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HomeMy WebLinkAbout03-3712G. GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant NOTICE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03 - 37(.7, u-' 17;" (Jury Trial Demanded) ease m v Pry ........... ,-- _." - , _ entered against ppuu b1r dw court whhoul 1rnLrar naNce for any money oWrMd in tM C 1=!WYou =any other claim a relief requested Iry tM may loss money or Ptaww or oiler dghu kmorbwn to You- YOU SHOULD TAKE THIS PAPER TO Y" LAWYER NOT AFFORD ONE. O TOOK TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Carlisle, PA 17013 717-249-3166 800-999-9108 Cumberland County Bar Association Lawyer Reference and Information Association 32 S. Bedford YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PLEADING WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF, OR A DEFAULT JUDGMENT MAY B ENTERED A 1 ST OU. ATTOf NEY FOR PLAINTIFF GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03 - _i7/z l? i' Ty (Jury Trial Demanded) CIVIL ACTION COMPLAINT Plaintiff, Charles Baum, is an adult and a resident of the City of Philadelphia. He is temporarily and involuntarily residing at State Correctional Institute at Rockview in Bellefonte, PA, 16823. 2. Defendant, Commonwealth of Pennsylvania, Department of Corrections is a state government agency with a principal and central office of business located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania. COUNT I - NEGLIGENCE 3. At all times material hereto, the "Commonwealth" acted and continues to act through its agents, servants, workmen and/or employees in the furtherance of its legislative mandate. 4. Defendant operates numerous state correctional institutions within its boundaries, including the State Correctional Institution at Rockview (SCI-Rockview) in Bellefonte, Centre County, Pennsylvania. 5. On August 9, 2001, Defendant operated SCI-Rockview. 6. On August 9, 2001, Plaintiff resided at SCI-Rockview and was in his prison cell. 7. On August 9, 2001, the cell in which Plaintiff occupied had a chair and bunk beds. 8. On August 9, 2001, the chair was personal property of the Defendant. 9. Said chair was in the possession, care, custody and control of the Defendant. 10. Said chair was provided to the Plaintiff by the Defendant to be used as a ladder to gain access to the top bunk bed in the Plaintiffs cell. 11. The Plaintiffs bunk bed is also real and/or personal property of the Defendant and in the Defendant's possession, care, custody and control. 12. On August 9, 2001, while in the process of going to sleep in his upper bunk bed in his assigned cell, the Plaintiff used his only method of gaining access to the top bunk - the chair. 13. Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. -2- 14. Said chair was not maintained in a safe condition and was old, unstable, and defective, especially when used as a ladder to gain access to the upper bunk bed. 15. On August 9, 2001, as Plaintiff used the chair as a ladder to gain access to the upper bunk bed, the chair quaked, slid, and flipped over, and caused Plaintiff to fall. 16. The chair and fall caused Plaintiff's right hand, wrist, and arm, to go right through the window pane. 17. As a result of the fall, Plaintiff sustained injuries to his right hand, wrist, and arm, including, but not limited to tendon damage, tendon repairs and repairs to a ruptured tendon. 18. An hour and a half after his fall and injury, Plaintiff was taken to the nearest Emergency Room at a nearby hospital. 19. Plaintiff received medical treatment including tendon repairs, stitches, splinting, and medications. 20. Thereafter, Plaintiff received further treatment for more than three months after the incident and is still in need of further medical treatment. 21. Plaintiff had, and continues to have, ongoing pains and problems. 22. Plaintiff sustained a serious laceration and still has permanent disfigurement and physical injuries including scarring and permanent limitations. 23. Plaintiffs injury is permanent and prevents him from performing his customary activities and it will prevent him from gaining any type of labor related employment when he is released from custody which constitutes a future loss of earning capacity. -3- 24. Plaintiff has no available administrative remedies for this negligence claim. 25. Plaintiff notified the Defendant of his intent to commence the instant action since October 2001 and this matter was assigned Claim # 246679. 26. Plaintiff acted reasonably when he tried to resolve this claim with Defendant's agents in the Bureau of Risk and Insurance Management, but was unsuccessful. 27. Solely as a result of Defendant's negligence, Plaintiff suffered injuries to his right hand, wrist, and arm, which are serious and may be permanent, including, but not limited to tendon damage, tendon repairs and repairs to a ruptured tendon, all of which continue to cause him great pain and suffering. 28. As a result of the Defendant's negligence, Plaintiff has undergone severe physical pain and mental anguish and will continue to endure the same for an indefinite period of time in the future, to his great detriment and loss. 29. Defendant owed a duty of care to Plaintiff on August 9, 2001, and on all days thereafter since the Plaintiff is in Defendant's custody. 30. Defendant breached its duty of care to Plaintiff by knowingly, recklessly, and carelessly permitting the Plaintiff to use a defective chair as a ladder and the only means of gaining access to his upper bunk bed. 31. Defendant knew or should have known of the existence of this problem and dangerous condition prior to the Plaintiffs fall, and Defendant was obligated to remedy, repair and eliminate the defect or to warn Plaintiff of its existence. 32. Defendant was on notice that, before this incident, inmates at SCI-Rockview, and perhaps other institutions, were injured when attempting to gain access into the top -4- bunk bed because there were no ladders and limited means of gaining access to the top bunk bed. See: Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988). 33. The chair falls within the personal property exception to sovereign immunity under 42 Pa. C.S.A. §8522(b)(3) and the personal property waiver applies because the chair caused the Plaintiffs injury and it was involved in the chain of causation. 34. If the bunk beds are deemed fixtures and not personal property of the Defendant, then Plaintiff respectfully avers that the bunk beds are real property under the care, custody, and control of the Defendant and because they do not have ladders attached thereto, the bunk bed constitutes a defect in the property and in its construction, maintenance, repair or design and constitutes a dangerous condition within the meaning of 42 Pa. C.S.A. §8522(b)(4), the Real Property Exception to government immunity. 35. While the bunk bed, in and of itself, may not have been defective, its lack of a ladder combined with the custom to utilize the chair as the sole means to gain access to the top bunk and in light of the total absence of any other means of access to that bunk, indicates a design defect in real property which constitutes a dangerous condition. 36. The bunk bed, without a proper means of access to the upper bunk, constitutes an artificial condition and defect of real estate itself which caused and contributed to the Plaintiffs injuries. -5- 37. The injuries sustained by Plaintiff were caused by the negligence, carelessness and recklessness of Defendant, in that: (a) it failed to maintain the chair and bunk bed properly by allowing the defect, problem, and dangerous condition to exist; (b) it failed to use due care and to employ reasonable skill in providing inmates with a safe and reasonable means to gain access to the upper bunk beds; (c) it knew, or should have known, of the defect, problem, and of the dangerous condition it caused, but nevertheless permitted the chair and bunk bed to remain in an unsafe, unsuitable and dangerous condition; (d) it failed to use reasonable prudence or care in maintaining the chair and bunk bed in a safe condition; (e) it failed to exercise reasonable care to inspect and/or discover the defect, problem and dangers in the chair and bunk bed scheme as the only method of gaining access to the upper bunk bed; (f) it failed to warn plaintiff of the defect, dangers, and problems in the chair and bunk bed scheme as the only method of gaining access to the upper bunk bed; (g) it permitted the chair and bunk bed scheme to remain in an unreasonably dangerous, unsuitable and unsafe condition, having actual and/or constructive notice of the defect; (h) it failed to correct, remedy, repair and/or eliminate the defect, problem, and dangers; and (i) it otherwise conducted itself in a negligent, careless and reckless manner. 38. Solely as a result of the negligence, carelessness and recklessness of Defendant, Plaintiff has been obliged to receive medical attention and care and to expend -6- various sums of money for injuries he suffered, and he may be obliged to continue to expend such sums for an indefinite period of time in the future. 39. As a result of his injuries, Plaintiff may have suffered a permanent disability and a permanent impairment of his earning power and capacity. 40. As a result of his injuries, Plaintiff may have sustained a permanent diminution in the ability to enjoy life and life's pleasures, in that he is unable to engage in many of the activities he engaged in prior to the incident. WHEREFORE, Plaintiff, Charles Baum, demands judgment in his favor in the amount in excess of twenty-five thousand dollars ($25,000.00) together with delay damages, interest, costs and attorneys fees. GALLAGHER ROWAN & EGBERT, P.C. BY: Aivrm N BENJAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff, Charles Baum Date: 21) 0?00? -7- VERIFICATION The undersigned having read the attached pleading verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that the within pleading is true and correct to the best of the signer's knowledge, information and belief. To the extent that the contents of the pleading are that of counsel, verifier has relied upon counsel in taking this Verification. This Verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. ,eA-- P 0 CHARLES BAUM Verifcadon.wpd C1 C} ?'I 3 I I O Office of Attorney General Torts Litigation Section 15" Floor, Strawberry Square Harrisburg, PA 17120 Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION No. 03-3712 Jury Trial Demanded ENTRY OF APPEARO CE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Defendant, Commonwealth of Pennsylvania, Department of Corrections, in regard to the above case. ANIEL R. GO DEMOTE SR. DEPUTY ATTORNEY GENERAL #30986 CERTIFICATE OF X V E I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 i NIEL R. GO DEMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-31 7 DATED: 6) 63 C ITI?? ;J - cf, 0.3 - 37/?, RETURN OF SERVICE state of AIN'(JI CV*N///AAA ND County of ?? I IC?R j??/h?n!/ l? declare under path that I served this Civil Ac 'on Co laint in this case on the Respondent in wvn at the following location: eNN? ?4AIVI,4 on 9-1-Ao3 date at / ?ll 17vDY?Nrl /J??c?uZeuoN6 ?LGlLE'DfG'{/rr?' ?dn'S?L f'r-' j ice/ q pt ?4 /?o// By handing it to a person identified to me as the Respondent. By leaving it with the Respondent who refused service. =By leaving it with-724 ( A 0604/b? designated to receive service for the Respondent. /"'I am over the age of 18 years and am not interested in nor a party to this case. I attempted to serve the Respondent on occasions but have not been able o locate the Respondent. Return to the Petitioner is made on -(date). Signed under oath before me on $ 1 1 03 (date) NOTARIAL SEAL My commission expires PAMALA S. t40NN, Notary Pubn'ty ity p arns a ones JJn'^//I ( ?/?rnL,nl my commission Expires NC,4eembe?rf12, ,./1nn CUn'Ltl,ll rT111Ir? Notary Public/Address m r- r?L f _._ t7 da_ 3 7Fz C-0 RETURN OF SERVICE State of 4vV 1qS AA114 County of l/Av/J1l r I Je?G??/ ?• ?r??? declare under oath that I served this Civil Ac 'on Co plaint in this case on the Respondent in 7DI-?`ViAI County NN5 C gnri a on 9-/ -wv3 date at _at the following location: /° ? ?`lfo2N ? t,DFNEnrfL? /(? ?'U ?2ArN8rn2? ?cr??,snE ?l/IA ?hgvR6 , ,d /712 By handing it to a person identified to me as the Respondent. By leaving it with the Res ondent who refused service. ?By leaving it wi WAI fd designated to receive service for the Respondent. 1/I am over the age of 18 years and am not interested in nor a party to this case. I attempted to serve the Respondent on occasions but have not been able o locate the Respondent. Return to the Petitioner is made on (date). Signed under oath before me on 91 03 (date) NOTARIAL SEAL My commission expires MA S. MOHN Nota Public City of Harrisburg, Dauphin County n. My Commission Expires November 12. 26th PA S ??UVlt 0 1 • dlv,,+ain 171L2 Notary Public/Address c '?': s ??_' ?'. ;'> 7.a __ Jj ._ mil- '_.,. -. C ?_ ? L:. ?^. Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 CHARLES BAUM, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, : No. 03-3712 Defendant : Jury Trial Demanded STIPULATION Plaintiff, Charles Baum and Defendant, Commonwealth of Pennsylvania, Department of Corrections, by and through their undersigned counsel, hereby stipulate Attorney for Commonwealth of Pennsylvania, Department of Corrections that paragraph 37(i) is stricken from Plaintiff's Complaint. ca c- ,.: ?,, _o ?:. n, ? <c. ,? ? ?Li _.... ''r. ',tT ??? "m U t .J t> -C ip ? Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 CHARLES BAUM, V. Plaintiff Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, : No. 03-3712 Defendant : Jury Trial Demanded NOTICE TO PLEAD TO ALL PARTIES: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. RESPECTFULLY SUBMITTED: GERALD J. PAPPERT Attorney General BY: D NIEL R. G ODEMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 CHARLES BAUM, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, : No. 03-3712 Defendant : Jury Trial Demanded ANSWER AND NEW MATTER OF DEFENDANT COMMONWEALTH OF PENNSY VANIA DEPARTMENT OF CORRECTIONS Defendant, Commonwealth of Pennsylvania, Department of Corrections, by and through the Office of Attorney General, files the following Answer to Plaintiff's Complaint: Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 10. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 11. Admitted that Plaintiff's bunk bed is either real or personal property of the Defendant. The remainder of paragraph 11 is denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 12. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 13. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 14. Denied as a conclusion of law to which no responsive pleading is required. The averments of paragraph 14 are also denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 15. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 16. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 17. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 18. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 19. Admitted. 20. Admitted that Plaintiff received treatment for more than three months. After reasonable investigation, the answering Defendant does not have sufficient knowledge or information to form a belief as to the remaining averments of paragraph 20. 21. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 22. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 23. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 24. Denied as a conclusion of law to which no responsive pleading is required. 25. Admitted. 26. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 27. Denied that Defendant was negligent. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the remaining allegations of paragraph 27. 28. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 29. Denied as a conclusion of law to which no responsive pleading is required. 30. Denied as a conclusion of law to which no responsive pleading is required. The allegations of paragraph 30 are also denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 31. Denied as a conclusion of law to which no responsive pleading is required. 32. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 33. Denied as a conclusion of law to which no responsive pleading is required. 34. Denied as a conclusion of law to which no responsive pleading is required. 35. Denied as a conclusion of law to which no responsive pleading is required. 36. Denied as a conclusion of law to which no responsive pleading is required. 37(a)-(i) Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 38. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 39. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 40. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. WHEREFORE, Defendant Pennsylvania Department of Corrections demands judgment in its favor and against the Plaintiff. NEW ATTEER 41. The present action is controlled by the provisions of 1 Pa. C.S. §2310 and Act No. 1980-142, set forth in 42 Pa. C.S. §§8501, et seq., which Acts are incorporated herein and pled by reference. The Commonwealth Defendant asserts all the defenses contained therein. 42. The Commonwealth party is immune from suit pursuant to 1 Pa. C.S. §2310, and this action is not within any of the exceptions to immunity as set forth in 42 Pa. C.S. §8522, and therefore this action is barred. 43. Should liability be found on the part of the Commonwealth Defendant, the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. RESPECTFULLY SUBMITTED: GERALDJ.PAPPERT ATTORNEY GENERAL BY: NIEL . O MOTE Sr. Deputy Attorney General #30986 VERIFICATION I, DANIEL R. GOODEMOTE, hereby verify that I am counsel for the Defendant Commonwealth party in the foregoing action, and also verify that the foregoing statements are true and correct to the best of my knowledge, information and belief. I understand that I am subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities for any false statements knowingly made herein. r NIEL R. GOODEMOTE SENIOR DEPUTY ATTORNEY GENERAL #30986 DATED: 311,k CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 ANIEL DEMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717)783-31147, DATED: 3/ 8 6 `? GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff Attorney for Plaintiff Charles Baum COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION VS. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant No. 03-3712 (Jury Trial Demanded) PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER 41. Denied as a conclusion of law to which no responsive pleading is required. 42. Denied as a conclusion of law to which no responsive pleading is required. 43. Admitted. WHEREFORE, Plaintiff, Charles Baum, demands judgment in his favor in the amount in excess of twenty-five thousand dollars ($25,000.00) together with delay damages, interest, costs and attorneys fees. GALLAGHER, ROWAN & EGBERT, P.C. BY: &4,J ZJL - ENJAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff, Charles Baum Date: March 24, 2004 O ?? ? ?? N ?'?'` Q? pp C7 4 ? ?? ?? [,t'1 { GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant Attorney for Plaintiff Charles Baum COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03-3712 CERTIFICATE OF SERVICE I, Benjamin Gialloreto, as attorney for the Plaintiff in the above-captioned matter, hereby certify that I served a true and correct copy of Plaintiff's Answer to Defendant's New Matter upon counsel for the Defendant at the name and address as appears below, via Regular Mail on March 24, 2004. Reg lar Mail Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15"' Floor, Strawberry Square Harrisburg, PA 17120 By: GALLAGHER, ROWAN & EGBERT, P.C. e N r o : :;D Fn CYN - r, m cri 0 ? Office of Attorney General Torts Litigation Section 15`" Floor, Strawberry Square Harrisburg, PA 17120 Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 CHARLES BAUM, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, : No. 03-3712 Defendant : Jury Trial Demanded RESPONSES OF THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS TO REQUEST FOR ADMISSIONS OF PLAINTIFF 1-3. Admitted Plaintiff is an adult. Denied. Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny its residence. Therefore, the same is denied pursuant to Pa. R.C.P. 4014(b). 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. It is admitted based on accurate count reports taken throughout the evening of August 9, 2001 that Plaintiff was in his cell from at least 9:00 p.m. until the morning of August 10, 2001. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted that the bunk beds were the property of the Defendant. Whether the beds are personal property or real property is a question of law. Therefore, the allegation is denied pursuant to Pa. R.C.P. 4014(b). 14. Admitted. 15. Denied. Whether the chair was within the possession, care, custody and control of the Defendant is a question of law. Therefore., the allegation is denied pursuant to Pa. R.C.P. 4014(b). 16. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 17. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 18. See response to No. 15. 19. Admitted. 20. Denied. The project to install ladders to allII bunk beds at Rockview began in 1999. 21. Admitted. 22. Admitted. 23. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 24. Admitted. 25. Denied. Chairs were repaired on an as needed basis. If a chair was clearly old, unstable or unevenly balanced, it would have been replaced or repaired. 26. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 27. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 28. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 29. Denied based on the emergency room report which states Plaintiff received a right hand laceration and "that there was a small laceration in the tendon sheath, although the extensor tendons do appear to be fully functional and strong." 30. Denied based on emergency room records. Plaintiff received two sutures in the tendon sheath, was placed in a splint, bandaged and discharged with wound care instructions. 31. Denied based on medical records. Plaintiff was last seen on October 1, 2001 for wrist problem. Plaintiff has been seen on subsequent occasions for other various conditions. 32. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 33. Admitted in part, denied in part. It is admitted that Plaintiff received a right hand laceration. As to the remaining admission, the Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 34. It is admitted that the Commonwealth of Pennsylvania, Department of Corrections was informed that one or more inmates at SCI-Rockview had been injured while attempting to gain access to the top bunks. The Commonwealth of Pennsylvania, Department of Corrections denies that it had notice that the absence of ladders caused the injuries. The Defendant does not make such determinations. After reasonable inquiry, the information known or readily obtainable by the Commonwealth Defendant is insufficient to enable it to admit or deny this request as it relates to other institutions. 35. Admitted that the Commonwealth of Pennsylvania, Department of Corrections was informed that inmates at SCI - Rockview were injured when attempting to gain access to the top bunk using chairs. With respect to other institutions, after reasonable inquiry, the information known or readily obtainable by the Commonwealth Defendant is insufficient to enable it to admit or deny this request. 36. Denied. Specifically, the Commonwealth of Pennsylvania, Department of Corrections denies that it was negligent in the care, custody and control of the chair. 37. Denied. Specifically, the Commonwealth of Pennsylvania, Department of Corrections denies that it was negligent in the care, custody and control of the chair. 38. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). To the best of Defendant's knowledge, Defendant is not aware of any warnings given by the Maintenance, Medical or Superintendent Assistants. The Defendant does not know whether other staff did or did riot give warnings. 39. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). To the best of Defendant's knowledge, Defendant is not aware of any warnings given by the Maintenance, Medical or Superintendent Assistants. The Defendant does not know whether other staff did or did riot give warnings. 40. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). RESPECTFULLY SUBMITTED: GERALD J. PAPPERT ATTORNEY GENERAL BY: NIEL R. GOODEMOTE Sr. Deputy Attorney General #30986 VERIFICATION I ??? ?cr?Kovai l VERIFY THAT THE FOREGOING STATEMENTS ARE TRUE AND CORRECT TO THE BEST OF MY INFORMATION, KNOWLEDGE AND BELIEF, AND ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa. C.S.54904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. Date:;Lu CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 i V ---ITA'NIEL R. OODEMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-3147 DATED: `j 14,10 ? ? <_? a -„ -- ?? ?'!1 .-. _-? (? 1 'J4? J U, t ) f ? 1 _ _ ? .. 1_.. rJ ?/ ' L7 ?. 4J Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 CHARLES BAUM, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, : No. 03-3712 Defendant : Jury Trial Demanded OBJECTIONS OF THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF COFLRFCTS TO PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS 11. Objection pursuant to Rule 4011(b). This request is overly broad and would cause undue burden and expense to the Defendant to identify all records, reports and materials concerning previous lawsuits, accidents or incidents involving inmates gaining access to the upper bunk bed at other State Correctional Institutes. 19. Objection pursuant to Rule 4011(b). This request is overly broad and would cause undue burden and expense to the Defendant to provide any and all records or reports regarding the lawsuit by Jay Gallagher in 1987 against the Commonwealth of Pennsylvania. 20. Objection pursuant to Rule 401 l(b). This request is overly broad and would cause undue burden and expense to the Defendant to provide a copy of the Civil Action Complaints for all lawsuits filed against the Defendant based on allegations of inmates getting injured as the result of trying to gain access to their top bunk bed. 21. Objection pursuant to Rule 4011(b). This request is overly broad and would cause undue burden and expense to the Defendant to provide a copy of all grievances filed against the Defendant based on allegations of inmates getting injured as the result of trying to gain access to their top bunk bed. 22. Objection pursuant to Rule 4011(b). This request is overly broad and would cause undue burden and expense to the Defendant to provide any and all documents reflecting the names and current, or last known address, of all inmates who filed lawsuits or grievances. RESPECTFULLY SUBMITTED: GERALD J. PAPPERT ATTORNEY GENERAL BY: ReD EL R. D OTE Sr. Deputy Attorney General #30986 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 NIEL WJMMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-3 47 DATED: q 0 3)6? f y1(? ?f- n z ? C ? C? Office of Attorney General Torts Litigation Section quare 15"' Floor, SPA b 120 Harrisburg, plaintiff Daniel R. Goodemote General Sc' - r Deputy Attorney Direct Dial 717-753 3147 IN T RT OF COMMJ", SYLVANIA CUMBERLAII ,40 COUNTY CIVIL ACTION V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, Defendant No. 03-3712 jury Trial Demanded T? rUR(I?E?TOP? 11\ 1 This Interrogatory is overly broad and would 12. Objection pursuant to Rule 4011(b). how many lawsuits were filed since cause undue burden and expense to the Defendant to identify on allegations of inmates getting injured as the result of trying 1985 against the Defendant based to gain access to their top bunk. This Interrogatory is overly broad and would . Objection pursuant to Rule 4011(b). 13 how many grievances were filed cause undue burden and expense to the Defendant to identify since 1985 against the Defendant based on allegations of inmates getting injured as the result of trying to gain access to their top bunk This Interrogatory is overly broad and would 14. Objection pursuant to Rule 4011(b). how many grievances or lawsuits cause undue burden and expense tot he Defendant to identify were filed against the Defendant based on allegations of inmates getting injured as the result of using a chair to gain access to their top bunk bed. 15. Objection pursuant to Rule 4011(b). This Interrogatory is overly broad and would cause undue burden and expense to the Defendant to list the names and current or last known address of all inmates who filed lawsuits or grievances as described in Interrogatory questions 12-14. 33. Objection pursuant to Rule (c). This Interrogatory is beyond the scope of discovery. The Commonwealth will identify all experts it intends to call at trial once such a determination has been made. RESPECTFULLY SUBMITTED: GERALD J.PAPPERT ATTORNEY GENERAL BY: D N L R. 6;09 MO E Sr. Deputy Attorney General #30986 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of' the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 -- ANIE4 DE OTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-31 7 DATED: N -P31d'? C ° c ? --? {? ??? a -n - ? y i:? a? Cf? r- -: ? _ N -?p7 ? U r- C? F ? '?Q l ^? ? b N ? ? w F GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURI? OF COMMON PLEAS CUMBERLAND COUNTY vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant CIVIL ACTION No. 03-3712 PLAINTIFF'S MOTION FOR PARTIAL SUMMARI( JUDGMENT AND NOW, here comes Plaintiff, Charles Baum, ("hereinafter "Plaintiff'), by and through its attorneys, GALLAGHER, ROWAN & EGBERT, P.C. and files the within Motion for Summary Judgment and in support thereof aver as follows: Plaintiff Charles Baum, an inmate at S.C.I. Rockview, alleges a severe right- hand injury an injury that was caused by the Defendant's negligence on and before August 9, 2001. 2. The Defendant has a duty to provide a safe environment and safe means of access to the Plaintiffs top bunk bed. Defendant breached this duty and caused Plaintiff hand injuries. 3. On August 9, 2001, while in the process of getting into his upper bunk bed, the Plaintiff used his only method of gaining access to the top bunk - the wooden chair. (See Plaintiffs Deposition, Exhibit "E," p. 12). Thep bunk beds did not have ladders on them as a means of access to the top bunk bed and there are no ladders in the cell. As he stepped on the "wobbly" chair, it wobbled and slid causing Plaintiff to loose his balance, fall, and his hand to go through the window. (Exhibit "E," p. 12, 14-15, 18, 40-44). 4. The Persona/ Property exception to sovereign immunity permits a claim for "damages caused by the care, custody or control of personal property in the possession of the Commonwealth agencies ... " In order for waiver of sovereign immunity for damages arising from care of personal property to apply, the personal property itself must be in some manner responsible for injury. 42 Pa. C.S.A. §8522(b)(3). 5. Plaintiff asserts that the personal property exception is triggered because the defective wooden chair in the Plaintiffs prison cell, when used as a means of access to the ladder free upper bunk bed, was personal property owned and in the care, custody and control of the Commonwealth and it caused his fall and injuries. 6. The undisputed facts show that the chair was unbalanced and one leg was shorter than the others. (Exhibit "E," p. 13). The undisputed facts show that chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. (Exhibit "E," p. 40). 8. The undisputed facts show that the Defendant never inspected, or repaired the chair that was used as a ladder to gain access to the upper bunk bed. (Exhibit "E," p. 40). 9. This accident was foreseeable because, before August 9, 2001, Defendant knew that chairs were being used by inmates to gain access into the top/upper bunk -2- bed and the Defendant knew that inmates at SCI-Rockview, had been injured when attempting to gain access into the top bunk bed. (See Plaintiffs Admissions, attached hereto as Exhibit "C," ¶¶ 21, 34-35; and Defendant's Answer to Plaintiffs Admissions, attached as Exhibit "D" ¶¶ 21, 34-35). 10. The undisputed facts show that ladders are now welded on the bunk beds as a means of access into the top bunk bed and chairs are no longer used. (Exhibit "E," p. 40-44). 11. Sometime before 1988, an S.C.I. Rockview inmate was injured trying to get into the top bunk bed. Jay Gallagher was injured while climbing into top bunk bed. The facts here are similar to Mr. Baum's case. The court wrote "he shared a cell with another inmate. The cell had bunk beds, appellant occupying the upper bunk. Because no ladder is in the cell, appellant could reach the upper bunk only by using the cell bars to climb to the upper bunk. Appellant was using the cell bars to get out of his bunk when his cellmate closed the) cell door, severing his left ring finger." (See Exhibit F", Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988). 12. Joseph A. Thompson Jr., Professional Engineer, reviewed this matter and issued an expert report and opinions. He concludes, to a scientific certainty, that the Defendant was negligent because the that the wooden chair was dangerous and when used as a ladder, created a foreseeable and unacceptable risk of injury which was the direct cause of the Plaintiffs fall and injury. (See Report of August 25, 24, 2004, attached hereto as Exhibit "G"). 13. There is no genuine issue of material fact that the chair and bunk bed falls within the personal property exception to sovereign immunity under 42 Pa. C.S.A. §8522(b)(3) and the personal property immunity waiver does not apply because -3- the chair itself and/or the chair and bunk bed combination caused the Plaintiffs injury and was clearly involved in the chain of causation. 14. This partial Motion for Summary Judgment is timely and proper because the pleadings, depositions, medical records, and admissions, shows that there are no genuine issues of material fact and that the Plaintiff is entitled to judgment as a matter of law on the issue of negligence and causation. 15. In further support of Plaintiffs position, Plaintiff hereby incorporates by reference it's supporting Memorandum of Law as though the same were set forth herein in haec verba. WHEREFORE, Plaintiff, Charles Baum, demands judgment in his favor in the amount in excess of twenty-five thousand dollars ($25,000.00) together with delay damages, interest, costs and attorneys fees. & EGBERT, P.C. BY: ?,?M-avw? / BENJAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff, Charles Baum Date: -4- GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT" OF COMMON PLEAS CUMBERLAND COUNTY vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant CIVIL ACTION No. 03-3712 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND NOW, here comes Plaintiff, Charles Baum, ("hereinafter "Plaintiff'), by and through its attorneys, GALLAGHER, ROWAN & EGBERT, P.C. and files the within Motion for Summary Judgment and in support thereof aver as -Follows: Procedural Backaround This claim involves an injury to Plaintiff Charles Baum which was caused by the Defendant's Negligence. Plaintiff asserts that the personal property exception to Commonwealth immunity is triggered because the old wooden chair in the Plaintiffs prison cell was personal property owned and in the care, custody and control of the Commonwealth and it caused his fall and injuries. When the Plaintiff used the chair to ascent into his top bunk bed, the chair faltered due to its unstable and defective condition causing Plaintiff to fall and sustain permanent scarring and hand injuries. This Motion for Summary Judgment is timely and proper because the pleadings, depositions, medical records, and admissions, shows that there are no genuine issues of material fact and that Plaintiff, Charles Baum is entitled to judgment as a matter of law. Undisputed Facts Defendants Answer to Plaintiffs Complaint (by conforming pleading number) 1. Plaintiff, Charles Baum, is an adult and a resident of the City of Philadelphia. He is temporarily and involuntarily residing at State Correctional Institute at Rockview in Bellefonte, PA, 16823. 2. Defendant, Commonwealth of Pennsylvania, Department of Corrections is a state government agency with a principal and central office of business located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania. 3. At all times material hereto, the "Commonwealth" acted and continues to act through its agents, servants, workmen and/or employees in the furtherance of its legislative mandate. 4. Defendant operates numerous state correctional institutions within its boundaries, including the State Correctional Institution at Rockview (SCI- Rockview) in Bellefonte, Centre County, Pennsylvania. 5. On August 9, 2001, Defendant operated SCI-Rockview. 6 On August 9, 2001, Plaintiff resided at SCI-Rockview and was in his prison cell. -2- 7. On August 9, 2001, the cell in which Plaintiff occupied had a chair and bunk beds. 8. On August 9, 2001, the chair was personal property of the Defendant. 19. Plaintiff received medical treatment including tendon repairs, stitches, splinting, and medications. 20. Thereafter, Plaintiff received further treatment for more than three months after the incident. (See Plaintiffs Civil Action Complaint, attached hereto as Exhibit "A," ¶ 11-8, 19-20; Defendant's Answer to Plaintiffs Complaint, attached as Exhibit "B" ¶ ¶ 1-8, 19-20). Defendant's Answer to Plaintiffs Admissions (by conforming number) 10. On August 9, 2001, the cell in which Plaintiff occupied tied a wooden chair and bunk beds. 11. On August 9, 2001, the Plaintiff was assigned to the upper bunk bed in his assigned cell. 12. On August 9, 2001, the chair in the Plaintiffs cell was personal property of the Defendant. 13. The bunk bed is either real or personal property of the Defendant. 14. Said chair in Plaintiff's cell on August 9, 2001 was wooden. -3- 19. On August 9, 2001, no ladder was provided to the Plaintiff to gain access into the upper bunk bed. 20. In 1999, the Defendant instituted a project to install ladders to all bunk beds at S.C.I. Rockview. 21. Before August 9, 2001, Defendant knew that chairs were being used by inmates to gain access into the top/upper bunk bed. 22. On August 9, 2001, the floor of the Plaintiffs prison cell was concrete. 24. Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. 34-35. Before August 9, 2001, the Defendant was informed that one or more inmates at SCI-Rockview, had been injured when attempting to gain access into the top bunk bed. (See Plaintiffs Admissions, attached hereto as Exhibit "C," ¶¶ 10-14, 19-22, 24, 34-35; and Defendant's Answer to Plaintiffs Admissions, attached as Exhibit "D" ¶¶ 10-14, 19- 22, 24, 34-35). Undisputed Facts from Plaintiffs Deposition The Plaintiff is 6'1" tall and weighs 200 pounds. His cell had one wooden chair and bunk beds. (See Exhibit "E," Plaintiffs Deposition, p. 40, 4243). He always slept in the upper bunk, which is about five feet, nine inches off the ground. (Exhibit "E," p. 12,15). On August 9, 2001, while in the process of getting into his upper bunk bed, the Plaintiff used his only method of gaining access to the top bunk - the wooden chair. -4- (Exhibit "E," p. 12). As he stepped on the "wobbly" chair, it wobbled and slid causing Plaintiff to loose his balance, fall, and his hand to go through the window. (Exhibit "E," p. 12, 14-15, 18). The chair is unbalanced and one leg was shorter than the others. (Exhibit "E," p. 13). Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. (Exhibit "E," p. 40). No one inspected, or repaired the chair that was used as a ladder to gain access to the upper bunk bed. (Exhibit "E," p. 40). The bunk beds did not have ladders on them as a means of access to the top bunk bed and there are no ladders in the cell. (Exhibit "E," p. 40-41). Now, there are ladders welded on the bunk beds as a means of access into the top bunk bed. Chairs are no longer used. (Exhibit "E," p. 41-44). Standard of Review. Pennsylvania Rule of Civil Procedure 1035.2 provides in relevant part: (a) After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole on in part as a matter of law: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence or defense which in a jury trial would require the issues to be submitted to the jury. Pa. R.C.P. 1035.2. -5- A Motion for Summary Judgment may properly be granted when the pleadings, depositions, answer to interrogatories, and admissions on file, together with affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Com. v. Riverview Leasing. Inc., 648 A.2d 580 (Pa. Cmwlth. 1994); Hopewell Estate. Inc. v Kent, 646 A.2d 1192 (Pa. Super. 1994). A party seeking to avoid the entry of summary judgment against him or her may not merely rest on averments in the pleadings; the party must show that there is a genuine issue for trial once a properly supported summary judgment motion confronts him or her. Buckno v. Penn Linen & Uniform Service Inc., 631 A.2d 674 (Pa. Super. 1993), app. den'd 647 A.2d 895 (Pa. 1993); Johnson v. Harris, 615 A.2d 771 (Pa. Super. 1992). He or she must adduce sufficient evidence on issues essential to his or her case and on which he or she bears the burden of proof such that a jury could return a verdict in his or her favor; the failure to adduce this evidences establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ertel v. The Patriot-News Company, 674 A.2d 11038 (Pa. 1996); certiorari denied, 519 U.S. 1008 (1996). The purpose of a Motion for Summary Judgment is to expedite the trial of a matter, Phaff v. Gerner, 303 A.2d 826 (Pa. 1973), and also permits a court to avoid a useless trial when there are no issues of fact and the controversy may be determined as a matter of law. Williams v. Pantalone, 53 Westmoreland L..J. 17 (1970). As the Pennsylvania Supreme Court has noted: We have a summary judgment rule in this Commonwealth in order to dispense with a trial of a case (or, in some matters, issues in a case) where a party lacks the beginnings of evidence to establish or contest a material issue ... forcing parties to go to trial on a meritless claim under the guise of effectuating the summary judgment rule is a perversion of the rule. Ertel v. The Patriot-News ompanv, supra., 674 A.2d at 1039. Summary judgment should be granted, where, as here, there exists a clear right to the judgment and the -6- facts are not subject to dispute. Zemprelli v. Scranton, 519 A.2d 518 (Pa. Cmwlth. 1986). Argument Plaintiff Is Entitled to Partial Summary Judgment Because the Defendant's Chair Caused His Hand In'uI ries. Plaintiff is entitled to partial Summary Judgment on liability because the Defendant was negligent, has no evidence to disprove its negiligence, and they are not immune from liability. The personal property exception to sovereign immunity permits a claim for "damages caused by the care, custody or control of personal property in the possession of the Commonwealth agencies ... " 42 Pa. C.S.A. §8522(b)(3). In order for waiver of sovereign immunity for damages arising from care of personal property to apply, the personal property itself must be in some manner responsible for injury. Nicholson v. M&S Detective Agency. IInc., 503 A.2d 1106 (Pa. Cmwlth. 1986). Thus, even when keeping in mind that the personal property exception is narrowly construed, the question is whether the old wooden chair caused Mr. Baum's hand to plunge through the glass window.' Pennsylvania courts have long recognized a common law duty on the part of a governmental authority to provide reasonable safety and protection to individuals take into custody. See. e.g., Department of Public Welfare v Kallirger, 580 A.2d (Pa. Cmwlth. 1990), petition for allowance of appeal denied, 615 A.2d 730 (Pa. 1992). Pennsylvania courts have also found unique and uncommon items like baseball bats and wine bottles triggered the personal property exception and caused injuries. ' Whetherthe chair constitutes personal property is not an issue based upon Defendant's Admissions. (6dubk -A,' 4 8 Exhbk'B; ¶ 8 E)Mibl -C,'Q 12 Exhibit `D; 412). Similarly, the care, custody or control of the chair is also not at issue because it was the Commonwealth-owned personal property and no record evidence exists to refute this assertion. -7- In the matter of Kenneth Vaughn v. Cmwlth Deot Public Welfare, 405 A.2d 1119 (Pa. Cmwlth. 1979), the minor plaintiff was struck by portion of allegedly defective baseball bat while participating in baseball game at camp. The court found that the baseball bat was personal property. The plaintiffs complaint sufficiently set forth cause of action within exception to sovereign immunity as to claim for care, custody or control of personal property because the baseball bat was personal property and complaint alleged that defendants were at all times in possession of bat. Id. Similarly, the wooden chair was in the Plaintiffs jail cell in SCI Rockview. The prison could have, at any time, and without any objection from Plaintiff, remove their chair. In Horick v. Banfi Products Corp., 15 Pa. D. & CAth 22 (1992), the court found that an exploding wine bottle in the possession of a Commonwealth agency falls within the personal property exception to sovereign immunity under,42 Pa. C.S.A. §8522(b)(3). The wine bottle was stored, transported, controlled, and possessed by the Commonwealth. Similarly, in this matter, the wooden chair was possessed and controlled by the Commonwealth and there is no record evidence contrary. Pennsylvania courts have also held that obscure items like transmission fluid, criminal records, white powder, balloons, maps, shoelaces and driving records, did not trigger the personal property exception under 42 Pa. C.S.A. §8522(b)(3) because the items did not cause the injury and/or were not involved in the causal chain of events. In Susko and Adams v. Pa. State Police 572 A.2d 831 (Pa. Cmwlth. 1990), a motorcyclist skidded on transmission fluid left on highway by state police after a motor vehicle accident. The court found that the slippery fluid was not a Section 8522(b)(3) exception only because the plaintiff failed to plead that the State Police had control of the wrecked vehicle and resulting fluids. -8- In Nicholson v. M&S Detective Agency and Cmwlth, 503 A.2d 1106 (Pa. Cmwlth. 1986), a bank teller, who was held hostage by Bank Security Guard who robbed bank, sued the state because they did an inadequate criminal search for the hiring detective agency. The court found that criminal records are Commonwealth owned Personal Property. However, the negligent search of the records is at issue and not an exception. The "care" and "custody" of the records did not cause the injury. "The records were not involved in the chain of causation, only negative search," citing Walters v. Der). O.T. 474 A.2d 66 (1984). In this matter, the chair was clearly involved in the chain of causation. Bufford v. Department of Transportation, 570 A.2d 751 (Pa. Cmwlth.1996). The case of Serrano v. Pa. State Police, involved an arrest by the State Police for suspected drugs. The claim arose from his four-month incarceration while awaiting laboratory test results of white powder found on his person at the time of arrest. The powder packet was deemed aspirin. The court cited Nicholson v. M&S Detective, supra, and reaffirmed the holding that "for the personal property waiver to apply, the personal property itself must be in some manner responsible for the injury." In Serrano, the powder packet was in custody and control, but did not cause the appellant's injury. It was the failure to quickly analyze the substance. The exception to sovereign immunity, for cases for injury caused by personal property under control of state, did not apply. Serrano v. Pennsylvania State Police, 568 A.2d 1006 ( Pa. Cmwlth. 1990). Similarly, the Commonwealth Court has refused to allow one to sue because Commonwealth employees negligently input information into their computer system resulting in suspended drivers' licenses and needless arrests. Although the driving record is personal property, the failure to properly maintain records is not actionable under 42 Pa. C.S. §8522(b)(3). Again, the personal property waiver "only applies in cases where the personal property itself causes the plaintiffs injury; the personal -9- property must be involved in the chain of causation." u alski v. mwlth 569 A.2d 1017 (Pa. Cmwlth.1990); Bufford v. Penn Dot. 670 A.2d 751 (Pa. Cmwlth.1996). In Com. Dept. of Environmental Resources v Myers, 581 A.2d 616 (Pa. Cmwlth. 1990), balloons posted at boundaries of areas to be sprayed to control gypsy moth population, and a topographic map provided by Defendant D.E.R. to show location of power lines did not cause injuries to a helicopter pilot who hit a power line during spraying. The plaintiff pilot was aware of the existence and location of the power lines (as demonstrated on the maps). Further there was no evidence that the helicopter struck the balloons or that the balloons were tangled in the power lines. Thus, the court found that the care, custody and control of the map and balloons did not cause the accident. In Pa. State Police v. Klimek, 839 A.2d 1173 (Pa. Cmwllth. 2003), a drunken and mentally unstable individual was threatening suicide and taken into custody. His boots were removed and placed outside his holding cell. He managed to get them and hang himself with his own shoelaces. The court found that the action of hanging himself caused the death and, "at most, the shoelace facilitated that outcome, i.e., it cannot be alleged that a shoelace itself caused his death." Id. 839 A.2d at 1177. In the instant matter, the undisputed facts clearly demonstrate that the old wooden chair itself was clearly the cause of Plaintiffs fall and injuries. Plaintiff would not have fell if the chair had anti-skidding soles and if it was properly maintained. (See Exhibit "G" infra). The most interesting case is one from an SCI Rockview inmate who, like Mr. Baum and others, was injured trying to get into the top bunk bed. Sometime before 1988, Jay Gallagher was injured while climbing into top bunk Lied. The facts here are similar to Mr. Baum's case. The court wrote "he shared a cell with another inmate. The cell had bunk beds, appellant occupying the upper bunk. Because no ladder is in the cell, appellant could reach the upper bunk only by using the cell bars to climb to the -10- upper bunk. Appellant was using the cell bars to get out of his bunk when his cellmate closed the cell door, severing his left ring finger.' Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988). While the court found that the inmate was in custody and control of state, he was not personal property of state and therefore, the personal property exception to state's sovereign immunity did apply. The alla her case is significant for several reasons. First, it provides the State with notice that inmates in the Rockview SCI could be injured while trying to get on the top bunk bed without a ladder. Second, dissenting opinion, by judges who are still on the Commonwealth Court Bench, found that the cell door was real property and thus, the real question was whether the door constituted a dangerous condition within the meaning of 42 Pa. C.S.A. §8522(b)(4), the real property exception. The courtsaid "While the door, in and of itself, may not have been defective, its placement next to the bunk in light of the custom to utilize the door to gain access to the top bunk and in light of the total absence of any other means of access to that bunk, indicates to me a design defect in real property which a jury could reasonably view as a dangerous condition." Galleaher it. Cmwlth Bureau of Corrections, 545 A.2d at 984. The court's opinion was obviously provided to the state and created notice of a dangerous condition.2 Plaintiff retained T2C the Thompson Corporation to conduct an engineering investigation and analysis. Joseph A. Thompson Jr., Professional Engineer, and former Engineer for the Pennsylvania Department of Transportation, reviewed this matter and all the relevant facts and issued a report and professional expert opinions to a scientific certainty. (See Report of August 25, 24, 2004, attached hereto as Exhibit "G' and Curriculum Vitae attached hereto as Exhibit "H"). ` Plaintiff submitted discovery requests to the Commonwealth asking for information on Mr. Gallagher's matter and other inmates who were also injured overthe course off time by getting in/out of the top bunk bed. This information was also requested a year prior to this matter being placed in litigation. To date, no formal discovery responses or any other discovery or information was proiAded to the Plaintiff. -11- Mr. Thompson's scientific conclusions, which highlight Defendant's negligence and the chair as the cause of the Plaintiffs fall, are as follows: The chair, or "access facility" provided by the defendant to Plaintiff was in a dangerous condition and it was conductive to the type of falling event that actually occurred; 2. The dangerous arrangement of access to the upper bunk by the chair was conducive to the type of falling and injury event occurring in this mater; 3. Continuing the above dangerous and hazardous site situation, most specifically requiring the use of the wooden chair in lieu of traditional means of access, is the failure by the Commonwealth to properly provide for safe upper bunk assess, including, but not limited to, providing a component of access with proper climbing potential, such as a ladder; 4. Continuing the above dangerous and hazardous site situations is the failure by the Commonwealth to properly, effectively, correct the unsafe access conditions including, but not limited to, elimination of the hazardous chair climbing access for the upper bunk at the site; 5. Continuing the above dangerous and hazardous site situations is the failure by the Commonwealth to properly, effectively, warn the access users of the unsafe access conditions including, but not limited to, failing to provide Mr. Baum with notice of the hazard the Commonwealth had created; and, 6. Continuing the above dangerous and hazardous conditions is the failure of the agency controlling the site, here the Commonwealth, to properly train and/or monitor their personnel to provide proper inspection, analysis, necessary improvement implementation and/or warning of the access facility hazard, the chair component of access. (Exhibit "G", pg. 4). Mr. Thompson further opines: These hazardous and/or dangerous upper bunk access condition encountered in the Baum Incident, most specifically requiring the use of the wooden chair in lieu of traditional means of access components, appears fully and completely to present a clear View of official neglect and failure, at a minimum, with regard to the access condition. Considering the performance of the Commonwealth here, this upper bunk access control neglect and failure of the Commonwealth, consequently -12- led directly to and resulted in this incident. The performance of the Commonwealth, was totally improper here under Industry standards, at a minimum, and of itself was the direct cause of the incident in any Professional Engineering opinion. Except for the Commonwealth's failure to correct the access irregularity, most specifically requiring the use of the wooden chair in lieu of traditional means of access components, also including but not limited to provision of adequate facility user warning and/or upper bunk access closure, where and when failing to correct the hazard, the incident would not have occurred. The incident was entirely foreseeable under Industry standards, at a minimum. In way of summary, in my Professional Engineering opinion there is simply no acceptable reason for the Commonwealth to have allowed the existence of the extremely dangerous, hazardous, and substandard condition encountered by the Mr. Baum. The facility access defects described in the body of this report, most specifically the Commonwealth's requiring the use of the wooden chair in lieu of traditional means of access components, in my Professional Engineering opinion, and based upon reasonable engineering certainty, created a readily foreseeable risk of injury and were the direct cause of the fall of Mr. Baum. It is clear the access problem was the proximate cause of the Baum Incident. Mr. Baum was entrapped by the condition of chair access to his upper bunk, created by the Commonwealth. The Engineering Industry would not anticipate that a person in Mr. Baum's circumstances as per this Incident would have appreciatively discovered the hazard and been able to avoid it... (Exhibit "G" pg. 4-5). It is undisputed that the Defendant owed a duty of care to Plaintiff on August 9, 2001, and on all days thereafter since the Plaintiff is in Defendant's custody. Defendant breached its duty of care to Plaintiff by permitting the Plaintiff to use a defective chair as a ladder and the only means of gaining access to his upper bunk bed (Exhibit "G"). Defendant knew, or should have known, of the existence of this problem and dangerous condition prior to the Plaintiffs fall, and Defendant was obligated to remedy, repair and eliminate the defect and to warn Plaintiff of its existence. (Exhibits "F"; "C" and "D," 134-35; Exhibit "G"). -13- Defendant was clearly on notice that, before this incident, inmates at SCI- Rockview, and other institutions, were injured when attempting to gain access into the top bunk bed because there were no ladders and limited means of gaining access to the top bunk bed. See: Exhibit "F," Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988; Exhibits "C" & "D" ¶¶34-35; Exhibit "G"). There is no genuine issue of material fact that the Defendant was negligent and the chair and bunk bed falls within the personal property exception to sovereign immunity under 42 Pa. C.S.A. §8522(b)(3). The personal property immunity waiver does not apply because it is undisputed that the chair and/or bunk bed caused the Plaintiffs injury and were involved in the chain of causation.3 As a result of his injuries, Plaintiff sustained a permanent diminution in the ability to enjoy life and life's pleasures. He is unable to fully engage in many of the activities he engaged in prior to the incident.` Plaintiff suffered a permanent disability and a permanent impairment of his earning power and capacity. (Exhibit "E"). Clearly, the old and wobbly wooden chair is personal property within the meaning of the immunity exceptions. Certainly the chair and/or combination of the chair and ladder free bunk bed caused Mr. Baum's injury. Certainly, the Defendant knows of this dangerous condition for 15 years and, certainly, the chair itself is responsible for Mr. Baum's injury. Alternatively, the chair and bunk bed are both themselves responsible for causing Mr. Baum's injury. Since there is no contradicting ' While the majority of this Motion argues how the chair caused the Plaintiff's fall, as Mr. Thompson points out, it was not only the dangerous and defective chair but also the combination of the chair and ladder free bunk bed that caused the fall. This viewpoint is Plaintiffs alternative argument in favor of Summary.ludgment. Defendant admits that the bunk bed is real or personal property, (Exhibits "C" V13"11 3), and in 1997, Defendant instituted a project to install (or weld) ladders to all bunk beds at S.C.I. Rockview. (Exhibits "C" & 'D" 120 and E)bbk "E" pp. 40-44). Plaintiff periodically gets a shooting pain and a numbness sensation on the side of his right hand. This occurs about three times a week and also occurs after sporting or welding activities. (E)diibB "E", pp. 3537). -14- evidence, Plaintiff's partial motion for summary judgment must be granted on the issue of liability. Conclusion. For all the foregoing reasons, the Plaintiff, Charles Baum, respectfully requests that this Honorable Court grant the instant Motion for Partial Summary Judgement and enter the Plaintiffs proposed Order. WHEREFORE, Plaintiff, Charles Baum, demands judgment in his favor in the amount in excess of twenty-five thousand dollars ($25,000.00) together with delay damages, interest, costs and attorneys fees. GALLAGHE"OWAN & EGBERT, P.C. BY: Attorney for Plaintiff, Charles Baum Date:-91 -3 V -15- I ?.? i. S ? 'L ??' L- ri.i$ h?QZ ??h? ? ? ?u 0 ?_ y O f GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N- GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 1682PIainiiff vs. 2520 Lisburn Road, Camp HDill, rp p' COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, C = ? ?'' i ;T;iRY ire A?,;. - , ?? t> 65 FeNNSYL?/ANiA COURT OF COMPTON PLEAS CUMBERLAND COUNTY CIVIL. ACTION No. 03- 3 -7/a m e- (Jury Trial Demanded) NOTICE You h," been sued in couA. N You wish to d. Y" he IoNovnrS I, ?E° t the ctaims set forth in t catniptaint ,gains muri take acylmr within twenty 1201 days after Uris and notice are saved. by entering • wftttM iting g with the personalty or by attorMy end filing in wr court yptr detenua or pbjeciiona to fie Cis" ma sat forth against You- You am warned that d Yo!t tai to do t-0 bye wu y proceed without You srd a lod9^1e1? 'Mice ma entcrtd against you by. he eO1n swad? W for any 01114K for any money claimed at the coml. tiN. You may lose Claim or rebel requested by the Pt„n t to you'- money or propem or other rights krrponan AOU TAKE 'THIS PAPER TO YOUR LAWYER ONCE.LIFDYOU DO NOT HAVE A LAWYER Oft N ORTELEPHONETHE OFFICE 0sD ONE, NOT FORTH BELOW OO OF ND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association Lawyer Reference and Information Association 32 S. Bedford Carlisle, PA 17013 717-249-3166 800-999-9108 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PLEADING WITHIN TWENTY (20) DAYS; FROM SERVICE HEREOF, OR API?FAULT JUDGMENT MAY BE ENTERED AGAINST YOU. EY FO 11 GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff Attorney ID# 59511 Charles Baum 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No.• 3 7l.1- 1 (Jury Trial Demanded) CIVIL ACTION COMPLAINT 1 Plaintiff, Charles Baum, is an adult and a resident of the City of Philadelphia. He is temporarily and involuntarily residing at State Correctional Institute at Rockview in Bellefonte, PA, 16823. 2. Defendant, Commonwealth of Pennsylvania, Department of Corrections is a state government agency with a principal and central office of business located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsyllvania. COUNT I - NEGLIGENCE 3. At all times material hereto, the "Commonwealth" acted and continues to act through its agents, servants, workmen and/or employees in the furtherance of its legislative mandate. 1 4. Defendant operates numerous state correctional institutions within its boundaries, including the State Correctional Institution at Rockview (SCI-Rockview) in Bellefonte, Centre County, Pennsylvania. 5. On August 9, 2001, Defendant operated SCI-Rockview. 6. On August 9, 2001, Plaintiff resided at SCI-Rockview and was in his prison cell. 7. On August 9, 2001, the cell in which Plaintiff occupied had a chair and bunk beds. 8. On August 9, 2001, the chair was personal property of the Defendant. 9. Said chair was in the possession, care, custody and control of the Defendant. 10. Said chair was provided to the Plaintiff by the Defendant to be used as a ladder to gain access to the top bunk bed in the Plaintiffs cell. 11. The Plaintiff's bunk bed is also real and/or personal property of the Defendant and in the Defendant's possession, care, custody and control. 12. On August 9, 2001, while in the process of going to sleep in his upper bunk bed in his assigned cell, the Plaintiff used his only method of gaining access to the top bunk - the chair. 13. Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. -2- 14. Said chair was not maintained in a safe condition and was old, unstable, and defective, especially when used as a ladder to gain access to the upper bunk bed. 15. On August 9, 2001, as Plaintiff used the chair as a ladder to gain access to the upper bunk bed, the chair quaked, slid, and flipped over, and caused Plaintiff to fall. ?,. . 16. The chair and fall caused Plaintiff's right hand, wrist, and arm, to go right through the window pane. 17. As a result of the fall, Plaintiff sustained injuries to his right hand, wrist, and arm, including, but not limited to tendon damage, tendon repairs and repairs to a ruptured tendon. 18. An hour and a half after his fall and injury, Plaintiff was taken to the nearest Emergency Room at a nearby hospital. 19. Plaintiff received medical treatment including tendon repairs, stitches, splinting, and medications. 20. Thereafter, Plaintiff received further treatment for more than three months after the incident and is still in need of further medical treatment. 21. Plaintiff had, and continues to have, ongoing pains and problems. 22. Plaintiff sustained a serious laceration and still has permanent disfigurement and physical injuries including scarring and permanent limitations. 23. Plaintiffs injury is permanent and prevents him from performing his customary activities and it will prevent him from gaining any type of labor related employment when he is released from custody which constitutes a future loss of earning capacity. -3- 24. Plaintiff has no available administrative remedies for this negligence claim. 25. Plaintiff notified the Defendant of his intent to commence the instant action since October 2001 and this matter was assigned Claim # 246679. 26. Plaintiff acted reasonably when he tried to resolve this claim with Defendant's 1? agents in the Bureau of Risk and Insurance Management, but was unsuccessful. 27. Solely as a result of Defendant's negligence, Plaintiff suffered injuries to his right hand, wrist, and arm, which are serious and may be permanent, including, but not limited to tendon damage, tendon repairs and repairs to a ruptured tendon, all of which continue to cause him great pain and suffering. 28. As a result of the Defendant's negligence, Plaintiff has undergone severe physical pain and mental anguish and will continue to endure the same for an indefinite period of time in the future, to his great detriment and loss. 29. Defendant owed a duty of care to Plaintiff on August 9, 2001, and on all days thereafter since the Plaintiff is in Defendant's custody. 30. Defendant breached its duty of care to Plaintiff by knowingly, recklessly, and carelessly permitting the Plaintiff to use a defective chair as a ladder and the only means of gaining access to his upper bunk bed. 31. Defendant knew or should have known of the existence of this problem and dangerous condition prior to the Plaintiffs fall, and Defendant was obligated to remedy, repair and eliminate the defect or to warn Plaintiff of its existence. 32. Defendant was on notice that, before this incident, inmates at SCI-Rockview, and perhaps other institutions, were injured when attempting to gain access into the top -4- bunk bed because there were no ladders and limited means of gaining access to the top bunk bed. See: Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988). 33. The chair falls within the personal property exception to sovereign immunity under 11 42 Pa. C.S.A. §8522(b)(3) and the personal property waiver applies because the chair caused the Plaintiffs injury and it was involved in the chain of causation. 34. If the bunk beds are deemed fixtures and not personal property of the Defendant, then Plaintiff respectfully avers that the bunk beds are real propeq'under the( afe, ` custody, and control of the Defendant and because they do not have ladders attached thereto, the bunk bed constitutes a defect in the property and in its construction, maintenance, repair or design and constitutes a dangerous condition within the meaning of 42 Pa. C.S.A. §8522(b)(4), the Real Property Exception to government immunity. 35. While the bunk bed, in and of itself, may not have been defective, its lack of a ladder combined with the custom to utilize the chair as the sole means to gain access to the top bunk and in light of the total absence of any other means of access to that bunk, indicates a design defect in real property which constitutes a dangerous condition. 36. The bunk bed, without a proper means of access to the upper bunk, constitutes an artificial condition and defect of real estate itself which caused and contributed to the Plaintiffs injuries. -5- 37. The injuries sustained by Plaintiff were caused by the negligence, carelessness and recklessness of Defendant, in that: (a) it failed to maintain the chair and bunk bed properly by allowing the defect, problem, and dangerous condition to exist; (b) it failed to use due care and to employ reasonable skill in providing inmates with a safe and reasonable means to gain access to the upper bunk beds; (c) it knew, or should have known, of the defect, problem, and of the dangerous condition it caused, but nevertheless permitted the chair and bunk bed to remain in an unsafe, unsuitable and dangerous condition; (d) it failed to use reasonable prudence or care in maintaining the chair and bunk bed in a safe condition; (e) it failed to exercise reasonable care to inspect and/or discover the defect, problem and dangers in the chair and bunk bed scheme as the only method of gaining access to the upper bunk bed; (f) it failed to warn plaintiff of the defect, dangers, and problems in the chair and bunk bed scheme as the only method of gaining access to the upper bunk bed; (g) it permitted the chair and bunk bed scheme to remain in an unreasonably dangerous, unsuitable and unsafe condition, having actual and/or constructive notice of the defect; (h) it failed to correct, remedy, repair and/or eliminate the defect, problem, and dangers; and (i) it otherwise conducted itself in a negligent, careless and reckless manner. 38. Solely as a result of the negligence, carelessness and recklessness of Defendant, Plaintiff has been obliged to receive medical attention and care and to expend -6- various sums of money for injuries he suffered, and he may be obliged to continue to expend such sums for an indefinite period of time in the future. 39. As a result of his injuries, Plaintiff may have suffered a permanent disability and a permanent impairment of his earning power and capacity. 40. As a result of his injuries, Plaintiff may have sustained a permanent-diminution in the ability to enjoy life and life's pleasures, in that he is unable to engage in many of the activities he engaged in prior to the incident. WHEREFORE, Plaintiff, Charles Baum, demands judgment in his favor in the amount in excess of twenty-five thousand dollars ($25,000.00) together with delay damages, interest, costs and attorneys fees. GALLAGHER? OWAN & EGBERT, P.C. BY: LM4?, ) ENJAMIN N. GIALLORETO, ESQUIRE Date: ?1311 63 Attorney for Plaintiff, Charles Baum -7- VERIFICATION The undersigned having read the attached pleading verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that the within pleading is true and correct to the best of the signer's knowledge, information and belief. To the extent that the contents of the pleading are that of counsel, verifier has relied upon counsel in taking this Verification. This Verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. CHARLES BAUM Ve Nicafion. wpd F -x ? 0 0 f Office of Attorney General Torts Litigation Section 1511 Floor, Strawberry Square Harrisburg, PA 17120 BAUM, Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, : No. 03-3712 Defendant : JuryTrial Demanded ANSWER AND NEW MATTER OF DEFENDANT COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS. Defendant, Commonwealth of Pennsylvania, Department of Corrections, by and through the Office of Attorney General, files the following Answer to Plaintiffs Complaint: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 10. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 11. Admitted that Plaintiff's bunk bed is either real or personal property of the Defendant. The remainder of paragraph 11 is denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 12. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 13. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 14. Denied as a conclusion of law to which no responsive pleading is required. The averments of paragraph 14 are also denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 15. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 16. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 17. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 18. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 19. Admitted. 20. Admitted that Plaintiff received treatment for more than three months. After reasonable investigation, the answering Defendant does not have sufficient knowledge or information to form a belief as to the remaining averments of paragraph 20. 21. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 22. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 23. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 24. Denied as a conclusion of law to which no responsive pleading is required. 25. Admitted. 26. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 27. Denied that Defendant was negligent. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the remaining allegations of paragraph 27. 28. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 29. Denied as a conclusion of law to which no responsive pleading is required. 30. Denied as a conclusion of law to which no responsive pleading is required. The allegations of paragraph 30 are also denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 31. Denied as a conclusion of law to which no responsive pleading is required. 32. Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 33. Denied as a conclusion of law to which no responsive pleading is required. 34. Denied as a conclusion of law to which no responsive pleading is required. 35. Denied as a conclusion of law to which no responsive pleading is required. 36. Denied as a conclusion of law to which no responsive pleading is required. 37(a)-(i) Denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 38. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 39. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 40. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. WHEREFORE, Defendant Pennsylvania Department of Corrections demands judgment in its favor and against the Plaintiff. NEW MATTER 41. The present action is controlled by the provisions of 1 Pa. C.S. §2310 and Act No. 1980-142, set forth in 42 Pa. C.S. §§8501, et seq., which Acts are incorporated herein and pled by reference. The Commonwealth Defendant: asserts all the defenses contained therein. 42. The Commonwealth party is immune from suit pursuant to 1 Pa. C.S. §2310, and this action is not within any of the exceptions to immunity as set forth in 42 Pa. C.S. §8522, and therefore this action is barred. 43. Should liability be found on the part of the Commonwealth Defendant, the amounts and types of damages recoverable in the present action are limited and controlled by 42 Pa. C.S. §8528. RESPECTFULLY SUBMITTED: GERALD J. PAPPERT ATTORNEY GENERAL BY: NIEL O MOTE Sr. Deputy Attorney General #30986 VERIFICATION 1, DANIEL R. GOODEMOTE, hereby verify that I am counsel for the Defendant Commonwealth party in the foregoing action, and also verify that the foregoing statements are true and correct to the best of my knowledge, information and belief. I understand that I am subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities for any false statements knowingly made herein. i NIEL R. GOODEMOTE SENIOR DEPUTY ATTORNEY GENERAL #30986 DATED: 3II?Io`? CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 r ANIEL DEMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Ff., Strawberry Square Harrisburg, PA 17120 (717)783- 147 DATED: 3Ifib1 0 0 0 0 li 0 F 0o. IY2 Office of Attorney General Daniel R. Goodemote Torts Litigation Section Senior Deputy Attorney General 15 Floor, Strawberry Square Direct Dial 717-783-3147 Harrisburg, PA 17120 CHARLES BAUM, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, : No. 03-3712 Defendant : Jury Trial Demanded RESPONSES OF THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS TO REGIUEST FOR ADMISSIONS OF PLAINTIFF 1-3. Admitted Plaintiff is an adult. Denied. Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny its residence. Therefore, the same is denied pursuant to Pa. R.C.P. 4014(b). 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. It is admitted based on accurate count reports taken throughout the evening of August 9, 2001 that Plaintiff was in his cell from at least 9:00 p.m. until the morning of August 10, 2001. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted that the bunk beds were the property of the Defendant. Whether the beds are personal property or real property is a question of law. Therefore, the allegation is denied pursuant to Pa. R.C.P. 4014(b). 14. Admitted. 15. Denied. Whether the chair was within the possession, care, custody and control of the Defendant is a question of law. Therefore, the allegation is denied pursuant to Pa. R.C.P. 4014(b). 16. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 17. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 18. See response to No. 15. 19. Admitted. 20. Denied. The project to install ladders to all bunk beds at Rockview began in 1999. 21. Admitted. 22. Admitted. 23. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 24. Admitted. 25. Denied. Chairs were repaired on an as needed basis. If a chair was clearly old, unstable or unevenly balanced, it would have been replaced or repaired. 26. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 27. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 28. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 29. Denied based on the emergency room report which states Plaintiff received a right hand laceration and "that there was a small laceration in the tendon sheath, although the extensor tendons do appear to be fully functional and strong." 30. Denied based on emergency room records. Plaintiff received two sutures in the tendon sheath, was placed in a splint, bandaged and discharged with wound care instructions. 31. Denied based on medical records. Plaintiff was last seen on October 1, 2001 for wrist problem. Plaintiff has been seen on subsequent occasions for other various conditions. 32. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 33. Admitted in part, denied in part. It is admitted that Plaintiff received a right hand laceration. As to the remaining admission, the Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). 34. It is admitted that the Commonwealth of Pennsylvania, Department of Corrections was informed that one or more inmates at SCI-Rockview had been injured while attempting to gain access to the top bunks. The Commonwealth of Pennsylvania, Department of Corrections denies that it had notice that the absence of ladders caused the injuries. The Defendant does not make such determinations. After reasonable inquiry, the information known or readily obtainable by the Commonwealth Defendant is insufficient to enable it to admit or deny this request as it relates to other institutions. 35. Admitted that the Commonwealth of Pennsylvania, Department of Corrections was informed that inmates at SCI - Rockview were injured when attempting to gain access to the top bunk using chairs. With respect to other institutions, after reasonable inquiry, the information known or readily obtainable by the Commonwealth Defendant is insufficient to enable it to admit or deny this request. 36. Denied. Specifically, the Commonwealth of Pennsylvania, Department of Corrections denies that it was negligent in the care, custody and control of the chair. 37. Denied. Specifically, the Commonwealth of Pennsylvania, Department of Corrections denies that it was negligent in the care, custody and control of the chair. 38. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). To the best of Defendant's knowledge, Defendant is not aware of any warnings given by the Maintenance, Medical or Superintendent Assistants. The Defendant does not know whether other staff did or did not give warnings. 39. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). To the best of Defendant's knowledge, Defendant is not aware of any warnings given by the Maintenance, Medical or Superintendent Assistants. The Defendant does not know whether other staff did or did not give warnings. 40. Denied. The Commonwealth of Pennsylvania, Department of Corrections, after reasonable inquiry, is without sufficient knowledge or information to admit or deny the requested admission, therefore the same is deemed denied pursuant to Pa. R.C.P. 4014(b). RESPECTFULLY SUBMITTED: GERALD J. PAPPERT ATTORNEY GENERAL BY: NIEL R. GOODS DOTE Sr. Deputy Attorney #30986 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 ?r ANIEL R. OODEMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-3 4 DATED: y]/cLl z O y 0 GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant Attorney for Plaintiff Charles Baum COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03-3712 Plaintiff s Request for Admissions to Defendant Pursuant to Rule of Civil Procedure 4014 of the Pennsylvania Rules of Civil Procedure and Local Rule 4005-1, plaintiff, Charles Baum, by counsel, propounds the following requests for admissions to the defendant to be answered in writing, under oath, within thirty (30) days as required by the Rules of Civil Procedure. Definitions a. "Defendant" refers to, and includes, some and/or all of the correctional officers and other various employees of the Commonwealth of Pennsylvania Department of Corrections including those assigned to SCI Rockview and to other state institutions. b. "Plaintiff' refers to Charles Baum. C. `Chair" refers to the one inside the Plaintiffs Cell on August 9, 2001. Admissions: Plaintiff, Charles Baum, is an adult and a resident of the City of Philadelphia. 4. Plaintiff is temporarily and involuntarily residing at State Correctional Institute at Rockview in Bellefonte, PA, 16823. 5. Defendant, Commonwealth of Pennsylvania, Department of Corrections is a state government agency with a principal and central office of business located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania. 6. Defendant operates numerous state correctional institutions within its boundaries, including the State Correctional Institution at Rockview (SCI-Rockview) in Bellefonte, Centre County, Pennsylvania. 7. On and before August 9, 2001, Defendant operated SCI-Rockview. 8. On and before August 9, 2001, Plaintiff resided at SCI-Rockview. 9. On August 9, 2001, Plaintiff was in his prison cell in the evening hours. 10. On August 9, 2001, the cell in which Plaintiff occupied had a wooden chair and bunk beds. 11. On August 9, 2001, the Plaintiff was assigned to the upper bunk bed in his assigned cell. 12. On August 9, 2001, the chair in the Plaintiffs cell was personal property of the Defendant. 13. On August 9, 2001, the bunk beds in the Plaintiffs celll were personal property of the Defendant. 14. Said chair in Plaintiffs cell on August 9, 2001 was wooden. 15. Said chair was in the possession, care, custody and control of the Defendant. -2- 16. Before August 9, 2001, the Defendant did not inspect the chair for defects. 17. Before August 9, 2001, the Defendant did not make any repairs to the chair. 18. Said bunk beds were in the possession, care, custody and control of the Defendant. 19. On August 9, 2001, no ladder was provided to the Plaintiff to gain access into the upper bunk bed. 20. Since August 9, 2001, at the Defendant `s request or suggestion, inmates in Welding Class/School have been welding metal bars onto various bunk beds to be used as ladders to provide inmates with access into the upper bunk bed. 21. Before August 9, 2001, Defendant knew that chairs were being used by inmates to gain access into the top/upper bunk bed. 22. On August 9, 2001, the floor of the Plaintiffs prison cell was concrete. 23. August 9, 2001, in order to get into his upper bunk bed, the Plaintiff used the wooden chair. 24. Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. 25. Said chair was old, unstable, and was not evenly balanced. 26. On August 9, 2001, as Plaintiff used the chair to gain access to the upper bunk bed, the chair quaked, wobbled, and slid from under the Plaintiff. 27. On August 9, 2001, the chair caused Plaintiff to lose his balance and fall. -3- 28. On August 9, 2001, the fall caused Plaintiffs right hand, wrist, and arm, to go right through the adjacent right window. 29. As a result of the fall, Plaintiff sustained injuries to his right hand, wrist, and arm, including, but not limited to tendon damage and repairs to a ruptured tendon. 30. Plaintiff received medical treatment including tendon repairs, stitches, splinting, and medications. 31. Thereafter, Plaintiff received further treatment for more than three months after the incident. 32. Plaintiff had, and continues to have, ongoing wrist and hand pains and problems. 33. Plaintiff sustained a laceration and still has permanent disfigurement and scarring. 34. Before August 9, 2001, the Defendant was on notice that inmates at SCI-Rockview, and perhaps other institutions, were injured when attempting to gain access into the top bunk bed because there were no ladders and limited means of gaining access to the top bunk bed. See: Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988). 35. Before August 9, 2001, the Defendant was on notice that inmates at SCI-Rockview, and perhaps other institutions, were injured when attempting to gain access into the top bunk bed by using chairs. 36. The chair falls within the personal property exception 4o sovereign immunity under 42 Pa. C.S.A. §8522(b)(3). 37. The personal property waiver applies because the chair caused the Plaintiffs injury and it was involved in the chain of causation. -4- 38. Before August 9, 2001, the Defendant neverwarned the Plaintiff to not use the chair and bunk bed scheme as the only method of gaining access to the upper bunk bed. 39. Before August 9, 2001, the Defendant never educated the Plaintiff of any possible dangers, and/or safety measures to use when using the chair and bunk bed scheme as the only method of gaining access to the upper bunk bed. 40. As a result of his injuries, Plaintiff suffered a permanent disability and a permanent impairment of his earning power and capacity. & ?GBERT, P.C. BY: Attorney for Plaintiff, Charles Baum Date: -5- GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant Attorney for Plaintiff Charles Baum COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03-3712 CERTIFICATE OF SERVICE I, Benjamin Gialloreto, as attorney forthe Plaintiff in the above-captioned matter, hereby certify that I served a true and correct copy of Plaintiffs Request for Admissions to Defendant upon counsel for the Defendant at the name and address as appears below, via Regular (Mail and Fax on March 9, 2004. Regular Mail & Fax: (717) 772-4526 Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15`h Floor, Strawberry Square Harrisburg, PA 17120 LAGHER, R.OW & EGBERT, P.C. By: Cblti BENJ MIN N. GI LLORETO, ESQUIRE I; an';Y :t? PLAINTIFF IN iME COURT OF COMMON PLEAS 2 OF CUMBERLAND COUNTY, PENNSYLVANIA 3 VS CIVIL ACTION - LAW 1 STIPULATION 3 4 COMMONWEALTH OF PENNSYLVANIA, : NO. 03-37I2 2 It is hereby stipulated by and D DEPARTMENT OF CORRECTIONS, between EFENDANT 3 counsel for the respective parties that reading, 4 signing, :sealing, and certification are waived; and ' DEPOSITION OF: CHARLES 5 that all objections except as to the form of the ES B WILLIAM BAUM, SR. 6 question are reserved to the time of the trial. 9 TAKEN BY: DEFENDANT 7 70 BEFORE: HILLARY M.LIC HAZLETT, REPORTER 8 NOTARY PUBLIC CHARLES WILLIAM BAUM, SR,, called as a 11 DATE: FEBRUARY 24, 2004, 1:03 p,M 9 witness, being duly sworn, testified as follows: 12 PLACE: STATE CORRECTIONAL INSTITUTION 10 " ROUTE I26 11 EXAMINATION 14 BELLEFONTE, PENNSYLVANIA 12 t5 13 BY MR. GOODEMOTE: 16 APPEARANCES: 14 4 Mr. Baum, my name is Dan Goodemote. We met 17 GALLAGHER. ROWAN & EGBERT PC 15 briefly. I'm here to take your deposition on the 78 BY: BENJAMIN N. GIALLOREiO, ESQUIRE 16 action you filed against the Pennsylvania Department 19 FOR - PLAINTIFF 17 of Corrections. ATTORNEY OFFICE OF 18 20 BY: DANIEL R. GOODEMOTE. ESQUIRE I have a few instructions for you. I'm 21 FOR - DEFENDANT 19 sure your attorney has probably explained what we're 22 20 doing and how it will go, but just a few instructions 23 21 to make it gio a little bit easier. 24 22 First of all, I need you to express all of 26 23 your answers verbally. That's so Hillary can take 24 down both the question and the answer without a nod 25 of the head or a gesture. That's hard to take down r I N D E X 2 EXAMINATION 1 and know what it means later. Okay? 4 3 DEPONENT PAGE 2 A Yes. 4 Charles W. Baum. Sr. 3 6 By Mr. Goodemote 3,42 4 you4don't tuat any time nde stand,Ijust et me know or asktme to ask you a question 6 By Mr. Gialloreto 39 5 rephrase it. 8 6 Sometimes my questions ma EXHIBITS y get --not 7 intentionally so -- but they get involved or I trip 9 DEPOSITION EXHIBIT NO. MARKED 8 over myself and you may not know what I'm asking. I I 1 19 10 1 - drawing 9 don't want you to answer a question that you don't 10 12 understand. Okay? 73 11 A Okay. 14 12 4 If you need a break at any time, again, 1 '6 13 don't think we'll go very long, but if you need a '6 14 break at any time or you want to talk to your 16 15 attorney, just let me know and we'll accommodate you. 18 16 Okay? 19 17 A Okay, 20 18 4 My final instruction is once we get going, 21 19 you may be able to anticipate what my next question 22 20 is. I'll ask you to let me finish the question 23 21 before you start answering again. That's mostly for 22 Hillary's benefit: so she can get my whole question <e 23 and your whole answer down. Okay? 24 A Okay. 25 4 You staffed your name. Where do you ARCHIVE REPORTING SERVICE (717) 234-5922 I currently reside? 2 A At Rockview State Penitentiary. 1 A Megan Brand and Charles Baum Jr 3 4 Okay. How long have you been here? , . 2 Q And how old are your children? A About four years, 3 A My daughter is 12 and my son is 9 4 Okay. Do you recall when you were first . 4 Q Oay. Give me an overview of our 5 . 6 incarcerated here, at least a month, a month and a education Did you graduate high school? 6 7 year? A IJo. Tenth grade. 8 A Yes. 8 4 Tenth grade. What was the last high school 8 9 4 Okay. When was that? you attended? 9 10 A December I think it was. No, actually, it 11 A Kensington. 10 was about March 19th of 2001 that I came here. 12 Q Kensington? A Yes. 4 Okay. Where did you reside before you came 12 13 here? 4 Is that in Philadelphia? 14 A At Camp Hill Correction Facility 13 A Yves. . 15 Q Okay. How long were you incarcerated at 16 14 4 What grades did you attend at Kensington? 15 A Camp Hill? What do you mean by that? 17 A I believe it was almost four months 16 Q Tenth grade, ninth? . 18 Q Okay. Where did you reside before Camp ?8 A Tenth grade. 19 Hill? 20 A What do you mean by that? MR. GIALLORETO: You left during tenth 19 grade or did you finish tenth grade? 21 MR. GIALLORETO: Where were you livin ? 22 BY MR. GOODEMOTE: y g' 2 THE WITNESS: I dropped out in tenth grade. 21 1 BY MR. GOODEMOTE: 23 4 Where were you living? 22 4 Okay. What was the last job you had prior 24 A Philadelphia. 23 to being incarcerated? 25 Q Okay. Do you have an address? 24 A Orens Brothers Construction. 25 4 Can you spell the name? A 4346 Duncan Street, D-u-n-c-a-n 6 . 2 4 How long did you reside at Duncan Street? 1 A I m not quite sure how to spell it. 2 3 A About four years. 4 Orenns Brothers? 4 4 Okay. And who did you reside at Duncan 3 A Yes. I believe the address is 4420 Walnut 4 5 Street with? Street. 6 A My mother and my stepfather 5 Q What did you do for Orens Brothers? . 7 Q Okay. That takes us back to about, what 8 ' laborer. I did like home 7 6 A I was , mid 90s? remodeling, sheet rock electric, 9 A Yes. . 8 4 Okay. How long did you work for them? 10 4 Okay. Let's go back one more address. 9 A About two years. 10 11 Where did you live before Duncan Street? Q Okay, What years would those have been? 12 A 1848 East Oakdale Street and'99. 1 A . 13 Q Philadelphia? 12 2 4 Okay. Okay. 14 A Yes. 15 4 And how long did you resid th 13 A All the way up until I was incarcerated, 14 actually. e ere? 16 A About ten years. 17 Q Okay. And who did you reside there with? 15 4 Where did you work previous to Orens 16 Brothers? 18 A My mother and my stepfather 17 A Northeast Fence and Ironworks . 19 4 Okay. Are you married? . 18 4 Okay. And where are they located? 20 A No. 21 19 A In the iNortheast area in Pennsylvania. 20 4 Do you have any children? 4 Northeastern Pennsylvania? 22 A Yes. 21 A No. 4 How many children? Q 22 4 That's a city or a town? •? Two. I25 Q What are their names? 23 A You got Kensington and then you got the 24 Northeast. That's what they call it. 25 MR. GUILLORETO: It's part of Philadelphia , ARCHIVE REPORTING SERVICE (717) 234-59,22 2 3 5 6 7 8 9 10 13 I15 15 17 119 J 1 Northeast Philadelphia. 12 MR. GOODEMOTE: Got you. You've got to 3 excuse us people who are not from Philadelphia. THE WITNESS: Understandable. BY MR. GOODEMOTE: 6 4 Okay. How long did you work for them? 7 A About seven years. 8 4 Okay. And what did you do for them? 9 A I was a laborer. I installed fences, did 10 welding, making gates. 11 Q Okay. Where did you work prior to that? 12 A Eagle Fence Company. 13 Q Eagle Fence? 14 A Yes. 15 4 Where are they located? 16 A They're located in the Philadelphia region, 17 too. 18 4 What did you do for them? 9 A The same thing, labor. I installed wooden 0 fences, chain-link fences, metal gates, and things 1 like that, too. 2 4 How long did you work for Eagle? 3 A About eight years. I 4 Okay. Does that take us approximately back i to the high school days? A Yes. 4 Okay. A About'87. 4 Backto'87? A Yes, probably somewhere right around there, 4 What year did you leave tenth grade or high school? A I'm not really sure to tell you the truth. 4 Do you have an approximate date? Is it around '87, in that area? A Yes. 4 Any education beyond the tenth grade? A I'm currently taking my GED. I'm working on -- I'm taking a business thing they have here to get college credits. ing Q Okay. What type of courses are you in business? Can you be a little more specific? A For small businesses. 4 Okay. And what does that involve, just generally? 1 mean, does it involve some accounting or bookkeeping or how to run a business? A It's how to run a business. 4 Okay. How long have you been taking those classes? A Well, I just started taking business I 1 classes. I guess it's been about a month and a half 2 now. 3 4 Okay. 4 A But my GED has been a year. The first time 5 1 took it,, I failed it by two points. 6 MR. GIALLORETO: You passed it by two 7 points. 8 'rHE WITNESS: No, I failed it by two 9 points. 0 PAR. GIALLORETO: By two points? 1 THE WITNESS: Yeah. 2 BY MR. GOODEMOTE: 3 4 And you're continuing to study to obtain 4 the GED? 5 A Yes. i 4 When is your expected date of release? A I see the Parole Board sometime in May. I'm not quite sure what date it is. Q Okay. we're here, over k fall that you had in your cell, obviously, least according to the complaint that you and your attorney filed; is that correct? A Yes. 4 Okay. Before I say any specific questions, why don't you tell me in your own words what 1 happened? 2 A I was -- well, in the cell, there's no 3 ladder on the beds -- 4 4 Okay. 6 7 8 A -- or, a handrail you can grab onto to climb up into the bed. What you have to do is you have to step on a chair. The chair was wobbly. I slid. I fell backwards. On the top of the wall, there's, like, a coat rack that you hang coats on. I tried to grab that and I missed. That's when my hand went through a window. 4 Okay. Now we're going to try to break that down. You said that very quickly. There was a lot of information there. A Okay. 4 How long had you been in the cell, that particular cell where the accident occurred? A Probably about four months. 4 Okay. In the four months that you were in that cell, did you always have the top bunk? A Yes. 4 Okay. And during the four months that you had the top bunk in that cell, did you always use a chair to get into the top bunk? A That is your access to the top bunk. 110 11 12 13 15 16 17 19 ARCHIVE REPORTING SERVICE (717) 234-5922 Q Okay. So the answer is yes? A Yes. s Q Okay. Was it always the same chair that you used the day of the accident? A I don't understand what you mean by that. 6 Q Well, was there a different chair that you 7 used to get into the top bunk, or for the four months 8 did you use the same chair? 9 A I used the same chair, same chair. 10 Q Okay. And I believe you said the chair was 11 wobbly? 12 A Yes. 'J 4 What do you mean by wobbly? 14 It isn't balanced. It's got like -- I 15 gueA ss, like, one of the legs are smaller than the 16 other. 17 Q Okay. Well, the reason I asked that is one 18 of the legs could be loose or, as you described, it's 19 wobbly because one of the legs is shorter. It 20 doesn't sit flat on the floor? 21 A Correct 22 Q If you told me the answer to this question, 23 1 don't recall it from your account. But why did you 24 start falling off the chair? I mean, did it wobble, 25 did it slide: or is there some other reason that you lost your balance? 2 A When I was getting up in the chair, the 3 chair was wobbly. It slid. That's when I lost my 4 balance and fell backwards. 5 Q Okay. So it wobbled and then it slid? 6 A Yes. 7 Q And then you lost your balance? 8 A Yes. Q Okay. Now, were you - did you have one foot on the chair or two feet on the chair? I assume you had at least one foot on the chair at the time? A I had my one foot on the chair bringing my other foot up to get on the chair to jump onto the bunk. That's when I slid, and I fell backwards. record, but I Okay. nt ' to make sue I understand. So you had one foot on the chair and you were stepping up? A Can I show you myself? Q Sure. That would be even better. A Say it is here. It's about this high. MR. GIALLORETO: Well, just for the record, how tall is the top bunk? about THE WITNESS: It's 51911, l foot on the chair. I t my hands on the bed like this here, and I went to get up and that's when - it was like this and the chair wobbles. It slid this 2 way. I fell back this way. 3 MR. GOODEMOTE: I'm going to try to 4 explain, E3en, and you correct me if I'm wrong. 5 MR. GIALLORETO: Okay. 6 BY MR. Go DEMOTE: aum actual 8 what he did.BHe h dehislleftdfooton thelchair He us 9 was stepping up with his right foot and probably, 10 would you agree with me, Mr. Baum, that you were er foot up? [2B be like a third to a halfway up, getting your A Yes. When the chair started to wobble and you your balance? Yes. Where were your hands when you lost your nce, if you remember? I believe I pulled them off of the bed to grab myself on the wall where the coat rack missed it. That's when my hand went through indow. MR. GIALLORETO: Your right hand? THE: WITNESS: Yes. R. GOODEMOTE: 1 Q All right I'm going to ask you because 1 2 I'm not getting a picture of where the coat rack is. 3 Maybe if you could draw where the bed was, where the 4 chair was and where the coat rack was, and we'll have 5 this marked as an exhibit. 6 7 8 A Say this is the cell. This would be the bed here. Q In the! square where the bed is, write bed for me. All right. A The doorway would be there. 1'11 put door thee for you. Q Okay. A Your toilet would be here with your sink. corner. MR. GIALLORETO: In the lower, right MR. GOODEMOTE: Okay. THE WITNESS: And your window would be here. Then say this is the extension of the wall going upwards, your coat rack would be here by the window. BY MR. GOODE:MOTE: Q Describe for me what the coat rack is made of. Is it metal? A I believe it's made out of tin. Q Tin? 10 11 12 13 15 111, 116 17 18 19 20 21 22 23 24 25 ARCHIVE REPORTING SERVICE (7 22 1 A Yes. .2 4 Okay. Is it just a bar or does it have 3 hooks or describe for me what it is? A It's a -• it looks like a box. It's got a shelf on top where you put your cosmetics. Then 8 undemeath that shelf it has hooks, one for you and 7 one for your celly to hang coats on. 8 4 Okay. 9 A It's just flesh up against the wall with, 10 like, I guess I would call it like a little loft 11 where you stick your cosmetics on. 12 q Like a little shelf or something like that? 13 A Yes. 14 MR. GIALLORETO: They don't have an armoire 15 in there? 16 MR. GOODEMOTE: No. 17 BY MR. GOODEMOTE: 18 Q You described that as you lost your 19 balance, you grabbed at the coat rack or towards the 20 coatrack? 21 A Yes. 22 Q And tell me, again, what happened from that 23 point. 24 A As I was grabbing for the coat rack,1 25 missed it because it's about, like, 3 inches away 3 4 5 6 8 9 10 11 12 13 14 from the window. 4 Okay. A And as I missed it, failing backwards, my hand went through the window, my right hand. 4 Okay. A Then after that, as I pulled my hand back, I saw the blood run. That's when I called for the COs. 4 Okay. Did the chair actually slip as you lost your balance? A You mean slid? 4 Slid on the floor. A Yes. 4 Okay. Do you know how far? A I don't know. 4 Okay. When you fell against the window well, first of all, for the record, what hand went through the window? A My right hand. 4 Okay. Can you draw for me where the chair was in relation to the bed as you were trying to get into the bunk, and that looks enough like -- let's make sure we know because that's important. I'm going to draw a line there and would you put chair? Thank you. 17 I MR. GIALLORETO: It looks like a small H. 2 MR. GOODEMOTE: Yes. It looks like a small 3 H, for the record, Hillary, could we have that 4 marked as Baum 1. 5 (Baum Exhibit No.1 was marked for 6 identification.) 7 BY MR. GOODEMOTE: 8 4 And just so I have a picture of this, can 9 you describe or show me how you fell once, you know, 10 you're losing your balance and off the chair? 11 A Can Ishow you? 12 4 Sure. 13 A I was getting up, like, on the chair like 14 this and my hands on the bed •. 15 4 And just so for demonstration purposes, 16 again, the way You're at, the window would be over 17 here, correct? 18 A The window is like right here. 19 MR. GIALLORETO: To his right a distance of 20 about how far? 21 THE WITNESS: About a foot. 22 MR. GOODEMOTE: Okay. 23 MR. GIALLORETO: if you want to hold onto 24 me, go ahead. 25 THE WITNESS: I had my hands on the bed like this. I went to lift up. The chair slipped 20 backwards, and I fell like this here coming towards my right side. missed it. That's when my hand went through the window. BY MR. GOODEMOTE: 4 The chair skids to the left and you fell right. Okay. As you fell through the window, were you still on your feet? A Yes, because there's a radiator there with a tin thing that covers -- there's like a big pole. That's when my body fell and hit that. My hand was going through the window. 4 So you caught yourself and your body on the radiator so you didn't fall down to the floor, correct? 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 ARCHIVE REPORTING SERVICE (7234-59,22 A Correct:. Well, there's cabinets there, too, which my body fell between the cabinet and the heater. 4 Okay. So you look at your hand and it's bleeding. You called who? A The COt;, which at that time I believe it -- I believe it happened around 10:30. I'm not quite sure what time it was. I believe they were changing shifts. It has tote around 10. I Q Okay. 2 A And nobody was on the block. I was 3 yelling. I yelled I seen two custodians coming down the walk. to them yelling, man down -- Q Okay. A -- meaning somebody was hurt. Q Just for the record, CO is a corrections 9 10 11 12 13 14 15 16 17 18 9 25 officer. A Q Oes, What happened next? A I guess, about 15 minutes later, that's when about seven COs showed up at my door asking me what happened. At that time, I had a white sock wrapped around my hand to stop the bleeding. They asked me what happened. I told them I slipped and I fell and my hand went through the window. The one corrections officer asked me -- he said, well, how do we know that's not catsup? 4 Okay. A I took it off and that's when the blood started squinting. About another five minutes after that, they took me down to medical. I went down to medical. I got down to medical. The lady down there, she said, there ain't much she can do. They have to take me to the hospital. 4 Okay. Did they take you to the hospital? 2 A Yes. 3 Q Where did they take you? 4 A I don't remember the name of the hospital. 5 Q I'm going to tell you that the records 6 reflect that it's Centre Community Hospital. Does 7 that sound right? 8 A About right, yes. 9 Q To the emergency room, I assume? 10 A Yes. 11 4 Okay. Do you know who you saw at Community 12 Hospital? 13 A When I first went in, I seen the lady who 14 took my blood pressure and everything like that 15 there. She made me sign some paperwork. I seen a 16 doctor after that. 17 Q Do you know the doctor's name? 18 A I don't recall his name. 19 Q And what did the doctor do for you? 21 on my A e, first, he hand11 hen about 20 minutes after that, I went 92 back to the room. Then he came in and told me that - it's a generator test. It will come on in a few 24 minutes. 21 the doctor came in and me tha I 2 cut an airt ry or something like that inlmy hand t It 3 had like a gash in it. He said he needed to stitch 4 5 that and stitch the rest of my hand. He found glass inside the cut. He said that the one piece he 6 wouldn't be able to get, and that eventually it would 7 break through the skin itself. 8 Q Did it actually come out? 9 A Yes. 10 Q Anything else that was done for you at 11 Community General the day of the accident? 12 A Not that I recall. 13 4 Do you recall what the date of the accident 14 was? 15 A I believe it was in August, sometime around 16 there, I believe. 17 4 It's in the records. I don't even have it 18 handy myself. Well, let's - it shouldn't be too 19 far. I have August 9th, 2001. Does that sound 20 correct to you? 21 A Correct. 22 4 Okay. Nothing further was done for you 23 that evening? 24 A No. 25 Q Okay. And then they brought you back here 24 1 to wrap you? 2 A Correct Yes. 4 the !. A I went right back to my cell. 5 4 Okay. When was the -- orjust describe for me the treatment you received thereafter. A Here at Rockview? 4 Yeah, 0 A The next morning, I had to come down to the medical staff to - so they could clean it and everything like! that there. Then they gave me some gauze patches and tape -- I had a half a cast on at the time with my fingers inverted like that there. I don't know how to explain it MR. GIALLORETO: Indicating, they're, I guess, elevated upwards on maybe a 30-degree angle. THE WITNESS: Yes, about that. MR. GIALLORETO: Maybe 45 degrees. MR. GOODEMOTE: Okay. THE artery or whatever it was. f Then they gave me Motrins for the pain. 13Y MR. GOODEMOTE: 5 3 Did you go back to your cell or were you in 7 8 9 1 11 12 13 14 15 16 17 18 19 10 21 12 ARCHIVE REPORTING SERVICE (7 22 6 7 8 13 14 15 16 17 18 19 I A And then like three days later, I believe t they called me back down again to clean it and I rebandage it. That's about it after that. Q Okay. I take it, eventually, at least, the cut healed? A Yes. Q Okay. Other than the -- and I'm going to get more specific in any problems you might currently be having or that you had thereafter, but let me -- other than the hand, did you receive any other injuries in the fall? A A little back pain, that was about it, but I never really complained about that. Q That resolved itself? A Yes. Q It's not an ongoing problem or anything like that? A No. Q All right. Since the accident and let's talk about -- well, let me ask you this: When did the wound itself heal generally? Just approximate. I know you're not going to be able to give me a day. A Maybe like three months afterwards, the scab and all of that stuff. Q So about three months afterwards, at least the wound itself had resolved? 2 A Yes. 3 Q Okay. During -- from the time that the 4 injury occurred until the wound healed, did you 5 suffer pain in that hand? 6 A What do you mean specifically by pain? 7 Q Well, did it hurt? 8 A Yes, it hurt. I had throbbing pains in it 9 every once in a while. 10 Q Okay. So occasionally you had some 11 throbbing pain? 12 A Yes. 13 Q How often, let's say, in that three-month 14 period would you have had throbbing pain? 15 A Maybe about ten times. 16 Q Okay. Was there any way during that period 17 of time that you could predict it? In other words, 18 was it related to activity or something you do with 19 the hand or did it just sort of start hurting? 20 A At the time, I wasn't allowed to lift any 21 kind of weights or play any type of activities at 22 that time -- Q Okay. A -- because I had that half a cast on and my 25 fingers were in an uoriaht nsitine i 4 So basically, it was unpredictable? 2 A Yes. 3 Q Okay. After the three months was over and 4 the wound was healed and the cast was off and 5 everything, have you had trouble with the hand? 6 A Every once in a while, like, I get a 7 shooting pain and a numbness sensation on the side of 8 my hand here. 9 MR. GIALLORETO: Indicating when you say 10 here, you're talking about the right hand. 11 TIRE WITNESS: By where the scar is. I grab 12 like that and I go like that and I massage it. 13 BY MR. GOODEMOTE: 14 Q You're talking about the area on your hand 15 below your pinky finger? 16 A Yes. 17 MR. GIALLORETO: Alongside the pinky and 18 the palm. 9 THE WITNESS: Right. '0 BY MR. GOODEMOTE: 1 Q And you just described when you get that 2 pain, you sort of massage it yourself? 3 A Yes. 4 Q Does that generally relieve the pain? S A Sometimes, not all the time. I usually 1 have to take aspirins. 2 Q Okay. Does the aspirin relieve the pain? 3 A Not really. 4 Q Dull it? 5 A Yes. 6 Q How often do you get this pain, let's say, 7 as we sit here today? 8 A Just a little while ago before you guys 9 came in, I was sitting here massaging. 10 Q Okay. 11 A And it happens, like, maybe three times a 12 week, if that. 13 Q Okay. Two, three times a week then? 14 A Yes. 16 17 18 ARCHIVE REPORTING SERVICE (717) 234-5922 Q Okay. Are you back to doing your normal activities now? A Like -- Q Well -- A -- softball and stuff like that there? Q Yeah. A Basically, yes, not real often. MR. GIALLORETO: Why don't you explain what your activities are, first of all? MR. GOODEMOTE: Yes. MR_GIALLORETO: Explain what Your I activities are. [a 2 THE WITNESS: Well, we have softball, 1 Q Okay. Were you welding at the time you 31 3 football, power lifting, which is weight lifting and 3 hurt your hand? tennis. 3 A No. BY MR. GOODEMOTE: 4 4 Okay. And I don't mean -- you were in your 6 4 Okay. Do you participate in all of those? 5 cell, obviiously; but I mean, you weren't welding 7 A No. 6 during that period of time? 8 4 Okay. 8 You ould come out and sweep the block at certain 9 A I participate every once in a while in the 10 softball. 9 hours. 11 Q Okay. Is that the only sporting activity 10 Q Okay. And that was yourjob at that time? 12 you participate in here? 11 A Yes. 13 A I play basketball. 13 4 Okay. When did you start doing welding 14 Q Okay. Does the hand bother you when ou 13 following the accident? 15 play softball? y y 14 A Probably six months ago. 16 A Yes. 15 4 Okay. Let's cover that while we're talking 17 Q Okay. Every time or occasionally? 1 16 abot it. SO You started welding a six months 18 A Occasionally. 7 ago• You left your welding job about otne month go, 19 4 Okay. How often do you play softball? 18 correct? 20 Probably not much this time of year. 19 A Yes. 21 A Once a year. 20 4 So about five months you welded? 22 Q Once a year? 21 A Yeas. 23 A Yes, like during the softball season. 22 Q Okay. And is welding something that you 24 4 How often do you play basketball? 23 did prior to being incarcerated? 25 A It's seasonal. Once a year. 24 A Yes;. 25 4 When you were welding here at Rockview, did 4 When you say once a year, though, is it a 30 2 season? 1 you have any trouble with your hand when you tried tot 3 A It's like - 2 do welding? 4 4 How many games do you play in a year? 3 A Yes, I have. 5 A About 12. 4 4 Okay. Why don't you tell me about that? 5 4 Okay. How many basketball games do you 5 A Okay. Now, like you have two types of 7 play in a year? g y 6 welding machine. You have a mig welder and a stick 8 A About 12. It's like a three month 7 welder. Okay. Now, a mig weld works by a handgun, 9 4 Okay, And I think you said it nth period 8 which the wire comes out of. 10 bother you every time you play softball doesn't , just 9 When I squeezed the gun to pull the 11 occasionally? 10 trigger, like, every 20 minutes, I had to stop 12 A Yes. 11 because I had these sharp pains shooting through my 13 Q Same thing with basketball? 12 hand. 14 A Pretty much, yes. 13 4 Okay. Was that every time you did that 15 Q Okay. Are you employed inside the prison? 15 type of welding? 16 A I was. A Yes. 17 Q Okay. What did you used to do? 16 Q So it caused you some difficulty. How long 18 A Welding. 17 would you have to stop? 19 4 Okay. When did you weld here, for what 18 A For about ten minutes and then go back. 20 period? 19 Q And then you could resume? 21 A I just lost my job about a month and a half 20 A Yes, for another 20 minutes or so. 22 ago. 21 Q Sort of like 20 on, 10 off, and then you 4 Okay. So you - so you did do some welding 23 weA okay? ? since the accident? Yes. ,44 25 A Yes. 24 4 Okay. And then you mentioned stick welding 25 is something different? ARCHIVE REPORTING SERVICE (717) 234-5922 1 A Yes. 33 2 Q Does your hand bother you when you stick 2 All you had to do was sweep half of the block. That 3 weld it? was about it. A After holding it, the handle for so long, 3 Q So you didn't have any trouble, but it was that's what happens. 4 only five minutes, five minutes at a time? 8 4 Okay. And how long could you do that type 5 A Yes. 7 of welding before you needed to back off? Q Okay. And did you have --did you do it 8 A About a half hour, 45 minutes, somewhere 7 more than once a day? 9 around there. 8 A Twice a day. 10 q And how long would you have to rest before 9 Q Twice a day. So five minutes each time? 11 you could resume? 10 A Yes. 12 A About ten minutes. 11 Q Okay. Is there anything that we haven't 13 Q Okay. Let me ask you, why did you lose the 1 12 that you can't do or that you think that 3 14 welding job? yolu can'tndo, because obviously your activ ties are 15 A I believe it was a security risk and lack 14 limited here that you used to do because of your 16 of work. Every time my boss came in, he saw me 15 hand? 17 sifting down with my hand and all of that stuff. I'm 17 16 A Some o yes, I believe there is, like, when 18 not quite sure what happened. 19 Q Okay. You mentioned 18 a welder, but it contributes to me working with a mig sec ity risk. 20 that something different about you not havinI 19 gun and stuff like that there. I might lose a job 21 work or -- g enough 20 during the process because of my hand. 22 A I believe it had something to do with the 21 Q Okay. Well, as you sit here now, do you 23 institution -- 22 think you can do that work? Do you think you can do 24 ti Okay. 23 that work but maybe limited effectiveness or you 24 can't do that work at all? 25 A -- where somebody was doing something wron 25 A I don't understand what you mean by that in that ? type of shop or something like that there. 1 Q Well, do you think that you could go back 36 2 Q It had nothing to do with you as far as you 2 and be a welder with your hand the way it is? 3 know? 4 A Correct. 3 A Sure. 5 Q Okay. Before he welding job, what did you 4 Q Okay. So you think you could work through 5 do? What was your job? y 5 it. It just would be post some problems, like you 7 A Laundry worker. 6 described some periodic pain that you would have to 8 Q Okay. And how long did you do the laundry 8 work through? 9 work? 10 9 A About two months before I went into the 9 Q Okay. Other than welding and the types of 11 welding shop. 10 activities, softball, basketball, and things like 12 4 Oka . An 11 that, is thereanything else that you feel that 13 the laundry? y problem with your hands doing 12 you're limited from doing or that would cause you 14 A No. All I was doing was folding sheets. 14 pain because of your hand that we haven't talked 15 Q Okay. What did you do before you were a 15 about? 16 laundry worker? I'm trying to give you the opportunity to 17 A Block worker. 16 tell me all of the things that you think you might 18 Q Okay. And I assume that there was a period 187 not be able to do because of your hand in the future. 19 of time after your hand healed at least, that the 1 1 A Well, it 9 because hat's ad port limit like playing. WhenffI grab 20 wound healed, that you were still a block worker, 21 correct? 20 the ball and I hold it to throw it, it starts to 22 A Yes. 21 hurt. Q Were you able to do that 22 Q Okay. Before you were incarcerated, did ay your hand? type of work with 24 youAplay softball? 25 A It was only five minutes worth of work. On the street, yes. Not for no team or 25 anything like that, just to have fun with. ARCHIVE REPORTING SERVICE (717) 234-59122 I Q Is that something you would want to do when 2 you are released as well? 3 A Sure. Q And again, do you think it's something that you're going to be able to do but you're going to 6 have pain, or do you think it's something you are not 7 going to be able to do at all? $ A I think I can still do it, but I will have 9 the pain. Out there, there's -- you can go see 10 doctors and get the right kind of medications. In 11 here, you can't get nothing. 12 4 Okay. So you feel there might be some type 13 of medication that would help the pain that you're 14 having? 5 A Most likely, yes. 6 MR. GIALLORETO: Off the record a second. 7 Off the record.) 6 MR. GOODEMOTE: Okay. Back on. 9 BY MR. GOODEMOTE: 9 Q Anything else that you feel you might not I be able to do with your hand that we haven't talked ! about? A No. Q Okay. Let me just look over my notes real briefly. I think we're close to being done. Are there any scars? JO 2 A Yes. 1 3 4 Q Okay. Do you want to point them out to me? A It goes like a C so t f 5 r o . It comes like here and goes down like that and all the way around 4 6 7 , and it comes down here and stops about there and 6 6 stops about right there. 6 9 MR. GOODEMOTE: Okay. And let the record reflect that he's pointing to his i h 7 8 10 11 g r t hand. MR. GIALLORETO: It's the area behind l 9 10 12 , guess it would be, the pinky finger and the ring finger. 13 14 THE WITNESS: Yeah. 12 13 15 MR. GIALLORETO: And the scar extends maybe from, say, the middle of th i 1 4 16 e r ng finger to the end of the pinky, which is a distance of what? 15 17 18 MR. GOODEMOTE: Inch and a half. MR. GIALLORETO: Inch and a h lf 6 117 9 1 10 a . And then it comes back up like the letter C. Does it come up to here? 18 19 THE WITNESS: It stops about here. That's where the glass came out. MR. GIALLORETO: All right. 24 BY MR. GOODEMOTE: 25 Q Are you self conscious about the scar at ARCHIVE REPORTING SERVICE (717) 234-5922 1 all? 2 A Not really. 3 Q Okay. 4 A When I look at it, it makes me mad. 5 Q You sort of remember what happened? 6 A Yes. 7 Q And it makes you angry? 8 A Yes. 9 Q Okay. There were no fractures or anything 10 like that in the hand; is that correct? 11 A I'm not quite sure. They took x-rays. 1 12 can't look at the x-rays to find that out. 13 Q You weren't told that you had a fractured 14 hand by anyone? 15 A No. 16 MR. GOODEMOTE: Okay. That's all I have. 17 Thanks. 18 MR. GIALLORETO: I have a couple questions. 9 MR. GOODEMOTE: Sure. EXAMINATION BY MR. GIALLORETO: Q Are you right handed or left handed? A I'm right handed. Q What is your height and weight? 2 A 200 pounds, 6'1". 3 Q All right. The chair that was in there, was that your own personal chair? A No. Q Who owns the chair? A The ;state. Q Did it have any rubber soles on the bottom of the chair? Was there four legs to the chair? A Yes. Q Was there any rubber soles on each of the four legs? A No. Q Did anyone ever come to your cell, any correctional guards, to inspect the chairs? A No. Q Anyone come to offer to repair it? A No. Q Is the chair the only access you have to access the top bunk? A Yes. Q Do the beds themselves have any ladders welded on them? A No. Q Is therea ladder provided in the cell 1 2 3 9 10 11 12 13 14 16 16 17 18 19 i 7 2 3 5 6 7 9 10 11 12 16 17 18 19 20 21 22 4 5 separately? A No. Q When you were work- were you welding? ng as a welder, what A Ladders. 4 For what? A For beds. 4 When did you start doing that? A About maybe three months ago, four months ago, somewhere around there. I'm not quite sure when it was. Q Are they being used? A They are now, yes. 4 Where are they being used? A On D block, they call it, the east wing; and A block is west wing. We brought a lot of those into there. Q When you went into the hospital that night, did you have stitches? A Yes. Q Part of Your you have a tendon repair. IC What do you recall, if anything, about the tendons? A Before he sewed the outside of my hand, I believe, it was four stitches on the inside and rh.? he stitched the outside. Q Okay. When they stitched the -- when they took the stitches out, did they ever take out the inner set of stitches? A No. They said they would evaporate. Q Do you currently use anything to maintain the strength in your right hand? A Yes, a tennis ball. Q What do you do with the tennis ball? A Every once in a while, I squeeze it to stop the numbness sensation in my hand. MR. GIALLORETO: Okay. That's all. MR. GOODEMOTE: A couple follow-ups. EXAMINATION BY MR. GOODEMOTE: Q The chair -- well, let me strike that. How many chairs were in the cell that you were in at the time of the accident? A Just one chair. Q Just one chair? A Yes. Q Okay. Do you know what was on the bottoms of the legs of the chair? I mean was it wood to 42 1 floor? vvere there metal -- sometimes you see the 2 metal -- 3 A Wood to floor. 143 Q Wood to floor? 5 A Yes. 6 Q Okay. Wooden leg is what was on the floor 7 surface? 8 A What do you mean by that? 9 4 Wood to floor? 10 A Yes. 11 4 Okay. We covered that, I guess. Is there 12 currently a ladder in your cell now? 13 A Yes. 14 Q Okay. You have the top bunk or the bottom 15 bunk? 16 A Top bunk. 17 Q Okay. And you use the ladder to get into 1B the bunk? 19 A Yes. I have a bar to grab onto now. 20 Q Okay. There's a bar on the ladder? 21 A No, the bar is like welded on the side of 22 the bed now so if you go to roll, you won't roll off 23 the bed. You can grab that and put your hand on the 14 ladder and climb up. 25 Q Okay. Do you ever use a chair to get in 4 5 7 8 9 10 t1 12 13 14 15 16 17 18 19 20 11 22 23 24 25 the top bunk now? A No. MR. GOODEMOTE: Okay. That's it. MR. GIALLORETO: Nothing further. MR. GOODEMOTE: You're done. (The deposition concluded at 2:00 p.m.) ARCHIVE REPORTING SERVICE (7 2 I COUNTY OF DAUPHIN COMMONWEALTH OF PENNSYLVANIA 2 3 I, Hillary M. Hazlett, a Reporter-Note 4 Public ry authorized to administer oaths within and for the Commonwealth Of Pennsylvania and take depositions S In the trial of ..uses, do hereby certify that the 7 foregoing is the testimony of 9 CHARLES WILLIAM BAUM. 9 I further certify that before the taking of 10 said d0POSltiOn, the witness was duly sworn; that the t questions and ...were were taken down 2 stenographically by the said reporter, Hillary M. 3 Hazlett, a Reporter-Notary Public, approved and 4 agreed to, and afterwards reduced to typewriting S under the direction of the said Reports, 17 9 My commis September accurately in the notes In Tnd that this copy is Hillary M. Hazle#, Notary Public City Of Harrisburg, Dauphin County My Calnnwssiori Expires Sept 29.2007 ARCHIVE REPORTING SERVICE (717) 234-5922 I further certify that the proceedings and 9 [3] 10:3 10:4 10:10 [1]7:3 88 9th 1118:11 [1123:19 8:11 A 0 Able 10 1 1 1312:10 19:419:5 12120:25 32:21 10:30 [1] 20:23 12 [3] 7:3 30:5 30:8 15 [1] 21:11 1848 [1] 6:12 9 [1] 2:10 19th 5:11 :08 2 ] 22:21 32:10 32:20 :21 0 40:2 [2001 5:11 23:19 04 1:11 45:21 07 [i1 45:24 24 [11 1:11 26 (1] 1:13 129 [11 45:24 2:00 k4346 4420 (118:3 45 [2124:19 33: 5 5'9 [71 14:23 6 V r 40:2 6th ?11] 45:21 [81 4:19 23:6 25:22 34- 23 36:17 37:5 37:7 37: 21 Access [3] 12:25 40:19 40:20 Accident [8112:17 13:4 23:1123: 13 25:19 70:24 31:13 42:20 Accommodate 1114:15 According (1111:21 Account (1113:23 Accounting [1110:20 Accurately [1]45:17 jAct!on (21 1:3 3:16 Activities [8126:2128:16 28:23 29:135:13 36:10 Activity [2126:18 29:11 Address (315:25 6:10 8:3 Administer it] 45:4 Afterwards 13125:23 25:25 46:14 Ago [7128:8 30:22 31:14 31: 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Cosmetics [2117:517:11 Counsel [ [113:3 COUNTY 1 [211:145:1 2 Couple 2 (2139:18 42:13 3 Courses [1110:16 I3] [111:1 Cover [1131:15 Covered [1143:11 Covers [1120:11 Credits [1110:15 CUMBERLAND 11]1:1 Custodians [1121:3 Cut [3123:2 23:5 25:5 D [113:14 DANIEL [111:20 Date 1511:1110:9 11:16 11: 18 23:13 Daughter [117:3 DAUPHIN [1145:1 Days 1219:25 25:1 December [115:10 DEFENDANT [311:51:81:21 Degrees [1124:19 Demonstration 11319:15 Department 1211:43:16 DEPONENT (112:3 Deposition [6]1:72:93:1544:645: 10 45:18 Depositions [1145:5 Describe [4116:22 17:3 19:9 24:6 Described (6113:1815:717:18 27: 2136:6 Different [3113:6 32:25 33:20 Difficulty 11132:16 Direction [1145:15 Distance 12119:19 38:16 Doctor 13122:16 22:19 23:1 Doctor's [1122:17 Doctors (1137:10 Done [41 23:10 23:22 37:25 44:5 Door 12116:10 21:12 Doorway 1116:10 Down 1713:24 3:25 4:2312: 3 20:15 21:3 21:4 21: 2 21:22 21:23 21:23 4:10 25:2 33:17 38:5 8:6 45:11 Draw 16:3 18:20 18:24 ARCHIVE REPORTING SERVICE 234-5922 Dropped [1] 7:20 Dull [1] 28:4 Duly 3:9 45:10 scan LA 6:16:16:2 6:4 6:1 During [7] 7:18 12:22 26:3 26 16 29:23 31:6 35:20 E [3] 9:12 9:13 9:22 Easier [1] 3:21 East 1216:12 41:15 Education [217:6 10:12 Effectiveness [1] 35:23 EGBERT [111:17 Eight 1119:23 Electric (118:7 Elevated [1] 24:17 Emergency 1122:9 Employed 1130:15 End 1138:15 [211:17 1:20 Evaporate r1142:5 ming 13:23 eventually (2] 23:6 25:4 Evidence [1145:17 EXAMINATION [412:2 3:1139:2142:15 Except [119:3 Exhibit [312:9 16:5 19:5 EXHIBITS [112:8 Expected [1111:16 [4115:4 24:15 28:22 28: 25 Explained [113:19 1 (1138:14 Extension [1116:18 [115:14 -'pled 1:5 11:8 13111:20 20:15 25:11 Falling Far 14118:1419:20 23:19 34:2 FEBRUARY [111:11 Feet [2114:10 20:9 1 Fell [12112:814-414-1416- 2 : 18:16 19:9 20:2 20:7 20:8 20:12 20:18 21:16 Fence 1318:17 9:12 9:13 Fences 1319:9 9:20 9:20 Few [313:18 3:20 22:23 Filed [2] 3:16 11:22 Final [114:18 Finger (4]27:15 38:1138:12 38:15 Fingers [2]24:14 26:25 Finish [214:20 7:19 First 1713:22 5:5 11:418:17 22:13 22:20 28:23 Five (6) 21:21 31:20 3425 35:4 35:4 35:9 Flat [1113:20 Flesh 11117:9 Floor [8113:20 18:12 20:15 43:143:3 43:4 43;6 43; 9 Folding [1134:14 Follow (1142:13 Follow-ups [1]42:13 Following [1] 31:13 Follows [113:9 Foot 110114:10 14:11 14:12 14:13 14:17 14:24 15:8 15:915:1219:21 Football [1129:3 Foregoing [1] 45:7 Form [113:5 Four 11115:4 5:17 6:3 12:18 12:19 12:22 13:7 40;9 40:12 41:9 41:25 Fractured 11139:13 Fractures [1] 39:9 1 Fully [1146:17 ; Fun 1 11136:25 Future 2 [1136:17 23 [131:17 Games [2130:4 30:6 [7] 23:3 Gates 1219:10 9:20 Gauze [1124:13 GED 13110:13 11:4 11:14 General [211'19 23:11 Generally [3110:20 25:21 27:24 Generator [1122:23 Gesture 1113:25 Glalloreto 13011:17 2:6 5:21 7:18 8:25 11:6 11:10 14:21 15:5 15:23 16:14 17:14 19:1 19:19 19:23 24:16 24:19 27:9 27:17 28:22 28:25 37:16 38:10 38: 14 38:18 38:23 39:18 39:23 42:12 44:4 Glass 12123:4 38:22 Goodemote [3711:20 2:5 3:13 3:14 5:22 7:219:2 9:5 11:12 15:3 15:6 15:25 16:16 16:21 17:1617:1719:2 19:7 19:22 20:6 24:20 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(517:5 7:7 9:25 10:6 14: 20 Hill 1315:14 5:16 5:19 Hillary 1611:9 3:23 19:3 45:3 45:12 45:23 Hillary's [114:22 Hit (1120:12 Hold 12119:23 36:20 Holding [1] 33:4 Home [218:6 36:17 Hooks [2] 17:3 17:6 Hospital 16121:26 22:122:4 22.- 6 22:12 41:18 Hour [7] 33:8 Hours [1131:9 Hurt [6121:6 26:7 26:8 31:2 36:21 Hurting [i] 26:19 [1119:6 Important [1118:23 Incarcerated (6) 5:6 515 7:23 8:13 31:23 36:22 Inch [2138:17 38:18 Inches 111117:25 Indicate (1141:21 Information [1112:14 Injuries 11125:11 Injury (1126:4 Inner [1142:4 Inside (3123:5 30:15 41:25 Inspect [1140:15 Installed 1219:9 9:19 Institution (211:12 33:23 Instruction [114:18 Instructions [213:18 3:20 Intentionally [114:7 Inverted [1124:14 Involve 12110:19 10:20 Involved [1] 4:7 Ironworks [7] 8:17 Itself [4]23:7 25:14 25:2126 [817:22 30:2131:10 31: 17 33:14 34:5 34:6 35: 19 Jr [1] 7:1 K [417:9 7:10 7:14 8:23 Kind [1] 9:19 Laborer (218:6 9:9 Lack (1133:15 Ladder [6112:3 40:25 43:12 43- 17 43:20 43:24 Ladders 12140:2241:5 Lady [2]21:23 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3:14 1419:20 16:23 43:143:2 Mid-'90s [1] 6:8 Idle ,6:15 IJI 32:6 32:7 35:18 Might 15125:8 35:19 36:16 37: 12 37:20 Minutes [13121:1121:2122:21 22:24 32:10 32:18 32: 20 33:8 33:12 34:25 35: 4 35:4 35:9 15112:10 15:21 17:25 18:3 20:4 [615:6 5:6 11:130:8 30: 2131.17 11415:17 12:18 12:19 12:22 13:7 25:23 25:25 27:3 31:14 31:16 31:20 34:10 41:9 41:9 Morning [1124:10 [7] 37:15 Mostly [114:21 Mother [216:6 6:18 Motrins [1124:22 N Name '-' 3:14 4:25 7:25 22:4 7 22:18 nes (1] 6:25 Need [313:22 4:12 4:13 Needed (2123:3 33:7 Never [1] 25:13 Next 1314:19 21:10 24:10 Night [1141:18 Ninth [117:16 Nobody [1121:2 Normal [1128:15 Northeast 1418:17 8:19 8:24 9:1 Northeastern [118:20 Notary [2] 110 45:23 Notes (2137:24 45:17 Nothing [4123:22 34:2 37:11 M: 4 Numbness [ZJ 27:7 42:11 O Oakdale 1:12 1s 45:4 11111:13 Obviously 13111:19 31:5 35:1 Occasionally [4126:10 29:17 29:1 30:11 Occurred 12112:17 26:4 Offer (1140:17 OFFICE [111:19 Officer [2121:8 21:17 Often [5] 26:13 28:6 28:21 19 29:24 Old [11 7:2 Once 11114:18 19:9 26:9 27 6 29:9 29:2129:22 29: 25 30:136:7 42:10 One 11516:10 13:15 13:17 13:19 14:9 14:11 14:1 14:17 17:6 17:7 21:16 23:5 31:17 42:2142:22 Ongoing [1] 25:16 Opportunity 11136:15 Orens [417:24 8:2 8:5 8:15 Outside 12141:24 42:1 Overview (117:4 Own t2] 11:25 40:4 Owns (1140:6 [111:11 PAGE 1112:3 Pain (16124:23 25:12 26:5 26:6 26:1126:14 27:7 27:22 27:24 28:2 28:6 36:6 36:13 37:6 37:9 37:13 Pains t2] 26:8 32:11 Palm [1]27:18 Paperwork (1122:15 Parole 11111:17 Part (218:26 41:21 Participate 13129:6 29:9 29:12 Particular [1112:17 Parties [113:3 Passed [1111:6 Patches 11124:13 PC [111:17 Penitentiary [115:2 Pennsylvania [8] 1:2 14 1:13 3:16 8: 19 8:20 45:145:5 People Quickly [1112:13 Quite 1618:1 11:18 20:28 33: 18 39:1141:10 Ring [31 (2138:1138:15 Sig Risk [7] [2133:15 33:19 Sig 110112:9 15:20 16:2 16: 4 16:19 16:22 17:19 17: 20 17:24 20:3 Radiator [2120:10 20:15 Rays [1139:11 Reading [11 3:3 Real 12128:2137:24 Really (4) 10:8 25:13 28:3 39:2 Reason [2113:17 13:25 Rebandage [1126:3 Receive [1125:10 Received [1124:7 Record [8] 14:16 14:21 18:17 19:3 21:7 37:16 37:17 38:8 Records [3122:5 23:17 41:21 Reduced [1145:14 Reflect (2122:6 38:9 Region [i] 9:16 Related [1] 26:18 Relation 11118:21 Release 11111:16 Released [1] 37:2 Relieve 12127:24211:2 Remember 13115:18 22:4 39:5 Remodeling 118:7 Repair 2]40:17 41:22 Rephrase ] 4:5 Spotter 1:9 45:12 45:15 45: eporter-Notary ] 45:3 45:13 Seemed [ 3:6 side 5:1 5:12 5:18 6:2 6: S :166:17 [2] solved S 25:14 26:1 11 spective S 3:3 (4) St 11 23:4 33:10 S ume t2] 72:19 33:11 Si -MENNEENEN ARCHIVE REPORTING SERVICE (717) 234 .5922 [6126:14 26:16 30:8 30: 20 31:6 34:18 Periodic 8 11] 36:6 Personal (1140:4 Philadelphia [715:24 6:13 7:12 8:25 9:19:3 9:16 Picture [2116:2 19:8 Piece [1] 23:5 Pinky 9: [4127:15 27:17 38:11 38:16 PLACE [111:12 PLAINTIFF [211:1 1:18 Play (9126:2129:13 29:15 29:19 29:24 30:4 30:7 30:10 36:23 Playing [2136:18 36:19 PLEAS [1] 1:1 PM 11144:6 Point [2117:23 38:3 Pointing [1138:9 Points 14111:5 11:7 11:9 11:10 Pole (1120:11 Position 11126:25 Post (1136:5 Pounds [1140:2 Power [1129:3 Predict (11 26:17 Pressure 11] 22:14 Pretty [1130:14 Previous [118:15 Prison [1130:15 [ Problem t2] 25:16 34:12 [ Problems [2]25:8 36:5 (1 Proceedings R 11146:16 [4 Process 23 [1135:20 R Provided 12 [1140:25 R Public [1] 14 1:10 45:4 45:13 45: Re 23 171 Pull 46 [1] 32:9 Re Pulled [2) 12115:19 18:6 Re Purposes Ill [7] 19:15 Re Put [2] 16114:2314:2416:10 Res 17:5 18:24 43:23 3 2 2 ] t2] 1118:7 -J- Sink Rockview [1] 16:13 [4] 1:12 5:2 24:8 31:25 sit Roll [2143:22 43:22 13113:20 28:7 35:21 Room Sifting (2) 22:9 22:22 Of 28:9 33:17 ROUTE Six [1] 1:13 (2131:14 31:16 ROWAN Skids 1111:17 [1] 20:7 Skin Rubber 23:7 [2140:8 40:11 Slid Run 13110 21 1711 14:5 14: ] : 10:22 18:7 14 15:1 111 11 (3118:722:11 33:16 Scab [1] 25:24 Scar [3127:1138:14 38:25 Scars 11] 38:1 School [4] 7:5 7:7 9:25 10:7 Sealing (113:4 Season 12129:23 30:2 Seasonal [1129:25 Second (1137:16 Security [2133:15 33:19 See [3111:17 37:9 43:1 Self (1138:25 Sensation 12127:7 42:11 Sent [1122:20 Separately 11] 41:1 September [1145:24 Set (1142:4 Seven [219:7 21:12 Sewed [1141:24 Sharp [1] 32:11 Sheet [118:7 Sheets [1134:14 Shelf [31 17:5 17:6 17:12 Shifts 1120:25 Shooting [2] 27:7 32:11 hop 34:1 34:11 horter 113:19 how ] 14:1514:1819:919: howed 15:721;12 de 20:3 27:7 43:21 n 22:15 ning 18:12 Slide [1113:25 Slip [1118:9 Slipped [2120:121:15 Small 13110:18 19:1 19:2 Smaller (1113:15 Sock [1121:13 Softball 110128:19 29:2 29:10 29:15 29:19 29:23 30: 10 36:10 36:18 36:23 ]Soles 12140:8 40:11 Sometime [21 11:17 23:15 Sometimes [3]4:6 27:25 43:1 Somewhere 13110:8 33:8 41:10 Son (117:3 Sort [5126:19 27:22 32:21 38:4 39:5 Sound [2122:7 23:19 Specffic 13110:17 11:24 26:8 Specifically [1126:6 Spell [2] 7:25 8:1 Sport [1136:19 Sporting [1129:11 Square 11116:8 Squeeze [1142:10 Squeezed (1132:9 Squirting [1121:21 Sr 1311:7 2:4 3:8 SS (1145:1 Staff [1124:11 Start 1514:2113:2426:19 31: 12 41:8 Started [4] 10:25 15:14 21:21 31:16 Starts [1136:20 State 1311:12 5:2 40:7 Stenographically (1) 45:12 [2]6:6 6:18 Stepping [2114:17 15:9 7:11 32:6 32:24 33 Still [3] 20:9 34:20 37:8 Stipulated [113:2 (113:1 Stitch 12123:3 23:4 Stitched 12142:142:2 (4141:19 41:25 42:3 42: 4 [4121:14 32:10 32:17 42:10 Stops [3138:6 38:7 38:21 Street [7] 6:16:26:56:116: 12 8:4 36:24 Strength [7142:7 Strike [1142:18 [1] 11:13 Stuff 14126:24 28:19 33:17 Subscribed [1] 45:21 Suffer 11126:5 face 0:7 [2131:8 35:1 Sworn 1213:9 45:10 [1] 1422 Tape [1] 2413 Team [113624 Ten [41 616 26:15 32:18 33: 12 Tendon [7] 41:23 Tennis [3129:4 42:8 42:9 Tenth 1917:6 7:7 7:16 7:17 7: 18 7:19 7:20 10:6 10:12 Test [1122:23 [1] 3:9 Testimony [2]45:7 45:20 Themselves [7] 40:22 Thereafter 24:7 25:9 d f - .15:71 Three-month [2126:13 30:8 Throbbing [3126:8 26:1126:14 Throw [1136:20 Tin 13116:24 16:25 20:1 Today [1128:7 Toilet (1116:13 Took 16111:5 21:20 21:22 14 39:1142:3 Top 112112:8 12:20 12:23 12:24 12:25 13:7 14:2 17:5 40:204314431 44:1 Towards (2117:19 20:2 Town [118:22 Transcript [1145:19 Treatment (1] 24:7 Trial (2) 3:6 45:6 Tried [31 12:9 20:3 32:1 Trigger [1] 32:10 Trip [114:7 Trouble [3] 27:5 32:136:3 Truth [1110:8 Try [3112,12 15:3 15:20 Trying (2118:2136:15 Twice [2135:8 35:9 Two [11]6:24 8:9 11:5 11:6 11:8 11:10 14:10 21:3 28:13 32:5 34:10 Type [71 10:16 26:2132:14 33:6 34:1 34:23 37:12 Types [2132:5 36:9 Typewriting [1146:14 [1145:15 Underneath [1117:6 Understandable [119:4 Unpredictable [1127:1 Up 11718:13 12:6 14:2 14: 13 14:15 14:17 14:25 15:9 15:11 15:12 17:9 19:13 20:121:12 38:19 38:19 43:24 16:19 24:17 V VS (111:3 [1] 3:4 1 Walk 11121:3 Wall [4112:8 15:20 16:18 17: 9 Walnut 22: [118:3 Week [2]28:12 28:13 Weight 2 [2129:3 40:1 6 Weights [1126:21 Weld 13130:19 32:7 33:3 Welded [3] 31:20 40:23 43:21 Welder [5]32:6 32:7 35:18 36: 2 41:3 Welding 12019:10 30:18 30:23 311 31:531:1231:16 31:17 31:22 31:25 32:2 32:6 32:14 32:24 33:7 33:14 34:5 34:1136:9 41:4 West [1141:16 Whereof [1145:20 White [1121:13 Whole 1214:22 4:23 WILLIAM 1311:7 3:8 45:8 Window [14112:11 15:22 16:17 16:20 18:1 18:4 18:16 18:18 19:16 19:18 20:5 20:8 20:13 21:16 Wing [2] 41:15 41:16 Wire [71 32:8 Witness [1813:9 7:20 9:4 11:8 11:1114:23 15:2416- 1719:2119:25 24:18 24:2127:1127:19 29:2 38:13 38:2145:10 Wobble [2113:2415:14 Wobbled [1114:5 Wobbles 11116:1 Wobbly 15112:7 13:1113:13 13: 19 14:3 Wood [4]42:25 43:3 43:4 43:9 Wooden (219:19 43:6 Words 12111:25 26:17 Worker [5131:7 34:7 34:16 34: 17 34:20 Works [1] 32:7 Worth (1134:25 Wound [5] 25.2126:126:4 27: Wrap [1124:1 Wrapped [1] 21:14 Write 11116:8 X X-rays 13122:20 39:11 39:12 Year 11015:7 10:6 11:4 29: 20 29:21 29:22 29:25 ;10:1 30:4 30:7 Years [716:4 6:3 6:16 8:118: 10 9:7 9:23 Yelled (1) 21:4 Yelling [2121:3 21:4 Yourself [2120:14 27:22 ARCHIVE REPORTING SERVICE (717) 234.5922 :??? 545 A2d 981 (Cite as: 118 Pa.Cmwlth. 516, 545 A,2d 981) H Commonwealth Court of Pennsylvania. Jay GALLAGHER, Appellant, COMMONWEALTH ofP OF CORRECTION,ennrylvama BUREAU Commissioner, Bureau of Corr Ron, Jeffes, ection ct al., Appellees. Argued April 20, 1988. Decided August 12, 1988. Prisoner sued state for damages from severed finger. The Court of Common Pleas, Centre County, Charles C. Brown, Jr., J., granted summary judgment in favor of state. The Commonwealth Court No. 60 T.D. fa 1987, ll all Barry. J., held that: (1) Prisoner's claim did not within real Property exception to sovereign immunity, and (2) prisoner's claim did not fall within Personal Property exception to sovereign immunity. Affirmed. Doyle, J., dissented and filed opinion in which McGinley, j., joined. West Headnotes W States X191.7 360kl91.7 Most f It Cm (Formerly 360k191(1.15)) Exceptions to rules of sovereign immunity must be strictly construed and narrowly interpreted 42 Pa-C.5 A 4 8522(b)t4r L21 States X112.2(1) 360k112 2L Most 't Qws State can be liable for dangerous condition of real estate. 42 Pa C S A 8 8522(b)(e L31 States X112.1(1) 360k_ 1121(1) Most Cited Cases Actions of third party need not involve criminal conduct in order to preclude imposing liability on the state or its local agencies for the acts of third parties 8r under the Tort Claims Act. 42 Pam W States 4CZz:P'112.2(2) 360k112 2(2) Most Cited Cases Page 1 Real property exception to state's sovereign immunity did not apply to claim of prisoner whose finger was severed by door hinge as he climbed cell bars which Provided only means of access to top bunk. 42 Pa.C A. & F522. 2 IN States 4C??112.2(2) 360k_ 1_ 1_ 2 2(2) Mocr itW ra Even though cell bars on which injured innate climbed and hinged door which cell severing injured imnate's finger rye closed Property, exception to were fixtures of state state sovereign immunity for damages caused by dangerous condition of state owned real estate did not apply. 42 Paa C 8 22 4 . L1 States x'112.2(2) 360k112 2t2i N[ost Cases Personal Property exception to state's sovereign immunity did not allow state's liability for damages despite Prisoner's claim that because he was in custody and conItW of state he was personal propert y of state. 42 Pa c.s.A s 8522(6)(3). •'982 "517 Jeffrey W. appellant Stover, State College, for Gregory R. Neulauser, Deputy Ally. Gen Office of Any. Gen., Harrisburg, for appellees. Before CRAIG, CRUNMISH, Jr., President Judge, and M ,HAIL DOYLE, BARRY, McGINI EY and SMITH, JJ. OPINION BARRY, Judge. Jay Gallagher appeals from an order of the Court of Common Pleas of Centre County which granted a granted motion for summary judgment filed the Commonwealth's Bureau of Correction and the State Correctional Instillion at Rockview (SCIR) and dismissed appellant's complaint. Appellant is incarcerated at the SCIR At the time in question, he The shared a cell with another inmate. cell had bunk beds, appellant occupying the upper "518 bunk. 13ecause no ladder is in the cell, Copr. ® West 2001 No Claim to Orig. U.S. Govt. Work 545 A.2d 981 (Cite as: 118 PaCmwlth. 516, 545 A.2d 981) appellant could reach the upper bunk only by using the cell bars to climb to the upper bunk. Appellant was using the cell bars to get out of his bunk when his cellmate closed the cell door, severing appellam's left ring finger. Appellant filed a complaint alleging negligence on the part of the defendants. The defendants filed a motion for summary judgment, alleging under 42 PaC S & 8522^,1 immunity ----_?. The trial court granted the motion and dismissed the complaint. followed. This appeal Appellant makes three allegations of error. He first argues that this case falls within the real property exception contained in 42 PaC S 6 8522(biQ. He also argues that the case falls within the personal Property exception of 42 PaC S & 8522(b)(3). Finally, he argues that the trial court erred in summary judgment because it was the cellma? who put the door in motion We affirm We shall consider the first and together. 42 Pa.C & 8522 third argmnent sovereign immunity for a c---- j?? op ?? waives dangerous condition of Commonwes ca ealth agency real estate including Commonwealth owned real Property...." A number of at cases establish that this section is inapplicable to this case. Ll1 The exceptions to the rules of immunity must be strictly construed and narrowly interpreted. Mascara v. Youth Study Center Sld 1 9 351 523 1987 reversing 89 on KL 1118 Pa Commwealt A2d 786 (1985). 388 492 In that case severely injured ' the plaintiffs third were by the criminal acts of a third who had escaped from the defendant's detentiParonty facility. The Plaintiffs alleged that the real property exception applied because defective locks at the detention facility had allowed the third party to escape. The trial court granted judgment on the Pleadings in favor of the defendant; we reversed and remanded for trial. In reversing our decision, the 519 Supreme Court stated, "[rlhe real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itse j causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute's scope of liability." 514 Pa. at 363. 523 2d at 1124 (emphasis in original) Since the alleged defect in the real property involved in Mascaro, the locks at the detention facility , did not cause the injury complained of the **983 Supreme Court reversed. Appellant argues that this case is controlled by Page 2 Mister Commonwealth 46 Pa .Co onj alth C .267 408 A 2d 159 (19791 InMiste and not by mm Mascaro. ck4 we held that the Commonwealth could h could be liable for injuries caused when unknown individuals thew rocks from an overpass onto cars travelling upon a Commonwealth owned highway. Because sucfi rock throwing incidents had occurred n the past, we held that a jury could find that since there was no ]protection from rock throwers, this was a "dangerous condition" of the Commonwealth highway. However, because of Mascaro and cases that followed 1t, we have expressed real doubts about the validity of Mistecka Ri Pa.Commnnwe v Fo el 108 - 1? ih Ct 296 529 a 2d 60 1987). In Johnson V. Southeastern Tr Pennlvania ans rtation Authority 516 Pa 312 532 A 2d 409 11M, the court held that the r did not eal property exception apply where the plaintiff was beaten inside a SEPTA facility which was a known haven for criminal activity. In Chevalier v. Phlladhelelhia 516 Pa 316 532 2t--- g j j O 1 82 the court d that the exception ? where plaintiff, was nutS8be in a d in did not apply where the which was municipal parking lot Poorly lighted. The court stated: In Mascaro, we held that the Tort Claims Act ... clearly precludes the imposition of liability of the Commonwealth or its local agencies for the acts of third Parties, and the Legislature has "520 not seen fit to waive inuounity for such actors or their acts in any ofthe eight exceptions. Since (plaintiff s] injuries were caused by the criminal acts of a third party, the City is insulated from all liability for the harm caused by such a party. 516 Plat 319. 532 A at 413 (emphasis in original). Be216e the rock throwing in AfIstecka is akin to criminal conduct mentioned in Mascara and its progeny, we doubt the case would be decided the same way today. L21 Appellant argues, however, that none of these cases are apphcabk because each of them involves an exception to local government immunity, as set 8542 rather than sovereig n hile the Commonwealth can be S' 6 RUM gerous condition of real estate, waives immunity for local governmental units with regard to the "care, custody and control of real property...." Id. In Gratlu W ?nsin 107 P Ct. 46_ I_ SZg p td 103__ 2 (1987) we noted the drfferences betwetm the two and stated: waivers of immunity It seems to us that the concept of a dangerous Copr. ® West 2001 No Claim to Orig. U.S. Govt. Works 545 A2d 981 (Cite as: 118 PaCmwlth. 516, 545 A2d 981) condition of real estate may more easily be said to include acts of third Parties than can the Concept of damage caused by the ?> custody or control of the real property Tho on the latter seems to focus actual defects of the real estate more any 'dangerous condition' which may be itself, caused not o third parties. Id at 468 528 A 2d at 1035, decisi which followed However' in a Co o On n whit Gratkie involving equivocation in a ?on?' we stated without criminal conduct evol?g injuries caused b [Mascara. Chevalier and Johnson address ugh governmental the asonin oftmn unity of local agencies, the IM decisions reasoning mandates the same conclusion wi respect tot a wider [•52142 ftg S S 85221." Moore v Commomvea(th 114 Pa Co - 538 A2d 111 113 (1988). mmn 56 121 Appellant aptly notes that all of the aforementioned cases involve criminal conduct and no criminal conduct is involved in the present case, While that is true, we believe that McCloskev Abiaetoa shoot District 115 P MLki Ct 99, 539 A 2d 946 (1988)on remand 517 Pa 347, 337 A2d 329 (1988), reversing, cal th Q 110 515 A2d 642 (1986 is vo- > a student was injured when he fell from a set of gymnastic rings The mina filed suit and the trial court granted the school district's motion for summary judgment on immunity. We reversed the basis of and remanded to the trial rings were ourt for a determination of **984 whether th c Property. Thfixtures reand me therefore part of the e real and remanded for Court voted our order Massaro. reconsideration in light of Upon reconssidem ation ideration following the e up_ rem Courts remand order, we quoted xtensively from Mascara and then stated, 'Because ... the injury to Mr. result McCloskey was the of his own action, we are therefore constrained to vacate our prior order and affirm the ummary judgment order entered by the trial s COUrt.- 11 at 948 M? ommonwealth C< at - 539 A.2 of a third y thus shows that criminal actions into play. Party are not necessary to bring Massaro 10 We must admit that appellant's argument has a In all of the aforecited cases, the injuries appeal. were the real not caused by any inherent defects in Appellant re but were only facilitated thereby. urges us to view the cell bars with the hinged door as the only means of access to the top Copr. C West 2001 No Claim to Orig. US. Govt. Works page 3 bunk. Those cell bars are clearly fixtures and hence Part of the real that we Property. Appellant asks also view those bars as a def *hinged doo where individuals ladder., i ective .e. the 522 when put their handthe s severed usingI fin bars as a ladder, actually case is unique from gars appellant posits that his consideringof the other cited uses. Nonetheless, any mandate to strictlyy Co the Supreme Court's nstrue and the waivers of immuni mnrow1y interpret conclude that this case immunity ' we are constrained to Property exception. does not fall within the real MW As to appellant's argument that the Commonwealth judgment because r entitled to summary the cell mate put the door into motion, we again must cited above stand for thegy Proposition that t the cases third Parties have no actions of defendants. bung on the liability of the governmental governmental defendants' The question of the solely on whether an nnmunity 's decided applicable. As any waivers of immunity are Property exce, on have decided that the teal appellant's ar 'Pti is not applicable here, gu:u lent is meniUess. Appellant's final argument coaceming the Property exception of Section 8322(b)(3PrrConuyK finally be answered That ?Section waives ty for damages caused by "[t]he care, custody or control of personal property in the ession or control of Commonwealth parties including Commonwealth personal pro Appellant argues that he was in the custody and control of the Commonwealth by virtue of his status as a Prisoner, thereby making himself the Personal Property of the Commonwealth. This argument of hand. makes no sense to us and we reject it out ORDER NOW, August 12, 1988, the order of the Court of Common n Pleas of Centre County, at Cyyt Ammon No. dated May 26, 1987, is affirmed. DOYLE, Judge, dissenting. g wed ully dissent The majority concedes, and I certaudy agree, that the cell door is real whether.thTherefore > the question we must decide is within the . door constituted a dangerous condition intendment of &ction 8522 )(4) of the 545 A2d 981 (Cite as: 118 Pa,Cmwlth. 516, 545 A.2d 981) Judicial Code, 42 P . S 8522(b)(4). While the door, in and of itself, may not have been defective, its Placement next to the bunk in light of the custom to utilize the door to gain access to the top bunk and in light of the total absence of any other means of access to that bunk indicates to me a design defect in the real prorty as a dance which a jury could reasonably view gerous condition. While Mascara v. Youth Stu Center 514 Pa. 351 523 &011 18 (19871 and its real prom Progeny construed the real Pro the exception narrowly, they did not principle entirely. Moreover, those cases involved intervening criminal action by a third Party which could logically be viewed as the proximate cause of the injury. Here , in contrast, the cell door was being used for the very purpose for w certainly hich it was intended and the action of not Mr. GGalla s cell mate in closing the door was before us, I believe that ivfc on the peculiar facts Gallagher has --gsS Pled sufficient facts to resist dismissal of his case by e by way of a motion for summary judgment. Accordingly, I would reverse the trial Court's corder and direct that the case continue. MCGINLEY, j., joins. END OF DOCUMENT Page 4 Copr. C West 2001 No Claim to Orig. U.S. Govt. Works ?x??b?? ? ent By: POSTAL PLUS; 2153559768; Aug-2:5-04 2:28PM; Page 2 604 Hampton Avenue Southampton, Pennsylvania 18966-3751 215.322. 1265 August 24, 2004 Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 2000 Market Street, Suite 1300 Philadelphia, Pennsylvania 19103 Re: Charles Baum v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS Incident of August 9,2001; At Rockview SCI, Bellefonte, Pennsylvania 16823; Engineering Investigation and Analysis. Dear Mr. Gialloreto: Regarding the above referenced matter, I have completed an engineering investigation sufficiently to allow this Report. This investigation was performed in response to your request My investigation includes review of this matter as disclosed by the various case related materials that were provided by your office, including but not limited to the February 24, 2004 Deposition of Charles William Baum, Sr„ the Civil Action Complaint filed in this matter, the Answer and New Matter of Defendant Commonwealth of Pennsylvania, Department of Corrections, the Plaintiff's Interrogatories to Defendant, Objections of the Commonwealth of Pennsylvania ent By: POSTAL PLUS; 2153559768; Aug-25-04 2:28PM; Page 3/6 JA T/BAUMINCI,pE1VT, 114/pq; 2 Department of corrections to Plaintiffs Interrogatories, Plaintiffs Request for Admissions to Defendant, Responses of the Commonwealth of Pennsylvania, Defwtmcnt of Corrections to Request for Admissions of Plaintiff, Plaintiffs Request for Production of Documents to Defendant, Objections of the Commonwealth of Pennsylvania, Department of Corrections to Plaintiff's Request for Production of Documents. I have reviewed these materials considering the relevant engineering issues involved, including those issues of engineering human factors- Generally presented, on August 9, 2001 while attempting to gain access to his assigned bed, an upper bunk in a bunk bed at the Commonwealth facility at Bellefonte, Rockwell SCI, Mr. Charles Baum fell from the chair (a wooden chair) used to gain access to the upper bunk (with the upper bunk being at an elevation over 5 feet higher than the floor). Mr. Baum was in the custody of the Commonwealth of Pennsylvania at this time. No traditional means of access (such as stairway, ramp, or ladder) from the floor to the upper bunk was provided Mr. Baum by the Commonwealth. The record provides that the chair had no anti-skid devices on its legs to prevent slipping on the floor, and that the chair was unstable in that it was not properly balanced (not capable of being evenly positioned at rest on all four legs), and was, additionally, in poor repair generally, with such condition permitting a lack of rigidity and consequent unintended movement when in use. At the time of the incident, while Mr. Baum was in the process of moving from a climbing starting position with one foot on th6 floor and one foot on the seat of the wooden chair, moving up and into his upper bunk, the chair wobbled and sliped, he lost his balance and subsequently fell. In the progression of the fall, his right hand went through a window, injuring his hand. See for example the February 24, 2004 Deposition Testimony of Charles William Baron, Sr., pages 12 through 44, and see the Civil Action Complaint. The long and well known means of access for differences in elevation are stairways, ramps, hoists, and ladders. These are traditional integral components of the access system itself, integral and necessary parts of the facility, and long have been so recognized. Certainly this is the recognition, long and well known means of access for differences in elevation, by the Engineering Industry. In fact, these devices can be traced directly back to one of the first nationally recognized safety codes, the Occupational Safety and Health Act of 1970 (hereinafter OSHA). Public Law 91-596 91" Congress, S, 2193 December 29, 19:70. Considering merely general requirements noted under OSHA, a stairway or ladder is to be provided at all personnel points of access where there is a break in elevation of 19 inches (48cm) or more, and no ramp, runway, sloped embankment, or personnel hoist. The Commonwealth knows and subscribes to these safety standards, OSHA (and more). I say this because my duties as a Commonwealth of Pennsylvania employee following passage of the Act, included the need to insure that the Act was followed on Commonwealth projects and locations, at a minimum. Clearly, such OSHA standard was not met and/or followed here. Of course, the Commonwealth, through other agency position at least, acknowledges reliance on such individual access, including climbing, standards, standards of individual personal transportation accommodation. These standards are generally and commonly provided through the concepts (at a minimum) as presented by the ent By: POSTAL PLUS; 2153559768; Aug-25-04 2:28PM; Page 4/6 JAT/BA(JAf1NCL2M 08/24/041 i Americans with Disabilities Act (ADA) of 1990, and the Uniform .Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Guidelines for Buildings and Facilities (ADAAG). Of course, the Commonwealth's own building code is the Engineering Industry accepted access code, at a minimum, the BOCA code. See for example The HOC A National &ddtng Grupe. Building Officials d Code Administrators International, Inc., 4051 West Flossmore Road Country Club (fills, Illinuts 60478-5795. Of course, BOCA incorporates the American National Standard for Accessible and Usable Bgildinea Rind Facilities. such as may be found in ICC/ANSI Al 17.1-1998. Consider too the same considerations are presented in the Pennsylvania Code, Title 34, Department of Labor and Industry. Commonwealth of Pennsylvania, Pennsylvania ode Title 14 Labor and Industry, Chapters 49-60. Indeed, these safety standards and safety concepts of an individual's use of facilities do not condone such condition as was created here specifically by the Commonwealth. The codes and standards concepts of dealing with confrontation of elevation differential in an individual's pathway rejects such conditions as existed here, the condition here being a substantial change in elevation to be traversed without accepted and traditional engineering means of access. The hazardous condition of the Commonwealth facility is therefore long and well recognized in the Engineering Industry. There are specific methods provided by the authoritative sources listed to deal with surface differential in a pedestrian access pathway area, and none of those methods was used by the Commonwealth, including the most reasonable and traditional for this situation, the ladder. Furthermore, merely standing on a chair to reach an overhead object, and even more especially when the chair's legs are not secured in place, is a recognized hazard, a long and well recognized hazard in and of itself. For example, the National Safety Council describes such as a particularly dangerous practice and calls for forbidding such performance- See f„r example National Safety Council, Accident Prevention MaMwi 7rh F,dition, 1974, page 359, (-'hair falls. The National Safety Council safety concepts, to my personal knowledge as a former Commonwealth of Pennsylvania employee, are well received and expected to be accepted as properly providing for recognized safety standards, at a minimum. The National Safety Council was issued a Federal Charter by the 83'd Congress in 1953 to recognize the national importance of the Council's accident prevention work. In the final analysis, the Commonwealth did not provide an Engineering Industry recognized reasonably safe means of access for Mr. Baum to reach his bunk. Engineeringly, it would be professionally anticipated that the means of access provided by the Commonwealth for Mr. Baum to access his upper bunk, that is, by a chair, and/or a wobbly (unstable) chair, and/or a chair without sufficient anti-slip control footing, would have resulted in a fall of the type experienced in this particular incident. Furthermore, as an engineer. one would anticipate that these standards, most if not all, have the weight of law. SUMMARY AND CONCLUSIONS Based on my Professional Engineering investigation and analysis of this incident, it is my opinion to a full scientific certainty that, at a minimum: l) The access facility, the chair, provided by the Commonwealth to Mr. Baum ant By: POSTAL PLUS; 2153559768; Aug-25-04 2:29PM; Page 5/6 JAT/BAUMINC./LD _7c 0$124/04 4 at the fall site was in dangerous condition and as such was conducive to the type of failing event actually occurring in this matter; 2) The dangerous arrangement of access to the upper bunk by the chair was conducive to the type of falling and inj ury event occurring in this matter; 3) Continuing the above dangerous and hazardous site situation, most specifically requiring the use of the wooden chair in lieu of traditional means of access, is the failure by the Commonwealth to properly provide for safe upper bunk access, including, but not limited to, providing a component of access with proper climbing potential, such as a ladder; 4) Continuing the above dangerous and hazardous site situations is the failure by the Commonwealth to properly, efrectively, correct the unsafe access conditions including, but not limited to, elimination of the hazardous chair climbing access for the upper bunk at the site; 5) Continuing the above dangerous and hazardous site situations is the failure by the Commonwealth to properly, effectively, warn the access users of the unsafe access conditions including, but not limited to, failing to provide Mr. Baum with notice of the hazard the Commonwealth had created; and, 6) Continuing the above dangerous and hazardous conditions is the failure of the agency controlling the site, here the Commonwealth„ to properly train and/or monitor their personnel to provide proper inspection, analysis, necessary improvement implementation and/or warning of the access facility hazard, the chair component of access. These hazardous and/or dangerous upper bunk access condition encountered in the Baum Incident, most specifically requiring the use of the wooden chair in lieu of traditional means of access components, appears fully and completely to present a clear view of official neglect and failure, at a minimum, with regard to the access condition. Considering the performance of the Commonwealth here, this upper bunk access control neglect and failure of the Commonwealth, consequently led directly to and resulted in this incident. The performance of the Commonwealth, was totally improper here under Industry standards, at a minimum, and of itself was the direct cause of the incident in my Professional Engineering opinion. Except for the Commonwealth's failure to correct the access irregularity, most specifically requiring the use of the wooden chair in lieu of traditional means of access components, also including but not limited to provision of adequate facility user warning and/or upper bunk access closure, where and when failing to correct the hazard, the incident would not have occurred. The incident was entirely foreseeable under Industry standards, at a minimum. 'ent By: POSTAL PLUS; 2153559768; Aug-25-04 2.29PM; Page 6/6 JAT/RAUMZN .li= gV4104: S In way of summary, in my Professional Engineering opinion there is simply no acceptable reason for the Commonwealth to have allowed the existence of the extremely dangerous, hazardous, and substandard condition encountered by the Mr. Baunn. The facility access defects described in the body of this report, most specifically the Commonwealth's requiring the use of the wooden chair in lieu of traditional means of access components, in my Professional Engineering opinion, and based upon reasonable engineering certainty, created a readily foreseeable risk of injury and were the direct cause of the fall of Mr. Baum. It is clear the access problem was the proximate cause of the Baum Incident Mr. Baum was entrapped by the condition of chair access to his upper bunk, created by the Commonwealth. The Engineering Industry would not anticipate that a person in Mr. ]Baum's circumstances as per this Incident would have appreciatively discovered the hazard and been able to avoid it. Under my evaluation, it is my professional opinion further, that Mr. Baum has no responsibility for his fall. Please keep me informed of further developments in this matter so that I may evaluate any impact on my engineering investigation, i0io .? hompson Jr. Professional Engineer Pennsylvania License Num : PE 018708-E ?xk) 6-? ? 604 Hampton Avenue Southampton, Pennsylvania 18966-3751 215- 322-1265 PROFESSIONAL PROFILE: JOSEPH A. THOMPSON JR. President/Principal EDUCATION: BACHELOR OF CIVIL ENGINEERING, VILLANOVA UNIVERSITY MASTER OF CIVIL ENGINEERING, VILLANOVA UNIVERSITY JURIS DOCTOR, TEMPLE UNIVERSITY PROFESSIONAL REGISTERED PROFESSIONAL ENGINEER, REGISTRATION: PENNSYLVANIA, GEORGIA, NEW JERSEY REGISTERED PROFESSIONAL PLANNER, NEW JERSEY REGISTERED PROFESSIONAL LAND SURVEYOR PENNSYLVANIA (MEMBER OF THE PENNSYLVANIA AND NEW JERSEY BARS ) INDUSTRY AMERICAN SOCIETY OF CIVIL ENGINEERS AFFILIATION: INSTITUTE OF TRANSPORTATION ENGINEERS AMERICAN SOCIETY OF HIGHWAY ENGINEERS AMERICAN PLANNING ASSOCIATION AMERICAN PUBLIC WORKS ASSOCIATION NATIONAL SAFETY COUNCIL AMERICAN SOCIETY OF AUTOMOTIVE ENGINEERS TRANSPORTATION RESEARCH BOARD AMERICAN NATIONAL STANDARDS INSTITUE AMERICAN SOCIETY OF TESTING AND MATERIALS NATIONAL FIRE PROTECTION ASSOCIATION -1- T2C the THOMPSON CORPORATION 604 Hampton Avenue Southampton, Pennsylvania 18966- 3751 215- 322-1265 JOSEPH A. THOMPSON, JR.} PROFESSIONAL PROFILE CONTINUED ----------------------------------------- EXPERIENCES CURRENTLY OPERATING AS A CONSULTING ENGINEER IN PRIVATE PRACTICE, INCLUDING HIGHWAY AND TRAFFIC SAFETY REVIEW AND DESIGN, SITE ENGINEERING SAFETY REVIEW AND DESIGN, CONSTRUCTION . INSPECTION, REVIEW, AND DESIGN, AND BUILDING SAFETY REVIEW AND DESIGN. FORMERLY PRINCIPAL WITH ORTH-RODGERS-THOMPSON AND ASSOCIATES, PHILADELPHIA, PA, BRIDGEWATER, NJ, AND WILMINGTON, DE. HELD THE POSITION OF PRINCIPAL-IN-CHARGE OF HIGHWAY DESIGN AND CONSTRUCTION ENGINEERING INSPECTION, WHICH INCLUDED OVER ALL RESPONSIBILITY FOR DIRECTION OF THE FIRMS EFFORTS FOR ALL SUCH PROJECTS. IN THAT CAPACITY HELD DIRECT' PROJECT CONTACT RESPONSIBILITY TO ENSURE THE PROFESSIONAL INTEGRITY OF ALL DESIGN PLAN'S AND SPECIFICATIONS PREPARED BY ORTH-RODGERS-THOMPSON. THAT DID INCLUDES RESOLUTION OF DESIGN PROBLEMS AND QUESTIONS1 FUNCTIONING AS PERSONAL LIAISON TO PRIVATE CLIENTS IN THEIR ENGINEERING MATTERS OF LEGAL, AND DESIGN INVOLVEMENT WITH VARIOUS FEDERAL, STATE, COUNTY, AND LOCAL GOVERNMENT AGENCIES, AS WELL AS PRIVATE INTEREST INDIVIDUALS AND ORGANIZATIONS, INCLUDING TESTIMONY AS NECESSARY, SUPERVISION OF TRAFFIC IMPACT STUDIES, HIGHWAY DESIGN, TRAFFIC SAFETY ANALYSIS, ACCIDENT RECONSTRUCTION, HUMAN FACTORS DESIGN AND ANALYSIS, VEHICLE PERFORMANCE ANALYSIS, VEHICLE ROUTING, FACILITIES CAPACITY ANALYSIS, AND OTHER SUCH FACILITY DESIGN AND ENVIRONMENT COMPONENT INTERACTION ANALYSIS. SUCH SERVICES WERE LIKEWIBE PROVIDED TO STATE, COUNTY, AND LOCAL GOVERNMENTS INCLUDING - a - 604 Hampton Avenue Southampton, Pennsylvania 18966-3751 215- 322- 1265 JOSEPH A. THOMPSON, JR.1 PROFESSIONAL PROFILE CONTINUED ------------------------------- VARIOUS QUASI-GOVERNMENTAL AGENCIES IN A RECIPROCAL FASHION. THIS WORK WAS PERFORMED FROM 1986 THROUGH TO 1989. IMMEDIATELY PRIOR TO THE ABOVE, FROM 1981 THROUGH TO 1986, PROVIDED PUBLIC AND PRIVATE SERVICES AS A CONSULTING ENGINEER IN PRIVATE PRACTICE, CONCENTRATING ON REVIEW OF HIGHWAY SAFETY, HIGHWAY SAFETY DESIGN, SITE AND BUILDING DESIGN, SITE AND BUILDING SAFETY REVIEW, AND CONSTRUCTION INSPECTION. PRIOR TO SELF EMPLOYMENT, WAS EMPLOYED BY THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION FROM 1969 THROUGH 1980. RESPONSIBILITIES INCLUDED ALL MAJOR PHASES OF THE DEPARTMENTfS DESIGN, CONSTRUCTION, AND MAINTENANCE OPERATIONS. AS PENNDOT'S LIAISON.ENGINEER FOR THE I-95 SEVEN MILE SEGMENT FROM CHESTER, PA INTO PHILADELPHIA, PA, WAS OVERSEER FOR ALL ENGINEERING INCLUDING SPECIAL PHASES OF THE PRELIMINARY DESIGN ALIGNMENT SELECTION THROUGH FINAL DESIGN. AUTHORED THE ENVIRONMENTAL IMPACT STATEMENT FOR THE I-9'5 CROSSING OF THE TINICUM NATIONAL WILDLIFE PRESERVE. THESE DESIGN OPERATIONS INCLUDED SOME OF THE STATE OF PENNSYLVANIA+S LARGEST HIGHWAY SYSTEM INTERCHANGES, INCLUDING THAT SERVING THE PHILADELPHIA INTERNATIONAL AIRPORT, WITH THE THEN PROPOSED COBBS CREEK EXPRESSWAY, 1-698, AND ENCOMPASSED THE PLANNING AND RECONSTRUCTION OF THE REDEVELOPMENT OF THE ENTIRE EASTWICK SECTION OF PHILADELPHIA, IN COORDINATION WITH THE PHILADELPHIA REDEVELOPMENT AUTHORITY, AND PROVIDED FOR THE CONSTRUCTION OF THE PHILADELPHIA HIGH SPEED <MASS TRANSIT) LINE SERVING CENTER CITY PHILADELPHIA AS WELL AS THE PHILADELPHIA INTERNATIONAL AIRPORT. THESE PROJECTS INVOLVED COORDINATION WITH LOCAL - 3 - 604 Hampton Avenue Southampton, Pennsylvania 18966-3751 215-322-1265 JOSEPH A. THOMPSON, JR.; PROFESSIONAL PROFILE CONTINUED (NUMEROUS CITY OF PHILADELPHIA AGENCIES SUCH AS THE STREETS DEPARTMENT, THE WATER DEPARTMENT, PUBLIC PROPERTY, DEPARTMENT OF COMMERCE, AND SO ON; IN SMALLER MUNICIPALITIES, SUCH COORDINATION INVOLVED DIFFERENT BOARDS, COMMITTIES, CITIZEN GROUPS, AND SUCH), STATE (DEPARTMENT OF ENVIRONMENTAL RESOURCES, BUREAU OF MASS TRANSIT, PUBLIC UTILITY COMMISSION, AND THE LIKED, AND FEDERAL (FEDERAL HIGHWAY ADMINISTRATION, THE ENVIRONMENTAL PROTECTION AGENCY, DEPARTMENT OF THE INTERIOR, URBAN MASS TRANSIT AUTHORITY, THE FEDERAL AVIATION ADMINISTRATION, AND SO ON), AS RESIDENT CONSTRUCTION ENGINEER ON VARIOUS I-95 PROJECTS (PREVIOUSLY HAVING CONTROL OF THE PROJECTS DESIGN), WAS RESPONSIBLE FOR THE ACTUAL BUILDING OF DIFFERENT SEGMENTS OF THE INTERSTATE 98 CORRIDOR. THESE PROJECTS WERE MULTI-MILLION DOLLAR DESIGN CONTRACTS. ALSO SERVED AS THE RESIDENT CONSTRUCTION ENGINEER ON VARIOUS SPECIALITY DEPARTMENT CONSTRUCTION PROJECTS. ENGINEER RESPONSIBILEE FOR ALL OF THE MAINTENANCE OPERATIONS IN BUCKS COUNTY, PENNSYLVANIA FOR PENNDOT, INCLUDING ALL ROAD, BRIDGE, AND RAIL CROSSING ROAD MAINTENANCE OPERATIONS, MUNICIPAL AND PRIVATE INTERFACE, SPECIALITY PROGRAMS (SUCH AS THE ACCIDENT RECONSTRUCTION PROGRAM), BUILDINGS AND EQUIPMENT MAINTENANCE, PERSONNEL, INCLUDING ALL TRAINING PROGRAMS, AND SUCH. THIS EFFORT INCLUDED ONE THOUSAND AND THIRTY THREE MILES' OF URBAN AND RURAL ROADWAYS, SEVEN HUNDERED AND FIFTY SEVEN' BRIDGES (INCLUDING WOODEN BRIDGES), ONE HUNDRED AND TWO RAILROAD CROSSINGS AT GRADE, VARIOUS MAINTENANCE FACILITIES INVOLVING MAJOR BUILDINGS, ONE HUNDRED AND THIRTY ONE MAJOR PIECES OF HEAVY EQUIPMENT, AND ACCESS TO OTHER STATE OF PENNSYLVANIA SPECIALITY PERSONNEL AND HEAVY EQUIPMENT AS REQUIRED. THIS POSITION WAS GAINED THROUGH THE GOVERNORIS MERIT SELECTION - 4 - 604 Hampton Avenue Southampton, Pennsylvania 18966- 3751 215- 322-1265 JOSEPH A. THOMPSON, JR.I PROFESSIONAL PROFILE CONTINUED PROCESS, FORMERLY APPOINTED TOWNSHIP ENGINEER FOR UPPER SOUTHAMPTON TOWNSHIP, SUCKS COUNTY, PENNSYLVANIA CURRENTLY PROFESSOR OF HIGHWAY AND TRAFFIC ENGINEERING AT DREXEL UNIVERSITY, OFFICE OF CONTINUING PROFESSIONAL EDUCATION. - 5 - GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT OF COMMON PLEAS CUMBE=RLAND COUNTY CIVIL ACTION vs. No. 03-:3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant CERTIFICATE OF SERVICE I, Benjamin N. Gialloreto, Esquire, as attomeyforthe Plaintiff, Charles Baum, in the above-captioned matter, hereby certify that I served a true and correct copy of Plaintiffs Motion for Partial Summary Judgment upon counsel for the Defendant at the name and address as appears below, via United States Postal Service, first-class, postage prepaid mail on September 3, 2004. Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania IlWh Floor, Strawberry Square Harrisburg, PA 17120 GALLAGHER, By: N. EGBERT, Q.C. ESQUIRE -16- Office of Attorney General Daniel R. Goodemote Torts Litigation Section Senior Deputy Attorney General 15th Floor, Strawberry Square Direct Dial 717-783-3147 Harrisburg, PA 17120 CHARLES BAUM, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, : No. 03-3712 Defendant : Jury Trial Demanded DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARN' JUDGMENT AND NOW, comes the Commonwealth of Pennsylvania, Department of Corrections (Commonwealth) by and through its attorney, the Office of Attorney General, and files this response to Plaintiffs Motion for Partial Summary Judgment. 1. Admitted. 2. Paragraph 2 is a conclusion of law to which no response is required. To the extent a response is required, the allegation is denied. 3. It is admitted that Plaintiff has testified that on August 9, 2001, he used a wooden chair to get into his upper bunk bed. It is further admitted that Plaintiff testified that this was the only method of gaining access to the top bunk. It is admitted that there was no ladder in the cell to assist inmates in gaining access to the top bunk. Admitted that paragraph 3 fairly summarizes Plaintiff's testimony as to how he lost his balance and fell. 4. Admitted that the personal property exception to sovereign immunity is accurately quoted in the paragraph. The remainder of paragraph 4 is a conclusion of law to which no responsive pleading is required. 5. Admitted that Plaintiff so asserts. The Commonwealth Defendant asserts that whether the chair was in the "care, custody and control" of a Commonwealth agency is a question of law to be determined by the Court. 6. Admitted only that the Plaintiff testified that the chair was unbalanced and one leg was shorter than the others. 7. The Commonwealth had admitted that the chair did not have anti-sliding or anti-skidding devices like round rubber soles. 8. Paragraph 8 is denied insofar as Defendant's discovery responses assert that regular inspections are made of the cells. Admitted that no repairs were made to the chair. 9. Admitted only that Plaintiff has accurately summarized the request for admissions. Whether this accident was foreseeable is an issue to be determined by the fact finder. 10. Admitted that Plaintiff testified that ladders, are now welded onto bunk beds. It is denied that there is any evidence that chairs are no longer used as a mean of access to the top bunk. 11. Denied as stated. The operative facts in the Gallagher case are not similar to the instant case. 12. Admitted that Joseph A. Thompson, Jr. reviewed this matter and issued an expert report and opinions. It is admitted that Mr. Thompson, in essence, concludes that the Defendant was negligent and a cause of the Plaintiff's fall and injury and that the accident was foreseeable. 13. Denied. The Commonwealth Defendant does not understand what Plaintiff is asserting in paragraph 13. The issue of whether the personal property exception to sovereign immunity applies to the facts of this case is initially a question of law to be determined by the Court. The remainder of Paragraph 13 is a conclusion of law to which no responsive pleading is required. By way of further answer, Plaintiff's conclusion of law is incorrect. 14. Admitted that Plaintiffs Motion is timely. The Commonwealth Defendant denies that there is no genuine issues of material fact. The issues of negligence and causation are issues to be determined by a jury. 15. Paragraph 15 requires no answer. WHEREFORE, the Commonwealth Defendant respectfully requests this Honorable Court to deny the Motion for Partial Summary Judgment filed by Plaintiff, Charles Baum. RESPECTFULLY SUBMITTED: GERALD J. PAIPPERT ATTORNEY GENERAL 7 e+?i?_ BY: ?t? DANIEL R. GOODEMOTE Sr. Deputy Attorney General #30986 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 W IEL R. O MOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-3147 DATED: ,a/4" N G y Cil 1_t,= [ inn GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION Vs. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant PRAECIPE FOR ORAL ARGUMENT 1. Plaintiff requests oral argument in support of his Motion for Partial Summary Judgment and that this matter has been listed on the Oral Argument List. 2. Parties Plaintiff: Charles Baum 2611 Caral Street, 3' Floor Philadelphia, PA 19125 Counsel: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 215-732-8900 ext. 102 -1- Defendant: Commonwealth of Pennsylvania Department of Corrections Counsel for Defendant: Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15th Floor, Strawberry Square Harrisburg, PA 17120 3. This notice was faxed to Counsel for the Commonwealth on this date. 4. The next Oral Argument Court List date is February 2, 2005. 5. Plaintiff avers that the Motion, Memorandum of Law and Exhibits will encompass Plaintiff's Brief. Respectfully submitted, By: N. Gialloreto, Esquire Date: January 7, 2005 -2- GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION vs. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant CERTIFICATE OF SERVICE I, Benjamin N. Gialloreto, Esquire, as attorney for the Plaintiff, Charles Baum, in the above-captioned matter, hereby certify that I served a true and correct copy of Plaintiff's Praecipe for Oral Argument upon counsel for the Defendant at the name and address as appears below, via United States Postal Service, first-class, postage prepaid mail on January 7, 2005. Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15th Floor, Strawberry Square Harrisburg, PA 17120 GALLAGHER, RC/) N & EGBERT, P.C. 1 By: 2'e-4 _ C BENJAMIN N. GIALLORETO, ESQUIRE -3- C'1 r, f,? 7 (? ?-- ?.a ? ?I1 .? '°"` -n t , } ?.-? G:?; , ? \? ??` _ ??, , _? _ Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial 717-783-3147 dgoodemote@attorneygeneral.gov CHARLES BAUM, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF NO. 03-3712 CORRECTIONS, Defendant : JURY TRIAL DEMANDED COMMONWEALTH DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW comes the Defendant, Commonwealth of Pennsylvania, Department of Corrections ("Commonwealth Defendant) by and through the Office of Attorney General and files this Motion for Summary Judgment. In support thereof, the Commonwealth Defendant avers as follows: Plaintiff, Charles Baum, commenced this action by filing a Complaint on or about July 31, 2003. 2. Plaintiffs Complaint alleges that on or about April 9, 2001, while in the process of getting into the upper bunk bed in his cell, the chair that he was using slipped out from under him, he lost his balance, stumbled off the chair pushing his right hand through a window pane. 3. The Commonwealth Defendant is a "Commonwealth Party" within the meaning of section 8501 of the Judicial Code, 42 Pa.C.S. § 8501. 4. Commonwealth parties are immune from suit except as specifically waived by the General Assembly. 1 Pa.C.S. § 2310; 42 Pa.C.S. § 8501 et seq. 5. To state a cause of action against a Commonwealth Defendant, a Plaintiff must allege acts which fall within an exception to sovereign immunity as set forth in 42 Pa.C.S. § 8522 (b)(l)-(9) of the Judicial Code. 6. The acts complained of in Plaintiff's Complaint do not fall within the personal property exception to sovereign immunity, 42 Pa.C.S. § 8522 (b)(3), the real estate exception, 42 Pa.C.S. § 8522 (b)(4), or any other exception. 7. The Plaintiff's injuries were not caused by the personal property nor of any dangerous condition of Commonwealth owned real estate 8. Plaintiffs injury was caused by his own actions. There is no waiver of sovereign immunity for the acts alleged. WHEREFORE, the Commonwealth Defendant respectfully requests that Summary Judgment be entered in its favor and against the Plaintiff. RESPECTFULLY SUBMITTED: GERALD J.PAPPERT ATTORNEY GENERAL BY: 911?2zp D IEL R. O MOTE Senior Deputy .Attorney General 2 VERIFICATION I, DANIEL R. GOODEMOTE, hereby verify that I am counsel for the Defendant Commonwealth party in the foregoing action, and also verify that the foregoing statements are true and correct to the best of my knowledge, information and belief. I understand that I am subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities for any false statements knowingly made herein. EI_ R. D OTE SR. DEPUTY ATTORNEY GENERAL #30986 DATED: CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 ANIEl 'OODEMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-3 47 DATED: i 1 11-I OS ? P ? 1 ?- ' i, .'? [' GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET -SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 bgialloreto@grelaw.com FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff Attorney for Plaintiff Charles Baum COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION vs. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant PLAINTIFF'S RESPONSE TO DEFENDANT COMMONWEALTH'S MOTION FOR SUMMARY JUDGMENT AND NOW, here comes Plaintiff, Charles Baum, ("hereinafter "Plaintiff"), by and through its attorneys, GALLAGHER, ROWAN & EGBERT, P.C. and files the within Response to Defendant's Motion for Summary Judgment and in support thereof aver as follows: Admitted. 2. Admitted in part and denied as stated. On August 9, 2001, while in the process of getting into his upper bunk bed, the Plaintiff used his only method of gaining access to the top bunk - the wooden chair. (Reference, Plaintiff's Deposition, attached to Plaintiffs Motion for Summary Judgment, Exhibit "E," p. 12). The bunk beds did not have ladders on them as a means of access to the top bunk bed and there are no ladders in the cell. As he stepped on the "wobbly" chair, it wobbled and slid causing Plaintiff to lose his balance, fall, and his hand to go through the window. (Exhibit "E," p. 12, 14-15, 18, 40-44). 3. Denied as a legal conclusion and admitted only that said statute exists and speaks for itself. 4. Denied as a legal conclusion and admitted only that said statutes exist and speaks for themselves. 5. Admitted. Further, Plaintiff asserts that the personal property exception is triggered because the defective wooden chair in the Plaintiffs prison cell, when used as a means of access to the ladder free upper bunk bed, was personal property owned and in the care, custody and control of the Commonwealth and it caused his fall and injuries. 6. Denied. The Plaintiff has not only alleged sufficient facts to survive immunity but previously filed for summary judgment against the defendant on the issue of liability, and incorporates herein Plaintiff's Motion for Partial Summary Judgment and all exhibits thereto to defeat Defendant's Motion for Summary Judgment Plaintiffs prior submissions clearly alleged and document how the Personal Property exception to sovereign immunity applies because the chair is personal property of the Defendant and it was responsible for the Plaintiffs injury. The undisputed facts show that (1) the chair was unbalanced and one leg was shorter than the others, (Exhibit "E," p. 13); (2) the chair lacked any anti-sliding, or anti-skidding devices like round rubber soles, (Exhibit "E," p. 40), and (3) the Defendant never inspected, or repaired the chair that was used as a ladder to gain access to the upper bunk bed. (Exhibit "E," p. 40). 7. Denied, Joseph A. Thompson Jr., Professional Engineer, reviewed this matter and issued an expert report and opinions which Plaintiff incorporates by -2- reference from Plaintiff's pending Motion for Summary Judgment. He concludes, to a scientific certainty, that the Defendant was negligent because the wooden chair was dangerous and, when used as a ladder, created a foreseeable and unacceptable risk of injury which was the direct cause of the Plaintiffs fall and injury. (See Report of August 25, 24, 2004, attached to Plaintiffs MSJ as Exhibit "G" 8. Denied for all the reasons above and those incorporated in, and from, Plaintiffs Motion for Partial Summary Judgment. There is no question that the chair and bunk bed fall within the personal property exception to sovereign immunity under 42 Pa. C.S.A. §8522(b)(3) and there is no question that the personal property immunity waiver does not apply because the chair itself and/or the chair and bunk bed combination caused the Plaintiffs injury and were clearly involved in the chain of causation. Thus, this Honorable Court should deny Defendant's Motion for Summary Judgment. By way of further answer, and in further support of Plaintiffs position, Plaintiff hereby incorporates by reference it's supporting Memorandum of Law, and Plaintiffs supporting Motion for Partial Summary Judgment Memorandum of Law and Exhibits as though the same were set forth herein in haec verba. WHEREFORE, Plaintiff, Charles Baum, respectfully requests that the Defendant's Motion for Summary Judgment be Denied. ROWAN & EGBERT, P.C. BY: JAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff, Charles Baum Date: t-70-O6 -3- GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-6900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION VS. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, here comes Plaintiff, Charles Baum, (hereinafter 'Plaintiff"), by and through its attorneys, GALLAGHER, ROWAN & EGBERT, P.C. and files the within Motion for Summary Judgment and in support thereof aver as follows: Procedural Background This claim involves an injury to Plaintiff Charles Baum which was caused by the Defendant's negligence. Plaintiff asserts that the personal property exception to Commonwealth immunity is triggered because the old wooden chair in the Plaintiffs prison cell was personal property owned and in the care, custody and control of the Commonwealth and it caused his fall and injuries. When the Plaintiff used the chair to ascent into his top bunk bed, the chair faltered due to its unstable and defective condition causing Plaintiff to fall and sustain permanent scarring and hand injuries. -t- The Plaintiff previously filed for Summary Judgment ("MSJ") on the issue of liability and oral argument is tentatively scheduled for February 2, 2005. The Defendant's Motion should be heard and argued concurrently with Plaintiff's Motion. Further, Plaintiff incorporates by reference his Motion for Partial Summary Judgment, his Memorandum of Law in Support of Plaintiffs Motion for Summary Judgment, and all exhibits attached thereto. Plaintiff, Charles Baum, respectfully asserts that Defendant's Motion for Summary Judgment should be denied and his Motion for Partial Summary Judgment granted as he is entitled to judgment as a matter of law. Undisputed Facts Defendant's Answer to Plaintiffs Complaint (by conforming pleading number) 5. On August 9, 2001, Defendant operated SCI-Rockview. 6 On August 9, 2001, Plaintiff resided at SCI-Rockview and was in his prison cell. 7. On August 9, 2001, the cell in which Plaintiff occupied had a chair and bunk beds. 8. On August 9, 2001, the chair was personal property of the Defendant. 19. Plaintiff received medical treatment including tendon repairs, stitches, splinting, and medications. (See Plaintiffs Civil Action Complaint, Plaintiffs MSJ Exhibit "A," 115-8, 20; Defendant's Answer to Plaintiff's Complaint, Plaintiffs MSJ, Exhibit "B" 115-8, 20). Defendant's Answer to Plaintiffs Admissions (by conforming number) 10. On August 9, 2001, the cell in which Plaintiff occupied had a wooden chair and bunk beds. -2- 11. On August 9, 2001, the Plaintiff was assigned to the upper bunk bed in his assigned cell. 12. On August 9, 2001, the chair in the Plaintiffs cell was personal property of the Defendant. 13. The bunk bed is either real or personal property of the Defendant. 14. Said chair in Plaintiffs cell on August 9, 2001 was wooden. 19. On August 9, 2001, no ladder was provided to the Plaintiff to gain access into the upper bunk bed. 20. In 1999, the Defendant instituted a project to install ladders to all bunk beds at S.C.I. Rockview. 21. Before August 9, 2001, Defendant knew that chairs were being used by inmates to gain access into the top/upper bunk bed. 22. On August 9, 2001, the floor of the Plaintiffs prison cell was concrete. 24. Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. 34-35 Before August 9, 2001, the Defendant was informed that one or more inmates at SCI-Rockview, had been injured when attempting to gain access into the top bunk bed. -3- (See Plaintiffs Admissions, Plaintiffs MSJ, as Exhibit "C,"1110-14,19-22,24,34-35; and Defendant's Answer to Plaintiffs Admissions, Plaintiffs MSJ, Exhibit "D" ¶¶ 10-14,19-22, 24,34-35). Undisputed Facts from Plaintiffs Deposition The Plaintiff is 6'1"tell and weighs 200 pounds. His cell had one wooden chair and bunk beds. (See Plaintiffs MSJ, Exhibit "E," Plaintiffs Deposition, p. 40, 42-43). He always slept in the upper bunk, which is about five feet, nine inches off the ground. (Exhibit "E," p. 12, 15). On August 9, 2001, while in the process of getting into his upper bunk bed, the Plaintiff used his only method of gaining access to the top bunk - the wooden chair. (Exhibit "E," p. 12). As he stepped on the "wobbly" chair, it wobbled and slid causing Plaintiff to lose his balance, fall, and his hand to go through the window. (Exhibit "E," p. 12, 14-15,18). The chair is unbalanced and one leg was shorter than the others. (Exhibit "E," p. 13). Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. (Exhibit "E," p. 40). No one inspected, or repaired the chair that was used as a ladder to gain access to the upper bunk bed. (Exhibit "E," p. 40). The bunk beds did not have ladders on them as a means of access to the top bunk bed and there are no ladders in the cell. (Exhibit "E," p. 40-41). Now, there are ladders welded on the bunk beds as a means of access into the top bunk bed. Chairs are no longer used. (Exhibit "E," p. 41-44). Standard of Review. A Motion for Summary Judgment may properly be granted when the pleadings, depositions, answer to interrogatories, and admissions on file, together with affidavits, if -4- any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035.2. Com. v. Riverview Leasing. Inc., 648 A.2d 580 (Pa. Cmwlth. 1994); Hopewell Estate. Inc, v. Kent, 646 A.2d 1192 (Pa. Super. 1994). argument Defendant is Not Entitled to Summary Judgment Because the Defendant's Chair Caused the Plaintifrs Hand Injuries. Defendant was negligent and has no evidence to disprove its negligence. The Defendant is not immune from liability. The personal property exception to sovereign immunity permits a claim for "damages caused by the care, custody or control of personal property in the possession of the Commonwealth agencies . . . " 42 Pa. C.S.A. §8522(b)(3). In order for waiver of sovereign immunity for damages arising from care of personal property to apply, the personal property itself must be in some manner responsible for injury and "only applies in cases where the personal property itself causes the plaintiffs injury; the personal property must be involved in the chain of causation." Nicholson v. M&S Detective Agency, Inc., 503 A. 2d 1106 (Pa. Cmwlth. 1986). Thus, even when keeping in mind that the personal property exception is narrowly construed, the question is whether the old wooden chair caused Mr. Baum's hand to plunge through the glass window.' Pennsylvania courts have long recognized a common law duty on the part of a governmental authority to provide reasonable safety and protection to individuals take into custody. See. e.g., Department of Public Welfare v. Kallinaer, 580 A.2d (Pa. Cmwlth. 1990), petition for allowance of appeal denied, 615 A.2d 730 (Pa. 1992). Pennsylvania courts have also found unique and uncommon items like baseball bats and corks inside wine bottles triggered the personal property exception and caused injuries. Kenneth ' Whether the chair constitutes personal property is not an issue based upon Defendant's Admissions. (Exhibit'A," Q 8 Exhibit "B," 18 Exhibit "C,"Q 12 Exhibit "D; 112). Similarly, the care, custody or control of the chair is also not at issue because it was the Commonwealth-owned personal property and no record evidence exists to refute this assertion. -5- Vaughn v. Cmwlth Dept. Public Welfare, 405 A.2d 1119 (Pa. Cmwlth. 1979), Horick v. Banfi Products Coro., 15 Pa.D. & CAth 22 (1992). Pennsylvania courts have also held that obscure items like transmission fluid, criminal records, white powder, shoelaces and driving records, did not trigger the personal property exception under 42 Pa. C.S.A. §8522(b)(3) because the items did not cause the injury and/or were not involved in the causal chain of events. In Susko and Adams v. Pa. State Police 572 A.2d 831 (Pa. Cmwlth. 1990), a motorcyclist skidded on transmission fluid left on highway by state police after a motor vehicle accident. The court found that the slippery fluid was not a Section 8522(b)(3) exception only because the plaintiff failed to plead that the State Police had control of the wrecked vehicle and resulting fluids. In Nicholson v. M&S Detective Aaencv and Cmwlth, 503 A.2d 1106 (Pa. Cmwlth. 1986), a bank teller, who was held hostage by Bank Security Guard who robbed bank, sued the state because they did an inadequate criminal search for the hiring detective agency. The court found that criminal records are Commonwealth owned Personal Property. However, the negligent search of the records is at issue and not an exception. The "care" and "custody" of the records did not cause the injury. "The records were not involved in the chain of causation, only negative search," citing Walters v. Dep. O.T. 474 A.2d 66 (1984). In this matter, the chair was dearly involved in the chain of causation. Bufford v. Department of Transportation, 570 A.2d 751 (Pa. Cmwlth.1996). The case of Serrano v. Pennsylvania State Police, 568 A.2d 1006 ( Pa. Cmwlth. 1990), involved an arrest by the State Police for suspected drugs. The claim arose from his four-month incarceration while awaiting laboratory test results of white powder found on his person at the time of arrest. The powder packet was deemed aspirin. The court cited Nicholson v. M&S Detective, supra, and reaffirmed the holding that "for the personal -6- property waiver to apply, the personal property itself must be in some mannerresponsible for the injury." In Serrano, the powder packet was in custody and control, but did not cause the appellant's injury. It was the failure to quickly analyze the substance. The exception to sovereign immunity, for cases for injury caused by personal property under control of state, did not apply. Serrano v. Pennsylvania State Police, 568 A1d 1006 ( Pa. Cmwlth. 1990). Similarly, the Commonwealth Court has refused to allow one to sue because Commonwealth employees negligently input information into their computer system resulting in suspended drivers' licenses and needless arrests. Although the driving record is personal property, the failure to properly maintain records is not actionable under 42 Pa. C.S. §8522(b)(3). Again, the personal property waiver "only applies in cases where the personal property itself causes the plaintiffs injury; the personal property must be involved in the chain of causation." Suoalski v. Cmwlth 569 A.2d 1017 (Pa. Cmwlth.1990); Nicholson v. M&S Detective, supra, Bufford v. Penn Dot. 670 A.2d 751 (Pa. Cmwlth.1996). Defendant relies upon Pa. State Police v. Klimek, 839 A.2d 1173 (Pa. Cmwlth. 2003). In that case, a drunken and mentally unstable individual was threatening suicide and taken into custody. His boots were removed and placed outside his holding cell. He managed to get them and hang himself with his own shoelaces. The court found that the action of hanging himself caused the death and, "at most, the shoelace facilitated that outcome, i.e., it cannot be alleged that a shoelace itself caused his death." Id. 839 A.2d at 1177. Defendant uses this case to fortify their position that the chair did not cause Plaintiffs tragic fall. However, Defendant's argument that the shoelace is similar to the chair is mistaken. Klimek took the shoelace and used it to inflict harm upon himself. Similarly, if Klimek took apart the wooden chair and stabbed himself with it, or if he used it to stand on when hanging himself, or if the chair was used to assist him in climbing up a wall and throwing himself off of a roof, then Klimek's chair would be similar to the -7- shoelace. In the instant matter, however, Klimek's shoelaces are not analogous to Mr. Baum's wobbly wooden chair. The chair did not merely facilitate the Plaintiffs "losing his balance." (Defendant's Memorandum of law, p. 6). The undisputed facts clearly demonstrate that the old wooden chair itself was clearly the cause of Plaintiffs fall and injuries. Further, it is undisputed that the chair was "in some manner"'involved in the chain of causation." Sucalski v. Cmwlth, supra; Nicholson v. M&S Detective, supra; Bufford v. Penn of supra; Serrano v. Pennsylvania State Police, supra. Plaintiff has demonstrated several facts that show how the chair caused the fall. First, Plaintiffs old wooden chair was an integral part of the cell furniture. Its purpose was not to be used with a desk, because there are no desks in the jail cells. It was used daily as a ladder to the upper bunk. If the chair was stable, safe, and if it had anti-skidding soles, then perhaps the Plaintiff would not have fell. Clearly, there is enough evidence to preclude Defendant's summary judgment. If the chair was properly maintained by the Defendant, then it would have not caused Plaintiffs permanent hand injury. (See Exhibit 'G'). The most interesting case is one from an SCI Rockview, inmate who, like Mr. Baum and others, was injured trying to get into the top bunk bed. Sometime before 1988, Jay Gallagher was injured while climbing into top bunk bed. The facts here are similar to Mr. Baum's case. The court wrote "he shared a cell with another inmate. The cell had bunk beds, appellant occupying the upper bunk. Because no ladderis in the cell, appellant could reach the upper bunk only by using the cell bars to climb to the upper bunk. Appellant was using the cell bars to get out of his bunk when his cellmate closed the cell door, severing his left ring finger." Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988). While the court found that the Inmate was in custody and control of state, he, himself, was not personal property of state and therefore, the personal property exception to state's sovereign immunity did apply. -8- The Gallagher case is significant for several reasons. First, it provides the State with notice that inmates in the Rockview SCI could be injured while trying to get on the top bunk bed without a ladder. Second, dissenting opinion, by judges who are still on the Commonwealth Court Bench, found that the cell door was real property and thus, the real question was whether the door constituted a dangerous condition within the meaning of 42 Pa. C.S.A. §8522(b)(4), the real property exception. The court said "While the door, in and of itself, may not have been defective, its placement next to the bunk in light of the custom to utilize the door to gain access to the top bunk and in light of the total absence of any other means of access to that bunk, indicates to me a design defect in real property which a jury could reasonably view as a dangerous condition." Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d at 984. The court's opinion was obviously provided to the state and created notice of a dangerous condition.2 Plaintiff retained T2C the Thompson Corporation to conduct an engineering investigation and analysis. Joseph A. Thompson Jr., Professional Engineer, and former Engineer for the Pennsylvania Department of Transportation, reviewed this matter and all the relevant facts and issued a report and professional expert opinions to a scientific certainty. (See Report of August 25, 24, 2004, attached to Plaintiffs Motion for Partial Summary Judgment as Exhibit "G" and Curriculum Vitae attached thereto as Exhibit "H"). Mr. Thompson's scientific conclusions, which highlight Defendant's negligence and the chair as the cause of the Plaintiff's fall, are as follows: 1. The chair, or "access facility" provided by the defendant to Plaintiff was in a dangerous condition and it was conductive to the type of falling event that actually occurred; Plaintiff submitted discovery requests to the Commonwealth asking for information on Mr. Gallagher's matter and other inmates who were also injured over the course of time by getting in/out of the top bunk bed. This information was also requested a year prior to this matter being placed in litigation. To date, no formal discovery responses or any other discovery or information was provided to the Plaintiff. -9- 2. The dangerous arrangement of access to the upper bunk by the chair was conducive to the type of falling and injury event occurring; 3. Continuing the above dangerous and hazardous site situation, most specifically requiring the use of the wooden chair in lieu of traditional means of access, is the failure by the Commonwealth to properly provide for safe upper bunk assess, including, but not limited to, providing a component of access with proper climbing potential, such as a ladder; 4. Continuing the above dangerous and hazardous site situations is the failure by the Commonwealth to properly, effectively, correct the unsafe access conditions including, but not limited to, elimination of the hazardous chair climbing access for the upper bunk at the site; 5. Continuing the above dangerous and hazardous site situations is the failure by the Commonwealth to properly, effectively, warn the access users of the unsafe access conditions including, but not limited to, failing to provide Mr. Baum with notice of the hazard the Commonwealth had created; and, 6. Continuing the above dangerous and hazardous conditions is the failure of the agency controlling the site, here the Commonwealth, to properly train and/or monitor their personnel to provide proper inspection, analysis, necessary improvement implementation and/orwarning of the access facility hazard, the chair component of access. (Exhibit "G", pg. 4). Mr. Thompson further opines: These hazardous and/or dangerous upper bunk access condition encountered in the Baum Incident, most specifically requiring the use of the wooden chair in lieu of traditional means of access components, appears fully and completely to present a clear view of official neglect and failure, at a minimum, with regard to the access condition. Considering the performance of the Commonwealth here, this upper bunk access control neglect and failure of the Commonwealth, consequently led directly to and resulted in this incident. The performance of the Commonwealth, was totally improper here under Industry standards, at a minimum, and of itself was the direct cause of the incident in any Professional Engineering opinion. Except for the Commonwealth's failure to correct the access irregularity, most specifically requiring the use of the wooden chair in lieu of traditional means of access components, also including but not limited to provision of adequate facility user warning and/or upper bunk access closure, where and when failing to correct the hazard, -10- the incident would not have occurred. The incident was entirely foreseeable under Industry standards, at a minimum. In way of summary, in my Professional Engineering opinion there is simply no acceptable reason for the Commonwealth to have allowed the existence of the extremely dangerous, hazardous, and substandard condition encountered by the Mr. Baum. The facility access defects described in the body of this report, most specifically the Commonwealth's requiring the use of the wooden chair in lieu of traditional means of access components, in my Professional Engineering opinion, and based upon reasonable engineering certainty, created a readily foreseeable risk of injury and were the direct cause of the fall of Mr. Baum. It is clear the access problem was the proximate cause of the Baum Incident. Mr. Baum was entrapped by the condition of chair access to his upper bunk, created by the Commonwealth. The Engineering Industry would not anticipate that a person in Mr. Baum's circumstances as per this Incident would have appreciatively discovered the hazard and been able to avoid it... (Exhibit "G" pg. 4-5). It is undisputed that the Defendant owed a duty of care to Plaintiff on August 9, 2001, and on all days thereafter since the Plaintiff is in Defendant's custody. Defendant breached its duty of care to Plaintiff by permitting him to use a defective chair as a ladder and the only means of gaining access to his upper bunk bed (Exhibit "G"). Defendant knew, or should have known, of the existence of this problem and dangerous condition prior to the Plaintiffs fall, and Defendant was obligated to remedy, repair and eliminate the defect and to warn Plaintiff of its existence. (Exhibits "F"; "C" and "D," 134-35; Exhibit "G"). Defendant was clearly on notice that, before this incident, inmates at SC I-Rockview, and other institutions, were injured when attempting to gain access into the top bunk bed because there were no ladders and limited means of gaining access to the top bunk bed. See: Exhibit "F," Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988; Exhibits "C" & "D" 1"-35; Exhibit "G"). -11- There is clearly ample evidence that the chair caused the Plaintiffs injury and was in some manner involved in the chain of causation. Thus, Defendant's Motion for Summary Judgment should be denied. Defendant was negligent and the chair and bunk bed falls within the personal property exception to sovereign immunity under 42 Pa. C. S.A. §8522(b)(3). The personal property immunity waiver does not apply because it is undisputed that the chair and/or bunk bed caused the Plaintiffs injury and were involved in the chain of causation.3 Clearly, the old and wobbly wooden chair is personal property within the meaning of the immunity exceptions. Certainly the chair and/or combination of the chair and ladder free bunk bed caused Mr. Baum's injury. Certainly, the Defendant, especially those at SCI Rockview, knew of this dangerous condition for 15 years and, certainly, the chair itself is responsible for Mr. Baum's injury. Alternatively, the chair and bunk bed are both themselves responsible for causing Mr. Baum's injury. Based upon the record evidence, Defendant's Motion for Summary Judgment must be denied. Since there is no contradicting evidence, Plaintiffs Motion for Partial Summary Judgment should be granted on the issue of liability. Conclusion. For all the foregoing reasons, the Plaintiff, Charles Baum, respectfully requests that this Honorable Court deny Defendant's Motion for Summary Judgement and enter the Plaintiffs proposed Order. s While the majority of this Reply argues how the chair caused the Plaintiffs fall, as Mr. Thompson points out, it was not only the dangerous and defective chair but also the combination of the chair and ladder free bunk bed that caused the fall. This viewpoint is Plaintiffs alternative argument against Defendant's Summary Judgment. Defendant admits that the bunk bed is real or personal property, (Exhibits OV & 'D' 113), and in 1997, Defendant instituted a project to install (or weld) ladders to all bunk beds at S.C.I. Rockview. (Exhibits -V &'D' 1120 and Exhibit OF pp. 40-44). -12- WHEREFORE, Plaintiff, Charles Baum, demands judgment in his favor, and respectfully requests that the Defendant's Motion for Summary Judgment be Denied. BY: Date: I - go - C-c;- GALLAGHER, ROWAN & EGBERT, P.C. \ n1 1 ?7 1 N JAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff, Charles Baum -13- GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant Attorney for Plaintiff Charles Baum COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03-3712 CERTIFICATE OF SERVICE I, Benjamin Gialloreto, as attorney for the Plaintiff in the above-captioned matter, hereby certify that I served a true and correct copy of Plaintiffs Response to Defendant's Motion for Summary Judgment was served upon counsel for the Defendant at the name and address as appears below, via Regular Mail Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15"' Floor, Strawberry Square Harrisburg, PA 17120 GALLAGHER, By: BENJ MIN N. & EGBERT, P.C. DATE: January, 2005 ?.? .(_ Y ? (' * ,.; C p t.? _,• . ?_.? 5' "'" - ? ct ?. _ ?? ..; r 1'r C3? ii3. N , (v" .? ? -w . ? i; l _ ? . . 4 ?.' K 3 N GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff Attorney ID # 59511 Charles Baum 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 bgialloreto@grelaw.com FILE NO: 500.149 CHARLES BAUM COURT OF COMMON PLEAS Box A, Bellefonte, PA 16823, CUMBERLAND COUNTY Plaintiff CIVIL ACTION vs. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant PLAINTIFF'S RESPONSE TO DEFENDANT COMMONWEALTH'S MOTION FOR SUMMARY JUDGMENT AND NOW, here comes Plaintiff, Charles Baum, ("hereinafter "Plaintiff ), by and through its attorneys, GALLAGHER, ROWAN & EGBERT, P.C. and files the within Response to Defendant's Motion for Summary Judgment and in support thereof aver as follows: Admitted. 2. Admitted in part and denied as stated. On August 9, 2001, while in the process of getting into his upper bunk bed, the Plaintiff used his only method of gaining access to the top bunk - the wooden chair. (Reference, Plaintiffs Deposition, attached to Plaintiffs Motion for Summary Judgment, Exhibit "E," p. 12). The bunk beds did not have ladders on them as a means of access to the top bunk bed and there are no ladders in the cell. As he stepped on the "wobbly" chair, it wobbled and slid causing Plaintiff to lose his balance, fall, and his hand to go through the window. (Exhibit "E," p. 12, 14-15, 18, 40-44). 3. Denied as a legal conclusion and admitted only that said statute exists and speaks for itself. 4. Denied as a legal conclusion and admitted only that said statutes exist and speaks for themselves. 5. Admitted. Further, Plaintiff asserts that the personal property exception is triggered because the defective wooden chair in the Plaintiffs prison cell, when used as a means of access to the ladder free upper bunk bed, was personal property owned and in the care, custody and control of the Commonwealth and it caused his fall and injuries. 6. Denied. The Plaintiff has not only alleged sufficient facts to survive immunity but previously filed for summary judgment against the defendant on the issue of liability, and incorporates herein Plaintiffs Motion for Partial Summary Judgment and all exhibits thereto to defeat Defendant's Motion for Summary Judgment. Plaintiffs prior submissions clearly alleged and document how the Personal Property exception to sovereign immunity applies because the chair is personal property of the Defendant and it was responsible for the Plaintiffs injury. The undisputed facts show that (1) the chair was unbalanced and one leg was shorter than the others, (Exhibit "E," p. 13); (2) the chair lacked any anti-sliding, or anti-skidding devices like round rubber soles, (Exhibit "E," p. 40), and (3) the Defendant never inspected, or repaired the chair that was used as a ladder to gain access to the upper bunk bed. (Exhibit "E," p. 40). 7. Denied, Joseph A. Thompson Jr., Professional Engineer, reviewed this matter and issued an expert report and opinions which Plaintiff incorporates by -2- reference from Plaintiffs pending Motion for Summary Judgment. He concludes, to a scientific certainty, that the Defendant was negligent because the wooden chair was dangerous and, when used as a ladder, created a foreseeable and unacceptable risk of injury which was the direct cause of the Plaintiffs fall and injury. (See Report of August 25, 24, 2004, attached to Plaintiffs MSJ as Exhibit "G° 8. Denied for all the reasons above and those incorporated in, and from, Plaintiffs Motion for Partial Summary Judgment. There is no question that the chair and bunk bed fall within the personal property exception to sovereign immunity under 42 Pa. C.S.A. §8522(b)(3) and there is no question that the personal property immunity waiver does not apply because the chair itself and/or the chair and bunk bed combination caused the Plaintiff's injury and were clearly involved in the chain of causation. Thus, this Honorable Court should deny Defendant's Motion for Summary Judgment. By way of further answer, and in further support of Plaintiffs position, Plaintiff hereby incorporates by reference it's supporting Memorandum of Law, and Plaintiffs supporting Motion for Partial Summary Judgment Memorandum of Law and Exhibits as though the same were set forth herein in haec verbs. WHEREFORE, Plaintiff, Charles Baum, respectfully requests that the Defendant's Motion for Summary Judgment be Denied. ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff, Charles Baum Date: 1-20-06 -3- GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION vs. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, here comes Plaintiff, Charles Baum, (hereinafter "Plaintiff ), by and through its attorneys, GALLAGHER, ROWAN & EGBERT, P.C. and files the within Motion for Summary Judgment and in support thereof aver as follows: Procedural Background This claim involves an injury to Plaintiff Charles Baum which was caused by the Defendant's negligence. Plaintiff asserts that the personal property exception to Commonwealth immunity is triggered because the old wooden chair in the Plaintiffs prison cell was personal property owned and in the care, custody and control of the Commonwealth and it caused his fall and injuries. When the Plaintiff used the chair to ascent into his top bunk bed, the chair faltered due to its unstable and defective condition causing Plaintiff to fall and sustain permanent scarring and hand injuries. -t- The Plaintiff previously filed for Summary Judgment ("MSJ") on the issue of liability and oral argument is tentatively scheduled for February 2, 2005. The Defendant's Motion should be heard and argued concurrently with Plaintiffs Motion. Further, Plaintiff incorporates by reference his Motion for Partial Summary Judgment, his Memorandum of Law in Support of Plaintiffs Motion for Summary Judgment, and all exhibits attached thereto. Plaintiff, Charles Baum, respectfully asserts that Defendant's Motion for Summary Judgment should be denied and his Motion for Partial Summary Judgment granted as he is entitled to judgment as a matter of law. Undisputed Facts Defendant's Answer to Plaintiff's Complaint (by conforming pleading number) 5. On August 9, 2001, Defendant operated SCI-Rockview. 6 On August 9, 2001, Plaintiff resided at SCI-Rockview and was in his prison cell. 7. On August 9, 2001, the cell in which Plaintiff occupied had a chair and bunk beds. 8. On August 9, 2001, the chair was personal property of the Defendant. 19. Plaintiff received medical treatment including tendon repairs, stitches, splinting, and medications. (See Plaintiff's Civil Action Complaint, Plaintiffs MSJ Exhibit "A," ¶ 15-8, 20; Defendant's Answer to Plaintiffs Complaint, Plaintiffs MSJ, Exhibit "B" ¶ ¶ 5-8, 20). Defendant's Answer to Plaintiffs Admissions (by conforming number) 10. On August 9, 2001, the cell in which Plaintiff occupied had a wooden chair and bunk beds. -2- 11. On August 9, 2001, the Plaintiff was assigned to the upper bunk bed in his assigned cell. 12. On August 9, 2001, the chair in the Plaintiffs cell was personal property of the Defendant. 13. The bunk bed is either real or personal property of the Defendant. 14. Said chair in Plaintiffs cell on August 9, 2001 was wooden. 19. On August 9, 2001, no ladder was provided to the Plaintiff to gain access into the upper bunk bed. 20. In 1999, the Defendant instituted a project to install ladders to all bunk beds at S.C.I. Rockview. 21. Before August 9, 2001, Defendant knew that chairs were being used by inmates to gain access into the top/upper bunk bed. 22. On August 9, 2001, the floor of the Plaintiffs prison cell was concrete. 24. Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. 34-35 Before August 9, 2001, the Defendant was informed that one or more inmates at SCI-Rockview, had been injured when attempting to gain access into the top bunk bed. -3- (See Plaintiffs Admissions, Plaintiffs MSJ, as Exhibit "C," ¶Q 10-14, 19-22, 24, 34-35; and Defendant's Answer to Plaintiffs Admissions, Plaintiffs MSJ, Exhibit "D" ¶¶ 10-14, 19-22, 24,34-35). Undisputed Facts from Plaintiffs Deposition The Plaintiff is 6'1"tall and weighs 200 pounds. His cell had one wooden chair and bunk beds. (See Plaintiff's MSJ, Exhibit "E," Plaintiffs Deposition, p. 40, 42-43). He always slept in the upper bunk, which is about five feet, nine inches off the ground. (Exhibit "E," p. '12,15). On August 9, 2001, while in the process of getting into his upper bunk bed, the Plaintiff used his only method of gaining access to the top bunk - the wooden chair. (Exhibit "E," p. 12). As he stepped on the "wobbly" chair, it wobbled and slid causing Plaintiff to lose his balance, fall, and his hand to go through the window. (Exhibit "E," p. 12, 14-15,18). The chair is unbalanced and one leg was shorter than the others. (Exhibit "E," p. 13). Said chair lacked any anti-sliding, or anti-skidding devices like round rubber soles. (Exhibit "E," p. 40). No one inspected, or repaired the chair that was used as a ladder to gain access to the upper bunk bed. (Exhibit "E," p. 40). The bunk beds did not have ladders on them as a means of access to the top bunk bed and there are no ladders in the cell. (Exhibit "E," p. 40-41). Now, there are ladders welded on the bunk beds as a means of access into the top bunk bed. Chairs are no longer used. (Exhibit "E," p. 41-44). Standard of Review. A Motion for Summary Judgment may properly be granted when the pleadings, depositions, answer to interrogatories, and admissions on file, together with affidavits, if -4- any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035.2. Cam. v. Riverview Leasing. Inc., 648 A.2d 580 (Pa. Cmwlth. 1994); Hopewell Estate. Inc. v. Kent, 646 A.2d 1192 (Pa. Super. 1994). Armument Defendant is Not Entitled to Summary Judgment Because the Defendant's Chair Caused the Plaintiffs Hand InWries. Defendant was negligent and has no evidence to disprove its negligence. The Defendant is not immune from liability. The personal property exception to sovereign immunity permits a claim for "damages caused by the care, custody or control of personal property in the possession of the Commonwealth agencies . . . " 42 Pa. C.S.A. §8522(b)(3). In order for waiver of sovereign immunity for damages arising from care of personal property to apply, the personal property itself must be in some manner responsible for injury and "only applies in cases where the personal property itself causes the plaintiffs injury; the personal property must be involved in the chain of causation." Nicholson v. M&S Detective Agency. Inc., 503 A.2d 1106 (Pa. Cmwlth. 1986). Thus, even when keeping in mind that the personal property exception is narrowly construed, the question is whether the old wooden chair caused Mr. Baum's hand to plunge through the glass window.' Pennsylvania courts have long recognized a common law duty on the part of a governmental authority to provide reasonable safety and protection to individuals take into custody. See, e.g., Department of Public Welfare v. Kallinger, 580 A.2d (Pa. Cmwlth. 1990), petition for allowance of appeal denied, 615 A.2d 730 (Pa. 1992). Pennsylvania courts have also found unique and uncommon items like baseball bats and corks inside wine bottles triggered the personal property exception and caused injuries. Kenneth ' Whether the chair constitutes personal property is not an issue based upon Defendant's Admissions. (Exhibit "A; 18 Exhibit "B; ¶ 8 Exhibit "C,'J 12 Exhibit "D," J 12). Similarly, the care, custody or control of the chair is also not at issue because it was the Commonwealth-owned personal property and no record evidence exists to refute this assertion. -5- Vaughn v. Cmwlth Dept. Public Welfare, 405 A.2d 1119 (Pa. Cmwlth. 1979), Horick v. Banfi Products Corp., 15 Pa.D. & C.4th 22 (1992). Pennsylvania courts have also held that obscure items like transmission fluid, criminal records, white powder, shoelaces and driving records, did not trigger the personal property exception under 42 Pa. C.S.A. §8522(b)(3) because the items did not cause the injury and/or were not involved in the causal chain of events. In Susko and Adams v. Pa. State Police 572 A.2d 831 (Pa. Cmwlth. 1990), a motorcyclist skidded on transmission fluid left on highway by state police after a motor vehicle accident. The court found that the slippery fluid was not a Section 8522(b)(3) exception only because the plaintiff failed to plead that the State Police had control of the wrecked vehicle and resulting fluids, In Nicholson v. M&S Detective Agency and Cmwlth, 503 A.2d 1106 (Pa. Cmwlth. 1986), a bank teller, who was held hostage by Bank Security Guard who robbed bank, sued the state because they did an inadequate criminal search for the hiring detective agency. The court found that criminal records are Commonwealth owned Personal Property. However, the negligent search of the records is at issue and not an exception. The "care" and "custody" of the records did not cause the injury. "The records were not involved in the chain of causation, only negative search," citing Walters v. Dep. O.T. 474 A.2d 66 (1984). In this matter, the chair was clearly involved in the chain of causation. Bufford v. Department of Transportation, 570 A.2d 751 (Pa. Cmwlth.1996). The case of Serrano v. Pennsylvania State Police, 568 A.2d 1006 ( Pa. Cmwlth. 1990), involved an arrest by the State Police for suspected drugs. The claim arose from his four-month incarceration while awaiting laboratory test results of white powder found on his person at the time of arrest. The powder packet was deemed aspirin. The court cited Nicholson v. M&S Detective, supra, and reaffirmed the holding that "for the personal -6- property waiver to apply, the personal property itself must be in some mannerresponsible for the injury." In Serrano, the powder packet was in custody and control, but did not cause the appellant's injury. It was the failure to quickly analyze the substance. The exception to sovereign immunity, for cases for injury caused by personal property under control of state, did not apply. Serrano v. Pennsylvania State Police, 568 A.2d 1006 ( Pa. Cmwlth. 1990). Similarly, the Commonwealth Court has refused to allow one to sue because Commonwealth employees negligently input information into their computer system resulting in suspended drivers' licenses and needless arrests. Although the driving record is personal property, the failure to properly maintain records is not actionable under 42 Pa. C.S. §8522(b)(3). Again, the personal property waiver "only applies in cases where the personal property itself causes the plaintiff's injury; the personal property must be involved in the chain of causation." Sugalski v. Cmwlth 569 A.2d 1017 (Pa. Cmwlth.1990); Nicholson v. M&S Detective, supra, Bufford v. Penn Dot. 670 A.2d 751 (Pa. Cmwlth.1996). Defendant relies upon Pa. State Police v. Klimek, 839 A.2d 1173 (Pa. Cmwlth. 2003). In that case, a drunken and mentally unstable individual was threatening suicide and taken into custody. His boots were removed and placed outside his holding cell. He managed to get them and hang himself with his own shoelaces. The court found that the action of hanging himself caused the death and, "at most, the shoelace facilitated that outcome, i.e., it cannot be alleged that a shoelace itself caused his death." Id. 839 A.2d at 1177. Defendant uses this case to fortify their position that the chair did not cause Plaintiffs tragic fall. However, Defendant's argument that the shoelace is similar to the chair is mistaken. Klimek took the shoelace and used it to inflict harm upon himself. Similarly, if Klimek took apart the wooden chair and stabbed himself with it, or if he used it to stand on when hanging himself, or if the chair was used to assist him in climbing up a wall and throwing himself off of a roof, then Klimek's chair would be similar to the -7- shoelace. In the instant matter, however, Klimek's shoelaces are not analogous to Mr. Baum's wobbly wooden chair. The chair did not merely facilitate the Plaintiffs "losing his balance." (Defendant's Memorandum of law, p. 6). The undisputed facts clearly demonstrate that the old wooden chair itself was clearly the cause of Plaintiffs fall and injuries. Further, it is undisputed that the chair was "in some manner""involved in the chain of causation." Sugalski v. Cmwlth, supra; Nicholson v. M&S Detective, supra; Bufford v. Pe of supra; Serrano v. Pennsylvania State Police, supra. Plaintiff has demonstrated several facts that show how the chair caused the fall. First, Plaintiffs old wooden chair was an integral part of the cell furniture. Its purpose was not to be used with a desk, because there are no desks in the jail cells. It was used daily as a ladder to the upper bunk. If the chair was stable, safe, and if it had anti-skidding soles, then perhaps the Plaintiff would not have fell. Clearly, there is enough evidence to preclude Defendant's summary judgment. If the chair was properly maintained by the Defendant, then it would have not caused Plaintiffs permanent hand injury. (See Exhibit 'G'). The most interesting case is one from an SU Rockview inmate who, like Mr. Baum and others, was injured trying to get into the top bunk bed. Sometime before 1988, Jay Gallagher was injured while climbing into top bunk bed. The facts here are similar to Mr. Baum's case. The court wrote "he shared a cell with another inmate. The cell had bunk beds, appellant occupying the upper bunk. Because no ladderis in the cell, appellant could reach the upper bunk only by using the cell bars to climb to the upper bunk. Appel lant was using the cell bars to get out of his bunk when his cellmate closed the cell door, severing his left ring finger." Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth.1988). While the court found that the inmate was in custody and control of state, he, himself, was not personal property of state and therefore, the personal property exception to state's sovereign immunity did apply. -8- The alla her case is significant for several reasons. First, it provides the State with notice that inmates in the Rockview SCI could be injured while trying to get on the top bunk bed without a ladder. Second, dissenting opinion, by judges who are still on the Commonwealth Court Bench, found that the cell doorwas real property and thus, the real question was whether the door constituted a dangerous condition within the meaning of 42 Pa. C.S.A. §8522(b)(4), the real property exception. The court said "While the door, in and of itself, may not have been defective, its placement next to the bunk in light of the custom to utilize the door to gain access to the top bunk and in light of the total absence of any other means of access to that bunk, indicates to me a design defect in real property which a jury could reasonably view as a dangerous condition." Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d at 984. The court's opinion was obviously provided to the state and created notice of a dangerous condition.2 Plaintiff retained T2C the Thompson Corporation to conduct an engineering investigation and analysis. Joseph A. Thompson Jr., Professional Engineer, and former Engineer for the Pennsylvania Department of Transportation, reviewed this matter and all the relevant facts and issued a report and professional expert opinions to a scientific certainty. (See Report of August 25, 24, 2004, attached to Plaintiffs Motion for Partial Summary Judgment as Exhibit "G" and Curriculum Vitae attached thereto as Exhibit "H"). Mr. Thompson's scientific conclusions, which highlight Defendant's negligence and the chair as the cause of the Plaintiffs fall, are as follows: 1. The chair, or "access facility" provided by the defendant to Plaintiff was in a dangerous condition and it was conductive to the type of falling event that actually occurred; ` Plaintiff submitted discovery requests to the Commonwealth asking for information on Mr. Gallagher's matter and other inmates who were also injured over the course of time by getting in/out of the top bunk bed. This information was also requested a year prior to this matter being placed in litigation. To date, no formal discovery responses or any other discovery or information was provided to the Plaintiff. -9- 2. The dangerous arrangement of access to the upper bunk by the chair was conducive to the type of falling and injury event occurring; 3. Continuing the above dangerous and hazardous site situation, most specifically requiring the use of the wooden chair in lieu of traditional means of access, is the failure by the Commonwealth to properly provide for safe upper bunk assess, including, but not limited to, providing a component of access with proper climbing potential, such as a ladder; 4. Continuing the above dangerous and hazardous site situations is the failure by the Commonwealth to properly, effectively, correct the unsafe access conditions including, but not limited to, elimination of the hazardous chair climbing access for the upper bunk at the site; 5. Continuing the above dangerous and hazardous site situations is the failure by the Commonwealth to properly, effectively, warn the access users of the unsafe access conditions including, but not limited to, failing to provide Mr. Baum with notice of the hazard the Commonwealth had created; and, 6. Continuing the above dangerous and hazardous conditions is the failure of the agency controlling the site, here the Commonwealth, to properly train and/or monitor their personnel to provide proper inspection, analysis, necessary improvement implementation and/or warning of the access facility hazard, the chair component of access. (Exhibit % pg. 4). Mr. Thompson further opines: These hazardous and/or dangerous upper bunk access condition encountered in the Baum Incident, most specifically requiring the use of the wooden chair in lieu of traditional means of access components, appears fully and completely to present a clear view of official neglect and failure, at a minimum, with regard to the access condition. Considering the performance of the Commonwealth here, this upper bunk access control neglect and failure of the Commonwealth, consequently led directly to and resulted in this incident. The performance of the Commonwealth, was totally improper here under Industry standards, at a minimum, and of itself was the direct cause of the incident in any Professional Engineering opinion. Except for the Commonwealth's failure to correct the access irregularity, most specifically requiring the use of the wooden chair in lieu of traditional means of access components, also including but not limited to provision of adequate facility user warning and/or upper bunk access closure, where and when failing to correct the hazard, -10- the incident would not have occurred. The incident was entirely foreseeable under Industry standards, at a minimum. In way of summary, in my Professional Engineering opinion there is simply no acceptable reason for the Commonwealth to have allowed the existence of the extremely dangerous, hazardous, and substandard condition encountered by the Mr. Baum. The facility access defects described in the body of this report, most specifically the Commonwealth's requiring the use of the wooden chair in lieu of traditional means of access components, in my Professional Engineering opinion, and based upon reasonable engineering certainty, created a readily foreseeable risk of injury and were the direct cause of the fall of Mr. Baum. It is clear the access problem was the proximate cause of the Baum Incident. Mr. Baum was entrapped by the condition of chair access to his upper bunk, created by the Commonwealth. The Engineering Industry would not anticipate that a person in Mr. Baum's circumstances as per this Incident would have appreciatively discovered the hazard and been able to avoid it... (Exhibit "G" pg. 4-5). It is undisputed that the Defendant owed a duty of care to Plaintiff on August 9, 2001, and on all days thereafter since the Plaintiff is in Defendant's custody. Defendant breached its duty of care to Plaintiff by permitting him to use a defective chair as a ladder and the only means of gaining access to his upper bunk bed (Exhibit "G"). Defendant knew, or should have known, of the existence of this problem and dangerous condition prior to the Plaintiffs fall, and Defendant was obligated to remedy, repair and eliminate the defect and to warn Plaintiff of its existence. (Exhibits "F"; "C" and "D," ¶34-35; Exhibit "G" Defendantwas clearly on notice that, beforethis incident, inmates at SCI-Rockview, and other institutions, were injured when attempting to gain access into the top bunk bed because there were no ladders and limited means of gaining access to the top bunk bed. See. Exhibit "F," Gallagher v. Cmwlth Bureau of Corrections, 545 A.2d 981 (Pa. Cmwlth. 1988; Exhibits "C" & "D" ¶¶34-35; Exhibit "G"). -11- There is clearly ample evidence that the chair caused the Plaintiffs injury and was in some manner involved in the chain of causation. Thus, Defendant's Motion for Summary Judgment should be denied. Defendant was negligent and the chair and bunk bed falls within the personal property exception to sovereign immunity under 42 Pa. C.S.A. §8522(b)(3). The personal property immunity waiver does not apply because it is undisputed that the chair and/or bunk bed caused the Plaintiffs injury and were involved in the chain of causation.3 Clearly, the old and wobbly wooden chair is personal property within the meaning of the immunity exceptions. Certainly the chair and/or combination of the chair and ladder free bunk bed caused Mr. Baum's injury. Certainly, the Defendant, especially those at SCI Rockview, knew of this dangerous condition for 15 years and, certainly, the chair itself is responsible for Mr. Baum's injury. Alternatively, the chair and bunk bed are both themselves responsible for causing Mr. Baum's injury. Based upon the record evidence, Defendant's Motion for Summary Judgment must be denied. Since there is no contradicting evidence, Plaintiff's Motion for Partial Summary Judgment should be granted on the issue of liability. Conclusion. For all the foregoing reasons, the Plaintiff, Charles Baum, respectfully requests that this Honorable Court deny Defendant's Motion for Summary Judgement and enter the Plaintiffs proposed Order. s While the majority of this Reply argues how the chair caused the Plaintiffs fall, as Mr. Thompson points out, it was not only the dangerous and defective chair but also the combination of the chair and ladder free bunk bed that caused the fall. This viewpoint is Plaintiffs alternative argument against Defendant's Summary Judgment. Defendant admits that the bunk bed is real or personal property, (Exhibits "C` & V 113), and in 1997, Defendant instituted a project to install (or weld) ladders to all bunk beds at S.C.I. Rockview. (Exhibits 'C' & "D' 1120 and Exhibit OF pp. 40-44). -12- WHEREFORE, Plaintiff, Charles Baum, demands judgment in his favor, and respectfully requests that the Defendant's Motion for Summary Judgment be Denied. GALLAGHER, ROWAN & EGBERT, P.C. BY: IAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff, Charles Baum Date: ? - c10- -13 GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID# 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant Attorney for Plaintiff Charles Baum COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03-3712 CERTIFICATE OF SERVICE I, Benjamin Gialloreto, as attorney for the Plaintiff in the above-captioned matter, hereby certify that I served a true and correct copy of Plaintiffs Response to Defendant's Motion for Summary Judgment was served upon counsel for the Defendant at the name and address as appears below, via Regular Mail Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15'hFloor, Strawberry Square Harrisburg, PA 17120 GALLAGHER, By: ? M BENJAMIN N. & EGBERT, P.C. , ESQUIRE DATE: Januarya0 2005 ? c e? (:, c.r+ °n',c'?' ar? N ? ) C X' :n i 'T' r ?) ? ?„ ? «C JAN 14 2005 ff\ GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 15W WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff Vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03-3712 PRAECIPE FOR CONCURRENT ORAL ARGUMENTS 1. Two Motions are currently pending before the court. Defendant's Motion for Summary Judgment and Plaintiffs Motion for Partial Summary Judgement. 2. By Praecipe for Oral Argument on January 10, 2005, Plaintiff filed a requestfor Oral Argumentfor Plaintiffs Partial Summary Judgment. (Copy attached). 3. Around the same time, Defendant filed for Summary Judgment and Plaintiff will oppose this motion and file a reply on this date. 4. Plaintiff requests oral argument in support of his Response to Defendant's Motion for Summary Judgment and that this matter has been listed on the Oral Argument List concurrently with the pending Oral Argument for Plaintiffs -1- Motion for Partial Summary Judgment. 5. Both counsel agree that oral arguments for their respective pending Summary Judgment motions should be heard at the same time because the issues are similar and it would be more efficient and economical for the court and the parties if the same panel hears both motions. (See attached e-mail correspondence between counsel). 6 Parties Plaintiff: Charles Baum 2611 Caral Street, 3m Floor Philadelphia, PA 19125 Counsel: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 215-732-8900 ext. 102 Defendant: Commonwealth of Pennsylvania Department of Corrections Counsel for Defendant Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15'hFloor, Strawberry Square Harrisburg, PA 17120 (717) 783-3147 7. This notice was faxed to Counsel for the Commonwealth on this date. 8. The next Oral Argument Court List date is February 2, 2005 and both parties can attend, or if convenient for the Court, the parties agree to the next listing -2- thereafter. 9. Plaintiff avers that the Plaintiffs Reply to the Defendant's Motion for Summary Judgment, and Plaintiffs previously filed Motion for Partial Summary Judgment, Memorandum of Law and Exhibits will encompass Plaintiffs Briefs. Respectfully submitted, By: N. Gialloreto, Esquire Date: January 20, 2005 -3- GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION vs. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant PRAECIPE FOR ORAL AR UMENT 1. Plaintiff requests oral argument in support of his Motion for Partial Summary Judgment and that this matter has been listed on the Oral Argument List. 2. Parties Plaintiff: Charles Baum 2611 Caral Street, 3'd Floor Philadelphia, PA 19125 Counsel: Benjamin N. Gialloreto, Esquire c, Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 -h2" Philadelphia, PA 19102 - i 215-732-8900 ext. 102 -1- Defendant: Commonwealth of Pennsylvania Department of Corrections Counsel for Defendant Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 151h Floor, Strawberry Square Harrisburg, PA 17120 I This notice was faxed to Counsel for the Commonwealth on this date. 4. The next Oral Argument Court List date is February 2, 2005. 5. Plaintiff avers that the Motion, Memorandum of Law and Exhibits will encompass Plaintiff's Brief. By: Date: January 7, 2005 -2- Respectfully submitted, GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant CIVIL ACTION No. 03-3712 CERTIFICATE OF SERVICE I, Benjamin N. Gialloreto, Esquire, as attorney f'orthe Plaintiff, Charles Baum, in the above-captioned matter, hereby certify that I served a true and correct copy of Plaintiff's Praecipe for Oral Argument upon counsel for the Defendant at the name and address as appears below, via United States Postal Service, first-class, postage prepaid mail on January 7, 2005. Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15th Floor, Strawberry Square Harrisburg, PA 17120 GALLAGHER, By:? BENJA IIV N. & EGBERT, P.C. , ESQUIRE -3- Y ry ' ti ?? ? ?? ? ?v .. " 4 ?, ? ' y '1?4- ^Yi1l_ ? E? n y i, ? ' ' Y ? 4 ? L - ,. N , ?> cJy : _ _r r - .. ? __ a ,..l , -?-j' 4 ?; 4,7 -'r ? 1' c. ;, ? '?? ?i JAN z 4 2005e GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 Attorney for Plaintiff Charles Baum FILE NO: 500.149 CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION vs. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant PRAECIPE FOR CONCURRENT ORAL ARGUMENTS 1. Two Motions are currently pending before the court. Defendant's Motion for Summary Judgment and Plaintiffs Motion for Partial Summary Judgement. 2. By Praecipe for Oral Argument on January 10, 2005, Plaintiff filed a request for Oral Argumentfor Plaintiff's Partial Summary Judgment. (Copy attached). 3. Around the same time, Defendant filed for Summary Judgment and Plaintiff will oppose this motion and file a reply on this date. 4. Plaintiff requests oral argument in support of his Response to Defendant's Motion for Summary Judgment and that this matter has been listed on the Oral Argument List concurrently with the pending Oral Argument for Plaintiffs -1- Motion for Partial Summary Judgment. 5. Both counsel agree that oral arguments for their respective pending Summary Judgment motions should be heard at the same time because the issues are similar and it would be more efficient and economical for the court and the parties if the same panel hears both motions. (See attached e-mail correspondence between counsel). 6 Parties Plaintiff: Charles Baum 2611 Caral Street, 3'd Floor Philadelphia, PA 19125 Counsel: Benjamin N. Gialloreto, Esquire Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1600 Philadelphia, PA 19102 215-732-8900 ext. 102 Defendant: Commonwealth of Pennsylvania Department of Corrections Counsel for Defendant: Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15V' Floor, Strawberry Square Harrisburg, PA 17120 (717) 783-3147 7. This notice was faxed to Counsel for the Commonwealth on this date. 8. The next Oral Argument Court List date is February 2, 2005 and both parties can attend, or if convenient for the Court, the parties agree to the next listing -2- thereafter. 9. Plaintiff avers that the Plaintiffs Reply to the Defendant's Motion for Summary Judgment, and Plaintiffs previously filed Motion for Partial Summary ud meM, Memorandum of Law and Exhibits will encompass Plaintiffs Briefs. By: Date: January 20, 2005 IV. Gialloreto, Esquire -3- Respectfully submitted, GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney for Plaintiff Attorney ID # 59511 Charles Baum 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 CHARLES BAUM COURT OF COMMON PLEAS Box A, Bellefonte, PA 16823, CUMBERLAND COUNTY Plaintiff CIVIL ACTION vs. No. 03-3712 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Mill, PA., Defendant PRAECIPE FOR ORAL ARGUMENT 1. Plaintiff requests oral argument in support of his Motion for Partial Summary Judgment and that this matter has been listed on the Oral Argument List. 2. Parties Plaintiff: Charles Baum 2611 Caral Street, 3rdFloor Philadelphia, PA 19125 Counsel: Benjamin N. Gialloreto, Esquire 0 Gallagher, Rowan & Egbert, P.C. 1500 Walnut Street, Suite 1,600 Philadelphia, PA 19102 215-732-8900 ext. 102 W rri _.t -1- Defendant: Commonwealth of Pennsylvania Department of Corrections Counsel for Defendant: Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15`h Floor, Strawberry Square Harrisburg, PA 17120 3. This notice was faxed to Counsel for the Commonwealth on this date. 4. The next Oral Argument Court List date is February 2, 2005. 5. Plaintiff avers that the Motion, Memorandum of Law and Exhibits will encompass Plaintiffs Brief. Respectfully submitted, By: in N. Gialloreto, Esquire Date: January 7, 2005 • -2- GALLAGHER, ROWAN & EGBERT, P.C. BY: BENJAMIN N. GIALLORETO, ESQUIRE Attorney ID # 59511 1500 WALNUT STREET - SUITE 1600 PHILADELPHIA, PENNSYLVANIA 19102 TELE: (215) 732-8900 ex. 102 FILE NO: 500.149 Attorney for Plaintiff Charles Baum CHARLES BAUM Box A, Bellefonte, PA 16823, Plaintiff VS. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, 2520 Lisburn Road, Camp Hill, PA., Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION No. 03-3712 CERTIFICATE OF SERVICE I, Benjamin N. Gialloreto, Esquire, as attorney for the Plaintiff, Charles Baum, in the above-captioned matter, hereby certify that I served a true and correct copy of Plaintiff's Praecipe for Oral Argument upon counsel for the Defendant at the name and address as appears below, via United States Postal Service, first-class, postage prepaid mail on January 7, 2005. Daniel R. Goodemote, Esquire Senior Deputy Attorney General Commonwealth of Pennsylvania 15' Floor, Strawberry Square Harrisburg, PA 17120 GALLAGHER, By: BENJAMIN N. & EGBERT, P.C. , ESQUIRE -3- r> C3, n 4? ra #24 CHARLES BAUM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT : OF CORRECTIONS, 2520 LISBURN RD., CAMP HILL PENNSYLVANIA : NO. 2003-3712 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE GUIDO, J. ORDER OF COURT AND NOW, this 11TH day of FEBRUARY, 2005, after review of the briefs filed by each party and having heard argument thereon, it is hereby ordered and directed as follows: 1.) Defendant's Motion for Summary Judgment is DENIED. 2.) Plaintiff's Motion for Partial Summary Judgment is DENIED. By ourt, njamin N. Gialloreto, Esquire For the Plaintiff amel R. Goodemote, Esquire For the Defendant sld Edward E. Guido, J. Curtis R. Long Prothonotary (Office of the Protbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor ,03 - 371Z? CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573