The URL can be used to link to this page

Home My WebLink About04-0576 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2004- 57 {p Civil Action - (XX) Law ( ) Equity JURY TRIAL DEMANDED ~ MITCHELL MUSSER 11 Crescent Drive New Cumberiand, PA 17070 RUBY TUESDAY, INC. a/kla Ruby Tuesday (Georgia), Inc. d/b/a Ruby Tuesday Restaurant Hampden Centre 4830 Carlisle Pike Mechanicsburg, Pennsylvania JANE L. MUSSER 11 Crescent Drive New Cumberland, PA 17070 Plaintiff(s) & Address(es) Defendant(s) & Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue A Writ of Summons in the above-captioned action. L Writ of Summons Shail be issued and forwarded to ( )Attorney (XX)Sheriff W. Scott Henninq. Esquire Handler. Henninq & Rosenberq. LLP 1300 Linqlestown Road Harrisbutq. PA 17110 (717) 238-2000 Name/Address/Telephone No. of Attorney Date: WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. /~ proth~Jry Date: cS~ //1, 0lt:27j/ by ( ) Check here if reverse is used for additional information 1 ROTHON. - 55 r~~ Depui{" Y ~;~d_ (\J\\ '-~ IJ\ (p ~ "> '\' 0 ~ ~ ' \ \) I;;'; = 0 ~ '1~ SJ ..,. 'll lA '" ,"J;.:r/; ..,., :1! ~~, b ~, \) co rnfJ] '-0 rT1 ::::: \, ~ ~ CO :09 -t:. ~ \ ~ 8<..") --.J '"'tJ .,~+; ~. "I'- ~~ -. :::: ~'!o \.v' , , , ;:";;;'-(1 - -~ r::> '__I \ ':) ..\ ~ <~ 5J ~ --j .;::- --<; w -< ( SHERIFF'S RETURN - REGULAR CASE NO: 2004-00576 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MUSSER JANE L ET AL VS RUBY TUESDAY INC AKA RUBY TUES GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon RUBY TUESDAY INC AKA RUDY TUESDAY GEORGIA INC DBA RUBY the DEFENDANT , at 0016:05 HOURS, on the 11th day of February, 2004 at 4890 CARLISLE PIKE MECHANICSBURG, PA 17055 CHRIS KAKAVOULAS (MANAGER) by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 8.97 .00 10.00 .00 36.97 ;;;Z~~~t R. Thomas Kline 02/12/2004 HANDLER, HENNING & ROSENBERG Sworn and Subscribed to before By ~ 4~ 1- )---J2 d;;::- Depu~ff me this -<3~ day of l(~Jl d-vv"+ (1 (l~ ~ fpclchonotary J { A.D. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE 1. MUSSER and MITCHELL MUSSER v. RUBY TUESDAY, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2004-576 JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant Ruby Tuesday, Inc. in connection with the above-captioned matter. DALLER GREENBERG & DIETRICH, LLP By ~~,h Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. CERTIFICATE OF SERVICE I, Edward A. Greenberg, hereby certify that a true and correct copy of the foregoing Entry of Appearance was served via first-class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA l7110 E~?5 Date: February 25,2004 ""...0 o ~2~ "" ~~ ~ "TJ rq C!:.J N -.j o -.-, ;.,-;:j 61 :D ,- -01" ~;) CJ 01 ,.,u ..7::g 0.-. c,o (5rn :;:--+! ,;..~ :~ =-'0 -~. ./:"'" <,) DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT PROTHONOTARY: Please enter a Rule upon plaintiffs to fIle a Complaint within twenty (20) days of service hereof upon penalty of non pros. DALLER GREENBERG & DIETRICH, LLP By ~"'6 Edward A. e berg RULE TO FILE COMPLAINT AND NOW, this S.JJ....dayof fYL";}./, 2004, a Rule is entered upon plaintiffs to fIle a Complaint within twenty (20) days from the dltte of service hereof. Ll.-h:,_l) "~ Prothonotary ~ (") s.: ~- I~\?(I~ ;:::'! j -- ~~, ;p -i -:: (.11 U'i '" = = .c- ff? --< ::t_ rp " 'r :-0111 _0" OT ::rJQ t5:~-? r~~' r~ ~_':r i~ :1t ':::::0. --< I c.n -0 ::J: ':::) DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE I, Edward A. Greenberg, Esquire hereby certify that I have served the original executed Rule to File Complaint upon the counsel/parties named below via U.S. frrst class mail, postage prepaid, on this 7th day of May, 2004: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA l7110 ~:~f5 DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURT OIF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-:576 o ~ -nl--'" JURY TRIAL DEMANDED ;}~:' en ~?( J.""- ~~~~ ~ r--> = "'" or- ::J': )::-.. -< PROTHONOTARY: r:-? <..n U1 o -n -j :.1-,., rilp -'Jf71 ,39 :"-19 ", r, Z~~ --; ~> :3i RUBY TUESDAY, INC. I U1 PRAECIPE FOR RULE TO FILE COMPLAINT -0 -".'" Please enter a Rule upon plaintiffs to file a Complaint within twenty (20) days of service hereof upon penalty of non pros. DALLER GREENBERG & DIETRICH, LLP BY~~ Edward A. berg RULE TO FILE COMPLAINT AND NOW, this $'I-I-...dayof fYbLy. 2004, a Rule is entered upon plaintiffs to file a Complaint within twenty (20) days from the date of se~rvice hereof. ~ ()hA L~ -LI< - Prothonotary TRtF {'('j:"-'l' .',T.(,P r{';I',,'\i:JrJ '- _,. J...",.,i~",'_''-,.lV':,. L'; 'rSt:~i;,lij"'~'-.i I.;;{'l :';"',1 ; ;jt:'.; u:J(: :,;:.;: in) tjdif(t l__,.i it;d t4;41 t)1 "~1',j G'-lUft at CdnL;ie, P"d. '-- ""4r~ day I '. I"()~ot~ry ..~ ~ 0 ......, 0 = f: = 'Tl .r- .... ::z: :r:.,., >>"" n1r= -< 'Um -aO = 06 :;;j > -ri C' _do. -;1 -';". ;J.C') '-' (=-""""rn ~-;: (,..> ..j -''; ~ ::r:~ =< N CD -< JANE L. MUSSER and MITCHELL MUSSER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 2004-5;'6 RUBY TUESDAY, INC., alkla Ruby Tuesday (Georgia), Inc. dlbla Ruby Tuesday Restaurant Defendant CIVIL ACTION - LAW 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 seIVed, by entering a written appearance personally or by attorney and filing in writing with thEl 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 othsr 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOOATlDN 2 liberty Avenue, Carlisle, PA 17013 Telephone 717-249-3166 or 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personal mente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra teclamaci6n 0 remedio solicitado por el demand ante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGAOO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGAOO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGAOO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGAD(), ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFR:EZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALlFICAN. CUMBERLAND COUNTY BAR ASSOCIA nON 2 Liberty Avenue, Carlisle, PA 17013 Telephone 717-249-3166 or 800-990-9108 HANDCERt""" By: W. Scott Henning, Esquire 1.0.# 32298 1300 Linglestown Road, Harrisbutg, PA 17110 f"'~ -,\ 'V'JO "In"'" JANE L. MUSSER and MITCHELL MUSSER IN THE COURT OF COMMON PLEAS CUMBERLANID COUNTY, PENNSYLVANIA Plaintiffs, v. No. 2004-576 RUBY TUESDAY, INC., a/k1a Ruby Tuesday (Georgia), Inc. d/b/a Ruby Tuesday Restaurant, CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant. COMPLAINT AND NOW, comes the Plaintiffs, Jane L. Musser and Mitchell Musser, by and through their attorneys, HANDLER, HENNING & ROSENBERG. LLP, by W. Scott Henning, Esquire, and bring forth this Complaint against Defendant, Ruby Tuesday, Inc., and aver as follows: 1. Plaintiff, Jane L. Musser, is a competent adult iindividual currently residing at 11 Crescent Drive, New Cumberland, Cumberland County, Pennsylvania 17070. 2. Plaintiff, Mitchell Musser, is a competent adult individual currently residing at 11 Crescent Drive, New Cumberland, Cumberland County, Pennsylvania 17070. 3. Defendant, Ruby Tuesday, Inc., is currentlydoin!~ business at Hampden Centre 4830 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. At all times material hereto, Defendant, Ruby Tuesday Inc, was in ownership, possession, management and/or control of the PremisE~S located at and known as Hampden Centre 4830 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055. 5. At all times material hereto, Plaintiff, Jane L. Musser, was lawfully upon said Premises. 6. At all times material hereto, Defendant, Huby Tuesday, Inc., who had exclusive control of said Premises, had allowed a television stand to be in a position, too low, thereby placing the TV and its stand in a position where a customer could inadvertently bump the stand. 7. At all times material hereto, Defendant, Huby Tuesday, Inc., who had exclusive control of said Premises, had allowed the television to be improperly and inadequately affixed to an elevated television stand. 8. At all times material hereto, there were no warning signs posted on the Premises warning that the television was not properly affixed to the elevated television stand. 9. On or about January 24, 2003, Plaintiff, Jane, L. Musser, was a customer at and about to leave the said Premises, when a member of the group she was with at the table stood up and bumped his head or shoulder on the television stand which was situated too low causing the television which was located l:ln the stand to come tumbling off the stand and to fall on the table where Plaintiff was situated, thereby landing on her finger causing severe injury the Plaintiff, Jane L. Musser. COUNT 1- NEGLIGENCE Jane L. Musser Y. Ruby Tuesday Inc. 10. Paragraphs 1 - 9 are incorporated herein by reference as if fully set forth at length. 2 11. At all times material to hereto, the Plaintiff, Jane L. Musser, believes and therefore avers, that Defendant, Ruby Tuesday, Inc., was in ownership, possession, management and/or control of the Premises and was responsible for maintaining the safe condition of the premises known as Hampden Centre 4830 Carlisle Pike, Mechanicsburg, Pennsylvania 17055. 12. The occurrence of the aforementioned incidE~nt and the resulting injuries to Plaintiff, Jane L. Musser, were caused directly and pro)(imately by the negligence of Defendant, Ruby Tuesday, Inc., individually or by its algents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting an improperly situated television stand at the Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting an inadequatl31y affixed television to remain upon it's stand at the Premises, thereby posing an unreasonable risk of injury to the Plaintiff and to othElr persons lawfully upon the premises; (c) In causing or permitting to be present an inadequately situated television stand to remain when Defendant knew or should have known that the likelihood that the inadequately situated television stand could be a hazard to individuals as they traverse the seating area; 3 (d) In causing or permitting to be pre,sent an inadequately affixed television upon it's stand when Defendant kneworshould have known that the likelihood that the inadequatE~ly affixed television could be a hazard to individuals as they traverse the seating area; (e) In failing to make a reasonable insp,ection of said Premises which would have revealed the existence of the dangerous condition posed by the inadequately situated television stand, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (f) In failing to make a reasonable inspE~ction of said Premises which would have revealed the existence of the dangerous condition posed by the inadequately affixed television, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (g) In failing to ensure the seating area at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (h) In failing to post a warning sign or device in the area to notify of the dangerous condition in the seating area of said Premises; (i) In failing to remove or remedy the inadequately situated television stand at the said Premises so as to avoid the situation in which the Plaintiff was injured; 4 0) In failing to remove or remedy the inadequately affixed television at the said Premises so as to avoid the situation in which the Plaintiff was injured; (k) In installing a television stand that was too low and therefore could be bumped by a customer, thereby causing the television to fall from its stand and strike and harm a person la'Mully on the premises, such as the Plaintiff. 13. Defendant, Ruby Tuesday, Inc., had actual knowledge or should have known through the exercise of ordinary care and diligence that there was an inadequately situated television stand on said Premises where Plaintiff, Jane L. Musser, was injured. 14. Defendant, Ruby Tuesday, Inc., had actual knowledge or should have known through the exercise of ordinary care and diligence that theire was an inadequately affixed television on said Premises where Plaintiff, Jane L. MussE~r, was injured. 15. As a direct and proximate result of the nElgligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, sustained serious injuries including, but not limited to, a broken right middle finger, the amputation of the tip on her right ring finger, emotional scarring, nervousness and depression. 16. As a direct and proximate result of the nElgligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has undergone grei3t physical pain, discomfort and mental anguish and she will continue to endure the same for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 5 17. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 18. As a direct and proximate result of the nElgligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has, and will in tl1e future, suffer a loss of life's pleasures. 19. As a result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has suffered lost wageslincome and will in the future continue to suffer a loss of income and/or loss of earning capacity. 20. As a direct and proximate result of the nE~gligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention, and will be required to expend large sums of money for thla same purposes in the future, to her great detriment and loss. 21. As a result and/or proximate result of the n,agligence of Defendant, Ruby Tuesday, Inc., Plaintiff has sustained permanent disfigurement and scarring on her right ring finger. WHEREFORE, Plaintiff, Jane L. Musser, seeks damages from Defendant, Ruby Tuesday, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County. 6 COUNT II - LOSS OF CONSORTIUM Mitchell Musser Y. Ruby TuesdllY Inc. 22. Paragraphs 1-21 are incorporated herein as if set forth at length. 23. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Mitchell Musser, has suffered a loss of consortium, society and comfort from his wife, and he may continue to suffer similar loss in the future. 24. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Mitchell Musser, has been compelled, in order to effect a cure for his wife's injuries, to expend large sums of money for medidne and medical attention, and may be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Mitchell Musser, seeks damages from the Defendant, Ruby Tuesday, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County. Respectfully Submitted, Date: 6 .- :2/--clocy By W. Scott He ning, E Attorney I.D. # 32298 1300 Linglestown Road. Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiffs 7 VERIFICATION The undersigned hereby verifies that the statements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowled~le, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. c Date: /; - ;:2 / -;) 0 cj W. Scott Henning, Esquire I.D.#32998 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiffs JANE L. MUSSER and MITCHELL MUSSER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 2004-576 RUBY TUESDAY, INC., a/kJa Ruby Tuesday (Georgia), Inc. d/b/a Ruby Tuesday Restaurant Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICI: On June 22, 2004, I hereby certify that a true and correct copy of Plaintiffs' Complaint with Notice to Defend was served upon the following by depositing in U.S. Mail, certified delivery: Edward A. Greenberg, Esquire DALLER, GREENBERG & DIETRICH, LLP Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 Date:June 22, 2004 LP <;> _noj -< "" c:::> ~;.""::;) -. o ~Tl --; ~r -rr ""1'1i= .r")!Tl .c,CJ '~~:(~ , 1', ...L'1 ~,:t::~ -;,:! 71 .....;;: c_ ~- t.,) ,J:-- ~) ~." r:? ~ To: Plaintiffs Jane L. Musser and Mitchell Musser You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service bereof or a judgment may be entered against you. DALLER GREENBERG & DIETRICH, LLP d';/ / - BY: 2~r ~-;pr- Edward A. Greenberg Joseph F. Kampherstein III Attorneys for defendant Ruby Tuesday, Inc. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, RUBY TUESDAY, INC. TO PLAINTIFFS' COMPLAINT Defendant Ruby Tuesday, Inc. (misnamed in the complaint as "Ruby Tuesday, Inc., a1kla Ruby Tuesday (Georgia), Inc., dlb/a Ruby Tuesday Restaurant"), by and through its attorneys, Daller Greenberg & Dietrich, LLP, hereby responds to plaintiffs' complaint as follows: I. Denied. After reasonable investigation, answering defendant is without knowledge or information suffIcient to form a belief as to the tnlth of the averments set forth in this paragraph, and accordingly, denies the same and demands proof thereof. 2. Denied. After reasonable investigation, answering defendant is without knowledge or information suffIcient to form a belief as to the truth of the averments set forth in this paragraph, and accordingly, denies the SaJlle and demands proof thereof. 3. Denied as stated. It is admitted that Ruby Tuesday, Inc. operates a restaurant located at 4890 Carlisle Pike, Mechanicsburg, P A 17055. 4. Denied as stated. It is admitted that Ruby Tuesday, Inc. operates a restaurant located at 4890 Carlisle Pike, Mechanicsburg, P A 17055 pursuant to a lease agreement. 5. Admitted. 6. Denied. It is denied that Ruby Tuesday, Inc. had exclusive control ofthe premises, as Ruby Tuesday operates the restaurant pursuant to a lease agreement. The remaining allegations of this paragraph are denied pursuant to Pa. R.C.P. 1029( e). 7. Denied. It is denied that Ruby Tuesday, Inc. had exclusive control of the premises, as Ruby Tuesday operates the restaurant pursuant to a lease agreement. The remaining allegations of this paragraph are denied pursuant to Pa. R.C.P. 1029(e). 8. Denied pursuant to Pa. R.C.P. 1029(e). 9. Denied. After reasonable investigation, Ruby Tuesday is without knowledge or information suffIcient to form a belief as to the truth of the allegations contained in paragraph 9 of plaintiffs' complaint, and therefore, those allegations are denkd. COUNT I - NEGLIGENCE Jane L. Musser v. Rubv Tuesdav. Inc. 10. Ruby Tuesday hereby incorporates by reference its answers to paragraphs I through 9 as though fully set forth at length herein. II. Admitted in part; denied in part. Ruby Tuesday, Inc. admits only that it operated a restaurant located at 4890 Carlisle Pike, Mechanicsburg, P A 17055 pursuant to a lease agreement. The remaining allegations of this paragraph are conclusions oflaw to which no response is required. To the extent a response is deemed required, these allegations are denied pursuant to Pa. R.C.P. 1029(e). 12. (a) - (k). Denied pursuant to Pa. R.C.P. 1029(e). 13. Denied pursuant to Pa. R.C.P. 1029(e). 14. Denied pursuant to Pa. R.C.P. 1029(e). 15. Denied. Ruby Tuesday, Inc. specifrcally denies that any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way offurther response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the allegations contained in paragraph 15 of plaintiffs' complaint concerning the nature and extent of plaintiffs' injuries, and therefore, those allegations are denied. 16. Denied. Ruby Tuesday, Inc. specifrcally denies that any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way of further response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the remaining allegations contained in paragraph 16 of plaintiffs' complaint, and therefore, those allegations are denied. 17. Denied. Ruby Tuesday, Inc. specifrcally denies that any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way of further response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the remaining allegations contained in paragraph 17 of plaintiffs' complaint, and therefore, those allegations are denied. 18. Denied. Ruby Tuesday, Inc. specifrcally denies that any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way of further response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the remaining allegations contained in paragraph 18 of plaintiffs' complaint, and therefore, those allegations are denied. 19. Denied. Ruby Tuesday, Inc. specifrcally denies that any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way of further response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the remaining allegations contained in paragraph 19 of plaintiffs' complaint, and therefore, those allegations are denied. 20. Denied. Ruby Tuesday, Inc. specifrcally denies lhat any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way of further response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the remaining allegations contained in paragraph 20 of plaintiffs' complaint, and therefore, those allegations are denied. 21. Denied. Ruby Tuesday, Inc. specifrcally denies that any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way of further response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the remaining allegations contained in pal'agraph 21 of plaintiffs' complaint, and therefore, those allegations are denied. WHEREFORE, defendant Ruby Tuesday, Inc. demands judgment in its favor together with costs and other relief which may be appropriate. COUNT II - LOSS OF CONSORTIUM Mitchell Musser v. Rubv TuesdalV. Inc. 22. Ruby Tuesday hereby incorporates by reference its answers to paragraphs 1 through 21 as though fully set forth at length herein. 23. Denied. Ruby Tuesday, Inc. specifrcally denies that any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way of further response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the remaining allegations contained in paragraph 23 of plaintiffs' complaint, and therefore, those allegations are denied. 24. Denied. Ruby Tuesday, Inc. specifrcally denies :that any act or omission on its part was a direct and proximate cause of injury to plaintiffs. By way of further response, after reasonable investigation, Ruby Tuesday is without knowledge or information suffrcient to form a belief as to the truth of the remaining allegations contained in paragraph 24 of plaintiffs' complaint, and therefore, those allegations are denied. WHEREFORE, defendant Ruby Tuesday, Inc. demands judgment in its favor together with costs and other relief which may be appropriate. NEW MATTER 25. Ruby Tuesday incorporates its answers to paragraphs I through 24 of plaintiffs' complaint as if fully set forth at length herein. 26. No act or omission on the part of Ruby Tuesday, Inc. was the proximate, legal, direct or substantial cause or contributing factor of plaintiffs' alleged injuries and/or daJIIages. 27. Any alleged injuries to plaintiffs were caused by the negligence, recklessness, or carelessness of persons over whom Ruby Tuesday, Inc. had neither control nor the right to control. 28. Any alleged injuries to plaintiffs were caused by the intervening, superseding acts of persons over whom Ruby Tuesday, Inc. had neither control nor the right to control. 29. Plaintiffs may have failed to mitigate their damages. 30. Plaintiffs may have been contributorily negligent and thereby barred from recovery. 31. Plaintiffs' claims may be barred by, or reduced in accordance with, the doctrine of comparative negligence. WHEREFORE, defendant Ruby Tuesday, Inc. demands judgment in its favor together with costs and other relief which may be appropriate. DALLER GREENBERG & DIETRICH, LLP By ~/" ~~;!E-- Edward A. Greenbl:rg Joseph F. Kampherstein III Eight Tower Bridgl~ 161 Washington Street, Suite 900 Conshohocken, PA 19428 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. VERIFICATION I, WIi__UA1v1.A. CAsu ill , verify that I am b7t?E~ ~ ~..D af:Jf.AJnCN of Ruby Tuesday, Inc. and that I have read the foregoing Answer of Ruby Tuesday, Inc. to Plaintiffs' Complaint, and that the information set forth therein is true and correct to the best of my information and belief. I understand that this statement is made subject to the penalties of 18 Pa. C.S.A. 9 4904 relating to unsworn falsifrcation to authorities. {#{6~c'~ Date: 7(ZJ/Otf CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, III, hereby certify that a true and correct copy of the foregoing Answer to Plaintiffs Complaint was served by frrst-dass United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, P A l7ll0 Attorneys for plaintiffs Hr;e~r v Joseph F. Kampherstein, III Date: 7/2.(/~'1 (j c:. -C(J"j n'r,,); 7~ .'< -7 ' ~I)>.':' ~: );; (~~) ~~'L) >c Z ~ ,..., C',;;) c::::> .r.- <- c..::: " N -.I o ." ::;:l ~':n "'r;:; "6 .'0 C)( ::;:l"l:, --'--'1 0- :~Pn 2 'Ji) :..< -0 :x ~ (J1 W JANE L. MUSSER and MITCHELL MUSSER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. No. 2004-576 RUBY TUESDAY, INC., a/kla Ruby Tuesday (Georgia), Inc. d/b/a Ruby Tuesday Restaurant, CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant. PLAINTIFFS' REPLY TO NEW MATTER AND NOW, comes the Plaintiffs, Jane L. Musser and Mitchell Musser, by and through their attorneys, HANDLER, HENNING & ROSENlBERG. LLP, by W. Scott Henning, Esquire, and replies as follows: 25. Denied. Paragraph 25 is an incorporation paragraph to which no responsive pleading is required. To the extent applicable!, the Plaintiffs incorporate the allegations set forth in their Complaint as though fully set forth herein. 26. Denied. The allegation set forth in paragraph 26 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is deni,ed that no act or omission on the part of Defendant, Ruby Tuesday, Inc. was the proximate, legal, direct or substantial cause or contributing factor of Plaintiffs' injuries and damages, and proof to the contrary is demanded at the trial in this matter. 27. Denied. The allegation set forth in paragraph 27 is a conclusion of law to which no responsive pleading is required, howevE,r, to the extent that the Honorable Court deems a response necessary, it is deniled that the injuries caused to the Plaintiffs were caused by the negligence, recklessness, or carelessness of persons over whom Ruby Tuesday, Inc. did not have control or the right to control, and proof to the contrary is demanded at the trial in this matter. 28. Denied. The allegation set forth in paralgraph 28 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is deniEid that the Plaintiffs' injuries were caused by an intervening, superceding act of persons over whom Ruby Tuesday did not have control or the right of control, and proof to the contrary is demanded at the trial in this matter. 29. Denied. The allegation set forth in paragraph 29 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiffs have failed to mitigate their damages, and proof to the contrary is demanded at the trial in this matter. 30. Denied The allegation set forth in par;3graph 30 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is deni,sd that Plaintiff Jane L. Musser was in any way contributorily negligent such that she should be barred from recovery, and proof to the contrary is demanded at the trial in this matter. 31. Denied. The allegation set forth in paragraph 31 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Plaintiff was in any way contributorily or comparatively negligent so as to tri~lger the Doctrine of Comparative Negligence and thereby bar or reduce the award of compensation to which the Plaintiff is entitled, and proof to the contrary is demanded at the trial in this matter. WHEREFORE, Plaintiffs request the Honorable Court to enter judgment for the relief set forth in their Complaint. Respectflllly submitted, 1- ~-:y)df DATE Attorney for Plaintiff JANE L. MUSSER and MITCHELL MUSSER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. No. 2004-576 RUBY TUESDAY, INC., a/k1a Ruby Tuesday (Georgia), Inc. d/b/a Ruby Tuesday Restaurant, CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant. CERTIFICATE OF SERVICE: On the 28th day of July, 2004, I hereby certify that a true and correct copy of Plaintiffs' Reply To New Matter was served upon the following by depositing in U.S. Mail; Mr. Joseph F. Kampherstein, III Daller Greenberg & Dietrich, LLP Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 7 - d-R - c1oO/ DA T~ - I Respectfully submitted, HANDl.:: H W. Scott Hemning 1.0. #32298 1300 Linglesto Harrisburg, PA 717-238-2000 Attorney for Plaintiff VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 Ie) W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater persona! knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. ~4904 relating to unsworn falsification to authorities. Date: 7. d?~dJ..(jClf ( ~T () ...., 0 => (-'~ c:::> 'Tl "'- C ::-- :t::!l c-: G) rI1I_.~ -nfTl I -li? N (') _~-l,(J " ~jJ ~:4 _.,.,. -- ( , t)rn -~:.:., ":'>; en :JJ (,)', .~~ DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F. Kampherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE 1. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-:576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. 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 in the case may proceed without 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 LAWYER REFERRAL SERVICE 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone 717-249-3166 or 800-990-9108 DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE 1. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED JOINDER COMPLAINT OF RUBY TUESDAY, INC. AGAINST ADDITIONAL DEFENDANT WESTRA CONSTRUCTION, INC. Defendant Ruby Tuesday, Inc. by and through its attorneys, Daller Greenberg & Dietrich, LLP, hereby fries this Joinder Complaint against additional defendant Westra Construction, Inc. and avers as follows: 1. Plaintiffs instituted this action by writ of summons on February 10,2004, and fried the original complaint against defendant Ruby Tuesday, In,;. on or about June 22, 2004. A true and correct copy of plaintiffs' original complaint is attached hereto and marked as Exhibit "A." 2. Westra Construction, Inc. is an entity authorized 1:0 do business in Pennsylvania, with a principal place of business located at W7l85 Hwy 49, Waupun, Wisconsin 53963. Westra Construction, Inc. also conducts business from its Eastern Regional Offrce located at 4002 Fenton Avenue, Harrisburg, PA 17109. 3. Defendant Ruby Tuesday, Inc. incorporates by reference the allegations and averments contained in plaintiffs' complaint, without admission or adoption, as though fully set forth and reasserted against Westra Construction, Inc. at length herein. 4. This case arises out of an alleged accident that occurred in the Ruby Tuesday restaurant located at 4890 Carlisle Pike, Mechanicsburg, Cumbe:rland County, Pennsylvania 17055, on or about January 24, 2003. Plaintiff Jane Musser alleges that a television fell from its stand and onto a table where she was seated, causing injuries to her right hand and frngers of her right hand. 5. Additional defendant Westra Construction, Inc. was engaged to perform construction services for Ruby Tuesday at the subject restaurant, and was responsible for the construction of the restaurant and installation of the television stands throughout the restaurant. 6. If the allegations of plaintiffs are proven true, which allegations are specifrcally denied, additional defendant Westra Construction, Inc. is solely liable on the plaintiffs' causes of action, liable over to Ruby Tuesday, Inc., jointly or severally liable with Ruby Tuesday, Inc. on the plaintiffs' causes of action, or liable to Ruby Tuesday, Inc. for indemnity or contribution. 2 WHEREFORE, defendant Ruby Tuesday, Inc. demands judgment be entered in its favor against Westra Construction, Inc. together with costs and such other relief as the court deems proper. DALLER GREENBERG & DIETRICH, LLP By #;: ~~-7~ Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. 3 VERIFICATION I, Joseph F. Kampherstein, III, Attorney for Ruby Tuesday, Inc. verify that I have read the foregoing Joinder Complaint of Ruby Tuesday, Inc. Joining Additional Defendant Westra Construction, Inc., and that the fIling defendant is outside the jurisdiction of the court and the verifrcation of it cannot be obtained within the time allowed for fIling this pleading. The information set forth therein is true and correct to the best of my information and belief. I understand that this statement is made subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsifrcation to authorities. ~r:-/~2JE:-- Joseph F. Kampherstein, III Date: August 20, 2004 4 CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, III, hereby certify that a true and correct copy of the foregoing Joinder Complaint was served by frrst-class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 M/~7// .Y Joseph F. Kampherstein, III Date: August 20, 2004 ",11 r} c: ~,~! ". '" 25 (' ) "., "',' (..,) " , , t, DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F. Kampherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE 1. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. JURY TRIAL DEMANDED PRAECIPE TO ATTACH EXHIBIT "A" TO DEFENDANT RUBY TUESDAY INC.'S JOINHER COMPLAINT TO THE PROTHONOTARY: Kindly attach the following Exhibit "A" to DefendaJIt Ruby Tuesday Inc.'s Joinder Complaint, which was fried on August 23, 2004. DALLER GREENBERG & DIETRICH, LLP By: h/r~ Edward A. Greenberg Joseph F. Kampherstein, III Attorneys for Defendant Ruby Tuesday, Inc. Dated: August 31, 2000 ~ ~ ) . ~y~~\\ ~ ( ( JANE L. MUSSER and MITCHELL MUSSER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 2004-576 RUBY TUESDAY, INC., a1k1a Ruby Tuesday (Georgia), Inc. dlbla Ruby Tuesday Restaurant Defendant CIVIL ACTION - LAW 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. nus OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL 5:ERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 liberty Avenue, Carlisle, PA 17013 Telephone 717-249-3166 or 800-990-91OB AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defEmderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tamar acci6n dentro' de los pr6ximos veinte (20) dlas despues de la notificaci6n de esta Demanda y Aviso radicand 0 personalmente 0 par media de un abogado una comparecencia escrita y radicando en la Corte par escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si usted falla de tamar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo par cualquier suma de dinero reclamada en la demanda 0 cualquier otra reclamaci6n 0 remedio solicitado par el delllandante puede ser dictado en contra suya par la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. < USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO I~IMEDIATAMENTE. 51 USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGAC'O. 51 USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE EST A OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE' OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALlFICAN. CUMBERLAND COUNTY BAR ASSOClA TION 2 liberty Avenue, Carlisle. PA 17013 Telephone 717.249-3166 or 800-990-9108 W. Scott Henning, I.D.# 32298 1300 Linglestown Road, Hatrisbutg, PA 17110 '~"""l"\ ""l,,:,o '"'''''1'\ ..... ( ( JANE L. MUSSER and MITCHELL MUSSER IN THE COIlJRT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. No. 2004-5'76 RUBY TUESDAY, INC., alk1a Ruby Tuesday (Georgia), Inc. d/b/a Ruby Tuesday Restaurant, CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant. COMPLAINT AND NOW, comes the Plaintiffs, Jane L. Musser and Mitchell Musser, by and through their attorneys, HANDLER, HENNING & ROSENBERG. LLP, by W. Scott Henning, Esquire, and bring forth this Complaint against Defendant, Ruby Tuesday, Inc., and aver as follows: 1. Plaintiff, Jane L. Musser, is a competent adult individual currently residing at 11 Crescent Drive, New Cumberland, Cumberland CClunty, Pennsylvania 17070. 2. Plaintiff, Mitchell Musser, is a competent adult individual currently residing at 11 Crescent Drive, New Cumberland, Cumberland CClunty, Pennsylvania 17070. t 3. Defendant, Ruby Tuesday, Inc., is currently doing business at Hampden Centre 4830 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. At all times material hereto, Defendant, Ruby Tuesday Inc, was in ownership, possession, management and/or control of the Pn~mises located at and known as Hampden Centre 4830 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055. .... ( ( 5. At all times material hereto, Plaintiff, Jane L. Musser, was lawfully upon said Premises. 6. At all times material hereto, Defendant, Ruby Tuesday, Inc., who had exclusive control of said Premises, had allowed a teh~vision stand to be in a position, too low, thereby placing the TV and its stand in a position where a customer could inadvertently bump the stand. 7. At all times material hereto, Defendalnt, Ruby Tuesday, Inc., who had exclusive control of said Premises, had allowed the television to be improperly and inadequately affixed to an elevated television stand. 8. At all times material hereto, there were no warning signs posted on the Premises warning that the television was not properly affixed to the elevated television stand. 9. On or about January 24, 2003, Plaintiff, Jane L. Musser, was a customer at and about to leave the said Premises, when a member of the group she was with at the table stood up and bumped his head or shoulder I)n the television stand which was situated too low causing the television which was located on the stand to come tumbling off the stand and to fall on the table where Plaintiff w,as situated, thereby landing on her t finger causing severe injury the Plaintiff, Jane L. Musser. COUNT I. NEGLlGENlCE Jane L. Musser Y. RubY TUllSday Inc. 10. Paragraphs 1 - 9 are incorporated herein by reference as if fully set forth at length. 2 ...... ( ( , 11. At all times material to hereto, the Plaintiff, Jane L. Musser, believes and therefore avers, that Defendant, Ruby Tuesday, Inc., was in ownership, possession, management and/or control of the Premises and was responsible for maintaining the safe condition of the premises known as Hampden Centre 4830 Carlisle Pike, Mechanicsburg. Pennsylvania 17055. 12. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Jane L. Musser, were caused directly and proximately by the negligence of Defendant, Ruby Tuesday, Inc., individually or by its agents; servants, workmen or employees, acting in the scope of their authority and employment. generally and more specifically as set forth below: (a) In causing or permitting an improperly situated television stand at the Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting an inadequately affixed television to remain upon it's stand at the Premises, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (c) In causing or permitting to be present an inadequately situated television stand to remain when Defendant knew or should have known that the likelihood that the inadequately situated television stand could be a hazard to individuals as they traverse the seating area; 3 ... ( ( " (d) In causing or permitting to bel present an inadequately affixed television upon it's stand when Defendant knew or should have known that the likelihood that the inadequately affixed television could be a hazard to individuals as they traverse the seating area; (e) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the inadequately situated television stand, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (f) In failing to make a reasonable inspection of said Premises which would have revealed the existencl;j of the dangerous condition posed by the inadequately affixed television, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (g) In failing to ensure the seating area at said Premises was maintained in a safe condition to prevent injurY' to the Plaintiff and other persons lawfully upon the Premises; (h) In failing to post a warning sign or device in the area to notify of the dangerous condition in the seating area of said Premises; (i) In failing to remove or remedy thE~ inadequately situated television stand at the said Premises so as to avoid the situation in which the Plaintiff was injured; 4 .... ( ( < (j) In failing to remove or remedy the inadequately affixed television at the said Premises so as to avoid the situation in which the Plaintiff was injured; (k) In installing a television stand that was too low and therefore could be bumped by a customer, thereby causing the television to fall from its stand and strike and harm a person lawfully on the premises, such as the Plaintiff. 13. Defendant, RubyTuesday, Inc., had actual knowledge or should have known through the exercise of ordinary care and diligence that there was an inadequately situated television stand on said Premises where Plaintiff, Jane L. Musser, was injured. 14. Defendant, Ruby Tuesday, Inc., had actual knowledge or should have known through the exercise of ordinary care and diligence that there was an inadequa!ely affixed television on said Premises where Plaintiff, Jane L. Musser, was injured. 15. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, sustained serious injuries including, but not limited to, a broken right middle finger, the amputation of the tip on her right ring finger, emotional scarring, nervousness and depression. 16. As a direct and proximate result of thl9 negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has undergone great physical pain, discomfort and mental anguish and she will continue to endure the salme for an indefinite period of time in the future, to her great detriment and loss, physically, emotionally and financially. 5 .r ( ( < 17. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has been, and will in the future be, hindered from attending to her daily duties to her great detriment, loss, humiliation and embarrassment. 18. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has, and will in the future, suffer a loss of life's pleasures. 19. As a result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has suffered lost wageslincome and will in the future continue to suffer a loss of income and/or loss of earning capacity. 20. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Jane L. Musser, has been compelled, in order to effect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention, an'd will be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. 21, As a result and/or proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff has sustained permanent disfj!~urement and scarring on her right ring finger. WHEREFORE, Plaintiff, Jane L. Musser, seeks damages from Defendant, Ruby Tuesday, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County, 6 .... (' ( COUNT II - LOSS OF CONSORTIUM Mitchell Musser Y. Ruby Tuesday Inc. 22. Paragraphs 1-21 are incorporated hert9in as if set forth at length. 23. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Mitchell Musser, has suffemd a loss of consortium, society and comfort from his wife, and he may continue to suffer similar loss in the future. 24. As a direct and proximate result of the negligence of Defendant, Ruby Tuesday, Inc., Plaintiff, Mitchell Musser, has been compelled, in order to effect a cure for his wife's injuries, to expend large sums of money for medicine and medical attention, and may be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Mitchell Musser, seeks: damages from the Defendant, Ruby Tuesday, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County. Respectfully Submitted, HANDLER, HENNING & ROSENBERG, LLP Date: By < W. Scott Henning, Esquire Attorney J.D. # 32298 1300 Unglestown Road Harrisburg, PA 17110 (717) 238-2000 Attomey for Plaintiffs 7 ,;.. ,. ( ( VERIFICA TI()N The undersigned hereby verifies that the staltements in the foregoing document are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of this lawsuit. The language of the document is of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the document are that of counsel, I have relied upon my counsel in making this Verification. The undersigned also understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~ - ::2(-c~Dcy ~L/ < ,r .,,;,..- \. ( " W. Scott Henning, Esquire 1.0.#32998 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiffs JANE L. MUSSER and MITCHELL MUSSER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 2004-576 RUBY TUESDAY, INC., a/K/a Ruby Tuesday (Georgia), Inc. d/b/a Ruby Tuesday Restaurant Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On June 22, 2004, I hereby certify that a true and correct copy of Plaintiffs' Complaint with Notice to Defend was served upon the following by depositing in U.S. Mail, certified delivery: < Edward A. Greenberg, Esquire DALLER, GREENBERG & DIETRICH, LLP Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 194213-2060 Respectfully Submitted, Date:June 22, 2004 HANDLER/EN .' By: .' W. Scott Hen", ,Es .r (") "'V ~~ G:..;;) 0 c;;) .c.- ..., -~. v; -i '1 r"',,; ::r: . -U fnpl ;":": C) I -0 rn ~< . N :uO C.c., Co' ?,: 1--'" V =-j~~ , . -t:; ::-t: (j:D t.~_,' .;:.-() ,r" e- >.-,:rn Z (.,,) ....." :.:,'" :<' c:> ~;?:i 0:> -< DALLER GREENBERG & DIETRICH, LLP By: Edward A, Greenberg LD. No. 32171 By: Joseph F. Karnpherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Dt:fendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached original Verification of Belinda Kitts, Director of Benefits Administration of Ruby Tuesday, Inc. for the attorney verification filed with the Answer of Ruby Tuesday, rnc, to Plaintiffs Complaint. DALLER GREENBERG & DIETRICH, LLP By: fz//~#$ Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. CERTIFICATE OF SERVICE I, Joseph F, Karnpherstein, III, hereby certify that a true and correct copy of the foregoing Praecipe was served via first-class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Ling1estown Road Harrisburg, PA 17110 Westra Construction, Inc. Eastern Regional Office 4002 Fenton Avenue Harrisburg, P A 17109 ~I~~ Joseph F. Kampherstein, III Date: August 31, 2004 VERIFICATION I, Belinda Kitts, verify that I am Director of Benefits Administration of Ruby Tuesday, Inc. and that I have read the foregoing Joinder Complaint of Ruby Tuesday, Inc, Joining Additional Defendant Westra Construction, Inc. The infOlmation set forth therein is true and correct to the best of my information and belief. I understand that this statement is made subject to the penalties of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsification to authorities. hJJ~ ~{};V Belinda Kitts Date: 08/23/2004 4 (") c ~tf :7 =; ;: i.,;. -'" r: 5@c> ,;.... (-, :r; ~? :<' ...., = ,= .r- (/) 1'"'1 -0 I N -0 :Jl: w.) o CO o -r, :::! :r..,.. fllr:!. -oi!"l '''''0 OL -:;Jtt, ~~ :< DALLER GREENBERG & DIETRICH, LLP By: Edward A, Greenberg I.D. No. 32171 By: Joseph F. Kampherstein ID. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE 1. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v, NO. 2004-576 RUBY TUESDAY, INC. JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Joseph F. Kampherstein, Esquire, certifies that aU counsel to this action have agreed to waive the twenty day waiting period, See attached copy of letter signed by W, Scott Henning, Esquire, dated August 30, 2004. AU counsel have consented to the immediate service of subpoenas to Holy Spirit Hospital, George H, Harhigh, D,O, First Choice Rehabilitation Specialists, Shepherdstown Family Practice, and Richard J, Boal, M.D. DALLER GREENBERG & DIETRICH, LLP 1lVo '-/ By: ~r/k~~ ./ Joseph F, Kampherstein, Esquire DATE: o <:,':; "::.'.~ "OG." \"I'f" " ~~:;~ f.:;;: .:~: '~,.,> _,_,.,.M /\- L.. ::< .-> c-" = ...- (/) rr. -0 I -J -0 ::;:: o -(1 ,:1.T\ j11p -or:I1 -DC;:; ()\(j =.~-r. , -r-. {~.~C-"-} ~':-rn ~";?t r .. o -:~:~ .~- SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-00576 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MUSSER JANE L ET AL VS RUBY TUESDAY INC AKA RUBY TUES R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'TL DEFEND. ,to wit: WESTRA CONSTRUCTION INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN serve the within COMPLAINT JOINING ADDL County, Pennsylvania, to On September 3rd, 2004 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin County 18.00 9.00 10.00 31.25 .00 68.25 09/03/2004 DALLER GREENBERG So ans~__.c::<~ -~~c: R. ("Thomas Kline ( Sheriff of Cumberland County ~_.--::::> .".---- & DIETRICH Sworn and subscribed to before me this 15' 'Co- day of ~~ c1~ i A. D . n Q dl1 d)-LV /If);JOC '---NP:rothonotary' -, I In-The Court of Common Pleas of Cumberland County, Pennsylvania Jane L. Musser VS Ruby Tuesday Inc VS. Westra Construction Inc Now, August 25, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin No. 04-576 civil County to execute this Writ, this deputation being made at the request and risk ofthe Plaintiff. r~~J~~~ SheriffofCumh&rnndCoun~,PA Affidavit of Service Now, within upon ~_"___"_____"",,'_ at by handing to a and made known to Sworn and subscribed before methis_dayof ,20_ , 20_, at o'clock M. served the copy ofllie original ""'-7 I j j c,;-;; i, So answers, the content&~er~gf. r; -- ~? t: r-- C~I Sheriff of County, PA COSTS SERVICE MILEAGE AFFIDAVIT $ $ ,- '"'I', r-,) .:';_.:.::.....' D'l ;;;:-., '1-, .z - '_ I.); _, _ n ;" .-:;~ '.-.' .,_-'-'l~ . _' ',_ ~ 1 -, , . @iiitt of tqt ~4~:riff William T. Tully Solicitor J. Daniel Basile Chief Deputy Mary Jane Snyder Real Estate Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin Courtly Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania MUSSER JANE L vs County of Dauphin WESTRA CONSTRUCTION INC Sheriff's Return No. 6480-T - -2004 OTHER COUNTY NO. 2004 576 AND NOW:August 30, 2004 at 12: 55PM served the within JOINDER COMPLAINT OF ADDITIONAL DEF upon WESTRA CONSTRUCTION INC by personally handing to JOLENE MILLER-RECPT 1 true attested copy (ies) of the original JOINDER COMPLAINT OF ADDITIONAL DEF and making known to him/her the contents thereof at EASTERN REGIONAL OFFICE 4002 FENTON AVE HARRISBURG, PA 17109-0000 Sworn and subscribed to before me this 31ST day of AUGUST, 2004 JR~ Sheriff of Dauphin Coun~ Pa. NOTARIAL SEAL MARY JANE SNYDER, NotOIy Puhlic Highspire, Dauphin County My Commission Expires Sept. I. 2006 Deputy Sheriff Sheriff's Costs:$31.25 PD 08/27/2004 RCPT NO 199018 / By GM WILLIAM J. DEVLIN, JR. & ASSOCIATES BY: Joseph McAleer, Esquire Atty. LD. # 65542 Suite 200,100 West Elm Street Conshohocken, P A 19428 (610) 397-4600 Attorney for Additional Defendant, Westra ConstrUction, Inc. JANE L. MUSSER AND MITCHELL MUSSER :COURT OF COMMON PLEAS :CUM:BERLAND COUNTY vs. :NO: 2004-576 RUBY TUESDAY, INC. and WESTRA CONSTRUCTION, INC. ENTRY OF APPEARANCE TO THE PROTHONTARY: Kindly enter my appearance on behalf of additional def,~ndant, Westra ConstrUction, Inc. WILLIAM J, DEVLIN, JR. & ASSOCIATES (',::~ {I \ . -.~~~ Jo eph M ]eer, Esquire A orney for Additional Defendant, estra ConstrUction, Inc. ID#: 65542 "-, C:-:-;I -= J..- a C) r" - .. C1 c;o - . NOTICE TO PLEAD TO: PLAINTlFFS AND CODEFENDANT, YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED ANSWER AND NEW MAITER AND NEW MA TIER PURSUANT TO 2252 (d) WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A DEFAULT JUDGMENT MAYBE ENTERED AGAINST YOU. WILLIAM J. DEVLIN, JR. & ASSOCIATES BY: Joseph McAleer, Esquire Atty. J.D. # 65542 Suite 200, 1 00 West Elm Street Conshohocken, P A 19428 (610) 397-4600 Attorney for Additional Defendant, Westra Construction, Inc. JANE L. MUSSER AND MITCHELL MUSSER :COURT OF COMMON PLEAS :CUMBERLAND COUNTY vs. RUBY TUESDAY, INe. :NO: 2004-576 and WESTRA CONSTRUCTION, INC. ADDITIONAL DEFENDANT, WESTRA CONSTRUCTION, INC.'S ANSWER AND NEW MATTER TO THE JOINDER COMPLAINT OF' CODEFENDANT, RUBY TUESDAY, INC. WITH A NEW MATTER CROSS CLAI:M PURSUANT TO PA. R.C.P. 2252 (d) Additional defendant, Westra Construction, Inc., (hereinafter "answering additional defendant"), by and through its counsel Joseph McAleer of William J. Devlin, Jr. & Associates 1 hereby files its Answer with New Matter to defendant, Ruby Tuesday, Inc.'s Joinder Complaint with a New Matter Cross Claim pursuant to Pa. R. Civ. P. 2252( d) and in support thereof avers: 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the tlUth ofthe matters averred; strict proof is demanded at trial. 2. Admitted. 3. Denied. Paragraph 3 is an incorporation clause to which no responsive pleading is required. To the extent that a pleading is required, and to the: extent that the allegations in paragraph 3 imply negligence or breach of contract on the part of answering additional defendant, said allegations are specifically denied. To the conlrary, at all times referenced in plaintiffs' Complaint and defendant's Joinder Complaint, answering additional defendant met with, and complied with all applicable standards of care, acted Jin accordance with all laws and rules, and met with any and all provisions of any contract it had with defendant Ruby Tuesday, Inc. 4. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the matters averred; strict proof is demanded at trial. 5. Denied. Paragraph 5 is a conclusion of law to which no responsive pleading is required. To the extent that a pleading is required, and to the extent that the allegations in paragraph 5 imply negligence or breach of contract on the part of answering additional defendant, said allegations are specifically denied. To the contrary, at all times referenced in plaintiffs' Complaint and defendant's Joinder Complaint, answering additional defendant met with, and complied with all applicable standards of care, acted in accordance with all laws and 2 rules, and met with any and all provisions of any contract it had with defendant Ruby Tuesday, Inc. 6. Denied. Paragraph 6 is a conclusion of law to which no responsive pleading is required. To the extent that a pleading is required, it is specifically denied that if the allegations contained in plaintiffs' Complaint are proven true, then answerlng additional defendant is solely liable on the plaintiffs' causes of action, liable over to Ruby Tuesday, Inc., jointly or severally liable with Ruby Tuesday, Inc. on the plaintiffs' causes of action, or liable to Ruby Tuesday, Inc. for indemnity or contribution. To the contrary, under no circumstances, is answering additional defendant liable to any party in this matter, under any theory of liability. NEW MATTER 7. By way of further answer, the additional defendant Westra Construction, Inc. asserts the following New Matter: 8. Answering additional defendant incorporates by reference the proceeding paragraphs, 1 through 7 of their Answer to the Joinder Complaint as though the same were fully set forth at length herein. 9. Answering additional defendant had no notice of a dangerous or hazardous condition as alleged in plaintiffs' Complaint and in the Joinder Complaint of defendant, Ruby Tuesday, Inc. 10. The applicable Statute of Limitations may have expired prior to the institution of this action. 11. Answering additional defendant was not negligent, careless and/or reckless at any time material hereto. 3 12. Plaintiffs may have failed to state a cause of action upon which relief can be granted. 13. Answering additional defendant caused no injuries or damages to plaintiffs, and any injury or damage allegedly sustained by plaintiffs may have been caused by a party other than the answering additional defendant and not within the control of answering additional defendant. 14. Plaintiffs may have assumed the risk of injury. 15. Plaintiffs may have been contributorily negligent. 16. Plaintiffs' claims may be barred and/or limited by the applicable section of the Pennsylvania Comparative Negligence Act. 17. Plaintiffs may have been otherwise negligent as may be determined during the course and scope of discovery and/or trial. 18. Answering additional defendant breached no duty to the plaintiffs. 19. If answering additional defendant was negligent, which is expressly denied, then the acts or omissions of answering additional defendant alleged to constitute negligence were not substantial factors or cause ofthe action or incident of which plaintiffs complain and/or did not result in the injuries or damages alleged by the plaintiffs. 20. The intervening negligent acts or omissions of other persons or entities may have constituted superseding causes of the accident or incident of which plaintiffs complain, and any injuries or damages allegedly suffered by the plaintiffs were caused by such superseding negligence of other persons and/or entities. 21. Answering additional defendant reserves the right to assert at the time of trial, any and all affirmative defenses revealed through discovery. 4 22. Plaintiffs' claims may be barred and/or limited by the doctrine of waiver and estoppel. 23. Answering additional defendant did not breach imy contract that it may have had with defendant, Ruby Tuesday, Inc. WHEREFORE, answering additional defendants deny that they are liable on the cause of action declared upon and demand judgment in their favor. NEW MATTER IN THE NATURE OF A CROSS CLAIM PER PA. R.C.P. 2252(D) ADDRESSED TO DEFENDANT 24. Answering additional defendant, incorporate by reference all of their answers and responses in paragraphs 1 through 23 of their Answer and New Matter to the Joinder Complaint as though fully set forth at length herein. 25. Answering additional defendant avers by way of further defense that ifplaintiffs sustained injuries or damages as alleged in the Complaint, all of which allegations of injuries and damages are specifically denied, then said injuries or damages were not the result of any acts or omissions on the part of answering additional defendant; but rather, defendant Ruby Tuesday, Inc. is alone liable, primarily liable, or liable over to answering additional defendant Westra Construction, Inc. for any injuries which may have been suffered by plaintiff and which are subsequently established at time of trial. 26. If, as a result of the matter alleged in the Joinder Complaint, answering additional defendant may be held liable for all or part of such injuries as plaintiffs may have suffered and which are subsequently established at time of trial, then defendant Ruby Tuesday, Inc. as the party primarily liable for such injuries or damages, is liable to answering additional defendant by 5 way of contribution and/or indemnification for all such injuries or damages as it may suffer, and it therefore, asserts in this action its right to such indemnification and/or contribution. WHEREFORE, answering additional defendant demands: (a) judgment in its favor together with costs and disbursements; (b) judgment, that if there is any liability to plaintiffs, then defendant Ruby Tuesday, Inc. is primarily liable to plaintiff; and ( c) if a verdict is recovered by plaintiffs against answering additional defendant, the defendant Ruby Tuesday, Inc. shall be held primarily liable and that answering additional defendant shall have judgment over and against the aforementioned defendant by way of indemnification and/or contribution for the amount recovered by plaintiffs against it, together with its costs and disbursements. WILLIAM J. DEVLIN, JR. & ASSOCIATES c-(}L' ( .l BYU. -i""" ' , I Joseph McA'reer, Esquire Att.0mey for Additional Defendant ~stra Construction, Inc. ID#: 65542 6 WILLIAM 1. DEVLIN, JR. & ASSOCIATES BY: Joseph McAleer, Esquire Atty. I.D. # 65542 Suite 200, I 00 West Elm Street Conshohocken, P A 19428 (610) 397-4600 Attorney for Additional Defendant, Westra Construction, Inc. JANE L. MUSSER AND MITCHELL MUSSER :COURT OF COMMON PLEAS :CUMBERLAND COUNTY vs. RUBY TUESDAY, INC. :NO: 2004-576 and WESTRA CONSTRUCTION, INe. CERTIFICATE OF SERVICE I, Joseph McAleer, attorney for defendant, Westra Construction, Inc., hereby certify that a copy of the within Answer to Joinder Complaint was served upon the parties named below by United States, first-class mail, postage prepaid on 12/115'/0 '1 , W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PAl 711 0 Edward A. Greenberg, Esquire Joseph F. Kampherstein, III, Esquire DaUer Greenberg & Dietrich, LLP Eight Tower Bridge, Suite 900 161 Washington Street Conshohocken, PA 19428-2060 WILLIAM J. DEVLIN, JR. & ASSOCIATES ~~ . - J osep4 McAle '~"Esquire Attot;rl.ey for Additional Defendant, ---WeStra Construction, Inc. ID#: 65542 VERIFICATION 1, tA\I;t:~.~VE'RS I representative of Westra Construction , hereby state that I am an authorized and as sU1ch, I am able to take this Verification on behalf of Westra Construction regarding in the foregoing lawsuit. I verify that the statements made in the foregoing Answer to Joinder Complaint with New Matter and Cross-claim are true and correct to the best of my knowledge, infonnation and belief. I understand that the statements made therein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. ~~r:; K. ~ DATE: l~- 3 - otJ , . ,", t- ....,\ (c DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc, JANE L. MUSSER and MITCHELL MUSSER v, NO, 2004-576 RUBY TUESDAY, INC. v, WESTRA CONSTRUCTION, INC, JURY TRIAL DEMANDED MOTION OF DEFENDANT RUBY TUESDAY, INC. TO COMPEL DEFENDANT WESTRA CONSTRUCTION, INc.'S ANSWERS TO INTERROGATORIES AND RESPONSES TO REOUEST FOR PRODUCTION OF DOCUMENTS AND THINGS Defendant Ruby Tuesday, Inc. hereby moves this Court to compel Defendant Westra Construction, Inc.'s Answers and Responses to the Interrogatories Directed to Defendant Westra Construction, Inc. and to Defendant's Request for Production of Documents and Things Directed to Defendant Westra Construction, Inc. In support of this Motion, Ruby Tuesday, Inc, states the following: 1. Plaintiffs instituted this action by writ of summons on February 10, 2004, and defendant Ruby Tuesday, Inc, was served with plaintiffs' complaint on June 28, 2004. 2. Defendant Ruby Tuesday filed a complaint joining additional defendant Westra Construction on or about July 26, 2004, 3, On December 3,2004, counsel for Ruby Tuesday, Inc. forwarded Defendant's Interrogatories Directed to Defendant Westra Construction, Inc. and Defendant's Request for Production of Documents and Things Directed to Defendant Westra Construction, Inc, to the attention of Defendant Westra Construction, Inc.'s counsel. See Exhibit "A," a true and correct copy of the December 3, 2004 transmittal letter. 4. On January 11,2005, more than thirty (30) days after service of the aforementioned discovery requests, counsel for Ruby Tuesday, Inc. notified Defendant Westra Construction, Inc.'s counsel that responses to these discovery requests were overdue. See Exhibit "B," a true and correct copy of the January 11, 2005 letter to Defendant Westra Construction, Inc.'s counsel. 5. To date, Westra Construction, Inc, has neither answered nor objected to the discovery, in violation of its obligations under Pennsylvania Rule of Civil Procedure 4006 and Pennsylvania Rule of Civil Procedure 4009,12. 6. The interrogatories and request for production of documents and things seek information and documents that are relevant and discoverable in this matter. 7, Defendant Ruby Tuesday, Inc, has been prejudiced in its ability to prepare a defense in this case due to Defendant Westra Construction, Inc.'s violation of the discovery rules. 8, This Court may enter the attached Order pursuant to Pennsylvania Rule of Civil Procedure 4019, WHEREFORE, defendant Ruby Tuesday, Inc. requests this Honorable Court to enter an Order in the form attached granting their Motion to Compel Defendant Westra Construction, 1nc.'s Discovery Responses within twenty (20) days. Respectfully submitted, DALLER GREENBERG & DIETRICH, LLP By: j!pI-/: 4,L~~ .:/Edward A. Gre,mberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428 (215) 836-1100 Date: January 19,2005 Attorneys for Defendant, Ruby Tuesday, Inc. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No, 32171 By: Joseph F, Kampherstein, III LD. No, 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for D(~fendant, Ruby Tuesday, Tnc, JANE L. MUSSER and MITCHELL MUSSER v, NO. 2004-576 RUBY TUESDAY, INe. v, WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED MEMORANDUM OF LAW IN SUPPORT OF RUBY TUESDAY, INC.'S MOTION TO COMPEL THE ANSWERS TO INTERROGATORIES AND REPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT WESTRA CONSTRUCTION. INC. I. FACTS In this personal injury action, defendant Ruby Tuesday, Inc, served discovery requests upon additional defendant Westra Construction, Inc, on Decemb'~r 3,2004, More than thirty days passed without responses or objections from Westra Construction, Inc. to these properly served discovery requests, Despite a reminder letter sent January 11, 2005, Ruby Tuesday, Inc, has received no objection, motion for protective order or responses from defendant, in violation of the Pennsylvania Rules of Civil Procedure. Without defendant's discovery responses, Ruby Tuesday, Inc. is unable to properly prepare a defense in this case, Ruby Tuesday, Inc. has been pr,~judiced by Westra Construction Inc.'s failure to meet its discovery obligations in this case. From the foregoing comes this Motion to Compel Westra Construction, Inc, to provide discovery responses. II. LEGAL STANDARD Under Pa. R.C.P. 4003,1, a party may obtain discovery of any matter which is reasonably calculated to lead to the discovery of admissible evidence and which is not otherwise privileged. Pa. R.C ,P. 4009,1 and 4009,11 permit a party to propound a request upon an opposing party to produce documents and other things which fall within the scope of Rule 4003.1. Pursuant to Pa, R,C,P, 4009,12, the party served with such a document request is under an affirmative obligation to answer the request by setting forth viable objections and/or producing the requested documents and things within thirty (30) days. Pa. R.C,P, 4005 permits a party to serve interrogatories upon another party, to which answers and/or objections are to be provided within thirty (30) days, pursuant to Pa, R,C.P, 4006, Pursuant to Pa. R.C.P, 4019, this COUli is authorized to enter an order where a party fails to respond properly to a request for production, fails to answer interrogatories or otherwise fails to make discovery. Rule 4019(c)(5) further authorizes this Court to enter an order compelling the disobedient party to fully and completely respond to discovery. Defendant Westra Construction, Inc., without objection, '~xcuse or motion for protective order, has failed to answer Ruby Tuesday, Inc,' s Interrogatories and First Request for Production of Documents, Those discovery requests were properly propounded upon Westra Construction, Inc.'s counsel on December 3, 2005. Ruby Tuesday, Inc. has been prejudiced in its ability to prepare a defense. Pursuant to Rule 4019, this Court should enter an Order compelling Westra Construction, Inc. to provide full and complete answers to Ruby Tuesday, Inc.'s Interrogatories and First Request for Production of Documents within twenty (20) days. III. CONCLUSION Defendant, Ruby Tuesday, Inc. respectfully requests this Court to enter an Order in the form attached granting its Motion to Compel discovery responses, Respectfully submitted, DALLER GREENBERG & DIETRICH, LLP By: I:~~ ;;~~~ dward A, Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428 (215) 836-1100 Date: January 19,2005 Attorneys for Defendant, Ruby Tuesday" Inc. -DALLER GREENBERG .DIETRICH LLP Law Offices Joseph F. Kampherstein 2158361873 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohockc:n, PA 19+28-2060 Telephont' 215 836 1100 Facsimilt 215 836 2845 December 3, 2004 Joseph McAleer, Esquire William 1. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Ubr:rtyView 457 Haddonfir:1d Road, Suitt 120 Clreny Hill, NJ 06002-2223 r,l<phon< 856188 0173 Facsimilt 856 488 5645 Re: Musser v. Ruby Tuesday, Inc. and Westra Construction, Inc. CCP - Cumberland County - No. 2004-576 Our File No. 430078 Dear Mr. McAleer: Enclosed are Interrogatories Directed to Defendant Westra ConstlUction (First Set) and First Request for Production of Documents and Things Directed to Westra Construction, Please respond in accordance with the Pennsylvania Rules of Civil Procl:dure. Additionally, please advise of your client's availability for deposition of a corporate designee in January, Very truly yours, DALLER GREENBERG & DIETRICH, LLP By: #~ Joseph F _ Kampherstein, III ~ JFK/ enclosure cc: W. Scott Henning, Esquire (w/encL) Limited Uability Partnership Fonned In Pennsylvania ( -DALLER GREENBERG IIDIETRICH LLP Law Offices Joseph F. Kampherstein 2158361873 Eight Tower Bridge: 161 Washington Stnet, Sutle 900 Conshohocken, PA 19128-1060- Telephone 2158361100 Facsimile 215 836 2845 January 11, 2005 libenyView 457 Haddonfreld Road. Suite 120 ebony Hill, NJ 06002-2223 Telepbone 856 i88 0173 Facsimile 856 188 5645 VIA FACSIMILE AND FIRST CLASS MAIL Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Re: Musser v. Ruby Tuesday, Inc. Our File No. 430078 Dear Mr. McAleer: On December 3, 2004, we served you with Interrogatories and Requests for Production of Documents. Over thirty days has elapsed, and we have not received your answers. Kindly respond to these discovery requests in the next seven (7) days so we avoid bringing the matter to the attention of the Court. Very truly yours, DALLER GREENBERG & DIETRICH, LLP By: ~~~ Joseph F. Karnpherstein, III JFKJ cc: W. Scott Henning, Esquire (via first class mail) limited Liability Partnership Fonned In Pennsylvania DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No, 32171 By: Joseph F, Kampherstein, III LD. No, 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER v, NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INe. JURY TRIAL DEMANDED ATTORNEY CERTIFICATION OF GOOD FAITH The undersigned counsel for movant hereby certifies and attests that he has attempted to contact opposing counsel regarding the disputed matters contained in the foregoing discovery motion in an effort to resolve the specific disputes and, further, that despite all counsel's good faith attempts to resolve the disputes, counsel have been unable to do so. CERTIFIED TO THE COURT BY: Date: January 19, 2005 N4~~~ Joseph F. Kampherstein, III Attorney for Defendant Ruby Tuesday, Inc. CERTIFICATE OF SERVICE I, Joseph F. Kampherstein IIl, Esquire, certify that I have served a true and correct copy of the Motion of Defendant Ruby Tuesday, Inc. to Compel Defimdant Westra Construction, Inc.'s Responses to Discovery upon the counsel/parties named below via U.S. first class mail, postage prepaid. Joseph McAleer, Esquire William 1. Devlin, Jr, & Associates 100 West Elm Street, Suite 200 Conshohocken, PA 19428 Attorney for Defendant Westra Construction, Inc. W, Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorney for plaintiffs ~I/>: ;:~j$ . Joseph F. Kampherstein III Date: January 19,2005 (') c ::.: <.- :t.~ :T- N (j'1 CJ -','1 .... ~'r -r1. h',;:",;~ -rttr~1 .,Cr. !,\-) :., ".1' ~ <~ ~::~ ~ .--:\ ::r'-'''' --r ....~ >..p C) (,)\ :~ DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D, No. 32171 By: Joseph F. Kampherstein ID, No, 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc, JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v, NO, 2004-576 RUBY TUESDAY, INC, JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, the undersigned certifies that: 1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; 3) no objection to the subpoena has been received; and 4) the subpoena which will be served is identical1;0 the subpoena which is attached to the notice of intent to serve the subpoena, DALLER GREENBERG & DIETRICH, LLP By: pr A7f~/E Joseph F, Kampherstein DATE: ! /; 'i /0 ~ Attorney for Defendant, Ruby Tuesday, Inc, "} \'-) C,' -":':.1 !':.;' f') 0::0 JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v, NO. 2004-576 RUBY TUESDAY, INC. JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant, Ruby Tuesday, Inc., intends to serve a subpoena directed to the Records Custodians for Higlunark Insurance Company, identical to the one attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. DALLER GREENBERG & DIETRICH, LLP By: ~~/c vi,/::; yii?- Joseph F. Kal11lpherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorney for Defendant, Ruby Tuesday, Inc. DATE: January 3, 2005 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Jane Musser and Mitchell Musser v. FileNo. 2004-576 Ruby Tuesday, Inc. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE: 4009.22 TO: Highmark (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordert~d by the court to produce the following documents or things: See Attachment at Daller,Greenberq &Dietrich,LLP.,Eiqht Tower Bridqe 161 Washinqton Street, Suite 900 (Address) Conshohocken ,PA 19428 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name Joseph F. Kam"hers~e;n,F."qll;r" Address: 161 Washington Street,Suite 900 Conshohocken,PA 19428 Telephone: 215-836-1873 Supreme Court 10 It 89409 Attorney For: Ruby Tuesday, Inc. Date: ~r d.,f ;). 6D<j I Seal of the Court Prothonotary/Clerk, C" IVISlon ~ *-tb-.J P /p~,yi(.r Deputy (Eft. 7/97) ATTACHMENT A The entire Highmark Insurance file relative to Jane Musser, of 11 Crescent Drive, New Cumberland, Cumberland County, PA 17070.; SS# 191-58-0520:~ Policy Number SBR19158052;. The documents requested hereby include, but are not limited to applications for insurance coverage and renewals; all insurance policies, certificates and benefit schedules regarding the insured's coverage, including supplemental coverages; health and physical examination records that were reviewed for underwriting purposes, and any statements, communications, correspondence, reports, questionnaires, and records submitted in connection with applications or renewals for insurance coverage, or claims; prescriptions, correspondence, test results, radiological films and any other medical records that were submitted for claims review purposes; any claim record filed; records of any claim paid; records of all litigation; and any other records of any kind concerning or pertaining to this individual. (.? "'" ,-,;J c:) ~~Jl _,1 <- :~ o ~'fl .-; :r ~'J rn;.... :;'~~D '-i~:) "-H (') ~' f1. r"...' Q"", ~"J _1.". f',) r~J m DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No, 32171 By: Joseph F. Kampherstein, III LD, No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys fiJr Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v, NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INe. JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW MOTION OF DEFENDANT RUBY TUESDAY, INC. TO COMPEL DEFENDANT WESTRA CONSTRUCTION, INC.'S ANSWERS TO INTERROGATORIES AND RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS Defendant Ruby Tuesday, Inc., by and through counsel, DaUer Greenberg & Dietrich, LLP, hereby withdraws its Motion to Compel Westra Construction Inc,'s Responses to Discovery, filed on January 19,2005. DALLER GREENBERG & DIETRICH, LLP By: k-/f~W-- Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428 (215) 836-1100 Date: January 24, 2005 Attorneys for Defendant, Ruby Tuesday, Inc, ..-" C? ~;; c~ ...:....". Z \'V _J ':? Q co Yl :~-(1 n1'?,";; :\Jo; )....( "::?I(") ,...""1", :":?3~\;\ ',-:'~ )J - DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg J.D. No. 32171 By: Joseph F. Kampherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. MOTION OF DEFENDANT RUBY TUESDAY, INC. TO COMPEL DEPOSITION OF DEFENDANT WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED Defendant Ruby Tuesday, Inc. hereby moves this Court to compel Defendant Westra Construction, Inc. to identify and produce a designee for deposition pursuant to Pennsylvania Rule of Civil Procedure 4007.1(e). In support of this Motion, Ruby Tuesday, Inc. states the following: 1. Plaintiffs instituted this action by writ of summons on February 10, 2004, and defendant Ruby Tuesday, Inc. was served with plaintiffs' complaint on June 28, 2004. 2. Defendant Ruby Tuesday filed a complaintjoirdng additional defendant Westra Construction on or about July 26, 2004. 3, On May 18,2005, defendant Ruby Tuesday, Inc. properly served a Notice of Corporate Designee Deposition upon counsel for defendant Westra Construction, Inc., requiring the designee's appearance for deposition on June 2, 2005. Sef: Exhibit "A," a true and correct copy of the May 18, 2005 Notice of Corporate Designee Deposition and Request for Production of Documents. 4. After counsel for Westra Construction advised that Westra employees would not available for deposition on June 2, 2005, the deposition was rescheduled by agreement. 5. On July 6, 2005, defendant Ruby Tuesday, Inc. properly served an Amended Notice of Corporate Designee Deposition upon counsel for Wl:stra Construction, Inc" requiring the designee's appearance for deposition on July 22, 2005. Sef: Exhibit "B," a true and correct copy of the July 6, 2005 Notice of Corporate Designee Deposition and Request for Production of Documents. 6. On July 21, 2005, less than twenty-four hours before the scheduled deposition, counsel for Westra Construction advised counsel for Ruby Tw:sday, Inc. by telephone that he was unable to contact his client, that Westra Construction had "ceased operations," and consequently, no designee would appear for deposition on July 22,2005. 7. On that same day, counsel for Ruby Tuesday, Inc. requested available dates for the rescheduling of Westra Construction, Inc.'s deposition. Se'e correspondence of July 21, 2005, Exhibit "C." 8. On August 25,2005, counsel for Westra Construction, Inc. advised by telephone that he still was not in contact with his client, and that consequently he was not able to reschedule the deposition of Westra Construction's designee. 9. To date, counsel for Westra has not provided arty dates for the deposition of the Corporate Designee, nor has Westra designated any individual to testify on its behalf, in violation ofPa. R. Civ. P. 4007.1(e). 10. Defendant Ruby Tuesday, Inc. requires Westra's Corporate Designee deposition testimony in order to properly prepare a defense to this case, and has been prejudiced in its ability to prepare a defense in this case due to defendant Westra's violation of the discovery rules. 11. Pa. R.Civ. P. 4019(a)(1)(ii) allows this Court to enter an Order compelling the deposition. WHEREFORE, defendant Ruby Tuesday, Inc. requests this Honorable Court to enter an Order in the form attached granting their Motion to Compel the Deposition of Defendant Westra Construction, Inc., and compelling Westra Construction, Inc. to identify and produce a corporate designee to testify on behalf of the company within twenty (20) days. Respectfully submitted, DALLER GREENBERG & DIETRICH, LLP By: ~ /7Ci ;('f/.--~<Jb7 - Edward A. Greenberg Joseph F. Karnpherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428 (215) 836-1100 Date: August 26, 2005 Attorneys for Defendant, Ruby Tuesday, Inc. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F. Kampherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED MEMORANDUM OF LAW IN SUPPORT OF RUBY TUESDAY. INC.'S MOTION TO COMPEL THE ANSWERS TO INTERROGATORIES AND REPONSES TO REOUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT WESTRA CONSTRUCTION. INC. I. FACTS In this personal injury action, defendant Ruby Tuesday, Inc. properly served a Notice of Corporate Designee Deposition upon counsel for defendant Westra Construction, Inc. on May 18,2005, requiring the designee's appearance for deposition on June 2, 2005. See Exhibit "A," a true and correct copy ofthe May 18,2005 Notice of Corp or at I: Designee Deposition and Request for Production of Documents. After counsel for Westra Construction, Inc. advised that Westra employees would not available for deposition on June 2, 2005, the deposition was rescheduled by agreement of counsel. On July 6, 2005, defendant Ruby Tuesday, Inc. properly served an Amended Notice of Corporate Designee Deposition upon counsel for Westra Com:truction, Inc., requiring the designee's appearance for deposition on July 22,2005. See Exhibit "B," a true and correct copy of the July 6, 2005 Amended Notice of Corporate Designee Deposition and Request for Production of Documents. On July 21,2005, counsel for Westra advised that he was unable to contact with his client, that Westra Construction had "ceased operations," and consequently, no designee would appear for deposition on July 22, 2005. To date, counsel for Westra has not provided any dates for the deposition of the Corporate Desigm~e, nor has Westra designated any individual to testify on its behalf, in violation of Pa. R. Civ. P. 4007 .1 (e). Without the deposition of defendant Westra Construction, Inc.' s corporate designee, Ruby Tuesday, Inc. is unable to properly prepare its defense in this case. Ruby Tuesday, Inc. has been prejudiced by Westra Construction Inc.' s failure to meet its discovery obligations in this case. From the foregoing comes this Motion to Compel the DI~position of a corporate designee of Westra Construction, Inc. II. LEGAL STANDARD Pursuant to Pa. R. Civ. P. 4007 .1 (e), a party may notice the deposition of a private corporation who is a party to the action. A corporate party subject to such a notice is required to "serve a designation of one or more officers, directors or managing agents, or other persons who consent to testify on its behalf." Pa. R. Civ. P. 4007.1(e). The: designee shall testify to "matters known or reasonably available to the organization." !d. Pursuant to Pa. R.C.P. 4019, this Court is authorized to enter an order where a party fails to respond properly to a request for production, fails to answer interrogatories or otherwise fails to make discovery. Rule 4019(c)(5) further authorizes this Court to enter an order compelling the disobedient party to comply fully and completely with proper discovery requests. Defendant Westra Construction, Inc., without objection, excuse or motion for protective order, has failed to identify and produce a corporate designee toO testify on its behalf. Without this deposition, Ruby Tuesday, Inc. is prejudiced in its ability to prepare a defense. Pursuant to Rule 4019, this Court should enter an Order compelling Westra Construction, Inc. to identify and produce a designee to testify on its behalf at deposition within twenty (20) days, or suffer further sanctions as the Court deems appropriate. III. CONCLUSION Defendant, Ruby Tuesday, Inc. respectfully requests this Court to enter an Order in the form attached granting its Motion to Compel. Respectfully submitted, DALLER GREENBERG & DIETRICH, LLP htr ~~-:rjff/- Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Wasbington Street, Suite 900 Conshohocken, PA 19428 (215) 836-1100 By: Date: August 26, 2005 Attorneys for Defendant, Ruby Tuesday, Inc. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F. Kampherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER v. NO. 2004..576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED ATTORNEY CERTIFICATION OF GOOD FAITH The undersigned counsel for movant hereby certifies and attests that he contacted opposing counsel as shown in the foregoing motion regarding the disputed matters contained in the foregoing discovery motion in an effort to resolve the specific disputes and, further, that despite all counsel's good faith attempts to resolve the disputes, counsel have been unable to do so. CERTIFIED TO THE COURT BY: Date: August 26, 2005 d /' /"~rJ;~~~ Joseph F. Kamph(:rstein, III Attorney for Defendant Ruby Tuesday, Inc. ( DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg J.D. No. 32171 By: Joseph F. Kampherstein, III J.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBIERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED NOTICE OF DEPOSITION To: Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 PLEASE TAKE NOTICE that pursuant to Pennsylvania Ru1e of Civil Procedure 4007.1, defendant, Ruby Tuesday, Inc., through its attorneys:, will take the oral deposition of additional defendant, Westra Construction, Inc., pursuant to Pennsylvania Ru1e of Civil Procedure 4007.1(e), on Thursday, June 2, 2005, beginning at 10:00 a.m., at the offices of Sargent's Court Reporting, Amtrak Train Station, Suite 302, 415 Market Street, Harrisburg, Pennsylvania, 17110, and continue from day to day, if necessary. ( ( The matters of inquiry shall be as follows: 1. The nature and scope of the services provided by Westra Construction, Inc. to Ruby Tuesday, Inc. during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A, and/or the supervision of same. 2. The names and last known addresses <Dfthe Westra Construction, Inc. employees or independent contractors who performed servkes during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3. The identity of individuals who had l1~sponsibility for selecting the television stands in the subject Ruby Tuesday restaurant. 4. The manner in which the television stands in the subject Ruby Tuesday restaurant were selected. 5. The identity of individuals who had l1~sponsibility for installation of the television stands in the subject Ruby Tuesday restaurant, induding the selection of the location, height, and positioning of the stands, as well as the physical installation of the stands. 6. The manner in which the television stands were installed in the subject restaurant, including the manner in which the location, height and positioning of the stands were selected and approved, and the manner in which the stands were fastened or secured in place. 7. The identity of individuals responsible for purchasing, receiving, unpacking and assembling the stands prior to installation in the subject Ruby Tuesday restaurant, and the manner in which same was performed. 8. The identity of any and all subcontrac:tors responsible for the installation of electrical, cable television or other utility wiring associatl~d with the televisions in the subject restaurant. 2 I I, ( 9. The extent to which the selection and approval of the location of the televisions and stands and final installation of same in the sull~ect restaurant was influenced by the installation and location of utility wiring. 10. The inquiries made within Westra Construction to comply with the document requests contained in this notice and in the parties' Request for Production of Documents. 11. The steps taken by Westra Construction to identify and produce for deposition a designee with knowledge in compliance with this Notice of Deposition, and the steps taken to locate documents responsive to the parties' dhlcovery requests and responsive to the document requests contained in this notice. The materials to be produced by the corporate designee at deposition shall be as follows: 1. Any and all documents not previously produced that concern in any way the services provided by Westra Construction, Inc. to Ruby Tuesday, Inc. during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, f' A. 2. Any and all documents that concern in any way the employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, PA. 3. Any and all documents that contain the names and last known addresses of the Westra Construction, Inc. employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restamant in Mechanicsburg, P A. 3 ( ( 4. Any and all documents that identify individuals who had responsibility for selecting the television stands in the subject Ruby Tuesday relltaurant and/or the manner in which the stands were selected. 5. Any and all documents that identify individuals who had responsibility for installation of the television stands in the subject Ruby Tuesd:ay restaurant, including the selection of the location, height, and positioning of the stands, and/or documents concerning the manner in which the installation was conducted. 6. Any and all documents that identify individuals responsible for purchasing, receiving, unpacking and assembling the stands prior to installation in the subject Ruby Tuesday restaurant, and/or concern the manner in which the same was conducted. 7. Any and all documents that concern th,: inquiries made within Westra Construction to identify a designee in compliance with this Notice of Deposition, and to identify documents responsive to the document requests contained in this notice and in the parties' Request for Production of Documents. DALLER GREENBERG & DIETRICH, LLP Date: May 18, 2005 BY:~:;:~JC Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428 (215) 836-1100 Attorneys for Defendant, Ruby Tu:sday, Inc. 4 ! \ ( CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, III, hereby certify that a true and correct copy of the foregoing Notice of Deposition was served by facsimile and fiirst-c1ass United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Ling1estown Road Harrisburg, P A 1711 0 Attorneys for Plaintiffs Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Attorneys for Defendant Wes'tra Construction jZ~/I~ Mr~ v Joseph F. Kampherstein, III Date: May 18,2005 5 ~ ':? 1;; o @ CD - :.0 :.c x w -.. ( ( DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428.2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED AMENDED NOTICE OF DEPOSITION To: Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 PLEASE TAKE NOTICE that pursuant to Pennsylvania Ru1e of Civil Procedure 4007.1, defendant, Ruby Tuesday, Inc., through its attorneys, will take the oral deposition of additional defendant, Westra Construction, Inc., pursuant to Pennsylvania Rule of Civil Procedure 4007, I (e), on Friday, July 22, 2005, beginning at 10:00 a.m., at the offices of Sargent's Court Reporting, Amtrak Train Station, Suite 302, 415 Market Street, Harrisburg, Pennsylvania, 17110, and continue from day to day, if necessary. ( ( The matters of inquiry shall be as follows: 1. The nature and scope of the services provided by Westra Construction, Inc. to Ruby Tuesday, Inc. during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A, andlor the supervision of same. 2. The names and last known addresses of the Westra Construction, Inc. employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3. The identity of individuals who had responsibility for selecting the television stands in the subject Ruby Tuesday restaurant. 4. The manner in which the television sUlIIlds in the subject Ruby Tuesday restaurant were selected. 5. The identity of individuals who had responsibility for installation of the television stands in the subject Ruby Tuesday restaurant, including the selection of the location, height, and positioning of the stands, as well as the physical installation of the stands. 6. The manner in which the television stands were installed in the subject restaurant, including the manner in which the location, height and positioning ofthe stands were selected and approved, and the manner in which the stands were fastened or secured in place. 7. The identity ofindividua1s responsible for purchasing, receiving, unpacking and assembling the stands prior to installation in the subject Ruby Tuesday restaurant, and the manner in which same was performed. 8. The identity of any and all subcontral;;tors responsible for the installation of electrical, cable television or other utility wiring associated with the televisions in the subject restaurant. 2 c c 9. The extent to which the selection and approval of the location of the televisions and stands and final installation of same in the subje<<:t restaurant was influenced by the installation and location of utility wiring. 10. The inquiries made within Westra Construction to comply with the document requests contained in this notice and in the parties' Request for Production of Documents. 11. The steps taken by Westra Construction to identifY and produce for deposition a designee with knowledge in compliance with this Notice of Deposition, and the steps taken to locate documents responsive to the parties' discovery requests and responsive to the document requests contained in this notice. The materials to be produced by the corporate designee at deposition shall be as follows: 1. Any and all documents not previously produced that concern in any way the services provided by Westra Construction, Inc. to Ruby Tuesday, Inc. during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, PA. 2. Any and all documents that concern ill any way the employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3, Any and all documents that contain the names and last known addresses of the Westra Construction, Inc. employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3 c' c 4. Any and all documents that identify individuals who had responsibility for selecting the television stands in the subject Ruby Tuesday restaurant and/or the manner in which the stands were selected. 5. Any and all documents that identify individuals who had responsibility for installation of the television stands in the subject Ruby Tuesday restaurant, including the selection of the location, height, and positioning ofthe stands, and/or documents concerning the manner in which the installation was conducted. 6. Any and all documents that identify individuals responsible for purchasing, receiving, unpacking and assembling the stands prior to installation in the subject Ruby Tuesday restaurant, and/or concern the manner in which the same was conducted. 7. Any and all documents that concern the inquiries made within Westra Construction to identify a designee in compliance with this Notice of Deposition, and to identify documents responsive to the document requests contained in this notice and in the parties' Request for Production of Documents. DALLER GREENBERG & DIETRICH, LLP By: 1:~p~ ~""'fA:;il-1Z Edward A. Greenbe g Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428 (215) 8.36-1100 ~ 1/0.,- Attorneys for Defendant, Ruby Tuesday, Inc. Date: July 6, 2005 4 c c CERTIFICATE OF SERVICE I, Elizabeth A. Underwood, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Deposition was served by facsimile and first-class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Ling1estown Road Harrisburg, PA 17110 Attorneys for Plaintiffs Joseph McAleer, Esquire William J. Devlin, Jr. & Associ2ltes 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Attorneys for Defendant Wesua Construction &~tJ (kJ;AAA.~) Ehzab th A. Underwood Date: July 6, 2005 5 / , / / / c c' -DALLER GREENBERG .DIETRICH LLP l..awOffices Joseph F, Kampherstein 2158361873 Eight Tower Bridge. 161 Washington Street, Suik 900 Coashohocken, PA 1~18-1060 Telephone 215 836 1100 facsimile liS S361MS July 21,2005 VIA FACSIMILE AND FIRST CLASS MAIL LibertyView 451 Haddonfic1d Road. Suite no Cheny Hill, NJ 08002-2223 Telephone 856 488 0173 Facsimilt 856 488 5645 Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, PA 19428 Re: Musserv. Ruby Tuesday, Inc. CCP - Cumberland County - No. 2004-576 Our File No. 430078 Dear Mr. McAleer: This is to confirm that we have cancelled the depositions schedluled for tomorrow, July 22, 2005. We cancelled these depositions based upon your representatiollls that you have been unable to contact employees of your client and confirm the attendance of Westra's designee and employee Rick Riegel for these scheduled depositions, and that Westra Construction ceased operations on July 8,2005. If you are able to make arrangements with Westra for production of these witnesses for deposition in August, please let me know as soon as possible, so that we may avoid bringing this matter to the Court's attention. Very truly yours, DALLER GREENBERG & DIETRICH, LLP By: .#;;~ Joseph F. Kampherstem, III JFK/ cc: W. Scott Henning, Esquire limited U;lbility P:mnership Fomled In Prnn~y]...ani.1 CERTIFICATE OF SERVICE I, Joseph F. Kampherstein III, Esquire, certify that I have served a true and correct copy of the Motion of Defendant Ruby Tuesday, Inc. to Compel ~h.e deposition of Defendant Westra Construction, Inc. upon the counsel/parties named below via U.S. first class mail, postage prepaid. Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Attorney for Defendant Westra Construction, Inc. W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, P A 1711 0 Attorney for plaintiffs [J--L.',/ ~. ,/ ~r:,' ~ Joseph F. Kampherstein III Date: August 26, 2005 -0 ~.".-' '0 S'.J !. ~") "" ~~ 0 c..." -n (.1") .-1 .. T ,; F;"i,~ -'.'" ,-.-; '-,,-"1 ~ ' ~..:.~ " ,);'n ;---i :;) -< JANE L. MUSSER and MITCHELL MUSSER, Plaintiffs IN THE COURT OF COMMON PLEAS OF v. CIVIL ACTION - LAW RUBY TUESDAY, INC., Defendant v. WESTRA CONSTRUCTION, INC., Additional Defendant NO. 04-576 CIVIL TERM ORDER OF COURT AND NOW, this 7th day of September, 2005, upon consideration of the Motion of Defendant Ruby Tuesday, Inc., To Compel Deposition of Defendant Westra Construction, Inc., a Rule is hereby issued upon the remaining parties to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, 1. J. ~cott Henning, Esq. 1300 Linglestown Road Harrisburg, P A 17110 Attorney for Plaintiffs '7 (\ ~ECEIVED SEP 072005 'Y IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY JANE L. MUSSER and MITCHELL MUSSER v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED ORDER AND NOW, this day of ,2005, upon consideration of the foregoing petition, it is hereby ordered that 1. a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the petition within twenty (20) days of service upon the respondent; 3. the petition shall be decided under Pa. R.C.P. No. 206.7; and 4. notice of the entry of this Order shall be provided to all parties by the petitioner. BY THE COURT: ~~ J. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY JANE L. MUSSER and MITCHELL MUSSER v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INe. JURY TRIAL DEMANDED ORDER AND NOW, this day of ,2005, upon consideration of the Motion of Defendant Ruby Tuesday, Inc. to Compel the Deposition of Defendant Westra Construction, Inc., it is hereby ORDERED and DECREED that the Motion is GRANTED. Defendant Westra Construction, Inc. shall identifY and produce a designee to testifY on its behalf pursuant to Pennsylvania Rule of Civil Procedure 4007.1 (e) within twenty (20) days of entry of this Order, or suffer sanctions upon application to this Court, J. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F. Kampherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED MOTION OF DEFENDANT RUBY TUESDAY, INC. TO COMPEL DEPOSITION OF DEFENDANT WESTRA CONSTRUCTION, INC. Defendant Ruby Tuesday, Inc. hereby moves this Court to compel Defendant Westra Construction, Inc. to identify and produce a designee for deposition pursuant to Pennsylvania Rule of Civil Procedure 4007.1(e). In support of this Motion, Ruby Tuesday, Inc. states the following: 1. Plaintiffs instituted this action by writ of summons on February 10, 2004, and defendant Ruby Tuesday, Inc. was served with plaintiffs' complaint on June 28, 2004. 2. Defendant Ruby Tuesday filed a complaint joining additional defendant Westra Construction on or about July 26, 2004. 3, On May 18,2005, defendant Ruby Tuesday, Inc, properly served a Notice of Corporate Designee Deposition upon counsel for defendant Westra Construction, Inc., requiring the designee's appearance for deposition on June 2, 2005, See Exhibit "A," a true and correct copy of the May 18,2005 Notice of Corporate Designee Deposition and Request for Production of Documents, 4. After counsel for Westra Construction advised that Westra employees would not available for deposition on June 2, 2005, the deposition was rescheduled by agreement. 5. On July 6, 2005, defendant Ruby Tuesday, Inc. properly served an Amended Notice of Corporate Designee Deposition upon counsel for Westra Construction, Inc., requiring the designee's appearance for deposition on July 22, 2005. See Exhibit "B," a true and correct copy of the July 6, 2005 Notice of Corporate Designee Deposition and Request for Production of Documents. 6. On July 21,2005, less than twenty-four hours before the scheduled deposition, counsel for Westra Construction advised counsel for Ruby Tuesday, Inc. by telephone that he was unable to contact his client, that Westra Construction had "ceased operations," and consequently, no designee would appear for deposition on July 22,2005. 7. On that same day, counsel for Ruby Tuesday, Inc. requested available dates for the rescheduling of Westra Construction, Inc.'s deposition. See correspondence of July 21, 2005, Exhibit "c," 8, On August 25,2005, counsel for Westra Construction, Inc. advised by telephone that he still was not in contact with his client, and that consequently he was not able to reschedule the deposition of Westra Construction's designee. 9. To date, counsel for Westra has not provided any dates for the deposition of the Corporate Designee, nor has Westra designated any individual to testify on its behalf, in violation ofPa. R. Civ. P. 4007.1(e). 10. Defendant Ruby Tuesday, Inc. requires Westra's Corporate Designee deposition testimony in order to properly prepare a defense to this case, and has been prejudiced in its ability to prepare a defense in this case due to defendant Westra's violation of the discovery rules. 11. Pa. R.Civ. P. 4019(a)(1)(ii) allows this Court to enter an Order compelling the deposition. WHEREFORE, defendant Ruby Tuesday, Inc. requests this Honorable Court to enter an Order in the form attached granting their Motion to Compel the Deposition of Defendant Westra Construction, Inc., and compelling Westra Construction, Inc. to identifY and produce a corporate designee to testifY on behalf of the company within twenty (20) days. Respectfully submitted, DALLER GREENBERG & DIETRICH, LLP By: ~/-r~~ ~ Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428 (215) 836-1100 Date: August 26, 2005 Attorneys for Defendant, Ruby Tuesday, Inc. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F, Kampherstein, III J.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE 1. MUSSER and MITCHELL MUSSER v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED MEMORANDUM OF LAW IN SUPPORT OF RUBY TUESDAY. INC.'S MOTION TO COMPEL THE ANSWERS TO INTERROGATORIES AND REPONSES TO REOUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT WESTRA CONSTRUCTION. INC. I. FACTS In this personal injury action, defendant Ruby Tuesday, Inc, properly served a Notice of Corporate Designee Deposition upon counsel for defendant Westra Construction, Inc. on May 18,2005, requiring the designee's appearance for deposition on June 2, 2005. See Exhibit "A," a true and correct copy of the May 18,2005 Notice of Corporate Designee Deposition and Request for Production of Documents. After counsel for Westra Construction, Inc. advised that Westra employees would not available for deposition on June 2, 2005, the deposition was rescheduled by agreement of counseJ. On July 6, 2005, defendant Ruby Tuesday, Inc. properly served an Amended Notice of Corporate Designee Deposition upon counsel for Westra Construction, Inc., requiring the designee's appearance for deposition on July 22,2005. See Exhibit "B," a true and correct copy of the July 6, 2005 Amended Notice of Corporate Designee Deposition and Request for Production of Documents. On July 21, 2005, counsel for Westra advised that he was unable to contact with his client, that Westra Construction had "ceased operations," and consequently, no designee would appear for deposition on July 22, 2005. To date, counsel for Westra has not provided any dates for the deposition of the Corporate Designee, nor has Westra designated any individual to testify on its behalf, in violation of Pa. R. Civ. P. 4007 .1 (e). Without the deposition of defendant Westra Construction, Inc.' s corporate designee, Ruby Tuesday, Inc. is unable to properly prepare its defense in this case. Ruby Tuesday, Inc. has been prejudiced by Westra Construction Inc.' s failure to meet its discovery obligations in this case. From the foregoing comes this Motion to Compel the Deposition of a corporate designee of Westra Construction, Inc. II. LEGAL STANDARD Pursuant to Pa. R. Civ. P. 4007 .1 (e), a party may notice the deposition of a private corporation who is a party to the action. A corporate party subject to such a notice is required to "serve a designation of one or more officers, directors or managing agents, or other persons who consent to testify on its behalf." Pa. R. Civ. P. 4007.1(e). The designee shall testify to "matters known or reasonably available to the organization." Id. Pursuant to Pa. R.C.P. 4019, this Court is authorized to enter an order where a party fails to respond properly to a request for production, fails to answer interrogatories or otherwise fails to make discovery. Rule 4019(c)(5) further authorizes this Court to enter an order compelling the disobedient party to comply fully and completely with proper discovery requests. Defendant Westra Construction, Inc., without objection, excuse or motion for protective order, has failed to identify and produce a corporate designee to testify on its behalf. Without this deposition, Ruby Tuesday, Inc. is prejudiced in its ability to prepare a defense. Pursuant to Rule 4019, this Court should enter an Order compelling Westra Construction, Inc. to identify and produce a designee to testify on its behalf at deposition within twenty (20) days, or suffer further sanctions as the Court deems appropriate. III. CONCLUSION Defendant, Ruby Tuesday, Inc. respectfully requests this Court to enter an Order in the form attached granting its Motion to Compel. Respectfully submitted, By: Date: August 26, 2005 Attorneys for Defendant, Ruby Tuesday, Inc. DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg I.D. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED ATTORNEY CERTIFICATION OF GOOD FAITH The undersigned counsel for movant hereby certifies and attests that he contacted opposing counsel as shown in the foregoing motion regarding the disputed matters contained in the foregoing discovery motion in an effort to resolve the specific disputes and, further, that despite all counsel's good faith attempts to resolve the disputes, counsel have been unable to do so. CERTIFIED TO THE COURT BY: Date: August 26, 2005 ~~r;:./~~ Joseph F. Kampherstein, III Attorney for Defendant Ruby Tuesday, Inc. ( DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F. Kampherstein, III I.D. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE L. MUSSER and MITCHELL MUSSER COURTOFCO~ONPLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED NOTICE OF DEPOSITION To: Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, PA 19428 PLEASE T AXE NOTICE that pursuant to Pennsylvania Rule of Civil Procedure 4007.1, defendant, Ruby Tuesday, Inc., through its attorneys, will take the oral deposition of additional defendant, Westra Construction, Inc., pursuant to Pennsylvania Rule of Civil Procedure 4007.1 (e), on Thursday, June 2, 2005, beginning at 10:00 a.m., at the offices of Sargent's Court Reporting, Amtrak Train Station, Suite 302, 415 Market Street, Harrisburg, Pennsylvania, 17110, and continue from day to day, if necessary. ( ( The matters of inquiry shall be as follows: 1. The nature and scope of the services provided by Westra Construction, Inc. to Ruby Tuesday, Inc. during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A, and/or the supervision of same. 2. The names and last known addresses of the Westra Construction, Inc. employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3. The identity of individuals who had responsibility for selecting the television stands in the subject Ruby Tuesday restaurant. 4. The manner in which the television stands in the subject Ruby Tuesday restaurant were selected. 5. The identity of individuals who had responsibility for installation of the television stands in the subject Ruby Tuesday restaurant, including the selection of the location, height, and positioning of the stands, as well as the physical installation of the stands. 6. The manner in which the television stands were installed in the subject restaurant, including the manner in which the location, height and positioning of the stands were selected and approved, and the manner in which the stands were fastened or secured in place. 7. The identity of individuals responsible for purchasing, receiving, unpacking and assembling the stands prior to installation in the subject Ruby Tuesday restaurant, and the manner in which same was performed. 8. The identity of any and all subcontractors responsible for the installation of electrical. cable television or other utility wiring associated with the televisions in the subject restaurant. 2 I I, ( 9. The extent to which the selection and approval of the location of the televisions and stands and final installation of same in the subject restaurant was influenced by the installation and location of utility wiring. 10. The inquiries made within Westra Construction to comply with the document requests contained in this notice and in the parties' Request for Production of Documents. 11. The steps taken by Westra Construction to identify and produce for deposition a designee with knowledge in compliance with this Notice of Deposition, and the steps taken to locate documents responsive to the parties' discovery requests and responsive to the document requests contained in this notice. The materials to be produced by the corporate designee at deposition shall be as follows: 1. Any and all documents not previously produced that concern in any way the services provided by Westra Construction, Inc. to Ruby Tuesday, Inc. during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 2. Any and all documents that concern in any way the employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3. Any and all documents that contain the names and last known addresses of the Westra Construction, Inc. employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3 ( ( 4. Any and all documents that identify individuals who had responsibility for selecting the television stands in the subject Ruby Tuesday restaurant and/or the manner in which the stands were selected. 5. Any and all documents that identify individuals who had responsibility for installation of the television stands in the subject Ruby Tuesday restaurant, including the selection of the location, height, and positioning of the stands, and/or documents concerning the manner in which the installation was conducted. 6. Any and all documents that identify individuals responsible for purchasing, receiving, unpacking and assembling the stands prior to installation in the subject Ruby Tuesday restaurant, and/or concern the manner in which the same was conducted. 7. Any and all documents that concern the inquiries made within Westra Construction to identify a designee in compliance with this Notice of Deposition, and to identify documents responsive to the document requests contained in this notice and in the parties' Request for Production of Documents. DALLER GREENBERG & DIETRICH, LLP Date: May 18,2005 By: #~~~ . Edward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. 4 ," ( CERTIFICATE OF SERVICE I, Joseph F. Kampherstein, III, hereby certify that a true and correct copy of the foregoing Notice of Deposition was served by facsimile and first-class United States mail, postage prepaid, as follows: W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 Attorneys for Plaintiffs Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Attorneys for Defendant Westra Construction Nc ~;ff- Joseph F. Kampherstein, III Date: May 18, 2005 5 ( ( DALLER GREENBERG & DIETRICH, LLP By: Edward A. Greenberg LD. No. 32171 By: Joseph F. Kampherstein, III LD. No. 89409 Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428-2060 (215) 836-1100 Attorneys for Defendant, Ruby Tuesday, Inc. JANE 1. MUSSER and MITCHELL MUSSER COURT OF COMMON PLEAS CUMBERLAND COUNTY v. NO. 2004-576 RUBY TVESDA Y, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED AMENDED NOTICE OF DEPOSITION To: Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 PLEASE TAKE NOTICE that pursuant to Pennsylvania Ru1e of Civil Procedure 4007.1, defendant, Ruby Tuesday, Inc., through its attorneys, will take the oral deposition of additional defendant, Westra Construction, Inc., pursuant to Pennsylvania Rule of Civil Procedure 4007. I (e), on Friday, July 22, 2005, beginning at 10:00 a.m., at the offices of Sargent's Court Reporting, Amtrak Train Station, Suite 302, 415 Market Street, Harrisburg, Pennsylvania, 17110, and continue from day to day, if necessary. ( c The matters of inquiry shall be as follows: 1. The nature and scope of the services provided by Westra Construction, Inc. to Ruby Tuesday, Inc. during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A, and/or the supervision of same. 2. The names and last known addresses ofthe Westra Construction, Inc. employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3. The identity of individuals who had responsibility for selecting the television stands in the subject Ruby Tuesday restaurant. 4. The manner in which the television stands in the subject Ruby Tuesday restaurant were selected. 5. The identity of individuals who had responsibility for installation of the television stands in the subject Ruby Tuesday restaurant, including the selection of the location, height, and positioning of the stands, as well as the physical installation of the stands. 6. The manner in which the television stands were installed in the subject restaurant, including the manner in which the location, height and positioning ofthe stands were selected and approved, and the manner in which the stands were fastened or secured in place. 7. The identity of individuals responsible for purchasing, receiving, unpacking and assembling the stands prior to installation in the subject Ruby Tuesday restaurant, and the manner in which same was performed. 8. The identity of any and all subcontractors responsible for the installation of electrical, cable television or other utility wiring associated with the televisions in the subject restaurant. 2 (, c 9. The extent to which the selection and approval of the location of the televisions and stands and final installation of same in the subject restaurant was influenced by the installation and location of utility wiring. 10. The inquiries made within Westra Construction to comply with the document requests contained in this notice and in the parties' Request for Production of Documents. 11. The steps taken by Westra Construction to identify and produce for deposition a designee with knowledge in compliance with this Notice of Deposition, and the steps taken to locate documents responsive to the parties' discovery requests and responsive to the document requests contained in this notice. The materials to be produced by the corporate designee at deposition shall be as follows: 1. Any and all documents not previously produced that concern in any way the services provided by Westra Construction, Inc. to Ruby Tuesday, Inc. during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, PA. 2. Any and all documents that concern in any way the employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, P A. 3. Any and all documents that contain the names and last known addresses of the Westra Construction, Inc. employees or independent contractors who performed services during the construction of the subject Ruby Tuesday restaurant in Mechanicsburg, PA. 3 c' (~ 4. Any and all documents that identifY individuals who had responsibility for selecting the television stands in the subject Ruby Tuesday restaurant and/or the manner in which the stands were selected. 5. Any and all documents that identifY individuals who had responsibility for installation of the television stands in the subject Ruby Tuesday restaurant, including the selection of the location, height, and positioning of the stands, and/or documents concerning the manner in which the installation was conducted. 6. Any and all documents that identifY individuals responsible for purchasing, receiving, unpacking and assembling the stands prior to installation in the subject Ruby Tuesday restaurant, and/or concern the manner in which the same was conducted. 7. Any and all documents that concern the inquiries made within Westra Construction to identifY a designee in compliance with this Notice of Deposition, and to identifY documents responsive to the document requests contained in this notice and in the parties' Request for Production of Documents. DALLER GREENBERG & DIETRICH, LLP By: r:~~ }., "''t,)~L;~U'- Edward A. Greenbe g Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, PA 19428 (215) 836-1100 ~AL,- Date; July 6, 2005 Attorneys for Defendant, Ruby Tuesday, Inc. 4 c' c CERTIFICATE OF SERVICE I, Elizabeth A. Underwood, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Deposition was served by facsimile and first-class United States mail, postage prepaid, as follows: Date: July 6, 2005 W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Ling1estown Road Harrisburg, PA 17110 Attorneys for Plaintiffs Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Attorneys for Defendant Westra Construction ~M rkJ2w m,,,} Eliza th A. Underwood 5 / c c' -DALLER GREENBERG ISDIETRICH LLP Law Offices Joseph F, KampherstetR 215836 1873 Eight Tower Bridge 161 Washington Stretl. Suite 900 Conshohocken, PA 19428-2060 Telephone 215 836 1100 Facsimile 215 836 2845 July 21, 2005 Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 U~nyView 457 Haddonfu::1d Road. Suitr; no cherty Hill, NJ 08001-11n Tekphone 856 486 0173 facsimile B56 488 5645 VIA FACSIMILE AND FIRST CLASS MAIL Re: Musser v. Ruby Tuesday, Inc. CCP - Cumberland County - No. 2004-576 Our File No. 430078 Dear Mr. McAleer: This is to confirm that we have cancelled the depositions scheduled for tomorrow, July 22, 2005. We cancelled these depositions based upon your representations that you have been unable to contact employees of your client and confirm the attendance of Westra's designee and employee Rick Riegel for these scheduled depositions, and that Westra Construction ceased operations on July 8, 2005. If you are able to make arrangements with Westra for production of these witnesses for deposition in August, please let me know as soon as possible, so that we may avoid bringing this matter to the Court's attention. Very truly yours, DALLER GREENBERG & DIETRICH, LLP By: ,p~~~~ Joseph F. Kampherstein, III ]FKJ cc: W. Scott Henning, Esquire Limited lklbility P:lTlnmhip Fl,rrn.:d In P(nn~~rvani<l CERTIFICATE OF SERVICE I, Joseph F. Kampherstein 1I!, Esquire, certify that I have served a true and correct copy of the Motion of Defendant Ruby Tuesday, Inc. to Compel the deposition of Defendant Westra Construction, Inc. upon the counsel/parties named below via U.S. first class mail, postage prepaid. Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Attorney for Defendant Westra Construction, Inc. W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Ling1estown Road Harrisburg, P A 1711 0 Attorney for plaintiffs t2 /-r-~)$' t7- C/ I Joseph F. Kampherstein III Date: August 26, 2005 ,--- "-, ',,:..) 0 ,~ ',:,} c.".'1 .-n (<~ --1 , :1: 'J (.i ;"'-) - ; , . " .:, S'.' ;-1'" , ,) SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-00576 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MUSSER JANE L ET AL VS RUBY TUESDAY INC AKA RUBY TUES R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named WITNESS , to wit: HALLAM KEITH but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within SUBPOENA On July 27th , 2005 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin County Postage 18.00 9.00 10.00 31.25 .74 68.99 07/27/2005 DALLER GREENBERG so:~~~f;>::::.'..' R. Thomas Kline Sheriff of Cumbe land County DIETRICH Sworn and subscribed to before me this I?-rll day of /JI/Ctt:51 ':iOb.5 A.,~ p~~'if In The Court of Common Pleas of Cumberland County, Pennsylvania Jane L. Musser et al vs Ruby Tuesday Inc VS. Westra Construction Inc SERVE: Keith Hallam NO. 04-576 civil Now, July 15, 2005 , !, SHERlFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .~~~~ Sheriff of Cumberland County, P A Affidavit of$ervice ,20 ,at o'clock M. served the Now, within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA 20 '- COSTS SERVICE' MILEAGE AFFIDAVIT $ Sworn and subscribed before me this _ day of $ @iiite of t4~ ~lr~riff William T. Tully Solicitor J. Daniel Basile Chief Deputy Mary Jane Snyder Real Estate Deputy Michael W, Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania MUSSER JANE L & MITCHELL vs County of Dauphin HALLAM KEITH Sheriff's Return No. 1303-T - -2005 OTHER COUNTY NO. 2004-576 AND NOW:July 21, 2005 at 9: 53AM served the within SUBPOENA TO ATTEND & TESTIFY & CHECK upon HALLAM KEITH by personally handing to TWILA HALLAM - WIFE OF DEFT 1 true attested copy(ies) of the original SUBPOENA TO ATTEND & TESTIFY & CHECK and making known to him/her the contents thereof at 8042 YELLOWSTONE DRIVE HBG, PA 17112-0000 Sworn and subscribed to So Answers, ?f~ before me this 22ND day of JULY, 2005 Sheriff of Dauphin~ounty, Pa. Deputy Sheriff Costs:$31.25 PD 07/19/2005 RCPT NO 208819 ~~ By NOTARIAL SEAL MARY JANE SNYDER, Notal)' Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 Sheriff's GMILLER WILLIAM J. DEVLIN, JR. & ASSOCIATES BY: Joseph McAleer, Esquire Atty. I.D. # 65542 Suite 200,100 West Elm Street Conshohocken, P A 19428 (610) 397-4600 Attorney for Additional Defendant, Westra Construction, Inc. JANE L. MUSSER AND MITCHELL MUSSER :COURT OF COMMON PLEAS :CUMBERLAND COUNTY vs. RUBY TUESDAY, INC. :NO: 2004-576 and WESTRA CONSTRUCTION, INC. WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Additional Defendant, Westra Construction, Inc. in the above-captioned matter. WILLIAM J. DEVLIN, JR. & ASSOCIATES ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Additional Defendant, Westra Construction, Inc. in the above-captioned matter. WILLIAM J. DEVLIN, JR. & ASSOCIATES BY: 4. h_~ \~ Brandon G. Johnson{ Es~uire - I.D. No. 65577 Attorney for Additiona Defendant Westra Construction, Inc. c Co' -'., \,-~:) f"'") o CO v, NO, 2004-576 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JANE L. MUSSER and MITCHELL MUSSER RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED MOTION OF DEFENDANT RUBY TUESDAY, INC. TO MAKE RULE ABSOLUTE Defendant, Ruby Tuesday, Inc" by and through its counsel, Daller, Greenberg & Dietrich, LLP, hereby moves to make the Court's September 7,2005 Rule absolute and in support of this motion, avers as follows: 1, On or about August 26, 2005, Ruby Tuesday, Inc. filed a motion to compel the deposition of defendant, Westra Construction, Inc, along with a Rule to Show Cause, both of which were served upon all parties, 2, Pursuant to that motion, a Rule was entered on September 7,2005 returnable twenty (20) days after service, by the Court of Common Pleas of Cumberland County in the person of the Honorable 1. Wesley Orler, Jr. See Exhibit "A." 3, That Rule was served upon all counsel via first class mail dated September 19, 2005, See Exhibit "B." 4, To date, no party has filed a response or interposed any objections to the motion. WHEREFORE, defendant, Ruby Tuesday, Inc, prays this Honorable Court enter an Order making the Rule absolute and compelling defendant Westra Construction Inc. to identify and produce a designee to testify on its behalf pursuant to Pennsylvania Rule of Civil Procedure By: /) ;;;. {I/'jL/- ~7~~~ !'tdward A. Greenberg Joseph F. Kampherstein, III Eight Tower Bridge 161 Washington Street, Suite 900 Conshohocken, P A 19428 (215) 836-1100 4007.1 (e) within twenty (20) days of entry of this Order, or suffer sanctions upon application to this Court. Respectfully submitted, DALLER GREENBERG & DIETRICH, LLP Attorneys for Defendant, Ruby Tuesday, Inc. Date: October 25,2005 , S'%hJbII /I JANE L. MUSSER and MITCHELL MUSSER, Plaintiffs IN THE COURT OF COMMON PLEAS OF v. CIVIL ACTION - LAW RUBY TUESDAY, INC., Defendant v. WESTRA CONSTRUCTION, INC., Additional Defendant NO. 04-576 CIVIL TERM ORDER OF COURT AND NOW, this 7'h day of September, 2005, upon consideration of the Motion of Defendant Ruby Tuesday, Inc., To Compel Deposition of Defendant Westra Construction, Inc., a Rule is hereby issued upon the remaining parties to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, J. J. W. Scott Henning, Esq. 1300 Linglestown Road Harrisburg, P A 17110 Attorney for Plaintiffs ,. FAOAit REcon;,; .1fIY IIInc Edward A. Greenberg, Esq. Josepj} F. Kampherstein, III, Esq. Eight Tower Bridge / A61 Washington Street / . / SUite 900 Conshohocken, PA 19428 Attorneys for Defendant Ruby Tuesday, Inc. Joseph McAleer, Esq. 100 West Elm Street Suite 200 Conshohocken, PA 19428 Attorney for Additional Defendant Westra Constmction :rc , - -------------- EX/lib;} B - - ~. -DAllER GREENBERG -DIETRICH LLP uwOffice$ .loseph F. Kampherstein 215836 1873 Eight Tower Bridge 161 Washington Street, Suite. 900 Conshohocken, PA 19428-2060 Telephone 215 836 llOO Facsimile 215 836 2845 September 19,2005 VIA FACSIMILE AND FIRST CLASS MAIL LiOCIlyView 457 Haddonfield Road, Suite 120 Cheny HUl, NJ 08002-2223 Telephone 856 488 0173 facsimile 856 488 5645 Joseph McAleer, Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, P A 19428 Re: Musser v. Ruby Tuesday, Inc. CCP - Cumberland County - No. 2004-576 Our File No. 430078 Dear Mr. McAleer: Enclosed is a copy of an Order entered by the Court regarding our pending motion to compel. Please advise if you have been able to contact your client. Very truly yours, DALLER GREENBERG & DIETRICH, LLP By: ,#~w~,/':7 Joseph F. Kampherstein. m JFKJ Enclosure cc; W. Scott Henning, Esquire (w/encs.) limited Liability P:utncr~hip f-'Irmrd [n Prnll~~]v,lniJ CERTIFICATE OF SERVICE I, Joseph F. Kampherstein III, Esquire, certify that I have served a true and correct copy of the Motion of Defendant Ruby Tuesday, Inc. to Make Rule Absolute upon the counsel/parties named below via U. S. first class mail, postage prepaid. William J. Devlin, Jr., Esquire William J. Devlin, Jr. & Associates 100 West Elm Street, Suite 200 Conshohocken, PA 19428 Attorney for Defendant Westra Construction, Inc. Nr- ;:;~~lF t Joseph F. Kampherstein III W. Scott Henning, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Hanisburg, P A 17110 Attorney for plaintiffs Date: October 25,2005 I'y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RECEIVED NOV 0 I 2005 BY; , JANE L. MUSSER and MITCHELL MUSSER v. NO. 2004-576 RUBY TUESDAY, INC. v. WESTRA CONSTRUCTION, INC. JURY TRIAL DEMANDED ORDER AND NOW, this m day of _~ )0\1 , 20M., upon motion of defendant, Ruby Tuesday, Inc., the Rule entered on September 7, 2005, returnable October 10,2005, is hereby made absolute and defendant, Westra Construction, Inc. shall identify and produce a designee to testify on its behalf pursuant to Pennsylvania Rule of Civil Procedure 4007.1 (e) within twenty (20) days of entry of this Order or suffer such sanctions as may be imposed upon application to this Court. APPROVED BY THE COURT: I UL~of!1 V . J. :>0. cr; .~'- 1- LI.!Q C);::~'~ G: :.. i1~) E? /-"1 i._~." WLL d"j u.. .::;_ ,.:.. I.L o c"" N co I ",.. s:;: uC> C~. = <-... :.-:., G Joseph McAleer, Esquire BY: Joseph McAleer, Esquire Atty. 1.0. # 65542 P.O. Box 278 Lake Harmony, PA 18624 570-722-2525 Attorney for Additional Defendant, Westra Construction, Inc. JANE 1.. MUSSER AND MITCHELL MUSSER :COURT OF COMMON PLEAS :CUMBERLAND COUNTY vs. RUBY TUESDAY, INC. :NO: 2004-576 and WESTRA CONSTRUCTION, INC. WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Additional Defendant, Westra Construction, Inc. in the above-captioned matter. FRANCIS R. GARTNER & ASSOCIATES BY: .- 1~L--! "'-' Brandon G. Johnson, Esquire ID#65577 Attorney for Additional Defendant Westra Construction, Inc. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Additional Defendant, Westra Construction, Inc. in the above-captioned matter. JOSEPH MCALEER, ESQUIRE Jose h McAleer, Esquire ID# 65542 orney for Additional Defendant Westra Construction, Inc. (") ,~, 0 r::? r- C..::J -n =, --1 c.? ~r I \.0 , ~ C) = :TJ ..t:- .< . SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-00576 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MUSSER JANE L ET AL VS RUBY TUESDAY INC AKA RUBY TUES R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named WITNESS , to wit: HALLAM KEITH but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within SUBPOENA On April 6th , 2006 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin County Postage 18.00 9.00 10.00 37.25 .78 75.03 04/06/2006 DALLER GREENBERG s~answer.' / //~_'.-C;::::::::~ . ~-~~. -~..."----'~"--'- ..c.-- -' -' .-'" R. Thomas Kline Sheriff of Cumberland County DIETRICH Sworn and subscribed to before me of M~y this \,. ' In The Court of Common Pleas of Cumberland County, Pennsylvania Jane L. Musser et al VS Ruby 'fuesday Inc YS. Westra COnstruction Inc SERVE: Keith Hallam NO. 04-576 civil Now, Marcli 16, 2006 . . I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. . C r~-~~~ Sheriff of Cumberland County, P A Affidavit of Service Now, ,20_, at 0' clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA , COSTS SERVICE MILEAGE AFFIDAVIT $ Sworn and subscribed before methis_dayof ,20_ $ , @tlitt of tlp~ ~4C:tiff William T. Tully Solicitor Charles E. Sheaffer Chief Deputy Mary Jane Snyder Real Estate Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717)780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania MUSSER JANE L & MITCHELL vs County of Dauphin HALLAM KEITH Sheriff's Return No. 0457-T - -2006 OTHER COUNTY NO. 2004-576 I, Jack Lotwick, Sheriff of the County of Dauphin, State of pennsylvania, do hereby certify and return, that I made diligent search and inquiry for HALLAM KEITH the DEFENDANT named in the wi thin SUBPOENA TO ATTEND & TESTIFY and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, March 31, 2006 PER ATTY, SERVICE NO LONGER NEEDED. Sworn and subscribed to before me this 31ST day of MARCH, 2006 jf~ Sheriff of Dauphin County, Pa. By NOTARIAL SEAL MARY JANE SNYDER, Notary Puhlic Highspire, Dauphin County My Commission Expires Sept 1, 2006 Deputy Sheriff Sheriff's Costs: $37.25 PD 03/21/2006 RCPT NO 215874 ,.I . l .' COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Jane L. Musser & Mitchell Musser: vs. Ruby Tuesday, Inc. File No. 2004-576 vs. Westra Construction Inc. SUBPOENA TO ATTEND AND TESTIFY TO: Keith Hallam 8042 Yellowstone Drive Harrisburg, PA 17112 1. You are ordered by the court to come to Sarqeant's Court Reportinq, Amtrak Train Station, 415 Market Street, Suite 302 (Specify courtroom or other place) at Harrisburg at 10:00 Dauphin County, Pennsylvania, on March 30, 2006 o'clock, A.M., to testify on behalf of Defendant, Rubv Tuesday in the above case, and to remain until excused. 2. And bring with you the following; If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa. R. C. P. No. 234.2(a): Name: Address: Joseph F. Kampherstein, III Eiqht Tower Bridqe, 161 Washinqton St., Suite 900 Conshohocken, PA 19428 Telephone: (215) 836-1100 Supreme Court ID # 89409 Date: (>1 d./Lc-i. I J.-f j 0010 I Seal of the Court -.....-... Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R. C. P. No. 234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) . ,'.. -..'" SUBPOENA COMMONWEATB OF PENNSYLVANIA Return of Service: On the day of . 19~I . served (NAME OF PERSON SERVED) with the foregoing subpoena by: (Describe method of service) I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaC.SA 0 4904 relating to unsworn falsification to authorities. Date: (SIGNATURE) ZO :E d h I HVW qOOl Vd 'A1NflOJ Lir~ ~'i(L:J8Hn3 .:I.:11l.!3HS 3Hl .:JO 331.:!.:JO JANE L. MUSSER and MITCHELL MUSSER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. No. 2004-576 RUBY TUESDAY, INC., CIVIL ACTION - LAW a/kla Ruby Tuesday (Georgia), Inc. d/b/a Ruby Tuesday Restaurant, : JURY TRIAL DEMANDED Defendant. PRAECIPE TO THE PROTHONOTARY: Please mark the Docket in the above captioned matter as Settled, Discontinued and Satisfied. Respectfully submitted, ~o-/~ -dOO~ DA E w. Scott Henning, s . e 1.0. #32298 1300 Linglestown Road Harrisburg, PA 17110 717 -238-2000 Attorney for Plaintiffs C2 (-~_.: r-.:> I:::":> ~ o -n I N ~-":I 3 a