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HomeMy WebLinkAbout04-137799 -'NOHIOHd uogewio;ul leuoplppe jo; pasn sl asJanaJ ;I aJay M08y0 ( ) (IndaO (q /, 7o r :91e0 / ?tiJl W Oy}ad 04 k Lo ?' . 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MAIN STREET CARL JUNCTION, MO 64834 Plaintiff(s) & Address(es) FLYING J INC. 1104 COUNTRY HILLS DRIVE OGDEN, UT 84403 versus CFJPROPERTIES dIblaFLYING JTRAVEL PLAZA 1104 COUNTRY HILLS DRIVE OGDEN, UT 84403 Defendant(s) & Address(es) AFFIDAVIT OF SERVICE This is to certify that on the 16" day of April, 2003„ a true and correct copy of the Writ of Summons No. 04-1377 was mailed to Defendant CFJ Properties d/b/a Flying J Travel Plaza at the premises located at 1104 Country Hills Drive, Ogden, UT 84403 via certified mail, return receipt requested. A copy of the Receipt for Certified Mail, No. 7003- 0500-0000-7386-2193 is attached hereto. Ste n F Counsel for Plaintiff Handler Henning & Rosenberg LLP 1300 Lingilestown Road Harrisburg, PA 17013 (717) 238-2000 -1 n ? n J Ci; $ S -r ' rn ui' Q' Cac? T C W _? Q? < IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.04-1377-2004 Civil Action - (XX) Law ( ) Equity JURY TRIAL DEMANDED ENOCH BLACK 507 S. MAIN STREET CARL JUNCTION. MO 64834 Plaintiff(s) & Address(es) FLYING J INC. 1104 COUNTRY HILLS DRIVE OGDEN, UT 84403 versus CFJPROPERTIESd/b/a FLYING J TRAVEL PLAZA 1104 COUNTRY HILLS DRIVE OGDEN, UT 84403 Defendant(s) & Address(es) AFFIDAVIT OF SERVICE This is to certify that on the 16th day of April, 2003, a true and correct copy of the Writ of Summons No. 04-1377 was mailed to Defendant: Flying J Travel Plaza at the premises located at 1104 Country Hills Drive, Ogden, UT 84403 via certified mail, return receipt requested. A copy of the Receipt for Certified Mail, No. 7003-0500-0000-7386- 2186 is attached hereto. Stephen Hleld Counsel for Plaintiff Handler Henning & Rosenberg LLP 1300 Linglestown Road Harrisburg, PA 17013 (717) 238-2000 ad?aur Pad?.. , ?,1l'71i° =;rw?r 7003 0500 0000 738L 2186 plg 81, Nr C N O S' r ,T . v c m v , --_ "- n '" C' c.J O m i V+ Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: HELD(a)hhrlaw.com ENOCH BLACK, Plaintiff V. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 04-1377-2994 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice is served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claim set forth against you. You are warned that if you fail to do so the case may proceed without you and 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. 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 LAWYER REFERRAL SERVICE 32 S. Bedford Street, Carlisle, PA 17013 Telephone: (717) 249-3166 HANDLE ENNING & ROSENBERG, LLP By to hen G. Held, Esq. 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING 8 ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: HELD(o.hhrlaw.com ENOCH BLACK, Plaintiff V. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED AVISO Le han demandado en corte. Si usted desea defender contra las demandas dispuestas an ]as paginas siguientes, usted debe tomar la acci6n en el plazo de veinte (20) dias despues de esta queja y se sirve el aviso, incorporando un aspecto escrito personalmente o y archivando an escribir con la corte sus defensas u objeciones a las demandas dispuestas contra usted el abogado le advierte que que si usted no puede hacer asi que el caso puede proceder sin usted y un juicio se puede incorporar contra usted compra la corte sin aviso adicional para cualquier dinero demandado an la queja o para cualquier otra demanda o relevaci6n pedida por el demandante. Usted puede perder el dinero o la caracteristica de otra endereza importante a usted. LISTED DEBE LLEVAR ESTE PAPEL SU ABOGADO INMEDIATAMENTE. SI LISTED NO HACE QUE UN ABOGADO VAYAA O LLAME POR TELEFONO La OFICINA DISPUESTA ABAJO. ESTA OFICINA PUEDE PROVEER DE LISTED LA INFORMACION SOBRE EMPLEAR A UN ABOGADO. SI LISTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, ESTA OFICINA PUEDE PODER PROVEER DE LISTED LA INFORMACION SOBRE LAS AGENCIAS QUE LOS SERVICIOS JURIDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO O NINGON HONORARIO CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 S. Bedford Street, Carlisle, PA 17013 Telephone: (717) 249-3166 .LP Harrisburg, PA 17110 (717) 238-2000 F.\WP nirecturies\BWS\Complaints\Premises\Slip and Fall\Blaek - diesel fuel with water.wpd Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: HELDOhhrlaw.com Attorney for Plaintiffs ENOCH BLACK, Plaintiff V. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Enoch Black, by and through his attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and brings forth this Complaint against the Defendants, Flying J Inc., and CFJ Properties d/b/a Flying J Travel Plaza and avers as follows: Plaintiff, Enoch Black, is an adult individual currently residing at 507 S. Main Street, Carl Junction, MO 64834. 2. Defendant, Flying J fnc., is a corporation with offices located at 1104 Country Hills Drive, Ogden, UT 84403, which regularly conducts business within the Commonwealth of Pennsylvania. 3. Defendant, CFJ Properties d/b/a Flying J Travel Plaza, is a business with offices located at 1104 County Hills Drive, Ogden, UT 84403, whichregularly conducts business within the Commonwealth of Pennsylvania. 4. At all times material hereto, Plaintiff, Enoch Black, was a business invitee upon said Premises. 5. At all times material hereto, Defendants, who had exclusive control of said Premises, had allowed a patch of oil and/or diesel fuel to accumulate, remain and/or mix with water on the refueling station surface of the Premises. 6. At all times material hereto, there were no warning signs posted on the Premises warning of the accumulation of oil, and/or diesel mixed with water on the refueling station surface of the Premises. 7. On or about April 9, 2002, Plaintiff, Enoch Black, was walking on the refueling station on the Premises. While walking on the refueling station, Plaintiff was caused to slip and fall harshly upon the ground due to an accumulation of accumulation of oil, and/or diesel mixed with water that was allowed to remain on the blacktop, causing personal injuries to the Plaintiff, as more particularly set forth herein. COUNT I - NEGLIGENCE ENOCH BLACK V. FLYING J INC. Paragraphs 1 through 7 are incorporated herein as if fully set forth. At all times material hereto, Plaintiff, Enoch Black, believes and therefore avers, that Defendant, Flying J Inc., was in ownership, possession, management and/or control of the Premises and was responsible for maintaining the safe condition of the property known as Flying J Travel Plaza, 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. 10. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Enoch Black, were caused directly and proximately by the negligence of Defendant, Flying J Inc., by and through 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 the refueling station at the Premises to become covered with oil and/or diesel fuel which mixed with water thereby posing a slipping hazard and an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the oil and/or diesel fuel mixed with water on the refueling station, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (c) In failing to ensure the refueling station at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (d) In failing to post a warning sign or device in the area of the accumulation of oil and/or diesel fuel which mixed with water, to notify of the dangerous oily or slippery condition on the refueling station of said Premises; (e) In failing to remove the oil and/or diesel fuel which mixed with water from the refueling station of said Premises so as to avoid the situation in which the Plaintiff slipped and fell; (f) In failing to place cinders, cat litter or any other non-skid, oil/grease absorbing material upon the oil and/or diesel fuel mixed with water on the refueling station; and (g) In failing to maintain the refueling station in a reasonably safe condition, clear of all defects that would prevent an invitee from slipping and falling, in violation of Restatement (Second) of Torts §§ 343, 343A. 11. Defendant, Flying J Inc., had actual knowledge or should have known through the exercise of ordinary care and diligence that there was oil and/or diesel fuel mixed with water on the refueling station in the area where Plaintiff, Enoch Black, fell. 12. As a direct and proximate result of the negligence of Defendant, Flying J Inc., Plaintiff, Enoch Black, sustained serious injuries including, but not limited to, a lumbar and cervical strain, a concussion, and a peripheral vestibular dysfunction. 13. As a direct and proximate result of the negligence of Defendant, Flying J Inc., Plaintiff, Enoch Black, has undergone great physical pain, discomfort and mental anguish and he will continue to endure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally and financially. 14. As a direct and proximate result of the negligence of Defendant, Flying J Inc., Plaintiff, Enoch Black, has suffered lost wages/income and may inthe future continue to suffer a loss of income and/or loss of earning capacity. 15. As a direct and proximate result of the negligence of Defendant, Flying J Inc., Inc., Plaintiff, Enoch Black, has been, and will in the future be, hindered from attending to his daily duties and activities to his great detriment, loss, humiliation and embarrassment. 16. As a direct and proximate result of the negligence of Defendant, Flying J Inc., Inc., Plaintiff, Enoch Black, has and will in the future, suffer a loss of life's pleasures. 17. As a direct and proximate result of the negligence of Defendant, Flying J Inc. Plaintiff, Enoch Black, 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 the same purposes in the future, to his great detriment and loss. 18. Plaintiff, Enoch Black, believes, and therefore avers, that his injuries are permanent in nature. WHEREFORE, Plaintiff, Enoch Black, seeks damages from Defendant, Flying J Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County. County. COUNT II - NEGLIGENCE ENOCH BLACK v. CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA 19. Paragraphs 1 through 18 are incorporated herein as if fully set forth. 20. At all times material hereto, Plaintiff, Enoch Black, believes and therefore avers, that Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, was in ownership, possession, management and/or control of the Premises and was responsible for maintaining the safe condition of the property known as Flying J. Travel Plaza, 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013 21. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Enoch Black, were caused directly and proximately by the negligence of Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, by and through 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 the refueling station at the Premises to become covered with oil and/or diesel fuel which mixed with water thereby posing a slipping hazard and an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the Premises; (b) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the oil and/or diesel fuel mixed with water on the refueling station, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (c) In failing to ensure the refueling station at said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (d) In failing to post a warning sign or device in the area of the accumulation of oil and/or diesel fuel which mixed with water, to notify of the dangerous oily or slippery condition on the refueling station of said Premises; (e) In failing to remove the oil and/or diesel fuel which mixed with water from the refueling station of said Premises so as to avoid the situation in which the Plaintiff slipped and fell; (f) In failing to place cinders, cat litter or any other non-skid, oil/grease absorbing material upon the oil and/or diesel fuel mixed with water on the refueling station; and (g) In failing to maintain the refueling station in a reasonably safe condition, clear of all defects that would prevent an invitee from slipping and falling, in violation of Restatement (Second) of Torts §§ 343, 343A. 22. Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was oil and/or diesel fuel mixed with water on the refueling station in the area where Plaintiff, Enoch Black, fell. 23. As a direct and proximate result of the negligence of Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, Plaintiff, Enoch Black, sustained serious injuries including, but not limited to, a lumbar and cervical strain, a concussion, and a peripheral vestibular dysfunction. 24. As a direct and proximate result of the negligence of Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, Plaintiff, Enoch Black, has undergone great physical pain, discomfort and mental anguish and he will continue to endure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally and financially. 25. As a direct and proximate result of the negligence of Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, Plaintiff, Enoch Black, has suffered lost wages/income and may in the future continue to suffer a loss of income and/or loss of earning capacity. 26. As a direct and proximate result of the negligence of Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, Plaintiff, Enoch Black, has been, and will in the future be, hindered from attending to his daily duties and activities to his great detriment, loss, humiliation and embarrassment. 27. As a direct and proximate result of the negligence of Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, Plaintiff, Enoch Black, has and will in the future, suffer a loss of life's pleasures. 28. As a direct and proximate result of the negligence of Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, Plaintiff, Enoch Black, 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 the same purposes in the future, to his great detriment and loss. 29. Plaintiff, Enoch Black, believes, and therefore avers, that his injuries are permanent in nature. WHEREFORE, Plaintiff, Enoch Black, seeks damages from Defendant, CFJ Properties d/b/a Flying J. Travel Plaza, in an amount in excess of the compulsory arbitration limits of Cumberland County. Dated: Respectfully submitted, HANDL 'HEN NG & ROSENBERG LLP By tep en G. Held I.D. #72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorneys for Plaintiffs 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 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. ?? LUG ?L L, Enoch Black Date: 2" 5 ? ' -_T BLACK, Plaintiff vs. YING J INC., and CFJ PROPERTIES )/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1377 CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE THEPROTHONOTARY: Please enter our appearance on behalf of Defendants, FLYING J INC., and J PROPERTIES d/b/a FLYING J TRAVEL PLAZA, in the above-captioned matter. Respectfully submitted, METTE, EVANS & WOODSIDE F. Yanine c Esquire p. Ct. I.D. No. 55741 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax jfyaninek@mette.com May 4, 2005 Attorneys for Defendants CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, via first class mail, as follows: en G. Held, Esq. ler Henning & Rosenberg, LLP Linglestown Road abure. PA 17110 METTE, EVANS & WOODSIDE J F. Yanin , Esquire Sup. Ct. I.D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax jfyaninek@mette.com Attorneys for Defendants May 4, 2005 ?? ?? ?> ?3y -n ?:,. -a --- .? i? -ci ???.y .? ? -k i c`> r?i ?? ;!? cn 1 W ENOCH BLACK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 04-1377 FLYING J INC., and CFJ PROPERTIES CIVIL ACTION - LAW d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Enoch Black, Plaintiff c/o Stephen G. Held, Esq. Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 You are hereby notified to file a written response to Defendants Answer and New Matter to Plaintiff's Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, METTE, EVANS & WOODSIDE By: C/)? - o F. Yani Esquire up. Ct. I.D. o. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: June 6, 2005 ENOCH BLACK, Plaintiff vs. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1377 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT Defendants, Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza, by and through their counsel, Mette, Evans & Woodside, hereby files this Answer to Plaintiff s Complaint and avers as follows: Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth or veracity of the allegations contained within paragraph 1 of Plaintiff s Complaint and is therefore denied with strict proof thereof demanded at trial. 2. Admitted. Denied. CFJ Properties is a General Partnership between Flying J, Inc. and Conoco Phillips. CFJ Properties is the owner of the property known as the Travel Plaza. 4. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 5. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth or veracity of the allegations contained within paragraph 7 of Plaintiff's Complaint and is therefore denied with strict proof thereof demanded at trial. COUNT I - NEGLIGENCE ENOCH CLACK V. FLYING J INC. 8. Paragraphs 1 through 7 are hereby incorporated by reference as if fully set forth at length. 9. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 10. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 11. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 12. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 13. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 14. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 15. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 16. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 17. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 18. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendants demand judgment in their favor and against the Plaintiff. COUNT II - NEGLIGENCE ENOCH BLACK V. CFJ PROPERTIES D/B/A FLYING J TRAVEL PLAZA 19. Paragraphs 1 through 18 are hereby incorporated by reference as if fully set forth at length. 20. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 21. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 22. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 23. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 24 Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 25. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 26. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 27. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 28. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). 29. Denied. This paragraph states legal conclusions to which no response is required. In addition, this paragraph is denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendants demand judgment in their favor and against the Plaintiff. NEW MATTER 30. Paragraphs I through 29 are hereby incorporated by reference as if fully set forth at length. 31. Plaintiff has failed to state a claim against Defendants upon which relief can be granted. 32. Plaintiff's claims may be barred by the applicable statute of limitation 33. Plaintiff's damages and injuries, if any, were caused by acts or omissions by others over whom Defendants had no control, which acts or omissions constituted intervening and/or superceding causes of Plaintiff's damages and injuries, if any. 34. Plaintiff's injuries are the result of his own negligence and/or contributory negligence. 35. Plaintiff may have assumed the risk of his injuries. WHEREFORE, Defendants demand judgment in their favor and against the Plaintiff. Respectfully submitted, METTE, EVANS & WOODSIDE L J F. Yanin , Esquire p. Ct. I.D. . 55741 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax jfyaninek@mette.com Date: June 6, 2005 Attorneys for Defendants FROM :ELYING-J-5200 FAX NO. :7172436685 Jun. 02 2005 02:53PM P1 r, Io JUN-01-2006 WED 03:67 PR FAX NO, )ZRH -A= 1, Bryn Marley, District Manager of Flying J Inc., have teed the foregoing Answer and New Matter to P14440 S Complaint, and verify that the facts set faith are tma and corrao to the bast of my knowledge, iafaasWou and belief. To the extant that the foregoing document and/or its language to that of counsel, I have relied upon counsel in making this Verification, I understand that any faiso statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn thtsitleation to authorities. DATED; t BrynM????ccciiii 4ncrtMaaeger CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, via first class mail, as follows: Stephen G. Held, Esq. Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 METTE, EVANS & WOODSIDE Sr . Yaninek squire S . Ct. I.D. No 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax jfyaninek@mette.com Attorneys for Defendants Date: June 6, 2005 4242460 am- ? ? . c f5-?t t, ? t.) W 1 C v t G CTt Stephen G. Held, Esquire Attorney I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Tele: (717) 238-2000 Fax: (717) 233-3029 HELD(cD-HHRLAW.COM Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.04-1377-2004 Civil Action - (XX) Law ENOCH BLACK 507 S. MAIN STREET CARL JUNCTION, MO 64834 versus Plaintiff FLYING J INC. 1104 COUNTRY HILLS DRIVE OGDEN, UT 84403 CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA 1104 COUNTRY HILLS DRIVE OGDEN, UT 84403 Defendant(s) PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT(S) 30. This is a paragraph of incorporation to which no response is required. 31. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff has stated a claim against Defendants upon which relief can be granted. 32. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff's claims are not barred by the applicable statute of limitation. 33. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff's damages and injuries were caused by acts or omissions by instant Defendant and not by acts or omissions by others over whom Defendants had no control or any other intervening and/or superceding causes. 34. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby denied. Byway of amplification, Plaintiff was not negligent. 35. The averment of this paragraph is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby denied. By way of amplification, Plaintiff did not assume the risk of his injuries. WHEREFORE, Plaintiff respectfully requests this Honorable Court grant judgment in his favor against Defendant. Respectfully submitted, HANDLE E IN ROSENBERG, LLP Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Counsel for Plaintiff VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 (c) STEPHEN G. HELD, 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 personal 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: 6 v ST H LD, ESQUIRE Stephen G. Held, Esquire Attorney I.D. No. 72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Tele: (717) 238-2000 Fax: (717) 233-3029 HELD(a?HHRLAW.COM Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.04-1377-2004 Civil Action - (XX) Law ENOCH BLACK 507 S. MAIN STREET CARL JUNCTION, MO 64834 FLYING J INC. 1104 COUNTRY HILLS DRIVE OGDEN, UT 84403 versus CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA 1104 COUNTRY HILLS DRIVE OGDEN, UT 84403 Plaintiff Defendant(s) CERTIFICATE OF SERVICE AND NOW, this 8'h day of June, 2005, 1 hereby certify that I have served the within document upon Defendants/Counsel of Record by sending a true and correct copy of the same to them/him via First Class United States mail, postage prepaid, and addressed as follows: John F. Yaninek, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110 HANWER,_HFNNING & R9,$ENBERG, Marti Men' 1-6g-al?3ecrdtafyL to Stephen G. Held, Esquire o C=? o G) w Orn <: co , CD _ ? ENOCH BLACK, Plaintiff vs. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1377 CIVIL ACTION - LAW JURY TRIAL DEMANDED As a prerequisite to service of subpoena for documents and things pursuant to Rule 4009.22, Defendants Flying J Inc. and CFJ Properties d/b(a Flying J Travel Plaza, certify that: (1) a Notice of Intent to serve the subpoenas with copies of the subpoenas attached thereto was mailed to each party; (2) a copy of the Notice of Intent, including the proposed subpoenas, is attached to this Certificate; (3) no objections to the subpoenas has been made or received; and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the Notice of Intent to serve the subpoena. Respectfully submitted, METTE, EVANS & WOODSIDE By: F. Yan e , Esquire up. Ct. I.D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J Inc., and CFJ Properties d/bfa Flying J. Travel Plaza Date: 7(20/05 ENOCH BLACK, : IN THE COURT OF COMMON PLEAS OF Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA V. FLYING J INC. and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants No.: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA Defendants intend to serve subpoenas upon Cumberland Goodwill Fire Rescue EMS, Carlisle Regional Medical Center and Healthmart, Inc. for the purpose of obtaining medical records. The subpoenas are identical to the ones that are 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 any objections to the subpoenas. If no objections are made, the subpoenas may be served. Respectfully submitted, METTE, EVANS & WOODSIDE By: Jo . Y464' Esquire S . Ct. I.D. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: /')? /o"?- ENOCH BLACK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. FLYING J INC. and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants No.: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED TO: Cumberland Goodwill Fire Rescue EMS. 102 West Ridge Road. Carlisle. PA 17013 (Name of Person or Entity) Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: Complete, legible single-sided copies of any and all trip sheets, medical records, hospital records and all records not specifically identified above rendered to Enoch Black (Birthdate: December 11, 1935; Social Security No. 497-38-1633) from January 1, 1990 to the present. at Mette- Evans & Woodside. P.O. Box 5950, Harrisburg, PA 17110-0950 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: John F. Yaninek. Esquire Address: Mette, Evans & Woodside 3401 North Front Street. P. O. Box 5950. Harrisburg, PA 17110-0950 Telephone: (717) 2-5000 Supreme Court ID955741 ATTORNEY FOR: Defendants BY THE COURT: DATE: u, 9 a-C)nT Sea) of the Court Prothonotary. ENOCH BLACK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. FLYING J INC. and CFJ PROPERTIES d(b(a FLYING J TRAVEL PLAZA, Defendants No.: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Regional Medical Center, 246 Parker Street, PO Box 310. Carlisle, PA 17013-0310 (Name of Person or Entity) Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: Complete, legible single-sided copies of any and all medical/hospital records and reports in your possession pertaining to all inpatient or outpatient medical care and treatment including but not limited to emergency room treatment, operative reports, admission/discharge summary, referrals, consultations and all records not specifically identified above rendered to Enoch Black (Birthdate: December 11, 1935; Social Security No. 497-38-1633) from January 1, 1990 to the present:. at Mette, Evans & Woodside, P.O. Box 5950, Harrisburg, PA 17110-0950 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling; you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: John F. Yaninek. Esquire Address: Mette, Evans & Woodside 3401 North Front Street, P. O. Box 5950. Harrisburg. PA 17110-0950 Telephone: (717) 232-5000 Supreme Court ID455741 ATTORNEY FOR: Defendants BY THE COURT: DATE: r '9 Seal of the Court r 427254v1 Prothonotary ENOCH BLACK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No.: 04-1377-2004 FLYING J INC. and CFJ PROPERTIES CIVIL ACTION - LAW d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR TH FOR DISCOVERY PURSUANT TO RULE 4009.: TO: Healthmart, Inc., 2301 S. Broad Street. Philadelphia. PA 19148 (Name of Person or Entity) Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: Complete, legible single-sided copies of any and all medical/hospital records and reports in your possession pertaining to all inpatient or outpatient medical care and treatment including but not limited to emergency room treatment, operative reports, admission/discharge summary, referrals, consultations and all records not specifically identified above rendered to Enoch Black (Birthdate: December 11, 1935; Social Security No. 497-38-1633) from January 1, 1990 to the present, at Mette, Evans & Woodside P.Q. Box 5950, Harrisburg, PA 17110-0950 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above, You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it, THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: John F. Yaninek. Esquire Address: Mette. Evans & Woodside 3401 North Front Street, P. O. Box 5950. Harrisbure. PA 17110-0950 Telephone: (717) 232-5000 Supreme Court ID#55741 ATTORNEY FOR: Defendants BY THE COURT: DATE: JLJ-t NF. '2 9 Seal of the Court 427254vt `\ CERTIFICATE OF SERVICE I hereby certify that I am serving a copy of the foregoing Notice of Intent upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Respectfully submitted, METTE, EVANS & WOODSIDE By: J F. Yari ek, Esquire S V Ct. I.D. o. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: cQ 14'/0 Jr 42725avi CERTIFICATE OF SERVICE I hereby certify that I am serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Respectfully submitted, METTE, EVANS & WOOOOODSIDE By: F. Y ne , Esquire Ct. I. . 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza Date: 7/20/05 42a5sav] C c..? T cam, T CD 2 'C ern -. J ENOCH BLACK, Plaintiff vs. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1377 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA PURSUANT TO PA.R.C.P. 4009.2 AND 45 CFR 164, ET SEQ. (HIPAA) As a prerequisite to service of subpoena for documents and things pursuant to Rule 4009.22, Defendants Flying J Inc. and CFJ Properties dlbfa Flying J Travel Plaza, certify that: (1) a Notice of Intent to serve the subpoena with a copy of the subpoenas attached thereto was mailed to each party; (2) a copy of the Notice of Intent, including the proposed subpoena, is attached to this Certificate; (3) plaintiff's counsel has advised that they have no objection to the subpoena and waive the 20 day notice period; and (4) the subpoenas which wilt be served are identical to the subpoenas which are attached to the Notice of Intent to serve the subpoena. Respectfully submitted, METTE, EVANS & WOODSIDE By: " v Jo F. Yaninek quire S . Ct. I.D. No' 41 3401 North Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J Inc., and CFJ Properties d/b/a Flying J. Travel Plaza Date: February 6, 2006 ENOCH BLACK, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. FLYING J INC. and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants No.: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO P.R.C.P. 4009.2 AND 45 CFR 164 ET SEQ. (HIPAA) Defendants intend to serve a subpoena upon Tyson Foods, Inc. for the purpose of obtaining employment records. The subpoenas are identical to the ones that are 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 any objections to the subpoenas. If no objections are made, the subpoenas may be served. Respectfully submitted, METTE, EVANS & WOODSIDE By: J T. Yam Esquire Ct. I.A. No. 55741 3401 North Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: February 2, 2006 ENOCH BLACK, V. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No.: 04-1377-2004 FLYING J INC. and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Tyson Foods. Inc.. Legal Department. 2210 West Oaklawn Springdale AR 72762-6999 (Name of Person or Entity) Within twenty (20) days after service of this Subpoena, you are ordered by the Court to produce the following documents or things: Complete, legible single-sided copies of any and all employment records in your possession pertaining to Enoch Black, DOB: 12/11/35; SS# 497-38-1633, including but not limited to: all compensation records, all payroll records, evaluation reports, absentee documentation, disability applications, retirement benefit records, medical and hospital records, and workers' compensation records (including but not limited to claim #02-53249) at Mette. Evans & Woodside, P.O. Box 5950. Harrisburg, PA 17110-0950 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: John F. Yaninek. Esquire Address: Mette. Evans & Woodside 3401 North Front Street. P. O Box 5950. Harrisburg PA 17110-0950 Telephone: (717) 232-5000 Supreme Court ID#55741 ATTORNEY FOR: Defendants BY THE COURT: DATE: Seal of the Court 442338v1 Return of Service: On the _day of (Name of Person Served) 2006, I, 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 Pa.C.S.A. § 4904 relating to unworn falsification to authorities. Date: (Signature) CERTIFICATE OF SERVICE I hereby certify that I am serving a copy of the foregoing Notice of Intent upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Respectfully submitted, METTE, EVANS & WOODSIDE By: ...? F. Yani squire u . Ct. 1. D. 5741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: February 2, 2006 442341v1 CERTIFICATE OF SERVICE I hereby certify that I am serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Respectfully submitted, METTE, EVANS & WOODSIDE By Jo . Yanine quire SW. Ct. I.D. No. 5741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza Date: February 6, 2006 442499v1 f? D ' L?.`. ? ]"` ?? -?r? -? -t'? J i,,1., :. G ,??'- i _ u? r ?_4, {? n) :< ENOCH BLACK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 04-1377 FLYING J INC., and CFJ PROPERTIES CIVIL ACTION - LAW d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED DEFENDANTS' MOTION TO COMPEL PLAINTIFF'S APPEARANCE AT DEPOSITION AND NOW, Defendants, by their attorneys, Mette, Evans & Woodside, file this Motion to Compel Enoch Black to appear, testify, and produce documents at deposition and in support of which they aver as follows: 1. On or about April 1, 2004, Plaintiff commenced this action by Writ of Summons. 2. On or about April 21, 2005, Plaintiff filed a Complaint against the Defendants, alleging that the Defendants' negligence caused him to slip and fall as he was walking on a refueling station on the Defendants' premises. Plaintiff further alleges that he suffered injuries as a result of the fall. 3. On or about June 6, 2005, Defendants filed an Answer and New Matter to Plaintiff s Complaint. 4. On or about June 9, 2005, Plaintiff filed a Reply to New Matter. 5. On or about June 6, 2006, Defendants served a Notice of Deposition on Plaintiff, through his attorney, by mail. A copy of the Notice of Deposition and the accompanying correspondence are attached as Exhibit A. 6. Defendants scheduled Plaintiff's deposition for Monday, August 7, 2006 beginning at 10:00 a.m. at the law offices of Mette, Evans & Woodside, 3401 North Front Street, Harrisburg, Pennsylvania 17110 and made arrangements for a court reporter to be in attendance at that time to record the deposition. 7. Plaintiff s counsel contacted Defendants' counsel and stated that he would produce the Plaintiff, but requested that Plaintiff's deposition be rescheduled for Wednesday, September 20, 2006, and that it be conducted at Plaintiff's counsel's office. 8. Defendants' counsel agreed to the time, date and location requested by Plaintiff and, on or about July 13, 2006, Defendants served an Amended Notice of Deposition on Plaintiff, through his attorney, by mail. A copy of the Amended Notice of Deposition and the accompanying correspondence are attached as Exhibit B. 9. The Amended Notice of Deposition scheduled Plaintiff's deposition for Wednesday, September 20, 2006, beginning at 9:00 a.m. at the offices of Handler, Henning and Rosenberg, 1300 Linglestown Road, Harrisburg, Pennsylvania 17110, and Defendants made arrangements for a court reporter to be in attendance at that time to record the deposition. 10. On or about September 15, 2006, Plaintiff's counsel faxed a brief note to Defendants' counsel indicating that Plaintiff would not be appearing for the September 20, 2006 deposition because Plaintiff was too sick to travel from his home in Missouri. 11. Plaintiff's counsel has not attempted to reschedule the deposition, nor has he indicated when Plaintiff will be able to be deposed. 12. Plaintiff's counsel did not seek or obtain a protective order pursuant to Pennsylvania Rule of Civil Procedure 4012(a) prior to indicating that Plaintiff would not appear for the September 20, 2006 deposition. 2 13. Pennsylvania Rule of Civil Procedure 4001(c) provides that any party "may take the testimony of any person, including a party, by deposition upon oral examination ... for preparation of pleadings, or for preparation or trial of a case, or for use at a hearing upon petition, motion, or rule, or for any combination of the foregoing purposes." Pa. R.C.P. No. 4001(c). 14. Pennsylvania Rule of Civil Procedure 4003.1(a) provides that a party may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action. Pa. R.C.P. No. 4003.1(a). 15. Until the Defendants depose Plaintiff about his alleged fall and injuries, Defendants cannot adequately assess or prepare their case. Therefore, Defendants will be prejudiced by Plaintiff's continued failure to comply with the deposition process. 16. Pennsylvania Rule of Civil Procedure 4019(a)(1) provides that: (a)(1) The court may, on motion make an appropriate order if (iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1(a) to be examined, after notice under Rule 4007. 1, fails to appear before the person who is to take the deposition; Pa. R.C.P. No. 4019(a)(1)(iv). 17. Pennsylvania Rule of Civil Procedure 4019(a)(2) provides that "[a] failure to act described in [Pa. R.C.P. No. 4019(a)] may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order." Pa. R.C.P. No. 4019(a)(2). 18. As stated previously, Plaintiff s counsel did not seek or obtain a protective order prior to indicating that Plaintiff would not appear for the scheduled deposition. 3 19. Pennsylvania Rule of Civil Procedure 4019(c) provides that the court, when acting under Pennsylvania Rule of Civil Procedure 4019(a) may make, inter alia: (2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition; (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience; (5) Such order with regard to the failure to make discovery as is just. Pa. R.C.P. No. 4019(c). 20. The Defendants have already incurred the burden and expense of scheduling and preparing for the properly noticed depositions and will be further prejudiced in their preparations for trial by the Plaintiff's continued failure to appear for his deposition. WHEREFORE, Defendants respectfully request that this Honorable Court order Plaintiff Enoch Black to appear, testify and produce documents at his deposition or to be held in contempt of court and subject to the sanctions set forth in Pennsylvania Rule of Civil Procedure 4019(g). Defendants also request that the court award the Defendants such other relief as is just under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE By: 6anm?5i?- - Jo . Yanin squire 5741 S P Ct. LD. 0' 34 1 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 4 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J Inc., and CFJ Properties d/b/a Flying J Travel Plaza Date: November 6, 2006 5 Exhi bid- A METTE9 EVANS & WOODSIDE A PROFESSIONAL OORPORATION HOWELL C. METTE ANDREW H. DOWLING ATTORNEYS AT LAW MATTHEW E. HAMLIN** ROBERT MOORE MICHAEL D. REED KATHLEEN DOYLE YANINEK CHARLES B. ZWALLY PAULA J. LEICHT 3401 NORTH FRONT STREET JENNIFER A. YANKANICH OF COUNSEL PETER J. RESSLER GARY J. HELM P.O. BOX 5950 MARCUS J. LEMON JAMES W. EVANS LLOYD R. PERSUN THOMAS F. SMIDA HARMSBURG, PA 17110-0950 RANDALL G. HURST* JAMES A. ULSH MICHAEL L. MIXELL MARK D. HUT DANIEL L. SULLIVAN JOHN F. YANINEK* IRS NO. RONALD L. FINCK JEFFREY A. ERNICO VICKY ANN TRIMIKER 23-1985005 AMBROSE W. HEINZ * MARYLAND BAR MARY ALICE BUSBY TIMOTHY A. HOY JENNIFER L. DENCHAK " NEW YORK BAR KATHRYN L. SIMPSON JAMES M. STRONG TELEPHONE FAX (717) 232-5000 (717) 236-1816 HTTP;//"W W W.METTE.COM June 6, 2006 Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Re: Enoch Black v. Flyine J Inc., et al. Cumberland County C.C.P.; No.: 04-1377-2004 Dear Attorney Held: Enclosed is a Notice of Deposition, directed to your client Enoch Black, for his deposition which is scheduled for Monday, August 7, 2006, beginning at 10:00 a.m. at my office. If this particular date and/or time is not acceptable to you or your client, I will be happy to work with you to secure another time, within reason, to conduct this deposition. I am, however, not in agreement to conduct this deposition by video conference and insist that your client appear in person for deposition. I am sure that you advised your client of the requirements to appear in person for deposition and trial and that these matters were considered when suit was filed. If I do not hear back from you, I will assume that your client will appear at the date and time referenced in the Notice of Deposition. Very truly yours, 0' ohn F. Yaninek JFY:pml Enclosure 450340vl Wyomissing Office 1105 Berkshire Boulevard, Suite 320 1 Wyomissing, PA 19610 1 Telephone (610) 374-1135 Facsimile (610) 371-9510 ENOCH BLACK, . Plaintiff . VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 04-1377 FLYING J INC., and CFJ PROPERTIES CIVIL ACTION - LAW d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED NOTICE OF DEPOSITION TO: Enoch Black, Plaintiff c/o Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Defendants, FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, will take the deposition of Plaintiff, Enoch Black, on Monday, August 7, 2006, commencing at 10:00 a.m., to be held at the offices of Mette, Evans & Woodside, 3401 North Front Street, Harrisburg, PA 17110 for the purposes of discovery or for use at trial, or for both purposes, before a person authorized to render an oath on all matters not privileged, which are relevant and material to the issues and subject matter involved in the proper venue and pending venue objections for this case. The deponent is requested to bring all records, documents, diaries, notes and any other documents in the deponent's possession relating to the above-captioned matter. The deponent is requested to remain until excused. Respectfully submitted, METTE, EVANS & WOODSIDE By: _ ?A? Jo ??Yaninek, Ee Su t. I.D. No. 5 1 3401 North Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: June 6, 2006 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Respectfully submitted, METTE, EVANS & WOODSIDE By: Jo . Yaninek, E quire S t. I.D. No. 741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: June 6, 2006 450336v1 Exhibit B ENOCH BLACK, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 04-1377 FLYING J INC., and CFJ PROPERTIES CIVIL ACTION - LAW d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED AMENDED NOTICE OF DEPOSITION TO: Enoch Black, Plaintiff c/o Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Defendants, FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, will take the deposition of Plaintiff, Enoch Black, on Wednesday, September 20, 2006, commencing at 9:00 a.m., to be held at the offices of Handler, Henning and Rosenberg, 1300 Linglestown Road, Harrisburg, PA 17110 for the purposes of discovery or for use at trial, or for both purposes, before a person authorized to render an oath on all matters not privileged, which are relevant and material to the issues and subject matter involved in the proper venue and pending venue objections for this case. The deponent is requested to bring all records, documents, diaries, notes and any other documents in the deponent's possession relating to the above-captioned matter. The deponent is requested to remain until excused. Respectfully submitted, ME , EVANS & WOODSIDE By: J F. Y ek, squire p. Ct. I.D. 5741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: July 13, 2006 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG 1300 Linglestown Road Harrisburg, PA 17110 Respectfully submitted, METTE, EVANS & WOODSIDE By: Jo . Yaninek, E ' e S p t. I.D. No. 57 1 1 North Front t P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Date: July 13, 2006 450336vl CERTIFICATE OF SERVICE I, JOHN F. YANINEK, ESQUIRE, hereby certify that I am serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Stephen G. Held, Esquire 1300 Linglestown Road Harrisburg, PA 17110 METTE, EVANS & WOODSIDE By: JoV Y. Yaninr?squire Su . Ct. I.D. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J Inc., and CFJ Properties d/b/a Flying J Travel Plaza Date: November 6, 2006 r-a j" Cod < NOV 0 8 2006 ENOCH BLACK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 04-1377 FLYING J INC., and CFJ PROPERTIES CIVIL ACTION - LAW d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED ORDER A\h AND NOW, this 13 day of N 0 V ?? (,? , 2006, upon consideration of Defendants' Motion to Compel Plaintiff's Appearance at Deposition, IT IS HEREBY ORDERED AND DECREED that the said Motion be and is hereby GRANTED and that Plaintiff, Enoch Black, is hereby compelled to appear, testify and produce any and all documents as may be described in Defendants' Notice of Deposition at Plaintiff's deposition to be held within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that Plaintiff shall contact Defendants within seven (7) days from the date of this Order to schedule the deposition. 459248v1 j I 1 p` 1: Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax : (717) 233-3029 E-mail: HELD@HHRLaw.com ENOCH BLACK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY PENNSYLVANIA V. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants : NO.: 04-1377 : CIVIL ACTION - LAW AFFIDAVIT OF SERVICE On the 7th day of March, 2007, 1 hereby certify that a true and correct copy of the Notice of Intention to Seek Sanctions was served upon counsel for Defendant, John Yaninek, Esquire, Mette, Evans and Woodside, 3401 North Front Street, P.O. Box 5950, Harrisburg, PA 17110. The green certified return receipt card is attached hereto as Exhibit "A." I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Respectfully Submitted, HANDLER, HENNING & ROSENBERG, LLP Date: By: - 1 '19 St n . eld, Esquire ¦ Complete items 1, 2, and 3. Also complete A. hem 4 if Restricted Delivery is desired. c; yW'nt ¦ Print your name and address on the reverse x S ? Addiswee so that we can return the card to you. by (p i„tey NamsI C. Date of OMwry ¦ Attach this card to the hack of the mailpiece, or on the front if space permits. 1. Mole Addressed to: D. Is delivery address diffimit from item 1? ? Yas H YES, enter delivery address below: C] No Sohn yQ.nin2,I!, ??. Me+tt, Lva n5 a Wc?'d s'd- +0 I30r+vx Iprmt St. P.6. bog 50150 3. Service Type )e Certlfled Mail 13 Express Mail q Q.rf l 5 0v -r 13 Registered 13 Return Receipt for Merl ? Insured Mail ? C.O.D. 4. Restricted Delivery? Pft Fee) ? Yes 2. Article Number 7006 0100 0004 5325 0214 f lhirwir Aam mn in AOO P3 Form 3811, FeWury 2004 Derroolk Return Rsaipt 10061602-W1ss1o ENOCH BLACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY PENNSYLVANIA V. : NO.: 04-1377 FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this Q'_6 day of W U Ch , 2007, 1 hereby certify that I have served the within document upon counsel for Defendant, by sending a true and correct copy of the same to them via First Class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail. John F. Yaninek, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 HANDLER, HENNING & ROSENBERG, LLP `M ojik - IJUxA.A Maria Wells, Legal Secretary to Stephen G. Held, Esquire ?? \ J C c"a i ? ? _ J 3? ?? ? ?? Cq.'+ "? ? ' 7 n? '? ??{' -? _ ~ .?' '^? ENOCH BLACK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 04-1377 FLYING J INC., and CFJ PROPERTIES CIVIL ACTION - LAW d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED AFFIDAVIT OF JAMES DESTER I, JAMES DESTER, being duly sworn, hereby depose and state as follows: I am a member of the executive committee of CFJ Properties, a Utah general partnership ("CFJ") 2. CFJ is a partnership formed February 1, 1991 between and among Douglas Oil Company of California ("Douglas"), a California corporation with offices at 600 North Dairy Ashford, Houston, Texas 77076; Big West Oil Company ("Big West"), a Delaware corporation with offices at 1104 Country Hills Drive, Ogden, Utah 84403, and Flying J Inc. ("Flying J"), a Utah corporation with offices at 1104 Country Hills Drive, Ogden, Utah 84403, as opertator. 3. CFJ owns a network of travel plazas located on interstate highways. 4. However, in accordance with the Partnership Agreement for CFJ, as amended, CFJ does not enter into the day-to-day operations of the travel plazas. The relevant page from the Partnership Agreement which so indicates is attached hereto as "Exhibit A". Under the Partnership Agreement, Flying J is designated as the operator of the partnership assets, including the travel plazas and is empowered to perform all acts necessary for the operation of the travel plazas. The relevant page from the Partnership Agreement so indicating is attached here to as "Exhibit B". 6. Under the Partnership Agreement, Flying J's responsibilities include: (a) Provide the necessary personnel to operate and maintain the plazas and to provide the necessary supervision to ensure that all operations are conducted in accordance with the Flying J Operations Manual; and (b) Periodically inspect the plazas for damage or other conditions which could affect the safe, efficient and economical operation of the plazas, and perform or cause to be performed such repairs to the plazas as may be required. The relevant pages from the Partnership Agreement so indicating are attached hereto as "Exhibit C". 7. Therefore, the CFJ partnership is not and has never been involved in the day-to- day operations of the Flying J Travel Plazas, including the one located at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. I hereby declare that under penalty of perjury, the facts stated in this Affidavit are personally known to me and that they are true. Dester er, Executive Committee of CFJ Properties 2 STATE OF UTAH COUNTY OF : SS.. On this, the Qtr day of July, 2007, before me the subscriber personally appeared JAMES DESTER, who acknowledged himself to be a member of the Executive Committee of CFJ Properties, and that being authorized to do so as such Executive Committee Member executed the foregoing instrument for the purposes therein contained on behalf of the corporation. WITNESS my hand and seal the day and year aforesaid. N Publi ? Memo NEW NOW Public MMILYN RASIIUSSEN 1 1121 EM fl Dd- Be#Wn cay, Utah SM2 MY conwrassw EX octoW 2006 160 mom I PARTNERSHIP AGREEMENT 2 BETWEEN 3 DOUGLAS OIL COMPANY OF CALIFORNIA 4 AND 5 BIG WEST OIL COMPANY 6 AND 7 FLYING J INC. AS OPERATOR 8 On this 1st day of February, 1991, Douglas Oil 9 Company of California ("Douglas"), a California Corporation, 10 with offices at 600 North Dairy Ashford, Houston, Texas 11 77079, Big West Oil Company ("Big West"), a Delaware corpor- 12 ation with offices at 50 West 990 South, Brigham City, Utah, 13 and Flying J Inc. (Flying J"), a Utah corporation, with 14 offices at 50 West 990 South in Brigham City, Utah 84302 15 enter into this Agreement to form a partnership and provide 16 for the operation thereof in accordance with the terms and 17 conditions set forth. 18 RECITALS 19 Douglas and Big West are interested in entering 20 into a joint venture to own, lease, construct, and operate a 21 network of coast to coast Travel Plazas located on inter- 22 state highways. 1 In order to commence this joint venture Douglas 2 has contributed certain Travel Plazas which were previously 3 owned by Big West and its Affiliates and Flying J has 4 contributed its interest in certain other Travel Plazas 5 having a value equal to Conoco's contribution. 6 Big West and Douglas have agreed to form this 7 partnership (CFJ) to own the present and any future Travel 8 Plazas. 9 CFJ does not wish to enter into the day to day 10 operations of the Travel Plazas and acknowledges that Big 11 West and its Affiliates were the prior owners and Flying J 12 was the operator of the Travel Plazas and has an organiza- 13 tion in place to continue operations of the Travel Plazas in 14 accordance with the terms and conditions of this Agreement 15 ("Agreement"); and 16 IT IS HEREBY AGREED AS FOLLOWS: 2 r c ,0 ) V?:? 1 computing any Partners FMV Capital 2 Account or share of profits, losses, 3 other items, or distributions pursuant 4 to any provision of this Agreement. 5 7.7. CORRESPONDENCE 6 All correspondence relating to the preparation and 7 filing of the Partnership's income tax returns, capital 8 " accounts, and other tax matters shall-be forwarded to the 9 addresses in Article 18.5, with copies to: 10 Conoco Inc. 11 Income Tax Division 12 1000 South Pine 13 P. O. Box 1267 14 Ponca City, Oklahoma 74603 15 8. OPERATOR 16 8.1. DESIGNATION OF OPERATOR 17 Flying J is hereby designated as Operator of the 18 Partnership Assets, subject to the terms hereof and the :.9 direction of the CFJ Executive Committee, Operator,is 20 empowered to perform all acts necessary for the operation of 21 the Travel Plazas for the dispensing of fuel, food, lodging 22 and other services made available to the over the road 43 I trucking industry and the interstate highway motoring public 2 generally in an efficient, economical manner consistent with 3 the generally accepted standards of such operations. 4 Subject to the approval of the Executive Committee, Operator 5 may contract with its Affiliates to perform all or any part 6 of its duties under this Agreement, provided that if an 7 Affiliate performs the work operator shall remain respon- 8 sible for the performance. Operator shall not use an 9 Affiliate to perform any biddable servy ces, including but 10 not limited to construction services, unless such Affiliate 1.1 was the low bidder as determined at a bid opening at which 1.2 all eligible bidders were considered except as approved by 13 the Executive Committee. 34 8.2. OPERATOR'S DUTIES 1.5 The Operator shall perform the following duties: 1.6 a. Provide the necessary personnel to operate and 17 maintain the Plazas and to provide the necessary 18 supervision to ensure that all operations are conducted w9 in accordance with the Flying J operations manuals as ::0 amended from time to time and approved by the Executive 21 Committee, and standard industry practice. 44 n w r I b. Acquire on behalf of and in the name of CFJ all 2 merchandise and goods for sale and operating supplies 3 necessary for the operation of the Plazas. 4 c. Administer the Gasoline and Diesel Supply Contracts 5 between CFJ and Flying J and CEJ and Conoco. 6 d. Periodically inspect the Plazas for damage or 7 other- conditions which could affect the safe, efficient 8 and economical operation of the Plazas, and perform or 9 cause to be performed such repairs to the Plazas as may 10 be required. 11 e. Represent CFJ in contacts with government agencies 12 involving the physical operation and maintenance of the 13 Plazats, where required by applicable laws, regulations, 14 permits, conditions, or right of way agreements. 3.5 f. Acquire land, design and manage construction of 1.6 new Plazas. 17 g. Prepare budgets and forecasts as required by 18 Article 9 of this Agreement. 45 1 h. Keep appropriate books and records with respect to 2 the operations hereunder and provide the Partners with 3 periodic reports, statements and accounts with respect 4 to operations. 5 i. Arrange for engineering, professional, or techni- 6 cal iservices whether provided by Flying J, Douglas or 7 their affiliates or third parties. 8 j. Prepare and update operations, maintenance, 9 safety, and waste disposal procedures, and manuals as 10 necessary for the ongoing operation of the Plazas. 11 k. Train and update training of personnel involved in 12 the operation and maintenance of the Plazas. 13 1. Perform or arrange for the implementation of 14 capital projects after approval by the Executive 15 Comm:. ttee . 16 M. Comply in all material respects with all appli- 17 cablo laws, orders, and lawful regulations and maintain 18 in CF?J's name all necessary environmental, operation, 19 and construction permits and licenses. All permits and 20 licenses shall be updated and renewed to avoid 46 I violation of law or regulations provided that Flying J 2 may retain permits and licenses in its name until the 3 renewal thereof or where required by law or regulation 4 or as approved by the Executive Committee. 5 n. Be responsible for preventing liens being placed 6 on the Plazas as a result of Operator's action or 7 orris.ion. 8 9 10 ].1 12 1.3 14 15 -6 17 18 19 20 21 8.3. PARTNER COOPERATION Operator may request the assistance of Douglas or its affiliates in certain areas where they have expertise which would be of benefit to CFJ. CFJ shall be charged for such assistance at cost, including but not limited to, salary and benefits for the time spent by its employees in behalf of CFJ. Douglas shall notify CFJ in advance if it intends to charge for a service. 8.4. REMOVAL OF OPERATOR If an Affiliate of Operator ceases to be a Part- ner, or there is a material adverse change in the financial condition of Operator, or if the controlling interest in Flying J or Big West is sold to a third party, then Flying J may be removed as Operator under this Agreement at the sole 47 I option of Douglas. Operator may also be removed if it or 2 Big West has committed a material breach of this Agreement, 3 has been adjudged a bankrupt, or has been grossly negligent 4 or engaged: in willful misconduct and Douglas or its nominee 5 shall automatically become Operator. The Executive Committee 6 may terminate the Operator with six (6) months prior written 7 notice if, in good faith, it can show that it can effect a 8 material improvement in profitability through a change in 9 - the Operator or methods of operation of the Plazas. An i0 improvement in profitability includes, but is not limited 11 to, the ability to operate the Plazas with lower costs than 12 the existing Operator. Any Partner may submit a bid to the 13 Executive Committee to operate the Plazas. 3.4 8.5. SELECTION OF SUCCESSOR OPERATOR 15 Upon the removal of the Operator, if Douglas 3.6 declines the operatorship, the Executive Committee shall 3.7 promptly select a new Operator. Any Partner removed as 3.8 Operator retains all other rights and obligations as a 19 Partner under the Partnership Agreement, so long as the 20 Partner remains a party to this Agreement. 48 1 2 3 4 5 6 7 S 9 10 8.6. REIMBURSEMENT AFTER TERMINATION In the event of removal or withdrawal of the Operator, such Operator shall be reimbursed promptly for all charges, expenditures and liabilities incurred by it for services rendered hereunder during its tenure as Operator. Thereafter, such Operator shall forthwith deliver to the Partner which succeeds it as Operator all property of CFJ and all records, accounts, audits and other data and infor- mation in possession of the Operator pertaining to the Partnership. 11 9. BUDGETS AND FORECASTS 12 13 14 15 .16 17 18 19 20 21 9.1. PREPARATION OF BUDGETS AND FORECASTS By November 15 of each calendar year, the Operator shall submit to the Executive Committee, for review and approval, the following budgets and forecasts for the next Year with respect to the operations of the Partnership. 9.1.1. CAPITAL COMMITMENT BUDGET The Capital Commitment Budget shall consist of art itemization of commitments for each capital project in excess of $100,000 (large projects) and a combined total of all items $100,000 (small projects) 49 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, via first class mail, as follows: Stephen G. Held, Esq. Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 METTE, EVANS & WOODSIDE Jo . Yanin , Esquire S . Ct. I.D. N 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax jfyaninek@,mette.com Attorneys for Defendants Date: July -41 2007 4-74491 % 1 4 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court, August 15, 2007. CAPTION OF CASE (entire caption must be stated in full) ENOCH BLACK, Plaintiff vs. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA Defendants No. 04-1377 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendants ' Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) Plaintiffs: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 (b) Defendants: John F. Yaninek Esquire Mette, Evans & Woodside 3401 N. Front St. P. O. Box 5950 Harrisburg, PA 17110-0950 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 15, 2007. 1 F 7 nature John F. Yaninek Print Your Name Attorneys for Defendants, FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA DATE: July 24, 2007 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, at Harrisburg, Pennsylvania, with first class postage prepaid, addressed as follows: Stephen G. Held, Esquire Handler, Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 METTE, EVANS & WOODSIDE BY: F. Yani , Esquire preme Coult I. D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Defendants DATED : _? ?7 j )607 475174v1 1 ~" ;' ENOCH BLACK, Plaintiff VS. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-1377 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED MOTION OF DEFENDANTS FLYING J INC. AND CFJ PROPERTIES D/B/A FLYING J TRAVEL PLAZA FOR SUMMARY JUDGMENT (In accordance with Cumberland County Local Rule 208.3(a)(2), the Defendants state that the Honorable M. L. Ebert previously ruled on Defendants' Motion to Compel Plaintiff's Appearance at Deposition, ruling that Plaintiff had to appear and testify at a deposition.) AND NOW COME the Defendants Flying J Inc. ("Flying J") and CFJ Properties d/b/a Flying J Travel Plaza ("CFJ"), by and through their attorneys, and respectfully request that this Court, pursuant to Pennsylvania Rule of Civil Procedure 1035, enter an Order granting summary judgment and dismissing Plaintiff's claims, as follows: Plaintiff Enoch Black commenced this action against Defendants Flying J and CFJ by Writ of Summons issued on or about April 1, 2004. 2. Plaintiff filed a Complaint against Defendants on April 21, 2005. 3. Defendants filed an Answer and New Matter to Plaintiff's Complaint on June 6, 2005. 4. Plaintiff filed a Reply to Defendants' New Matter on June 9, 2005. 5. Plaintiff Enoch Black alleges that at the Flying J Travel Plaza located at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania, on or about April 9, 2002, he suffered injuries when he slipped and fell as he walked from his truck toward the fuel desk. See Exhibit 1, Deposition of Enoch Black p. 36, lines 1-3. 6. In Count I of his Complaint, Plaintiff alleges that Flying J acted negligently and that this negligence caused Plaintiff Enoch Black's injuries. 7. In Count II of his Complaint, Plaintiff alleges that CFJ acted negligently and that this negligence caused Plaintiff Enoch Black's injuries. 8. Under Pennsylvania law governing premises liability, Plaintiff can recover only upon proof that the Defendants had actual or constructive notice of the condition that caused the alleged injury. 9. All discovery relevant to this Motion is complete. During a telephone conversation on July 17, 2007, Plaintiff's counsel confirmed that his discovery is complete. 10. Under Pennsylvania Rule of Civil Procedure 103 5.2(2), summary judgment must be granted where a plaintiff fails to produce evidence of facts essential to his cause of action which in a jury trial would require the issues to be submitted to a jury. 11. Plaintiff Enoch Black has not produced any evidence upon which a jury could reasonably be asked to decide that Defendants had notice of the conditions that allegedly caused Plaintiff Enoch Black's alleged injuries. 12. In fact, Plaintiff Enoch Black is unable to identify the substance which allegedly caused his fall. He has stated that on the day and time of his fall, it was daylight (see Exhibit 2, Plaintiff's Response to Defendants' Interrogatory No. 23) and it was raining intermittently at the Flying J Travel Plaza in Carlisle. See Exhibit 1, Deposition of Enoch Black, p. 34, lines 20-23. He further testified as follows: Q. So did you see anything around where you fell that would have indicated you fell on fuel or water? 2 A. I saw plenty of water. I don't know whether there was fuel with it. There had to be something there with it ... Q. But did you see something before you fell? A. No. If I had seen something, I wouldn't have stepped in it. Q. So either before or after you fell did you notice anything unusual about that area as far as color or as far as there being some kind of foreign material on the pavement? A. Just water, it looked like just water, but I can't testes what was there. I don't know. See Exhibit 1, Deposition of Enoch Black, p. 38, lines 19-24; p. 39, lines 5-7; p. 40, line 25; p. 41, lines 1-5 (emphasis added). 13. Moreover, Betty Koopman, who was relief manager/cashier at the Flying J Travel Plaza see Exhibit 3, Deposition of Betty Koopman, p. 7, lines 12-15) at the time of the Plaintiff s alleged fall, has stated that she did not see any foreign substance in the area of Plaintiff's alleged fall. She testified at her deposition as follows: Q. Was there any foreign substance around the vicinity of where he fell? A. Not that I seen. See Exhibit 3, Deposition of Betty Koopman, p. 11, lines 1-3. 14. Plaintiff Enoch Black has provided no evidence of the substance that allegedly caused his fall, no evidence of notice; no evidence about the source of any purported substance; and no evidence of the length of time the purported substance allegedly was present. 15. Moreover, Plaintiff Enoch Black has provided no evidence that the area was not monitored or maintained by employees of one of the Defendants. 3 16. Jack N. Baba, the facility manager at Flying J Travel Plaza at the time of Plaintiff's alleged fall, testified at his deposition that "[W]e [Flying J Travel Plaza] never had a spill" of fuel in the fuel drop area where Plaintiff alleges he fell. See Exhibit 4, Deposition of Jack Baba, p. 14, lines 15-18. 17. Moreover, Mr. Baba testified that he inspects the fuel drop area (the area where the trucks refuel the fuel tanks) every day and that although they have never had a fuel spill, they do have procedures ready to use if fuel is spilled in that area, namely the use of a biodegradable degreaser to wash it down. See Exhibit 4, Deposition of Jack Baba, p. 13, lines 10-24. 18. Also, Defendants have verified in their Answers to Interrogatories that Flying J had maintenance and inspection policies and procedures. In response to Plaintiff's Interrogatory No. 25, each Defendant responded: Each refueling island is sprayed daily with a chemical compound intended to dissolve any diesel fuel on the ground. In addition, a detailed power cleaning of each refueling island is performed every Monday, Wednesday and Friday. Every Tuesday and Thursday a detailed power cleaning of the gasoline islands is performed. Cards are maintained at each refueling island which reflects that the pump was inspected. Such inspection occurs every one-half hour. Jack Baba, Facilities Manager, was in charge of overseeing this operation which was performed by outside maintenance personnel. See Exhibit 5, Defendant Flying J Inc.'s Answers to Interrogatories - First Set, #25 and see Exhibit 6, Defendant CFJ Properties d/b/a Flying J Travel Plaza's Answers to Plaintiff's Interrogatories - First Set, #25. 19. For all of these reasons, Plaintiff Enoch Black has not produced any evidence of record to show that Defendants are liable to the Plaintiff for his alleged injuries. 20. Therefore, pursuant to Pennsylvania Rule of Civil Procedure 1035.2(2), Defendants are entitled to summary judgment and Plaintiff's Complaint should be dismissed with prejudice. 4 21. Moreover, CFJ is a Utah general partnership formed in 1991 between and among Douglas Oil Company of California; Big West Oil Company; and Flying J, Inc. See Exhibit 7, Affidavit of James Dester. 22. CFJ owns a network of travel plazas located on interstate highways. See Exhibit 7, Affidavit of James Dester. 23. However, in accordance with the Partnership Agreement by which CFJ was formed, CFJ does not enter into the day-to-day operations of the travel plazas. See Exhibit 7, Affidavit of James Dester and Exhibit A attached thereto. 24. Under the Partnership Agreement, Flying J is designated as the operator of the partnership assets, including the travel plazas, and is empowered to perform all acts necessary for the operation of the travel plazas. See Exhibit 7, Affidavit of James Dester and Exhibit B attached thereto. 25. Under the Partnership Agreement, Flying J's responsibilities include: (a) Provide the necessary personnel to operate and maintain the plazas and to provide the necessary supervision to ensure that all operations are conducted in accordance with the Flying J Operations Manual; and (b) Periodically inspect the plazas for damage or other conditions which could affect the safe, efficient, and economical operation of the plazas, and perform or cause to be performed such repairs to the plazas as may be required. See Exhibit 7, Affidavit of James Dester and Exhibit C thereto. 26. Therefore, CFJ is not and has never been involved in the day-to-day operations of the Flying J Travel Plazas, including the one located at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. See Exhibit 7, Affidavit of James Dester. 27. Therefore, Plaintiff has not produced any evidence of record to show that CFJ, which lacked possession, management and control of the travel plaza premises, is liable to the Plaintiff for his alleged injuries. 28. For this reason also and pursuant to Pennsylvania Rule of Civil Procedure 103 5.2(2), Defendant CFJ is entitled to summary judgment and Count II of the Plaintiff's Complaint should be dismissed with prejudice. WHEREFORE, Flying J and CFJ respectfully request this Court to grant this Motion for Summary Judgment and dismiss, with prejudice, all of Plaintiff's claims against them. In the alternative, Defendant CFJ requests that all of Plaintiff's claims against it be dismissed with prejudice. Respectfully submitted, METTE, EVANS & WOODSIDE /16,?, fA,?J- Jo F. YanineXJsquire S IV. Ct. I.D. No. 55741 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax jfyaninek@mette.com Date: July 24, 2007 Attorneys for Defendants 6 1 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ENOCH BLACK, Plaintiff . No. 04-1377 vs. FLYING J, INC. and Civil Action - Law CFJ PROPERTIES, d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED Deposition of: ENOCH BLACK Taken by Defendants Date November 28, 2006; 2:00 p.m. Place Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, Pennsylvania Before Susan D. Kashmere, RPR Reporter - Notary Public APPEARANCES: HANDLER, HENNING & ROSENBERG By: STEPHEN G. HELD, ESQ. For - Plaintiff METTE, EVANS & WOODSIDE By: JOHN F. YANINEK, ESQ. For - Defendants Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I N D E X WITNESS ENOCH BLACK By Mr. Yaninek EXHIBITS Black Deposition Exhibit Numbers 1 "Warning' sign, one page Examination 3 Page 41 21 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 , Enoch Black 1 STIPULATION 31 It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, filing, and certification are hereby waived; and that all objections, except as to the form of the question, are reserved to the time of trial. ENOCH BLACK, called as a witness, being duly sworn, testified as follows: EXAMINATION 2 3 4 5 BY MR. YANINEK: Q. Mr. Black, my name is John Yaninek. I represent the defendants in this lawsuit. A. Yaninek? Q. Yaninek. I represent the defendants in this lawsuit regarding your fall I guess in April of 2003, 2, something like that -- 2002. I'm going to give you some general guidelines about a deposition. Have you ever had your deposition taken before? A. Yeah, when we was trying to make a settlement on my home that burned. Q. Okay. When was that? A. 2000, somewhere around there. Q. Ism going to give you a refresher about 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black depositions. Everything that you say and I say and your lawyer says is taken down by the court reporter seated to my right, your left. So all answers, in order to be taken down accurately, have to be verbalized. In normal conversation we shrug our shoulders, we shake our head or we say um-hum or hum-um. She can't take that down as an accurate response. Okay? So you promise you'll please verbalize all your answers? A. I'll try to. Q. All right. Next thing, during the course of the deposition if you don't understand one of my questions please stop me and I'll rephrase it so you understand it. Okay? A. All right. Q. And, likewise, if you don't hear a question for whatever reason, stop me and I'll either repeat it or the court reporter can read the question back to you. Okay? A. All right. Q. So if you answer my question I'm going to assume two things. I'm going to assume you understood the question and I'm going to assume you heard it in its entirety. Okay? A. All right. 41 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 i 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black Q. Also, are you on any medication today? A. I'm on medication. I have leukemia and I'm on that medication, but it has nothing to do with -- it's blood medication. Q. Am I correct that any of the medication that you're on isn't going to affect your ability to remember? A. No. Q. The last instruction is that in normal conversation you may anticipate the question that I'm going to ask you and you might start answering it, but in order for the court reporter to take down both of us accurately, even though you may understand the question I'm going to.ask you, please let me complete it and so you don't talk over me and I don't talk over you and she gets everything down accurately. Okay? A. Yes. Q. Please state your full name, sir. A. Enoch Derwent Black, Jr.. Q. And have you any other names or nicknames that you go by? A. No. Q. And where do you live? 51 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 A. What, do you want my home address? Q. Yes, sir. A. 507 South Main, Carl Junction, two words, Missouri. Q. And how long have you lived there? A. A little over ten years. Q. And where did you live before that? A. Cassville, Missouri. Q. And how long did you live there? A. Well, in that area about 30 years. Q. And before that? A. I lived all over the country. Don't even ask me that. I couldn't tell you where I lived. Q. All right, fair enough. A. I moved around all over the country following the construction. i Q. Fair enough. How old are you? A. 70. Q. What's your date of birth? A. 12/11/35. Q. Were you ever in the military? A. No. Q. Can you tell me your educational background? A. Graduated high school, had served an apprenticeship in the masonry trade, stone 61 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 .1 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mason, bricklayer, so forth. Q. When did you graduate high school? A. 1953. i Q. Did you go to school for stone masonry or was that some kind of union apprenticeship? A. It was a union apprenticeship. Q. And were you then a stone mason for a period of time? A. For most of my life, about 30 years at least, which I owned my own company in that period of time, too. Q. Okay. well, we'll get to that. Other than stone masonry apprenticeship, do you have any other kind of training, special training? A. Oh, I attended several different schools, classes, welding, I took a welding course. I took finish carpentry. Q. Okay. Anything else? A. Mostly everything else was on the job. Q. For any of the occupations did you have to take a test to perform them or be licensed or to have a certification? A. Yes, as a contractor, yes, I had a California contractor's license. Q. Okay. And do you still have that license? 71 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1. 1 1 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. When did you have that license, sir? A. That was when I first started in business in California back in 156 or 17. Q. Okay. And how long did you have a California contractor's license? A. For about 15 years. Q. Did you leave California? What was the reason why you allowed the license to lapse I guess? A. Well, work slowed down. I moved back to Missouri. Missouri didn't require it. Q. I guess maybe why don't you just take me through the different occupations you've done and then I can ask you questions as to what kind of training you had for each of those. You start out with you graduated from high school you said in 153. what did you do after high school? A. I went into the apprenticeship program. Q. As a stone mason? A. Well, the name of the union was Bricklayers, Masons and Plasterers, BM and BIU. They're an international union. Q. Take me from there, please. A. That was a four-year apprenticeship. I 81 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 completed that and then worked in that trade for several years until I went to California. And there I decided to get my own contractor's license, went in the same trade, and then I expanded it into building homes and to a general contractor's license. Q. What kind of homes did you build? A. Well, I didn't build any in California. I came back to Missouri. That's what I did when I came back to Missouri, because I wasn't licensed in California for it. I got back here and started to build homes and so on. Q. What kind of homes did you build, single-family homes? 91 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. And I did a lot of the masonry work on other projects, both commercial and residential. Q. And how long did you do general contracting in Missouri? A. Probably 30 years. Q. Do you remember the last I guess work that you did as a general contractor, what year would that have been? A. As a general contractor, no, I really can't tell you that. I don't remember what the last Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 project was. Q. After working as a general contractor building homes in Missouri, what was the next occupation you got yourself involved in? A. Well, work went bad in the end, like it does every so often, and my son was a truck driver and I had a license because I had equipment and I drove my own equipment and hauled my own equipment. So the next step was I just went with him a time or two and decided that I wanted to become an over the road driver, which there's very little difference in driving, doing exactly the same thing when I was doing it locally. Q. And do you remember when you became an over-the-road truck driver approximately? A. Okay, you want to know when I became an over-the-road truck driver for somebody else or when I had my own? Q. Why don't we start with yourself and then we'll continue on with the question. A. Well, that started in the early 160s in California. Q. And what kind of truck did you drive then? 10 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I had a small tractor trailer. Q. And what kind of routes would you drive? A. I wasn't driving routes. I was moving my equipment. It was a flatbed trailer, moving my equipment from job to job. Q. And at that time was there a special driver's license required in California for that driving? A. Yeah. That was before it was a CDL. It was a -- I just can't remember the words they called it, but it was a license to handle the size vehicle. Q. What was the first job then that you had where you drove for somebody else? A. United Van Lines. Q. Do you remember when approximately you began driving for them? A. 188 or 189, somewhere like that. I can't tell you exactly without going back to my records. Q. Was that on a full or part-time basis? A. Full time. Q. And how many years did you drive for United Van Lines? A. About two. Q. And what kind of routes did you drive for 11 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black United Van Lines? It would have been -- what was your question now? Q. What kind of routes did you drive for United Van Lines? A. I didn't drive a route. It was dispatched position to position, where they told me to go. Q. How many miles would your typical trip be back then? A. There is not a typical trip with United Van Lines. It can be the next town or it can be corner to corner across the nation. Q. So I guess how far was the longest trip you would drive in the 180s with United Van Lines? A. Well, I'm trying to remember whether it would be the longest from -- and I can't. It would either be from upper Washington state to Miami, Florida or from up in Maine down to southern California. And I did both of those. I don't know which is the longest. Q. And after United Van Lines who did you work for? A. Tyson Foods. Q. And do you remember the date that you started working for them? 12 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 ?f Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, I don't right offhand. Q. And why did you leave United van Lines and go to Tyson? A. I didn't like being away from home all of the time. Q. What type of routes did Tyson have you driving when you started there? A. Well, virtually all the Tyson routes go from where we're stationed at, which is Arkansas, out and back. Q. When you first started to work there what routes did you drive? A. Well, I drove all 48 states, but I was home about every week, too. Q. And where was home at that time, in Missouri? A. Um-hum, yeah, Cassville, Missouri. Q. And did you work continuously full time as a driver for Tyson from sometime after let's just say the late 180s, early 190s until -- A. When I was forced to retire. Q. So you worked a full-time job with them? A. Yes. Q. And when did you retire from Tyson? A. When they told me I couldn't drive anymore, that I had to retire. 13 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black Q. Can I have a year? A. Do you have the accident date? Q. Yes. That is I believe April 9, 2002. A. I can't remember whether it was still in 2002 or in 2003, but it took several months. It progressed. Excuse me a minute. Q. No problem. A. I just need to stand up. Q. That's all right. Any time during the deposition you need to take a break, just let me know. There's no rule that you have to be seated for asking questions. Do you want to just stand up? A. That would be fine. Q. You said you were forced to retire from Tyson as a truck driver. Can you tell me a little bit more about that, explain it to me? How did that go? A. From my injury. Q. What happened I guess as a procedural matter as far as Tyson saying that -- A. I can't give you the medical terms for it. I'm not a doctor and I never had any training in that, but I lose feeling in my feet and legs and they didn't want somebody driving an 14 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 18-wheeler that had to look down and see what pedals their feet were on. Q. And how did they let you know that? A. Well, they ask how you're feeling. Their doctors check you out continually. Q. Did they offer you a job other than driving a truck? A. No. Well, they did, but I would have had to move to Arkansas and I couldn't move to Arkansas. Q. Why couldn't you move to Arkansas? A. Financial. Property values where I was in Cassville, Missouri where I was living are a quarter of the property values in Arkansas. So if I sold my home I couldn't replace it in 15 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Arkansas. Q. You say you got a retirement from Tyson. How many years did you drive for them? A. No, I didn't get a retirement from Tyson. All I had with Tyson is a 401K and they don't build up that much in ten years. Q. Do you know how long, how many years you worked for Tyson? A. About ten. I want to show you one thing. Tell me what it says on the face of that watch. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black Q. It says Tyson. It appears to be a Bulova watch. A. Read the inscription there. Q. Oh, on the back? A. No, it's in it. Q. Million miles. A. A million miles, that's right. Q. I assume that's how many miles you drove? A. No -- oh, I was almost ready for the second one. Q. When did they give you that watch? A. I can't remember the year. It was two or three years or four years before I retired. Q. what job did they offer you that you said you couldn't take to do in Arkansas? A. Really, it was just make work, just whatever needed to be done around the yard or the office. It wasn't any particular job. A gofer more than anything. Q. And did they tell you how much they would pay you to do that job? A. Well, they were talking minimum wage. Q. Did they give you a specific offer in writing or anything? A. No, no. We just discussed it. 16 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Who did you discuss it with, was there a person? A. I don't recall who it was. I talked to several people down there. Q. Was there a person that you dealt more with than another person about this whole situation? A. Not really, because they kept going one place to another. Q. Do you remember anybody's name that you dealt with? A. No. I remember the position, which is a dispatcher. Q. So you dealt with a dispatcher in Arkansas? A. And her boss, yes. Q. After you retired from Tyson what was your next occupation or what type of work did you do? A. I still haven't got anything that's working very well. I can't even go to work for Wal-Mart as a greeter. Q. My question is have you done other work after you worked for Tyson? A. No, not successfully, no. Q. What work have you tried to do and not been able to do? A. Well, I've tried some design work i n the 17 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 construction business, things like that, but nothing has worked out. And real estate. And that's what I'm trying to do now. Whether it's going to make it or not, I can't tell you that. I don't know. I haven't made any money yet, let's put it that way. Q. Do you have a real estate license? A. Yes. That took some time. Q. Do you have a broker's license or an agent's license? A. Agent. Q. Do you work right now for a broker? A. I work under a broker. I don't work for the broker. Q. What broker do you work under? A. Charles Burt Realtors. Q. Charles Burt, is he affiliated with -- A. That is the company name, Charles Burt Realtors. Q. Remember the instructions that I had given you early on that you were going to allow me to finish my question before you would answer. A. Okay. Q. Please let me do that. A. All right. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 Q. Charles Burt, the realtor, is he affiliated with any other companies like Century 21 or ReMax or any other realtor? A. No. Q. So he's independent? A. Yes. Q. And how long have you been working under Charles Burt? A. A little over a year. Q. And when did you obtain your real estate license? A. A little over a year ago. Q. And can you tell me the process that you went through to get your real estate license? A. That was the school I was telling you, I went to real estate school. Q. And where did you take that school? A. In Missouri. It's a crazy course. It was taken at the Charles Burt offices. Q. How long did that school last? A. Two weeks, a little over two weeks, actually. With the testing it was over two weeks. Q. And did you have to take then a state test to get your certification? A. Yes. 19 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black Q. And do you remember when you took that test? A. I believe it was in September of last year. Q. And did you pass it on your first try? A. No. Q. How many times did it take for you to take the test I guess? A. I passed the federal exam the first time. The state part I missed one too many. Q. How long was it I guess before you got to take the test again and pass it? A. About a month. Q. So you took it then the second time a month later and you passed all the tests? A. Yes. Q. And for Charles Burt, do you work on a commission basis? A. Yes. Q. And what type of real estate do you sell? A. Basically, residential. Q. And do you get listings and sell homes on a listing? A. Yes, I try to get listings. Q. Have you gotten any listings since you began to work there? A. Yes. 20 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1, Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. How many? A. Six, seven or eight. I couldn't tell you for sure. Q. Between six and eight, is that fair? A. Somewhere in that general neighborhood. Q. And have any of the homes that you listed sold by you or anyone else? A. Yes. Q. And did you receive a commission from those sales? A. Yes. Q. And do you know how much money you received as a result of those? A. No. Q. And did you sell any homes that someone else listed? A. Yes. Q. How many homes have you sold as a real estate agent? A. Probably around ten, to the best of my memory. Q. And is that within one year? A. Yes -- well, 14 months, something like that. Q. Is there a specific quota that you have to sell so many homes in a year or you're just on straight commission? 21 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 A. Straight commission. May I have a minute? Q. Sure. 22 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Discussion held off the record between Mr. Black and Stephen G. Held, Esq.) A. You were asking about my income? BY MR. YANINEK: Q. Yes. A. The expenses are still -- it's still in the minus column compared to the expenses. Q. What do you mean by that? A. All the advertising, the gas, the -- well, the various expenses that a realtor is required to do, the schooling, the licenses, the fees for the MLS. Q. Last year when you filed your taxes did you list your occupation as a real estate agent? A. I didn't make enough money to be required to last year. Q. So you didn't file taxes for the year of 2005? A. No. All the income I had was social security. Q. So for 2006 do you know how much income you made from the sale of homes and the listing of homes? IA. No, I do not know. Q. Do you know how much expenses you've had for Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 the sale of homes or the listing of homes? A. No, I don't. I have it all down, but my accountant has it right now. Q. So as we sit here today you don't know if you're at a gain or a loss for 2006? A. I know I'm at a loss. Q. How do you know that? A. Well, it's very easy to figure out when you're spending more money than you're making. Q. Well, if you don't know how much you're making, how do you know that you're spending more? A. Because it goes into one checking account and that checking account does not cover the 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 expenses. Q. So do you have a separate checking account for all of your real estate proceeds that you receive? A. Yes. Q. And then that same checking account, do you use that checking account to deduct or to pay out expenses? A. Um-hum. Q. You have to answer yes or no or I don't know. A. Yes. Q. And so from time to time did you have to add Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 personal funds into that business checking account? A. Yes. Q. Do you know how much funds you've added? A. No. Q. Aside from real estate, do you do anything else that provides income to you? 24 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. You said you receive social security? A. Yes. Q. And when did you start receiving social security? A. When I was 65. Q. And how much do you receive a month social security? A. 12, $1,300 a month, something like that. I can't give you the exact figure. I don't know it off the top of my head. Q. That's fine. Other than social security, and we talked about the real estate, do you have any other source of income presently? A. What do you mean by source of income? Q. Income that is paid to you. A. From work.or from what? Q. From anything. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Well, I'm going to have to start taking money from my 401K this year. I haven't taken any yet. My accountant tells me that's a federal law. Q. Other than your 401K do you have any other source of income.other than we've already discussed? A. No, I don't have any other source of income. Q. Like a rental property? A. No. The only property I own is my home. Q. Do you have any children? A. Yes. Q. How many? A. I have six. Q. Can you give me their range of ages I guess? A. My oldest son is 52. My youngest daughter is 28. Q. And you said you have six, right? A. Um-hum. Q. And are you married presently? A. Yes. Q. And how long have you been married? A. It will be 38 years Christmas Eve. Q. Prior to this accident in Carlisle did you have any hobbies or leisure activities that you 25 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black would do that you can't do now? A. I love to go hunting. I can't do that. I can't walk to do that. Q. what type of hunting? A. And fishing, hiking, all kinds of things. I did lots of things, anything a normal guy does. Q. What type of hunting did you do, big game, small game, both? A. I've done deer hunting. My favorite was pheasant hunting. And that's the one I can't do because it entails lots of walking. Q. Have you tried to go big game hunting, like deer hunting and sit or stand? A. No, because I can't climb into the tree stand and I couldn't walk back into the woods and I couldn't sit still long enough to -- Q. How about fishing, have you done any -- A. Well, my favorite fishing entails climbing up and down the creek bed for trout fishing and it's -- I just can't do it. Q. Have you tried fishing since the accident in Carlisle? A. Yes. Q. How often? A. Maybe once a year. 26 I Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black Q. Do you still have a CDL license? A. No. Q. You testified you have a real estate license currently? A. Yes. Q. Do you have any other kind of licenses other than a regular driver's license? A. No. Well, no, my fishing license is expired. I haven't bought one for this year yet. I haven't bought a hunting license either. Q. Did you buy one last year? A. Not a hunting license. I bought a fishing license last year. Q. Have you bought a hunting license since the accident in Carlisle? A. No. Q. I want to kind of direct your attention I guess to take you back to April 9th, 2002. That's the day that's alleged to be the day that you fell in Carlisle. Okay? Are you with me? A. I'm not positive of the date, but that's okay. Q. Okay. Is it fair that it was sometime in April of 2002 ? A. I think so. Q. Just so I understand, can you tell me a little 27 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black bit about the driving you were doing in April of 2002 before the fall? What kind of driving were you doing for Tyson at that time? A. My normal run was from Springdale, Arkansas to somewhere on the east coast, Philadelphia clear up into Maine. Most of them went to Boston, and once a week, which is about -- well, I would be out of hours for the week by the time I got back. Q. How many hours are you allowed to drive in a week? A. 60. Q. Now, before the day in question, the day of the fall, had you ever been to this particular truck stop, the Flying J truck stop in Carlisle? A. Many times. Q. How many times do you think? A. At least once a month, sometimes twice a month, sometimes three or four times a month, depending on whether I'd stop there coming and going or just one way. Q. And for how many years were you going to the Flying J truck stop in Carlisle? A. Basically, right after I started working for 28 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black Tyson. At least eight -- well, as long as they had been there. I don't remember when they were built. Q. So is it fair to say that you've been there over hundreds of times before the accident? A. I don't know about hundreds of times. I've been there several times. I won't say I've been there hundreds of times. It takes a lot of stops to make it hundreds. Q. I'm just trying to do the math myself. You said you could do it four times in a month. You know, times it by 12 in a year, times it by eight years, I come up with over a hundred times. A. But that wasn't the only direction I went. I didn't come there every week. You asked for normal. My normal run was to the east coast, but there were exceptions in there. I went other places. Q. Try to estimate how many times you were to this truck stop before you fell. A. It's impossible to estimate. I would say somewhere around a hundred would be a reasonable guess. Q. I don't want you to guess. But if you had to 29 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black estimate from 50 to a hundred, would it be -- how about 75 to a hundred, is that a fair estimate? A. You're saying you don't want me to guess, but you're asking me to guess. And that's exactly what it would be, so I'm not going to do it. Q. Is it fair to say it was over ten? A. Yes. Q. Over 20? A. It's certainly over that. Q. Over 50? A. I can't testify to that, no. I would have to count them to know. Q. Okay. Between 20 and 50? A. That's a guess. I'm not going to guess. Q. And when you would go to the Flying J truck stop what would you do there? A. Fuel my truck, sometimes eat, sometimes not, mostly always fill my drink, my cold drink up. I don't drink coffee. Q. But is it fair to say that every time that you would stop at Flying J you would get fuel? A. Not every time, no. Q. What would make you stop at the Flying J truck stop and not get fuel? 30 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23, 24 25 Enoch Black A. Well, I wanted to fill my drink cup, I wanted to take a rest, wanted to eat. Q. Did you just use Flying J truck stops or did you use any particular truck stops? A. We had designated truck stops, designated places to stop. That was one of them. Q. And who designated that for you? A. Tyson Foods. Q. What were some other ones that you could stop at? A. Well, they did several different ones, but in this area, in this part of the country Flying J was -- if the Flying J was there, that's where we went. Q. Did they have a special relationship with Flying J as far as the payment of fuel or other items? A. I don't know what their arrangement was. Q. When you went to Flying J truck stop how did you pay for fuel? A. A credit card. It was assigned to the truck. Q. And if you paid for other items, for personal items, for food or for a drink or whatever, how would you pay for those? A. Cash. 31 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black Q. On the date that you fell in April of 2002 what was your purpose for stopping at Flying J? A. To fuel the truck. I was going to fill my cold drink cup and I was going to take a rest break there and probably eat before I left. I can't remember that for sure, whether I was going to eat or not, but probably was. Q. So when you fill the truck up, it took diesel fuel? A. Yes. Q. And was there a specific island or islands that were designated for diesel fuel use? A. Well, that's all they had out there, were diesel fuel islands. Q. Did you see regular cars at the Flying J? A. Not in there. Q. Was there a separate place where the trucks pulled up versus where cars would pull up? A. Cars were not allowed in there. Q. But on the Flying J truck stop property -- A. I don't know whether they have a gas island or not. Q. Do you remember what time it was when you got to Carlisle on the day that you fell? A. Not exactly, no. 32 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 Q. Do you remember, was it in the morning, afternoon or evening? A. Late afternoon, early evening. Q. Were you going to Arkansas or going from Arkansas? A. From. Q. And where was your destination? A. Philadelphia. Q. And what were you hauling? A. Frozen chicken. Q. And what kind of truck were you driving? A. A Volvo. Q. What size? A. 18-wheeler. I don't know what size it was. They're all the same size. Q. And how long had you been driving before you got to Carlisle? A. Well, I had driven from Springdale, Arkansas, probably -- well, I can't say. I don't remember exactly the hours now it takes to drive that. Q. Did you have to stop before you got to Carlisle? A. Absolutely. Q. where would you stop from Springdale, Arkansas 33 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before you got to Carlisle? A. Well, one that I usually -- now, I don't know whether I stopped there this particular day, but normally we needed to fuel at Effingham, Illinois and then fuel again here. Q. Here being Carlisle? A. In Carlisle, yes. Q. And usually how long would that trip take you to get to Carlisle? A. 16, 18 hours driving time. It would take a lot longer than that because I had breaks in there. I would usually leave early in the morning on -- I gotta ask you. Was the day I stopped, I can't recall whether it was a Monday or not -- or it was Sunday. I believe it was a Sunday. I would have left there early Saturday morning. Q. And you said you got to Flying J sometime early evening. Am I correct? A. Yes. Q. Do you remember what the weather was like April of 2002 when you got to Flying J? A. To the best of my memory, it was off and on drizzling rain. Q. Was it raining while you fueled your truck? A. I don't recall. 34 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 Q. Did it rain before -- A. It may have been drizzling. Everything was wet, I know that. Q. When you say everything was wet, you mean the pavement? A. Yes. Q. Take me through your stop at the Flying J in Carlisle on April of 2002. A. That's a very leading question. Q. It's actually an open-ended question. It allows you to tell me what happened. Just tell me what happened. A. I pulled into the fuel island, run my credit card through the fuel pump, put both pumps into the truck -- you get fuel from both sides with a satellite pump -- and fueled the truck. Then I got back in the truck and pulled it ahead, forward so that the next truck behind me could pull in and use the fuel island while I went in to sign the ticket and fill my cup. And between the time where I pull the truck up approximately 80 feet -- no, it would be farther than that, the length of the truck plus -- well, about the length of the truck so that the other truck could have room to get in 35 1 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and got out and started walking directly towards the fuel desk, the door to go into the fuel desk. And I stepped in something. My shoes weren't slick, but I had a time where I noticed it walking that distance and getting in and out of the truck and so forth. I stepped on something. The next thing I knew I was on the ground. And I don't know whether I stayed conscious all the time or not. Q. What was your next memory after the fall? A. I looked up and thought what am I doing laying here and hurting. Q. Do you remember what happened after that? A. Well, I started to sit up and was dizzy, so I laid back down. They had me lay back down, this other driver did. I never did get up. I just sat up and went back down. And the other driver went and chased my coffee cup -- I keep calling it that. It's a 36 or something ounce cold drink cup. It was empty. And when I fell I evidently threw it, because he had to chase it a long ways. Q. okay. Then what happened after that? A. Well, somebody called an ambulance. They came 36 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black out and asked me if I was hurt and I said, yeah, I think so. Then they called an ambulance. I went to the emergency room and was there for a few hours while they tested and did things like that. Q. And did they discharge you from the hospital? A. Yes. Q. And what instructions did they give you at that time regarding -- A. To take it easy. They didn't give any other instruction other than take it easy and if I had any other problems to notify somebody. Q. And did you follow those instructions? A. Yes, I did. Q. What did you do next then? A. I went back to my truck and took a nap till early in the morning and went on and took the load over to Philadelphia and had it unloaded. I didn't unload it. Q. After you unloaded your truck in Philadelphia what happened? Did you drive it back? A. Yes. I don't remember where I went to reload, but I went someplace and reloaded and went back to Arkansas. Q. I want to take you back to the fall. You said 37 I Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black you fell on something. Do you know what you fell on? A. All is I know is I had a big knot on the top of my head and I was told it was a concussion. Q. Okay. My question to you, Mr. Black, is do you know what you fell on or do you know what caused you to fall? A. Whatever it was was very, very slick. And the only thing I know of that is that slick is diesel fuel and water. Q. As we sit here today do you know that you fell on diesel fuel and water? A. I know I fell on a slick substance in that area of Flying J where they dump the fuel into the underground tanks from their tankers. Q. When fuel and water mixes, does it create color? A. No, not that I know of. Q. So did you see anything around where you fell that would have indicated you fell on fuel and water? A. I saw plenty of water. I don't know whether there was fuel there with it. There had to be something there with it. Water is not that slick. 38 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black Q. When you say you know there ought to be something with it, how do you know? Did you see it? A. Water is not that slick. Q. But did you see something before you fell? A. No. If I had seen something I wouldn't have stepped on it. Q. Did you have fuel or any kind of substance on your clothes where you fell? A. No. MR. HELD: Is your question aster ne zell or before? BY MR. YANINEK: Q. After you fell. A. I have no idea. Q. Just so we have the question and answer together, after you fell did you have any fuel or any foreign substance on your shoes or your pants or any part of your clothing? A. I was wet all over. Q. other than water did you have any other substance on your clothes or your shoes or your pants that you know of? A. I smelled diesel fuel. It has a very distinctive smell. 39 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 Q. Where did you smell it? A. There. Q. Where is there? A. Where I fell. Q. Did you smell it on your clothes? A. Not necessarily, no. I could not tell whether it was on my clothes or where it was at, but it was in the area. Q. When you say it was in the area, what area did you say that you smelled diesel fuel in, in or about? A. All I could smell is while I was laying there on the ground. That's all I remember. Q. What kind of shoes were you wearing when you fell? A. Standard work shoes. Q. After you fell did you have to clean them in any way specially? A. No. They were dry by the time I got to, by the time I got back on my feet. Q. In the area that you fell was there anything unusual about the way it looked when the water hit it and was wet? A. No, not that I noticed anyway. Q. So either before or after you fell did you 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 notice anything unusual about that area as far as color or as far as there being some kind of foreign material on the pavement? A. Just water, it looked like just water, but I can't testify what was there. I don't know. Q. When you would fill up around the diesel pumps did you ever see any signs talking about warnings of areas that might be slippery? 41 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I A. Yes. MR. YANINEK: Can we mark this as Black 1? (Black Deposition Exhibit Number 1 marked for identification.) BY MR. YANINEK: Q. Mr. Black, I'm going to show you what's been marked Black Exhibit 1, Deposition Exhi bit 1. Did you ever see a sign like that? A. Yes, they're always there. They're on the fuel pumps. Q. Were you able to read that sign? A. I'm sure I did. I did not fall in the area of that sign. Q. Did you ever see anyone else fall in that area? A. No, I haven't personally. Q. How was the lighting at the time? A. I don't recall whether the lights were on. it Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wasn't dark yet, it was still daylight. Q. What was the contour of the area where you fell, was it flat or was it some other contour? A. It's not flat. It's concrete, but it's not flat. Q. Was there a grade to it? A. No, there are like mounds there. Wherever they have a manhole cover -- it's not a manhole cover. It looks like a manhole cover. It's where there are connections for their truck hoses, to put the fuel in the tanks underground, there's a metal cover there, and they slope it up to them so water will not run off the parking lot into that area. Q. And did you fall on one of those areas where it was sloped up? A. I don't recall. Q. And when you fell do you remember which foot was subject to slipping? A. No. Q. Did you fall forward or backward? A. Backwards. Q. And where did you land first? A. I don't know. Q. When you went to Carlisle and you got in the 42 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ambulance, where did you hurt at that time? A. More or less all over. Q. Do you remember what you complained of when you went to the doctor, your chief complaint, where you hurt? A. My head and my upper legs. Q. Were you carrying anything when you fell other than your drink cup? A. No, just the drink cup. Q. And you said you were wearing work boots? A. Shoes. Q. Work shoes. What else were you wearing at the time? A. Work trousers similar to most uniforms. They weren't a uniform, but they were that type. And a Tyson shirt. Q. Any raincoat? A. No. Q. Did you have an umbrella in the cab? A. No. I don't think I was even wearing a coat. It wasn't raining that hard. Q. Since the accident do you know where these clothes are that you used when you fell? A. I still got some of the same type things around. 43 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. But you don't know which specific one? A. I don't know which pair I was wearing, no. I have several sets. I Q. How about the shoes that you were wearing, did you keep those? A. Yeah. Q. Can you identify the shoes you were wearing on that day? A. Yes. Q. Before you fell that day were you on any kind of medication? A. No. Q. Did you use any type of tobacco or alcohol before you fell? A. No. I'm a Morman. I don't drink or smoke. Q. You said you had talked to a driver who helped you at the scene of the fall. A. Yes. Q. Do you know who that driver is? A. I don't have his name in my memory right now, no, I don't. I passed it on to my attorney. And the manager of Flying J talked to him. Q. Have you talked to him -- A. Several times. Q. okay. Have you talked to that gentleman any 44 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 time -- 45 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, I have not. Q. Again, I get to finish my question before you start your answer. Okay? A. Okay. Q. Have you talked to him any time since the accident? A. No, I have not. Q. And do you remember what he said to you after you fell? MR. HELD: Who's he, the driver? MR. YANINEK: The driver that assisted him. A. He gave me a slip of paper with his name on it and phone number or the company he worked for, which I can't recall which it was. I put it in my wallet and passed it to my attorney when we got together. I carried it for a long time in my wallet. BY MR. YANINEK: Q. Did he tell you whether or not he saw anything on the ground or around where you fell? A. All he said is he saw me fall. Q. After you fell you went back you said to Arkansas, took your load back. Did you Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 continue to drive after that? A. Yes. 46 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. For how long? A. Till I retired, till I was forced to retire. Q. Do you know how long that was in time -- we're talking about April, 2002 -- how much longer you drove for Tyson after April, 2002? A. I don't recall exactly right now. Q. Was it more than a year? A. No. Q. Less than a year? A. I would say so. I take that back. I don't know it was over a year or under a year, I don't know. Q. It was more than a month? A. Yes, it was over a month. Q. How about more than six months? A. I can't say that. Q. Mr. Black, I'm going to show you the document that's your lawsuit, the complaint that you filed. Did you read that complaint and verify it before it was filed in Pennsylvania? MR. HELD: Do you remember reading it? A. I'm sure I did. I don't remember, but I'm sure I did. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. YANINEK: Q. well, turn to the last page of that document. A. The last page? Q. Yes. The top of the document says Verification I believe. A. Yes. Q. Is that your signature on that page? A. Q. A. Q. A. 4. A. 4. Yes. It says something to the effect that you've read the document and you verify the facts. Isn't that correct? That's what it seems to say. And did you do that? If I said I did I'm sure I did, but I do not remember doing it right now. I want you to read the sixth paragraph of your complaint. You can read it to yourself. Yes. The sixth paragraph, would you agree with me, talks about warning signs and the allegation that there wasn't adequate warning signs or warning signs on the premises; is that correct? MR. HELD: I'm going to object to the form of the question. The paragraph speaks for itself. If you want to read the paragraph, 47 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's fine. BY MR. YANINEK: Q. Why don't you read the paragraph then. MR. HELD: Read that out loud, Number 6. A. At all times material hereto there were no warning signs posted on the premises warning of an accumulation of oil and/or diesel mixed with water on the refueling surface of the premises. MR. YANINEK: Let the record reflect at this point the plaintiff wants to discuss this question with his attorney. (Discussion held off the record between Mr. Black and Stephen G. Held, Esq.) BY MR. YANINEK: Q. Mr. Black, you verified that the statements contained within the document, the complaint are true and correct before it was filed, correct? A. I can't say that any interpretation of them would be true. Q. Okay. That's not my question. Did you verify that the facts within the document are true? A. What we talked about, what we just talked about. MR. HELD: Answer the question. 48 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 A. This says on the fuel pump area. BY MR. YANINEK: Q. That's not my question yet. Did you verify that the facts within the complaint are true? A. If they're interpreted as they were written, 49 1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yes. Q. What do you mean by that? A. They're moving areas. MR. HELD: Well, you're anticipating I think where he's going. Why don't you just answer the question that he asks you as opposed to thinking ahead of time. A. Yes, it was written. BY MR. YANINEK: Q. What do you mean? A. When it was written that way it is true. Q. Paragraph 6 says, At all times material hereto there were no warning signs posted on the premises warning of an accumulation of oil and/or diesel mixed with water on the refueling station surface of the premises. A. It says refueling surface. I did not fall in the refueling surface. I was 150, 200 feet away from there. Q. But you would agree that Exhibit 1 is a warning Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 sign? A. Yes, it's a warning sign. Q. And it was posted on the premises? A. This sign says look out for slick spots on the fuel islands. This was not on the fuel island. Q. okay. well, why don't you answer my question. Could you read it back for him? (Previous question read by the court reporter) A. Define premises. BY MR. YANINEK: Q. The same definition you used. What definition did you use for premises in your complaint? A. I'm talking about in the location where I fell. Q. Did you ever fall or have a back problem before the accident? A. Yes, sir, I've fallen several times. Q. Can you tell me the times that you fell? A. No, I can't tell you that. I don't recall. Q. Did you ever make a worker's comp claim other than -- 50 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes, but I can't recall when it was. I finally ended up going to my chiropractor and getting straightened out. Q. Again, I'd ask you to give me the courtesy of Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 finishing my question before you begin answering. Can you follow that instruction? A. I thought you were through. Q. Okay. Have you ever had a worker's comp claim before this incident in April of 2002? A. I imagine so. Q. Did you have more than one? A. I don't know. Q. Do you remember why you had a worker's comp claim before 2002? A. I don't remember the particulars. Q. Do you remember anything related as to why you would have ever had a worker's comp claim? A. I don't recall. I'm not going to speculate. Q. Do you remember having back problems before your fall of April, 2002? A. I had upper back problems for years. Q. What kind of back problems did you have before April, 2002? A. From being a bricklayer, stone mason, from staying bent over all the time. Q. what kind of complaints or symptoms did you have before the fall of 2002? A. I didn't have any symptoms at that time. Q. You said you had numbness in your legs? 51 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 . ,' . Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I still do. Q. Did you ever have that before the accident? A. Not like this. I had some numbness, but not like this. At different times when my upper back would get out of place. Q. Did you ever have numbness when standing before the accident in 2002? A. Again, not like this, but -- Q. Do you remember a fall in 1994 when you were pulling a pallet jack? A. Yes. Q. Can you describe that fall for me? A. Excuse me. (Recess taken) (Previous question read by the court reporter) BY MR. YANINEK: Q. The 194 fall. A. I was pulling a manual pallet jack, not a motorized one. It's a hydraulic lift that picks the pallet up. And it was a frozen -- we always worked with frozen docks and there's always ice around. I think there was ice there, but there was something like that. Anyway, when you're leaning back and 52 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 pulling a ton of material on a pallet jack up a little grade, I went up and landed on my back across the -- up in here, across the -- and it's about six or eight inches above the waist, across the joint where the metal dock comes to the concrete. And the dock is sloping up from the truck to the dock and then the floor is level and across that, that's where I landed. Q. And did that fall result in you going to seek medical attention? A. Yes. Q. Did you have to be taken by an ambulance to a doctor? A. No. I went to my chiropractor after I went to the company doctor a couple of times. I was tired of playing with it, so I went to my doctor, my chiropractor, and he gave me a couple of treatments and I had no more problem. Q. And you filed a worker's comp claim as a result of that? A. At the beginning of it, yes. Q. And did one of the doctors recommend surgery for your back? A. For arthritis. As I remember, that's what it was. I don't know what he put on his report. 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It's what he talked to me about. Q. And did that fall result in causing you numbness when standing? A. Yes, but not to the degree that this did. Q. Do you remember seeing a doctor by the name of Daniel Dagen, D-a-g-e-n, after this incident? A. Yes, I went to Dr. Dagen. MR. HELD: By this incident you mean the April, 2002? MR. YANINEK: The April, 2002. A. Yes, I remember him. BY MR. YANINEK: Q. And after he saw you did he allow you to drive for six to eight weeks until you saw him again? A. To the best of my knowledge, yes, to the best of my memory, yes. Q. Do you remember sometime in February of 2003 where you called Dr. Dagen and asked for a prescription? A. No, I don't. Q. Do you ever remember telling Dr. Dagen you injured your back again, some other time subsequent to the fall in Carlisle? A. No, I did not tell him that. Q. Do you remember a tornado sometime in I guess 54 I Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 May of 2003 destroying your yard? A. Very well. Q. Do you remember injuring your back in some way after cleaning that mess up I guess in your yard? A. Well, it just started hurting more like it had been before. It didn't reinjure anything. It just aggravated it a little bit. Q. Do you remember telling Dr. Dagen that you started to have more pain after you had done all this clean-up work? A. Well, it seems any time I do anything I get more pain. Q. But my question was do you remember telling Dr. Dagen -- 55 l A. No, I don't remember telling Dr. Dagen that. Q. Did you see a Dr. Pinkerton, Mark C. Pinkerton? A. I don't recall seeing him, but -- Q. St. John's Regional Medical Center, Joplin, 15 16 17 18 19 Missouri. A. I went to that facility all the time. Q. Pain Management Clinic? A. What treatment did he do or did he do a treatment? The name isn't familiar. 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 Q. Did you ever have a lumbar epidural injection? A. Yes. It didn't do any good. Q. Did you have it once or more than once? A. Once I think. I'm not positive. Q. Is there a period of time after this fall in April of 2002 that you didn't have any symptoms related to your back or numbness in your legs or anything like that? A. Please come back with that. MR. YANINEK: Could you read it back to 56 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him? (Previous question read by the court reporter) A. It is not continual. It only does it when I overdo sitting, sit too long, walk too long, stand too long. If I pay attention to what I'm doing it doesn't hurt. And I try to keep it from hurting. BY MR. YANINEK: Q. Do you see a doctor named Tracy Cole? A. Yes. Q. Do you remember telling Dr. Cole in January of this year that you didn't have any symptoms anymore related to your back or your -- A. I wasn't having any at that time. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 Q. Did you tell him you felt fine -- or her? A. Yes. 57 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Is Tracy a male or a female, Mr. Black? A. What? Q. Is Tracy a male or female? A. Female. Q. Did you tell her that your energy was -- that you had a good level of energy in January of '06? A. Yes. Q. It says in your medical record, Mr. Black, that in September of 2003 a Dr. Waheed took you off driving. Is that when you stopped driving, to the best of your knowledge? A. It probably was, yes. I don't recall for sure. Q. When is the last time you saw a doctor related to any kind of back or leg pain problem? A. Well, I haven't saw a doctor related to that since I retired I don't think, or shortly after that, anyway. It's possible, but I don't recall any. Q. You settled your worker's comp claim, it's my understanding, for $14,355. Is that correct? A. That was the Arkansas law maximum. Q. Does the worker's comp carrier, the insurance Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 .., .., Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 carrier have any kind of lien on this case? A. No. 58 1 15 16 17 18 19 MR. HELD: I could answer that. They have approached me. A. I didn't know that. MR. HELD: And they do. Actually, they were talking to me about whether they needed to intervene on the case or not. It was kind of a long -- he had no knowledge of this. MR. YANINEK: Okay, no problem. I'm just trying to report to the powers that be. So did they tell you that the lien is 14,3 or 14,4, whatever? MR. HELD: They haven't given me an amount yet. I forget who contacted me. I can give you the name of the attorney who contacted me. MR. YANINEK: If you could just maybe send me a letter and tell me what it is, that would be great, so I can pass that on. MR. HELD: It's Megan Ford from Barley Snyder. BY MR. YANINEK: Q. Mr. Black, you made a partial claim for earnings in here. So I'm going to have to ask you about your leukemia situation and that's 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 the reason why I'm asking about it. I don't mean to pry into your -- A. That Dr. Cole that you asked about is my leukemia doctor. Q. I'm going to ask you some questions about your diagnosis of leukemia. When were you first diagnosed with leukemia? A. About a week before Christmas last year, in '05. Q. And there's a particular type of leukemia that they've classified you have? A. Yes. Q. Do you know what that is? A. CLL. Q. And what does that mean to you? A. Beats me. Q. What have the doctors told you about your condition? A. I quit making blood and ran out of blood. Q. What have they told you about your treatment and what they call a prognosis, what the future brings? A. It is going to go into remission and probably I long-term remission because of the treatment, that it was specific to do one particular thing 59 I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 and it worked. If you want it in detail ask Dr. Cole. Q. Okay. I just want your understanding. What kind of treatment have you had to undergo for this condition? A. Chemotherapy. Q. There are various types of chemotherapy. Can you tell me what you had to do? A. I had to sit there and they stuck a needle in my arm and they run stuff into me. Q. And how many times did you have to do that? A. I couldn't say. I couldn't remember exactly. It was a four-day period and I done it three different times I think. Q. Three different series of chemotherapy. Is that fair? A. Yes. If I remember right, I think it was two 60 1 or three. Q. And when is the last series that you had? A. Somewhere around a month ago. I was doing it when you started trying to set this particular meeting up. Q. And do you have any other ones after this planned? A. Not planned now. I have an evaluation coming 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black up. Q. And when is that? A. Early in January. Q. How do you feel as a result of the treatment that you've received for the leukemia? I A. I feel good. I feel better than I have in the last year or even a little bit longer. The way they found the leukemia, I was having trouble climbing stairs, not physically. I was running out of breath and they thought I was having heart problems. My family doctor sent me in for a stress test and I lasted about 15 seconds on the treadmill. so they looked for other causes and Dr. Cole was there and diagnosed it and she diagnosed it before they ran any tests. Then she went and run all the tests and verified it and treated it. And I'm very happy with her treatment. Q. Has leukemia affected your ability to travel from Missouri to Pennsylvania? A. Yes. I have no immune system. I'm very susceptible. I may catch anything from this trip because I have a very inactive immune system. That's what the chemotherapy does, is 61 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 kill the immune system, is one of the side effects. Q. Is there a point when you're done with the chemotherapy where that's not going to be an issue of concern? A. Yeah, it will come back, at least the doctor says it will. I have no personal knowledge it will come back, but the doctor says it will and I believe her. Q. You said you took a train from Missouri, St. Louis? A. Joplin. Q. All the way to Harrisburg? A. Um-hum. Q. Is that a yes? You have to say yes. A. Yes. Q. How long of a train ride did you take? A. I left Joplin about 3:00 a.m. Monday morning and just got here about 12:45. I thought this meeting was tomorrow. Q. And you're scheduled to go back the same way, I take it? A. Yes. Well, since the last treatment I have a sinus infection. That's why I had to go to the bathroom, to keep from blowing stuff all over 62 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 you in here. Q. So when are you scheduled to leave to go back? A. Well, I was scheduled to go back Thursday, but I'm going to see if I can set it up now. Q. And when you travel by train do you get a place to sleep? Is there a sleeper car? A. I can't afford one. Q. So you just sat on a regular I guess seat? A. Seat. Q. I'm going to give you a break and I'm going to look through all my stuff. I know I'm going to forget to ask you something, but I just want to try my best to ask you all the questions while you're here. Did you give a statement before, Mr. Black, to anyone about what had happened? A. Yes, I had to give a statement to the company. MR. HELD: Yes, he did it in my presence to GAB Robbins I believe it was. BY MR. YANINEK: Q. And did they record that? A. Yeah. 63 MR. YANINEK: Just to let you know, they can't find it. MR. HELD: Right. 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. YANINEK: Q. Did you record it or did you have your attorney record the statement? A. That was here in the office. I don't know what happened. MR. HELD: We did it over the phone. A. That's right, we did it on a speaker phone. BY MR. YANINEK: Q. Mr. Black, at the worker's comp did you ever have to testify regarding the fall? A. No. Q. Tell me how you feel today, Mr. Black, regarding the injuries that you feel that you had that were originated from your fall in Carlisle. A. It's what's been causing my pain. I have a lot of pain today from sitting. Q. okay. Describe it for me. A. Just my legs hurt. Q. How do they hurt? A. Just hurt, pain. Q. The back of your legs, the front of your legs? A. The whole thing. Q. From your thigh -- A. Yeah, from the hip bones, yeah. 64 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 Q. Hip bone to your ankle? A. From the belt line clear down. Even my toes hurt. Q. Is it a constant pain or a stabbing pain? A. Just constant. Q. Is it better when you stand? A. It gets better when I move, change positions, let's put it that way, not move, when I change positions. Q. Is today the worst it's been in some time? A. Yes. Q. Do you take any medications for the pain? A. No. Q. You said you go to a chiropractor. Do you have 65 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a -- A. I haven't went to a chiropractor in -- probably late in 103 was the last time because he wasn't doing any good on this one. Q. So I'm correct in that you haven't had any medical treatment in well over a year for this injury? A. I've got pain medication at home that's been prescribed for me, but I don't like to take pain medication. And if I can stand it without it I don't take it. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 Q. In your complaint you talk about losing wages or income. Could you tell me how much money you believe you've lost as a result of the accident? A. I lost everything I had coming in. Q. Okay. How much is that? A. I'd say a little bit in excess of $70,000 a year, because earnings for truckers have gone up since I quit and I was making about 60 all the time. If I was still able to do the job today it would probably be around 80,000 per year. Q. How long would you have continued to drive? A. Till about now. Q. Was there any policy in Tyson that you had to retire at a specific age for driver? A. No. There's two or three drivers that were over 80 and still active. I don't know what they put in, in fact, since I've been there. Q. If you could just tell me again what daily activities do you feel that have been hindered as a result of your injuries in April of 2002. A. when? Q. I'm just quoting from your lawsuit. You're claiming damages that have been hindered as a 66 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 result of your daily activities. A. I can't do anything in the manner I used to do 67 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. Q. Can you give me -- A. Everything has slowed down. I'm unable to lift this or walk over there, run, I can't run. Until this happened I was unloading the trucks, physically unloading, stacking the boxes. Q. Were you running in 2002? A. Yes. Q. How often? A. About three times a week. Q. How many miles? A. Probably half a mile at a time, but I was walking a mile or so as well. Q. Anything else that you could tell me that you can't do? A. I can't swim like I like to. Q. Let's break it down. Can you first tell me things that you can't do at all now that you could do then? And then we'll talk about the things that you can't do as well as you could before. First, what can't you do at all that you could do then? A. I have no sexual activity. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 Q. Okay. Anything else? A. Are you asking things I can't do or things I won't do? Q. No, you cannot do at all. A. And for how long a period, doing something how long a period? Q. No, at all. A. If I'm behaving myself I can do about anything I want to do for a very short period. Q. Now, you talked about sexual activity. Isn't it correct that the 194 accident caused you to develop impotence? A. For a short period. Q. How long was that short period of time? A. I can't tell you exactly. Q. So at present you say you can't have any -- your sexual activity -- I mean, could you tell me why? Because it hurts? A. No, just can't. Q. Okay. Because your male part doesn't work? A. That's right. Q. Have you sought any treatment for that? A. I've been given -- one of my doctors, I can't tell you which one, gave me some samples of Viagra and it didn't have any effect 68 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 whatsoever. Q. Has any of your doctors told you it's because of the fall in April of 2002? A. They don't know why. They said they don't know why. Q. So do you intend to find a doctor that's going to link that cause to the accident? A. I'm not actively searching for any doctor. Q. That was the list of can't do. Is there anything else on the can't-do-at-all list? A. There probably is, but nothing I can think of right now. Q. Fair enough. How about the limited, you can't do as good as before or as long as before or to the same level as before. A. Any activity, any activity. Q. The complaint says that you've had to spend large sums of money for medicine and medical attention. Other than the worker's comp, did they pay for all of your medical treatment related to this? A. Yes, but they're going to get paid back for it. Q. My question is, are there any other medical bills or medical treatment expenses that aren't contained within the worker's compensation 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Enoch Black 1 2 3 claim? A. My chiropractor. Q. And how much is that? A. I couldn't tell you exactly. I don't remember. Q. How long did you go to the chiropractor after 70 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I can't tell you that exactly. Q. Again, you have to let me finish my question. How long did you go to the chiropractor after the accident? A. I can't tell you that. I don't remember. Q. Has any doctor or health care provider told you you were going to have future medical expenses as related to this accident? A. Yes. I can't tell you who, but I remember somebody telling me that, more than once probably. Q. Do you know what it would be for? A. They didn't know what it would be for, so why would I. MR. YANINEK: All right. Thank you, Mr. Black. I appreciate you answering my questions. I think that concludes your deposition unless your counsel has any questions. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Enoch Black MR. HELD: No, I don't have any questions. Thanks. (Whereupon, the deposition concluded at 4:05 p.m.) 71 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 72 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF DAUPHIN ) I, Susan D. Kashmere, Reporter and Notary Public in and for the Commonwealth of Pennsylvania and County of Dauphin, do hereby certify that the foregoing deposition was taken before me at the time and place hereinbefore set forth, and that it is the testimony of ENOCH BLACK I further certify that said witness was by me duly sworn to testify the whole and complete truth in said cause; that the testimony then given was reported by me stenographically, and subsequently transcribed under my direction and supervision; and that the foregoing is a full, true, and correct transcript of my original shorthand notes. I further certify that I am not counsel for or related to any of the parties to the foregoing cause, or employed by them or their attorneys, and am not interested in the subject matter or outcome thereof. Dated at Harrisburg, Pennsylvania, this 4th day of December, 2006. NOTARIAL SEAL Susan D. Kashmere, Notary Public Lower Paxton Twp., Dauphin County My commission expires April 18, 2008 My commission expires April 18, 2008. 'Susan D. Kashmere, RPR Reporter - Notary Public - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 DEPOSMON T 11-Z4 - 0(0 $LaL! 2 911-7" 15m, 1, 0 MPIMP I"", ?111 I,,"" Or" Pip PI IM 11"RP P TIM RP WRI IWIPIW@ "M andlar, s" enning& osenbergALP A FTORNEYS A f LAUV 1300 Linglestown Road • Harrisburg, Pe 17110 (717)238-2000 INTERROGATORIES Personal Identification 1. State: Your full name and cash other name which you have used or by which you have been known; your date and place of birth; your present residence address and each other address and period of residence which you have had during the past five (5) years; and your social security number. ANSWER: Enoch D. Black DOB - 12/11/35 in Noel, MO 507 S. Main Street Carl Junction, MO 64834 49-1-38-1.633 , Slip and Fall Information 23. Describe the lighting conditions at the time of the accident and specify what lighting was available from natural and/or artificial sources and its location. ANSWER: Daylight. andler, ¦ Qnning& osenbarg,LLP I ATTORNEYS AT LAW Leslie B. Handler, Retired W. Scott Henning David H Rosenberg (PA, FL) Carolyn M. Anner (PA, NY, RN) Matthew S. Crosby (PA, NJ) Gregory M. Feather (PA, NJ) Stephen G. Held Jason C.Imler John F. Yaninek, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 N 2 3 2005 June 22, 2005 RE: Mr. Enoch Black vs CFJ Properties Dear Attorney Yaninek: MAIN OFFICE 1300 Linglestown Road Harrisburg, PA 171 10 717-238-2000 1-800-422-2224 717-233-3029 (fax) LANCASTER OFFICE 717-431-4000 CARLISLE OFFICE 717-241-2244 www.HHRLaw.com Held@hhrlaw.com Enclosed please find the Plaintiff's, Enoch Black, answers to Interrogatories and Request for Production of Documents provided by the Defendant, Flying J Inc. And CFJ. Should you have any questions, please contact our office. Thank you. Very truly yours, HANDI gR, HENNING & ROSENBERG, LLP H SGH/jlz cc: Enoch Black ENOCH BLACK, Plaintiff V. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA Defendants ,j x IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 22nd day of June, 2005, 1 hereby certify that I have served the within document upon counsel of record by sending a true and correct copy of the same to them via first class United States mail, postage prepaid, and addressed as follows: First Class U. S. Mail: Dated: June 22 , 2005 Atty. John F. Yaninek Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 HANDLER, HENNING & ROSENBERG, LLP r , 4 r r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ENOCH BLACK, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF VS NO. 04-1377 FLYING J INC., AND CFJ PROPERTIES D/B/A FLYING J TRAVEL PLAZA, DEFENDANTS DEPOSITION OF: BETTY M. KOOPMAN TAKEN BY: PLAINTIFF BEFORE: DONNA J. FOX, REPORTER NOTARY PUBLIC DATE: MARCH 15, 2006, 1:00 P.M. PLACE: METTE, EVANS & WOODSIDE 3401 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: HANDLER, HENNING & ROSENBERG, LLP BY: STEPHEN G. HELD, ESQUIRE FOR - PLAINTIFF METTE, EVANS & WOODSIDE BY: JOHN F. YANNIEK, ESQUIRE FOR - DEFENDANTS GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 TABLE OF CONTENTS W I T N E S S FOR PLAINTIFF DIRECT CROSS Betty M. Koopman 3 -- GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved to the time of trial. BETTY M. KOOPMAN, called as a witness, being sworn, testified as follows: DIRECT EXAMINATION BY MR. HELD: Q Is it Koopman? A Koopman. Q Is it Miss or Ms.? A Miss. Q Good afternoon, Miss Koopman. We're here to take your deposition. I'm Stephen Held and I represent Enoch Black in a claim for injuries arising out of a slip and fall that happened April 9th, 2002, and we're here to take your deposition. You have not had your deposition taken before? A No, sir. Q The idea of a deposition is -- like I said, I GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 represent Enoch Black in a claim for injuries. I have some questions to ask you. And how it works is I ask questions, you'll give answers. And this lady to my right and your left here is taking down verbatim, word for word, everything that is being said in this room. She puts that together in a transcript and that transcript may be used at later time for many purposes, but the idea is to get a transcript of these proceedings. With that in mind, there are some rules you need to keep in mind just so her job is easier to do, okay? The first is to try and give a verbal response to all of my questions. Head shakes or uh-huhs and huh-uhs are sometimes bad. You do that in everyday conversation; but she can't take down what you're doing, only what you say. So can you try and do that for me? A I will, sir. Q Thank you. Likewise, if you do not understand one of my questions -- I'm not trying to play silly question games or anything like that. If you don't understand what I'm asking, just let me know and I can reask it in another. Okay? A That's fine. Q I do not think we will keep you here very long. But if you do need to take a break for any reason, to talk to your attorney here or make a phone call, get a drink, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 use the restroom, anything like that, let me know and we can take a break and go off the record and you can do what you have to do and we can go back. But like I said earlier, I don't think I will keep you here that long. Also, can you try and avoid talking when I'm talking? Likewise, I'll try and do the same for you. Not because I mind being interrupted or anything. But if two of us are talking, she can't get us both. Okay? A Yes. Q You understand that today's proceedings you're under oath, right? A Correct. Q Is there any reason, be it medications that you're on or any physical or mental reason, that would prevent you from being completely honest with me and giving accurate and complete answers? A No, sir. Q Prior to today's deposition, did you meet with anybody except your attorney here? A No, sir. Q Did you review any documents? A No, sir. Q Let me know a little bit about yourself. What is your full name? A Betty Mae Koopman. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Have you ever been known by any other names? A Just my previous married names. Q What are they? A Zeigler. Q Z-i-g-l-e-r? A Z-e-i-g-l-e-r, and Robinson. Q Which of those names is your maiden name? A None. Those were married names. Q What's your maiden names? A Collins, C-o-1-1-i-n-s. Q Where do you currently live? A Newport, Pennsylvania. Q What's the address there? A 317 Walnut Street. Q How long have you lived there? A Since 2002. Q Prior to living on Walnut Street in Newport, where did you live? A RD 2, Box 144 in Newport. Q Is that the same place that they renumbered it or was that another residence? A It's about a mile from where I live now. Q How long did you live at the RD 2, Box 122 address? A From '95. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 7 1 2 3 4 5 6 7 8 9 10 11 12 1.3 14 15 16 17 18 19 20 21 22 23 24 25 MR. YANINEK: I think she said 144. MR. HELD: 144, yes. BY MR. HELD: Q Are you currently employed? A Yes, sir. Q How are you employed? A Flying J. Q What is your job with Flying J? A I'm nighttime manager, slash, cashier. Q How long have you been a nighttime manager? A Third-shift manager, just about eight months. Q How about in April of 2002? A I was relief manager then. Q What's a relief manager? A A glorified cashier. Q When did you start working for Flying J? A April 15th, 1999. August 15th. I'm sorry. Q That's okay. No problem. Prior to working at Flying J, where did you work? A I had my own business. Q What was the name of that? A Koopman Family Inn. Q Where was that at? A Newport. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 Q How long did you have that business? A Eleven years. Q What's your education? What is the highest level of education you had? A Eleven and a half years. Q Did you graduate high school? A No. Q Halfway through 11th grade? A No. Halfway through my senior year I quit. Q Have you had any other formal education since then? A No. Q What year was that when you quit? A 1960. Q Have you ever been charged or convicted of any criminal offense? A No, sir. Q Like I said, I represent Mr. Black who slipped and fell in April of 2002 at the Flying J. You're familiar with this place? You worked there for many years? A Yes. Q Were you working the day of my client's fall? A Yes, sir. Q Do you remember my client's fall? A Yes, sir. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 Q Did you witness him fall? A No, sir. Q How did you come to find out of my client's fall? A I'm not quite sure. Q Do you remember what your involvement with this incident was? A I know I went out to the area where he was at, and then I think I went back and called the ambulance. Q Do you remember around what time of day this was? A It would have to have been between 3 and 11, and I'm thinking in the vicinity of maybe 5 or 6. I'm not sure. Q Do you remember if it was light out when this happened? A It was daylight. Q Do you happen to remember what the weather was like that day? A We had a shower prior to this. Q Do you remember how you found out that my client fell that you went out to where he was at? A I' m sure a driver or another employee must have come in and said something. Q As you remember, where did my client fall? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I don't know how exactly you want me to answer that. It would be in the -- not really the parking lot. It would be between the fuel islands and the curb. Q Is that an area of the parking lot? Can you drive over it, basically? A Yes. It's a macadam area. Q How about where he fell, what is the contour? Is it flat, level? Is it a hill at all? A No. It's level. Q Did you see what he fell on? A I seen nothing. Q Did you ask him how did he fall? A I don't think that I personally asked him. At this point all I remember is that he said that he had slipped and fallen. Q You think to the best of your memory somebody else had asked him that question? A Yes, and I just pretty much walked in the conversation. Q Did he, he being my client, indicate what he slipped on? A I can't say. I don't remember. Q Did you see anything that he claimed caused him to slip? A No, sir. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was there any foreign substance around the vicinity of where he fell? A Not that I seen. Q Are you familiar with where the gas trucks come in to refill the gas tanks? A Yes, sir. Q Was this the area where he fell? A Yes. Q Are you involved with maintenance at all of the Flying J Plaza? A Not really. If I see something that needs cleaned or something that needs repaired, it's my job to call maintenance and have them do it. Q Do you usually work inside? A Yes, sir. Q My understanding, there's a convenience store in there? A Yes. I work the C store, yes. Q Would you be more responsible for the inside the store -- A Yes, sir. However, if something that I'm aware of that needs taken care of outside, I will direct someone to do so. Q Are you aware of whether or not there was any diesel fuel around where my client fell? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I was not aware of it. Q Have you ever seen any diesel fuel around the area where my client had fallen before he fell? A I can't say that I have. I don't spend -- I don't go out there. Q Fair enough. Do you know what diesel fuel looks like if it's on the pavement or anything like that? A Yes, sir. Q Are you familiar with the slipperiness of diesel fuel if it's on the ground? A Yes, sir. Q And is it slippery? A It can be, yes, depending on the type shoes you're wearing. Q Are you personally aware of what sort of maintenance and inspections are done in the parking lot as far as maintaining the surface of the parking lot? A I know they have a maintenance program they follow. I couldn't tell you exactly what it is. Q That's exactly what I was asking. Did you ever slip in the parking lot? A No, sir. Q Did you ever know of somebody to slip in the parking lot other than my client? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Not that I can think of right at the moment. Q When you came out to see my client, what was he doing when you first saw him? A I think they were just getting him up. Q Do you know who they was? A I'm thinking it could have been -- MR. YANINEK: Betty, don't guess. If you don't remember, you don't remember. A I can't say. BY MR. HELD: Q That's fine. I don't know if I went over this earlier or the not. But if you do not remember something or you don't snow the answer, that's perfectly acceptable. This isn't a graded quiz or anything like that. I understand there's been some time since this event has happened. And if you don't remember -- I'm not asking you to guess or speculate or feel like you have to give some sort of answer. If you don't know, that's perfectly acceptable. Did you see any visible injury to my client? A If I remember correctly, he had something -- a knot on his head-like or a brush burn. Q Do you know of anyone else who was there at the time when you were there, like any other employees or maybe any other drivers or regulars, you know, or somebody you know by name? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 A There were people there, but I know names. Q Did you know Mr. Black prior to this fall? A No. Q Somebody called the ambulance and an ambulance arrived? A Yes, sir. Q Were you there when the ambulance tendered aid to my client? A No, sir. Q Did you go back inside the store? A Yes, sir. Q About how long were you at the scene of where my client fell, if you remember? A Maybe a couple of minutes. Q Not an extended period of time? A No, sir. Q Are you familiar at all with Flying J accident reports, when they have a standard form for an accident or incident report? A Yes. Q Did you have any involvement in filling out. the accident form for this incident? A No, sir. I think it was Mr. Yeager. Q Did anyone ever tell you what my client said caused him to fall? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 A No, I don't think. Q Did anyone ever tell you what injuries my client has claimed to have sustained as a result of this fall? A No, I don't remember. Q Did you happen to know what type of footwear my client was wearing at the time of the fall? A No, sir. Q Sometimes we ask questions and people remember things, you know. I might remember something different than you did. So I always ask the question. If you remember, how far was where he fell from the front entrance of the Flying J Plaza, I guess the store itself, the building? A 30 feet, 40 feet. I have no idea. I'm not good at distance. Q That's fair enough. Do you know the last time a fuel delivery was made prior to my client's fall? A No, sir. Q And you aren't involved in keeping any records or anything like that. A Oh, no. MR. HELD: That's all the questions I have. MR. YANINEK: I have no questions. Thank you, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 Betty. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 (The deposition was concluded at 1:21 p.m.) GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 STATE OF PENNSYLVANIA : § COUNTY OF DAUPHIN I, Donna J. Fox, a Reporter Notary-Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of Betty M. Koopman. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said reporter Donna J. Fox, a Reporter Notary-Public, approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence contained fully and accurately in the notes by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto, subscribed my hand this 17th day of March, 2006. Donna J. Fox, Reporter My commission expires: March 29, 2008. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 f` f GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 w 2 TABLE OF CONTENTS W I T N E S S FOR PLAINTIFF Jack N. Baba E X H I B I T S DIRECT CROSS 3 -- PRODUCED BABA EXHIBIT NO. AND MARKED 1 - Flying J Inc. Job Description Facility Manager 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved to the time of trial. JACK N. BABA, called as a witness, being sworn, testified as follows: DIRECT EXAMINATION BY MR. HELD: Q Good afternoon, Mr. Baba. My name is Stephen Held. I represent Enoch Black in a lawsuit arising out of a slip and fall that happened at the Carlisle Flying J Plaza on April 9th, 2002, and we're here to take your deposition. Have you ever had a deposition taken before? A No. Q A deposition is basically a formal interview. I'm asking you questions about what you may know about this incident and other pertinent information, and you're going to be answering those questions. And this woman here to my right and your left is a court reporter who is taking down everything that is said in this room. She puts that together GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 into a transcript that can be used at a later date. With that in mind, there are some guidelines you need to keep in mind so that her job is easier to do. The first thing you need to keep in mind is try and give a verbal response to all of my questions. Even though I'm just asking you questions and the usual habit in day-to-day conversation sometimes is just to shake your head or say uh-huh or huh-uh, please don't do that here. Try and give a verbal response to every question, like a yes, no or whatever. Can you try and do that for me? A Okay. Q Likewise, try not to talk when I'm talking at the same time, just because she can't take two people talking at the same time? A You can't? Q She might be able to, but I don't want to try and test her. Likewise, if you do not understand a question I'm asking or if I use terms in a question you don't understand -- I don't try and do that on purpose. If you don't just understand a question, let me know. Likewise, if you do not know the answer to a question, I don't know is perfectly acceptable. You're not obligated to give answers to everything I ask. And it's riot a graded quiz or something like that. So if you don't know, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 just let me know. That's fine. I don't think I will keep you here that long. The deposition before was maybe 20 minutes. I don't know if I'll keep you here longer than that or not. But if you need to take a break for any reason or talk to your attorney about something, use the phone, the restroom, get a drink, anything like that, let me know. It's not meant to be an endurance test. You can take a break and do whatever you need to do and go off the record and resume that. Okay? A That's fine. Q This proceeding, you're under oath so you're obligated to tell the truth. But is there any physical or mental reason or are you on any medications which would prevent you from giving accurate and complete answers to my questions? A No. Q Prior to today's deposition, did you talk with anybody about what was going on today? A I was told that I had to be here at this time, last week, and that's all. Q Did you review any documents prior to today's deposition? A No. Q I want to know a little bit about yourself. What is your full name? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 A Jack N. Baba. Q Have you ever been known by any other names? A No, sir. Q What is your address? A 146 Rocky Ridge Road, Dillsburg, 17019. Q How long have you lived at that address? A Since 1990. Q Where are you currently employed? A Flying J Travel Plaza, 1501 Harrisburg Pike, Carlisle. Q What's your job title there? A Facility manager. Q How long have you been a facility manager for this Flying J Plaza? A It will be 10 years in September. So it's nine years, nine and a half years. Q Prior to being a facility manager at Flying J, where were you employed? A I was self-employed. Q What were you doing, your self-employment? A Restoration of antique furniture. Q Was that your own business you did that? A Partly mine; partly another person out of Chambersburg. Q Did you operate under a business name or GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 anything like that? A Dage, Incorporated. Q How is that spelled? A D-a-g-e, Incorporated, out of Chambersburg. I don't think it exists anymore. Q What is the highest level of education you have? Did you graduate high school? A College. Q What high school did you go to? A I went to East Chicago High School. Q Is that Chicago, Illinois? A It's in Indiana. East Chicago, Indiana. Q You also mentioned college. Where did you go? A I graduated Indiana University with a B.S. in 1976. Q What was the B.S. in? A Business and labor relations. Q It was Indiana University in the state of Indiana, right? A Yes. Q There's an Indiana University of Pennsylvania. A It's a division of I.U. Q You went to high school. You went to Indiana University. Did you go to any other formal education? A Military. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 Q When were you in the military? A '60 to '65. Q What branch? A USAF. Q What did you do in the Air Force? A I was a crew chief on Titan 1 missile. Q Where were you stationed at? A Washington, California, Texas. Q In 1965, did you receive an honorable discharge? A Yes, I did. Q I ask this question in all of my depositions. Don't be offended by it. Have you been charged or convicted of any criminal offense? A Not that I know of. Q You mentioned you have been employed as a facility manager for Flying J. I'm going to show you what I'll mark as Deposition Exhibit 1. (Flying J Inc. Job Description Facility Manager marked Baba Exhibit No. 1.) BY MR. HELD: Q This document appears to be a job description for a facility manager for Flying J. Let me ask you this: Have you ever seen a written job description of your job? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 A Yes. Q Is this the job description basically you've seen before? A This is a new job description. Yes. Q A facility manager, is that the general manager of the -- A No, sir. Q Who do you report to? A Tracy Sterling. She's the general manager. Q Is that T-r-a-c-y? A Yes. Q Sterling, S-t-e-r-l-i-n-g? A Yes. Q What are your job duties, if you can describe what your job duties are? A It's right here. Q Right here in front of me? A Yes. Q On the second page of this exhibit, if you look at Item No. 11 -- do you see where I'm at? A Yes, sir. Q It says responsible for cleanliness, starting there. A Yes. Q Do you feel that's within your job GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 description? A Yes. Q The same with 12 and 13? A Yes. Q Also, Item No. 23 there at the bottom, ensures all the equipment is in a safe working condition, et cetera, do you see that? Do you think that's part of your job description? A Yes. Q Then on the last page, it indicates you must have knowledge of how to treat fuel-related accidents. Do you see that? A Item 26. No? Or where are you at? Q I'm on the last page. A Mine is stuck together. Q Sometimes when we do copying, what I have isn't the same. A Okay. Q Do you see item 11? A Yes. Q You have a working knowledge of how to treat fuel spills? A Yes. Q Are you familiar with how my client fell or how he claims he fell? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No, sir. Q Were you working the day that my client fell? A I don't know. Q Were you working at the time my client fell that you remember? A No. Q Do you have any idea where my client claims he fell? A Just from what I was told. Where did he fall? Q What were you told? Maybe we'll do it that way. A Just that he slipped and fell. I don't know where. Q Were you aware it was in the parking lot? A No. Q Are you familiar with the maintenance procedures of the parking lot? A Yes, I am. Q Are there routine maintenance procedures that take place? A Yes. Q I'm not going to mark this as an exhibit to this deposition, but it's Exhibit C of documents given to me by your attorney. I'm just going to hold it up. Fuel Area Procedures, can you see that? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 A Yes. I can't see the small stuff. Q Does this look familiar to you? And maybe if I pass it over to you. A I would have to see it. I don't know. Q Now, I have tabs attached there that certainly aren't part of it. A Yes, we have this. Q You would be surprised at the number of times I have taken a deposition of somebody like you and they have never seen that document before. They have a formal document of procedures and... So you think you have seen those procedures? A I use that for training, too. Q You try to the best of your ability to act with these procedures or in conformity with these procedures, right? A Yes. Q Are you responsible for keeping any records or logs of what maintenance procedures are performed at the Flying J Plaza? A I was not. Q Do you know who in 2002 would have been responsible for that? A I don't know. Q In this procedures manual, they have a fuel GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 delivery log, it's called. Do you know anything about maintaining a fuel delivery log at the Flying J? Is that within your job? A No. Q My client is claiming that he slipped and fell on diesel fuel that was mixed with water out by the area where the trucks refuel the fuel tanks. A The fuel drop. Q The fuel drop, yes, that's what's its called. Are you familiar with where the fuel drop is? A Yes. Q Are you familiar with any procedures regarding inspection of that area? A I inspect that every day. Q Is it usually at a certain time of day? A No. I may come in and have to do 50 other things before I do that. Q Understandable. I understand that. Does this facility that you work for have procedures regarding clean up of spilled fuel in that area? A Yes. Q What are those procedures? A If it's reported to us, we use biodegradable degreaser to wash it down. Q Do you happen to know what the name of that GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 substance is? A It used to be called Grease Gobbler, but we don't use that anymore. We use a new product that they came up with. It's called Jaws. Q J-a-w-s? A But this doesn't pertain to this. Jaws was not in existence then. Q In 2002 you mean? A I don't believe so. We used a degreaser. Q Today they use Jaws? A Yes. Q But in 2002 they used -- A Grease Gobbler. It's the same type of stuff, a degreaser. Q Are you familiar with how frequently that degreasing product would be used in this area around the fuel drop prior to 2002? A We never had a spill. Q It's not something that would be used daily or anything like that? A No, sir, not in the fuel-drop area. It's used on the islands daily. Q Would the islands have a tendency to have fuel around them? A They fuel every day, 24 hours a day. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Would the fuel-drop area tend to have less fuel around it? A How such? Q I guess a better way to ask this: How frequently would fuel deliveries come to the fuel drop? A It depends on traffic. Q Would it at least be weekly? A Daily. Q As far as when they deliver the fuel there, would it be common that fuel would be spilled when they dropped it there? A No, sir. Q Would there ever be any residue left around their fuel? A Not that I know of. Q You would be in a position to be made aware if there was fuel there, right? A Hopefully. Q I don't know if I asked this before. If I did, I'm sorry. But as far as when fuel deliveries would be made, is there some sort of log that is kept for that? A The drivers keep a log. Q It would not be something that would be in the possession of Flying J when deliveries were made? A They're Flying J drivers. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q In working the number of years you've worked there at the Flying J, you've encountered diesel fuel before in various areas and conditions, right? A Yes. Q Are you familiar with whether or not diesel fuel is slippery if it's on the ground? A Yes. Q And is it slippery? A It depends on what you're wearing. It's not slippery to me because I wear slip-and-fall shoes and I don't have any problem. All of our people do. Q How about if it mixes with water, does that make it more slippery or less slippery, if you know? A I can't tell you. Q You can't tell. That's fair enough. Do you know anything about the facts surrounding my client's fall? A No. Q Were you involved at all in the investigation of my client's fall? A No. Q Were you involved at all in filling out an accident report with my client's fall? A No. Q Did you ever talk to my client about his fall GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 or anything like that? A No. MR. HELD: I believe that's all the questions I have. MR. YANINEK: No questions. Thank you, Mr. Baba. (The deposition was concluded at 1:47 p.m.) GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF PENNSYLVANIA COUNTY OF DAUPHIN I, Donna J. Fox, a Reporter Notary-Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of Jack N. Baba. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said reporter Donna J. Fox, a Reporter Notary-Public, approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence contained fully and accurately in the notes by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto, subscribed my hand this 17th day of March, 2006. Donna J. Fox, Reporter my commission expires: March 29, 2008. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 Flying J Inc. Job Description Facility Manager Job Title: Facility Manager Department: Fuel/Convenience Store Reports To: General Manager FLSA Status: Exempt Prepared Date: 04/26/04 Employee Signature: Print: Supervisor Signature: Date: Date: SUMMARY The Facility Manager is responsible for the total inside and outside image of the Complex, to include Fuel/C-Store, Restaurant, J-Care and other entities as applicable. Facility Manager reports to the General Manager, with ancillary reporting to the District Maintenance Manager. ESSENTIAL DUTIES AND RESPONSIBILITIES 1. Monitors and exemplifies customer service to ensure that Flying J excellence in service is met as customer service is our number one priority. 2. Reports to work on time, dressed in the proper attire. Ensures custodial employees' appearance meets company standards, including proper uniforms, name tags, and any personal protective equipment or safety gear. 3. Follows all Company policies and procedures, ensures all custodial employees follow Company policies and procedures. Trains custodial employees in policies and procedures and counsels employees regarding compliance with such policies and procedures. Reports any violations to the General Manager. 4. Supervises custodial staff, to ensure tasks are completed in a timely and effective manner 5. Prepares work schedule, following Company guidelines, for custodial staff. Ensures all shifts are covered. 6. Trains all new custodial employees and retrains existing custodial employees as necessary. 7. Monitors custodial employee performance and adherence to company policies and procedures, including making sure the work environment is safe and free from harassment and discrimination and counsels employees in regard thereto. _EXHIBIT 8. Responsible for all employment related issues involving the custodial staff including, but not limited to: interviewing, hiring/firing, promotion/demotion, discipline, employee relations, investigations, etc. 9. Completes custodial employee evaluations and recommends to the General Manager merit increases according to the Fuel/C-store pay plan. 10. Continues to challenge custodial employees to provide innovative ideas, always looking for ways to build the employee morale and improve Plaza performance within Company guidelines. 11. Responsible for the cleanliness of the Complex and proper maintenance of equipment. Manages custodial employees to ensure the outside; parking lot, fuel islands, and trash containers, and inside; windows, showers, restrooms and floors are clean and meet Flying J standards, and that all Plaza equipment is in good working condition. 12. Create and follow up on daily, weekly, monthly routines to be assigned to custodial staff. 13: Through proper staffing and scheduling the Facility Manager is responsible for making sure Flying J standards of customer service and cleanliness are met throughout the plaza and at the fuel desk. 14. Ensures light poles, around fuel islands, and buildings are properly painted. Ensures parking lot areas are properly painted and striped. 15. Supervises operation of the Complex sweeper. 16. Is responsible for sufficient quantities of all cleaning supplies. Purchases only from approved vendors. 17. Must have full understanding of operating, cleaning, and preventing maintenance budgets and be able to operate within set guidelines. 18. Manages the parking for all vehicles ensuring trucks, RV's and cars are parked within designated areas. 19. Manages the security of all maintenance and custodial areas. 20. Manages the repair of equipment and/or makes recommendations for repairs to be made by outside contractors. Responsible for preventive maintenance on all Plaza HVAC equipment, including filter replacement. Ensures preventative maintenance is completed for all other equipment including, restaurant equipment. 21. Resolves customer complaints. 22. Responsible to monitor where applicable; well water, waste water, sewer treatment, grease traps, retention ponds, remediation projects. Conducts weekly, monthly, semi annual and annual environmental audits ensuring compliance with EPA and other federal, state or local regulations. 23. Ensures all equipment is in safe working condition, work environment is safe, and chemicals are properly used and stored according to instructions and guidelines. Ensures adherence to OSHA and any other federal, state, or local regulations. 24. Assists in setting the agenda for staff meetings, is an active participant and trainer in the meetings. 25. Trains custodial employees in all custodial related tasks within the Complex. 26. Must be knowledgeable and proficient on the P.O.S. system and the many different credit and cash cards used as specified in the fuel desk manual. Must be knowledgeable in all forms of transaction and sales taking place in the Fuel/C-Store operation. 27. Must have knowledge of P&L, General Ledger and Labor Matrix. 28. Understands and supports the scanning process, as per company guidelines. Ensures ALL products are received correctly, orders reviewed daily, maintains supplier and parts schematics and ensures these areas are being inventoried the day before the order is batched. 29. Responsible for any other duties as assigned by FueVC-store General Manager. QUALIFICATIONS To perform this job successfully, an individual must be able to perform each essential duty satisfactorily, and be able to train new employees how to perform the job duties as well. The requirements listed below are representative of the knowledge, skill, and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. The candidate must have the desire and ability to become a GM. EDUCATION and/or EXPERIENCE Some college education and a minimum of 2 years management, retail experience preferred. LANGUAGE SKILLS Must be able to communicate effectively with employees and staff of the Plaza, District and Corporate office. Must be able to read and write English. Must be able to read and follow procedures, safety guidelines etc. MATHEMATICAL SKILLS Position requires ability to complete basic business math computations and calculations. Must be able to understand and properly follow guidelines, when required by manufacturer instructions, to dilute or prepare cleaning or other solutions. REASONING ABILITY Must be competent in understanding and resolving customer and employee complaints and issues. Must understand cleaning and maintenance issues, as well as, safety issues and guidelines, and be able to follow, and ensure employees follow, these guidelines. CERTIFICATES, LICENSES, REGISTRATIONS First Aid Trained Specialist (FATS) Certification preferred. PHYSICAL DEMANDS The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. 1. Must be able to perform and understand all custodial function requirements. 2. Be able to positively challenge and build employees' skills for success. 3. Be able to act upon a situation and find a solution. 4. Be able to lift garbage cans generally weighing 60 pounds to the dumpster. 5. Be able to change soft drink containers and C02 tanks generally weighing 50 pounds. 6. Be able to handle propane sales including moving up to 100 pound propane containers. 7. Be able to place and climb ladders following all safety guidelines in order to change lights, repair roof units, or make other repairs. 8. Be able to clean shelves, glass doors, display cases, restrooms, fuel islands, pavement, and all other areas of the Plaza using applicable cleaners such as window cleaner, shelf cleaner, floor cleaner, and equipment such as mops, spray bottles, pressure sprayer etc. 9. Be able to handle a box cutter. This has a razor blade to cut boxes and must be used carefully. 10. Must be able to work around diesel, gasoline and propane fuels. 11. Must have knowledge of how to treat fuel related accidents. 12. Must be able to read, understand and follow chemical warnings and directions and to convey information effectively to maintenance and other staff. ensuring safety precautions are followed. 13. Must be able to perform the forgoing and all other related tasks assigned to subordinates. Company standards and policies must be followed at all times. The list of Requirements, Duties, and Responsibilities is not exhaustive, but is merely the most accurate list for the current job. Management reserves the right to revise the job descriptions and to require that other tasks be performed when the circumstances of the job change (for example, emergencies, personnel changes, workload or technical development). WORK ENVIRONMENT The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. The Flying J Travel Plaza environment is a fast paced retail convenience store and fuel sales environment, where service and hospitality are paramount. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. ENOCH BLACK, Plaintiff VS. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-1377 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT FLYING J, INC'S ANSWERS TO PLAINTIFF'S INTERROGATORIES - FIRST SET GENERAL OBJECTIONS Defendant Flying J., Inc asserts the following objections to each one of the following Interrogatories propounded by Plaintiff, and each such objection is incorporated by reference into each response to the Interrogatories. 1. Defendant Flying J., Inc objects to providing any information or producing documents not reasonably calculated to lead to the discovery of admissible evidence. 2. Defendant Flying J., Inc objects to any attempt to impose upon it any obligation in excess of the requirements for discovery stated in the Pennsylvania Rules of Civil Procedure. 3. Defendant Flying J., Inc objects to the extent these Interrogatories are overly broad, unduly burdensome, will cause unnecessary or unreasonable expense, and which exceed the number of Interrogatories permitted by Pa. R.C.P. 4003 - 4006 and 4011. Defendant does not intend to waive any rights by answering these Interrogatories and reserves all rights to object to further Interrogatories on this basis. 4. Defendant Flying J., Inc objects to the Instructions and Definitions to the extent that they seek to ascribe unusual meanings to commonly used words and phrases and to the extent that they require acts, procedures or forebearances from acting beyond the requirements of the Pennsylvania Rules of Civil Procedure. 5. Defendant Flying J., Inc objects to the Interrogatories to the extent that the responses to them may be construed as an admission by Defendant that any fact or circumstance alleged in the question occurred or existed, or as an agreement or concurrence by Defendant with Plaintiff's characterization of facts and circumstances pertinent to these actions. 25. State the schedule and method of maintaining and inspecting the refueling station in question. In detail, by date, provide the time and identity of the entity and/or individuals performing each task set forth below, that was actually done within two weeks of the incident at issue at the refueling station that Plaintiff was injured: cleaning, maintaining and inspecting or otherwise maintained the area, or warning others of dangerous conditions. ANSWER: Each refueling island is sprayed daily with a chemical compound intended to dissolve any diesel fuel on the ground. In addition, a detailed power cleaning of each refueling island is performed every Monday, Wednesday and Friday. Every Tuesday and Thursday a detailed power cleaning of the gasoline islands is performed. Cards are maintained at each refueling island which reflect that the pump was inspected. Such inspection occurs every 1/2 hour. Jack Baba, Facilities Manager, was is charge of overseeing this operation which was performed by outside maintenance personnel. After reasonable investigation, Defendant was unable to locate the cards reflecting dates and times of inspection. By way of further response, see policy and procedures manuals covering cleaning of refueling station attached as Exhibit "C" to Defendant's Response to Request for Production of Documents. 29. State by date each and every effort defendant undertook to assure that the refueling station in question was reasonably safe for use by persons, if information referred to in response to this interrogatory is contained in writing, state by date of each such writing, its titles, author, to whom it was sent and the identity of its present custodian. ANSWER: See cleaning schedule contained in answer to no 25. Respectfully submitted, METTE, EVANS & WOODSIDE By: 70i . Yanine e t. LD. N orth Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J Inc. and CFJ Properties, d/b/a Flying J Travel Plaza Date: ) al 1-4 o .,- VERIFICATION I, Bryn Marley, District Manager of Flying J Inc., have read the foregoing Answers to Interrogatories, and verify that the facts set forth are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. DATED: / ?- Bryn rley, 'ct Mana er Flying (o ENOCH BLACK, Plaintiff VS. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1377 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT CFJ PROPERTIES DB/A FLYING J TRAVEL PLAZA'S ANSWERS TO PLAINTIFF'S INTERROGATORIES - FIRST SET GENERAL OBJECTIONS Defendant CFJ Properties d/b/a Flying J Travel Plaza asserts the following objections to each one of the following Interrogatories propounded by Plaintiff, and each such objection is incorporated by reference into each response to the Interrogatories. 1. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to providing any information or producing documents not reasonably calculated to lead to the discovery of admissible evidence. 2. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to any attempt to impose upon it any obligation in excess of the requirements for discovery stated in the Pennsylvania Rules of Civil Procedure. 3. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the extent these Interrogatories are overly broad, unduly burdensome, will cause unnecessary or unreasonable expense, and which exceed the number of Interrogatories permitted by Pa. R.C.P. 4003 - 4006 and 4011. Defendant does not intend to waive any rights by answering these Interrogatories and reserves all rights to object to further Interrogatories on this basis. 4. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the Instructions and Definitions to the extent that they seek to ascribe unusual meanings to commonly used words and phrases and to the extent that they require acts, procedures or forebearances from acting beyond the requirements of the Pennsylvania Rules of Civil Procedure. 5. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the Interrogatories to the extent that the responses to them may be construed as an admission by Defendant that any fact or circumstance alleged in the question occurred or existed, or as an agreement or concurrence by Defendant with Plaintiff s characterization of facts and circumstances pertinent to these actions. 25. State the schedule and method of maintaining and inspecting the refueling station in question. In detail, by date, provide the time and identity of the entity and/or individuals performing each task set forth below, that was actually done within two weeks of the incident at issue at the refueling station that Plaintiff was injured: cleaning, maintaining and inspecting or otherwise maintained the area, or warning others of dangerous conditions. ANSWER: Each refueling island is sprayed daily with a chemical compound intended to dissolve any diesel fuel on the ground. In addition, a detailed power cleaning of each refueling island is performed every Monday, Wednesday and Friday. Every Tuesday and Thursday a detailed power cleaning of the gasoline islands is performed. Cards are maintained at each refueling island which reflect that the pump was inspected. Such inspection occurs every %i hour. Jack Baba, Facilities Manager, was is charge of overseeing this operation which was performed by outside maintenance personnel. After reasonable investigation, Defendant was unable to locate the cards reflecting dates and times of inspection. By way of further response, see policy and procedures manuals covering cleaning of refueling station attached as Exhibit "C" to Defendant's Response to Request for Production of Documents. 29, State by date each and every effort defendant undertook to assure that the refueling station in question was reasonably safe for use by persons, if information referred to in response to this interrogatory is contained in writing, state by date of each such writing, its titles, author, to whom it was sent and the identity of its present custodian. ANSWER: See cleaning schedule contained in answer to no 25. Respectfully submitted, METTE, EVANS & WOODSIDE By: Jo 7D n t quire Ct. I5741 401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J Inc. and CFJ Properties, d/b/a Flying J Travel Plaza Date:10 1 13 q$-- VERIFICATION I, Bryn Marley, District Manager of Flying J Inc., have read the foregoing Answers to Interrogatories, and verify that the facts set forth are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. DATED: 20z?p t - W Bryn Mar ct Manager Flying J c. CERTIFICATE OF SERVICE I certify that I am this day serving a copy of Defendant CFJ Properties d/b/a Flying J. Travel Plaza's Responses to Plaintiff's Request for Production of Documents upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Stephen G. Held, Esquire HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Respectfully submitted, TE WO SIDE By: - F. Yanine , squire Out Ct. I.D. N 5741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Defendants Flying J, Inc. and CFJ Properties d/b/a Flying J Travel Plaza Date: 432532v1 0 u 4 c? W E;NOCH BLACK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 04-1377 FLYING J INC., and CFJ PROPERTIES CIVIL ACTION - LAW d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED AFFIDAVIT OF JAMES DESTER 1, JAMES DESTER, being duly sworn, hereby depose and state as follows: 1. I am a member of the executive committee of CFJ Properties, a Utah general partnership ("CFJ"). 2. CFJ is a partnership formed February 1, 1991 between and among Douglas Oil Company of California ("Douglas"), a California corporation with offices at 600 North Dairy Ashford, Houston, Texas 77076; Big West Oil Company ("Big West"), a Delaware corporation with offices at 1104 Country Hills Drive, Ogden, Utah 84403, and Flying J Inc. ("Flying J"), a Utah corporation with offices at 1104 Country Hills Drive, Ogden, Utah 84403, as opertator. 3. CFJ owns a network of travel plazas located on interstate highways. 4. However, in accordance with the Partnership Agreement for CFJ, as amended, CFJ does not enter into the day-to-day operations of the travel plazas. The relevant page from the Partnership Agreement which so indicates is attached hereto as "Exhibit A". Under the Partnership Agreement, Flying J is designated as the operator of the partnership assets, including the travel plazas and is empowered to perform all acts necessary for the operation of the travel plazas. The relevant page from the Partnership Agreement so indicating is attached here to as "Exhibit B". 6. Under the Partnership Agreement, Flying J's responsibilities include: (a) Provide the necessary personnel to operate and maintain the plazas and to provide the necessary supervision to ensure that all operations are conducted in accordance with the Flying J Operations Manual; and (b) Periodically inspect the plazas for damage or other conditions which could affect the safe, efficient and economical operation of the plazas, and perform or cause to be performed such repairs to the plazas as may be required. The relevant pages from the Partnership Agreement so indicating are attached hereto as "F,xhibit C". Therefore, the CFJ partnership is not and has never been involved in the day-to- day operations of the Flying J Travel Plazas, including the one located at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. I hereby declare that under penalty of perjury, the facts stated in this Affidavit are personally known to me and that they are true. y: J es Dester Member, Executive Committee of CFJ Properties STATE OF UTAH COUNTY OF . SS.. On this, the flay of July, 2007, before me the subscriber personally appeared JAMES DESTER, who acknowledged himself to be a member of the Executive Committee of CFJ Properties, and that being authorized to do so as such Executive Committee Member executed the foregoing instrument for the purposes therein contained on behalf of the corporation. WITNESS my hand and seal the day and year aforesaid. AJ, N Publi MARILYN IU?SMUSSEN 1121 Ead Bum NO i oe, 2006 :ae?' state ri Utah L?xLn?b?? -N m x a D 1 PARTNERSHIP AGREEMENT 2 BETWEEN 3 DOUGLAS OIL COMPANY OF CALIFORNIA 4 AND 5 BIG WEST OIL COMPANY 6 AND 7 FLYING J INC. AS OPERATOR S On this 1st day of February, 1991, Douglas Oil 9 Company of California ("Douglas"), a California Corporation, 10 with offices at 600 North Dairy Ashford, Houston, Texas 11 77079, Big West Oil Company ("Big West"), a Delaware corpor- 12 ation with offices at 50 West 990 South, Brigham City, Utah, 13 and Flying J Inc. (Flying J"), a Utah corporation, with 14 offices at 50 West 990 South in Brigham City, Utah 84302 15 enter into this Agreement to form a partnership and provide 16 for the operation thereof in accordance with the terms and :17 conditions set forth. 18 RECITALS 19 Douglas and Big West are interested in entering 20 into a joint venture to own, lease, construct, and operate a 21 network of coast to coast Travel Plazas located on inter- 22 state highways. I In order to commence this joint venture Douglas 2 has contributed certain Travel Plazas which were previously 3 owned by Big West and its Affiliates and Flying J has 4 contributed its interest in certain other Travel Plazas 5 having a value equal to Conoco's contribution. 6 Big West and Douglas have agreed to form this 7 partnership (CFJ) to own the present and any future Travel 8 Plazas. 9 CFJ does not wish to enter into the day to day 10 operations of the Travel Plazas and acknowledges that Big 11 West and its Affiliates were the prior owners and Flying J 12 was the operator of the Travel Plazas and has an organiza- 13 tion in place to continue operations of the Travel Plazas in 14 accordance with the terms and conditions of this Agreement is ("Agreement"); and 16 IT IS HEREBY AGREED AS FOLLOWS: 2 ?J AFL t ?b?+ B 1 2 3 4 computing any Partners FMV Capital Account or share of profits, losses, other items, or distributions pursuant to any provision of this Agreement. 5 7.7. CORRESPONDENCE 6 All correspondence relating to the preparation and 7 filing of the Partnership's income tax returns, capital 8 accounts, and other tax matters shall-be forwarded to the 9 addresses in Article 18.5, with copies to: 10 Conoco Inc. .11 Income Tax Division 12 1000 South Pine 13 P. O. Box 1267 14 Ponca City, Oklahoma 74603 15 8. OPERATOR 16 8.1. DESIGNATION OF OPERATOR 17 Flying J is hereby designated as operator of the 18 Partnership Assets, subject to the terms hereof and the ;.9 direction of the CFJ Executive Committee, Operator,is 20 empowered to perform all acts necessary for the operation of 21 the Travel Plazas for the dispensing of fuel, food, lodging 22 and other services made available to the over the road 43 1 trucking industry and the interstate highway motoring public 2 generally in an efficient, economical manner consistent with 3 the generally accepted standards of such operations. 4 Subject to the approval of the Executive Committee, Operator 5 may contract with its Affiliates to perform all or any part 6 of its duties under this Agreement, provided that if an 7 Affiliate performs the work Operator shall remain respon- 8 sible for the performance. operator shall not use an 9 Affiliate to perform any biddable services, including but 10 not limited to construction services, unless such Affiliate 11 was the low bidder as determined at a bid opening at which 1.2 all eligible bidders were considered except as approved by 13 the Executive Committee. 14 8.2. OPERATOR'S DUTIES 7.5 The Operator shall perform the following duties: 1.6 a. Provide the necessary personnel to operate and 17 maintain the Plazas and to provide the necessary 18 supervision to ensure that all operations are conducted =9 in accordance with the Flying J operations manuals as 20 amended from time to time and approved by the Executive 21 Committee, and standard industry practice. 44 'k (bi _. . . 1 b. Acquire on behalf of and in the name of CFJ all 2 merchandise and goods for sale and operating supplies 3 necessary for the operation of the Plazas. 4 c. Administer the Gasoline and Diesel Supply Contracts 5 between CFJ and Flying J and CFJ and Conoco. 6 d. Periodically inspect the Plazas for damage or 7 other conditions which could affect the safe, efficient 8 and economical operation of the Plazas, and perform or 9 cause: to be performed such repairs to the Plazas as may 10 be required. :L1 e. Represent CFJ in contacts with government agencies 12 involving the physical operation and maintenance of the 13 Plazas, where required by applicable laws, regulations, 14 permits, conditions, or right of way agreements. 1.5 f. Acquire land, design and manage construction of 3.6 new Plazas. 17 g. Prepare budgets and forecasts as required by 38 Article 9 of this Agreement. 45 L.- , '- , 1 h. Keep appropriate books and records with respect to 2 the operations hereunder and provide the Partners with 3 periodic reports, statements and accounts with respect 4 to operations. 5 i. Arrange for engineering, professional, or techni- 6 cal services whether provided by Flying J, Douglas or 7 their affiliates or third parties. 8 j. Prepare and update operations, maintenance, 9 safely, and waste disposal procedures, and manuals as 10 necessary for the ongoing operation of the Plazas. 11 k. Train and update training of personnel involved in 12 the operation and maintenance of the Plazas. 13 1. Perform or arrange for the implementation of 14 capital projects after approval by the Executive 15 Comm_.ttee. 16 M. Comply in all material respects with all appli- 17 cable: laws, orders, and lawful regulations and maintain 18 in CI?J's name all necessary environmental, operation, 19 and construction permits and licenses. All permits and 20 licenses shall be updated and renewed to avoid 46 I violation of law or regulations provided that Flying J 2 may retain permits and licenses in its name until the 3 renewal thereof or where required by law or regulation 4 or as approved by the Executive Committee. 5 n. Be responsible for preventing liens being placed 6 on the Plazas as a result of Operator's action or 7 omisEion. 8 8.3. PARTNER COOPERATION 9 Operator may request the assistance of Douglas or 10 its affiliates in certain areas where they have expertise 1.1 which would be of benefit to CFJ. CFJ shall be charged for 12 such assistance at cost, including but not limited to, 1.3 salary and benefits for the time spent by its employees in 14 behalf of CFJ. Douglas shall notify CFJ in advance if it 15 intends to charge for a service. '.6 8.4. REMOVAL OF OPERATOR 17 If an Affiliate of Operator ceases to be a Part- 18 ner, or there is a material adverse change in the financial 19 condition of Operator, or if the controlling interest in 20 Flying J or Big West is sold to a third party, then Flying J 21 may be removed as Operator under this Agreement at the mole 47 1 option of Douglas. Operator may also be removed if it or 2 Big West has committed a material breach of this Agreement, 3 has been a.djudged a bankrupt, or has been grossly negligent 4 or engaged; in willful misconduct and Douglas or its nominee 5 shall automatically become Operator. The Executive Committee 6 may terminate the Operator with six (6) months prior written 7 notice if, in good faith, it can show that it can effect a 8 material improvement in profitability through a change in 9 the Operator or methods of operation -cyf the Plazas. An i0 improvement in profitability includes, but is not limited 11 to, the ability to operate the Plazas with lower costs than 12 the existing Operator. Any Partner may submit a bid to the 13 Executive Committee to operate the Plazas. 3.4 8.5. SELECTION OF SUCCESSOR OPERATOR 15 Upon the removal of the Operator, if Douglas 3.6 declines the operatorship, the Executive Committee shall 3.7 promptly select a new Operator. Any Partner removed as 3.8 Operator retains all other rights and obligations as a 19 Partner under the Partnership Agreement, so long as the 20 Partner remains a party to this Agreement- 48 1 8.6. REIMBURSEMENT AFTER TERMINATION 2 In the event of removal or withdrawal of the 3 Operator, such Operator shall be reimbursed promptly for all 4 charges, expenditures and liabilities incurred by it for 5 services rendered hereunder during its tenure as Operator. 6 Thereafter, such Operator shall forthwith deliver to the 7 Partner which succeeds it as operator all property of CFJ 8 and all records, accounts, audits and other data and infor- 9 mation in possession of the Operator pertaining to the 10 Partnership. it 9. BUDGETS AND FORECASTS 12 9.1. PREPARATION OF BUDGETS AND FORECASTS 13 By November 15 of each calendar year, the Operator 14 shall submit to the Executive Committee, for review and 15 approval, the following budgets and forecasts for the next 16 Year with respect to the operations of the Partnership. 17 9.1.1. CAPITAL COMMITMENT BUDGET 18 The Capital Commitment Budget shall consist 19 of an itemization of commitments for each capital 20 project in excess of $100,000 (large projects) and a 21 combined total of all items $100,000 (small projects) 49 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, via first class mail, as follows: Stephen G. Held, Esq. Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 METTE, EVANS & WOODSIDE Jo . Yanin , Esquire S . Ct. I.D. N 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax jfyaninek@mette.com Attorneys for Defendants Date: July , 2007 474491%1 4 -,A ti CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, via first class mail, as follows: Stephen G. Held, Esq. Handler Henning & Rosenberg, LLP 1300 Linglestown Road Harrisburg, PA 17110 METTE, EVANS & WOODSIDE r J F. Yani , Esquire p. Ct. I.D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax jfyaninek@mette.com Attorneys for Defendants Date: July 24, 2007 C" .v l_? ?--- <,.? W_J -ri ---{ { _. i.. f1l ;- . i`.i -: ? _? , ' r _ ,r ":; :; C Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Attorney for Plaintiff Fax: (717) 233-3029 E-mail: HELDO-hhrlaw.com ENOCH BLACK, Plaintiff V. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW, comes the Plaintiff, Michelle Dobbs, by and through her Attorneys, HANDLER, HENNING & ROSENBERG, LLP, by Stephen G. Held, Esquire, and files his Response in opposition to Defendants Motion for Summary Judgment, and in support of this Response represents: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 1 T i 5. Admitted. By way of further answer, Mr. Black fell when he stepped on something that was "very very slick" in the area where fuel is unloaded into underground storage tanks from tankers and in an area where there was the distinctive smell of diesel fuel. (See Defs.' Ex. 1, Dep. of Enoch Black, Nov. 28, 2006, p. 38, lines 8-15; p. 39, lines 16-25; p. 40, lines 1-13.) 6. Admitted. 7. Admitted. 8. Denied. The averments in Paragraph 6 of Defendants' Motion for Summary Judgment contain conclusions of law to which no response is required. By way of further answer, Defendants fail to state relevant Pennsylvania law governing premises liability. It is well established that it is not necessary to prove notice where the condition has been created by a defendant's own antecedent active conduct. Penn v. Isaly Dairy Co., 413 Pa. 548, 551, 198 A.2d 322, 324 (Pa. 1964); Finney v. G.C. Murphy Co., 406 Pa. 555, 178 A.2d 719 (Pa. 1962); Miller v. Lykens Borough Authority, 712 A.2d 800 (Pa. Commw. Ct. 1998) appeal denied 556 Pa. 715, 729 A.2d 1132 (Pa. 1998). 9. Denied. Defendants have rendered discovery incomplete. Subsequent to Plaintiff's counsel indicating discovery was complete, Defendants filed the instant motion which includes the affidavit of James Dester, a member of the executive committee of CFJ Properties. Mr. Dester describes CFJ Properties as a General Partnership between and among Douglas Oil Company of California, Big West Oil Company and Flying J, Inc.. Mr. Dester's sworn statements conflict with Defendants' Answers to the Complaint and Defendants Answers to Plaintiff's First Set of Interrogatories which describe CFJ Properties as a General Partnership between Flying J, Inc and Conoco Phillips. (See Defs.' Answer to Compl. 13; Defs.' Resp. to Interrog. No. 1, attached hereto as Exhibit "A.") Plaintiff should be given the opportunity for additional discovery to investigate the actual structure 2 of CFJ Properties. 10. Denied. The averments in Paragraph 10 of Defendants' Motion for Summary Judgment contain conclusions of law to which no response is required 11. Denied. By way of further answer, as explained in Paragraph 8 above, Mr. Black is not required to show notice because the dangerous condition in the fuel drop area was caused by defendants' employees. Mr. Baba testified that the daily fuel deliveries are made by Flying J drivers. (Defs.' Ex. 4, Dep. of Jack N. Baba, March 15, 2006, p. 15:19- 25; See also Fuel Area Procedures p. 23, attached to Defs.' Resp. to Interrog. No. 25 as Ex. C, and attached hereto as Exhibit "B".) 12. Denied. Plaintiff's Deposition transcript must be read in its entirety. Defendants fail to mention that the Mr. Black did provide testimony that could lead a reasonable juror to conclude that he had slipped on diesel fuel: Q. Okay. My question to you, Mr. Black, is do you know what you fell on or do you know what caused you to fall? A. Whatever it was very, very slick. And the only thing I know of that is that slick is diesel fuel and water. Q. As we sit here today do you know that you fell on diesel fuel and water? A. I know I fell on a slick substance in that area of Flying J where they dump the fuel into the underground tanks from their tankers. 0. So did you see anything around where you fell that would have indicated you fell on fuel and water? A. i saw plenty of water. I don't know whether there was fuel there with it. There had to be something there with it. water is not that slick. Q. Other than water did you have any other substance on your clothes or your 3 I f shoes or your pants that you know of? A. I smelled diesel fuel. It has a very distinctive smell. Q. Where did you smell it? A. There. Q. Where is there? A. Where I fell. Q. Did you smell it on your clothes? A. Not necessarily, no. I could not tell whether it was on my clothes or where it was at, but it was in the area. 0. When you say it was in the area, what area did you say that you smelled diesel fuel in, in or about? A. All I could smell is while I was laying there on the ground. That's all I remember. (Defs.' Ex. 1, Black Dep. p. 38:5-40:13.) Furthermore, Defendants own employees provide evidence that Mr. Black fell as a result of diesel fuel. James Yeager, Flying J's merchandise manager at the time of the incident, testified that there was residue of diesel fuel on the surface of the cement and equated it to how residue on a highway is brought up when it rains. The accident investigation form, completed by Mr. Yeager, describes the scene of the fall as "rain water mixed with diesel fuel on souls (sic) of shoes." Under the weather conditions section of the accident investigation form Mr. Yeager filled in, "wet pavement & fuel. " (See Yeager Dep. p. 18:1-8 and Ex. 1, Accident and Investigation Form attached thereto, March 14, 2006, attached hereto as Exhibit "C.") 13. Denied. Ms. Koopman's deposition transcript must be read in its entirety. Significantly, Defendants fail to include that Ms. Koopman also testified that upon learning of Mr. Black's fall, her only involvement in the incident was to go out to the area where Mr. Black had fallen and that she "thinks" she went back and called an ambulance. (Defs.' Ex. 4 3, Koopman Dep., March 15, 2006, p. 9:6-9.) Later in her deposition, Ms. Koopman verified that she was only on the scene a couple of minutes. (Defs.' Ex. 3, Koopman Dep. p. 14:12-16.) Ms. Koopman's testimony indicates that although she was relief manager at the time of the incident, a position she describes as merely a glorified cashier (Id. at 7:12-15), she did not undertake to evaluate the scene of Mr. Black's fall in detail. She does not remember how she learned of the fall (Id. at 9:3-5), she did not personally ask Mr. Black how he fell (Id. at 10:12-15), she did not record the names of people at the scene, (Id. 13:22-25:14-1), she did not take note as to the type of footwear Mr. Black was wearing when he fell, (Id. at 15:6-8), and she was not involved in filling out the accident report. (Id. at 14:21-23.) Considering Ms. Koopman's testimony in its entirety, a jury could reasonably conclude that Ms. Koopman was unaware of any diesel fuel in the area of Mr. Black's fall because she took no action to investigate the incident, not because the diesel fuel did not exist. Regardless of the interpretation of Ms. Koopman's testimony, on its face it provides that questions of fact exist as to whether diesel fuel was on the ground in the area where Mr. Black fell. (See Defs.' Ex. 1, Black Dep. p. 38:5-40:13 (describing smelling diesel fuel while lying on the ground after he fell). 14. Denied. Clearly Plaintiff has put forth evidence that he slipped on diesel fuel. (See Defs.' Ex. 1, Black Dep. p. 38:5-40:13; Pl.'s Ex. C, Yeager Dep. p. 18:1-8.) As explained in Paragraph 8 above, the Plaintiff is not required to prove notice in a situation where the Defendants' employees are responsible for creating the danger. In these situations, the defendant is charged with actual notice of the dangerous condition. Mr. Baba testified that fuel deliveries are made by Flying J drivers (Defs. Ex. 4, Baba Dep. p. 15:19-25.) It can therefore be reasonably inferred that a fuel delivery by Flying J employees were responsible for the diesel fuel being in the area where Mr. Black slipped and fell. See Clark v. Glosser Bros. Department Stores, 156 Pa. Super. 193, 39 A.2d 733 (1944). If it is determined that drivers other than defendants' employees are responsible 5 for fuel deliveries, the Defendants have a duty to take "reasonable precautions against harmful third party conduct that might be reasonably anticipated." Ovitsky v. Capital Citv Economic Development, 846 A.2d 124, 126 (Pa. Super. 2004) (relying on Restatement (Second) of Torts § 344). Clearly this presents a question of fact as to whether Defendants should have anticipated that diesel fuel to be on the parking lot surface as a result of the storage tank refilling process, and whether Defendants took reasonable precautions to prevent this harmful situation. Although Plaintiff has provided evidence that the source of the diesel fuel was from the refueling process by Defendants employees, he is not required to establish the exact source of the diesel fuel. It is well settled in Pennsylvania that "where plaintiffs seek to recover damages for personal injuries caused by negligence in creating and maintaining a dangerous condition, they are not required to prove the exact manner in which the condition developed." Penn at 551,198 A.2d 324. See also Breskin v. 535 Fifth Avenue, 381 Pa. 461,463, 113 A.2d 316, 318 (1955) (opining that although parts of Plaintiff's testimony did not fix with exactitude the cause of her fall or the exact spot, her testimony would permit a finding of the foregoing, and the matter was for the jury to determine) (emphasis added). 15. Denied. Plaintiffs have put forth evidence that Defendants did not perform scheduled maintenance in the fuel drop area, and that the area was only inspected once a day by Mr. Baba, the facilities manager, and not at a scheduled time. Furthermore, Mr. Baba testified that he inspects the area everyday. (Defs.' Ex. 4, Baba Dep. p. 13:5-17.) However, Mr. Baba did not testify as to the inspection procedures on days he does not work, or if inspection of the fuel drop area is even performed on the days he does not work. Significantly, Mr. Baba testified that he does not remember if he worked on the day of the incident and testified that he was not working at the time Mr. Black fell. (Defs. Ex. 4, Baba Dep. p. 11:2-6.) Clearly, Mr. Baba's testimony presents unanswered questions of fact as to the maintenance of the fuel drop area. 6 16. Denied. Plaintiff, after reasonable investigation, presently lacks sufficient knowledge and/or information to admit or deny the allegations contained in the corresponding paragraph of Defendants Motion and strict proof thereof is demanded at trial, if deemed material. By way of further answer, the fact that Defendants never had a prior spill is irrelevant as to the duty Defendants owned Mr. Black on April 9, 2002. Defendants had a duty to keep the fuel drop area free of dangerous conditions and/or to warn Mr. Black and other patrons of potential dangerous conditions in the fuel drop area. 17. Admitted in part and Denied in part. Again, Mr. Baba's deposition must be read in its entirety. Although it is admitted that Mr. Baba testified that he inspects the fuel drop area daily, he could not provide when he inspected it on the day of Mr. Black's injury, or if he even worked on the day of the incident. (Defs.' Ex. 4, Baba Dep. p. 11;2-3), Furthermore, Mr. Baba provided no information concerning who, if anyone, inspects the area on the days he does not work. (Defs. Ex. 4, Baba Dep. p. 13:9-17.) 18. Denied. Defendants are describing the maintenance and inspection procedures performed on the refueling islands, the area on Defendants' premises where customers purchase fuel. Mr. Black's fall occurred in the fuel drop area; the area where tankertrucks, driven by Defendants' drivers, refill Defendants' underground storage tanks. (Defs.' Ex. 4, Baba Dep. p. 13:5-11; 15:19-25.) Notably, this was an area described as being approximately 80 feet away from the refueling islands. (Defs.' Ex. 4, Baba Dep. p. 35:13-36-3.) Defendants' response to Interrogatory Number 25 is relevant only to show the disparity between the maintenance that is performed in the area of the refueling islands and that which is performed, or rather, not performed, in the fuel drop area. 19. Denied. Plaintiff has produced evidence of negligence on the part of the Defendants. It is undisputed that the Plaintiff was a business invitee to whom the Defendants owed the highest duty of care. Camprisi v. Acme Markets. Inc., 915 A.2d 117 (Pa. Super 2006). it is also undisputed that the Plaintiff suffered injuries as a result of 7 slipping and falling on Defendants premises. The Plaintiff has put forth evidence from which a reasonable jury could conclude that diesel fuel was allowed to remain in the fuel drop area where Mr. Black fell, and that the source of the fuel was the result of fuel deliveries made by Defendants' truck drivers. 20. Denied. The averments in Paragraph 20 of Defendants' Motion for Summary Judgment contain conclusions of law to which no response is required. By way of further answer, Plaintiff has clearly come forward with genuine issues of fact and Summary Judgment at this stage would be improper. 21. Denied. Plaintiff, after reasonable investigation, presently lacks sufficient knowledge and/or information to admit or deny the allegations contained in the corresponding paragraph of Defendants Motion and strict proof thereof is demanded at trial. By way of further answer, Defendants' Answer to the Complaint and Responses to Plaintiffs First Set of Interrogatories describe CFJ as a General Partnership between Flying J, Inc. and Conoco Phillips. (See PI. Ex. "A.") Defendants themselves have created a question of fact as to the ownership and control of the Flying J Travel Plaza. 22. Denied. Plaintiff, after reasonable investigation, presently lacks sufficient knowledge and/or information to admit or deny the allegations contained in the corresponding paragraph of Defendants Motion and strict proof thereof is demanded at trial, if deemed material. 23. Denied. The partnership agreement must be read in its entirety. Furthermore, Defendants may not rely on the unverified and uncertified portions of the alleged partnership agreement attached to Mr. Dester's affidavit. See Pa.R.C.P. No. 235.4. Without documentation meeting the standard of admissible evidence, Defendants are left with only oral testimony to support their Motion for Summary Judgment. Under the Nanty-Glo rule, if the moving party has supported a summary judgment motion with oral 8 testimony only, a genuine issue of material fact remains because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testify at trial. See Pa.R.C.P. 1035.2, Note. Furthermore, Defendants' Answer to the Complaint and responses to interrogatories describe a partnership among entities different from those Mr. Dester describes in his affidavit. (See PI. Ex. A.) Clearly issues of fact exist which preclude summary judgment in favor of the Defendant, CFJ Properties. 24. Denied. See Answer to Paragraph 23 above. 25. Denied. See Answer to Paragraph 23 above. 26. Denied. See Answer to Paragraph 23 above. 27. Denied. It is undisputed that Defendant CFJ Properties is the owner of travel plaza premises, and Defendants have not put forth admissible evidence as to the lack of possession, management and/or control of the travel plaza. Clearly, genuine issues of fact remain as to the structure of CFJ Properties and its role in the operations and control of the travel plaza. 28. Denied. The averments in Paragraph 28 of Defendants' Motion for Summary Judgment contain conclusions of law to which no response is required. As described in detail throughout Plaintiff's Response, Plaintiff has demonstrated that genuine issues of material fact remain as to the negligence of Defendants, Flying J, Inc. and CFJ Properties. WHEREFORE, Plaintiff, Enoch Black, requests that this Honorable Court deny Defendants' Motion for Summary Judgment because the record provides that genuine issues of material fact exist as to the negligence of moving Defendants. Respectfully submitted, oete ? l6 d HANDLER, HENNING & ROSENBERG, LLP By h G. Held, Esquire I.D. No. 72663 9 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties of counsel or record by depositing a copy of the same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on August 10, 2007, addressed to the following: John F. Yaninek, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Date August 10, 2007 BY I.D. No.: 87911 1300 Linglestown Road Harrisburg, PA 171 10 (717) 238-2000 Attorney for Plaintiff Respectfully submitted, HANDLER, HENNING & ROSENBERG, LLP 2 f Jas C. Imler, Esquire p ENOCH BLACK, Plaintiff VS. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-1377 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT FLYING J, INC'S ANSWERS TO PLAINTIFF'S INTERROGATORIES - FIRST SET GENERAL OBJECTIONS Defendant Flying J., Inc asserts the following objections to each one of the following Interrogatories propounded by Plaintiff, and each such objection is incorporated by reference into each response to the Interrogatories. 1. Defendant Flying J., Inc objects to providing any information or producing documents not reasonably calculated to lead to the discovery of admissible evidence. 2. Defendant Flying J., Inc objects to any attempt to impose upon it any obligation in excess of the requirements for discovery stated in the Pennsylvania Rules of Civil Procedure. 3. Defendant Flying J., Inc objects to the extent these Interrogatories are overly broad, unduly burdensome, will cause unnecessary or unreasonable expense, and which exceed the number of Interrogatories permitted by Pa. R.C.P. 4003 - 4006 and 4011. Defendant does not intend to waive any rights by answering these Interrogatories and reserves all rights to object to further Interrogatories on this basis. 4. Defendant Flying J., Inc objects to the Instructions and Definitions to the extent that they seek to ascribe unusual meanings to commonly used words and phrases and to the extent that they require acts, procedures or forebearances from acting beyond the requirements of the Pennsylvania Rules of Civil Procedure. 5. Defendant Flying J., Inc objects to the Interrogatories to the extent that the responses to them may be construed as an admission by Defendant that any fact or circumstance alleged in the question occurred or existed, or as an agreement or concurrence by Defendant with Plaintiff s characterization of facts and circumstances pertinent to these actions. ANSWERS TO INTERROGATORIES 1. State the legal name under which you do business, including any corporate or business names associated with the maintenance, ownership, and control of Flying J Travel Plaza, 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania, 17013. ANSWER: CFJ Properties is a General Partnership between Flying J, Inc. and Conoco Phillips. Flying J., Inc. manages, but does not own, the Travel Plaza. ENOCH BLACK, Plaintiff VS. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-1377 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT CFJ PROPERTIES DB/A FLYING J TRAVEL PLAZA'S ANSWERS TO PLAINTIFF'S INTERROGATORIES - FIRST SET GENERAL OBJECTIONS Defendant CFJ Properties d/b/a Flying J Travel Plaza asserts the following objections to each one of the following Interrogatories propounded by Plaintiff, and each such objection is incorporated by reference into each response to the Interrogatories. 1. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to providing any information or producing documents not reasonably calculated to lead to the discovery of admissible evidence. 2. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to any attempt to impose upon it any obligation in excess of the requirements for discovery stated in the Pennsylvania Rules of Civil Procedure. 3. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the extent these Interrogatories are overly broad, unduly burdensome, will cause unnecessary or unreasonable expense, and which exceed the number of Interrogatories permitted by Pa. R.C.P. 4003 - 4006 and 4011. Defendant does not intend to waive any rights by answering these Interrogatories and reserves all rights to object to further Interrogatories on this basis. 4. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the Instructions and Definitions to the extent that they seek to ascribe unusual meanings to commonly used words and phrases and to the extent that they require acts, procedures or forebearances from acting beyond the requirements of the Pennsylvania Rules of Civil Procedure. 5. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the Interrogatories to the extent that the responses to them may be construed as an admission by Defendant that any fact or circumstance alleged in the question occurred or existed, or as an agreement or concurrence by Defendant with Plaintiff's characterization of facts and circumstances pertinent to these actions. ANSWERS TO INTERROGATORIES 1. State the legal name under which you do business, including any corporate or business names associated with the maintenance, ownership, and control of Flying J Travel Plaza, 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania, 17013. ANSWER: CFJ Properties is a General Partnership between Flying J, Inc. and Conoco Phillips. Flying J., Inc. manages, but does not own, the Travel Plaza. Ex?? ?? i? 1? ENOCH BLACK, Plaintiff VS. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-1377 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT CFJ PROPERTIES DB/A FLYING J TRAVEL PLAZA'S ANSWERS TO PLAINTIFF'S INTERROGATORIES - FIRST SET GENERAL OBJECTIONS Defendant CFJ Properties d/b/a Flying J Travel Plaza asserts the following objections to each one of the following Interrogatories propounded by Plaintiff, and each such objection is incorporated by reference into each response to the Interrogatories. 1. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to providing any information or producing documents not reasonably calculated to lead to the discovery of admissible evidence. 2. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to any attempt to impose upon it any obligation in excess of the requirements for discovery stated in the Pennsylvania Rules of Civil Procedure. 3. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the extent these Interrogatories are overly broad, unduly burdensome, will cause unnecessary or unreasonable expense, and which exceed the number of Interrogatories permitted by Pa. R.C.P. 4003 - 4006 and 4011. Defendant does not intend to waive any rights by answering these Interrogatories and reserves all rights to object to further Interrogatories on this basis. 4. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the Instructions and Definitions to the extent that they seek to ascribe unusual meanings to commonly used words and phrases and to the extent that they require acts, procedures or forebearances from acting beyond the requirements of the Pennsylvania Rules of Civil Procedure. 5. Defendant CFJ Properties d/b/a Flying J Travel Plaza objects to the Interrogatories to the extent that the responses to them may be construed as an admission by Defendant that any fact or circumstance alleged in the question occurred or existed, or as an agreement or concurrence by Defendant with Plaintiffs characterization of facts and circumstances pertinent to these actions. 25. State the schedule and method of maintaining and inspecting the refueling station in question. In detail, by date, provide the time and identity of the entity and/or individuals performing each task set forth below, that was actually done within two weeks of the incident at issue at the refueling station that Plaintiff was injured: cleaning, maintaining and inspecting or otherwise maintained the area, or warning others of dangerous conditions. ANSWER: Each refueling island is sprayed daily with a chemical compound intended to dissolve any diesel fuel on the ground. In addition, a detailed power cleaning of each refueling island is performed every Monday, Wednesday and Friday. Every Tuesday and Thursday a detailed power cleaning of the gasoline islands is performed. Cards are maintained at each refueling island which reflect that the pump was inspected. Such inspection occurs every lh hour. Jack Baba, Facilities Manager, was is charge of overseeing this operation which was performed by outside maintenance personnel. After reasonable investigation, Defendant was unable to locate the cards reflecting dates and times of inspection. By way of further response, see policy and procedures manuals covering cleaning of refueling station attached as Exhibit "C" to Defendant's Response to Request for Production of Documents. FUEL AREA PROCEDURES Table of Contents Fuel Islands And Outside Maintenance Procedures Servicing the Fuel Island Each Shift ............................. .. Fuel Area Page 1 Concrete/Dispenser Cleaning Procedures .................... .. Fuel Area Page 2 Products and Equipment Needed ............................. .. Fuel Area Page 2 Daily Island Concrete Routine ................................... .. Fuel Area Page 3 Monthly/Emergency Spot Cleaning .......................... .. Fuel Area Page 5 Daily Fuel Dispenser Cleaning Routine .................... .. Fuel Area Page 5 Cleaning Routine for Other Outside ......................... ...Fuel Area Page 6 Cold Weather Island Cleaning ....................:.............. .. Fuel Area Page 6 Hose End Power Wash Gun ..................:....................... .. Fuel Area Page 7 Using Your Pressure Washer ........................................ .. Fuel Area Page 8 Maintaining Your Pressure Washer .............................. .. Fuel Area Page 9 Island Cleaning Daily and Shift Checklist ...................... Fuel Area Page 10 Maintaining Our Cardreaders The Express Pay Cardreader System ....................... Fuel Area Page 11 Cleaning and Maintaining Cardreaders ..................... Fuel Area Page 13 Daily Fuel Cut-off Procedures How to Read the Fuel Pumps' Meters ....................... Fuel Area Page 14 Mechanical and Tank Reading form .......................... Fuel Area Page 15 How to Read (or "Stick") the Tanks ........................... Fuel Area Page 16 Color Codes for Fuel Covers form ............................. Fuel Area Page 18 How to Read the Propane Tank ................................ Fuel Area Page 20 Monthly Fuel Cut-off Procedures ................................... Fuel Area Page 21 How to Receive and Treat a Fuel Delivery Preparing for Deliveries ............................................. Fuel Area Page 22 Assisting with Deliveries ............................................ Fuel Area Page 23 Fuel Delivery and Additive Log form .......................... Fuel Area Page 25 Fuel Delivery Contamination Recovery .......................... Fuel Area Page 26 Preparation and Training for a FDCR ........................ Fuel Area Page 28 Propane Filling Instructions and Safety Data Foreword ................................................................... Fuel Area Page 29 What is Propane? ...................................................... Fuel Area Page 29 The Propane Dispenser ............................................. Fuel Area Page 29 Preliminary Filling Procedures ................................... Fuel Area Page 30 Revised 2/2/04 DOT Cylinder Inspection ........................................... Fuel Area Page 31 ASME Tank inspection .............................................. Fuel Area Page 32 Filling Propane by Volume or Weight ........................ Fuel Area Page 33 Calculations for Weight Capacity ............................... Fuel Area Page 35 Calculations Required for DOT Cylinders ............. Fuel Area Page 35 Calculations Required for ASME Cylinders .......... Fuel Area Page 36 OPD Propane Requirements ......................................... Fuel Area Page 40 Checking for Leaks and Testing for Calibration ............. Fuel Area Page 42 How to Check a Pump Dispenser .............................. Fuel Area Page 42 How to Test a Pump Dispenser ................................. Fuel Area Page 43 Gasoline Filter Changing Procedures Fuel Area Page 44 Diesel Filter Changing Procedures ................................ Fuel Area Page 49 Changing Fuel Prices ..................................................... Fuel Area Page 54 Daily Oil/Water Seperator Measurements OWS with Side Tank ...... .................. Fuel Area Page 55 OWS without Side Tank ............................................ Fuel Area Page 55 Daily OWS Measurements form ................................. Fuel Area Page 56 Weekly Monitoring of Groundwater or Vapor Monitoring Wells ............................................................. Fuel Area Page 57 Weekly Monitoring of...Wells form ............................ Fuel Area Page 58 Weekly Monitoring of Wells Tracking Sheet .............. Fuel Area Page 59 If any updates about the information in this section are sent to you, please list them here and include them in the UPDATES section: Revised 2/2/04 high volume business, with 20-30 tankers delivering fuel per day. Other plazas have a much lower volume of deliveries. 1. FJ2000+2 is always stored in a secured (locked) area, away from main traffic patterns on the plaza. To prepare for deliveries, you need to go to that storage area and fill FJ2000+2 from the additive tank into containers with "FJ2000+2 Dosage Chart" labels. FJ2000+2 is a powerful, and expensive, additive. Be careful not to spill the FJ2000+2 or to overfill the containers! IMPORTANT: Before handling FJ2000+2, read the Material Safety Data Sheets (M.S.D.S.) on this additive in the Hazardous Communications Manual (HCM) at your plaza. 2. At plazas with a high volume of deliveries, your responsibility is to keep a supply of FJ2000+2 containers filled and ready for drivers in a secured area by the tanks. Check the supply often and restock as needed. 3. At plazas with a lower volume of deliveries, you may be informed that approximately so many gallons of diesel are going to be delivered and asked to pre-fill containers for that amount. The chart on the container label makes pre-filling the containers with the right amount a quick and easy project Be sure to note that you add ounces of FJ2000+2 per gallon of diesel. And be sure to keep the containers in a secure place until the delivery arrives. 4. When a transport delivery arrives, the driver will notify the fuel desk using a CB or in person, and a cashier will announce the delivery over the public address system. If you are assigned to assist with deliveries, you then report to the tank area at once, taking the necessary keys with you. Assisting with Deliveries 1. Fuel deliveries to our plazas are made by drivers working for Flying J, or supervised by Flying J drivers. These drivers are responsible for following the correct procedures for treating diesel deliveries with FJ2000+2 and recording the deliveries on the AFlying J Fuel Delivery and Additive Log@ form (see illustration). Sometimes, however, there may be a driver who is unfamiliar with Flying J procedures. This is why your knowledge of these procedures and your assistance Revised 2/2/04 Fuel Area Procedures, Page 23 ENOCH BLACK, Plaintiff VS. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-1377 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT FLYING J, INC'S ANSWERS TO PLAINTIFF'S INTERROGATORIES - FIRST SET GENERAL OBJECTIONS Defendant Flying J., Inc asserts the following objections to each one of the following Interrogatories propounded by Plaintiff, and each such objection is incorporated by reference into each response to the Interrogatories. 1. Defendant Flying J., Inc objects to providing any information or producing documents not reasonably calculated to lead to the discovery of admissible evidence. 2. Defendant Flying J., Inc objects to any attempt to impose upon it any obligation in excess of the requirements for discovery stated in the Pennsylvania Rules of Civil Procedure. 3. Defendant Flying J., Inc objects to the extent these Interrogatories are overly broad, unduly burdensome, will cause unnecessary or unreasonable expense, and which exceed the number of Interrogatories permitted by Pa. R.C.P. 4003 - 4006 and 4011. Defendant does not intend to waive any rights by answering these Interrogatories and reserves all rights to object to further Interrogatories on this basis. 4. Defendant Flying J., Inc objects to the Instructions and Definitions to the extent that they seek to ascribe unusual meanings to commonly used words and phrases and to the extent that they require acts, procedures or forebearances from acting beyond the requirements of the Pennsylvania Rules of Civil Procedure. 5. Defendant Flying J., Inc objects to the Interrogatories to the extent that the responses to them may be construed as an admission by Defendant that any fact or circumstance alleged in the question occurred or existed, or as an agreement or concurrence by Defendant with Plaintiff's characterization of facts and circumstances pertinent to these actions. 25. State the schedule and method of maintaining and inspecting the refueling station in question. In detail, by date, provide the time and identity of the entity and/or individuals performing each task set forth below, that was actually done within two weeks of the incident at issue at the refueling station that Plaintiff was injured: cleaning, maintaining and inspecting or otherwise maintained the area, or warning others of dangerous conditions. ANSWER: Each refueling island is sprayed daily with a chemical compound intended to dissolve any diesel fuel on the ground. In addition, a detailed power cleaning of each refueling island is performed every Monday, Wednesday and Friday. Every Tuesday and Thursday a detailed power cleaning of the gasoline islands is performed. Cards are maintained at each refueling island which reflect that the pump was inspected. Such inspection occurs every V2 hour. Jack Baba, Facilities Manager, was is charge of overseeing this operation which was performed by outside maintenance personnel. After reasonable investigation, Defendant was unable to locate the cards reflecting dates and times of inspection. By way of further response, see policy and procedures manuals covering cleaning of refueling station attached as Exhibit "C" to Defendant's Response to Request for Production of Documents. FUEL AREA PROCEDURES Table of Contents Fuel Islands And Outside Maintenance Procedures Servicing the Fuel Island Each Shift ............................... Fuel Area Page 1 Concrete/Dispenser Cleaning Procedures .................... .. Fuel Area Page 2 Products and Equipment Needed ............................. .. Fuel Area Page 2 Daily Island Concrete Routine ................................... .. Fuel Area Page 3 Monthly/Emergency Spot Cleaning .......................... .. Fuel Area Page 5 Daily Fuel Dispenser Cleaning Routine .................... .. Fuel Area Page 5 Cleaning Routine for Other Outside ......................... .. Fuel Area Page 6 Cold Weather Island Cleaning .................................. .. Fuel Area Page 6 Hose End Power Wash Gun .......................................... .. Fuel Area Page 7 Using Your Pressure Washer ........................................ .. Fuel Area Page 8 Maintaining Your Pressure Washer .............................. .. Fuel Area Page 9 Island Cleaning Daily and Shift Checklist ...................... Fuel Area Page 10 Maintaining Our Cardreaders The Express Pay Cardreader System ....................... Fuel Area Page 11 Cleaning and Maintaining Cardreaders ..................... Fuel Area Page 13 Daily Fuel Cut-off Procedures How to Read the Fuel Pumps' Meters ....................... Fuel Area Page 14 Mechanical and Tank Reading form .......................... Fuel Area Page 15 How to Read (or "Stick") the Tanks ........................... Fuel Area Page 16 Color Codes for Fuel Covers form ............................. Fuel Area Page 18 How to Read the Propane Tank ................................ Fuel Area Page 20 Monthly Fuel Cut-off Procedures ................................... Fuel Area Page 21 How to Receive and Treat a Fuel Delivery Preparing for Deliveries ............................................. Fuel Area Page 22 Assisting with Deliveries ............................................ Fuel Area Page 23 Fuel Delivery and Additive Log form .......................... Fuel Area Page 25 Fuel Delivery Contamination Recovery .......................... Fuel Area Page 26 Preparation and Training for a FDCR ........................ Fuel Area Page 28 Propane Filling Instructions and Safety Data Foreword ................................................................... Fuel Area Page 29 What is Propane? ...................................................... Fuel Area Page 29 The Propane Dispenser ............................................. Fuel Area Page 29 Preliminary Filling Procedures ................................... Fuel Area Page 30 Revised 2/2/04 DOT Cylinder Inspection ........................................... Fuel Area Page 31 ASME Tank Inspection .............................................. Fuel Area Page 32 Filling Propane by Volume or Weight ........................ Fuel Area Page 33 Calculations for Weight Capacity ............................... Fuel Area Page 35 Calculations Required for DOT Cylinders ............. Fuel Area Page 35 Calculations Required for ASME Cylinders .......... Fuel Area Page 36 OPD Propane Requirements ......................................... Fuel Area Page 40 Checking for Leaks and Testing for Calibration ............. Fuel Area Page 42 How to Check a Pump Dispenser .............................. Fuel Area Page 42 How to Test a Pump Dispenser ................................. Fuel Area Page 43 Gasoline Filter Changing Procedures ............................ Fuel Area Page 44 Diesel Filter Changing Procedures ................................ Fuel Area Page 49 Changing Fuel Prices ..................................................... Fuel Area Page 54 Daily Oil/Water Seperator Measurements OWS with Side Tank ................................................. Fuel Area Page 55 OWS without Side Tank ............................................ Fuel Area Page 55 Daily OWS Measurements form ................................ Fuel Area Page 56 Weekly Monitoring of Groundwater or Vapor Monitoring Wells ............................................................. Fuel Area Page 57 Weekly Monitoring of...Wells form ............................ Fuel Area Page 58 Weekly Monitoring of Wells Tracking Sheet .............. Fuel Area Page 59 If any updates about the information in this section are sent to you, please list them here and include them in the UPDATES section: Revised 2/2/04 high volume business, with 20-30 tankers delivering fuel per day. Other plazas have a much lower volume of deliveries. 1. FJ2000+2 is always stored in a secured (locked) area, away from main traffic patterns on the plaza. To prepare for deliveries, you need to go to that storage area and fill FJ2000+2 from the additive tank into containers with "FJ2000+2 Dosage Chart" labels. FJ2000+2 is a powerful, and expensive, additive. Be careful not to spill the FJ2000+2 or to overfill the containers! IMPORTANT: Before handling FJ2000+2, read the Material Safety Data Sheets (M.S.D.S.) on this additive in the Hazardous Communications Manual (HCM) at your plaza. 2. At plazas with a high volume of deliveries, your responsibility is to keep a supply of FJ2000+2 containers filled and ready for drivers in a secured area by the tanks. Check the supply often and restock as needed. 3. At plazas with a lower volume of deliveries, you may be informed that approximately so many gallons of diesel are going to be delivered and asked to pre-fill containers for that amount. The chart on the container label makes pre-filling the containers with the right amount a quick and easy project. Be sure to note that you add ounces of FJ2000+2 per gallon of diesel. And be sure to keep the containers in a secure place until the delivery arrives. 4. When a transport delivery arrives, the driver will notify the fuel desk using a CB or in person, and a cashier will announce the delivery over the public address system. If you are assigned to assist with deliveries, you then report to the tank area at once, taking the necessary keys with you. Assisting with Deliveries 1. Fuel deliveries to our plazas are made by drivers working for Flying J, or supervised by Flying J drivers. These drivers are.responsible for following the correct procedures for treating diesel deliveries with FJ2000+2 and recording the deliveries on the AFlying J Fuel Delivery and Additive Log@ form (see illustration). Sometimes, however, there may be a driver who is unfamiliar with Flying J procedures. This is why your knowledge of these procedures and your assistance Revised 2/2/04 Fuel Area Procedures, Page 23 ) ?A \A \ )a -7 . • JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA I ENOCH BLACK, PLAINTIFF VS NO. 04-1377 FLYING J INC., AND CFJ PROPERTIES D/B/A FLYING J TRAVEL PLAZA, DEFENDANTS DEPOSITION OF: JAMES 0. YEAGER TAKEN BY: PLAINTIFF BEFORE: DONNA J. FOX, REPORTER NOTARY PUBLIC DATE: MARCH 14, 2006, 10:00 A.M. PLACE: METTE, EVANS & WOODSIDE 3401 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: HANDLER, HENNING & ROSENBERG, LLP BY: STEPHEN G. HELD, ESQUIRE FOR - PLAINTIFF METTE, EVANS & WOODSIDE BY: JOHN F. YANNIEK, ESQUIRE FOR - DEFENDANTS Geiger & Loria Reporting Service - 800-222-4577 JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC 2 1 TABLE OF CONTENTS 2 WITNESS 3 FOR PLAINTIFF DIRECT CROSS 4 James 0. Yeager 3 -- 5 6 7 8 9 10 11 12 13 EXHIBITS PRODUCED 14 YEAGER EXHIBIT NO. AND MARKED 15 1 - Flying J Inc. Accident and Investigation Form, Injuries to the Public 6 16 17 18 19 20 21 22 23 24 25 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are waived; and that all objections 5 except as to the form of the question are reserved to the 6 time of trial. 7 8 JAMES 0. YEAGER, called as a witness, being 9 sworn, testified as follows: 10 11 DIRECT EXAMINATION 12 13 BY MR. HELD: 14 Q Good morning, Mr. Yeager. My name is Stephen 15 Held and I represent Enoch Black for injuries sustained as a 16 slip and fall at the Flying J Travel Plaza in I guess it 17 would be Carlisle that happened on or about April 9th, 2002. 18 We're here to take your deposition. 19 Have you ever had your deposition taken 20 before? 21 A No. 22 Q A little bit about what a deposition is. Like 23 1 said, I represent Mr. Black in his case here. We need to 24 find out some information about what you know in regards to 25 this accident. And I'll ask you some questions. Mr. Yaninek 4 1 here might have some questions. We'll be asking you 2 questions. 3 This woman to my right and your left is taking 4 down everything that is said in this room, if you can see her 5 moving her hands and stuff. She's taking everything I'm 6 saying right now and everything that you'll say, et cetera. 7 This will be put together in a transcript and may be used at 8 a later date, should this matter go to trial or proceed on. 9 With that in mind, there are some rules or 10 guidelines you need to keep in mind just to make her job much 11 easier and get a neat and clean transcript on this. Okay? 12 First of all, try and give a verbal response 13 to every question as opposed to a head shake or a shoulder 14 shrug. Even uh-huhs and huh-uhs are tough. So can you try 15 and give a verbal answer? It's more in conversation we're 16 having in everyday life you do that, but by and do your best 17 for me. Can you try and do that for me? 18 A Sure. 19 Q Likewise, if I'm asking you a question, try 20 not to interrupt me with the answer. Sometimes you know 21 exactly where I'm going. Please let me finish the question 22 before you answer. I'll try and wait until you answer it and 23 ask my next question. The only reason we do that is because 24 she can't take two people talking at the same time. So can 25 you try and do that for me? 3 5 1 A Sure. 2 Q If you don't understand my question, let me 3 know. I don't want to try and play word games and things 4 like that. If you don't understand my question, let me know, 5 all right? 6 A Okay. 7 Q Likewise, if you don't know the answer to a 8 question, that's a perfectly acceptable answer. Okay? It's 9 not a graded test or anything like that. So if you don't 10 know the answer, that's fine, you can tell me that, likewise, 11 if you don't remember. That's very frequently. The accident 12 happened in 2002. It's now 2006. It's almost four years 13 from then. 14 Earlier I said I don't think I'll keep you 15 here very long. But if you need to take a break for any 16 reason; if you need to talk to your attorney about anything; 17 if you need to make a call, use the restroom, get a drink, 18 anything like that, let me know. We can go off the record 19 and you can go do whatever you have to do and we can go back 20 on the record. Its not meant to be an endurance test or 21 anything like that. Okay? 22 A Okay- 23 Q There are certain questions 1 ask in every 24 deposition that don't take offense at them. I have to ask 25 them, and there's legal reasons why we ask them. 2 (Pages 2 to 5) Geiger & Loria Reporting Service - 800-222-4577 JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC 6 1 This is one of them: Are you on any 1 2 medications today or do you have any physical or mental 2 3 reason that would prevent you from giving accurate and 3 4 complete answers to my questions? 4 5 A No. 5 6 Q Right before we started this deposition, we 6 7 talked about the reading and signing and certification of 7 8 your transcript. Do you wish to waive that right? 8 9 A Yes. 9 10 Q Prior to today's deposition, did you review 10 11 any documents or did you meet with anybody to talk about 11 12 today? 12 13 A Yes. 13 14 Q Other than him. 14 15 A No. 15 16 Q Him being the attorney for Flying J. 16 17 Do you know what documents you reviewed? 17 18 A Just my accident report that I filled out at 18 19 the time of the accident. 19 20 MR. HELD: I'll mark this as Deposition 20 21 Exhibit 1. 21 22 (Flying J Inc. Accident and Investigation 22 23 Form, Injuries to the Public, marked Yeager Exhibit No. 1.) 23 24 BY MR. HELD: 24 25 Q I'm going to slide this over to you. Take a 25 7 1 look at that. 1 2 Is that the accident report you're referring 2 3 to that you reviewed? 3 4 A Yes. 4 5 Q Take a moment to look at that and see if you 5 6 think there are any pages missing or anything that was 6 7 attached to the report that should be there that isn't there, 7 6 okay? When you're ready, just let me know. 8 9 MIL HELD: Do you need a copy? 9 10 MR YANINEK: Sure. I have one somewhere, but 10 11 if you have an extra one. 11 12 A It looks like everything is there. 12 13 BY MR HELD: 13 14 Q I want to learn just a little bit about you 14 15 and your background. What's your full name? 15 16 A James Oliver Yeager. 16 17 Q Have you ever been known by any other names? 17 18 A No. 18 19 Q Where do you currently reside? 19 20 A 710 Hanover Court, Apartment E108, Carlisle, 20 21 PA, 17013. 21 22 Q How long have you lived at that address? 22 23 A Since December 7th. Three months. 23 24 Q Prior to the 710 Hanover Court address, where 24 25 did you live before there? 25 8 A 306 Heisers, H-e-i-s-a-r-s, Lane, Carlisle. Q How long did you live there? A Twenty-three years. Q Where are you currently employed? A Unemployed. Q How long have you been unemployed? A A year and two months. Q Prior to your unemployment, where did you last work? A Flying J. Q What was the position you held at Flying J? A Merchandise manager. Q Is that a full or part-time job? A Full. Q When you say full, is that 40 hours a week? A Forty plus overtime, whatever I worked. Q What does a merchandise manager do? A Controls basically - mostly inventory in the store, ordering, stocking maintenance in the stockroom. Q I've never been in the Flying J Plaza, if you keep that in mind when you answer the questions. Is this like a mini-mart inside? A Yes, a convenience store. Q Is that where you worked? A Yes. 9 Q Are there more to your responsibilities than that? A That's where I worked and I had more responsibilities: Helping customers with directions in the area, helping them get whatever they needed to get accomplished to get their job/visit accomplished. Q Who was your immediate supervisor? A Anthony Lucas. Q What was his title? A He was the, I guess, general manager. Q Did you have any people who were working underneath you? A Indirectly, I had the authority to go up and grab a cashier to help if there was no immediate need for them to be working up there at the fuel desk. Q I -low long did you work at Flying J? A Nine and a half years. Q Was that always as a merchandise manager? A Yes. Q Why did you cease working at Flying J? A A year ago in February I had back surgery. And after my rehabilitation, when I went back to work, they wanted me to take a $2.08 an hour pay cut. And I didn't feel that was beneficial to me for putting nine and a half years in with them. 3 (Pages 6 to 9) Geiger & Loria Reporting Service - 800-222-4577 JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So you voluntarily left, basically? A Yes. Q You did not take the cut-in-pay job? A Correct. Q Did you file for unemployment for that? A No. Q Prior to working with Flying J, where did you work? A Wayne Noss Flowers in Boiling Springs. Q What did you do there? A A lot of things. Basically laborer. I did a lot of errands and helped them get there business-keeping up and running, deliveries, preparing flowers for arrangements. Q Generally, what types of jobs have you held through your life? A Retail. Q Can you tell me a couple of the places that you worked at before? You mentioned the flowers, Flying J. A K Mart for 11 years. Q Did you leave there when they went bankrupt or reorganized or whatever? A No. Q Anywhere else you worked that you can think of right off the bat? A I worked for about 10 months at the Sentinel 10 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 newspaper. Q Where did you go to high school? A Lion Mountain. Q Where is that at? A Northumberland County, about an hour's drive north of here. Q Did you graduate from Lion Mountain? A Yes. Q What year? A 1972. Q Other than a high school diploma, did you have any other education? A Yes. I have a B.S. Q From where? A Lock Haven University. Q When did you get that? A 1978, I think. Q What was the B.S. in? A General studies. Q Any other education that you had? A No. Q Were you in the military at all? A No. Q Have you ever been charged or convicted of any criminal offense? 1 A No. 2 Q I want to direct your attention to the Flying 3 J Plaza. How do you know that place so we can use the same 4 term? Is Flying J Plaza fine? Is that good enough? 5 A Yes. 6 Q You worked there pretty much full time for 7 nine and a half years? 8 A Correct. 9 Q Do you happen to know what the street address 10 is of Flying J Plaza? 11 A 1501 Harrisburg Pike, Carlisle. 12 Q This is a truck stop. What is inside the 13 truck stop? You mentioned the convenience store. Is there a 14 restaurant? 15 A There's a restaurant. There's a lounge. 16 There's an arcade room, shower facilities, faxing mom or 17 whatever they called it. 18 Q It's designed for truckers, generally? 19 A Yes, primary purpose. 20 Q As far as the outside, what is outside the 21 Flying J Plaza? 22 A A whole lot of parking lot, diesel fuel 23 islands, gas fuel islands, recreational vehicle facilities 24 and a service shop in the back of the lot. 25 Q You were working the day my client fell? 11 13 1 A 2 Q Did you actually see my client fall? 3 A No. 4 Q Do you happen to know where my client fell? 5 A Yes. 6 Q Can you describe to me where in the parking 7 lot, or however you can describe it, my client fell? 8 A It's between the convenience store and the 9 fuel islands. Right at the fuel-drop stations, I guess would 10 be the appropriate term, where the tanker truck comes in and 11 drops all of the diesel fuel and the gas. 12 Q Where that fuel-drop station is, how far is 13 that from the front entrance? 14 A 30 yards. 15 Q Have you been back to the Flying J since you 16 stopped working there? 17 A Yes. 18 Q When was the last time you were there? 19 A A month or so. 20 Q In the month or so, has the location of the 21 fuel drop changed? 22 A No. 23 Q Generally speaking, what is the construction 24 material of the parking lot? Is it macadam or blacktop? 25 A Mostly macadam. Where the fuel station is, 4 (Pages 10 to 13) Geiger & Loria Reporting Service - 800-222-4577 JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC 14 1 its cement. 2 Q How about the fuel-drop station? 3 A The fuel station is cement. 4 Q Where the trucks refill the tanks, that's also 5 cement? 6 A The customers or the? 7 Q The fuel-drop station where they refill the 8 tanks. 9 A That's cement. 10 Q How far is that in relation to where the gas 11 pumps are, where the fuel pumps are, I should say? 12 A Its about 30 yards. 13 Q How about the contour, is this parking lot 14 pretty level? 15 A Yes. 16 Q In this general area of the plaza, is this 17 generally open for the public to use? 18 A Yes. 19 Q I want to take you back to the actual date of 20 the accident. You filled out this report that's Deposition 21 Exhibit 1, right? 22 A Correct. 23 Q I want you to look at that, and rm going to 24 go over this with you. There's some information. 25 Do you happen to know, first of all, when this 15 1 was filled out? 2 A Not specifically other than the date that you 3 had mentioned 4 Q The date my client says he fell is April 9th, 5 2002. Do you think this was probably filled out that day? 6 A Yes, after he was transported to the hospital. 7 Q Section B has information about the accident 8 itself and some of it has information about my client, his 9 address, et cetera. How did you get that information? Did 10 you ask him that? 11 A I think I asked him. 12 Q How did you come to start filling out this 13 accident report? How did you find out about the accident, I 14 guess is a better way to ask it? 15 A As far as I can remember, a fellow driver or 16 customer came in and said something. And I happened to be 17 the nearest manager, so I went out to see what I could do. 18 Q What did you see to the best of your memory? 19 A W. Black was laying on the fuel-drop station. 20 Q Was he laying on the surface? 21 A Yes. 22 Q Did you go over to where he was? 23 A Yes. 24 Q Did you ask him what happened? 25 A Yes. 16 1 Q What did he indicate? 2 A That he just slipped and fell on the way in to 3 pay for his fuel. 4 Q What was the weather like when you went out? 5 A Either it was in the process of stopped 6 raining or had already stopped raining, and the surface of 7 the drop station was somewhat wet. 8 Q Do you happen to remember what the temperature 9 was like? This was April, so it probably was not below 10 freezing. 11 A Yes. 12 Q Do you happen to remember the time of day? 13 A I think it was in the afternoon. 14 Q Was it light out? 15 A Yes. 16 Q Cloudy but light out? 17 A Yes. 18 Q Do you happen to know if the lights in the 19 plaza were on? 20 A No, I don't remember. 21 Q Do you remember having any difficulty seeing 22 where he had fallen? 23 A No. 24 Q Did Mr. Black indicate to you why he fell or 25 how he fell? 1 A I think he mentioned that he was - the water 2 in the -- the water and maybe some diesel-fuel residue. 3 Q Now, you mentioned the diesel-fuel residue. 4 Did you take notice to the ground where this happened? 17 5 A Yes. 6 Q Did you notice any diesel fuel around? 7 A Not in any significant amount. 8 Q You had worked at this truck stop for a long 9 period of time? 10 A Correct. 11 Q Are you familiar with diesel fuel and the 12 properties of diesel fuel? 13 A The general. 14 Q Do you happen to know if diesel fuel is 15 slippery? 16 A Yes. 17 Q And it is slippery? 18 A Yes. 19 Q Do you happen to know if when this mixes with 20 water, that makes it more slippery? 21 A That's my understanding. 22 Q Is that something you had firsthand experience 23 with or anything like that? 24 A Not personally, but I was made aware of such 25 by the different managers. 5 (Pages 14 to 17) Geiger & Loria Reporting Service - 800-222-4577 • JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q You did notice some diesel fuel in the area where Mr. Black fell? A No significant amount. Q Can you describe what you mean by that? There was some there, if you can describe what - A Its sort of like maybe what little residue over time would like sit on the surface of cement. Like on the highway when it rains, it sort of like brings it up type. Q Do you happen to know how the diesel fuel got there? A No. Any number of reasons. Q Which ones come to mind? MR. YANINEK: Don't speculate. If you know tell him. If you don't know, that's okay BY MR. HELD: Q This is an area where the trucks come in to refuel the diesel tanks or the fuel tanks? A Correct. Q Do you know when the last fuel delivery was before this accident happened? A No, I don't. Q Do you know if there are records kept of when refueling happens? A Yes. Q Do you happen to know who would have 20 1 Generally speaking, is the presence of fuel in 2 the parking lot a condition that you were made aware of 3 through your duties? 4 A No. 5 Q Would people be there to handle taking care of 6 the surface of the parking lot? 7 A Yes. 8 Q That would not be in your job? 9 A No; only if a significant situation might pop 10 up. 11 Q Such as a fuel leak or something like that? 12 A Yes. 13 Q Can you testify to what sorts of maintenance 14 procedures are done on the parking lot as far as keeping them 15 clear of fuel in times except for the extreme circumstances 16 you mentioned? 17 A It was daily monitored. Almost on a daily 18 basis, they have a machine called the lot sweeper and it goes 19 around and picks up all of the unnecessary debris. At that 20 time he analyzes the parking lot. 21 MR. YANINEK I'm sorry. I didn't understand. 22 A Analyzed. 23 MR YANINEK: I'm sorry. 24 BY MR. HELD: 25 Q Would Flying J employees operate this 19 1 possession of those records? 1 2 A One or two people maybe; the accounting 2 3 personnel or the head tanker driver/leader or whatever his 3 4 position is called. 4 5 Q When you are working there at Flying J Plaza, 5 6 did you ever encounter or see diesel fuel in the area where 6 7 Mr. Black fell? 7 8 A No. 8 9 Q Is that an area where you would have seen 9 10 frequently? 10 11 A Yes. 11 12 Q Did you have an area where you usually parked 12 13 when you were working? 13 14 A Yes. 14 15 Q Where is that in relation to where Mr. Black 15 16 fell? 16 17 A Most of the time in later years, I parked out 17 18 in the very front of the parking lot. 18 19 Q Is that like public parking, where the public 19 20 parks? 20 21 A No. It's an area where the tanker trucks used 21 22 to park. I used to park in the designated areas, but my car 22 23 got hit twice by RVs so I found new, safer parking. 23 24 Q You said thanks but no thanks for the private, 24 25 reserved parking spot, right? 25 21 machinery or this piece of equipment or whatever it was? A Yes. Q What is it? Is it like a waxer? Is it like a- A Its a big, huge vacuum cleaner on wheels. Q Is it something that's driven? A Yes. Q Do you know if any material was routinely put on the surface of the parking lot to make it more - less slippery, I guess is the way to put it? A No. Q Except, obviously, if there's snow or ice or something like that? A Right. Q But I'm just talking generally speaking. A Its just general cleaning, maintenance. Q You mentioned that they ran this machine. Was that once a day, you said? A On average, yes; I mean, depending on the weather and all that. Q It could be more; it could be less? A They would do certain parts of the parking lot one part of the day and another one another part of the day. Q Do you know if there are any other inspections done on the area of the parking lot where Mr. Black fell? 6 (Pages 18 to 21) Geiger & Loria Reporting Service - 800-222-4577 • JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC 22 1 A Its usually done pretty much regularly every 2 day. 3 Q Do you happen to know who does that? 4 A The general manager usually tours the property 5 mostly back in the back where the trucks are parked, and the 6 maintenance manager. 7 Q Do you happen to know who the general manager 8 and maintenance manager were in 2002? 9 A I think Anthony Lucas was the general manager. 10 And Jack Baba, B-a b-a, was the maintenance manager. 11 Q Do you know if Anthony Lucas is still there as 12 a manager? 13 A Not at that facility. 14 Q How about Jack Baba? 15 A He is still there. 16 Q Back to the actual date of the accident again. 17 Can you turn to the second page. 18 A Sure. 19 Q Probably about three lines down, its 20 handwriting, "Rainwater, wet, mixed with diesel fuel on soles 21 of shoes." Do you see that there? 22 A Yes. 23 Q Is that your handwriting? 24 A Yes. 25 Q Where did you get that information from? 1 A Specifically, I don't know. I mean, just 2 other than the rainwater itself was after a rainfall. You 3 see sort of a diesel mixture, I guess, with it. 4 Q Is diesel like gasoline where it has like that 5 rainbow characteristic, if you know what I'm talking about? 6 A I know what you're talking about, but... 7 Q If you don't know, that's fine. 8 A I don't know offhand. I don't know how to 9 describe it. I see a mixture in it, but it doesn't 10 necessarily have that rainbow effect 11 Q Below this it says, "What does the substance 12 appear to be?" It says, "Rain/fuel"? 13 A Yes. 14 Q Next to it says, Amount. I can't read that 15 all. It says a coating? 16 A I couldn't figure out what I wrote after that 17 myself. 18 Q When you went over to see Mr. Black, what was 19 his demeanor? How was he acting? 20 A He was in pain. I encouraged him to lay as 21 still as he could if he wasn't sure how he was feeling and 22 offered him to get a chair later once we knew what his 23 physical problems were to get him up off the wet pavement. 24 Q Did you know Mr. Black before this fall? 25 A No. 1 Q Had you ever seen him at the plaza that you 2 can remember? 24 3 A No. 4 Q Was anyone else there at the time? 5 A As far as? 6 Q You were there. Mr. Black was there. Was 7 anyone else standing around? 8 A During my time of analyzing the accident? 9 Q When you were right there with Mr. Black. 10 A I think it was Betty Koopman, I think. She 11 came out; and there might have been one or two other 12 employees that might have, plus a few drivers. 13 Q Was this like a crowd of people standing 14 around, or was it just not a crowd of people standing around? 15 A Just a small group. 16 Q You went out, you saw him laying there and you 17 told him don't move. What happened then? 18 A I just tried to ask questions, assess his 19 condition, and he replied. 20 Q Did you see any bruising or anything like that 21 on him? 22 A No. 23 Q Do you know who called the ambulance? 24 A No, I don't 25 Q An ambulance came, though? 23 25 1 A I think so, yeah. At least I have it down 2 here in my notes. 3 Q At the bottom it says, "Was transported by 4 ambulance with backboard, head and neck support" Was that 5 pretty consistent with your memory of what happened? 6 A Yes. 7 Q Were you there when the ambulance arrived? 8 A Yes. 9 Q Other than what you wrote in this report, did 10 you have any conversations with Mr. Black that you can 11 remember? 12 A Not really, no. 13 Q Did you have any other conversations with 14 anyone else at the scene that you heard or about this fall? 15 A Just W. Hines, I guess. He's a witness there 16 in Section C. 17 Q Yes, I see that. 18 Do you know what conversation you had with 19 Mr. Hines? 20 A I think I asked him what happened. He told me 21 he was just walking into the fuel island and slipped and 22 fell. That's his -- I guess his truck number or something -- 23 1 don't know -- after his name, and his company phone number 24 undemeath. 25 Q Did you know Mr. Hines before the fall? 7 (Pages 22 to 25) Geiger & Loria Reporting Service - 800-222-4577 JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC 26 28 1 A No. 1 note that appears dated 1/7/03. It says, Lori/Deb. Do you 2 Q Since the fall happened, except for what you 2 know who Lori/Deb is on the top? 3 just talked about here, have you talked to either Mr. Black 3 A That's probably somebody out at the corporate 4 or Mr. Hines? 4 office that handles this. 5 A No. 5 Q Do you see who wrote this note? It's signed 6 Q On the last page I have here, there are two 6 - I think it's Luke? 7 photographs that look like Polaroids. Did you take those? 7 A Yes. 8 A Yes. 8 Q Do you happen to know who Luke is? 9 Q What are these Polaroids of? 9 A Anthony Lucas. That's his nickname. 10 A That's the area where Mr. Black fell. 10 Q When did you stop working for Flying J? 11 Q What is shown in these pictures? I have very 11 A January 2005. That's when I went on medical 12 bad copies. You have a copy of what I have, but maybe you 12 leave. 13 know. 13 Q Did you have any involvement with this letter 14 A Its the fuel-drop station area where he fell. 14 that was written? 15 Q Is there something in the picture that you 15 A No. 16 were taking a picture of? 16 Q Did you ever see this letter before today? 17 A Well, this was half an hour or so after this 17 A I think so, yes. 18 all was brought to my attention. And it's just the specific 18 Q Is there anything else you would like to 19 area where it was where he fell. Its a lot dryer than what 19 change your answers to any questions that I asked you 20 it actually was before. 20 earlier? 21 Q If you remember, is there anything in the 21 A Nothing I can think of 22 picture that shows like the diesel in it or - 22 Q Have you testified as truthfully as possible 23 A No. 23 in answering your questions? 24 Q Did you take pictures because that's kind of 24 A Yes. 25 what you're told to do as a procedure? 25 Q You understood that you were under oath at 27 29 1 A Correct. 1 this time? 2 Q Are you aware of any other slip-and-fall 2 A Yes. 3 accidents that happened around the fuel area? 3 MR. HELD: That's all the questions I have. 4 A I've heard a few. Not a witness but... 4 MR. YANINEK: I don't have any questions. 5 Q But there were other slips and falls, though, 5 Thank you. 6 you think? 6 (The deposition was concluded at 10:43 a.m.) 7 A Yes. 7 8 Q Do you know if there are any other claims for 8 9 injuries, whether it's an insurance claim or a lawsuit from 9 10 any slips and falls? 10 11 A There were. I think for different reasons, 11 12 though. 12 13 Q Not a fuel/water; some other issue? 13 14 A Yes. 14 15 Q Did you contact Mr. Black after the accident 15 16 happened? Did you do any follow-up or anything like that? 16 17 A I don't remember. 17 18 Q Once you filled out this accident report, did 18 19 you turn this information over to anybody to handle this 19 20 situation, basically? 20 21 A The general manager, Anthony Lucas. 21 22 Q After it was turned over to the general 22 23 manager, was that pretty much the end of your involvement? 23 24 A Yes. 24 25 Q On the second to last page is a handwritten 25 8 (Pages 26 to 29) Geiger & Loria Reporting Service - 800-222-4577 JAMES YEAGER March 14, 2006 BLACK VS FLYING J INC 30 1 STATE OF PENNSYLVANIA : § 2 COUNTY OF DAUPHIN 3 4 I, Donna J. Fox, a Reporter Notary-Public, 5 authorized to administer oaths within and for the 6 Commonwealth of Pennsylvania and take depositions in the 7 trial of causes, do hereby certify that the foregoing is the 8 testimony of James O. Yeager. 9 1 further certify that before the taking of 10 said deposition, the witness was duly sworn; that the 11 questions and answers were taken down stenographically by the 12 said reporter Donna J. Fox, a Reporter Notary-Public, 13 approved and agreed to, and afterwards reduced to typewriting 14 under the direction of the said Reporter. 15 I further certify that the proceedings and 16 evidence contained fully and accurately in the notes by me on 17 the within deposition, and that this copy is a correct 18 transcript of the same. 19 In testimony whereof, I have hereunto, 20 subscribed my hand this 17th day of March, 2006. 21 22 23 Donna J. Fox, Reporter 24 My commission expires: 25 March 29, 2008. 9 (Page 30) Geiger & Loria Reporting Service - 800-222-4577 ` Flying J Inc. Accident and Investigation Form Injuries to the Public REQUIRED: PHOTOS LIST OF EMPLOYEES ON DUTY (Address and phone number) FUEL ISLAND INSPECTION CARD (If Applicable) PERIODIC INSPECTION LOGS (If Applicable) IF POSSIBLE, TAG SEPARATE AND SECURE ANY ITEMS WHICH WERE ALLEGED DEFECTIVE. DO NOT DISPOSE OF. UNM INSTRUCTED! WITNESS STATEMENTS (If.Written, Attach Copies) SECTION A - BRANCH INFORMATION ?.,1), PHONE 71..' • pZ Y 3 -C 6S BRANCH #Sa u•? . BRANCH NAME S y' ADDRESS CITY L M ST Emp c') ' REPORT PREPARED BY (Printed: J ? r_' f ?-A 6-,= Ti:T>: E Mr; rm N wqr In 6, 9 TIME OF ACCIDENT' AM PM DATE SECTION't - ACCIDENT INFORMATION CUSTOMER NAME 61 QC l 9140( ADDRESS .f r Crze( t..??l?i,TIJ?k51' ZIPI PHONE # dI 7 " ?? (Z ) IF TRUCK DRIVER, 'Roo EMPLOYED BY -1?C?1? S PHONE # ' yo ` G--R-- (,oR _ SOCIAL SECURITY N m BER '?I 7 ' ,3 ? 103 BIRTH DATE THE' ACCIDENT (Customer's Version) Set forth how the customer states the accident occurred. If the customer is unable to tell you, set forth the facts. as you understand them. 4 4J ?a L.K ,' C-- L,V 7-o L` -.S`7D?E?= /QV.+r? •?"?f L :Q 0W D ,• L, &LI) 1 1-z' /140 zozz-..I.f-"L • Q L) 7^r!?_ ? ? ? t.i 0 r 1??_.f' I=,? ? ?' l?ff?'n? l? it /_?? i? l -1'L,.1 ?? P?•P D ? '7' f_?c ??'? L)Alb i:Z kh 417 :EXHIBIT' ¦ rr i DESCRIPTION OF SCENE: ( ) Metal :n WL-r H 4 Q/,--j r L WHAT DOES THE SUBSTANCE APPEAR TO BE? AMOUNT r' r D, UNUSUAL SURFACE CONDITION PRESENT? ( ) YES NO IF YES, NATURE OF CONDITION (i-e. crack, hole, dip) WEATHER CONDITIONS, EVEN IF INDOOR ACCIDENT:} r ??? ???/???.,,J i frrJf: L ( RARMiG ( ) SNOWING ( ) SUNNY ( ) ICY Floor or ground covering - Check one or more of the following: ( ) Tile or Linoleum. ( ) Rug or Mat (>< Cement ( ) Carpet ( ) Asphalt ( )Other -Specify -- /c k4 &,c/4-7-,F-7 iZ ( :AI 1:'? ) i? D IF THE ACCIDENT WAS AT NIGHT, WAS IT IN A WELL-LIT AREA? ( SECTION C - WITNESSES WITNESSES: Name 4 c4L A? S T'?C .3Q3 Address: Phone ) YES ( ) NO Name: Address: Phone: SECTION D - TREATMENT INFORMATION EMERGENCY TREATMENT- OFFER TO CALL yt -C DO NOT AUTHORIZE PAYMENT a. Treatment ( ) Not offered ana reason ( ) Declined: by whom, reason for declining Accepted: by whom 4 V O CA WWr--' (C&;-l rd X71.- 2 Z/ 10L VAV Facility Name and :Address 010411 L.>; (mss -PZ-A & AM tfQ X 60 cl L ; 0 ? 701-'; ( ) First Aid Type Facility INQUIRE AS TQ, LIST ANY COMPLAINTS BY WORD OR GESTURE, THE CUSTOMER HAS REGARDIN HIS I-MR PHYSICAL CONDITION AND THE PART OF THE BODY INVOLVED: 16X Cr. •f /fir 40 rJ1r'1- ? "r -- NOTE ANY OTBER COMMENTS OR PERT]NENT INFORMATION YOU OBSERVED: kl) =1 17 SECTION E E sheet if necessaxY) . {attach additional . ' ,. , ' n 'QYIOne' Employee: " Address: State: ' P de: Lrzd- . city: '? ?- ?'"?` • • .. • ?.b 7 -76 one' t.? 1. code: ". ? Address' • ? . ? ? 1 ' -Stmt - ' , - • city: ? .. ? ? • ' . .. ? ?? . ? ? ?? . •loyee: P? VP code: ?? ... • , , • Add&- ::???. ?? - . ' . .. ' • • ? • ' .. city: - , ? .. :. ? ... • ' .. . code'. chi' . S " ' ? ? ? • ' ? egg STAZ'EN'T . . - • , S•F,C'I"Xt]ht ?`` . _ WIT ? : , ? - ? • Date: Signed: Date,. Signed: t4 1 {j J t1 i{ i{ ?Z 4 ?i - 1 t fib i {1 ;i .? 1 S N s ? ` n 1? A t„y a' *"?' C7 f 4. 4^? , ?3 ? ;; ,``" ---- 4. ENOCH BLACK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. 04 - 1377 CIVIL ACTION - LAW FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, JURY TRIAL DEMANDED IN RE: SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this 14th day of March, 2008, after consideration of the briefs filed by the parties and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that Defendants' motion for summary judgment is GRANTED. By the Court, ?? t ?,"- ? M. L. Ebert, Jr. J. ,.Ztephen Held, Esquire Attorney for Plaintiff hn F. Yaninek, Esquire Attorney for Defendants r ? as :9 'Ay {I I vw gool ?' 3'-L J0 ENOCH BLACK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. 04 - 1377 CIVIL ACTION - LAW FLYING J INC., and CFJ PROPERTIES : d/b/a FLYING J TRAVEL PLAZA, JURY TRIAL DEMANDED IN RE: SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION and ORDER OF COURT Ebert, J., March 14, 2008:-- Plaintiff Enoch Black brings this civil action claiming that Defendants, Flying J, Incorporate and CFJ Properties, were negligent in the care of their business premises. Following the completion of discovery,' Defendants filed a motion for summary judgment claiming that Plaintiff failed to produce evidence of essential facts. Having found that Plaintiff has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury, we now grant Defendants' motion for summary judgment. STATEMENT OF FACTS: On April 9, 2002, Plaintiff Enoch Black, born December 11, 1935,2 was allegedly at the Flying J Travel Plaza on the Harrisburg Pike in Carlisle, Pennsylvania. Black is a truck driver and frequently stops at the Plaza on his trips to refuel and rest.3 On the above mentioned date, 1 Plaintiff's counsel informed defense counsel that his discovery was complete in a phone conversation on July 17, 2007. See Motion of Defendants Flying J Inc. and CFJ Properties dlbla Flying J Travel Plaza for Summary Judgment ¶ 9. z Compl. ¶ 7; Pl. Dep., attached as Def. Ex. 1 accompanying Motion of Defendants Flying J Inc. and CFJ Properties dlbla Flying J Travel Plaza for Summary Judgment., taken Nov. 28, 2006, at 6. s Pl. Dep. at 29. 2 Black was at the Plaza and stated that he slipped while he was walking atop the refueling station. Black claims that he slipped and fell due to an accumulation of diesel and/or oil mixed with water which was allowed by Defendants to remain on the blacktop.4 Prior to Black's arrival at the Plaza, there had been intermittent rain showers and the premises were wets Although it was still daylight,6 Black claims that he noticed nothing on the ground other than water. He does however claim to have smelled diesel fuel when he fell.? Black asserts that the ground was very slick - slicker than it would be due to the mere presence of water.8 He is unaware as to whether any fuel or substance was on his clothes due to his fall. He wore standard work shoes at the time.9 Betty Koopman, relief manager and cashier at the Plaza on the date in question, states in her deposition that she neither saw nor smelled diesel when she went out to help Plaintiff after he fell.'0 There has never been a known spill in the area where the fall occurred (at the refueling station near where the gas trucks refuel the underground tanks") and the alleged fall area is inspected daily. 12 Defendants maintain that each refueling island is sprayed daily with a chemical compound intended to dissolve any diesel fuel on the ground. Additionally, a detailed power cleaning of each refueling island is performed every Monday, Wednesday, and Friday. A detailed power cleaning of the gasoline islands is performed every Tuesday and Thursday. Cards 4 Pl. Dep. at 38. 5 Pl. Dep. at 34-35. 6 PI. Dep. at 42. ' Pl. Dep. at 39. 8 Pl. Dep. at 38. 9 Pl. Dep. at 39. 10 Koopman Dep, attached as Def. Ex. 3 Motion of Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza for Summary Judgment, taken March 15, 2006, at 7. 11 Compl. 17; Pl. Dep. 42. 12 Baba Dep. attached as Def. Ex. 4 accompanying Motion of Defendants Flying JInc. and CFJProperties d/b/a Flying J Travel Plaza for Summary Judgment„ taken March 15, 2006, at 13-14. 3 are maintained at each refueling island which reflects that the pump was inspected. Such inspection occurs every one-half hour.s13 Beyond regular, routine inspections, Defendants have posted warning signs near fuel islands which advise invitees to be cautious of slick spots on the fuel islands. The signs state, "WARNING, Look out for slick spots on fuel islands. If you get out of your truck, YOU accept risk of injury." 14 No signs specifically reference the refueling station. Black has fallen a number of times before and has had upper back problems for years,'5 yet contends that, due to his fall on the Defendants' premises, he suffered multiple injuries which include, but are not limited to: lumbar and cervical strain, a concussion, and peripheral vestibular dysfunction. 16 He now brings this action to the court, claiming that Defendant Flying J was negligent in its care of the refueling area. DISCUSSION L Summary Judgment It is a well known rule of civil procedure that, after the proper pleadings have occurred, a party may move for summary judgment in two instances: (1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. C.S.A. 1035.2. 13 See Defendant's response to Plaintiff s Interrogatory No. 25. After reasonable investigation, Defendant was unable to locate the cards reflecting the dates and times of inspection for the date in question. 14 Pl. Dep. Ex. 1. 15 Pl. Dep. at 50-51. 16 Compl. ¶ 23. 4 The inquiry in deciding a motion for summary judgment "is whether the admissible evidence in the record, in whatever form, from whatever source, considered in the light most favorable to the respondent to the motion, fails to establish a prima facie case or defense." In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 258 (3d. Cir.1983). Summary judgment is meant to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would simply be a useless formality. Liles v. Balmer, 567 A.2d 691 (Pa. Super 1989). II. Applicable Law: A "business invitee" is a person who is invited to enter or remain on the land of another for a purpose directly or indirectly connected with the possessor's business dealings. Restatement (Second) of Torts § 332. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, but only if he: (a) knows or by the exercise of reasonable care would have discovered the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against danger. Restatement (Second) of Torts § 343. The Restatements further provide: "A possessor of land who holds it open to the entry of the public for his business purposes is subject to liability to members of the public entering for such purposes for bodily harm caused to them by his failure to exercise a reasonably careful supervision of the appliances or methods of an independent contractor or concessionaire whom he has employed or permitted to carry on upon the land an activity which is directly or indirectly connected with his business use thereof." Restatements of Torts § 344. (emphasis added). Pennsylvania law accepts and supports the Restatements view, as can be seen in Zito v. Merit Outlet Stores, 647 A.2d 573 (Pa. Super. 1994). In Zito, the court stated that in order to recover damages in a "slip and fall" case, an invitee must present evidence which proves that the store owner deviated in some way from his duty of reasonable care under the existing circumstances. This evidence must show that the proprietor knew, or in the exercise of reasonable care should have known, of the existence of the harmful condition. Additionally, the invitee must prove either that the store owner helped to create the harmful condition, or that it had actual or constructive notice of the condition. Id. at 575. III. Application Law: A. Defendants Were Reasonable in Their Care of the Premises Our first inquiry requires us to examine whether Defendants deviated in some way from their duty of reasonable care. The nature of the location in this case is significant, as oil and diesel spills are likely at a refueling station. Danger of falling due to potential spills alone is therefore insufficient to show a breach of duty. Instead, the Plaintiff must show that Defendants were unreasonable in their care of the premises. Plaintiff has however failed to convince this Court that Defendants were at all unreasonable in their efforts. On the contrary, we find that Defendants' care of the business premises was reasonable. Both the fact that a fall has never occurred in this area, and the fact that all refueling areas, not only the fall site, are subject to frequent inspections are of particular importance to our inquiry. Testimony and circumstantial evidence suggest that Defendants were unaware of a potential problem, despite having taken all necessary steps to maintain due diligence of the area. The actual presence of diesel fuel on the ground is inherently suspect, as the sole evidence provided by Plaintiff to prove the presence of diesel or oil on the ground is his own testimony. The daily and hourly diligent inspections of the refueling area would have revealed and/or eliminated any such diesel spills, and we thus find no merit to Plaintiff's contention that Defendants knew of a spill. 6 We also find the fact that the warning signs present at the station only referred to the fuel islands insignificant. The refueling area was still within the premise of the filling station. A reasonable person could infer that fuel or oil may be located in areas other than just the fuel islands. The presence of a foreign substance is further refuted by the statement of Betty Koopman, relief manager and cashier at the Plaza on the date in question. Ms. Koopman stated that she neither saw nor smelled diesel when she went out to help Plaintiff after he fell. Indeed, Plaintiff himself admits he that could not see any substance on the ground other than water. There is therefore no merit to an argument contending that Defendant "should have known" of a potential problem if it had exercised reasonable care. B. Defendants Were Not Actually or Constructively Notified of Any Dangerous Conditions The second part of our inquiry requires us to examine whether Defendants either helped to create the supposed harmful condition, or that they had actual or constructive notice of the condition. We find that Plaintiff has failed to produce evidence to show either Defendants' creation or notice of the alleged condition. In Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997), appellant, a patient and business invitee of the defendant hospital slipped and fell on a puddle of water in the hospital bathroom and later passed away due to complications associated with the injuries sustained from the fall. Appellant cited to the hospital janitorial records which indicated that the person in charge of maintaining the bathroom floor area where the decedent fell had left the hospital four hours prior to the accident. Appellant contended that the hospital was negligent in not replacing the missing janitor but no evidence was produced to show that the area had not been monitored by other hospital staff. Our Superior Court found that appellant failed to produce evidence as to how water arrived on floor, or as to how long condition existed and was 7 accordingly unable to recover against the hospital in premises liability action in absence of evidence showing that the defendant hospital had notice of dangerous condition. Id. at 721-22. In this situation, as in Swift, Plaintiff has presented no evidence by which a jury could draw a reasonable inference as to how the alleged diesel fuel came to be on the refueling area. No evidence has been presented as to the last refilling and we do not know how long the alleged diesel would have been there before Black fell. What we know, however, is that the refueling station was wet due to a recent storm, that the station is monitored every thirty minutes, and that as of the last inspection, no diesel spill was detected. Plaintiff is unable to present sufficient evidence to reasonably infer that Defendants had any actual or constructive notice of the condition which he claims caused his injury. Without such proof, Plaintiff cannot establish a breach of the legal duty owed to Mr. Black which is a requisite to a finding of negligence. CONCLUSION Accordingly, after considering the reasonable preventive measures taken by the Defendants to maintain a safe environment, and taking into account the fact that Plaintiff himself was unable to identify a problem beyond mere speculation, Plaintiff has failed to provide evidence that Defendants breached their duty to reasonably protect the invitees to their business premises. Additionally, the Plaintiff has failed to prove that Defendants helped to create the harmful condition, or that they had actual or constructive notice of the condition. Therefore, having found that Plaintiff, after the completion of discovery, has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury, Defendants' motion for summaryjudgment is granted and the following order shall be entered: 8 ORDER OF COURT AND NOW, this 14th day of March, 2008, after consideration of the briefs filed by the parties and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that Defendants' motion for summary judgment is GRANTED. By the Court, "'` M. L. Ebert, Jr. J. Stephen Held, Esquire Attorney for Plaintiff John F. Yaninek, Esquire Attorney for Defendants 9 ENOCH BLACK Plaintiff V. FLYING J INC., AND CFJ PROPERTIES D/B/A FLYING J TRAVEL PLAZA Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1377 NOTICE OF APPEAL Notice is hereby given that Enoch Black, Plaintiff above hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on 14th day of March, 2008. This order has been reduced to judgment and entered in the docket as evidenced by the attached copy of the docket entry. By Step e G Held sq. Attorney I.D. # 72663 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 Attorney for Plaintiff CERTIFICATE OF SERVICE I, Stephen G. Held, attorney for Plaintiff Enoch Black, hereby certify that I have served the foregoing Notice of Appeal by first class mail, postage pre-paid on the 8th day of April 2008, upon the following: The Honorable M.L. Ebert, Jr. Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013-0000 John F. Yaninek, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Date: X Stephen G. He , Esquire Attorney for Plaintiff ENOCH BLACK, Plaintiff FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04 - 1377 CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this 14`h day of March, 2008, after consideration of the briefs filed by the parties and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that Defendants' motion for summary judgment is GRANTED. Stephen Held, Esquire Attorney for Plaintiff By the Court, ?? t ?7kA M. L. Ebert, Jr. J. John F. Yaninek, Esquire Attorney for Defendants ENOCH BLACK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04 - 1377 CIVIL ACTION - LAW FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA, JURY TRIAL DEMANDED IN RE: SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION and ORDER OF COURT Ebert, J., March 14,2008:-- Plaintiff Enoch Black brings this civil action claiming that Defendants, Flying J, Incorporate and CFJ Properties, were negligent in the care of their business premises. Following the completion of discovery,' Defendants filed a motion for summary judgment claiming that Plaintiff failed to produce evidence of essential facts. Having found that Plaintiff has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury, we now grant Defendants' motion for summary judgment. STATEMENT OF FACTS: On April 9, 2002, Plaintiff Enoch Black, born December 11, 1935,2 was allegedly at the Flying J Travel Plaza on the Harrisburg Pike in Carlisle, Pennsylvania. Black is a truck driver and frequently stops at the Plaza on his trips to refuel and rest.' On the above mentioned date, 1 Plaintiff s counsel informed defense counsel that his discovery was complete in a phone conversation on July 17, 2007. See Motion of Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza _ for Summary Judgment ¶ 9. 2 Conipl. 17; Pl. Dep., attached as Def. Ex. 1 accompanying Motion of Defendants Flying JInc. and CFJ Properties d/b/a Flying J Travel Plaza for Szunma73; Judgment., taken Nov. 28, 2006, at 6. ' Pl. Dep. at 29. 2 Black was at the Plaza and stated that he slipped while he was walking atop the refueling station. Black claims that he slipped and fell due to an accumulation of diesel and/or oil mixed with water which was allowed by Defendants to remain on the blacktop.4 Prior to Black's arrival at the Plaza, there had been intermittent rain showers and the premises were wet.5 Although it was still daylight,G Black claims that he noticed nothing on the ground other than water. He does however claim to have smelled diesel fuel when he fella Black asserts that the ground was very slick - slicker than it would be due to the mere presence of water.8 He is unaware as to whether any fuel or substance was on his clothes due to his fall. He wore standard work shoes at the time. Betty Koopman, relief manager and cashier at the Plaza on the date in question, states in her deposition that she neither saw nor smelled diesel when she went out to help Plaintiff after he fell.'O There has never been a known spill in the area where the fall occurred (at the refueling station near where the gas trucks refuel the underground tanks' 1) and the alleged fall area is inspected daily. 12 Defendants maintain that each refueling island is sprayed daily with a chemical compound intended to dissolve any diesel fuel on the ground. Additionally, a detailed power cleaning of each refueling island is performed every Monday, Wednesday, and Friday. A detailed power cleaning of the gasoline islands is performed every Tuesday and Thursday. Cards " Pl. Dep. at 38. s PI. Dep. at 34-35. 6 PI. Dep. at 42. PI. Dep. at 39. s P1. Dep. at 38. Pl. Dep. at 39. 10 Koopman Dep. attached as Def. Ex. 3 Motion of Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza for Summary Judgment, taken March 15, 2006, at 7. " Compl. 17; Pl. Dep. 42. 12 Baba Dep. attached as Def. Ex. 4 accompanying Motion of Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza for Sunnna77) Judgment„ taken March 15, 2006, at 13-14. 3 are maintained at each refueling island which reflects that the pump was inspected. Such inspection occurs every one-half hour." 13 Beyond regular, routine inspections, Defendants have posted warning signs near fuel islands which advise invitees to be cautious of slick spots on the fuel islands. The signs state, "WARNING, Look out for slick spots on fuel islands. If you get out of your truck, YOU accept risk of injury."14 No signs specifically reference the refueling station. Black has fallen a number of times before and has had upper back problems for years, 15 yet contends that, due to his fall on the Defendants' preinises, he suffered multiple injuries which include, but are not limited to: lumbar and cervical strain, a concussion, and peripheral vestibular dysfunction. 16 He now brings this action to the court, claiming that Defendant Flying J was negligent in its care of the refueling area. DISCUSSION I. Summan Judgment It is a well known rule of civil procedure that, after the proper pleadings have occurred, a party may move for summary judgment in two instances: (1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. C.S.A. 1035.2. 13 See Defendant's response to Plaintiff's Interrogatory No. 25. After reasonable investigation, Defendant was unable to locate the cards reflecting the dates and times of inspection for the date in question. 14 Pl. Dep. Ex. 1. 15 Pl. Dep. at 50-51. 16 Compl. 1123. 4 The inquiry in deciding a motion for summary judgment "is whether the admissible evidence in the record, in whatever form, from whatever source, considered in the light most favorable to the respondent to the motion, fails to establish a prima facie case or defense." In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 258 (3d. Cir.1983). Summary judgment is meant to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would simply be a useless fornlality. Liles v. Babner, 567 A.2d 691 (Pa. Super 1989). IZ Applicable Law: A "business invitee" is a person who is invited to enter or remain on the land of another for a purpose directly or indirectly connected with the possessor's business dealings. Restatement (Second) of Torts § 332. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, but only if he: (a) knows or by the exercise of reasonable care would have discovered the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against danger. Restatement (Second) of Torts § 343. The Restatements further provide: "A possessor of land who holds it open to the entry of the public for his business purposes is subject to liability to members of the public entering for such purposes for bodily harm caused to them by his failure to exercise a reasonably careful supervision of the appliances or methods of an independent contractor or concessionaire whom he has employed or pennitted to carry on upon the land an activity which is directly or indirectly comnected with his business use thereof" Restatements of Torts § 344. (emphasis added). Pennsylvania law accepts and supports the Restatements view, as can be seen in Zito v. Merit Outlet Stores, 647 A.2d 573 (Pa. Super. 1994). In Zito, the court stated that in order to recover damages in a "slip and fall" case, an invitee must present evidence which proves that the store owner deviated in some way from his duty of reasonable care under the existing circumstances. This evidence must show that the proprietor knew, or in the exercise of reasonable care should have known, of the existence of the harmful condition. Additionally, the invitee must prove either that the store owner helped to create the harmful condition, or that it had actual or constructive notice of the condition. Id. at 575. III. Application of Law: A. Defendants Were Reasonable in Their Care of the Premises Our first inquiry requires us to examine whether Defendants deviated in some way from their duty of reasonable care. The nature of the location in this case is significant, as oil and diesel spills are likely at a refueling station. Danger of falling due to potential spills alone is therefore insufficient to show a breach of duty. Instead, the Plaintiff must show that Defendants were unreasonable in their care of the premises. Plaintiff has however failed to convince this Court that Defendants were at all unreasonable in their efforts. On the contrary, we find that Defendants' care of the business premises was reasonable. Both the fact that a fall has never occurred in this area, and the fact that all refueling areas, not only the fall site, are subject to frequent inspections are of particular importance to our inquiry. Testimony and circumstantial evidence suggest that Defendants were unaware of a potential problem, despite having taken all necessary steps to maintain due diligence of the area. The actual presence of diesel fuel on the ground is inherently suspect, as the sole evidence provided by Plaintiff to prove the presence of diesel or oil on the ground is his own testimony. The daily and hourly diligent inspections of the refueling area would have revealed an&or eliminated any such diesel spills, and we thus find no merit to Plaintiff's contention that Defendants knew of a spill. 6 We also find the fact that the warning signs present at the station only referred to the fuel islands insignificant. The refueling area was still within the premise of the filling station. A reasonable person could infer that fuel or oil may be located in areas other than just the fuel islands. The presence of a foreign substance is further refuted by the statement of Betty Koopman, relief manager and cashier at the Plaza on the date in question. Ms. Koopman stated that she neither saw nor smelled diesel when she went out to help Plaintiff after he fell. Indeed, Plaintiff himself admits he that could not see any substance on the ground other than water. There is therefore no merit to an argument contending that Defendant "should have known" of a potential problem if it had exercised reasonable care. B. Defendants Were Not Actually or Constructively Notified of Any Dangerous Conditions The second part of our inquiry requires us to examine whether Defendants either helped to create the supposed harmful condition, or that they had actual or constructive notice of the condition. We find that Plaintiff has failed to produce evidence to show either Defendants' creation or notice of the alleged condition. In Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997), appellant, a patient and business invitee of the defendant hospital slipped and fell on a puddle of water in the hospital bathroom and later passed away due to complications associated with the injuries sustained from the fall. Appellant cited to the hospital janitorial records which indicated that the person in charge of maintaining the bathroom floor area where the decedent fell had left the hospital four hours prior to the accident. Appellant contended that the hospital was negligent in not replacing the missing janitor but no evidence was produced to show that the area had not been monitored by other hospital staff. Our Superior Court found that appellant failed to produce evidence as to how water arrived on floor, or as to how long condition existed and was accordingly unable to recover against the hospital in premises liability action in absence of evidence showing that the defendant hospital had notice of dangerous condition. Al. at 721-22. In this situation, as in Swift, Plaintiff has presented no evidence by which a jury could draw a reasonable inference as to how the alleged diesel fuel came to be on the refueling area. No evidence has been presented as to the last refilling and we do not know how long the alleged diesel would have been there before Black fell. What we know, however, is that the refueling station was wet due to a recent storm, that the station is monitored every thirty minutes, and that as of the last inspection, no diesel spill was detected. Plaintiff is unable to present sufficient evidence to reasonably infer that Defendants had any actual or constructive notice of the condition which he claims caused his injury. Without such proof, Plaintiff cannot establish a breach of the legal duty owed to Mr. Black which is a requisite to a finding of negligence. CONCLUSION Accordingly, after considering the reasonable preventive measures taken by the Defendants to maintain a safe environment, and taking into account the fact that Plaintiff himself was unable to identify a problem beyond mere speculation, Plaintiff has failed to provide evidence that Defendants breached their duty to reasonably protect the invitees to their business premises. Additionally, the Plaintiff has failed to prove that Defendants helped to create the harmful condition, or that they had actual or constructive notice of the condition. Therefore, having found that Plaintiff, after the completion of discovery, has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury, Defendants' motion for summary judgment is granted and the following order shall be entered: ORDER OF COURT AND NOW, this 14th day of March, 2008, after consideration of the briefs filed by the parties and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that Defendants' motion for summary judgment is GRANTED. By the Court, M. L. Ebert, Jr. J. Stephen Held, Esquire Attorney for Plaintiff John F. Yaninek, Esquire Attorney for Defendants 9 11053904082008 Cumberland County Prothonotary's Office Page 1 PYS51-0 Civil Case Print 2004-01377 BLACK ENOCH (vs) FLYING J INC ET AL Reference No. Filed......... 4/01/2004 Case Type...... WRIT OF SUMMONS Time.......... 10:27 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: ------------ Ca C t Disposed Date. 0/00/0000 se ommen s ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info BLACK ENOCH PLAINTIFF HELD STEPHEN G 507 S MAIN STREET CARL JUNCTION MO 64834 FLYING J INC DEFENDANT YANINEK JOHN F 1104 COUNTRY HILLS DRIVE OGDEN UT 84403 CFJ PROPERTIES DEFENDANT YANINEK JOHN F 1104 COUNTRY HILLS DRIVE OGDEN UT 84403 FLYING J TRAVEL PLAZA DEFENDANT YANINEK JOHN F 1104 COUNTRY HILLS DRIVE OGDEN UT 84403 ******************************************************************************** * Date Entries ******************************************************************************** - FIRST ENTRY 4/01/2004 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- 5/06/2004 AFFIDAVIT OF SERVICE - BY STEPHEN HELD ESQ FOR PLFF ------------------------------------------------------------------- 5/06/2004 AFFIDAVIT OF SERVICE - BY STEPHEN HELD ESQ FOR PLFF ------------------------------------------------------------------- 4/21/2005 COMPLAINT BY STEPHEN G HELD ATTY FOR PLFF ------------------------------------------------------------------- 5/04/2005 ENTRY OF APPEARANCE FOR DEFTS - JOHN F YANINEK ESQ FOR DEFT ------------------------------------------------------------------- 6/06/2005 DEFENDANT'S ANSWER AND NEW MATTER TO PLFF'S COMPLAINT - BY JOHN F YANINEK ESQ FOR DEFTS ------------------------------------------------------------------- 6/09/2005 PLAINTIFF'S REPLY TO NEW MATTER OF DEFTS - BY STEPHEN G HELD ESQ FOR PLFF ------------------------------------------------------------------- 7/20/2005 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 AND 45 CFR 164 ET SEQ (HIPAA) - BY JOHN F YANINEK ESQ FOR DEFTS ------------------------------------------------------------------- 2/06/2006 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY JOHN F YANINEK ESQ FOR DEFTS ------------------------------------------------------------------- 11/07/2006 DEFTS' MOTION TO COMPEL PLFF'S APPEARANCE AT DEPOSITION - BY JOHN F YANINEK ATTY FOR DEFTS ------------------------------------------------------------------- 11/13/2006 ORDER - 11-13-06 - IN RE; ORDERED THAT THE SAID MOTION TO COMPEL PLFF'S APPEARANCE AT DEPOSITION BE AND IS HEREBY GRANTED AND THAT PLFF-ENOCH BLACK-IS HEREBY COMPELLED TO APPEAR TESTIFY AND PRODUCE ANY AND ALL DOCUMENTS AS MAY BE DESCRIBED IN DEFT'S NOTICE OF DEPOSTION AT PLFF'S DEPOSITION TO BE HELD WITHIN 30 DAYS OF THE DATE OF THIS ORDER - FURTHER ORDERED THAT PLFF SHALL CONTACT DEFTS WITHIN 7 DAYS FROM THE DATE OF THIS ORDER TO SCHEDULE THE DEPOSITION - BY ML EBERT JR J - COPIES MAILED 11-13-06 ------------------------------------------------------------------- 3/13/2007 AFFIDAVIT OF SERVICE - NOTICE OF INTENTION TO SEEK SANCTIONS - BY STEPHEN G HELD ATTY FOR PLFF ------------------------------------------------------------------- 7/24/2007 AFFIDAVIT OF JAMES DESTER ------------------------------------------------------------------- 7/24/2007 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS MOTION FOR 11053904082008 Cumberland County Prothonotary's Office Page .PYS52.0 Civil Case Print 2004-01377 BLACK ENOCH (vs) FLYING J INC ET AL Reference No... Filed......... 4/01/2004 Case Type...... WRIT OF SUMMONS Time.......... 10:27 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: SUMMARY JUDGMENT - BY JOHN F YANKNEK ATTY F?R DEFTS ------------------------------------------------------------------- 7/24/2007 MOTION OF DEFENDANTS FLYING J INC AND CFJ PROPERTIES D/B/A FLYING J TRAVEL PLAZA FOR SUMMARY JUDGMENT - BY JOHN F YANINE ATTY FOR DEFT ------------------------------------------------------------------- 8/10/2007 PROPERTIESSD/B/A FLYING DETRAVELTPLAZAYMOTIONIFORASUMMARY JUDGMENT BY STEPHEN G. HHELD ESQ ------------------------------------------------------------------- 3/14/2008 ORDER OF COURT - 3/14/08 IN RE: SUMMARY JUDGEMENT - DEFTS MOTION FOR SUMMARY JUDGEMENT IS GRANTED - BY M L EBERT JR J - COPIES MAILED 3/14/08 ------------------------------------------------------------------- 3/14/2008 OPINION AND ORDER OF COURT - DATED 03-14-08 - IN RE: SUMMARY JUDGMENT BEFORE BAYLEY J AND EBERT J - BY M L EBERT JR J - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 2 ******************************************************************************** * Escrow Information * Fees & Debits Be Bal Pmts/Adj End Bal ******************************** ******** ****** ******************************* WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 ---------- --- .00 --------- -------------- 55.50 55.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FR,C A RECORD In Testimony whereof, I here unto set my hand and the seal of said Court at Carlisle, Pa. This .....?........ day of.. ......... Prothon ary ! v O I V ?J C`) c?. .l, ENOCH BLACK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FLYING J INC., AND CFJ PROPERTIES D/B/A FLYING J TRAVEL PLAZA, DEFENDANTS NO. 04-1377 CIVIL ORDER OF COURT AND NOW, this 9th day of April, 2008, the Court being in receipt of a Notice of Appeal in the above captioned matter, the Appellant is ordered to file with this Court a concise statement of matters complained of on appeal no later than April 30, 2008. By the Court, tephen G. Held, Esquire Attorney for Plaintiff ,j6hn F. Yaninek, Esquire Attorney for Defendants A bas M. L. Ebert, Jr., J. c oa 9 I :C Wd 6- M 0001 MVIONO'H i Do'd 3HI 10 COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblen, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary Superior Court of Pennsylvania Middle District April 10, 2008 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www.superior.court.state.pa.us Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 622 MDA 2008 Enoch Black, Appellant V. Flying J Inc., and CFJ Properties d/b/a Flying J Travel Plaza Dear Mr. Long: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary WJT Enclosure 8:24 A.M. Appeal Docket Sheet Docket Number: 622 MDA 2008 Superior Court of Pennsylvania Page 1 of 3 April 10, 2008 Enoch Black, Appellant V. Flying J Inc., and CFJ Properties d/b/a Flying J Travel Plaza Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: April 8, 2008 Awaiting Original Record Journal Number: Case Category: Civil CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Next Event Due Date: April 24, 2008 Next Event Due Date: June 9, 2008 4/10/2008 3023 9:24 A.M. Appeal Docket Sheet Docket Number: 622 MDA 2008 Superior Court of Pennsylvania Page 2 of 3 April 10, 2008 COUNSEL INFORMATION Appellant Pro Se: IFP Status Black, Enoch Appoint Counsel Status: No Appellant Attorney Information: Attorney: Held, Stephen George Bar No.: 72663 Law Firm: Handler, Henning & Rosenberg, L.L.P. Address: 1300 Linglestown Rd #2 Harrisburg, PA 17110-2838 Phone No.: (717)238-2000 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee Flying J Inc., and CFJ Properties d/b/a Flying J Travel Plaza Pro Se: Appoint Counsel Status: IFP Status: Address: 3401 N Front St PO Box 5950 Harrisburg, PA 17110-0950 Phone No.: (717)232-5000 Fax No.: (717)236-1816 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee Attorney Information: Attorney: Yaninek, John F. Bar No.: 55741 Law Firm: Mette, Evans & Woodside FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 4/9/08 Notice of Appeal 60.00 60.00 2008SPRMD000304 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: March 14, 2008 Judicial District: 9 Date Documents Received: April 9, 2008 Date Notice of Appeal Filed: April 8, 2008 Order Type: Order Entered OTN: Judge: Ebert, Jr., Merle L. Judge Lower Court Docket No.: 04-1377 ORIGINAL RECORD CONTENTS 4/10/2008 3023 9:24 A.M. Appeal Docket Sheet Docket Number: 622 MDA 2008 Superior Court of Pennsylvania 'A 0-Vow Page 3 of 3 April 10, 2008 Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By April 8, 2008 Notice of Appeal Filed Appellant Black, Enoch April 10, 2008 Docketing Statement Exited (Civil) Middle District Filing Office 4/10/2008 3023 c?a ?" cv --t V A Stephen G. Held, Esquire I.D.#72663 HANDLER, HENNING & ROSENBERG, LLP 1300 Linglestown Road Harrisburg, PA 17110 Telephone: (717) 238-2000 Fax: (717) 233-3029 E-mail: HELDCaD_hhrlaw.com Attorney for Plaintiff ENOCH BLACK, Plaintiff V. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING J TRAVEL PLAZA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 04-1377-2004 CIVIL ACTION - LAW JURY TRIAL DEMANDED STATEMENT OF MATTERS COMPLAINED OF ON APPEAL Appellant, Enoch Black, files the following concise statement of matters complained of on the appeal in the above matter, pursuant to the Order issued by the Honorable M. L. Ebert, Jr., pursuant to Pa.R.A.P. 1925(b): Whether the Trial Court erred in finding as a matter of law that Defendants were reasonable in their care of the premises where material issues of fact exist as to whetherwarnings signs were adequate where the signs were posted approximately 80 feet away from where Plaintiff's injuries occurred? 2. Whether the Trial Court erred in finding as a matter of law that Defendants were reasonable in their care of the premises where material issues of fact exist as to whether Defendants' performed reasonable inspections of the "fuel drop" area where the Trial Court erroneously relies on the inspection procedures of the fuel pump area rather than the "fuel drop" area. rr 3. Whether the Trial Court erred in finding as a matter of law that Defendants did not create the dangerous condition where Plaintiff has presented evidence that fuel deliveries are performed by Defendants' employees? 4. Whether the Trial Court erred in finding as a matter of law that the Plaintiff has failed to identify the dangerous condition where the Court erroneously finds that the sole evidence provided is Plaintiff's own testimony and where the record reflects that Defendants' accident investigation form indicates the presence of diesel fuel? Respectfully Submitted, HANDLER, HENNING & ROSENBERG, LLP Date: April 29. 2008 By (z 6 Steph Id, Esquire I. D. #72663 2 CERTIFICATE OF SERVICE I, Stephen G. Held, attorney for Plaintiff Enoch Black, hereby certify that I have served the foregoing Statement of Matters Complained of on Appeal by first class mail, postage pre-paid on the 29th day of April 2008, upon the following: The Honorable M.L. Ebert, Jr. Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013-0000 John F. Yaninek, Esq. Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Date: 6'r /I /? - Stephe squire Attorney fo tiff t? '°, ?? _ ?_? t. i:7 ? .', l 'c..' _S? ..,,,. ~ ? 1 ? .. __..., -9-,v ENOCH BLACK, IN THE COURT OF COMMON PLEAS OF Plaintiff/Appellant CUMBERLAND COUNTY, PENNSYLVANIA V. FLYING J INC., and CFJ PROPERTIES d/b/a FLYING No. 04-1377 CIVIL J TRAVEL PLAZA, Defendants/Appellees : IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., June 9, 2008 - Appellant, Enoch Black, has filed an appeal to the Superior Court of Pennsylvania following an Order entered March 14, 2008 granting Appellees Motion for Summary Judgment.' This opinion is written pursuant to Pa. R.A.P. 1925(a). Appellant's bases of appeal are as follows:2 1.) Whether the Trial Court erred in finding as a matter of law that Defendants were reasonable in their care of the premises where material issues of fact exist as to whether warnings signs were adequate where the signs were posted approximately 80 feet away from where Plaintiff's injuries occurred? 2.) Whether the Trial Court erred in finding as a matter of law that Defendants were reasonable in their care of the premises where material issues of fact exist as to whether Defendants' performed reasonable inspections of the "fuel drop" area where the Trial Court erroneously relies on the inspection procedures of the fuel pump area rather than the "fuel drop" area? 3.) Whether the Trial Court erred in finding as a matter of law that Defendants did not create the dangerous condition where Plaintiff has presented evidence that fuel deliveries are performed by Defendants' employees? 4.) Whether the Trial Court erred in finding as a matter of law that the Plaintiff has failed to identify the dangerous condition where the Court erroneously finds that the sole evidence provided is Plaintiff's own testimony and where the record ' See Order of Court, Mar. 14, 2008. 2 See Statement of Matters Complained of pursuant to Pa. R.A.P. 1925(b), filed April 29, 2008. reflects that Defendants' accident investigation form indicates the presence of diesel fuel? This Court previously filed an opinion on March 14, 2008, which deals with the legal issues presented in this case. This opinion is filed pursuant to Pa. R.A.P. 1925 (a) to supplement the prior opinion and more specifically address those issues raised in the Plaintiff's Statement of Matters Complained of on Appeal. STATEMENT OF FACTS A detailed explanation of the facts of this case can be found in the primary opinion filed of record on March 14, 2008. DISCUSSION While Appellant contends that this Court erred "in finding" reasonable care and failure to create a dangerous condition, the significant issue in this case is that Appellant did not produce evidence to show that Defendants had constructive notice of the alleged dangerous condition. This Court's opinion related to reasonable care and identification of the dangerous condition was made in the context of Appellant's failure to produce evidence of constructive notice. This Court relied on Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997), where our Superior Court denied appellant relief when decedent slipped and fell on water on a bathroom floor in a hospital. Id. The Superior Court found that Appellants could not recover because they failed to show that Appellee had notice of the dangerous condition. Id. at 721-22. Appellants in Swift did not prove what caused the water to be on the floor or how long the water was on the floor. Id. at 722. In this case, Appellant has not even shown that diesel fuel was present on the ground. Even if it can be established that diesel fuel was on the ground, Appellant has produced no evidence of what would have caused the diesel to be on the ground or how long the diesel fuel may have been on the ground before he fell. In Swift, even when maintenance 2 records showed that the janitor in charge of maintaining the area where decedent fell left the property four hours prior to the accident, the Court did not find that appellee was negligent in monitoring the area because appellant did not produce evidence that the area was not monitored by other staff. Appellees in the present case have produced even more extensive proof than appellee in Swift that regular monitoring was performed that would have revealed any dangerous condition. As in Swift, Appellant has shown no evidence that the area was not monitored. As the Court in Swift found, the presence of water can be expected on a bathroom floor and does not indicate improper monitoring. See id. at 722. Similarly, diesel fuel can be expected on the ground surface of a truck stop filling station and the presence of diesel fuel on the ground does not indicate that Appellees should have known there was a dangerous condition beyond what is normally expected on the ground at a truck stop. In Swift, the only evidence that there was water on the floor was gleaned from the Plaintiff's statement that her fall was caused by water on the floor. Similarly, in this case, the Plaintiff concludes that there had to be diesel fuel on the ground even though he admitted that he did not see any substance on the ground other than water. The Court in Swift states that "the mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence." Id. at 722. The present case compels adherence to the ruling in Swift because Appellant in our case has not even proved the existence of a dangerous condition, and has produced no evidence that Appellees had constructive notice of the alleged condition. In Swift, the Court notes that a party is subject to liability only if "he knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitee will not realize it or will fail to protect themselves 3 against it, and the party fails to exercise reasonable care to protect the invitees against the danger." Swift, 690 A.2d at 722. We have already established that the Appellant has not provided any evidence that Appellee knew or should have known of the alleged dangerous condition. Furthermore, Appellee had every reason to expect that Appellant would realize the potential for a dangerous condition. Appellant had seen the warning signs at the Flying J during previous visits.3 Appellant is an experienced truck driver and would have been familiar with the possibility of residual diesel on the ground at filling stations, especially during rainy weather. Appellant now contends that Appellees created the alleged dangerous condition because Appellees employees deliver fuel to Flying J. Simply pointing out that Appellees' employees refuel the pumps is not sufficient to prove that Appellees created the alleged dangerous condition. Appellant also states that Appellees acknowledged the alleged dangerous condition on the accident investigation form. The indication of the presence of diesel fuel on the accident investigation form is simply the customer's version of the accident and does not offer any support beyond Appellant's own testimony for the existence of a dangerous condition. Section B of the accident investigation form references the presence of diesel fuel, and Mr. Yeager stated in his deposition that he recorded what he was told by Mr. Black.4 Section B is a reflection of Mr. Black's statements to Mr. Yeager and not Mr. Yeager's personal observations. 3 Pl. Dep. at 41. 4 Yeager Dep. at 15. 4 CONCLUSION Appellant has failed to produce evidence that Appellee had constructive notice of the alleged dangerous condition. The facts in this case are totally analogous to those in Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997). Accordingly, this Court finds this precedent controlling and the granting of summary judgment to the Defendants was warranted. By the Court, lil? -? M.L. Ebert, Jr., IN J. Z Stephen G. Held, Esquire Counsel for Appellant Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 ./ John F. Yanniek, Esquire Counsel for Appellees Mette, Evans & Woodside 3401 North Front Street Harrisburg, PA 17110 ?a? t E.s rna-t 6L t?l4?o8 s VrNVA-1, iNP4:3d r° , "Iii -3 mo 81 =1 i WV 6- NAr 80OZ ltf3{#v# .?UidHl 0114tj-( CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Enoch Black VS. Flying J Inc., and CFJ Properties d/b/a Flying J Travel Plaza 04-1377 Civil 622 MDA 2008 The documents comprising the record have been numbered from No.1 to 313, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6/10/2008. ?? 10 - 9W tj A?? C is R. Lo usrP4tfionot Regina Lebo An additional cony of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: Curtis R. Long , Prothonotary In TESTIMONY WHEREOF, I have hereunto this 10th of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Enoch Black Plaintiff, and Flying J Inc.. CFJ Propert d/b/a Flying J Travel P1a7a Defendant , as the same remains of record before the said Court at No. 04-1377 of Civil Term, A. D. 19 . set my hand and affixed the seal of said Court day of E June A, D„ W-20-00 Prothonotary 1, Mgar B- Bayley President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that (1yr_tiS R. Tnng , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of 0ri+erland in the Commonwealth of Pennsylvania, duly commissioned and qualifie whose acts as such full faith and credit are and ought to be given as well in Courts of judicat as elsewh said record, certificate and attestation are in due form of law and made b t pr pe o fice . v J, Gv?? President Judg Commonwealth of Pennsylvania County of Cumberland ss: 1, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Fdgar B. Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set mhhaand and affixed the seal of said Court this 0 Yay of unaft A.D. PW2008 Prothonotary Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of M]berl and in the Commonwealth of Pennsylvania 622 MDA 2008 to No. 04-1377 Civil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Enoch Black VS. Flying J Inc., and M Properties d/b/a Flying J Travel Plaza **See Certified Copy of the Docket Entries** ro N a i I E E ' W ? U M ? H ,o N ? z z w ? I 0 u ra O U W CK D W .. 69 w LL. W b W cc E n E 4t ° j ? w 0 c 0 s 0 CL PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2004-01377 BLACK ENOCH (vs) FLYING J INC ET AL Reference No..: Filed : 4/01/200 Case Tyyppe.....: WRIT OF SUMMONS Judgmenf..... .00 ........ Time.........: Execution Date 4 0:27 0/0 / Judge Assigned: EBERT M L JR Jury Trial.. . 0 0000 Disposed Desc.: ------------ Case Comments ----- - . Disposed Date. 0/00/0000 - ------ Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info BLACK ENOCH PLAINTIFF 507 S MAIN STREET HELD STEPHEN G CARL JUNCTION MO 64834 FLYING J INC DEFENDANT YANINEK JOHN F 1104 COUNTRY HILLS DRIVE OGDEN UT 84403 CFJ PROPERTIES DEFENDANT YANINEK JOHN F 1104 COUNTRY HILLS DRIVE OGDEN UT 84403 FLYING J TRAVEL PLAZA DEFENDANT YANINEK JOHN F 1104 COUNTRY HILLS DRIVE OGDEN UT 84403 ******************************************************************************** * Date Entries ******************************************************************************** / 4/01/2004 5/06/2004 5/06/2004 4/21/2005 5/04/2005 6/06/2005 -2`)-3Q 6/09/2005 31-37 7/20/2005 .3;?-Zfa 2/06/2006 ,VV -,54, 11/07/2006 '13 11/13/2006 .J 7S9 3/13/2007 Go'74, 7/24/2007 ?- 7g 7/24/2007 FIRST ENTRY PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- AFFIDAVIT OF SERVICE - BY STEPHEN HELD ESQ FOR PLFF ------------------------------------------------------------------- AFFIDAVIT OF SERVICE - BY STEPHEN HELD ESQ FOR PLFF ------------------------------------------------------------------- COMPLAINT BY STEPHEN G HELD ATTY FOR PLFF ------------------------------------------------------------------- ENTRY OF APPEARANCE FOR DEFTS - JOHN F YANINEK ESQ FOR DEFT ------------------------------------------------------------- DEFENDANT'S ANSWER AND NEW MATTER TO PLFF'S COMPLAINT - BY JOHN F YANINEK ESQ FOR DEFTS ------------------------------------------------------------------- PLAINTIFF'S REPLY TO NEW MATTER OF DEFTS - BY STEPHEN G HELD ESQ FOR PLFF ------------------------------------------------------------------ CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 AND 45 CFR 164 ET SEQ (HIPAA) - BY JOHN F YANINEK ESQ FOR DEFTS ------------------------------------------------------------------- CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY JOHN F YANINEK ESQ FOR DEFTS ------------------------------------------------------------------- DEFTS' MOTION TO COMPEL PLFF'S APPEARANCE AT DEPOSITION - BY JOHN F YANINEK ATTY FOR DEFTS ------------------------------------------------------------------- ORDER - 11-13-06 - IN RE- ORDERED THAT THE SAID MOTION TO COMPEL PLFF'S APPEARANCE AT DEPOSITION BE AND IS HEREBY GRANTED AND THAT PLFF-ENOCH BLACK-IS HEREBY COMPELLED TO APPEAR TESTIFY AND PRODUCE ANY AND ALL DOCUMENTS AS MAY BE DESCRIBED IN DEFT'S NOTICE OF DEPOSTION AT PLFF'S DEPOSITION TO BE HELD WITHIN 30 DAYS OF THE DATE OF THIS ORDER - FURTHER ORDERED THAT PLFF SHALL CONTACT DEFTS WITHIN 7 DAYS FROM THE DATE OF THIS ORDER TO SCHEDULE THE DEPOSITION - BY ML EBERT JR J - COPIES MAILED 11-13-06 ------------------------------------------------------------ AFFIDAVIT OF SERVICE - NOTICE OF INTENTION TO SEEK SANCTIONS - BY STEPHEN G HELD ATTY FOR PLFF ------------------------------------------------------------------- AFFIDAVIT OF JAMES DESTER -------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS MOTION FOR SUMMARY JUDGMENT - BY JOHN F YANKNEK ATTY FOR DEFTS PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2004-01377 BLACK ENOCH (vs) FLYING J INC ET AL Reference No... Filed.... . 4/01/2004 Case Type.....: WRIT OF SUMMONS Time.........: 0:27 Judgment..... .00 Execution Date 0/000000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ------------------------------------------------------------------ 7,?-a 3? 7/24/2007 MOTION OF DEFENDANTS FLYING J INC AND CFJ PROPERTIES D/P/A FLYING J TRAVEL PLAZA FOR SUMMARY JUDGMENT - BY JOHN F YANINEKK ATTY FOR DEFT CFJ------------- a37---?778/10/2007 ------PLAINTIFF---'-S---------ESPONSE --- TO------DEFENDANTS------1 --- FL-Y-I-N-G--J--I-N-C--A-N-D --- ? PROPERTIES D B A FLYING J TRAVEL PLAZA MOTION FOR SUMMARY JUDGMENT BY STEPHEN G. HELD ESQ ------------------------------------------------------------------- 3/14/2008 OPINION AND ORDER OF COURT - DATED 03-14-08 - IN RE SUMMARY JUDGMENT - ORDERED AND DIRECTED THAT DEFENDANTS' MOTION FOR SUM 08 JUDGMENT IS GRANTED - BY M L EBERT JR J - COPIES MAILED 3 /14 ------------------------------------------------------------------- n7-agl?'4/08/2008 NOTICE OF APPEAL TO SUPERIOR COURT - BY STEPHEN G HELD ATTY FOR PLFF ------------------------------------------------------------------- 300 301 4/09/2008 ORDER OF COURT - 4/9108 - THE COURT BEING IN RECEIPT OF A NOTICE OF APPEAL IN THE ABOVE CAPTIONED MATTER THE APPELLANT IS ORDERED TO FILE WITH THIS COURT A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APP L NO LATER THAN 4/30/08 - BY M L EBERT JR J - COPIES MAILED 4/908 ----------------------------------------------------------- 30-?_305 4/11/2008 SUPERIOR COURT - OF PA NOTICE OF APPEAL DOCKETING TO #622 MDA 2008 ------------------------------------------------------------------ 3alo_30SS 4/29/2008 STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - BY STEPHEN G HELD ATTY FOR PLFF -------------------------------------------------------------- 3pf-31.3 6/09/2008 IN RT - OPINIOOPIERSUANIT T 6PA R A P 1925 - DATED 6/9/08 - BY M L ------------------------------------------------------------------- 6/10/2008 NOTICE OF DOCKET ENTRIES MAILED TO STEPHEN G HELD ESQ AND JOHN F YANINEK ESQ - - - - - - - - - LAST ENTRY - - - - - - - - - --- - - - ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Pmts/Add End Bal ******************************** ******** ****** ******************************* WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 103.50 103.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FR"M RECORD In Testimony whereof, i h.-re at Carl sletPaY h OM and the seal of said Court This .... `?? ....... day of.. .. _, ?' Prothonotary 2 r? Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 c -------------------------------------------- 1015-4/04 10/1/99 Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary Superior Court of Pennsylvania Middle District February 9, 2009 RE: Black, E. v. Flying J Inc. et al No. 622 MDA 2008 Trial Court Docket Number: 04-1377 Dear : 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www.superior.court.state.pa.us Enclosed please find a certified copy of an order dated February 9, 2009 entered in the above-captioned matter. Pursuant to the foregoing Order a certified copy of same, along with the original record will be forwarded to the trial court in due course. Very truly yours, t U&3? J es D. McCullough, Esq. Deputy Prothonotary WJT cc: John F. Yaninek, Esq. The Honorable Merle L. Ebert, Jr. Judge Mr. Curtis R. Long Prothonotary 1. A02040/09 ENOCH BLACK, Appellant V. FLYING J INC., AND CF] PROPERTIES D/B/A FLYING J TRAVEL PLAZA, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA No. 622 MDA 2008 ORDER OF COURT Upon information received from the parties that Flying J., Inc., has instituted bankruptcy proceedings, the above captioned appeal is hereby DISMISSED without prejudice to file a petition for reinstatement of the appeal in the event that such is necessary following the conclusion of bankruptcy proceedings. PER CURIAM AttesE r O CORD 'a--OM "&4 Deputy ftthonotm y Superior Court of PA - Middle District No.: 622 MDA 2008 Carbon Copy Recipient List Addressed To: Stephen George Held, Esq. Handler, Henning & Rosenberg, L.L.P. 1300 Linglestown Rd #2 Harrisburg, PA 17110-2838 Carbon Copied: Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 John F. Yaninek, Esq. Mette, Evans & Woodside 3401 N Front St PO Box 5950 Harrisburg, PA 17110-0950 The Honorable Merle L. Ebert, Jr. Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 1013 -10/99 10/1199 ra - M lco F- !T Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary James D. McCullough, Esq. February 9, 2009 Deputy Prothonotary Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: Black, E. v. Flying J Inc. et al No.622 MDA 2008 Trial Court/Agency Dkt. Number: 04-1377 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 www. superior.court. state.pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter, along with a certified copy of Superior Court order dated February 9, 2009. Contents of Original Record: Original Record Item Filed Date Description Part June 12, 2008 1 Date of Remand of Record: MAR 19 2009 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by sighing, dating, and returning the enclosed copy of this certificate to our office. Cop recipients (noted below) need not acknowledge receipt. Signature Printed Name Date /wjt ra rR w J. A02040/09 ENOCH BLACK, Appellant V. FLYING J INC., AND CF] PROPERTIES D/B/A FLYING J TRAVEL PLAZA, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA • No. 622 MDA 2008 ORDER OF COURT Upon information received from the parties that Flying J., Inc., has instituted bankruptcy proceedings, the above captioned appeal is hereby DISMISSED without prejudice to file a petition for reinstatement of the appeal in the event that such is necessary following the conclusion of bankruptcy proceedings. PER CURIAM TRUE COVAPPI suP?fa cage Of p„ . ,ftle Di*ka c pr s . CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Enoch Black vs. Flying J Inc., and CFJ Properties d/b/a Flying J Travel Plaza 04-1377 Civil 622 MDA 2008 • The documents comprising the record have been numbered from No.l to 313, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6/10/2008 . C rtis R. Lon r th not Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowled in recei t of this record. eceived In Super(or Court Date JUN 1 2 2008 Signature & Title MIDDLE • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, t11e transcript of the proceedings, if any, and the docket entries in the following matter: Enoch Black vs. Flying J Inc., and CFJ Properties d/bJa Flying J Travel Plaza 04-1377 Civil 622 MDA 2008 The documents comprising the record have been numbered from No.l to 313, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6!1012008 . Cu is R. Lon onota Regina Lebo An additional copy of this certificate is enclosed Please sign and date copy, thereby acknowledging receipt of this record. Date Signature SUPERIpR COURT JUN 1 2 2008 MIDDLE