super. 167, 420 A. 2d 1084 (1980). Accordingly, if you find that the defendants were
negligent but that plaintiff failed to establish by compctcnt medical testimony that the injuJies Ire
complained of were directly caused by this accident, ther, you must hold in favor of the
defendants and against the plaintiff.
-
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:d~,.;/
06-30-2004 08:45
From-MARSHALL DENNE HEY
+7172321849
T-275 P.009/014 F-171
6) Thus far, the principles of law which 1 have explained to you bear only on the issues
of liability and causation. If you find that a defendant is liable to the plaintiff on the theory of
negligence as I have explained that doctrine to you, then you must go on and consider the issue
of damages. The fact that I charge you on damages does not mean that I am of the opinion that
plaintiff is entitled to damages. It is my responsibility to instruct you lIS to all of the applicablc
principles ofIaw, and it is your responsibility to apply the facts to the law as I have stated it.
_ . ~~~~. ,~'" _~ "' "O"~'<
06-30-2004 08:45
From-MARSHALL DENNE HEY
+7172321849
T-275 P.Ol0/014 F-171
"1) Damages are not punishment, and the amount of damages should not be viewed as
intended to punish the defendant, nor should damages be viewed as a reward. You are not
entitled you reward someone just for having undergone arl experience no matter how unfortunate
that experience might have been. You are to award dmm,ges as compensation only for those
items of damages for which the law gnmts oompensation Incollingo v. Ewin~. 444 Pa. 26:3, 282
A. 2d 206 (1971); Mancini v. Morrow. 312l'a. Super. In, 45~ A. 2d 580 (1983).
l-~ ~ ~~~-~
06-30-2004 08:46
From-MARSHALL DENNEHEY
+7172321849
T-275 P.Oll/014 F-171
8) Damages for pain and suffering should not be awarded on the basis of sympathy,
beJlevolence or sentimentality. Such damages should be limited to reasonable compensation for
the injury sustained. Bostwick v. Pittsburl!h Railwavs. 2 55 Pa. 390, 100 A. 2d 123, 124 (1917);
Bure:8D v. Pittsbure:h, 373 Pa. 611,612,96 A. 2d 891. 892 (1953).
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06-30-2004 08:46
From-MARSHALL DENNEHEY
+7172321849
T-275 P.012/014 F-171
9) A person who suffers injury and damages by 1 he negligence of anther is under an
obligation to exercise due care to mitigate the damages which that person has suffered. Bartunek
v. Koch, 400 Pa. 1, 170 A. 2d 563 (1961). The teml "mitigate" means to make less severe.
Black's Law Dictionary 1002 (6th ed. 1990). Mitigation c.f dmnages includes obtaining and
panil.:ipa~il1l;\ ill appropriate lllellicallrealnll:nland n"babilitation. When detennining damages for
personal injuries in Pennsylvania, it is proper for a jury t{, consider the failure of the plaintiff to
undergo medical treatment that an ordinarily prudent mal, would have submitted to under the
circumstances in an effort to better his condition. Yost v. Union Railroad Co.. 380 Pa. Super.
'16, '44-4<;,55] A. ?d 317, 322 (1988). Accordingly, if you find that plaintiff failed to undergo
lIleUil,lallrealm<;:nt lhalllll unlinarily prudt:lll mllIl would have submitted to under the
circumstances in an effort to better his condition, you ma l' determine that plaintiff is not entitled
to danlages for permanent pain and suffering and disabilhy. In addition, where inability to work
is claimed, the duty to mitigate damages also requires that II person seek ways to adjust their
occupational endeavor~ ~o that they (10 nor sllffAr loss (lfjncome. McGinley v. United States,
329 P. Supp. 62 (E. D. Pa. 1971); Hilscher Y. IcKiuger. 1)4 Pa. Super. 237, 166 A. 211 678
(1961).
06-30-2004 08,46
From-MARSHALL DENNEHEY
DATE: lu.. 7. 5" - ol/
" , W'iilnooS!@1\!<J(-.
+7172321849
T-275 P.013/014 F-171
Respectfully submilted,
MARSHALL, DF.NNF.HF.V, W A.RNER,
COLEMAN & GOGGIN
BY; ~~ A, .J:l^""
J s ~~QUIRE
I. .No.78119
4200 Crums Mill R,)ad, Suite B
Hanisburg, PA 17112
(717) 651-3509
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06-30-2004 08:46
From-MARSHALL DENNE HEY
+7172321849
T-275 P.014/014 F-171
DON LEE HUNT.
Plaimiff
v.
IN THE C:Ol)RT OF COMMONPT.FAS
CUMBERL t\ND COUNTY, PENNSYLVANIA
No.: 2001-7[30 (Civil Term)
JURY TRIAL DEMANDED
FLYING J INe..
Defendant
CERTIFICATE OF SERVICli
I, JosephF. Murphy, an employee of Marshall, Dennehey, Wam.rr, Coleman & Goggin, do hereby
certify that on this z'S"
day of k.//}.y
.2004, I served a true and correct copy of the foregoing
document via United States First Class Mail. postage pre-paid as follow:.:
Williant A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 10<)
Carlisle, PA 17013
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-7130 CIVIL TERM
V.
FLYING J INC.,
CIVIL ACTION - LAW
Defendant
IN RE: PRETRIAL CONFERENCE
A pretrial conference was held before the
Honorable George E. Hoffer, President Judge, on Wednesday, June
23, 2004.
In this slip and fall case, William A. Addams,
Esquire, represents the plaintiff, and Joseph F. Murphy,
Esquire, represents the defendant.
Plaintiff is an over-the-road truck driver who
claims he slipped and fell on hidden ice in the parking lot of
the defendant on January 26, 2000, at approximately 8:00 a.m. He
claims he fractured his elbow. Plaintiff claims that he was not
aware of the extent of his injury at the particular moment and
did not report this to Flying J at once. He continued with his
delivery to the New York City area and returned to Flying J the
next day, January 27th, to report the injury. Plaintiff claims
that he had surgery performed in California later in February of
2000 whereby certain screws or other medical tools were inserted
in the arms to stabilize the whole situation.
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Pretrial Conference
Plaintiff will be testifying himself and his
doctor is all ready to be presented to the jury by deposition.
Defense counsel has indicated that he will FAX an
appropriate charge to the Court by the close of business on
Friday regarding the Hills and Ridges Doctrine and/or other
appropriate law to be given on this particular issue to the jury.
If not agreed to by plaintiff's counsel, the Court expects an
appropriate and prompt response.
Mr. Addams cannot appear on Monday, July 12, but
is otherwise available that week and has promised the Court
co-counsel will pick a jury if necessary so that the jury not be
inordinately detained. The case can be tried in one day with
four challenges apiece.
Counsel will present to the Court a stipulation
regarding damages, to be given by the Court to the jury in an
appropriate fashion.
By the Court,
r, P.J.
william A. Addams, Esquire
For the Plaintiff
Joseph F. Murphy, Esquire
For the Defendant
Prothonotary
Court Administrator
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DON LEE HUNT,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001-7130 CIVIL TERM
FLYING J, INC.,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFF'S PRETRIAL MEMORANDUM
I. FACTS: It was snowing when Mr. Hunt arrived at the Flying J truck stop the night
before the accident. He slept in his truck and on January 26, 2000, he walked through fresh snow
without any difficulty to enter the restaurant. He left the building at about 8:00 a.m. and had no
problem walking until he had gone about 30 feet when he slipped on ice that was covered by the
snow and not visible.
II. DAMAGES: Mr. Hunt sustained a comminuted fracture of the right elbow. He
returned to California. On February 8, 2000 Rajiv Puri, M.D. performed an open reduction with
internal fixation. The hardware was surgically reattached on April 20 and surgically removed on
February 15, 2001. Mr. Hunt was unable to work from January 26 to June 21, 2000 and February
15 to March 20, 2001. Total medical expense was $13,185.08. Tota110ss of earnings was $10,203.
III. ISSUES REGARDING LIABILITY: The Plaintiff contends that he is not foreclosed
by the hills and ridges doctrine, which applies to a general slippery condition in the community. The
recent snowfall alone did not cause his injury. The cause was a localized patch of ice that existed
before it was covered by snow. See Harmotta v. Bender, 601 A.2d 837 (pa. Super. 1992); Bacsick
v. Barnes, 341 A.2d 157 (Pa. Super. 1975). The claim is based on a dangerous condition on the land
according to Restatement, Torts 2d 9343.
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IV. EVIDENCE: The Plaintiff understands the Defendant will stipulate to the medical
expense and loss of earnings.
V. WITNESSES: Plaintiff Don Lee H
VI. EXHIBITS:
(1) Photos taken by Plying J
(2) Plying J's accident report
(3) NOAA local climatological data, January 2000
(4) Hardware removed from Mr. Hunt's elbow
VII. SETTLEMENT NEGOTIATIONS: The Plaintiff has submitted an extraordinarily
reasonable demand. There has been no offer.
HANFT & KNIGHT, P.C.
~
William A. dams
Attorney I.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Date: June 23, 2004
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
DEFENDANT'S PRE-TRIAL MEMORANDUM
I. Statement of Facts as to Liability
This civil action arises out of an alleged slip and fall on ice and/or snow that occurred on the morning of
January 26,2000 in the parking lot of the Flying J Travel Plaza on Harrisburg Pike in Carlisle. Plaintiff was a
truck driver passing through Carlisle on the evening of January 25,2000 when he decided to spend the night in
his truck at Flying 1's facility. Plaintiff arrived in Carlisle at midnight, and it was snowing out at that time.
Plaintiff awoke at approximately 7:30 a.m. and went inside Flying J's to purchase a cup of coffee. It was
light out at that time. After exiting his vehicle he noticed that there was approximately three to four inches of
snow that had accumulated throughout the evening. After exiting Flying J's, plaintiff slipped and fell on ice
and/or snow that had accumulated in the parking-lot area for trucks.
At his deposition, plaintiff testified that the surface upon which he was walking was snow, but there was
also ice when the snow started to melt. He further testified that he could not recall that there were any tracks,
steps or any other indentations in the snow and/or ice in which he fell.
II. Statement of Facts as to Damages
As a result of the fall, plaintiff sustained an injury to his elbow. He did not immediately report the
incident to Flying J's; rather, he delivered his load in Elmwood Park, New Jersey and carne back to Flying J's
the next day to report the incident to report the incident. Upon his return to California he began treating with
various medical providers. Plaintiffs medical expenses have been paid by his Workers' Compensation Carrier,
and he admittedly does not have any restrictions in the use of the injured arm.
III. Statement as to Principle Issnes of Liability and Damages
So far as the liability issue is concerned, the Hills and Ridges Doctrine is the relevant standard that
applies to the issue of whether the plaintiffhas established the negligence ofthe defendant. That is, in order to
recover from a fall on an ice or snow covered surface a plaintiff is required to prove the following:
1.) That snow and ice had accumulated on the parking lot in ridges or elevations of such size and
character so as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon;
2.) That the property owner had noticed either actual or constructive, of the existence of such
conditions; and
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3.) That it was the dangerous accumulation of snow and ice which caused the plaintiffto fall.
If the plaintiff is unable to establish all of these elements, the defendant is entitled to a non-suit or
verdict in its favor.
Even if the case were to proceed to the jury for a determination as to liability, and the jury finds
defendant liable, the jury must also consider the comparative negligence of the plaintiff. If the jury determines
that plaintiff was himself negligent, the jury must then weigh the comparative negligence of the parties. If the
jury determines that plaintiffwas more liable than defendant, plaintiff is precluded from recovering from
defendant.
The issues so far as damages are concerned are whether defendant's negligence caused damages to
plaintiff, and if so, the value ofthose damages.
IV. Summary of Legal Issues Regarding Evidence
Defendant intends to introduce the February 7, 2000 report of Cynthia Thomas, D.O. as to plaintiff's
description ofthe accident giving rise to this lawsuit. Specifically, plaintiff advised the doctor that he was
walking out of the truck stop carrying a cup of coffee when he stepped on a sheet of ice and fell, landing on his
right elbow and right hip. This statement contained in the records is admissible under the medical records
exception to the hearsay rule. Pa..R.E. 803 (4); Swift v. Northeastern Hospital ofPhiladelphi<!, 690 A. 2d 719
(pA. Super. 1997). It is also admissible as an admission by a party-opponent. Pa..R.E 803 (25). The
aforementioned report was supplied by plaintiff, and, therefore, there is no issue as to the authentication ofthe
document. The defendant does not anticipate introducing any exhibits beyond the aforementioned report;
however, in the event that plaintiff's testimony at trial is inconsistent with his deposition testimony, defendant
reserves the right to introduce any or all of the medical records attached to plaintiff's counsel's November 19,
2002 correspondence to defendant's counsel, but only to the extent of admissions made by plaintiff in said
records. The legal authority set forth herein applies to these records well. In addition, authentication ofthese
records is not an issue.
V. Identity of Witnesses to be Called
1. Plaintiff, as on cross examination;
2. Anthony Lucas of Flying J;
3. Defendant reserves the right to utilize any and all experts listed by plaintiff;
4. Defendant reserves the right to supplement this list within a reasonable time prior to trial.
VI. Exhibits
See exhibit(s) identified in part IV.
VII. Status of Settlement Negotiations
The demand is $125,000. No settlement offer has been made.
.
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DATE: 1-):C\{
BY:
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Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
SQUIRE
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joseph F. Murphy, an employee of Marshall, De1l1lehey, Warner, Coleman & Goggin, do hereby
certify that on this ~ day Of~, 2004, I served a true and correct copy of the foregoing
document via United States First Class Mail, postage pre-paid as follows:
William A. Addams, Esquire
, Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106 .
Carlisle, P A 17013
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F:\User Folder\Finn Docs\WAA\2100.1\Writ.wpd
DON LEE HUNT,
15039 Flathead Road
Apple Valley, CA 92307
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001- 7/20 CIVIL TERM
FLYING J, INC.,
50 West 990 South
Brigham City, UT 84302
: JURY TRIAL DEMANDED
PRAECIPE FOR WRIT OF SUMMONS
To: Curtis R. Long, Prothonotary
Please issue a writ of summons and have the Sheriff serve the Defendant at 50 West 990
South, Brigham City, UT 84302 and also at Flying J Travel Plaza, 1501 Harrisburg Pike,
Carlisle, Cumberland County, PA 17013.
LAW OFFICE OF MICHAEL J. HANFT
Date: December 19,2001
By:
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William A. Addams
Attorney J.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
SUMMONS IN CIVIL ACTION
To: Flying J, Inc.
You are notified that the abo,<e-named Plaintiff has commenced an actio against you.
Date: ftc :;)1"); ?rYl t
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SHERIFF'S RETURN - U.S. CERTIFIED MAIL
CASE NO: 2001-07130 P
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
HUNT DON LEE
VS.
FLYING J INC
R. Thomas Kline
, Sheriff
of Cumberland
County, Pennsylvania, who being duly sworn according to law served the
within named DEFENDANT
,FLYING J INC
by United States Certified Mail postage
prepaid, on the 8th day of January ,2002 at 0000:00 HOURS, at
50 WEST 990 SOUTH
BRIGHAM CITY, UT 84302
, a true
and attested copy of the attached WRIT OF SUMMONS
Together
with
The returned
receipt card was signed by
01/03/2002
THAYNE CAU
on
Additional Comments:
Docketing
Cert Mail
Affidavit
Surcharge
18.00
3.95
.00
10.00
.00
31.95
So ans":=-<"s: /~ /____. //
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. Thomas Kline
Sheriff of Cumberland County
Sheriff's Costs:
Paid by MICHAEL HANFT
on 01/08/2002 .
Sworn and sUbscr~d to before
this IAi:!:: day of ~'''A''""'1
o2bo:J...., . D .
Q,t" Q fvt"l~.~ #
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SHERIFF'S RgTURN - REGULAR
CASE NO: 2001-07130 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HUNT DON LEE
VS
FLYING J INC
DOUGLAS DONS EN
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS
was served upon
FLYING J INC
the
DEFENDANT
, at 1429:00 HOURS, on the 26th day of December, 2001
at 1501 HARRISBURG PIKE
CARLISLE, PA 17013
by handing to
ROGER LOCKBAUM, ASST MANAGER
a true and attested copy of WRIT OF SUMMONS
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
3.25
.00
10.00
.00
19.25
r~Ar~<~
R. Thomas Kline
Sworn and Subscribed to before
me this /1 ~ day of
()"w~'1 d.koP A.D.
r}Jl ' ~ )y,,/luJ .~.
rot onotary'
01/08/2002
MICHAEL HANFT
By: n,Q
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Deputy Sheriff
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,
. Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery Is desired.
. Print your name and address on the reverse
so that we can return the card to you.
. Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
A Received by (plea:;a Print Clearly)
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C. Signature
X .,---..,. -,....__ /' sa!"'_nt
_/;J....-..- -,..,.- --E-~Mdressee
D. s delivery address different from item 1? 0 Yes
If YES. enter delivery address below; 0 No
FLYING J, INC.
50. West 990. South
Brigham City, ur 8430.2
3. Service Type
~ Certified Mail 0 Express Mail
o Registered 0 Return Receipt for Merchandise
o Insured Mail 0 C.O.D. -
4. Restricted Delivery? (&tra Fee) 0 Yes
2. ArtIcle N.umber~y from servlce!~
70.0.0. 1670. 0.0.0.1 8790. 3865
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PS Form 3811, -July 1999 : Domestic :Return 'Receipt
.0.1-7130. civil
102595.!tg-M.f789
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DON LEE HUNT,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO. 2001-7130 CIVIL TERM
FLYING J, INC.,
Defendant
: JURY TRIAL DEMANDED
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days aftef this complaint and notice are
served, by entering a written appearance pefsonally Of by attorney and filing in writing with the court
your defenses Of objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entefed against you by the court without
furthef notice fOf any money claimed in the complaint Of fOf any othef claim Of felief fequested by
the plaintiff. You may lose money or property Of othef rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE ALA WYER OR CANNOT AFFORD ONE, GOTO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
Lawyer Referral Service
2 Liberty Avenue
Carlisle, P A 17013
(717) 249-3166
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DON LEE HUNT,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001-7130 CIVIL TERM
FLYING J, INC.,
Defendant
: JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes the Plaintiff, Don Lee Hunt, by his attorney, William A. Addams, of
the Law Office of Michael 1. Hanft, and makes the following Complaint:
1. The Plaintiff is Don Lee Hunt, an adult individual residing at 15039 Flathead
Road, Apple Valley, CA 92307.
2. The Defendant is Flying J, Inc., a corporation with its offices and principal place
of business at 50 West 990 South, Brigham City, UT 84302.
3. The Defendant operates and maintains a Flying J Travel Plaza at 1501 Harrisburg
Pike, Carlisle, Cumberland County, PA 17013.
4. On January 26, 2000 at about 8:15 a.m. the Plaintiff was leaving the Defendant's
Carlisle facility after purchasing and eating breakfast. As he stepped out the door his foot hit ice,
which the Defendant had negligently and carelessly permitted to accumulate, and he fell and
fractured his right elbow.
5. The Defendant was negligent and careless in failing to remove the snow which
had fallen the day before and permitting it to form ridges of ice which was dangerous to the
public.
6. As a result ofms fall, the Plaintiff had to undergo surgery and internal fixation of
his fractured elbow.
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7. As a result of his injury, the Plaintiff incurred medical expense and loss of
earnings, pain and suffering, and loss oflife's pleasures.
8. The Plaintiff has sustained a permanent injury which will result in a loss offuture
earning capacity.
WHEREFORE, the Plaintiff demands judgment against the Defendant in an amount in
excess of $25,000 plus interest and costs of suit.
HANFT & KNIGHT, P.C.
~
By: ~~, / /S .--""~
William A. Addams
Attorney I.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
(717) 249-5373
Attorney for Plaintiff
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VERIFICATION
Don Lee Hunt hereby verifies that the facts set forth in the foregoing Complaint are true
and correct to the best of his knowledge, information and belief, and understands that false
statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn
falsifications
~k~d~
DATE:
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CERTIFICATE OF SERVICE
7tt
AND NOW, this~day of March, 2002, I, Mary M. Price, an employee of Hanft &
Knight, P.C., hereby certify that I have served a copy of the Complaint by mailing the same by
United States mail, postage prepaid, addressed as follows:
Flying J, Inc.
50 West 990 South
Brigham City, UT 84302
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned as counsel on behalf of the Defendant, Flying J,
Inc., in the above-captioned case.
DATE: ~Ar1ctt 21--. 2CAJI.-
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
~r:
BY:
TIM T AHON, ESQUIRE
J.D. No. 918
4200 Crums Mill Road, Suite B
Harrisburg, P A 17112
(717) 651-3505
Attorneys for Defendant,
Flying J, Inc.
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify
that on tl1iJ.... day of March, 2002, served a copy ofthe foregoing document via First Class United States
mail, postage prepaid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
~"l.\,\!~
Jo e . Parr
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE PREREOmSITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.24
As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.24
Defendants certifY that:
(1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto
was mailed or delivered to each party at least twenty (20) days prior to the date on
which the subpoena is sought to be served;
(2) A copy of the notice of intent, including the proposed subpoena, is attached to the
certificate;
(3) Plaintiffs counsel has waived the 20-day Notice within which to object to said
subpoena; and
(4) The subpoena which will be served is identical to the subpoena which is attached to the
notice of intent to serve the subpoena.
DATED: ~\\\~'d.
((~
TIMOTHY ON, ESQUIRE
Counsel for Defendant, Flying J, Inc.
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS
TO: William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
Timothy J. McMahon, Esquire, with the Law Offices of Marshall, Dennehey, Warner, Coleman
& Goggin, on behalf of Defendant, Flying J, Inc., intends to serve a subpoena identical to the one that
are attached to this notice. It is noted that Plaintiff has waived the twenty (20) day notice within which
to file of record an objection to the subpoena. Thus, the Subpoena will be served pursuant to the
applicable Pennsylvania Rules of Civil Procedure 4009.24. Complete copies of any reproduced
records may be obtained at your expense by contacting the undersigned at his office.
DATE: M AIleH 'lZ, 1CJ.;2-
BY:
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
C'(jMAN & OGGIN
TIM T cMAHON, ESQUIRE
I.D.No. 9
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
(717) 651-3505
Attorneys for Defendant,
Flying J, Inc.
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CbMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No,: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Highlands Insurance Group, PO Box 2058, Tustin, CA 92781
(Name o/Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce
the following documents or thing:
Anv and all correspondence, records, notes, memoranda, investigative reports, photographs,
videotapes. together with any and all other documents concerning a claim made bv Don Lee
Hunt. 15039 Flathead Road, Apple Vallev, CA 92307, and/or claim # 174002849-17.
at: 4200 Crums Mill Road, Suite B. Harrisburg, PA 17112
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena,
together with the certificate of compliance, to the party making this request at the address listed above.
You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things
sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its
service, the party serving this subpoena may seek a court order compelling you to comply with it.
THIS Subpoena WAS ISSUED AT TIIE REQUEST OF THE FOLLOWING PERSON:
NAME:
Timothv 1. McMahon. Esauire
ADDRESS: Marshall, Del1l1ehev, Warner, Coleman & Goggin
4200 Crums Mill Road, Suite B
Harrisburg, PAl 7 I 12
TELEPHONE: (7\7) 651-3505
SUPREME COURT ID# 52918
A ITORNEY FOR: Defendant. Flving J. Inc.
By the Court:
DATE:
Prothonotary
Seal of the Court
Deputy
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EXPLANATION OF REOUlRED RECORDS
TO: Highlands Insurance Group
PO Box 2058
Tustin, CA 92781
RE: Don Lee Hunt
15039 Flathead Road
Apple Valley, CA 92307
Claim No.: 174002849-17.
Seeks any and all documentation in your possession, custody and/or control concerning the
following:
1. Any and all correspondence, records, notes, memoranda, investigative reports, photographs,
videotapes, together with any and all other documents concerning a claim made by Don Lee Hunt,
15039 Flathead Road, Apple Valley, CA 92307, and/or claim # 174002849-17.
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DON LEE HUNT,
Plaintiff
v.
FLYING J, INC.,
Defendant
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2001-7130 (Civil Term)
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify
~
that on this~ day of March, 2002, served a copy of the foregoing document via First Class United States
mail, postage prepaid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
~~\~ ~ .~~
Jo . Parr
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DONLEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certifY
:w
that on this L day of ~ 2002, served a copy of the foregoing document via First Class United
States mail, postage prepaid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
~ ~ \\"-
Jo . Parr
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: Plaintiff, Don Lee Hunt
c/o William A. Addams, Esquife
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
You are hefeby notified to plead to the enclosed New Mattef within twenty (20) days from
service hefeof Of a default judgment may be filed against you.
Respectfully submitted,
MARSHALL, DJENNEHEY, WARNER,
COLEMAN & GOGGIN
DATE: Afl1ll 1,2s:JCJ'l.
BY:
TIM J McMAHON, ESQUIRE
LD. No. 52918
4200 Crums Mill Road, Suite B
Harrisburg, P A 17112
(717) 651-3505
Attorneys fOf Defendant,
Flying J, Inc.
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105_ A \LIAB\TJM\LLPG\91872\JMFI15000\50000
DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INe.,
Defendant
JURY TRIAL DEMANDED
DEFENDANT. FLYING J, INC.'S ANSWER WITH NEW MATTER
TO PLAINTIFF'S COMPLAINT
The Defendant, Flying J, Inc., by and through their counsel, Marshall, Dennehey, Warner,
Coleman & Goggin, hereby makes Answer to the Plaintiffs Complaint and in support thereof states
the following:
1. Admitted in part; denied in part. It is admitted only that Plaintiff is who he says he
is. All remaining allegations of this Paragraph are denied in accordance with Pa.R.C.P. 1029(c).
2. Admitted.
3. Admitted.
4. Denied.
Pa.R.e.P. 1029(c).
5. Denied.
Pa.R.C.P. 1029(e).
6. Denied.
PaRC.P. 1029(e).
7. Denied.
Pa.R.C.P. 1029(e).
The allegations set forth in this Paragraph are denied in accordance with
The allegations set forth in this Paragraph are denied in accordance with
The allegations set forth in this Paragraph are denied in accordance with
The allegations set forth in this Paragraph are denied in accordance with
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8. Denied. The allegations set forth in this Paragraph are denied in accordance with
Pa.R.C.P. 1029(e).
WHEREFORE, Defendant, Flying J, Inc., demands judgment in its favor and against Plaintiff
together with such other relief as this Court shall deem appropriate.
NEW MATTER DIRECTED TO PLAINTIFF
9. Plaintiff s Complaint fails to state a cause of action as against Defendant upon
which relief may be granted as a matter of law.
10. Defendant breached no duty of care owed to Plaintiff under the circumstances
described in Plaintiffs Complaint.
11. No act or omission on the part of Defendant was a substantial contributing factor in
bringing about Plaintiffs injuries and/or damages, all such injuries and/or damages being expressly
denied.
12. Defendant reserves it right to raise one or more of those defenses set forth at
Pa.R.c.P. 1030.
13. Plaintiffs claims may be barred and/or limited by Plaintiffs own negligence.
14. Plaintiffs claims may be barred in whole or in part by Plaintiffs failure to mitigate
his damages as required by law.
15. Plaintiff s claims may be barred in whole or in part by the Doctrines of Res Judicata
and/or Collateral Estoppel.
16. In order to preserve the defense and pending further discovery in this matter,
Plaintiffs injuries and/or damages, all such injuries and/or damages being expressly denied, may have
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been caused in whole or in part by persons and or entities other than Defendant and over whom
Defendant had neither control nor right of control.
17. In order to preserve the defense and pending further discovery in this matter,
Plaintiffs injuries and/or damages, all such injuries and/or damages being expressly denied, were not
caused by any act or omission on the part of Defendant, but rather were the result of pre-existing
medical and/or physical conditions which pre-existing medical and/or physical conditions were neither
aggravated nor exacerbated by Defendant's alleged negligence, all such alleged negligence being
denied.
WHEREFORE, Defendant, Flying J, Inc., demands judgment in its favor and against Plaintiff
together with such other relief as this Court shall deem appropriate.
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
DATE: Afl1./ L /, 1(jCJ2-
BY:
T T cMAHON, ESQUIRE
J.D. No. 918
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
(717) 651-3505
Attorneys for Defendant,
Flying J, Inc.
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VERIFICATION
I hereby affirm that the following facts are correct:
Flying J, Inc. is a Defendant in the foregoing action, and I am authorized to execute this
Corporate Verification on their behalf. The attached Answer with New Matter of Defendant is
based upon information which has been gathered by my counsel in the defense of this lawsuit.
The language of the Answer with New Matter is that of counsel and not of me. I have read the
Answer with New Matter and to the extent that the Answer with New Matter is based upon
infornlation which I have given to my counsel, it is true and correct to the best of my knowledge,
information and belief. To the extent that the contents of the Answer with New Matter are that
of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the
facts set forth in the aforesaid Answer with New Matter are made subject to the penalties of 18
Pa. C.S. Section 4904 relating to unsworn falsification to authorities.
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DATE:
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FlyjJJg.J;-fnc.
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby
\~ t-,. C\~\
certify that on this _ day of )/\\~__ ,2002, served a copy of the foregoing Defendant's
Answer with New Matter via First Class United States mail, postage prepaid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
~"'-I,i \\\.\\\\.
Jo M. Parr
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DON LEE HUNT,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001-7130 CIVIL TERM
FLYING J, INC.,
Defendant
: JURY TRIAL DEMANDED
REPLY
AND NOW, comes the Plaintiff, Don Lee Hunt, by his attorney, William A. Addams, and
makes the following reply to the Defendant's answer with new matter:
1-8. No answer required.
9. The conclusion of law is denied.
10-17. The answer to Paragraph 9 is incorporated herein by reference.
WHEREFORE, the Plaintiff requests the new matter be dismissed.
HANFT & KNIGHT, P.C.
By:
~~~
William A. Addams
Attorney LD. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Attorney for Plaintiff
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CERTIFICATE OF SERVICE
AND NOW, this 5th day of April, 2002, I, Mary M. Price, an employee of Hanft &
Knight, P.C., hereby certify that I have served a copy of the Plaintiffs Reply to new matter by
mailing the same by United States mail, postage prepaid, addressed as follows:
Timothy J. McMahon, Esquire
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
RULE TO SHOW CAUSE
,.--10-
AND NOW, this ~ day of
A-vf....;/'
, 2002, upon feceipt of the Motion of
Defendant, Flying J., Inc., a Rule to Show Cause is hereby issued upon Plaintiff, Don Lee Hunt, as to
why Defendant's Motion to Compel Responses to Defendant's Interrogatories and Request fOf
Production of Documents should not be granted. This Rule is feturnable twenty (20) days aftef service
upon Plaintiffs counsel by fegular mail.
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
MOTION TO COMPEL DISCOVERY
1. Plaintiff Don Lee Hunt instituted this action originally by filing a Praecipe for a
Writ of Summons on or about December 19, 2001. A Writ was issued December 20,2001.
2. Thereafter, on March 7, 2002, Plaintiff filed his Complaint and Defendant filed its
Answer with New Matter on or about April 4, 2002.
3. Plaintiff in his Complaint seeks to recover damages for personal injuries allegedly
sustained on or about January 26, 2000 as a result of an alleged slip and fall incident at Defendant's
business premises on the Harrisburg Pike.
4. On or about March 29, 2002 Defendant served Plaintiff with Interrogatories and a
Request for Production of Documents.
5. By correspondence of July 2,2002 counsel for Defendant requested that Plaintiffs
counsel supply answers to the outstanding written discovery no later than July 15th in order to avoid a
Motion to Compel such discovery responses.
6. Counsel for Defendant has made no further agreements concerning an extension of
time regarding this outstanding written discovery and Plaintiff has not responded to Defendant's
Interrogatories or Requests for Production of Documents.
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WHEREFORE, Defendant, Flying J, Inc., respectfully requests that this Honorable Court enter
a Rule to Show Cause as proposed attached hereto directing that Plaintiff show cause within twenty
(20) days as to why Defendant's Motion to Compel Discovery Responses should not be granted.
Respectfully submitted,
. MARSHALL, DJENNEHEY, WARNER,
COLEMAN & GIN
r;~
TIMO ON, ESQUIRE
J.D. No. 52
4200 Crums Mill Road, Suite B
Harrisburg, P A 17112
(717) 651-3505
DATE: Iius-. ~I 'jDo'J.-
BY:
Attorney for Defendant
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J, INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby
certify that on this (1' day of August, 2002, served a copy of the foregoing document via First Class
United States mail, postage prepaid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
~~, '\\;.,,,
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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:
o Pre-Trial Argument Court
l'8I Argument Court
-----.----------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
No.
2001-7130
Civil
19
1. State matter to be argued (i.e., plaintiff's motion for new trial,
defendant's demurrer to compliant, etc.): Defendant, Flying J Inc. Motion For Summary Judgment
2. Identify counsel who will argue case:
(a) for Plaintiff: William A. Addams, Esquire
(b) for Defendant: Joseph F. Murphy, Esquire
3. I will notify all parties in writing within two days that this case has been listed for argument._
Dated: September 10, 2003
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,PENNSYL VANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
L This civil action arises out of an alleged slip and fall on ice and/or snow that occurred
on January 26, 2000 in the parking lot of the Flying J Travel Plaza on Harrisburg Pike in
Carlisle. (See Plaintiff's Complaint).
2. At his deposition, Plaintiff testified that on January 25, 2000 he was passing through
Pennsylvania in his tractor trailer in order to deliver a load in Elmwood Park, New Jersey when
he decided to stop in Carlisle, Pennsylvania to rest and eat. (plaintiff's D.T. at 12-13) (A true
and correct copy of Plaintiff's Deposition Transcript is attached hereto as Exhibit A),
3. Plaintiff testified that he arrived in Carlisle at midnight on January 25,2000.
(plaintiff's D.T. at 13).
4. As Plaintiff pulled into Carlisle in the late hours of January 25th he noted that it was
snowing out at that time. (plaintiff's D.T. at 15).
5, After eating and sleeping through the night, Plaintiff awoke at approximately 7:30
a.m. (plaintiff's D.T. at 15-16).
6. Plaintiff testified at his deposition that probably three to four inches of snow
accumulated by morning as a result of the recent snowfall, (plaintiff's D.T. at 16).
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7. After awakening, Plaintiff went inside Flying J's to purchase a cup of coffee, and it
was light out at that time. (plaintiffs D.T. at 16).
8. After exiting Flying J's, Plaintiff walked outside and slipped and fell on ice and/or
snow that had accumulated in the parking-lot area for trucks. (Plaintiffs D.T. at 18,23).
9. At his deposition, Plaintiff testified that he was not able to see the ground underneath
the snow either before or after the fall, but he knew that it had to be ice, because his "feet went
out from under" him. (plaintiffs D.T. at 22-23,36).
10. At his deposition, Plaintiff testified that the surface upon which he was walking was
snow, but there was also ice when the snow started to melt. (Plaintiffs D.T. at 45).
II. On direct examination from his counsel, Plaintiff testified that he could not recall
whether there were tracks, steps, or any other indentations in the snow and/or ice upon which he
fell. (Plaintiffs D.T. at 45-46).
12. As a result of the fall, Plaintiff sustained an injury to his elbow. (Plaintiffs D.T. at
18).
13. Plaintiff did not immediately report the incident to Flying J's; rather, Plaintiff
delivered his load in Elmwood Park, New Jersey and came back to Flying J's the next day to
report the incident. (Plaintiffs D.T. at 24-25).
14. When Plaintiff pulled into Flying J's the day following the accident to make a report,
he noted that the sidewalks and parking lot of Flying J's had been cleared. (Plaintiffs D.T. at
31).
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15. On or about February 2, 2000, Plaintiff advised his Doctor, Cynthia Thomas, D.O.,
that the injury to his elbow occurred when he walked out of the truck stop carrying a cup of
coffee, stepped on a "sheet of ice" and fell, landing on his right elbow and right hip. (A true and
correct copy of the Workers' Compensation Form produced by Plaintiff in response to discovery
requests is attached hereto as Exhibit B).
16. Plaintiff's medical expenses and lost earnings have been paid by his Workers'
Compensation carrier, and he does not currently have any restrictions in the use of the injured
arm. (Plaintiff's D.T. at 40).
17. Summary Judgment is proper "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."
18. If the non-moving party fails to come forward with sufficient evidence showing the
existence of facts essential to the cause of action, the moving party is entitled to judgment as a
matter oflaw.
19. The Hills and Ridges Doctrine provides that an owner/possessor ofland is not liable
for general slippery conditions resulting from ice and snow where the owner has not permitted
the ice and snow to unreasonably accumulate in ridges or elevations.
20. In order to recover from a fall on an ice or snow covered surface, a Plaintiff is
reqUITed to prove the following: (1) That snow and ice had accumulated on the sidewalk [or
parking lot] in ridges or elevations of such size and character so as to unreasonably obstruct
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travel and constitute a danger to pedestrians traveling thereon; (2) That the property owner had
notice, either actual or constructive, of the existence of such conditions; (3) That it was the
dangerous accumulation of snow and ice which caused the Plaintiff to fall.
21. If a Plaintiff cannot establish all of the aforementioned elements, Defendant is
entitled to judgment as a matter of law.
22. In this case, Plaintiff is unable to establish the first element of a cause of action under
the Hills and Ridges Doctrine: namely, Plaintiff has failed to adduce any evidence to establish
that "snow and ice had accumulated ... [on the parking lot] in ridges or elevations of such size
and character so as to unreasonable obstruct travel and constitute a danger to pedestrians
traveling thereon."
23. Defendant is entitled to summary judgment in this case, because Plaintiff does not
recall that there existed hills and ridges of ice and/or snow and the only evidence as to the
character of the surface upon which Plaintiff allegedly fell is that the surface was a "sheet of ice,"
as admitted by Plaintiff to his treating doctor and the Workers' Compensation carrier.
WHEREFORE, Moving Defendant, Flying J, Inc., respectfully requests that this
Honorable Court grant this Motion and enter judgment in favor of said Defendant.
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
DATE:
BY:
QUIRE
. No. 78119
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Harrisburg, P A 17112
(717) 651-3509
Attorney for Defendant Flying 1, Inc.
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
ORDER
AND NOW THIS
day of
upon consideration of
Defendant Flying J's Motion for Sunnnary Judgment and the response thereto, it is hereby
ordered that said motion is granted. Plaintiffs Complaint shall be dismissed, with prejudice and
judgment entered in favor of Defendant.
BY THE COURT:
1.
:':b~'
li;i:
CONDEN&>ED
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOj' LEE HUNT, )
)
PLAINTIFF, )
)
VS. ) CASE NO.
) 2001-7130
FLYING J, INC. , ) CIVIL TERM
)
DEFENDANT. )
)
VIDEOTAPED DEPOSITION OF DON LEE HUNT
MONDAY, MAY 19, 2003
UPLAND, CALIFORNIA
JULIE A. HUDSON
CSR NO. 8842
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PRECM\ION COURT REPORTING SERVICES
PRECISION W:W SERVICES
CIIRlsm ~ON IiOEIIN. President
305 North $econd Ave:aue
. Upl""d. California 91786
(909) 981-1300 (800) 98-DIPO&
w"\V\v.depotilUe.com
e-mail: precision@depotime.com
,ideo@depoli1l1e.com
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..DON LEE f-L'tJld
] IN THE COURT OF COMMON PLEAS OF
2 C(.i1....1BERL!\ND COFNTY. PEN~SYLVANIA
3
4
DON" I..EF. HUNT.
)
)
)
1
) CASE NO. 2001-7I.W
) CTVTI.: TERM
)
)
)
)
Plaintiff.
5
6
FL YfNG /, me.,
7
Ddelldants.
"s.
8
9
10
]]
]2
13
14
] 5 TIlE VIDEOTAPED DEPOSmON OF DON LEE H\SL TAKEN BY
16 THE DEFENDANT. FLYING J. IN('.. AT 520 NOR11i EUCLID
17 AVE,,~JE. UPLAND. CALIFORl\~A. COMMENCING AT 10,09
18 01CLOCK A.M.. MONDAY. MAY 19, 2003, BEFORE
19 JULIE A. HUDSON. CS.R. NO. 8842. PURS\iANT TO NOTICE.
20
2]
22
23
24
25
1 APPEARA1'ICES,
2
3 For tbe PI;llntiff, Don Lee H11l1t:
4 (VIA TELEPHONE)
5
R\N;FT & KN1GHf. p.c.
BY, WILLlA1vl.WDI\.MS, ESQ,
19 Brockwoud A "enlll:'
Suitt' .106
CnrlisJe, Pellll!,v)vani1\ J7013.9142
(717) 249-5;173 '
6
7
8
9
Fnr tn(' nrJendRnt Flving linG,:
10
(VL\ TELEPHO'N"E,
II Jv[ARSHALL, DENNEHEY. W.'\RNER. COl.EMAN" &, GOOGTN
BY, J1JSTlN E. lvnJRPHY. ESQ
12 420{1 Cruffis Mill Road
Suitt"- B
13 HmTisblll"g, Penmylnmia ] 71 J 2
(7,17) 651.3500
14
15
Also Pre-St"nt: Ltlis Hem<lndez, Vid~g.rnpber
16
17
18
19
20
21
22
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25
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Page 4
] INDEX
2
3 WITNESS:
4 DON LEE HUNT
5 PAGE
Ii Examination By Mr. Murphy
7 Examination By Mr. Addams
8
9 Further Examination By Mr. Murphy
10
]1
]2
6
44
46
"
u
]4
]5 No.
16
]7
]8
]9
20
21
22
23
24
25
EXHIBITS
Description
(No Exhibits Offered)
Marked
Page 3
Page 5
UPLAND, CALIFORNlA. MONDAY. MAY ]9, 2003.
J\T 10:11 O'CLOCK A.M.
"--000---
]
2
3
4
5
Ii MR. HERNANDEZ: Good moming. This is the
7 videotaped deposition of Don Lee Hunt, taken at the
8 office of Precision Court Reporting Services, located
9 at 520 North Euclid Avenue, Upland, California.
]0 Today is Monday, May 19th, 2003, in the matter of
]] Don Lee Hunt versus Flying J, Incorporated, case No.
12 2001-7130, civil term, in the Court of Common Pleas
]3 of Cumberland County, Pennsylvania.
] 4 This deposition is being taken on
]5 behalf of the Plaintiff. My name is Luis Hemandez
]6 with Precision Court Reporting and Video Services of
] 7 Upland, California. This deposition is eOlmnencing at
18 10:09 a.m.
]9 Would all counsel present please state
20 your names and appearances.
2] MR. MURPHY: Justin Murphy for defendant
22 Flying J, participating via telephone.
23 MR. ADDMvIS: And William Addams for Don Lee
24 Hunt.
25 MR. HERNANDEZ: Ms. Reporter, will you please
PRECISION COURT REPORTING SERVICES (800) 98-DEPOS
Page 2 - Page 5
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, DON:LEE I:ilTNT
I swear in the witness.
2
3 DON LEE HUNT.
4
5 the Plaintiff herein, having been first duly sworn,
6 was deposed and testified as follows:
7
8
9
]0
II
12
13
14
15
16
17
18
19
20
21
EXAMINA nON
MR. MURPHY: Okay. Ready to beginO
THE REPORTER: Yes.
BY MR. MURPHY:
Q. Okay. .Mr. Hunt, can you bear me okay'>
^- Yes, fine.
Q. All rigbt. As we stated before, my
name is Justin Murphy. I represent the defendant in
the lawsuit that you fiIed here in Pennsylvania, the
defendant. Flying.r. And we're here to take your
deposition.
Have you ever had your deposition taken
before?
A. No, sir.
Q. Okay. Just very briefly, and as notcd
24 on the record, this is a Jelephone deposition.
25 You're]ocated in California, we are here in
22
23
Page 7
I .Pennsylvania. I have your attorney Mr. Addams here.
2 And I'll be asking you some questions,
3 and it's important, especially with the phone
4 connection, that you wait until I'm finishcd with my
5 question before you answer. If YOll have any
6 questions about anything that I ask you, you don't
7 understand my question, please let me know and I'll
8 rephrase it for you.
9 Your attorney may have objections from
10 time to time to tbe questions that I ask. Please
II wait until he is finished with bis objection, and
12 then assuming he's not asking you not to answer the
13 question you can go ahead and answer it over his
14 objection. Does that make sense?
15 Do you bave any questions about tbat?
16 A. No problem.
]7 Q. Okay. All rigbt Could you please
18 state your full name and address for tbe rec.ord.
19 A Don Lee Hunt, 15039 Flathead Road,
20 Apple Valley, California 92307.
21 Q. All rigbt. sir. And what is your date
22 of birth?
23 A. 10-5-40.
24 Q. Okay. And how arc you presently
25 employed"
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Page 8
] J\. With Swift Transportation.
2 Q. . And as a tmck driver, I assume, right?
3 A. Yes, sir.
4 Q. Okay. How long have you been with
5 Swift Transportation?
6 A. Let's see, this is the 5th n 19
7 months.
8 Q. Okay. And in your employment with
9 Swift Transportation, have you ever had the
]0 opportunity of driving through Pennsylvania for ajob
] I for Swift Transportation?
12 A No. I nm the I 1 westem states.
13 Q. Okay. When is the last time when you
] 4 were in Pennsylvania on bnsiness or otherwise?
15 A. It was probably in year 2000.
16 Q. Okay. And could you just briefly give
17 us a description of what your job duties are with
18 Swift TranspOliation as a tmck driver?
119 A. Wen, I read the Quallcom, which they
120 cOlwnunicate by, and pick up freight at their
21 destination or their shipper and deliver it to
22 wherever they say deliver it to.
23 Q. All right. What sort of freight are
24 you hauling with Swift?
25 A. Just about anything that's tangible
Page 9
I anyway.
2 Q. Okay. You stated that you were
3 employed by Swift for approximately 19 months. Who
4 was your employer prior to that?
5 A. M.E. Stoneking.
6 Q. And where are they based ont of?
7 A. He was based in Vernon, Califomia.
8 Q. You said "was." Are they stiH around
9 or did they move?
10 A. We11, he's moved and getting a divorce
] I right now, so I'm not sme where bas he's located
] 2 right now.
13 Q. You state "he." Is it Mr. Stoneking,
] 4 is that the name of the person who owns the business?
15 A. Yes.
16 Q. And what are the dates that you worked
17 for M.E. Stoneking?
18 A. It was 59 n I mean, not 59. Let's
19 see.
20
21
22
Q. Just a ballpark figure. Yon don't have
to be specific.
A. It was about two ycars.
Q. For two years?
A. Yes.
Q. Okay. And what was your job with M.B.
23
24
25
PRECISION COURT REPORTING SERVICES (800) 98-DEPOS
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1 Stoneking?
2 A. The same as it is with Swift.
3 Q. Which is?
4 A. Picking up and delivering freight. But
5 V\~th M.E. Stoneking J was nmning throughout the
6 United States.
7 Q. What SOJ1 of freight were you picking
8 up and hauling with Stoneking?
9 A. Well, the same type of freight,
10 different shippers and consUJnees. The last load J
]] hauled for M.E. Stoneking was a load of paper.
]2 Q. Okay. When you were employed with M.E.
13 Stoneking, can you just give me- an estilnatioll of how
14 often your travels brought you through Pennsylvania')
] 5 A. Oh, probably oncc a month.
] 6 Q. And were there specific suppliers you
17 were dealing with in Pennsylvania or specific placcs
] 8 you were going to pick up and deliver your freight?
]9 A. Well, from anywhere going to Elmwood
20 Park, New Jersey.
2] Q. Okay. That's not exactly what I had
22 asked you. Is there anyone -- any particular
23 businesses you were dealing with here in Pennsylvania
24 when you were employed with M.E. Stoneking?
25 A. No.
Page 11
] Q. Okay. In your complaint --
2 incidentally, do you have a copy of the complaint and
3 any of the discovery responses that were drafted by
4 your attorney?
5 A. Yes.
6 Q. You do have it with you?
7 A. Yes.
8 Q. Okay. You have the discovery responses
9 and the complaint?
]0 A. Yes.
II Q. Okay. In the complaint that was
] 2 drafted by your attorney and verified by you, it
13 indicates an injury to your right ann, correct?
]4 A. That's correct.
IS Q. Okay. Prior to the date alleged in
16 your complaint, which is January 26th, 2000, have you
17 ever had any other injuries to your right ann?
] 8 A. No, sir.
19 Q. Okay. And are you currently under the
20 treatment of any physicians?
21 A. No, sir.
22 Q. Whcn is the last time you went and saw
23 a doctor?
24 A. Dr. Puri. Let's see. 3-20-0l.
25 Q. And did you see Dr. Puri for your --
I for the injury to your right ann?
2 A. Yes, sir. He was the surgery --
3 surgeon.
4 Q. Okay. Going back to your complaint in
5 this case, it states that you were in Pennsylvania on
6 Janumy 26th, 2000 while employed with M.E.
7 Stoneking, correct?
8 A. That's correct.
9 Q. What brought you into Pennsylvania on
] 0 that date?
II A. I was on my way to Elmwood Park,
] 2 New Jersey.
13 Q. That's Elmwood Pm-k'?
]4 A. Elmwood Park, New Jersey.
15 Q. And \-"hat were- you going to do in
16 E1mwood Park, New Jersey?
] 7 A. Deliver a load and then pick up a load.
] 8 Q. Do you recall what that load was?
19 A. Going in there, I don't remember
20 exactly what it was, but coming out it was a load of
2] paper.
22 Q. 11m sorry, can you say that again?
23 A. Going into Elmwood Park I don't recall
24 what the load was, but coming out of there I know it
25 was a load of paper.
Page 13
I Q. Do you recall where you were coming
2 from when you were on your way to Elmwood Park,
3 New Jersey?
4 A. No, sir, I sure don't
? Q Okay. Did you stop off anywhere while
6 you were in Pennsylvania on your way to E1mwood?
7 A. Carlisle, Pennsylvania.
8 Q. Was that Carlisle, Pennsylvania?
9 A. Yes.
10 Q. Did you stop anywhere in pennsylvmlia
II eithcr before or after you stopped in Carlisle?
12 A. Not that I know of, no.
13 Q. And what was the purpose of your stop
14 in Carlisle, Pennsylvania?
15 A. To rest and eat.
] 6 Q Had you ever been to Carlisle before?
] 7 A. Once or twice. yes.
18 Q. Okay. And what was the purpose of
19 those trips to Carlisle?
20 A. Delivering -- going through and
2] delivering freight to Elmwood Park.
22 Q. And do you recall when you got into
23 Carlisle, PA. what time of the day it was?
24 A. 1t was m'ound midnight on the 25th.
25 Q. If it WOll1d have bee111l1idnight, would
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1 it have been the 26th or 25th?
2 A. 25th.
3 Q. Hov'! long did you stay inCarlis1e"
4 A. Just a little over eight hours.
5 Q. And what did you do when you got into
6 Carlisle around midnight? Tell me what you did.
7 A. I went into the tnlck stop to eat, and
8 then went to bed. And then about 8:00 on the morning
9 of the 26th I got up, got my cup of coffee, walked
10 out the door and promptly fell on my keister.
] 1 Q. Where did you go to bed?
] 2 A. In my trnck.
13 Q. Okay. So you got into Carlisle on
14 midnight on the 26th, correct -- 25th, correct?
] 5 A. Correct.
16 Q. And then you ate and went to sleep back
17 in your tmck. and this is still on the 25th, righe
18 A. WeU, -- yeah. Yeah, it would be.
19 Q. Just so we'rc clear, your complaint
20 indicates that it was on January 26th when you had
21 your accident.
22 A. That's correct.
23 Q. Did that change?
24 A No, that didn't change.
25 Q. Well, does that change your answer to
Page 15
] what date it was when you woke up and had the cup of
2 coffee?
3 A. No.
4 Q. And you spent a total of about eight
5 hours in Carlisle, eonect?
6 A. That's con'cct.
7 Q. Okay. But by my math then, if you get
8 into town at midnight on the 25th and you stay eight
9 hams, that makes it 8:00 in the morning on the 25th
10 when you leave Carlisle.
11 A. 111at's correct.
]2 Q. So the accident happened on the 25th or
13 the 26th?
14 A 26th.
15 Q. Did -- when you -- after 8 hours when
16 you left Carlisle, where did you go to?
17 A. Elmwood Park, New Jersey.
18 Q. Do you reean what the weather
] 9 conditions were like when you pulled into Cadisle on
20 the 25th?
2] A. Well. it was snowing. It had becn
22 snowing.
23 Q. Anything else?
24 A. No. It had cleared off during the
25 night.
Page 16
] Q. Do you have allY idea how much snow had
2 accumulated in Carlisle?
3 A No, sir, 1 sure don't.
4 Q. Do you think it was more than a couple
5 inches?
6 A. Probably a couple more -- probably
7 three or four inches.
8 Q. And when you woke up from your sleep, 1
9 assumc that YOll slept in the cab, con-ect?
10 A. That's correct.
11 Q. You have a bed in the back, sleeper
12 cab?
13 A. Yes. sir.
14 Q. ,Vhat time would it have been when you
15 woke up?
16 A. Probably around 7:30.
17 Q. Then 1 think you said you went -- went
18 inside to get a cnp of coffee, correct?
19 A That's correct.
20 Q. Do you recall if it was light out or
21 dark out at 7:30 when yon went in to get your coffee?
22 A. Jt was light.
23 Q. 1 think in the discovery responses that
24 you and your attorney provided it indicates that
25 you're required to wear glasses when you're driving;
Page 17
I 1 is that correct"
2 A. That's correct.
3 Q. Do you know if you had your glasses on
4 at 7:30 in the morning when you went into the
5 Flying n
6 A. Oh, yeah.
7 Q. Okay. Are you nearsighted or
8 farsighted?
9 A. I have a stigmatism.
10 Q. ,Vhich entrance of the F1ying J did you
II go into when you went to get the cup of coffee?
12 A. Off the fuel island.
13 Q Off of the fuel island?
14 A. Yes.
15 Q. All right. If you're -- if you have
10 just pulled into the Flying J restaurant, you're
17 looking directly at the building, the building is
18 right in front of you. would that be towards the left
19 or towards the right of the building?
20 A. It would be to the right.
21 Q. When you walked into the building, were
22 you canying anything in your hands?
23 A. My coffee cup.
124 Q. So you had a coffee cup that you
i 25 brought in with you to fill up; is that right?
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] A. That's correct.
2 Q. Do you know ",'hat kind of shoes or boots
3 you bad on that dav?
4 A Had on boots with neoprcnc solc.
5 Q. Do you know bow long you had owned
6 those boots when this incidcnt happencd')
7 A. Probably three months.
8 Q. Did you say one month?
9 A. Three months.
10 Q. Three months.
II Do you still have the boots?
12 A. Oh, ycah.
13 Q. Okay. Why don't you tell me what
14 happened after you walked into the Flying J.
] 5 A. I got my cup of coffee and started back
16 out. Walked outside and stepped on some ice and fell
17 and landed 011 my elbow.
18 Q. Is that your right elbow?
]9 A. Yes, sir.
20 Q. Did you buy anything else besides a cup
21 of coffee when you went inside the restaurant?
22 A. No. sir.
23 Q. And incidentally, would this have been
24 in the restaurant pOliion of the Flying J where the
25 what you would call the conveniencc center part of
Page 19
j the Flying J where you found the coffee? I
2 A. Probably the convenience centcr.
3 Q. Whcn you walkcd into the Flying J, did
4 you notice if tbe sidewalks had been cleared of any
5 snow that had accumulatcd over the night?
6 A. Thcy had not been cleaned.
7 Q. So there was snow on the ground that
8 you would walk through to get to the building?
9 A. Yes, sir.
10 Q. And 1 don't recall if I asked you this
II already or not. When you came out of the store, had
12 you bought anything besides the coffee?
13 A. No, sir.
14 Q. And what time were you due to pull into
15 Elmwood City in New Jersey?
16 A Probably around noon.
] 7 Q. Was that a deadline that you had to be
18 there by that time or is that just the estimated time
19 that you would get there?
20 A. That was a deadline I had to be there.
21 Q. How far away is Ehnwood, New Jersey
22 from Carlisle, if you can give me an estimate?
23 A. Oh, probably 300 miles.
24 Q. How many hours would that be?
25 A. Oh, probably with the spcedlimit it
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Page 20
I would probably be about four hOUTS.
2 Q. And explain to me, if you could, the
3 situation with ME Stoneking, if you have a deadline
4 to meet to be " pull in somewhere at noon, if you
5 don't make it on time is there any kind of
6 ramification for that?
7 A. \Vell, I would -- yeah.
8 Q. Describe for me what that would be.
9 A Well. it would be a service failure.
10 Q. Meaning what?
] I A Means you get penalized. You get so
] 2 many of those per month and then you get tenninated.
13 Q. Had you ever had a service failure
14 prior to the date of the incident in your complaint,
] 5 .T anuaty 26th of 2000?
16 A No.
] 7 Q. Okay. Which set of doors did you leave
18 from when you were headed back to your truck to go to
19 Elmwood?
20 A. I just came back out Ihe same door 1
2] went in.
22 Q. And was there stm snow on the
23 sidewalk?
24 A Yes, there was.
25 Q. \Vas there stm snow in the" well,
Page 21
I strike that.
2 W as there snow in the parking lot?
3 A, Yes.
4 Q. Did it look like anyone had been
5 through with a plow?
6 A. Wel1, somebody had been through with a
7 plow, yeah.
8 Q. Did you see anybody driving through
9 \'vith a plow?
10 A. No, sir.
I I Q. Where was your truck parked in relation .
12 to the door that you came out of?
13 A. Just about to the left" weB, I come
] 4 out the door and walked to my left to the truck.
15 Q. Approximately how far away?
.16 A. Oh, it was probably 60. 70 feet.
17 Q. And in which direction were you looking
18 when you left the Flying J through those doors?
19 A. I believe it would be east.
20 Q.. Okay. Less specifically than east, if
21 you can give me an idea which way you're looking,
22 would it have been straight ahead, off to the Jeft,
23 off to the right"
24 A. Off to tbe left.
25 Q. And were you looking up or down?
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] A. Well, normally I look down to see where
2 I'In stepping, yeah.
3 Q. Okay. You stated normally you would
4 look down, is that what you were doing on this
5 situation?
6 A. Oh, yeah.
7 Q. Did you fall or slip at all when you
8 were entering the Flying J initially?
9 A. No. sir.
10 Q. How far did you get once you left the
11 building before you fell down?
J2 A. Probably 30 feet.
l3 Q. Now. would this have been in the
14 parking lot area where you fell down or a sidewalko
J 5 A. It would be directly from the fuel
16 lanes, yeah.
J 7 Q. Well, I kind of asked you a compound
18 questlon there, so let Ine ask you it again.
J9 Was this -- did this fall occur on the
20 sidewalk?
2J A. No.
22 Q. Did it occur in the parking lot area?
23 A. Well, there is a parking area for the
24 trucks, yeah.
25 Q. Were you able to see the ground where
Page 23
] you fell prior to falling? Were you able to see what
2 was underneath the snow?
3 A. No, sir.
4 Q. After you fell, were you able to see
5 the ground underncath the snow?
6 A. No, sir.
7 Q. And as best as you're able, if you
8 could describe for me how you fell down.
9 ./I. I stepped up and my right foot went out
10 from under me and I landed on my right elbow.
11 Q. Which hand werc you holding the coffee
12 in?
l3 A. My right elbow -- my right hand. I
J4 didn't spill the coffee cither.
15 Q. Was there anyone else around when you
J6 fell?
17 A. Another driver come over and asked me
J8 if I was okay. He saw me fall, but I didn't bother
19 to get his name or address.
20 Q. Had you ever seen him before?
21 A. No, sir.
22 Q. Nobody else besides that gentleman was
23 in the area?
24 A. Well, I don't know whether there was
25 anybody elsc in the fuels la.ncs, but he was the only
'" J
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J one \vho came over.
2 Q. Did you land on any other part of your
3 body other than your right elbow?'
4 A. My right hip.
5 Q. Did you injure your right hip"
6 A. Just a bmise.
7 Q What did you do after you fell down on
8 your right elbow al1d the gentleman came up and asked
9 if you needed help; what happened after that?
10 A. He asked me if I wa.q okay, and I said I
. J I think so. I got a knot on my elbow, but I'm going to
]2 go on. So I went and got in my truck and went on to
J 3 Elmwood Park.
14 Q. Did you makc a notation on your travel
15 log tbat you had fallen down?
J6 A. Yes, I did.
17 Q. When did you do that?
18 A. At the time I did it.
19 Q. You mcan when you got back in the
20 truck?
21 A. Yes.
22 Q. Are you right-handed"
23 A. Yes, sir.
24 Q. Okay. Did you report the fall to
25 anyone at the Flying J on that date?
Page 25
J A. Not at that time, no.
2 Q Okay. Why not?
3 A. J just went on to Elmwood Park,
4 delivered my load, and came back the next day and
5 stopped there and reported it. That's when they took
6 pictures of it.
7 Q. Okay. \Vhy didn't you report it when it
8 happened, J guess you're saying on the 25th?
9 i\. T didn't think anything was wrong.
JO Q. Okay. Do you know what time you pulled
11 into Elmwood City?
12 A. It was probably about noon.
13 Q. And what happened after you got to
14 Ehnwood City around noon?
15 A. I delivered my load and had to wait
16 around the next day to get a load going to Phoenix,
17 Arizona.
J 8 Q. And did you stay overnight in Elmwood
19 City?
20 A.
21 Q.
22
Yes, J did.
Did you sleep in the truck?
A. Yes, I did.
Q The next day is the 26th, right?
A. That would be the 27th.
Q. Okay. I think we estab 1ished before
23
24
25
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1 that when you got up in Carlisle it was on the 25th,
2 right~ when you woke up that morning?
3 A. No.
4 Q. Okay. We have a little confusion about
5 what the date was. Did the injUlY occur on the 26th
6 or the 25th?
7 A. 26th.
8 Q. Okay. And you had pulled into Carlisle
9 the night before, correct?
10 A. That's correct.
] 1 Q. About eight hours before your injury?
] 2 A. That's correct.
13 Q. Okay. Did you seek any medical
] 4 assistance on your way to Elmwood City?
15 A. No. sir.
]6 Q. And did you seek any medical assistance
17 once you got to Elmwood City"
]8 A. No, sir.
19 Q. Okay. When you're hauling your load,
20 dropping it off and picking up a new load, what is
2] your involvement in that whole process')
22 A. I usually have a bill of lading that I
23 get the customer to sign and I receive the freight.
24 Q. Anything else?
25 A. No. I make an enuy in my log.
Page 27
] Q. The trailer portion of your truck, does
2 that -- do you keep the trailer ponion or do you
3 unhitch it and get a new trailer when you reach your
4 destination?
5 A. It depends on whether it's a drop or a
6 Iivc unload.
7 Q. Okay. \\'hen you got to Elmwood City
8 that day on the 26th of January. do you recall what
9 the situation was there?
10 A. J think Mr. Addams has my logs. I'm
I] . not real sure whether it was a live unload or a drop.
]2 Q. Okay. You don't have a copy of those
13 ,,~th you right now?
]4 A. No, sir.
]5 MR. MURPHY: We can go off thc record for one
]6 minute.
] 7 MR. HERNANDEZ, The time is 10:44 a.m., and
] 8 we're off the record.
19 (A brief recess was taken.)
20 MR. HERNANDEZ, TIle time is 10:45 a.m. and
21 we're back on the record.
22 BY MR. MURPHY:
23 Q. Okay. Mr. Hunt, I was asking you about
24 whether or not on the 26th of January you actually
25 dropped off your trailer and you called it a Jive
I I
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Page 28
1 drop off or not. and we looked through your log
2 rccords and werell't able to tell what it was or not.
3 So J'mjust going to ask you based upon your memory.
4 Do you recall on the 26th when you got
5 to Elmwood City, New Jersey whether you had to
6 physically help unhitch the trailer or -- unhitch the
7 trailcr or unload the freight that was in that
8 trailer?
9 A. Probably backed into the dock and they
10 unloaded it.
II Q. Okay. Did you assist with that at all?
12 A. No.
13 Q. Okay.
]4 A. One way to tell would be on the 27th J
15 changed trailcr l1mnbers.
]6 Q. Okay. So you said you stayed ovemight
]7 in ElmwoodCity and then the next moming you were
18 leaving for Phoenix, Arjzona~ is that correct?
19 A. That's correct.
20 Q. Okay. What time did you head out the
21 next morning, which would have been on the 27th?
22 A. There again. hers got 111Y log, so rIll
23 not real sure what time I left.
24 Q. Okay. Would it have been somctime in
25 the morning, if you know? Don't guess if you don't
Page 29
] know.
2 A. That's correct. It would be in the
3 ,morning.
4 Q. And then when you left Elmwood City
5 that moming, what did you do? Where were you headed
6 to?
I 7
8
9
10
II
]2
13
14 ann?
A Carlisle, Pennsylvania.
Q Okay. \Iv'hy were you headed to Carlisle,
Pennsylvania')
A. I wanted to go back through there and
repOJi the accident because by then I had a big bag
under my ann on my right elbow.
Q. What kind of bag did you have on your
]5 A. It was back and blue. I don't know
1 (i what kind of bag it was. It was just hanging down.
17 Q. You mean this wasn't a bag that you a
18 applied, you're classifying your injury as a bag?
] 9 A. That's correct.
20 Q. Okay. What did it look like?
2] A. Well, it was different color, but
22 mostly black.
23 Q. And where specifically on your right
24 arm was that black ponion located?
2S A, Hanging down from Jny right elbow.
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Q. And I believe you stated it swelled up?
A. Oh, yeah. Thcy took pictures of it in
3 Carlisle when J got there.
Q. Okay. 'When did it u when did it swell
2
4
5 up?
6 A. It started swelling right after it
7 happened.
8 Q. Okay. And why did you decide to go
9 back to Carlisle the next day to rcpon it?
10 A. J wanted to get it on record.
1l Q. But you didn't want to report it u you
12 didn't feel it was necessary to repon it right after
13 it happened, correct?
14 A. That's correct.
15 Q. Andjust incidentally. was it out of
16 your way to go through Carlisle before having gone
17 towards Phoenix?
18 A. No, sir.
19 Q, And, again, realizing you don!t have
20 your logbook in front of you, but do you have any
21 idea what time you pulled into Carlisle that day?
22 A. No, sir, r sure don't.
23 Q. Also, was this .. when you left
24 Carlisle to drive to Elmwood City, had it continued
25 to snow?
Page 31
I A. No, sir.
2 Q. And when you left Elmwood to go back to
3 Carlisle, do you recalI if it was snowing?
4 A. No, SlT, it v.rasl1't.
5 Q Okay. All right. woen you got into
6 Carlisle, was there still snow in tbe parking lot?
7 A. No, sir. It was cleared off.
8 Q. How about on the sidewalks?
9 A. No, sir. It was all cleared.
10 Q. Did it look different from vvben you
11 were there the first time two days before tbat?
12 A. Oh, yeah.
13 Q. Okay. And what did you do once you got
14 into Carlisle?
15 A. I went to see the manager and initiated
16 a report.
17 Q. Do you recall the manager's name?
18 A. No, ] don't remember her name.
19 Q. Was it a woman?
20 A. Yes. it was.
2] Q. And which cntrancc to the Flying J did
22 you go in when you were g01ng to Inake the report?
23 A. Thc samc entrance. It would bc from
24 tbe fuel lanes.
25 Q. And in the time from when the incident
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MAY 19,2003
Page 32
1 occurred until the time that you returned to Carlisle
2 to report it, you hadn't seen a doctor, correct?
3 A. 111at's correct.
4 Q. Did you call M.B. Stoneking, your
5 employer, and inform them of what happened?
6 A. No, I didn't. Not at that time, no.
7 Q. Besides failing to contact a doctor,
8 did you do anything on your own to treat the injury
9 that occurred?
10 A. No, sir, I didn't.
.\ \ Q. You were able to drive your tnlck with
12 the injury, correct?
.13 A. To a certain extent, yes.
14 Q. Could you elaborate on that?
15 A. It was hard to use my right arm to
16 sbift gears.
17 Q. Okay. So you reported the incident to
118 the manager and you say she took pictures too, right?
119 A. Yes, sir, she did.
20 Q. Did you ever get a copy of those
21 pictures?
22 A. No, sir, I didn't.
23 Q. And I assnme she took pictures of your
24 right elbow, right"
25 A. That's correct.
Page 33
I Q. Did sbe take pictures of anything clse?
2 A. No, sir.
3 Q. Did you see her taking pictures of the
4 sidewalk?
5 A. No, sir.
6 Q. Did she say anything to you while she
7 was making the repOli?
8 A. No.
9 Q. How long did it take for you to give
] 0 the report, fill Ollt the report?
11 A. Probably an hour.
]2 Q. And what did you do after you gave her
13 tbe repoli?
14 A. 1'd have to look at my log, but J
15 either spent the night there or took off, went on
16 south.
17 Q. On your way to Pboenix?
18 A. Yes, sir.
19 Q. And approximately how long of a drive
20 is that from Carlisle, P A?
21 A. Ob, probably 17 or 1800 miles.
22 Q. How many hours does that come out to .
23 be?
124
25
,
A. Probably 25.
Q. During the course of your 1700 mile
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Page 34
] trip out to Phoenix, did you stop at any point along
2 the way to see a doctor?
. 3 A. No, sir, 1 didn't. My concern at that
4 time was just to get home to my own doctor.
5 Q. Who was your own doctor?
6 A. Dr. Thomas.
7 Q. And, again. you don't have your logbook
8 with you, but can you tell me approximately how long
9 it would take you to drive those] 700 miles, how many
]0 days?
1] A. Well, I was -- I got the load on the
12 27th and I had to deliver it on 2-1.
13 Q Febnl31"y] 5t?
]4 A. Yes, sir.
]5 Q. And you delivered this load to Phoenix
]6 you said, right?
] 7 A. That's correct.
]8 Q. But you didn't live in Phoenix at that
]9 time, did you?
20 A. No, sir.
2] Q. Okay. Vv"nere was your home in relation
22 to Phoenix?
23 A. Apple Valley, California.
24 Q. Yeah. how far arc they apart?
25 A. About 360 miles.
Page 35
] Q. So after you delivered the load on
2 approximately FebnJary 1st. you still had another 300
3 somc miles to go to get home; is that corrcct?
4 A. That's conect.
5 Q. And what did you do oncc you got home
6 to Califomia?
7 A. I went to the doctor and she promptly
8 sent me for X rays, and thcn called me back and told
9 me it was broken.
10 Q. Dr. Thomas is a female?
]1 A. Yes, sir.
]2 Q. Do you recaii how many days after you
]3 got home to Califomia that you had gone to sce
]4 Dr. Thomas?
]5 A. The day I got back
16 Q. That very same day?
17 A. Ycs, sir.
]8 Q. I forgot to ask you a couple questions
] 9 about when the accident occurred.
20 Did you see if anyone had put a saIt or
21 other type of substance, any type of similar
22 substance, on eithe.r the sidewalk or the parking lot?
23 A. No, sir, I didn't.
24 Q. Did you see any type of warning signs
25 that were placed up?
] A. No, sir.
2 Q. How about when you got in the building,
. 3 did they have any wet floor signs or anything of the
4 like inside the building?
5 A. They usually do, but I didn't see any.
6 I don't recall seeing any anyway.
7 Q. And after you slipped on this ice, you
8 didn't go back inside to report it to anyone else so
9 that they wouldll't fall on it, correct?
10 A. No, sir.
Il Q. How do you know that it was ice that
]2 you fcH on')
13 A. Well, it started to melt and slip. My
14 fcet went out from under me, so I know it had to be
] 5 ice with a neoprene sole, they usually stop you from
16 slipping.
17 Q. After you fell and while you were on the
] 8 ground, did you look at the surface of the ground to
] 9 investigate what happened or what was on the ground?
20 A. I was laying on ice, yes.
21 Q. So you physically inspected it once you I
22 fcll'>
23 A. Well, yeah.
24 Q. Did you notice if your boots had made
25 an indentation in the ice or any sort of mark in the
Page 37
I ice?
2 A. No, sir.
3 Q. In the discovery responses that you and
4 your attorney sent to me it indicates that you
5 eventually had, what, three surgeries on your wrist
6 or on your elbow; is that correct?
7 A. That's conect.
8 Q. And the first of those surgeries was to
9 install some wires in your elbow; is that correct?
]0 A. That's COlTect.
1] Q. And eventually you had those wires
12 removed?
13 A. Well, I had to -- the middle surgery
] 4 was to rearrange the wires. They had moved. And
]5 then I had to wear those wires for a year.
16 Q. And when you got home to California
] 7 after this incident occurred in Febrnary, did you
] 8 call your employer at any point and tell them what
]9 happened?
20 A. I sure did.
2] Q. Okay. And you were out of work for
22 some period, cOlTeet?
23 A. About 14 months, yeah.
24 Q. And you were on workers' compensation?
25 A. Yes, sir.
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MAY 19,2003
Page 40
I Q. Were you doing any other kind of jobs I
2 during the 14 months that you were unCmpl0YCd~age 38 I
3 A. No, sir. :
4 Q. And did M.E. Stoneking hold your job
5 opcn fOT you the cntire time?
6 A. Yes, he did.
7 Q. "vhen was it that you returned back to
8 work?
9
10
II
12
I3
14
15
16
17
18
19
20
21
22
23
24
A. 6-20. 6-20,2000.
Q. Okay.
A. No. That had to be 2001.
Q. Five months, in my estimation, from
January 2000 unti] June of 2000, is when you were out
of work?
A. From 6-20, 2001.
Q. 2001. That's what] thought.
A. Incidental]y, M.E. Stoneking was
also -- he had a lease agreen1cnt vvith Gilbert
Express. Incorporated in Wyckoff New Jersey.
Q. Mr. Hunt. you indicated before that you
have the answers to what are called intenogatories
with you, correct?
A. The what?
Q. It would be on your attorney's
25 letterhead and it's entitled Answers of Plaintiff to
Page 39
I Intenogatories of Defendant.
2 Do you have tbat with you'>
3 A. No, I don't have that with me.
4 Q. Okay. I'm going over this with your
5 attorney here. In one of the -- in one of the
6 questions that you answered I asked how long you were
7 out of work, and the answer is -- this is the
8 question No. 205, section B. It says, "from 1-27.
9 the date of the accident, through 2-1-00, then
10 retumed to work 6-20-00."
I I Based upon your previous answer. are
12 you indicating tbat rcsponsc is incorrect?
I3 A. It had to be 2001.
14 Q. 2001. Okay. Just so we're clear on
IS that. It must have been a typo on this thing.
16 So you didn't work for the good part of
17 the year 2000, correct?
18 A. That's conect.
19 Q. And was that on doctor's orders that
20 you not return to work?
2 I A. That's conect.
22 Q. And which doctor would that have been,
23 Dr. Thomas?
24 A. Dr. Purl. He \vas the surgeon.
25 Q. Did Dr. Thomas refer you to Dr. Puri?
] A. Yes, she did.
2 Q. Incidentally, that's P-u-r-i, Dr. Puri?
3 A. Ycab.
4 Q You stated before that you were out of
5 work thc cntire time from February of 2000 through
6 June of 2001, correct?
7 A. That's correct.
8 Q. You didn't work in any capacity during
9 that time pcriod"
10 A. No, sir.
]] Q. Okay. As you sit here today, do you
]2 have any restrictions to the use of your right ann?
13 .11. No, sir.
I J4 Q. And are you --
15 MR. ADDAMS: Can I interject a question here,
IHi Mr. Murphy?
17 MR. MURPeN: Yes, please do.
18 MR. ADD~\MS: This is Bill Addams. In looking
]9 at your W-2 fonn, Mr. Hunt, for the year 2000 it
20 indicates you earned over S 12,000 in wages that
121 year. I1mt would indicate that you worked more than
22 one month, would it not?
'23 THE WITNESS: Wen,] think most of that was
24 workers f comp~ wasn r tit?
25 MR. ADDAMS: ] don't know. I just want you
Page 41
1 to he sure about your answer because the records for
2 our ans'\ver to that question \vhen we did the question
3 and answer thing in \:vriting was that you were out of
4 work from February 2nd until June 20, 2000. Then
5 again from February 1st, 200\. to March 20, 2001 when
6 you waul d have had those wires relnoved.
7 Are you saying you 'were out of work
8 that whole time, and never did work in between?
9 THE \VrTNESS: Thatls correct.
10 MR. ADDAMS: Okay.
] 1 BY MR. MURPHY,
I
112 Q. Are you scheduled for any foHow-up
I3 with any of your doctors for your right elhow?
14 A. No, sir.
IS Q. And I'm sorry, you may have answered
Hi this before too, but you stated that you left your
] 7 employment with M.E. StDneking and began working with
18 Swift, correct?
19 A. That1s correct.
20 Q. \Vhat was the reason that you swi tehed
21 employers?
22 A. Well, he had severed his relationship
23 with Gilbert, and when I got back to Apple Valley he
24 kept putting me off, putting me off, putting me off,
25 so I started to work for somebody else. I wanted to
PRECISION COlJRT REPORTING SERVICES (800) 98-DEPOS
Page 38 - Page 41
-
~-
-
. ,DOl-.J LEE ITlJ-t~T
Page 421
I
] work for M.E. Stonc -- M.S. Carriers.
2 Q. Okay.
3 A. Which Swift bought.
4 THE REPORTER: \Vhich Swift what?
5 THE WITNESS: Which Swift bought.
6 BY MR. MURPHY:
7 Q. Swift bought M.E. Stoneking?
8 A No, they bought M.S. Carriers.
9 Q. Oh, okay.
]0 In looking at a copy of the accident
1] report that purportedly was filled out on the day
12 that you came in to report your accident at
13 Flying J. I know Yell probably don't have a copy of
14 this with you. I am showing it to your attorney to
15 make sure that that's, in fact, what it is.
16 On the report it states that it was
17 prepared by -- and, again, this is a bad copy. but
]8 I'm fairly sure the first name is John and the last
19 name it looks like it could be Molson, M.-o-l-s-o-n,
20 but that's not clear. The first name is definitely
21 John.
22
23
24
25
And you indicated earlier that you gave
the repOli to a female, c01Teet?
A. That's correct.
Q. Was there any male employee of Flying J
Page 43
1 present whcn you gave the report?
2 A. 'Well, there was some men in there, yes.
3 Q. Okay. Were they involved with taking
4 down the notes from your -- from your aeci dent
5 rcport?
6 A. I'm not ,me who she had writing it
7 down.
8 Q. Okay. I think we're almost done. I
9 just want to take a minute and look through my notes
10 and make sure I don't have anything else.
11 All right?
]2 A. Okay.
]3 (Pause in proceedings.)
14 BY MR. tvlURPHY:
]5 Q. At one point during thc investigation
16 of this lawsuit it was arrived at the figure
17 approximately $25,000 that you're claiming for lost
18 wages.
19 Were you involved with preparing that
20 1ll.ul1ber or is that something that your attorney caU1e
21 up with?
22 A. That's something Mr. Addams come IIp
23 with.
24 Q. Did he discuss that figure -- well,
25 strike that.
-'--'. '"= ,,< -f1 :or'
"'~~rbi
CondensclU
MAY 19,2()(l3
Page 44
] You stated you never saw a copy of the
2 photographs that were taken. Did anyone ever show
3 you a copy of the accident report?'
4 A No, sir.
5 Q. Did anyone from Flying J ever contact
6 you after you gave that accident report'?
7 A. No, sir, not that I know of.
8 Q. Yeah. I should mention your attorney
9 indicated perhaps the insurance company contacted
.10 you.
j]
12
Did anyone from the i,1surance company
get i 11 touch with you?
A. Wen, workers' comp carrier did, yes.
Q. Do YOll recall anyone specifically from
] 5 the Flying J though, ;s the question I'm asking,
16 getting ahold of yom?
A. Not to my knowledge, no.
]8 MR. MURPHY: Okay. I think that's going to
19 be it, Mr. Hunt. Thank you very much.
THE WITNESS: YOll bet
13
14
17
20
2]
22
23
24 BY MR. ADDAMS:
Q. Me Hunt, just a little clarification
EXAMlNA TION
25
Page 45
I about how this accident happened. You sa;d earlier
2 in response to Mr. Murphy's questi011ing that you had
3 stepped lip and then your right foot went out from
4 under you. Stepped up on what?
5 A. Wen, it was kind of a bridge way deal
(l going over to my truck.
" Q. And what is the bridge way deal?
8 A. Well, it was just -- well, I don't know
9 whethel' it was a bridge way or just snow piled up
10 there. Mr. Addams.
II Q. What was the surface like that you were
12 walking on?
13 A. It was snow.
114 Q. Was there also ice?
15 A. When it started to melt, yes.
]6 Q. And were there tracks or steps or other
17 indentations in it?
] 8 A. I don't rccall if there was any other
] 9 indentations in it, no.
20 MR. ADDAMS: Okay. Thank you.
21 MR. IYlURPHY: That just leads me to a couple
22 fonow-ups. Sony.
23 II
24 II
25 II
PRECISION COURT REPORTfNG SERVICES (800) 98-DEPOS
Page 42 - Page 45
u_
- -
.DOj~'LEE liU1~T
1
2
3 BY MR. MURPHY:
4 Q. You said you don't rccall if there were
5 other indentations therc. Do you know if there were
6 or you just don't rccall?
7 A. I don't recall if there was any --
8 any -- any marks in the snow, no.
9 Q. And from where your truck was parked,
10 was there a designated path or other demarcated way
11 to get from the parking lot to the entrance of the
12 service plaza?
13 A. Seemed to me like there was different
] 4 ways to get to it, but that was the most direct way
15 that] could get to the truck stop from where J
16 parked my truck.
17 MR. MURPHY: Okay. That's all. Thanks.
18 MR. ADDAMS: Okay. Thank YOll, Don. That's
19 all] have.
20 THE WITNESS: Okay.
21 MR. HERNANDEZ: The videotaped deposition
22 went off the record at II: I 4 a.m. This concludes
23 tape one of the videotaped deposition of Don Lec
24 Hunt.
25
FURTHER EXAMINATTON
Page 46 i I
Cond.cnscIti ' ,
4
5
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7
R
9
10
11
]2
13
]4
]5
16
]7
]8
19
20
21
22
7'
_0
24
25
n i" "'""'~,-.. "~'1~
"'"~-'''"''-",:'~,*,,:"
Thank you.
M/\Y
j 9,2003
Page 48
2
3
I declare under penalty of perjury
that the foregoing is true and correct to
the best of my knowledge and belief.
Dated this day of
,2003.
DON LEE Hl:NT
1
2
3
4
5
6
7
8
9
]0
11
12
13
14
]5
16
17
18
19
20
Page 47
(The dcposition of DON LEE H\.TNT
commenced at 10:09 a.m. and ended
at 11 :14 a.m.)
Page 49
REPORTER'S CERTIFICATE
I
I ~ STm: Orc..\UFOR"'\
I 4
i 5
I (,
COUNTY OF SAN BERNARDINO )
I. Julie A. Hudson, a Certified Shorthand
7 Reporter within the County of San Bemardino, State
8 of California, do hereby certify:
9 That prior to being examined, the witness
10 named in the foregoing deposition was swom by me to
] 1 testify to the tmth, the whole truth, and nothing
J 2 but the tmth;
J 3 That the said deposition was taken down by me
14 in shonhand at the time and place therein stated and
15 was thereafter reduced to print by computer-aided
16 transcription under my direction;
] 7 1 further certify that] am not of counselor
18 attorney for either of the parties hereto or in any
19 way intcrcsted in the event of this cause, and that I
20 am not related to either of the parties thereto.
WITNESS my hand this
,2003.
day of
21 21
22 122
n I~
24 ,L4
25 125
PRECISION COURT REPORTING SERVICES (800) 98-DEPOS
Page 46 - Page 49
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,PENNSYL VANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Stefanie Meyers, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on this ~ay of September, 2003, served a copy ofthe foregoing
document via First Class United States mail, postage prepaid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
Prothonotary
Cumberland County Court of Common Pleas
1 Courthouse Square
Carlisle, P A 17013-3387
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned on behalf of the Defendant in the above-
captioned matter.
Respectfully Submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
JOS
J.D. .78119
4200 Crums Mill Road, Suite B
Harrisburg, P A 17112
(717) 651-3509
DATE: 1 / i~ /D?
BY:
Attorneys for Defendant
,t'j
-' ~,
"
, .
DON LEE HUNT,
Plaintiff
v.
FLYING J INC.,
Defendant
"
',,"-.1
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,PENNSYL VANIA
No.: 2001-7130 (Civil Term)
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Stefanie Meyers, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on this 24th day of September, 2003, served a copy of the foregoing document
via First Class United States mail, postage prepaid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
Prothonotary
Cumberland County Court of Common Pleas
1 Courthouse Square
Carlisle, PA 17013-3387
j
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DON LEE HUNT,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001-7130 CIVIL TERM
FLYING J, INC.,
Defendant
: JURY TRIAL DEMANDED
PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
AND NOW, comes the Plaintiff, Don Lee Hunt, by his attorney, William A. Addams, of
Hanft & Knight, P .C., and makes the following answer to the Defendant's Motion fOf Summary
Judgment:
1-18. Admitted.
19. Admitted, but thefe are exceptions to the Hills and Ridges Doctrine which impose
liability. The Hills and Ridges Doctrine applies only whefe genefal slippery conditions pfevail in
the community and not where a specific localized patch of ice exists. The Doctrine also does not
apply where snow Of ice is a result of an artificial condition, as where thefe is a snow bank aCfOSS
a plaintiffs path, or where thefe is an accumulation caused by a particular drainage condition.
20. The answer to Paragraph 19 is incorporated hefein by fefefence.
21. Denied. The Plaintiff is entitled to fecovef in this case by establishing that an area
of ice caused his fall and that the ice pre-existed the fecent accumulation of snow and was not known
Of discoverable by him.
22. The conclusion of law is denied.
J
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23. The conclusion of law is denied.
WHEREFORE, the Plaintiff respectfully requests that the Defendant's motion for summary
judgment be denied.
HANFT & KNIGHT, P.C.
F:\User Folder\Firm Docs\W AA\2100.1\Answer-Motion.wpd
~
~' "-;~".,
William A. ddams
Attorney I.D. No. 06265
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
(717) 249-5373
Attorney for Plaintiff
%
,~
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CERTIFICATE OF SERVICE
AND NOW, this ? a
day of October, 2003, I, Mary M. Price, an employee of Hanft
& Knight, P.C., hereby certify that I have served a copy of the Plaintiff's Answer to Defendant's
Motion for Summary Judgment by mailing the same by United States mail, postage prepaid,
addressed as follows:
JosephE.Murphy,Esqurre
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
4r~Q~
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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:
D Pre-Trial Argument Court
!8J Argument Court
._-------------------~------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
No.
2001-7130
Civil
19
1. State matter to be argued (i.e., plaintiff's motion for new trial,
defendant's demurrer to compliant, etc.): Defendant, Flying J Inc. Motion For Summary Judgment
2. Identify counsel who will argue case:
(a) for Plaintiff: William A. Addams, Esquire
(b) for Defendant: Joseph F. Murphy, Esquire
3. I will notify all parti~ in writing within two days that this case has been listed for argument._
Dated: November 13, 2003
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Ellen M. Palmer, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify
that on this \qb day of ~ ,2003, I served a true and correct copy of the foregoing
document via United States First Class Mail, postage pre-paid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
Attorney for Plaintiff ..____--~
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
AND NOW, this 2k day of
J:ER
dJ ,2003, upon consideration of Defendant Flying J's
Motion to Assign Defendant's Motion for Summary Judgment on the December 3, 2003 Argument Court List, it
is hereby ORDERED that said Motion is GRANTED. The Prothonotary/Court Administrator is directed to
assign Defendant's Motion for Summary Judgment to the December 3.) 2003' Ar
1.
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
DEFENDANT FLYING J INC.'S MOTION TO ASSIGN
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
ON THE DECEMBER 3, 2003 ARGUMENT COURT LIST
1. This civil action arises out of a slip and fall on ice and/or snow that occurred on January 26,2000,
in the parking lot of the Flying J Travel Plaza on Harrisburg Pike in Carlisle, Pennsylvania. (See Plaintiff's
complaint.)
2. On or about September 10, 2003, Defendant filed a Motion for Summary Judgment, based on the
Hills and Ridges Doctrine, along with a Praecipe to List the Case for Argument. (A true and correct copy of the
Praecipe to List is attached hereto as Exhibit "A"; the filing ofthe Motion is reflected on the court docket.)
3. In the cover letter to the Motion for Summary Judgment and Praecipe, counsel for the Defendant
requested that the Motion be placed on the December 3, 2003 Argument Court list, in light of the fact that
Defendant's counsel would be on vacation at the time that the October 22, 2003 Argument Court was to be held.
(A true and correct copy of the September 10, 2003 cover letter to the Prothonotary is attached hereto as Exhibit
liB".)
4. Thereafter, the Prothonotary listed the Motion for the October 22, 2003 Argument Court list.
5. After receiving notification that the Motion had been placed on the October 2003 Argument Court
list, counsel for Plaintiff and Defendant conferred by telephone and agreed to request that the matter be stricken
from the October 2003 Argument Court list.
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6. On October 16, 2003, Plaintiff's counsel conferred with the Court Administrator, Taryn N. Dixon,
regarding the parties' agreement to strike the Motion from the October 2003 Argument Court list, and the
Motion was thereafter stricken from that list. (A true and correct copy of the October 16,2003, confirmatory
letter from Plaintiff's counsel to the Court Administrator is attached hereto as Exhibit "cn.)
7. On or about October 16, 2003, counsel for Defendant dictated a second Praecipe to list the Motion
and a cover letter to the Praecipe, requesting that the matter be placed on the December 3, 2003 Argument
Court list.
8. Unfortunately, because of a change in secretarial support and a backlog of dictation, the
aforementioned Praecipe and cover letter were not actually transcribed until November 13, 2003, which was the
final day to list the matter for the December 2003 Argument Court.
9. On November 18, 2003, counsel for the Defendant conferred with the Prothonotary and Court
Administrator regarding the listing of the Motion and learned that the Motion was not placed on the December
2003 Argument Court list.
10. On November 18, 2003, counsel for Defendant contacted Plaintiff's counsel by telephone and was
advised that Plaintiff's counsel would be away in Florida for at least the months of January and February 2004
and would therefore not be available to argue the motion until March 2004 at the earliest.
II. During the November 18, 2003 telephone conversation, counsel for both parties concurred in asking
the court to assign the Motion to the December 3, 2003 Argument Court list.
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WHEREFORE, moving Defendant, Flying 1. Inc., respectfully requests that this Honorable Court grant
this Motion and assign Defendant's Motion for Summary Judgment to the December 3, 2003 Argument Court
List.
DATE: lllau\\J3
105 _A \LlAB\JPM\LLPGI138281IEMP\20614100145
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
BY:
Attorney for Defendant
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Mllst be typewritten and submitted in duplicate)
TO THE PROTHONOTARY/OF CUMBERLAND COUNTY:
Please list the within matter for the next:
o Pre-Trial Argument Court
~ Argu~ntCourt
.---------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
No.
2001.7130
Civil
19
1. State matter to be argued (i.e., plaintiff's motion for new trial,
defendant's demurrer to compliant, etc.): Defendant. Flying J Jnc. Motion For Summary Judgment
2. Identify counsel who will argue case:
(a) for Plaintiff: William A. Addams, Esquire
(b) for Defendant: Joseph F. Murphy, Esquire
3. I will notify all parties in writing within two days that this case has freen listed for argument._
Dated: September 10. 2003
"...- '"' '^
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A REGIONAL UL.t=ENSE lITiGAT!ON lAW FIRM
I MARsHAll., DENNEHEY, WARNER, CoLEMAN~ GoGGIN I
A PROFESSiONAL CORPORATION
www.marshalldennehey.com
Pt:NN5YLVANI/I.-
IIdbkb<m
Doykstown
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Newtown Sqwm:
Nonistown
Philadelphia
..........
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_port
4200 Crums Mill Road, Suite B . Harrisburg, P A 17112
(717) 651-3500 . Fax (717) 651-9630
NEW ]ERSEV
O<=ylllll
_bod
Direct Dial: 717-651-3509
Email: jmurpby@mdwcg.com
DELAWAllE
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Akron
September 10, 2003
FLo.IDA
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Curt Long, Prothonotary
Court of Common Pleas of Cumberland County
One Courthouse Square
Carlisle, P A 17013
RE: Don Lee Hunt v. Flying J Inc.
CCP (Cumberland County) No.: 2001-7130 (Civil Term)
Our File # 20614-00145
Dear Mr. Long:
Enclosed please find an original and one copy of Defendant's Motion for Summary Judgment and
Supporting Brief. Please enter the original upon the docket and return time-stamped copies to me in the
enclosed, self-addressed stamped envelope. I am also enclosing an original and a copy of the Praecipe to List
this matter for Argument. Please time-stamp the original and return a time-stamped copy to me. By copy of
this letter, I am providing the Court Administrator with a copy of the Brief. In addition, by copy ofthis letter I
am providing Plaintiff's counsel with Notice that the case has been listed for Argument.
I note that the next Argument Court date is October 22, 2003. Unfortunately, I am scheduled to be on
vacation from the 22nd through the 24th. Accordingly, I respectfully ask that this matter be place on the
December 3, 2003 Argument Court List. Please advise me as to whether that is acceptable. I am serving
Plaintiff's counsel with a copy ofthe Motion and Brief under separate cover.
Thank you for your assistance in this case. If you would like to discuss this matter with me for any
reason, please feel free to calL
Very tl1}ly yours, /\
l I J
I: ! I
C+' o' I 0 .
.~~
JFMlsm
Enc.
cc: William A. Addams, Esquire (enc. Praecipe to List)
Taryn N. Dixon, Court Administrator (enc. Brief)
10/16/2003 15:57
717-2490457
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HANFT&KNIGHT PC
PAGE 01/01
1[00/1{ - ()O (fL 5
HANFT & KNIGHT, P.C.
ATTORNEYS & COUNSF.LLORS AT LAW
~...._~-.-::::-,.
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October 16, 2003
WII I.'^M A. ADD^MS
MICllML J. HANFT
GRr:tiOrw H. KNI(,I-lT
Facsimile Only (717) 240-6460
Taryn N. Dixon, Court Administrator
Cumberland County Courthouse
One Courthouse Square
Cadisle,PA 17013
RE: Argument Court
Don Lee Hunt v. Flying J, Inc.
No. 2001-7130
Dear Taryn;
Confirming our telephone conversation of October 16, 2003, both parties are in agreement
that the Defendant's motion for s1.ll11Il1llIY judgment should be stricken from the October argument
court list. Mr. Mmphy will relist his motion for the December 3 argument court.
Thank you for your assistance.
Very truly yours,
HANFT & KNIGHT, P.C.
7JJP
William A. Addams
WAAlmmp
cc: Joseph E. Murphy, Esquire
Facsimile Only (717) 651-9630
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Ellen M. Palmer, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify
that on this ao\b day o~~ , 2003, I served a true and correct copy ofthe foregoing
document via United States First Class Mail, postage pre-paid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
Attorney for Plaintiff
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105_ A ILIAB\JPM\SLPG\138142IEMP\20614100 145
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
01-7130 CIVIL
CIVIL ACTION - LAW
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT
BEFORE BAYLEY, HESS AND OLER, J.J.
ORDER
AND NOW, this
30" day of December, 2003, the defendant's motion for
summary judgment is DENIED.
BY THE COURT,
;William A. Addams, Esquire
For the Plaintiff
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) (X) for JURY trial at the next term of civil court.
( ) for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
Plaintiff
(check one)
( X ) Civil Action - Law
( ) Appeal from Arbitration
( )
DON LEE HUNT,
(other)
v.
FLYING J INC.,
The trial list will be called on
Defendant
and
April 6. 2004
Trials commence on Mav 3. 2004
Pretrial will be held on Apri114. 2004
(Briefs are due 5 days before pretrials)
(The party listing this case for trial shall provide
forthwith a co of the Praecipe to all counsel, pursuant
No.: 2001-7130 (Civil Term)
Indicate the attorney who will try the case for the party who files this Praecipe: Joseph F. Mumhv
Indicate trial counsel for other parties ifknown: William A. Addams. Esquire
Thi,,= i,"""y fu, lllill. Sig=l'~
Print N e: Jose h . M hv
Date:
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Attorney for: Defendant
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DON LEE HUNT,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,PENNSYL VANIA
v.
No.: 2001-7130 (Civil Term)
FLYING J INC.,
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Ellen M. Plamer, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify
that on this~ day ,2004, served a copy of the foregoing document via First Class
United States mail, postage prepaid as follows:
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle,PA 17013
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Don Lee Hunt
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V
Flying J, Inc.
: NO. 01-7130 CIVIL TERM
ORDER OF COURT
AND NOW, April 8, 2004, by agreement of counsel, the above captioned case is
hereby continued from the May 3, 2004 trial term. Counsel is directed to relist the case when
ready.
By the Court,
William A. Addams, Esquire
For the Plaintiff
Joseph F. Murphy, Esquire
For the Defendant
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Court Administrator
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) (X) for JURY trial at the next term of civil court.
( ) for trial without a jury.
------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
Plaintiff
(check one)
( X ) Civil Action - Law
( ) Appeal from Arbitration
( )
DON LEE HUNT,
( other)
v.
FLYING J INC.,
The trial list will be called on
Defendant
and
June 15.2004
Trials commence on Julv 12. 2004
Pretrial will be held on June 23. 2004
(Briefs are due 5 days before pretrials)
(The party listing this case for trial shall provide
forthwith a copy of the Praecipe to all counsel, pursuant
to local Rule 214.1.)
No.: 2001-7130 (Civil Term)
Indicate the attorney who will try the case for the party who files this Praecipe: Joseph F. Murohv
Indicate nial counsel for other parties if known:
This case is ready for trial.
Signed:
Date:
Attorney for: Defendant
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DON LEE HUNT,
Plaintiff
v.
FLYING J INC.,
Defendant
TO: Prothonotary
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
No.: 2001-7130 (Civil Term)
JURY TRIAL DEMANDED
PRAECIPE FOR DISCONTINUANCE
BY:
Please mark the above referenced matter settled, ended and discontinued with prejudice.
~~
William A. Addams, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, P A 17013
Attorney for Plaintiff
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