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HomeMy WebLinkAbout07-3393BARBARA A. WISER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NO: EYl - ?.3 l..luc L ?t BARBARA J. WISER d/b/a THE VALLEY RESTAURANTNALLEY MOTEL; R.L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT, Defendant : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a writ of summons in the above captioned action. Writ of Summons shall be issued and forwarded to the Cumberland County Sheriffs Office. Respectfully submitted, Rominger & Associates Date: June 7, 2007 arl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff WRIT OF SUMMONS To The Above Named Defendants: Barbara J. Wiser d/b/a R.L. Meals and Mary Meals d/b/a The Valley Restaurant/Valley Motel Valley Motel/The Valley Restaurant 1580 Ritner Highway 1580 Ritner Highway Carlisle, Pennsylvania 17013 Carlisle, Pennsylvania 17013 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Pro notary Date: JtwE- 17t 26o7 By: Deputy b C? W N ? r. a -rim SHERIFF'S RETURN - REGULAR 41 CASE NO: 2007-03393 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WISER BARBARA A VS WISER BARBARA J D/B/A ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon WISER BARBARA J D/B/A THE VALLEY RESTAURANT/VALLEY MOTEL the DEFENDANT , at 1044:00 HOURS, on the 14th day of June , 2007 at 1580 RITNER HIGHWAY CARLISLE, PA 17013 BARBARA J WISER by handing to a true and attested copy of WRIT OF SUMMONS day together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 4.80 Postage .58 Surcharge 10.00 .00 33.38 Sworn and Subscibed to before me this of So Answers: R. Thomas Kline 06/14/2007 ROMINGER 8, WHARE ljj By: A. D. SHERIFF'S RETURN - NOT FOUND ' CASE NO: 2007-03393 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WISER BARBARA A VS WISER BARBARA J D/B/A ET AL R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT MEALS R L but was unable to locate Him in his bailiwick. He therefore returns the WRIT OF SUMMONS , the within named DEFENDANT MEALS R L 1580 RITNER HIGHWAY CARLISLE, PA 17013 BARBARA WISER HAS OWNED BUSINESS SINCE 1972 SHE DOES NOT KNOW DEFENDANT. Sheriff's Costs: Docketing 6.00 Service .00 Not Found 5.00 Surcharge 10.00 00 t.l X910 ( 21.00 So NOT FOUND , as to R. Thomas Kline i f of Cumberland County OMINGER & WHARE 06/14/2007 Sworn and Subscribed to before me this day of A. D. SHERIFF'S RETURN - NOT FOUND -v CASE NO: 2007-03393 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WISER BARBARA A VS WISER BARBARA J D/B/A ET AL R. Thomas Kline duly sworn according to law, inquiry for the within named MEALS MARY D/B/A VALLEY MOTE unable to locate Her in his WRIT OF SUMMONS , -,Sheriff or Deputy Sheriff, who being says, that he made a diligent search and DEFENDANT Ii/ THE VALLEY RESTAURANT but was bailiwick. He therefore returns the the within named DEFENDANT THE VALLEY RESTAURANT 1580 RITNER HIGHWAY NOT FOUND , as to MEALS MARY D/B/A VALLEY MOTEL/ CARLISLE, PA 17013 BARBARA WISER HAS OWNED BUSINESS SINCE 1972 SHE DOES NOT KNOW DEFENDANT. Sheriff's Costs: Docketing 6.00 Service .00 Not Found 5.00 Surcharge 10.00 .00 21.00 So an 1:Z. Thomas Kline Ski f of Cumberland County i MINGER & WHARE 06/14/2007 Sworn and Subscribed to before me this day of A. D. BARBARA A. WISER, Plaintiff V. : CIVIL ACTION - LAW // :NO: 01-3393 (2 *wt ? 1 L BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL; R.L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT, Defendant : JURY TRIAL DEMANDED n o -n PRAECIPE FOR WRIT OF SUMMONS "` c To the Prothonotary: , I j Q Please issue a writ of summons in the above captioned action. Writ of Summons shall be issued and forwarded to the Cumberland County Sheriff s Off qb. c:) Respectfully submitted, Rominger & Associates Date: June 7, 2007 2--- <arl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff WRIT OF SUMMONS To The Above Named Defendants: Barbara J. Wiser d/b/a RL. Meals and Mary Meals d/b/a The Valley Restaurant/Valley Motel Valley Motel/The Valley Restaurant 1580 Ritner Highway 1580 Rimer Highway Carlisle, Pennsylvania 17013 Carlisle, Pennsylvania 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date: Juk 'yt A007 Protho tart' By: Deputy TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hared and the seal of said C °t at Carlisle, Pa. This ... ... day of.J"E.-.,, 7 rothonotary { z I: I i v I I it i5 t03z Johnson, Duffie, Stewart & Weidner •A* By: Wade D. Manley eo I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com BARBARA A. WISER, Plaintiff V. BARBARA J. WISER d/b/a THE VALLEY Attorneys for Defendant Barbara J. Wiser d/b/a The Valley Restaurant/Valley Motel IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3393 CIVIL TERM RESTAURANTNALLEY MOTEL, TRIAL BY A JURY OF TWELVE DEMANDED R.L. MEALS AND MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT, Defendants PRAECIPE TO ENTER APPEARANCE AND RULE TO FILE COMPLAINT AND NOW, this /3 "'day of August, 2008, enter our appearance for Defendant Barbara J. Wiser d/b/a The Valley Restaurant/Valley Motel and issue a Rule to Plaintiff to file a Complaint within twenty (20) days of the date of service thereof, or suffer judgment of non pros. JOHNSON, DUFFIE, STEWART & WEIDNER By: Nwk Wade 13. Minleiv TO THE PLAINTIFF: FILE COMPL AND NOW, this 14" day of August, 2008, a Rule is hereby issued to you to file your Complaint in the above-captioned action within twenty (20) days of the date of service hereof, or suffer judgment of non pros. PROTHONOTARY By: 341170 Deputy CERTIFICATE OF SERVICE AND NOW, this 43 day of August, 2008, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: M elle H. Spangler :341170 22740-2349 C=Y r C37 ,? t "71 f N.? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY BARBARA A. WISER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NOV - E313 BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL,: R.L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT,: Defendant : JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY BARBARA A. WISER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NO: 07-3393 BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL,: R.L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT,: Defendant : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Barbara Wiser, through her counsel, Karl E. Rominger, Esquire, and respectfully files the following Complaint, and in support thereof avers the following- 1 . Plaintiff, Barbara Wiser, is an adult individual residing at 1838 Ritner Highway, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant, Barbara J. Wiser d/b/a The Valley Restaurant/Valley Motel (hereinafter "The Valley") is a duly licensed restaurant doing business at 1580 Rimer Highway, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, R.L. Meals and Mary Meals d/b/a Valley Motel/The Valley Restaurant (hereinafter "The Valley") is a duly licensed restaurant doing business at 1580 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17013. 4. At all times mentioned herein, defendants were in exclusive possession, management, and control of the restaurant, individually and through their employees who are acting within the course and scope of their employment by Defendant and in furtherance of defendant's business. 5. On or about July 8, 2005, plaintiff was a business visitor to the restaurant, and as she was entering the restaurant via the parking lot, there existed a concrete parking block/curb/bumper that was broken and as Plaintiff was walking her foot became wedged between the concrete parking block/curb/bumper and the macadam, which caused plaintiff to stumble, and fall, resulting in serious and permanent injuries as set forth below. 6. The accident was caused exclusively and solely by the defendants' negligence, carelessness, and recklessness in that: A. Defendants negligence to replace and/or fix the broken concrete parking block/curb/bumper posed an unreasonable risk of injury to plaintiff and other business visitors; B. Defendants failed to make a reasonable inspection of the parking lot which would have revealed the existence of the dangerous condition posed by the concrete parking block/curb/bumper which was broken and had a gap between the macadam and itself. C. Defendants failed to give warning of the dangerous condition posed by the concrete parking block/curb/bumper, by not placing an adhesive between the concrete parking block/curb/bumper and the macadam, or taking any other safety precautions to prevent injury to the plaintiff and other business visitors. D. Defendants failed to remove the concrete parking block/curb/bumper from the parking lot when the concrete parking block/curb/bumper became a dangerous condition to plaintiff and other business visitors. E. Defendants failed to give warning of the dangerous condition posed by the concrete parking block/curb/bumper. F. The lighting and parking lot layout were maintained and operated in a negligent manner. 10. Solely as a result of the defendant's negligence, carelessness and recklessness, plaintiff sustained injuries to her foot; all of which injuries have caused plaintiff great pain and suffering, which may continue for an indefinite time in the future and may be permanent. 11. Solely as a result of defendant's negligence, carelessness and recklessness, plaintiff has and will in the future be obliged to expend monies for medicine and medical care in order to treat and help her injuries. 12. Solely as a result of defendant's negligence, carelessness and recklessness, plaintiff has and will in the future be unable to attend to her usual and daily duties and employment, to her financial detriment and loss. WHEREFORE, Plaintiffs respectfully request that this Honorable Court find in favor of the Plaintiff and against the Defendants, for an amount not more than the statutory limits for compulsory arbitration, including costs of this suit and attorney's fees. Respectfully submitted, ROMINGER & ASSOCIATES Date: September 2, 2008 Karl E. Rominger, Esquire Attorney I.D. No. 81924 155 South Hanover Street Carlisle, Pennsylvania. 17013 Tel: (717) 241-6070 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY BARBARA A. WISER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NO: 07-3393 BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL,: R.L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT,: Defendant : JURY TRIAL DEMANDED VERIFICATION I, Karl E. Rominger, Esquire, attorney for the Plaintiff herein, have sufficient knowledge of the facts contained in this Complaint and verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, based upon information received from the Plaintiff. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. A verification executed by the Plaintiff will be filed of record as soon as it becomes available. Date Karl . Rominger, Esquire s a Johnson, Duffle, Stewart & Weidner By: Wade D. Manley, Esquire I. D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com BARBARA A. WISER, Plaintiff V. Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL, NO. 07-3393 R. L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THEVALLEY RESTAURANT, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: BARBARA A. WISER, Plaintiff c/o Karl E. Rominger, Esquire Rominer & Associates 155 South Hanover Street Carlisle, PA 17013 AND NOW, this L day of September, 2008, you are hereby notified to plead responsively within twenty (20) days of the date of service hereof, or judgment may be entered against you. JOHNSON, DUF7STEWART & WEIDNER By: Wade . Marale DATE: q 1? I (/ Johnson, Duffle, Stewart & Weidner By: Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com BARBARA A. WISER, Plaintiff V. BARBARA J. WISER d/b/a THE VALLEY RESTAURANTNALLEY MOTEL, R. L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THEVALLEY RESTAURANT, Defendants Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3393 JURY TRIAL DEMANDED ANSWER OF DEFENDANTS TO PLAINTIFF'S COMPLAINT INCLUDING NEW MATTER AND NOW, this ;'O day of September, 2008, come the Defendants, Barbara J. Wiser d/b/a The Valley Restaurant/Valley Motel, R. L. Meals and Mary Meals d/b/a Valley Motel/The Valley Restaurant, by and through its attorneys, Johnson, Duffie, Stewart & Weidner, P.C., to file the following Answer With New Matter to the Plaintiffs Complaint, and in support thereof avers as follows: 1. Denied. The Defendants are without information sufficient to form a belief as to the truth or falsity of the averments contained in this paragraph, therefore the same are denied and strict proof thereof is demanded at the time of trial. 2. Admitted. 2 3. Admitted. 4. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at time of trial. 5. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at time of trial. 6. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at time of trial. 10[sic]. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at time of trial. 3 11. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at time of trial. 12. Denied. The averments contained in this paragraph are conclusions of law to which no response is required. If it is deemed that a response is required, the averments contained in this paragraph are specifically denied and strict proof thereof is demanded at time of trial. WHEREFORE, the Defendants demand judgment in their favor and against the Plaintiffs and request that Plaintiff's Complaint be dismissed with prejudice. NEW MATTER By way of additional answer and reply, the Defendants raise the following New Matter: 13. Plaintiffs Complaint failed to state a claim upon which relief may be granted. 14. Plaintiff's claims and/or alleged losses are barred or limited by the Pennsylvania Comparative Negligence Act, or by the doctrine of contributory negligence. 15. The Plaintiff failed to exercise reasonable care under the circumstances during the following: 4 a. Walking inattentively without first ascertaining whether it was safe to do so. b. Knowingly and voluntarily encountering an obvious danger; C. Failing to wear suitable shoes; d. Failing to watch where she was going; and e. Walking a hurried or otherwise inappropriate manner. 16. Plaintiffs failure to exercise reasonable care for her own safety was a substantial factor in the happening of the alleged incident. 17. If a dangerous condition existed at the time of the alleged incident, which is denied, the Defendants did not have actual or constructive notice of the alleged dangerous condition prior to the incident. 18. Plaintiffs injuries and/or losses, if any, were not caused by the acts, omissions or breaches of duty by the Defendants. 19. The Plaintiff knowingly and voluntarily assumed the risk of her injuries under the circumstances then and there existing by identifying a dangerous condition, appreciating its dangerous character and voluntarily proceeding to encounter that condition. 5 WHEREFORE, the Defendants demand judgment in their favor and against the Plaintiff and respectfully request that the Plaintiffs Complaint be dismissed with prejudice. Respectfully submitted, JOHNS N, DUF;FIIE, STEWART & WEIDNER By: Wade D. Manley, Esq ire Attorney I.D. No. 8724 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants DATE: eFI-41 Y 344097 22740-2349 6 VERIFICATION 1, BARBARA J. WISER d/b/a The Valley RestaurantfValley Motel, hereby acknowledge that I am a Defendant in this action; that I have read the foregoing Answer to Plaintifrs Complaint Including New Matter; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. d% 4 '1 ARBARA J. WISE /b/a The Valley Restaurant/Valley Motel DATE: 9-, yet-o'?? CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Answer of Defendants to Plaintiffs Complaint Including New Matter upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 1 Sf day of dc/ , 2008, addressed to the following: Karl E. Rominger, Esquire Rominer & Associates 155 South Hanover Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: Wade D. Manley, Es uir Attorney I.D. No. 8724 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants h? .:J -r 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY BARBARA A. WISER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NO: 07-3393 BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL,: R.L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT,: Defendant : JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND NOW, comes Barbara A. Wiser, by and through her counsel, Karl E. Rominger, Esquire, and in support of her Answer, avers as follows: 13. Conclusion of law and requires no answer. 14. Conclusion of law and requires no answer. 15. A-E Denied. By way of further answer Plaintiff was walking appropriately with suitable foot ware at all times. 16. Conclusion of law and requires no answer. By way of further answer if one is deemed required it is Denied. 17. Conclusion of law and requires no answer. By way of further answer if one is deemed required it is Denied. 18. Conclusion of law and requires no answer. By way of further answer if one is deemed required it is Denied. 19. Conclusion of law and requires no answer. By way of further answer if one is deemed required it is Denied. J WHEREFORE, Plaintiffs demands judgment in her favor and against the Defendant. Respectfully submitted, ROMINGER & ASSOCIATES Date: December 23, 2008 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 Tel: (717) 241-6070 Supreme Court I.D. No. 81924 Attorney for Plaintiff J IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY BARBARA A. WISER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW :NO: 07-3393 BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL,: R.L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT,: Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Plaindfi s Answer to Defendant's New Matter upon the following by depositing the same in the United States mail, first class, postage prepaid, addressed as follows: Wade D. Manley, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. 501 Market Street P.O. Box 109 Lemoyne, Pennsylvania 17043-0109 Date: December 23, 2008 Respectfully submitted, ROMINGER & ASSOCIATES Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 Tel: (717) 241-6070 Supreme Court I.D. No. 81924 Attorney for Plaintiff -TI r.a ' i.I FILED-&FCE 1 TAP 2010 J; -g P11 1: 11 Johnson, Duffle, Stewart & Weidner By: Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com BARBARA A. WISER, Plaintiff V. BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL, R. L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/T'HEVALLEY RESTAURANT, Defendants 6 1J ?y?IN f Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3393 JURY TRIAL DEMANDED DEFENDANTS' MOTION FOR STATUS CONFERENCE AND NOW, this 74k day of January, 2010, come the Defendants by and through their undersigned attorneys, Johnson, Duffie, Stewart & Weidner, P.C., and file the following Motion for Status Conference and in support thereof avers as follows: 1. This case involves a claim for personal injuries to the Plaintiff resulting from a trip and fall accident which occurred on or about July 8, 2005. 2. On October 20, 2008, undersigned counsel for the Defendants served written discovery on Plaintiff's counsel. 3. In June of 2009, after several requests for responses to the written discovery, Plaintiff served some medical records, but other documentation appeared missing. 4. On July 29, 2009, undersigned counsel requested Plaintiff to provide support for liens Plaintiff claims are attached to her claim and provide a demand. 5. Without receiving a response, on October 22, 2009, Plaintiffs counsel was again contacted requesting documents and a status report in order to move this case forward toward resolution. 6. Again, no response has been received by Plaintiffs counsel. 7. The Defendant has attempted to contact Plaintiffs counsel to finalize outstanding issues of document production and damages without a response. 8. A status conference is requested to set deadlines for document production and finalization of damages and to set a date for trial. 9. Currently, neither party has requested a jury trial. 10. No judge has been assigned to this matter nor made a ruling related to this matter. 11. Plaintiffs counsel has not responded as to his position in filing the instant Petition. WHEREFORE, the Defendants respectfully request that this Honorable Court enter an Order scheduling a Status Conference. JOHNSON, DUFFIE, STEWART & WEIDNER By: Wade D. Mane , Esquire Attorney I.D. . 87244 301 Market St et P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants DATE: t ffl(a :387783 22740-2349 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Defendants' Motion for Status Conference upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the day of 2010, addressed to the following: Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER Vv By: Wade . M ley Esquire Attorney I. C(. No 87244 301 Market et P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants " i PY Z010JA40 1Z r. F": Ri" r CUMBER ? ?"EW PEW BARBARA A. WISER, Plaintiff V. BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL, R. L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THEVALLEY RESTAURANT, Defendants ORDER Sara I 1 2010 G IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3393 JURY TRIAL DEMANDED AND NOW, this _kAf day of 2010, upon consideration of the foregoing Motion for Status Conference, it is ORDERED that a Status Conference is scheduled for 2010, at ?.m. in Courtroom cl of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: 41"R- N.'a'` LY I el KU&I 1?owlt ??r1jttt LFICL BARBARA A. WISER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW BARBARA J. WISER d/b/a THE VALLEY RESTAURANTNALLEY MOTEL, NO. 07-3393 R. L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THEVALLEY RESTAURANT, Defendants JURY TRIAL DEMANDED ORDER S Y =? r- u AND NOW, this day of April, 2010, by agreement of the parties, the following case management deadlines are established: 1. All written discovery shall be propounded within fifteen (15) days of the date of this Order, and answered within thirty (30) days of this Order; 2. All depositions of the parties shall be completed within sixty (60) days of the date of this Order; 3. Plaintiff shall produce any and all expert reports within seventy-five (75) days of the date of this Order; 4. Defendants shall produce any and all expert reports within one hundred and twenty (120) days of the date of this Order; 5. The case shall be listed for an arbitration hearing at the convenience of the parties at any time after one hundred and twenty (120) days of the date of this Order. BY THE COURT: (20F 1-gs "I't" W_ 'mac K . "r'- r1z_ fi4kt C4.). Pz" A4/1/td Johnson, Duffie, Stewart & Weidner By: Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com BARBARA A. WISER, Plaintiff V. Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW BARBARA J. WISER d/b/a THE VALLEY c RESTAURANT/VALLEY MOTEL, : NO. 07-3393 ?. R. L. MEALS and MARY MEALS d/b/a nR :. VALLEY MOTEL/THEVALLEY RESTAURANT, Defendants : JURY TRIAL DEMANDED C, PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: _t Wade D. Manley, counsel for the Defendants in the above action respectfully represent that: 1. The above-captioned action is at issue. 2 The parties have stipulated to list the matter for an arbitration hearing by Order entered by the Honorable M.L. Ebert, Jr., a copy is attached as Exhibit A. The following attorneys are interested in the case as counsel, or are otherwise disqualified to sit as arbitrators: Wade D. Manley for Defendant and Karl E. Rominger for Plaintiff. e?c? 3ya78 / WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: ?v Wade D. Manley Attorney for Defendants 413283 CERTIFICATE OF SERVICE G AND NOW, this /5?" day of September, 2010, the undersigned does hereby certify that she did this date serve a copy of the within Petition for Appointment of Arbitrators upon the other party of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Karl E. Rominger, Esquire Rominer & Associates 155 South Hanover Street Carlisle, PA 17013 By: Wade D. Manley BARBARA A. WISER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 07-3393 CIVIL BARBARA J. WISER, R.L. MEALS and MARY MEALS Defendants ORDER AND NOW, this 21- day of September, 2010, the appointment of John J. Mangan, Esquire, as a member of the Board of Arbitrators in the above-captioned case is VACATED. Jeff Lawrence, Esquire, is appointed in his place. BY THE COURT, Dawn S. Sunday, Esquire Chairman, Board of Arbitrators ,,?eff Lawrence, Esquire ,,,-TAn J. Mangan, Esquire Court Administrator - (20 4tc? Am r ?xl ???? W? Sew In the Court of Common Pleas of Cumberland Plaintiff aw , S W, sey ,L VYteaJS &,,-d Mo-,l M,-ftls County, Pennsylvania No. 0 -7 - y3q,3 Defendant Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth we harge the duties of our office with fi Signature Signature Signa e Gl ?'? J EPF ?? t_? w,n S - Suva" Name (Chairman) Name Name 5 v,-a &-A Su r? Law Firm Address Law Firm Address T Mrr?t 9 A5 5oc 1 4T? wa Firm ,19. HA"Over_ Address 4- i (V (2 ,me 004E c? b vim, Pw l -2055 1? r'*' V7 M" City, Zip City, Zip City, Zip /OR, r !A Award Q a2,14 8 3s ?o We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) fit/ Q TZ ?1C? t ?l ?G?/Gn L d h 1 .Arbitrator, dissents. (Insert name if applicable.) Date of Hearing: J a c'a?,? (??7y D Date of Award: o Notice of Entry of Award Now, the'' ?- day of 20 16 , at_, ?_•M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to ?e paid upon appeal: $ By. ^F Prothonotary VawDeputy 0? T#LPRO Nf WO FILED-OFFICE 2010 DEC 17 PM 2: 20 CUMBERLAND COUNTY PENNSYLVANIA 4. Barbara A. Wiser VS Barbara J. Wiser, et al IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0.07-3393 ?+n NOTICE OF APPEAL' C FROM AWARD OF BOARD OF ARBITRATORS ='? 5 TO THE PROTHONOTARY: Notice is given that Barbara A. Wiser ;J n .C 'C1 c,1 appeals from the award of the board of arbitrators entered in this case on December 16, 2010 A jury trial is demanded J. (Check box if a jury trial is demanded. Otherwise jury trial is waived.) I hereby certify that a 1. the compensation of the arbitrators has been paid, or ?2. application has been made for permission to proceed in forma pauperis. (Strike out the inapplicable clause.) App t or Attorney for Appellant NOTE: The demand for jury trial on appeal from compulsory arbitration is governed by Rule 1007.1 (b). No affidavit or verification is required. ?.J cn; M, 4350. ?0 r'? "'f, ec"AJt,- LLB" 713Y 9-14 D-5375- (% l-r PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (X) for JURY trial at the next term of civil court ( ) for trial without a jury CAPTION OF CASE (entire caption must be stated in full) BARBARA A. WISER, vs. (Plaintiff) BARBARA J. WISER d/b/a THE VALLEY RESTAURANTNALLEY MOTEL, R. L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THE VALLEY RESTAURANT, (Defendants) (check one) (X) Civil Action - Law ( ) Appeal from Arbitration (other) The trial list will be called on June 21, 2011. Trials commence on July 18, 2011. n o ZFt Pre-trials will beheld on July 6, 201roGo ? rn - (Briefs are due 5 days before pre-trit? ? ?o Q C-) 30 C) - n. CD, r°' 7) No. 2007-3393, Civil Term -< Indicate the attorney who will try case for the party who files this praecipe: Wade D. Manley, Johnson Duffle, P.O. Box 109, Lemoyne, PA 17043-0109 For Defendants Indicate trial counsel for other parties if known: Karl E. Rominger, Esquire, Rominer & Associates, 155 South Hanover Street, Carlisle, PA 17013 For Plaintiff This case is ready for trial. Date: Apri14, 2011 :436702 o'/i Aar. o A*j Signed: Print Name: Wade Manley Attorney for Defendants ?ek 31el 38 RV'4' -?5-7 56 l J BARBARA WISER, PLAINTIFF V. BARBARA WISER D/B/A THE VALLEY RESTAURANT/ VALLEY MOTEL, R.L. MEALS AND MARY MEALS D/B/A VALLEY MOTEL/THE VALLEY RESTAURANT, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3393 CIVIL IN RE: PRE-TRIAL CONFERENCE ORDER OF COURT AND NOW, this 6th day of July, 2011, after pre-trial conference with counsel in this matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. Trial counsel in this case shall be Karl Rominger, Esquire for Plaintiff and Wade Manley, Esquire for Defendant. 2. There are no judicial conflicts in this matter. 3. Counsel for the Defendant has indicated that he may file a Motion in Limine regarding the photographs of the curve protectors in question. Defense Counsel maintains that photographs of curve protectors which were not involved in the Plaintiff's fall should not be admitted to the record. I indicated that this matter would be ruled on by the trial judge. 4. Counsel have indicated that the trial will take approximately 1 day. 5. Each party will be granted four peremptory challenges. 6. There is no need for a view in this matter. 7. Counsel has agreed that jurors will not be allowed to take notes. 8. The parties shall prepare an exhibit list. Two copies of this exhibit list shall be provided to the Court prior to the commencement of trial. All visual aids used in the case shall be disclosed to the opposing party. 9. Counsel for each party is directed to file with the Court on or before 12:00 p.m. on Friday, July 15, 2011, a list of the numbered standard jury instructions the party is requesting. If a party is proposing a unique jury instruction or requesting significant modification of a standard instruction, it shall provide the full text of the proposed instruction to the Court. 10. Can or before 12:00 p.m. on Friday, July 15, 2011, the parties will provide a proposed verdict slip to the Court for review. By the Court, Ahk- M. L. Ebert, Jr., J. ? Karl Rominger, Esquire Attorney for Plaintiff v' Wade Manley, Esquire 3 Attorney for Defendant m,Q'-, c ' "r" t" 1 C) 6 ourt Administrator C ris fn ct 1 F d z 4h :X -iSr- , ?,Il C W it t -A, 4`v 1 JUL 121,`! 10, Cc, Johnson, Duffie, Stewart & Weidner By: Wade D. Manley, Esquire I . D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com r- I t% 4 iBERLAND COUN DVPI SYLVANIA Attorneys for Defendants BARBARA A. WISER, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL, : NO. 07-3393 R. L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THEVALLEY, RESTAURANT Defendants : JURY TRIAL DEMANDED DEFENDANTS' MOTION IN LIMINE TO PRECLUDE EVIDENCE OF THE NECESSITY OF SURGERY ON HER TOE AND ESTIMATE OF COST AND NOW, come the Defendants, by and through their counsel, Johnson, Duffie, Stewart & Weidner, P.C., who file this Motion in Limine by respectfully stating the following: On July 8, 2005, after finishing her meal at the Valley Restaurant and Motel the Plaintiff alleges that she left the restaurant and injured her pinkie toe on her right foot when it went under a deteriorated portion of the curb protector immediately in front of the door to the restaurant. 2. The Plaintiff has presented no expert medical report in the referenced matter regarding the necessity of surgery on the toe she allegedly injured. 3. This matter is an appeal from an arbitration award and during the hearing the Plaintiff testified that her treating physician told her she needed surgery and that her doctor gave her an estimate of what the surgery would cost. 4. The Plaintiff's medical records however do not state anywhere that surgery on her toe world be required or indicate that he would provide Plaintiff with an estimate of how much such a procedure would cost. 5. It is believed the Plaintiff was confused at the arbitration hearing concerning possible surgery as a record from a November 19, 2007 visit to John Sekel, DPM indicates that he suggested she have a ganglion cyst located on her ankle removed and that he would provide her a cost estimate of that procedure. See, November 19, 2007 report of John Sekel, DPM, attached hereto as Exhibit A. 6. With no medical expert to provide testimony, it is believed that the Plaintiff will be seeking permission to allow the medical records to be introduced to provide medical evidence. 7. Therefore, the Plaintiff should not be permitted to introduce medical evidence that a testifying expert would not be allowed to introduce. 8. Pennsylvania Rule of Civil Procedure 4003.5(c) states: To the extent that the facts known or opinion held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. Pa.R.C.P. 4003.5(c). 9. Therefore, the Plaintiff is bound by the fair scope of the medical records she provided during discovery. 10. Due to the fact there is no indication in the records that the Plaintiff would need surgery on her toe nor provide an estimate of the cost of such a surgery, the Plaintiff must be precluded from offering any such evidence at the time of trial. 11. No response to a request for concurrence was provided. WHEREFORE, the Defendants respectfully request that this Honorable Court preclude any evidence that the Plaintiff would need surgery on her toe nor provide an estimate of the cost of such a surgery at trial in the captioned matter. JOHNSON, DUFFIE, STEWART & WEIDNER By WIII OLU) Wade D. Ma ley, Esquire Attorney I. D. No. 87244 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 P Telephone (717) 761-4540 i DATE: Attorneys for Defendants • ? ? ? t :449168 22740-2349 ?XN? Bi i Note for BARBARA WISER on 11/19/2007 -Chart 20661-1 Subjective:This 45 year old female presents today for evaluation of ankle pain and instability.She presents today for evaluation of recent MRI of the right ankle. She sustained a inversion ankle sprain at work and presented initially with pain swelling and tenderness. She presents today with continued pain and swelling and wearing her Cam walker as directed. There are no changes in her past medical history. done byisl Objective: Skin temperature of the lower extremities is warm to cool, proximal to distal. done byJsl DP pulses palpable bilateral. done byisl PT pulses palpable bilateral. done by jsJ CFT immediate. done by jsl No edema observed. done by jsl Varicosities are not observed. done by jsl Dermatological Exam: No skin rash, subcutaneous nodules, lesions or ulcers observed. done by Jsl Neurological Exam: Touch, pin, vibratory and proprioception sensations are normal. done by JsJ Deep tendon reflexes normal.1done by jsl Musculoskeletal Exam: Examination of the posterior tibial tendon reveals pain to direct palpation of the distal tendon with a palpable mass just superior to the navicular tuberostity. There is pain and tenderness with palpation of the tendon and pain with active ROM of the tendon for inversion and plantar flexion. done by JsJ Muscle strength is 5/5 for all groups tested. done byisl Muscle tone is normal. done by JsJ Inspection and palpation of bones, joints and muscles is unremarkable. done byisl Test Results: Test Results: MRI: reveals a ganglion cyst measuring 1.lxl.3xl.5cm arising from the distal medial posterior tibialis tendon sheath and surrounding the PT tendon. Idone byisl Radiographic Exam: Impression: PT tendon Ganglion cyst. done by js Plan: Treatment Plan The treatment plan is to treat this patient with conservative and restorative nonsurgical treatment to help alleviate the patient's symptomatology by utilizing some or all of the standard podiatric medical care- e.g.- palliation, orthotics, injections, physical therapy and the use of padding and strapping. Short term goals: Our plan is to decrease pain, and inflammation, improve ambulation and to allow the patient to return to normal acitvities, work, and long term weight bearing, pain-free and tho prevent further disability.Long term goals: Our plan is for the patient to resume normal foot function and weight bearing, and to pervent surgical intervention. We will reevaluate the patient's progress on a weekly or biweekly basis until symptoms complex subsides or is resolved. Due to the nature and location of the cyst I have not recommended a local steroid injection and aspiration would probably cause too much damage. I have recommended for removal of the cyst due to the location wrapped around the PT tendon. She was given scripts for bloodwork and Tylenol #3 with codiene. Right now she does not have insurance and will be paying cash. for the procedure. I will contact both surgery centers for cost estimate. She will Page: 1 WISER, BARBARA 11/19/2007 - 20661-1 follow uo to schedule surgery. done by jsl John Sekel, DPM ,Tohn Sekel DPM Page: 2 CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Motion in Limine, upon all parties or counsel of record on the day of July, 2011, via first-class mail, as follows Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: U VV'j U JA Wade'D. Manl y, Esquire Attorney I.D. No. 87244 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants r• r -f'I IC . F, OTHONJTAP? 12 Ati10:')i Johnson, Duffie, Stewart & Weidner By: Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com C1'h 13 F?RLAN0 COUNT`,' Fl- 'a-ySYLVAtiIA Attorneys for Defendants BARBARA A. WISER, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL, : NO. 07-3393 R. L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/THEVALLEY, RESTAURANT Defendants : JURY TRIAL DEMANDED DEFENDANTS' MOTION IN LIMINE TO PRECLUDE PHOTOGRAPHS AND EVIDENCE OF CURB PROTECTORS NOT INVOLVED IN INCIDENT AND NOW, come the Defendants, by and through their counsel, Johnson, Duffie, Stewart & Weidner, P.C., who file this Motion in Limine by respectfully stating the following: 1. On July 8, 2005, after finishing her meal at the Valley Restaurant and Motel the Plaintiff alleges that she left the restaurant and injured her pinkie toe on her right foot when it went under a deteriorated portion of the curb protector immediately in front of the door to the restaurant. 2. The Plaintiff has provided several photographs of the restaurant and parking lot at issue in the referenced matter, including photographs of curb protectors other than that curb protector that the Plaintiff claims she injured herself on. 3. Photographs of the curb protector at issue are easily distinguishable from the photographs of irrelevant curb protectors. 4. The Plaintiff has provided two photographs of the curb protector at issue that actually show the direction and approximate location where the Plaintiff was walking at the time of the alleged incident. See, photographs attached hereto as Exhibit A. 5. The Plaintiff's testimony also confirmed the location of the of the curb protector at issue matches the photographs showing the direction and approximate location where the Plaintiff was walking at the time of the alleged incident. See, deposition transcript of Barbara A. Wiser, attached hereto as Exhibit B, p. 14-17. 6. In addition to the two photographs of the curb protector at issue, the Plaintiff has provided at least five (5) photographs of curb protectors other than the curb protector at issue. See, photographs attached hereto as Exhibit C. 7. A cursory review of the photographs in Exhibits A and C clearly reveal that the curb protectors depicted in Exhibit C are in a different condition than the curb protector at issue as depicted in exhibit A. Cf., Exhibit A and Exhibit C. 8. Pennsylvania Rule of Evidence 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401. Pa.R.E. 402 states that evidence that is not relevant is not admissible. Pa.R.E. 402. 9. Even if evidence is deemed relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Pa. R. E. 403 10. The condition of any curb protector other than the curb protector that the Plaintiff alleges was involved in the incident has no tendency to make the existence of any fact that is of consequence to the determination of whether the Defendants' negligence caused her injuries more probable or less probable than it would be without the work order. 11. The Plaintiff has to prove the curb protector that she was allegedly injured on breached a duty owed to her, so the condition of any other protector is not relevant. 12. As an example, a Plaintiff allegedly injured when struck by a Volvo sedan could not introduce evidence of a Volvo tractor-trailer unit just because they are made by the same manufacturer. 13. Even if it is determined that the condition of other curb protectors may be relevant, the depiction of the other curb protectors could easily be confused by a juror as depicting the curb protector at issue which weighs decisively in favor of the fact that, if admitted, would cause severe and incurable prejudice to the Defendants. 14. No response to a request for concurrence was provided. WHEREFORE, the Defendants respectfully request that this Honorable Court preclude any photograph or evidence about curb protectors not at issue at trial in the captioned matter. JOHNSON, DUFFIE, STEWART & WEIDNER By vi qW Wade D. Ma ey, Esquire Attorney I.D. No. 87244 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 DATE: Attorneys for Defendants :449133 22740-2349 ?X?Ii? iT ?? '( r RAW7TW ' i • .fir ,;: ?--, ' I `r'?w'yyl4 ? t ? iryRf a n, :, i} I? ?•+? ??'l . s 1 11 ? •?y r ? If i? ? ?'II-?L"' ? 11I irlr?t?f} id ? 1 yf r J ?? rJti i?!'+Jl, 1?,1 11f fy; i`_ }LF v, ?."?,.:?r? r??l;??•?il• ? ?? .`:'?J 1,f ;,J}?;lt,'`, ll:l1',.1-?1'f??i?t?'??,?1}s?i?}yTFYC{ fs ?x?i??? 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-3393 CA-Law JTD ----------------------------x BARBARA WISER, Plaintiff vs - BARBARA J. WISER d/b/a THE VALLEY RESTAURANT/VALLEY MOTEL, R.L. MEALS and MARY MEALS d/b/a VALLEY MOTEL/ THE VALLEY RESTAURANT, Defendant. . ---------------------------x Deposition of BARBARA WISER 301 Market Street Lemoyne, PA June 2, 2010 10:30 a.m. IT IS HEREBY STIPULATED and agreed that the sealing of the within transcript is waived; IT IS FURTHER STIPULATED and agreed that all objections except as to the form of the question are reserved to the time of trial. ERSA COURT REPORTING 30 South 17th Street, Suite 1520 Philadelphia, PA 19103 (215) 564-1233 Fax (215) 564-1225 BARBARA WISER 14 1 (Erie representative enters the 2 room.) 3 Q How did you enter the restaurant 4 from the -- from where you were parked? 5 A Entered in on the smoking side. 6 They have a ramp that goes into the door where 7 the main bar is, I guess. And that is usually 8 where -- the only time I have been to eat, that's 9 where we sat. 10 Q In the smoking part? 11 A Right. We had to walk through and 12 go to the nonsmoking. 13 Q Okay. And so then when you exited 14the building, you exited from the nonsmoking 15 a rea? 16 A Right. 17 Q How close did you come to -- when 18you entered the building from your car, how close 19 had you come to walking by this area when you 20 entered? 21 A Maybe 7 or 10 feet. 22 Q So you sort of walked by it, but you 23 didn't walk through that same area? 24 A Right. A different door. 25 Q All right. So when you walked out ------------ is 1 -- when you earlier testified, you said that you 2 sort of walked and then you just felt your foot 3 give way. Is that right? 4 A No. 5 Q No. Explain that to me again. 6 A I stepped down off the step. 7 Q Off of the curb, off of the 8 sidewalk? 9 A Right. There is steps. 10 Q Okay. 11 A Anyway I stepped down off the step 12 and I don't know, trying to see where my car was 13compared -- because my car was over there. 14 Q Were you planning to walk to your 15 car? 16 A Right. Where my cigarettes were. 17 Q So you didn't have them with you. 18You were going to your car to get your 19 ciga reties? 20 A Right. 21 Q Okay. So you were looking for where 22your cigarettes were. Were there steps coming 23 out of the door? 24 A I believe that was the one where the 25ramp was, that door where they have the ramp. 16 1 Q So when you walked -- when you 2 walked out the door, you didn't have to go down 3 any steps. You sort of went down a ramp? 4 A I am trying to remember. Yes. I 5 believe. 6 Q Do you know how long the ramp was? 7 A Not long. 8 Q Not long. Not long at all? 9 A No. 10 Q How high was the ramp? 11 A I don't recall. 12 Q Was it about the height of like a 13step, one step up or was it more than -- was it 14 higher than one step up? 15 A I don't recall. It could be one or 16two steps up. 17 Q Okay. When you got to the end of 18the ramp, were you still on concrete? Like did 19the ramp come out and then flatten out to a 20sidewalk? 21 A Correct. 22 Q And was there a curb, a drop-off 23from the sidewalk? 24 A A step off, yes. 25 Q From the sidewalk? 17 1 A Right. 2 Q Okay. And did you step off on that 3 area? 4 A Right. 5 Q And where the curb stopped and there 6 was a step, what was the surface of -- did you 7 step into the parking lot? 8 A Correct. 9 Q And what was the surface of the 10parking lot, asphalt? 11 A Correct. 12 Q So you walked down -- you walked 13down the ramp, walked across some portion of a 14sidewalk, and then stepped off the curb onto the 15asphalt? 16 A Correct. 17 Q Is that when the incident happened? 18 A Yes. 19 Q Just at you stepped off the curb 20onto the -- 21 A My next step is when it happened. 22 Q Your next -- okay. So you stepped 23off of the curb one step onto the asphalt. Then 24you took your second step and that is when the 25incident happened? 5 (Pages 14 to 17) ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES ?x?li??T C ?- . ??x,S .F?Y1 J _ . _ r??%? ? ? di .?:. b ?,ti 1eT r; . ? t; i ' f.;. +J ? J. 1- ? Z " :?? _ } Y. _ _ .. ? `e ".' ? ? t ti t?' ' • SI y •" N- r ? t ? . ??? CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing Motion in ? day of July, 2011, via first-class Limine, upon all parties or counsel of record on the tttK mail, as follows : Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: U o* l Cij Wade . Manl y, Esquire Attorney I.D. No. 87244 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants