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Home My WebLink About08-70110 Brian K. Zellner, Esquire Hynum Law Atty. ID #59262 2608 North 3 Street Harrisburg, PA 17110 (717) 774-1357 TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants NO. O$ - -*Ott : CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Legal Aid of Southeastern Pennsylvania 625 Swede Street Norristown, PA 19401 Phone (877) 429-5994 USTED HA SIDO DEMANIDADO EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de is proximos viente (20) dias despues de la notification de esta Demanda y aviso radicando personalmente o por rnedio de un abogado una comparecencia escrita y radicando en la Corte por escritosus defenses de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tornar accion como se escribe anteriormente, el caso puede proceder sin usted y un fallo por qualquier suma de dinero reclamada en la demandaa o cualquier otra reclamacion o remedio solicitado por el demandanta puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad y otros direchos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTAOFICINA PUEDE PRO VEERLE INFORMACION A CERCA DE COMO CONSEGLJTR UNABOGADO. ST USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSSIBLE QUE ESTA OFICINA LE PUEDA PRO VEER INFORMACION SOBRE AGENCIES QUE OFREZCAN SERVTCIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUECUALIFICAN. Legal Aid of Southeastern Pennsylvania 625 Swede Street Norristown, PA 19401 Phone (877) 429-5994 Brian K. Zellner, Esquire Hynum Law Atty. ID #59262 2608 North 3 Street Harrisburg, PA 17110 (717) 774-1357 TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT COMPANY AND SCOTT ROY, Defendants NO. 0 CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Terry Black, is an adult individual with an address of 26 Westbury Court, Elizabethtown, PA 17022. 2. Defendant, Glendale Lodging, L.P., II., is a limited partnership organized under the Laws of the Commonwealth of Pennsylvania with a registered office address of 1310 Holly Pike, P.O. Box 28, Carlisle, PA 17013. 3. Defendant, Glendale Management Company, is a corporation organized under the Laws of the Commonwealth of Pennsylvania with a registered office address of 1310 Holly Pike, P.O. Box 28, Carlisle, PA 17013. 4. Defendant, Scott Roy, is an adult individual with an address of 9929 Country Road, 3160 Mountain View, MO 65548. 5. On April 4, 2008, the Plaintiff attended the Harrisburg Fly Fishers' Banquet at the Hotel Carlisle, 1700 Harrisburg Pike, Carlisle, PA 17015. 6. The Defendant Glendale Lodging, L.P., II is the owner of the real estate located at 1700 Harrisburg Pike, Carlisle, PA 17015. 7. The Defendant Glendale Management Company is the owner of the Hotel Carlisle located at 1700 Harrisburg Pike, Carlisle, PA 17015. 8. On April 4, 2008 at 9:55 p.m., the Plaintiff was leaving the Harrisburg Fly Fishers' Banquet and exiting the Hotel Carlisle via the south exit by door #1. 9. It is believed and therefore averred that the Plaintiff was a business invitee on April 4, 2008. 10. On April 4, 2008, the Plaintiff caught his left foot on a truck loading ramp which was lying along the sidewalk in an unlighted, unsigned area. 11. The Plaintiff believes and therefore avers that the Defendant Scott Roy and/or his agents, servants, workers or employees were loading a truck from a tool sale at the Hotel Carlisle and had left a truck loading ramp along the sidewalk at the south exit by door #1 1 an unlighted, unsigned area. 12. The Plaintiff believes and therefore avers that the Defendant Scott Roy and/or his agents, servants, workers or employees blocked the parking lot end of the sidewalk with his trailer forcing the Plaintiff to turn off the sidewalk to go around the truck. 13. The Plaintiff twisted his left ankle and fell twisting his right knee. 14. The Plaintiff suffered the following injuries to his right knee as a result of the incident: a tear to his medial meniscus, a sprain of the medial collateral ligament and a bone bruise of the medial tibial plateau. 15. The Plaintiff suffered a sprained left ankle as a result of the incident. AND SCOTT ROY 16. Paragraphs 1 through 15 are incorporated herein by reference as though set forth at length. 17. The Defendants had a duty to keep the property safe for business invitees. 18. The Defendants breached this duty by failing to provide a safe exit for the Plaintiff. 19. As a result of the Defendants' breach of their duty, the Plaintiff suffered an injury to his right knee and left ankle. 20. As a result of the injury to his right knee and left ankle, the Plaintiff has incurred medical expenses and will incur medical expenses in the future. 21. As a result of the injuries, the Plaintiff has suffered a loss of enjoyment of life and will continue to do so in the future. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in his favor and against the Defendants in an amount in excess of $50,000 and in excess of the amount requiring compulsory arbitration. 11, k, ii sv a P' Brian K. Zellner Attorney ID 59262 Hynum Law 2608 North 3rd Street Harrisburg, PA 17110 [717] 774-1357 Attomey for Plaintiff VERIFICATION 1, -T'-,.r,,,/Q hereby state that I am the Plaintiff in this action and that the statements of fact made in the foregoing Complaint are true and correct to the best of my information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. 4904 relating to unsworn falsification to authontie . Date: 0(08108 Terry E3Iac c XJ C?o ?? `., I?t C`7 -< , U113 CASE NO: 2008-07011 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BLACK TERRY VS GLENDALE LODGING LP II ET AL KENNETH E GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GLENDALE LODGING L P II the DEFENDANT at 0015:07 HOURS, on the 9th day of December-, 2008 at 1310 HOLLY PIKE P 0 BOX 28 CARLISLE, PA 17013 by handing to WILLIAM DUNCAN, ESQUIRE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Postage /x)140; L So Answers: 18.00 4.50 .00 10.00 R. Thomas Kline 42 32.92 12/10/2008 HYNUM LAW Sworn and Subscibed to By: before me this day of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2008-07011 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BLACK TERRY VS GLENDALE LODGING LP II ET AL KENNETH E GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GLENDALE MANAGEMENT COMPANY the DEFENDANT , at 0015:07 HOURS, on the 9th day of December-, 2008 at 1310 HOLLY PIKE CARLISLE, PA 17013 WILLIAM DUNCAN, ESQUIRE P 0 BOX 28 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge (t 6.00 .00 .00 10.00 .00 16.00 Sworn and Subscibed to before me this of day So Answers: R. Thomas Kline 12/10/2008 HYNUM LAW By: 25?1z? / /ep?fty_ S 'ff A. D. 1 CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COJM TY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., : Defendants. NOTICE OF SERVICE TO; PROTHONOTARY AND NOW comes the defendant, Glendale Lodging L.P. II, by and through its attorneys, Kristine A. Crosswhite, Susan E. Smith and Crosswhite, Limbrick & Sinclair, LLP, and certify that Glendale Lodging L.P. II's Interrogatories and Requests for Production of Documents to Plaintiff Terry Black were served upon counsel of record in the matter captioned above via first-class United States mail at the addresses listed below: Brian K. Zellner, Esquire Hynum Law 2608 North 3`d Street Harrisburg, PA 17110 1 .4% CROSSWHITE, LIMBRICK & SINCLAIR, LLP By: Kristine A. Crosswhite, Esquire Attorney I.D. No. 202393 Susan E. Smith, Esquire Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7188 Date: 12/ Lz Apo Attorneys for Defendants, Glendale Lodging LP. II and Glendale Management Company II 2 C"? cs C`..3 ?i riz ca ;- - CD CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, .,PENNSYLVANIA TERRY BLACK, Plaintiff, V. Civil Action-Law No. 08-7011 ANSWER GLENDALE LODGING L.P. II, et al., : Defendants. ANSWER AND NOW, comes the defendants, Glendale Lodging L.P. II and Glendale Management Company II d/b/a/ Hotel Carlisle & Embers Convention Center (incorrectly named in the Complaint as "Glendale Management Company"), by and through their attorneys, Kristine A. Crosswhite, Susan E. Smith and Crosswhite, Limbrick & Sinclair, LLP, and Answer the Complaint of the plaintiff, Terry Black ("Mr. Black"), and aver as follows: 1. The allegations set forth in Paragraph 1 of the plaintiff's Complaint are not directed to these defendants, and therefore no response by these defendants is required. 2. The defendants admit that defendant Glendale Lodging, L.P., II is a limited partnership organized under the Laws of the Commonwealth of Pennsylvania with a registered office address of 1310 Holly Pike, P.O. Box 38, Carlisle, PA 17013. 3. The defendants admit that defendant Glendale Management Company II d/b/a Hotel Carlisle & Embers Convention Center (incorrectly named in the Complaint as "Glendale Management Company") is a corporation organized under the Laws of the Commonwealth of Pennsylvania with a registered office address of 1310 Holly Pike, P.O. Box 38, Carlisle, PA 17013. 4. The allegations set forth in Paragraph 4 of the plaintiff's Complaint are not directed to these defendants, and therefore no response by these defendants is required. 5. The allegations set forth in Paragraph 5 of the plaintiff's Complaint are not directed to these defendants, and therefore no response by these defendants is required. 6. The defendants admit that, at the time of the occurrence of April 4, 2008 described in the Complaint, defendant Glendale Lodging, L.P., II was the owner of the real estate located at 1700 Harrisburg Pike, Carlisle, PA 17015. The defendant has since sold its interest in said real estate. 7. The defendants admit that, at the time of the occurrence of April 4, 2008 described in the Complaint, defendant Glendale Management Company II d/b/a/ Hotel Carlisle & Embers Convention Center was the manager of the Hotel Carlisle & Embers Contention Center located at 1700 Harrisburg Pike, Carlisle, PA 17015. The defendant no longer manages the premise. 8. The allegations set forth in Paragraph 8 of the plaintiffs Complaint are not directed to these defendants, and therefore no response by these defendants is required. 9. The defendants generally deny the allegations of paragraph 9 of the Complaint pursuant to Pa.R.C.P. No. 1029(e). 10. The allegations set forth in Paragraph 10 of the plaintiff's Complaint are not directed to the defendants, and therefore no response by the defendants is required. 11. The allegations set forth in Paragraph 11 of the plaintiff's Complaint are not directed to these defendants, and therefore no response by these defendants is required. 2 12. The allegations set forth in Paragraph 12 of the plaintiff's Complaint are not directed to these defendants, and therefore no response by these defendants is required. 13. The allegations set forth in Paragraph 13 of the plaintiff's Complaint are not directed to these defendants, and therefore no response by these defendants is required. 14. The allegations set forth in Paragraph 14 of the plaintiff's Complaint are not directed to the defendants, and therefore no response by the defendants is required. 15. The allegations set forth in Paragraph 15 of the plaintiff's Complaint are not directed to the defendants, and therefore no response by the defendants is required. COUNTI Terry Black vs. Glendale Lodging L.P., II, Glendale Management and Scott Roy 16. The defendants adopt and incorporate by reference paragraphs 1-15 of this Answer as if the same were fully set forth herein. 17. The defendants generally deny the allegations of paragraph 17 of the Complaint pursuant to Pa.R.C.P. No. 1029(e). 18. The defendants generally deny the allegations of paragraph 18 of the Complaint pursuant to Pa.R.C.P. No. 1029(e). 19. The defendants generally deny the allegations of paragraph 19 of the Complaint pursuant to Pa.R.C.P. No. 1029(e). 20. The defendants generally deny the allegations of paragraph 20 of the Complaint pursuant to Pa.R.C.P. No. 1029(e). 21. The defendants generally deny the allegations of paragraph 21 of the Complaint pursuant to Pa.R.C.P. No. 1029(e). WHEREFORE, the defendants, Glendale Lodging L.P. II and Glendale Management Company II d/b/a/ Hotel Carlisle & Embers Convention Center, demand judgment in their favor and against the plaintiff, Terry Black, in an amount to be determined 3 at trial, plus attorney's fees, cost and such other and further relief as justice and its cause may require. Kristine A. Crosswhite, Esquire Attorney I.D. No. 202393 Susan E. Smith, Esquire Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7188 Attorneys for Defendants, Glendale Lodging L.P. II and Glendale Management Company 77 dibl al Hotel Carlisle & Embers Convention Center 4 Dee 22 08 12:28p Waymaker Company 717#245#9277 p.1 VERIFICATION I, L. Michael Reynolds, President of General Partner of Glendale Lodging L.P. II and President of Glendale Management Company II, have read the foregoing Answer and the statements of fact contained therein are true and correct to the best of my personal knowledge, information and belief. This statement and verification is made subject to the penalties of 18 PA.C.S. § 4904 relating to unsworn falsification to authorities which provides that if I make knowingly false averments, I may be subject to criminal penalties. f' J Date: ?.2i L. Michael Reynolds ,i5 CERTIFICATE OF SERVICE I, Susan E. Smith, Esquire, an attorney in the law offices of Crosswhite, Limbrick & Sinclair, LLP, hereby certify that a true and correct copy of the foregoing Answer has been served on the following person(s) in the following manner on the day of December, 2008. Service by first-class, United States mail addressed to: Brian K. Zellner, Esquire Hynum Law 2608 North 3`d Street Harrisburg, PA 17110 Susan E. Smith Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants, Glendale Lodging LP. II and Glendale Management Company II 7D c? 71 c CZ) ; r t'J C 30 Cl) TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7011 V. GLENDALE LODGING L.P. II, : GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, Brian K. Zellner, Esquire, do hereby certify that on January 7, 2009, 1 did serve a copy of the COMPLAINT upon the Defendant Scott Roy by certified mail. Attached hereto is the Domestic Return Receipt evidencing service. I, Brian K. Zellner, Esquire, verify that the statements made in the foregoing certificate of service are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: January 12, 2009 Brian K. Zellner, Esquire HYNUM LAW 2608 North 3`d Street Harrisburg, PA 17110 (717) 774-1357 Attorney ID No. 59262 4 -- 7 c S Mt4#Olfttj*U 02' • ftt your rmnme mW address on the reverse N #0 we cwt raetum the card to you. • Mach this card to the back of the malosoet or on the front if space permits. t. /mtde Addressed to CB016 0 APO Abn*) I C. Deft D. lo deWery aad?es? a ,C ftm roam 1? 0 Yas If YES, errEer address below: ? Ne lSrpe 3. ke ` eW d Mail 0 EW%@s Mail for MerdmrMw O kwu ed Mau C.O.D. 4. Restioted Delivery? (Dft Floe) 13 rb rr.llrleseasrMe.111164 7006 0100 0000 3497 1798 _ *MM "I . f? 9gdt DbnrwNfe lbYrre lhoeyrt ttsro ctt' 1 -0 1-? ix` .1 ; . (7-7 . 02/04/2009 14:06 FAX 410 747 7177 C L S IR 006/020 Crosswhite, LimbciGk dt Sinclair, LU 405 Frederick Road Suite 260 Baltimme, MD 21228 (410) 747-4174 Attorneys for Glendale lb I- , - - - at Co., lI Terry Blaah IN THE COURT OF COMMON LEAS Plaintiff, vs. CC7]? WJa AM COUNTY, PENNSYLVANIA Glendale Mamgament Co., TI Deftdant Cana No. 02-70 L 1 As a prerequisitc to service of a subpoena for documents and things ptummt to Rule 4009.22, NDS on behalf of Susan E. Esouinc cerl3$es that I . A Notice of Intent to Serve Subpocim with a copy of the subpoena attwued was mailed or delivered to each party at least twenty days prior to the dale on which the subpoena is sought to be saTcd; 2. A copy of the Notice of Intent to Serve Subpoena, including the proposed subpoena, is attaahW to this certificate; 3. No objection to the subpoena has been recdved; and 4. The subpoem which will be served is identical to thv subpome which is attachad to the Notice of Intent to Serve Subpam& NDS on behalf of Susan E. Smith, Empire Crosswhitc, Limbrick & Siaalais, LLP State Bar No. '202378 405 Frederick Road Suite 260 Baltimore, MD 21228 (410) 747-4174 Attorney for 0bWale lytanagement Co., II Date: FEB 8 5 2009 LLO/900M 660ZZSZOLt YVA tg:ll 6007/40/70 02/04/2009 14:06 FAX 410 747 7177 Crowwhitc, Limbr" & Sinclair, U,,P 405 Rtaderi& Road Suite 260 EWtinwre. MD 21228 (410) 747-4174 ,Attorneys for Glendale Maasgeettt Co., 11 Terry Black Plainti$ vs. Qlandale Mansgatnad Co., R fR 007/020 IN THE COURT OF COMMON LEM CUMBERLAND COUNTY, PENNSYLVANIA Defendant Caro No_ 08-7011 CERT I r.11TE OF UMCE AND NOW . ? day of ? . 2009, I b mby ow dfy that we balm served a copy of the foregoing Certi Prerequudto to ServiCe of a Sufbpoena Ptusuent to Rule 4009.22 and Subpoena to Produce Docuzw is and Thing four Discovery Purwmt to Rule 400921 in the above captioned action on All counsel of record by forwarder a true and cant copy of same by First Gass United Stan Mail, postage prepaid, addressed to the foliowing: Brian K. Zellaw, &qulre iRynum Law 2608 North 3rd Suet Hwdsbar8, PA 17110 NDS on behalf' of Susan E. Smith, Lrsgtare' A,ttnmey for Olenc &6 Mw ageinmt Co, II LLO/L001a GUM910to xvd s? ?l 6002/b0/ZO 02/04/200° 14:08 FAX 410 747 7177 Crosswhite, Limbrick 8t SbwjWt, LLP 405 Frederick Road Suite 260 Baltimore, MD 21228 (410) 747-4174 Attorneys for Glcndale Management Co., 11 Testy Blink Plainflf& vs. Glaa" MseagwMMt Co, 1[ C L S MENNNEWIN 0008/020 IN THE COURT OF COMMON LEAS CUMBERLAND COUNTY, PENNSYLVANIA Defau m Caw No. 08-7011 To: Briers K. ZcHncr, Esquire Lynam taw 2608 North 3rd. Street HaniftnT, PA, 17110 NDS on babalf of Sum-E.- Smith. Esanire iaands to serve a oftoew kk=dcel to the one tbat is attached to this notioe. Yon have twenty (20) days from the daft limed below m whwh to file of record and serve upon flea u ndersigncd as obJeodon to the xftoetta. If no objecdon is made the su*ew may be served. NDS on behalf of Vie: FEB 2 5 2001 Susan E. Smith, Esquire Ctoe whity, LinWak dt Sinclair, LLP State Bar No. 202378 445 Fredefi& Road Suite 260 Baltimore, MD 21228 (410) 747.4174 Attorney far Glendale Managemetrt Co., A CC: Sus= E. smite, Eequirn LLO/800 0 BRC17.C1nLe WW4 00 .11 enn7ibn47n 02/04/2009 14:06 FAX 410 747 7177 C L S COMIONVVEALTH OF ,PE"YLVANIA. COUNTY OF CU30PRI.AND T®rry Black File No. ., •D 8-3 a 71 Vs. Gl.endple Management Co., 11 SU P0W4& TO PRODUCIC DOCUUMNTS Olt-T=q•CS FOR DECOV$RY PUMANT TO IS MX 4009.22 TO: Laneast-ox general snroitaiIM ???w e i ?.wwwwwww?? (Naas of Pa or, Bodo wkWh t omy (20) days whet mvioe oftlas mAgana, you = ardwed by the cou" to pwdun the faow t Momma or t doW pertaining to Terry Black, Don: 09/21/1946, SSN: Unknown. at Ba rout' m?ihc? 2mia1 a*" of ft dons at produce d*V tN"sW by Ibis :abpo?oa. WPdW wid, to Md&M of co=H- to +ke party mddug 4els tet pm at the addRmss limd aim". Yon hA" ewe yi0t to soak in adv== *a aeeso:" Dort of psepntiog do COON or pro&wivg ft tblup SOO&L. ?• ` 11 If yvu fail to pm6ms to doaam=* at titlW XWpind by WA odbrvrw win tW=W (20) days wier its sarvice, dke party serving tilt oft*= tray sw1r a coact *W= compelling ym to **=ply Vft iti THIS sUMENA WAS ISSUED AT TIM PJKKMST OF 72M FOLLOWING PERSON: ltiom: 31142 - - e wnU &j . -*JW4:f 419,41 SDPRZM AMRNBY FOR pfd ter, ? 5 2009 Dat?.? ,9ea1•oftiadCourt?'• Zl0/1i010 BY TM COUR7% 1A4 le J!?~ "Psaft n notwy, O VA DDi-Asion IZO11/020 ess4esioLo xvi 99=11 soon/bo/zo 02/04/2009 14:07 FAX 410 747 7177 Terry Black Vs_ Z 014/020 COMMONWEALTH OF Pi3MSYLVAI" COUNTY OF CERADEMAND Glend! GIs management co., ii S M ORNA. TO PRODUCE DOCUMENTS OR TBMRGS POR DISCOVICRY FURSUANT TO RULE 4009.22 TO: sorlanco lediaal Ardeeiatu 04m a0m, as Bette widda tweoay {20) days afbw =vloe oftWs sd*a s s, you at need by ft eowt to ptudaea du Mooring doaomamb or ftimp: &AY and &14 NedAe&! 0600268 1=0 111sEftd pertaining to Terry Black, DOB= 09/21/1916, SSN: Unknown. at Bai r [?Z1 1 jAdddni) Tan my poa?L oapW of 15s 6a®oule aR pt+odoae 0ftp :sVastad by this sobpoeaa, to/ethae v ft de of ootrptisace, m do puW maWng thus regaeat at an addwo Umod. ebare. You bays dm A& m seals is adwom fm mseam" asst at p - pi syad aw moW m pendnejq the ftw SOVOL If you 9W to podan Ow doaavoift N ddops nequhud by Oft 040=9 wWn bmWy? (20) digs alter to errv die party saving >b md*m a imy m 4k a cautt orhm co m0pdRug you to emply whh it. TBS SUBPOENA WAS ISSUED AT TM REQUEST OF TF3 FOLLOW3NO PMtSON: ATTORNEY FM Sea of,C), C0,%,6 it ZY THE COURT: c r Ll0/b101? 889LZSLOLV XVA MLL 6002/b0/Zo r 02/04/2009 14:07 FAX 410 747 7177 C L S COMMQNWBALTH OFPB"'YLVA)" OOIJNTY OF CUMPMAM [a 017/020 Terry Black = s Pik No.-- a ? e Glendale Management Co., YI ; BUBPOZNA TO PRODUCE DOCUMCM OR-TEUN GS FOR DJACO ,Y KWUANT TO VLULZ 4009.22 TO: Lai ncacter Ortho dic G=Mp a?f Paaoa aye l?q?) Wit6ic try (2o) diayr dw t m"m of ft m6pa na, you so ov&n d by the an" to P M&= a* fb4o..ing dooums m or Map: pertaining to Terry Black, DOH: 09/21/1946, SSN: Unknown. at $a Too =or $&,& a aanx1 Wlx? ovPiies Of dw jdoa®ood ott VK0dMW - - - T - - ^ - - s?tbpCaoa. ttpades vtbt to a zdt m of MW rO by *6 Cemp?llgxx, b the poly mokbg j* raquad at as AdftM liood_ Qbow. You here an Cw to sot in rdvisme dM bLs oat o! to Capin of pnewwmg an ftp If You Su to pradwe no 400sumcd3v w idoB agw0d by Ab aloispoistos wiihia &MAW (20) Mt s aft iN runs, dw pony sar ft thle sllbpow my see]: it o0oet ceder caouQelt>a- you to cawly with it THIS SUBPOENA WAS MSUED AT TIM REQUEST OF TIM FOMO•QITM PERSON: BY TEE COURT: FEB 2 5 2009 not= -s.u of t_m ca?c LLOILLOIB Al _C?.r• - :P_ La IPudwmaw y. Ci n .eon, 8SOLMOty XVr 56: tt 80OZ/00no r'? ? , } ;i:? ?????-- t =-, r ? r =,- ? ?:? .... .? ,. c_ { ?., .. ,??, :::: Fj CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., : Defendants. NOTICE OF SERVICE TO; PROTHONOTARY AND NOW comes the defendant, Glendale Lodging L.P. II, by and through its attorneys, Kristine A. Crosswhite, Susan E. Smith and Crosswhite, Limbrick & Sinclair, LLP, and certify that Glendale Lodging L.P. II's Amended Notice of Oral Deposition of Mr. Terry Black was served upon counsel of record in the matter captioned above via first-class United States mail at the addresses listed below: Brian K. Zellner, Esquire Hynum Law 2608 North Yd Street Harrisburg, PA 17110 1 y . CROSSWHITE, LIMBRICK & SINCLAIR, LLP 1 ? By: Kristine A. Crosswhite, Esquire Attorney I.D. No. 202393 Susan E. Smith, Esquire Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone. (410) 747-4174 Facsimile: (410) 747-7188 Attorneys for Defendants, Glendale Lodging LP. II and Glendale Management Company II Date: "jk1 d-n 2 n,, , . : ? f.. -?:, w . ,;: r?? '>s? i:? --_ •a.? .,? t• CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Plaintiff, Civil Action-Law No. 08-7011 V. GLENDALE LODGING L.P. II, et al., Defendants. TO; PROTHONOTARY NOTICE OF SERVICE AND NOW comes the defendant, Glendale Lodging L.P. II, and Glendale Management Company II, by and through its attorneys, Kristine A. Crosswhite, Susan E. Smith and Crosswhite, Limbrick & Sinclair, LLP, and certify that Glendale Lodging L.P. II and Glendale Management Company II's Answers to Plaintiff s Interrogatories were served upon counsel of record in the matter captioned above via first-class United States mail at the addresses listed below: Brian K. Zellner, Esquire Hynum Law 2608 North 3`d Street Harrisburg, PA 17110 1 CROSSWHITE, LIMBRICK & SINCLAIR, LLP sy: Kristine A. Crosswhite, Esquire Attorney I.D. No. 202393 Susan E. Smith, Esquire Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7188 Attorneys for Defendants, Glendale Lodging LP. II and Glendale Management Company II Date: 2 -ID N s ut © -G CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Plaintiff, Civil Action-Law No. 08-7011 V. . GLENDALE LODGING L.P. II, et al., Defendants. MOTION FOR SUMMARY JUDGMENT Defendants Glendale Lodging L.P. II and Glendale Management Company . II (hereinafter, "the Hotel Defendants" or "the Moving Defendants"), by and through their undersigned attorneys, Susan E. Smith and Crosswhite, Limbrick & Sinclair, LLP, pursuant to Rules 208.3(a) and 1035.2(a) of the Cumberland County Rules of Civil Procedure, move for summary judgment as to all claims of the plaintiffs Complaint in the above-captioned case, and for grounds therefore, state as follows: Pertinent Procedural History 1. On or about December 1, 2008, the plaintiff, Terry Black, initiated this case by filing a Complaint against Glendale Lodging L.P. II, Glendale Management Company, and Scott Roy. A true and correct copy of the plaintiff's Complaint is attached hereto as Exhibit 1. 2. The plaintiff alleges that on April 4, 2008, he was caused to trip as a result of a loading ramp which was lying along the sidewalk at the south exit of the Hotel Carlisle and Embers Convention Center in Carlisle, Pennsylvania (hereinafter, "Hotel Carlisle"), while he was exiting the hotel. (See Exhibit 1 at % 8, 10.) 3. The plaintiff has sued Glendale Lodging L.P. II and Glendale Management Company II for negligence, under a general premises liability theory, on the basis that they were the owners of the Hotel Carlisle at the time of the occurrence. (See Exhibit 1 at % 6, 7, 16-21.) The specific allegation of negligence is that the defendants failed to provide a safe exit for the plaintiff to leave the premise. (See Exhibit 1 at ¶¶ 11, 12.) The plaintiff has also sued Scott Roy, on the basis that he left the truck loading ramp along the sidewalk, while loading his truck, and that he blocked the sidewalk with his truck, forcing the plaintiff to turn off the sidewalk to get around it. (See Exhibit 1 at ¶¶ 11, 12.) There is no allegation that the Hotel Carlisle defendants are liable for the conduct of Defendant Roy. 4. On the date of the loss, defendant Glendale Lodging L.P. II was the owner of the real estate where the Hotel Carlisle is located, and Glendale Management Company II d/b/a Hotel Carlisle and Embers Convention Center (incorrectly named in the Complaint as "Glendale Management Company,") was the manager of the Hotel Carlisle.' There is No Evidence That the Moving Defendants Caused, Created, or had Notice of the Alleged Unsafe Condition 5. There is no evidence sufficient for the plaintiff to carry his burden of proof that the Moving Defendants were negligent in connection with the alleged occurrence. 6. The evidence developed in discovery, including the deposition testimony of the plaintiff, Terry Black, establishes that the Moving Defendants did not cause or create the condition that was the alleged proximate cause of the plaintiff's injuries, and did not have actual or constructive notice thereof. I See Answer to Complaint of Defendants Glendale Lodging L.P. II and Glendale Management Company II d/b/a Hotel Carlisle and Embers Convention Center, at IN 6-7. 7. The evidence demonstrates that the loading ramp on which the plaintiff allegedly tripped was placed on the ground by workers loading a truck from a tool sale being held at the Hotel Carlisle. (See, Guest Incident Report completed by plaintiff, attached as Exhibit 2.) 8. There is no evidence that the Moving Defendants had actual notice that the loading ramp was on the ground adjacent to the sidewalk at the south exit of the hotel. (See, Transcript of Deposition of Terry Black, attached as Exhibit 3, at pp. 35-38.) According to Mr. Black, there was no indication that the hotel employees were aware of the loading ramp: Q:...So is it your testimony that the hotel personnel were not aware that the ramp was there? A: That was the sense I got. (See Exhibit 3 at p. 38.). 9. There is also no evidence that the Moving Defendants had constructive notice that the loading ramp was on the ground adjacent to the sidewalk at the hotel's south exit. The evidence demonstrates that the plaintiff did not notice the loading ramp when he entered the hotel through the south exit door at approximately 4:30 p.m. on April 4, 2008. (See Exhibit 3 at p. 18.) Indeed, he testified that he did not notice the ramp at any time before he tripped. (See Exhibit 3 at p. 25.) As he was exiting the hotel, he did notice a swarm of activity by persons who appeared to be packing up the tool sale that he had previously observed underway in rooms off of the corridor leading to the hotel's south exit. (See Exhibit 3 at p. 37, 43; see also Exhibit 2.) He eventually learned that persons operating the tool sale were responsible for the loading ramp. (Id.) The hotel employees to whom Mr. Black reported his fall had no knowledge of the ramp or other associated activity at the south exit. (See Exhibit 3 at p. 38.) Motion for Summary judgment 10. The Hotel Defendants move for summary judgment on the basis that the foregoing admitted and undisputed facts of record establish that the plaintiff cannot make out a prima facie case of negligence against them. The plaintiff bears the burden of proving the existence of a defect or unsafe condition and that the Hotel Defendants had actual or constructive notice of it. Estate of Swift v. Northeastern Hospital of Phila., 456 Pa.Super. 330, 336 (1997); Moultrey P. Great Alt. & Par. Tea Co., 281 Pa.Super. 525 (Pa.1980); Restatement (Second) of Torts § 343. See also Porm v. Century III Associates, 846 A.2d 1282, 1285-6 (Pa.Super.2004) (to prevail in a negligence action against the property owner, an invitee must present evidence which proves the owner either created the condition that was the proximate cause of the invitee's injury, or had actual or constructive notice of an unsafe condition). 11. There is no evidence that the Hotel Defendants created any defect or unsafe condition that was the proximate cause of the plaintiff's alleged injury. There is also no evidence that the Hotel Defendants had actual or constructive knowledge of any such defect or unsafe condition. Accordingly, the plaintiff cannot establish a prima facie case of negligence against the hotel defendants, and summary judgment should be entered in their favor. See, e.g., Porn P. Century III Associates, 846 A.2d 1282 (Pa.Super.2004); Lanni P. Pennyvlania R.K. Co., 371 Pa. 106, 88 A.2d 887 (Pa. 1952). 12. There are no genuine disputes of any fact material to this Motion, and the Moving Defendants are entitled to summary judgment as a matter of law. 13. This motion is being filed pursuant to Pennsylvania Rule of Civil Procedure 1035.2(a). 14. No judge has ruled upon any other issue in this or any related matter. WHEREFORE, Defendants, Glendale Lodging L.P. II and Glendale Management Company II, respectfully submit that summary judgment should be entered in their favot as to all counts of the plaintiffs Complaint. A proposed Order is attached. Respectfully submitted, 1 Susan E. Smith Attorney ID No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suit e 260 Baltimore, Maryland 21228 Telephone: 410-747-4174 Facsimile: 410-747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Mgmt. Company II Date: , 2009 12/11/2008 13:37 7172640431 VALLEY AGENCY PAGE 02/07 SFrve..? ?Z.;eO?JCj Brian K. ael"ar, sequwo Hyrum Law 2A S INo?r Street Hairi0mg, PA 17110 (717)774-1367 TERRY BLACK, Plaintrff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. G9$ 70tC etc, CL 7 a.,-1 GLENDALE LODGING L.P. fl, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants CIVIL ACTION - LAW arCE You have been sued in court. If you wish to defend against the claims set forth in the following pages, ou ke action within twee days after this cam lalnt and notice are served, by entering a written appearance personally or by attorney and ling in w nr-gg`wn'wthe court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the oompisiint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Legal Aid of Southeastern Pennsylvania 625 Swede Street Norristown, PA 19401 Phone (8T7) 429-5994 elf O&C 9'd 4L28#9*a#LTL Ruedwo0 JaNRWRem 0192:10 00 TT Da0 12/11/2008 13:37 7172640431 VALLEY AGENCY PAGE 03/07 eI. Brim K. Zellrer, Esquire Hyrum Law Atty. 10 M9202 2604 North r $trmt Harrisburg. PA 17110 (717)774-134? TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. V. GLENDALE LODGING L.P. 11, GLENDALE MANAGEMENT COMPANY AND SCOTT ROY, Defendants CIVIL ACTION -LAW COMP IIh! 1. Plaintiff, Terry Black, is an adult individual with an address of 26 Westbury Court, Elizabethtown, PA 17022. 2. Defendant, Glendale Lodging, L.P., IL, is a Ifrnited partnership organized under the Laws of the Commonwealth of Pennsylvania with a registered office address of 1310 Holly Pike, P.O. Box 28, Carlisle, PA 17013. 3. Defendant, Glendale Management Company, is a corporation organized under the Laws of the Commonwealth of Pennsylvania with a registered office address of 1310 Holly Pike, P.O. Box 28, Carlisle, PA 17013. 4. Defendant, Scott Roy, is an adult individual with an address of 9929 Country Road, 3160 Mountain View, MO 65548. 5. On April 4, 2008, the Plaintiff attended the Harrisburg Fly Fishers' Banquet at the Hotel Carlisle, 1700 Harrisburg Pike, Carlisle, PA 17015. 6. The Defendant Glendale Lodging, L.P., li is the owner of the real estate located at 1700 Harrisburg Pike, Carlisle, PA 17015. b'd LL96#51t02#LT4 Ruedwoo ,AamewRom d96: TO so IT naa 12/11/2008 13:37 7172640431 VALLEY AGENCY PAGE 04/07 q 1 7 7. The Defendant Glendale Management Company is the owner of the Hotel Carlisle located at 1700 Harrisburg Pike, Carlisle, PA 17015. 8. On April 4, 2008 at 9:55 p.m., the Plaintiff was leaving the Harrisburg Fly Fishers' Banquet and exiting the Hotel Carlisle via the south exit by door #1. 9. It is believed and therefore averred that the Plaintiff was a business invitee on April 4, 2008. 10. On April 4, 2008, the Plaintiff caught his left foot on a truck loading ramp which was lying along the sidewalk In an unlighted, unsigned area. 11. The Plaintiff believes and therefore avers that the Defendant Scott Roy and/or his agents, servants, workers or employees were loading a truck from a tool sale at the Hotel Carlisle and had left a truck loading ramp along the sidewalk at the south exit by door 01 i an unlighted, unsigned area. 12. The Plaintiff believes and therefore avers that the Defendant Scott Roy and/or his agents, servants, workers or employees blocked the parking lot end of the sidewalk with his trailer forcing the Plaintiff to turn tiff the sidewalk to go around tho truck. 13. The Plaintiff twisted his left ankle and fell twisting his right knee. 14. The Plaintiff suffered the following injuries to his right knee as a result of the incident: a tear to his medial meniscus, a sprain of the medial collateral ligament and a bone bruise of the medial tibial plateau. 15. The Plaintiff suffered a sprained left ankle as a result of the incident. 16. Paragraphs 1 through 15 are incorporated herein by reference as though set forth at length. 17. The Defendants had a duty to keep the property safe for business invitees. 18. The Defendants breached this duty by failing to provide a safe exit for the Plaintiff. E-d 4LZG#9*a*41L Ruedwoo Ja?QwRem d9acto 8o TT Daq 12/11/2006 13:37 7172640431 VALLEY AGENCY PAGE 05/07 6 17 19. As a result of the Defendants' breach of their duty, the Plaintiff suffered an injury to his right knee and left ankle. 20. As a result of the Injury to his right knee and left ankle, the Plaintiff has incurred medical expenses and will incur medical expenses in the future. 21. As a result of the injuries, the Plaintiff has suffered a loss of enjoyment of life and will continue to do so in the future. WHEREFORE, Plaintiff tWectfuily requests this Honorable Court to enter judgment in his favor and against the Defendants in an amount in excess of $50,000 and in excess of the amount requiring compulsory arbitration. tc I I ;k F- 6rian K. Zenner Attorney ID 59262 Hynum Law 2608 North 3rd Street Harrisburg, PA 17110 [797] 7741357 Aittomey for Plaintiff 2'd 4LZ6#90Z#LTL Ruedwoo J0*4ewRQM JS? : to So IT 06a 12/11/2008 13:37 7172640431 VALLEY AGENCY VERIFICATION I. ?fa?.. hereby state that I am the Plaintiff in this action and that the at tements of fact made in the foregoing Complaint are true and correct to the best of my information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. 4904 relating to unsworn falsification to authorities Date: ro log/Oa ?-- Terry Blac T'd LL28#Sb?#GT? Ruedwo0 Je*'JewRC0 PAGE 06/07 ? dSe:TO 80 11 7ea 12/11/2008 13:37 7172640431 VALLEY AGENCY PAGE 07/07 ? ff USTED HA SIDO DEMANIDADO EN CORTE. Si usted desea defenderse de las demandas qua se presentan mas adelante en las siguientes paginae, debe tourer action dentro de is proximos viente (20) dies despues de le notification de este Demands y aviso radicando personalmente o por medio de un abogado una comparecencie escrita y radicando en Is Corte por escritosus defenses de, y objecciones a, las demandas presentadas aqui on contra suys. Se le advierte de que si usted falls de tomar action como se escribe anterlormente, el caso puede proceder sin usted y un fallo por qualquier sums do dinero reclamada en la demandaa o cualyuier otre reclamation o remedio soiicitado por el demandante puede ser dictado an contra suya por la Corte sin mas aviso adiclonal. Usted puede perder dinero o propiedad y otrvs direchos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO iMMEDiATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME d VAYA A LA SIGUIENTE OFICINA. ESTAOFICINA PUEDE PRO VEERLE INFORMACION A CERCA DE COMO CONSEGLJTR UNABOGADO. ST USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSSIBLE QUE ESTA OFICINA LE PUEDA PRO VEER INFORMACION SOBRE AGENCIES QUE OFREZCAN SERVTCIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUECUALIFICAN. Legal Aid of Southeastern Pennsylvania 6255 Swede Street Norristown, PA 19401 Phone (877) 429-5994 S'd LLRe#9*3#LTL Ruedwoo jaMwwRem d9ZsTo so it offa A 08/06/2008 12:22 7172640431 VALLEY AGENCY PAGE 02/03 AUG-07-ROO THU 10:5 8 AN HOTEL CARLISLE FAX No. 717 243 6355 P. 002 HOW caitsle GUEST INCIDENT REPORT Name of petwn filing report; 'Address: Home or. _.. Suslnem (cho*.ons)' F??YW11u1.wI ? Teleplond: Mama %.._. Business &-44E (4 5?w path of incident" 'Time of Incident Pg Date, irio(dent reporfied: /If L Time incident repurteci: ??..no. Person filing repixt: Guest or Nan-guest or tel ergpioy in (check oft) If guest Check4n dete. Tim: Room: If non t Nrpose Of tidal visit:. 14 r- Thoonh ttscdp(Jon (Induce inddent, naWm of bquryl merWW damages. ot*mna): L e.Ak L4 404440* r~?rn ? '>? t h? ? ?'? ? f' i?7 ?•? ?n Fri ?' ? ar?,d a Alke< WoVlon Qf Incident; Laat Updated Bl=005 - 49 tl8~/08t2008 12:22 7172640431 AUG-01-2008 THU 10:68 AEI HbTEL CARLISLE VALLEY AGENCY FAX 40, 111 243 Ubb PAGE 03/03 ?. 00? INCIDENT REPORT, Page 2 Was a *We(s) irnr+okmd: No,,,,? Yes , lfaer: ___-- Make .& Model: Where was vehldo paced:. Medkai treatment requlV? No Yak AV(ettit l #ac ittty: Did anry ads rid? Yes loe Ye$ c- Met quest signatu Are audloritres irtveatigafing this rri7 _ Nra Y.ae ' ' G?ioial*s nsmetat?iisdon: - - . M , , Cr3s? Gunwd statues of situsNort/put9oma of the•indderrt; `t t 'Mot) Signature: Qar++te1: ' emit ttwplefad report to the Gen" Manager. Last t tad 8M003 sQ Terry L. Black 4/7/09 Page 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TERRY L. BLACK, Plaintiff * Civil Action-Law V. * No. 08-7011 GLENDALE LODGING L.P. II, et al., Defendants * * * * * * DEPOSITION OF TERRY L. BLACK The Deposition of Terry L. Black, taken in the above-captioned case on Tuesday, April 7th, 2009, commencing 10:00 a.m., at Hynum Law, 2608 North Third, Harrisburg, Pennsylvania 17110, and realtime reported by Kathleen E. Thibodeau, Court Reporter and Notary Public. EVANS REPORTING SERVICE The Munsey Building, Suite 705 Seven North Calvert Street Baltimore, Maryland 21202 410.727.7100 800.256.8410 Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 2 Page 4 1 APPEARANCES: 1 your complaint that took place on April 4th, 2008. 2 2 Can you follow that understanding? BRIAN K. ZELLNER, ESQUIRE 3 A Yes 3 Hynum Law 2608 North 3rd Street 4 . Q Okay. I will try to make my questions 4 Harrisburg, Pennsylvania 17110 5 clear. That's why I wanted to reach that 5 717.774.1357 bzellner@hynumpc.com 6 understanding. On Behalf of the Plaintiff 7 If you don't understand anything I say, 7 SUSAN E. SMITH, ESQUIRE 8 please let me know, and I'll try again. I tend to Crosswhite, Limbrick & Sinclair, LLP 9 speak fast and sometimes mumble. If you don't 8 405 Frederick Road, Suite 260 10 understand me, please let me know. 9 Baltimore, Maryland 21228 410.747.4174 11 If you answer my question, I will presume ses@cmllaw.net 12 that you understand it. 10 On Behalf of the Defendants, Glendale 13 A Okay. 11 Lodging L.P. II and Glendale Management Company II 14 Q Please for her benefit make an effort to 12 15 answer the questions verbally. We all have a 13 14 16 tendency to give gestures or partial verbal answers 15 17 which she can't take down, nods of the head and 16 18 partial utterances and so forth. So if you could, 17 18 19 please be mindful to give a full verbal response to 19 20 my questions. 20 21 The other thing about a deposition is 21 Page 3 Page 5 1 REALTIME PROCEEDINGS: 1 that it's sort of an unnatural conversation. I 2 (Black Deposition Exhibit Nos. I through 2 have to finish my question before you can start 3 3 were marked for identification.) 3 your answer. 4 Whereupon, 4 Ordinarily, the flow of conversation is a 5 TERRY L. BLACK, 5 little more fluid. And for her benefit, again, I 6 the witness herein, having first declared or 6 would ask you to please wait for me to finish my 7 affirmed under penalty of perjury to tell the 7 question before you begin to answer. 8 truth, the whole truth, and nothing but the truth, 8 There are times when you'll know the 9 was examined and testified as follows: 9 question before I get three words out of my mouth 10 EXAMINATION 10 and you'll want to begin to answer, but please wait 11 BY MS. SMITH: 11 for me to finish so she can take down a complete 12 Q Good morning, Mr. Black. My name is 12 transcript. 13 Susan Smith. I'm an attorney and I'm representing 13 Have you given a deposition before? 14 the hotel entities for the Hotel Carlisle in your 14 A Yes. 15 lawsuit. I'm here to ask you about the events of 15 Q How many times? 16 April 4th, 2008. 16 A Just once. 17 When I refer to the "hotel" in my 17 Q And in what sort of matter was that? 18 questions, I'm referring to the Hotel Carlisle and 18 A It was a civil litigation involving my 19 Embers Convention Center on Harrisburg Pike. 19 employment with the Commonwealth of Pennsylvania. 20 And when I refer to the "incident," I'm 20 Q Okay. And what was the outcome of that 21 referring to your trip and fall that's described in 21 litigation? 2 (Pages 2 to 5) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 6 Page 8 41 A The litigation was decided in favor of 1 professional certificates? 2 the Commonwealth. 2 A I have a bachelor of science in 3 Q You just gave one deposition in that 3 education. 4 matter? 4 Q Okay. When you say part-time at 5 A Actually, yes, just one. 5 Environmental Resources Management, how many hours 6 Q And did you testify at trial? 6 per week? 7 A Yes. 7 A Well, 30 to 35, generally. 8 Q Well, let me start with some background 8 Q What's your wage? 9 questions. 9 A I'm paid at $60 an hour. 10 For the record, can you please state your 10 Q Is that the rate you had in April of 11 full name and address? 11 2008? 12 A My name is Terry L. Black. My residence 12 A Yes. 13 is 26 Westbury Court, Elizabethtown, Pennsylvania. 13 Q Okay. And what's your supervisor's name 14 Q How long have you lived at that address? 14 at Environmental Resource Management? 15, A Twenty-one, 22 years, I believe. 15 A Mark DiPrinzio. 16 Q Okay. Have you ever gone by any other 16 Q And do you have any other jobs? 17 name, nicknames? 17 A Not now, no. 18 A No. 18 Q How about in April of 2008? 19 Q Okay. And your date of birth, sir? 19 A I was driving a delivery truck part-time. 20 A September 21 st, 1946. 20 Q And who were you doing that for? 21 Q Okay. And your marital status? 21 A Ad-Tech CCI. Page 7 Page 9 1 A Married. 1 Q And what kind of company is Ad-Tech CCI? 2 Q On the date of the accident? 2 A They are a wholesaler, I guess, of 3 A I was married. 3 electronic and electrical equipment. 4 Q What's your wife's name? 4 Q And when did you stop working for Ad-Tech 5 A Patricia Ann Black. 5 CCI? 6 Q Okay. And, sir, how are you employed? 6 A I think since the incident I've driven 7 A I am employed on a part-time basis by 7 for them two or three times. That's all. 8 Enviromental Resources Management, which is a 8 Q And how about at the time of the 9 environmental consulting firm. 9 incident, how often? 10 Q What do you do for them? 10 A Pardon me? 11 A I do air quality consulting. 11 Q In April of 2008, what was your work 12 Q How long have you been doing that? 12 arrangement with Ad-Tech CCI? 13 A Since September of 2007. 13 A Generally, one day a week. 14 Q And what sort of background do you have, 14 Q Okay. And how were you paid for that? 15 education or training, that allows you to be an air 15 A Payroll check. 16 quality consultant? 16 Q What was your rate? 17 A I spent approximately 25 years with the 17 A It was $20 an hour. 18 Commonwealth of Pennsylvania doing air pollution 18 Q Did you average an eight-hour day? 19 control work and held progressively more 19 A No. It was around five to seven hours, 20 responsible positions. 20 depending on the number of deliveries that had to i 91 Q Do you hold any advanced. degrees or 21 be done. 3 (Pages 6 to 9) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800- 256-8410 award-winning service Terry L. Black 4/7/09 Page 10 Page 12 1 Q Why has that scaled back since April of 1 Q How about prescription medications, 2 2008? 2 over-the-counter medications, anything of that 3 A After the incident, I couldn't get 3 nature? 4 around -- 4 A The only thing I'm taking is Aleve 5 Q Okay. 5 several times a week -- 6 A -- well enough to drive. And then, 6 Q Okay. 7 subsequent to that, they cut back on their number 7 A -- for pain in my ankle and knee from 8 of truck deliveries. 8 time to time. 9 Q Okay. And tell me about the equipment _ 9 Q Okay. I'm going to ask you some 10 you used to make those deliveries. 10 questions about the accident that took place on 11 A It's a box truck with a liftgate. 11 April 4th of 2008 at the Hotel Carlisle. 12 Q When did you start that work with 12 If you could tell me, why were you 13 Ad-Tech? 13 visiting the Hotel Carlisle that day? 14 A Probably May or June of 2007. 14 A I was at the Hotel Carlisle for the 15 Q And who was your supervisor at Ad-Tech? 15 Harrisburg Fly Fishers' Banquet. 16 A John Duncan. 16 Q Okay. Had you attended that banquet in 17 Q And when were you told that they were 17 previous years? 18 cutting back the number of deliveries, or were you 18 A Yes. 19 told that they were cutting back? 19 Q And where had it been held? 20 A I really wasn't told. I just gathered 20 A Every time I was there, it was at the 21 that in conversation when they -- once in a while, 21 Hotel Carlisle, or whatever its name was at the Page 11 Page 13 , 1 they'd call me to see if I could drive for them 1 time. 2 after that. 2 Q Approximately how many years had you been 3 There were a couple times I could 3 attending? 4 accommodate them, but they indicated the deliveries 4 A Probably ten, 15 anyway. 5 had been cut back in terms of truck deliveries. 5 Q Are you member of the Harrisburg Fly 6 Q Is it your testimony that you're unable 6 Fishers -- what is the organization called? 7 to do that job because of the injury you sustained 7 A That's an interesting question. The 8 in the accident? 8 Harrisburg Fly Fishers isn't an officially 9 A No. 9 chartered organization. Its group of people who 10 Q Okay. You mentioned a prior lawsuit 10 get together for dinner once a year. 11 involving your employment with the Commonwealth. 11 Q So it's an informal gathering? 12 Have you been involved in any other 12 A Yes. 13 litigation? 13 Q People you usually see on the river? 14 A No. 14 A Right. 15 Q Were you taking any medications on a 15 Q Okay. Do you know who organizes that 16 regular basis in April of 2008? 16 function? 17 A No. 17 A No, I don't. 18 Q Are you currently taking any medications 18 Q Okay. There's no sponsoring organization 19 that would affect your ability to give clear and 19 who takes charge of deciding where it is or when it 20 accurate testimony today? 20 is? 21 A No. 21 A There are a group of volunteers who take 4 (Pages 10 to 13) `1 Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 14 Page 16 1 care of that. 1 end of hotel. 2 Q Do you know any names? 2 Q Could you describe for me the parking lot 3 A Not off the top of my head. 3 arrangement? What are the parking options when you 4 Q Okay. Is there any sort of registration 4 arrive at the hotel? 5 that you have to complete to attend? 5 A There's parking in the front of the 6 A Yes. 6 hotel, as I recall. And then there's parking along 7 Q Were you registered? 7 the south side. And I don't know how far around 8 A Yes. 8 the south side and towards the back that parking 9 Q Did you bring anyone with you? 9 goes. 10 A No. 10 Q Okay. And how did you enter the hotel? 11 Q Approximately how many people were there? 11 A Pardon me? 12 A I think they estimate about 350 attend. 12 Q After you parked your car in the lot, how 13 Q Was there a group of friends or 13 did you enter the hotel? 14 associates that you sat with and attended the 14 A Through the -- I guess it's entrance or 15 banquet with, or were you just on your own? 15 Exit 1, the one on the south end. 16 A I sat with one person that I know. 16 Q Okay. Would that be considered the main 17 Q And who's that person? 17 entrance? 18 A His name is Khervin Smith. 18 A No. 19 Q Do you know how to spell Khervin? 19 Q Where's the main entrance? 20 A K-h-e-r-v-i-n, I believe it is. 20 A The main entrance is in the front. 21 Q And what do they do at the Harrisburg Fly 21 Q Is it fair to say that there's a front Page 15 Page 17 1 Fishers' Conference? How long was the program? 1 entrance and then an entrance on each side of the 2 A The program itself was maybe an hour, an 2 building? 3 hour and -- sort of in that range, an hour. 3 A I know there's an entrance on the south 4 There's a mixer and then dinner and then 4 side, but I don't know about the other sides. 5 a presenter. 5 Q How about the rear? 6 Q What time did you arrive at the hotel? 6 A I don't know about that either. 7 A Probably around 4:30, 5:00. 7 Q Okay. So you mentioned that there's 8 Q And what else had you done that day? 8 dinner and a mixer. I understand that there were 9 A I recall I worked awhile. I'm not sure 9 some vendors at the conference. 10 what all the events were leading up to it. 10 Did you visit any of the vendors' booths? 11 Q You worked for awhile that day? 11 A There were to the best of my knowledge no 12 A Yes. 12 vendors -- 13 Q Was that a weekday? 13 Q No vendors? 14 A That was a Friday. 14 A -- at the Harrisburg Fly Fishers -- 15 Q It was a Friday. Okay. 15 Q Were there any other events going on at 16 How far is the Hotel Carlisle from your 16 the hotel that night? 17 residence? 17 A There probably were. There was one, I 18 A Thirty-five, 40 miles. 18 think, that was a tool sale or something like that. 19 Q And where did you park when you arrived 19 Q Okay. How did you become aware of the 20 at the hotel? 20 tool sale? 1 A I parked at the -- it would be the south 21 A They were set up in some rooms along the 5 (Pages 14 to 17) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 18 Page 20 1 corridor where I entered. 1 (Discussion off the record.) 2 Q Was the tool sale completely set up when 2 BY MS. SMITH: 3 you arrived? 3 Q When you left the hotel, which door did 4 A I don't recall. 4 you go through? 5 Q Okay. 5 A I left through what I believe was Exit 1. 6 A I just noticed they were there. 6 Q Okay. The same door that you came in? 7 Q Okay. Did you see the tool vendor's 7 A Yes. 8 truck anywhere in the parking lot when you arrived? 8 Q Okay. And when you first opened the 9 A No. 9 door, what were the lighting conditions in the 10 Q Okay. What time did you prepare to leave 10 parking lot? 11 the conference? 11 A I really don't recall that I noted that 12 A Shortly before 10:00. 12 in my mind. 13 Q I take it it was dark outside at that 13 Q It wasn't so dark that you consciously 14 point? 14 thought, oh my gosh, it's so dark out here? 15 A Yes. 15 A Well, it was dark outside but -- 16 Q Okay. And did you speak to anybody 16 Q Not to a degree that would cause you to 17 before you left? 17 pause or be alarmed or concerned? 18 A I spoke briefly with my brother and his 18 A Right. 19 wife. 19 Q Do you remember the weather conditions? 20 Q And what's your brother's name? 20 Was it overcast? Was it clear? 21 A Lindley Black. 21 A I don't recall. Page 19 Page 21 w 1 Q Lindley? 1 Q Okay. Did you take note of any light 2 A L-i-n-d-l-e-y. 2 fixtures in the area? 3 Q Okay. Did anyone leave with you? 3 A No. 4 A No. 4 Q Would it surprise you to hear that there 5 Q Were you carrying anything with you? 5 were five separate light fixtures in the area of 6 A No. 6 the south exit? 7 Q You don't bring your fly rods and all 7 A I don't know that it would surprise me, 8 that fancy gear? 8 no. 9 A No. And I wasn't lucky enough to win a 9 Q Where were you looking as you headed out 10 raffle prize. 10 that side door? 11 Q Where do they fish around here, by the 11 A I was looking in front of me, as you do 12 way? If there's 350 people attending a Harrisburg 12 when you walk. 13 Fly Fishers' Conference, there's got to be -- 13 Q And describe for me what leads out of 14 A Three blocks behind us is the Susquehanna 14 that door. Are you on a sidewalk? 15 River. 15 A Yes. 16 Q I understand that. 16 Q Are you going directly into the parking 17 A Or behind me. People fish there. They 17 lot? How does that work? 18 fish -- this area is noted for its high-quality 18 A There's a sidewalk that runs to a parking 19 trout streams. 19 lot. 20 Q Oh, okay. I won't tell anyone. 20 Q How wide is the sidewalk? 21 Off the record. 21 A I don't know. It's a concrete sidewalk. 6 (Pages 18 to 21) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 1 I Page 22 Page 24 1 Q And what's on either side of the 1 that semi at the end of the sidewalk? 2 sidewalk? 2 A Pardon? 3 A As I recall -- I haven't been there since 3 Q What did you do when you first noticed 4 there was grass. 4 the semi at the end of the sidewalk? 5 Q Okay. And then the sidewalk terminates 5 A I knew that I was going to have to turn 6 in the park lot; is that correct? 6 off the sidewalk to go around it. 7 A Yes. 7 Q Did you ever think to go back in and try 8 Q What did you observe as you headed down 8 a different exit? 9 the sidewalk? 9 A That didn't cross my mind, no. 10 A As I started down the sidewalk, I noted 10 Q Was there some point when you left the 11 that there was a semi trailer, tractor-trailer 11 sidewalk -- 12 trailer that was parked across the end of the 12 A Yes. 13 sidewalk. 13 Q -- to enable your passage to your car? 14 Q It it fair to say that it was 14 A Yes. 15 perpendicular to the sidewalk? 15 Q When was that? 16 A Perpendicular to the sidewalk. 16 A Sometime, I'm guessing -- I won't say I'm 17 Q Do you remember any company names on the 17 guessing. As best I can recall, a third to a 18 semi trailer? 18 halfway down the sidewalk. 19 A No, I don't. 19 Q You stepped onto the grass; is that 20 Q And it was one of those big 20 correct? 21 tractor-trailers we see on 83 and get frightened 21 A I turned to step onto the grass, yes. Page 23 Page 25 1 by? 1 Q And what happened next? 2 A It was -- it was a tractor-trailer 2 A I caught my left toe on what apparently 3 trailer. 3 was a loading ramp and tripped and fell and twisted 4 Q Okay. It was a big truck. 4 my knee as I fell. 5 A Yes. 5 Q That's your right knee? 6 Q Did you see any people around? 6 A Yes. 7 A There were some people standing around 7 Q Which toe, left toe? 8 the area at the exit. 8 A My left foot. 9 Q And were they wearing any uniforms or any 9 Q Okay. And did you actually fall to the 10 designations of who they were employed by? 10 ground? 11 A I didn't see any. I don't recall any. 11 A I fell to my knees. 12 Q Okay. What were they doing? 12 Q And did you fall onto the grass or around 13 A I don't think anybody was doing anything 13 to the sidewalk? 14 except standing around. 14 A As I recall, my knees were inside the 15 Q Okay. How many steps out of the hotel 15 loading ramp, between the side rails on the loading 16 had you taken when you first noticed the semi? 16 ramp. I didn't actually land on the grass. 17 A I don't recall the exact number. 17 Q Okay. Had you ever noticed a loading 18 Q Were you halfway down the sidewalk or -- 18 ramp before you tripped and fell? 19 A Probably a third, halfway. I'm not sure 19 A No. 20 exactly. 20 Q Where did the loading ramp lead to? i I)1 Q What did you do when you first noticed 21 A It was just lying on the ground. 7 (Pages 22 to 25) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 26 Page 28 1 Q It wasn't attached to the truck? 1 feet or so. 2 A No. 2 Q Did you ever find out why the ramp was 3 Q So it is fair to say it was just a flat 3 there? 4 platform on the grass? 4 A No. 5 A It wasn't a platform. It's a loading 5 (Black Deposition Exhibit No. 4 was 6 ramp with sides that stick up from the ground as it 6 marked for identification.) 7 was lying there. 7 BY MS. SMITH: 8 Q And how -- 8 Q I got discombobulated this morning. I 9 A It was flat on the ground. 9 didn't have a chance to make copies, but I'm going 10 Q How far up did the sides stick up? 10 to hand you what's been marked as Exhibit 4. 11 A I don't know. Several inches. 11 This is a copy of what I understand to be 12 Q What was it made out of? 12 the south exit of the Hotel Carlisle, the 13 A I really didn't stop to examine that. 13 photograph at the top. 14 Q Had you ever used that type of ramp in 14 Does that photograph depict the south 15 your work as a delivery person? 15 exit of the Hotel Carlisle to your recollection? 16 A No. 16 A I don't know that it does. I don't 17 Q Okay. Sir, I seem to recall a prior 17 recall that there were double doors there. 18 statement you'd given where you indicated you had 18 Q But the configuration of the sidewalk to 19 seen it before you encountered it physically. 19 the parking lot, is that true, to your 20 Is it your testimony today that you did 20 recollection? 21 not see it before you tripped? 21 A Yes, but I don't recall that there was Page 27 Page 29 1 A I don't recall that I said I saw it 1 planting along the sidewalk. Actually, I don't 2 before I tripped, but I didn't see it before I 2 think -- the sidewalk that I came out was not along 3 tripped. 3 a wall. 4 Q So it's your testimony today that you did 4 Q Okay. 5 not see it before you tripped? 5 A There wasn't -- as I recall, there wasn't 6 A That is correct. 6 a wall immediately to the right. I could be wrong 7 Q Did any of these people come to your aid 7 but -- 8 after you fell? 8 Q Well, how about that (indicating), does 9 A One person asked if I was all right or 9 that look familiar to you? 10 something to that effect, but no one offered 10 A That looks like the one near the swimming 11 assistance. 11 pool. 12 Q Okay. Were you able to get yourself up 12 Q Okay. So that does not look familiar to 13 off the ground -- 13 you, the top photograph on Exhibit 4? It is not 14 A Yes. 14 consistent with your recollection of the south exit 15 Q -- unassisted? 15 to the Hotel Carlisle? 16 A Yes. 16 A I'm trying to recall if there was a wall 17 Q Okay. How far from the truck was the 17 along the right side. I can't say conclusively. 18 ramp on the grass? 18 Q Okay. But the length of the sidewalk, is 19. A I don't recall the exact distance. I 19 that consistent with your recollection of the 20 can't even recall the exact distance from the door 20 layout of the south exit? 21 to the parking lot, but I would estimate some 20 21 A Fairly so, I guess, yes. 8 (Pages 26 to 29) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 30 l Page 32 1 Q Okay. Could you mark on the photograph 1 sidewalk at all? 2 where approximately you fell and where the ramp 2 A Not that I recall. 3 was? 3 Q Was the truck idling or was it totally 4 A If this (indicating) is the sidewalk from 4 off? 5 the exit, it would be about here (indicating). 5 A I don't recall. 6 Q Let me represent to you that -- well, 6 Q Okay. I think you testified you were 7 there's a pen. Assuming for purposes of this set 7 able to get yourself up off the ground without 8 of questions that this is a depiction of the south 8 assistance; is that correct? 9 exit for the Hotel Carlisle, if you could, mark on 9 A That's correct. 10 here -- and subject to the understanding that 10 Q What did you do after you stood up? 11 you've testified that the sidewalk is consistent 11 A I hobbled to my truck. 12 with your recollection of the sidewalk, with the 12 Q Where was your truck parked in relation 13 exception of there being a wall there, could you 13 to this sidewalk? 14 mark on here where the ramp was? 14 A . Someplace in this area over here 15 A Someplace in this area here (indicating). 15 (indicating). There's some parking along the far 16 Q Okay.. Yeah. I need you to make an "X" 16 side of that area (indicating). 17 or a deeper mark on it. You can even mark on the 17 Q Can you give me a distance between the 18 sidewalk area, if you like, so it's visible. 18 sidewalk and your car? 19 A Someplace in here (indicating). I don't 19 A I don't know. Twenty, 30 feet, maybe a 20 remember exactly where, though. 20 little more. 21 Q And the truck, was there any space 21 Q . And what did you do when you got to your Page 31 Page 33 1 between the end of the sidewalk and the truck, or 1 car? 2 was the truck blocking the end of the sidewalk? 2 A I drove around to the front of the hotel 3 A I believed it to be blocking the end of 3 and went to the lodging desk and told the folks at 4 the sidewalk. 4 the lodging desk what had happened. 5 Q Okay. What was your plan as you exited? 5 Q And, sir, you testified that you hobbled 6 I mean, the semi truck is quite large. What was 6 to your truck. 7 your plan to get into the parking lot if the semi 7 A Yes. 8 was blocking the end of sidewalk? 8 Q What exactly did you mean by that? 9 A As I said, I was turned and I was going 9 A Well, I had what turned out to be a 10 to go across the grass to the parking lot. 10 severely sprained ankle and a knee that was 11 Q Okay. You were going to walk around the 11 injured. I didn't walk comfortably. I hobbled. 12 truck? 12 Q Okay. Were you feeling discomfort or 13 A Yes. 13 pain in any part of your body? 14 Q Do you have any recollection of how long 14 A I was feeling discomfort in my knee and 15 the ramp was? 15 my ankle. 16 A No, I don't. 16 Q Okay. Which knee and which ankle? 17 Q Did it extend out to the grassy area in 17 A My left ankle and my right knee. 18 this picture? 18 Q Were you bleeding anywhere? 19 A As I recall, it was perpendicular to the 19 A No. 20 sidewalk. 20 Q Were you scraped, or did you have any 1 Q Okay. Did the ramp encroach onto the 21 abrasions anywhere? 9 (Pages 30 to 33) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 34 Page 36 1 A I don't recall if I did. 1 what had occurred to you and the tool show? 2 Q Was there any staining or marking or 2 A I just assumed when they were talking 3 tearing on your clothing? 3 about the people who are loading stuff that that's 4 A There was no tearing on my clothing. The 4 what it was. I just made that assumption. 5 toe of my left shoe was scuffed. 5 Q What was that assumption based on? Did 6 Q What sort of shoes were you wearing? 6 you see any uniforms, any name of any company? 7 A Penny loafers. 7 A No. 8 Q Sir, how tall are you? 8 Q Did you see any tools being loaded? 9 A Approximately six feet. 9 A No. 10 Q Have you ever had any prior injuries to 10 Q Did you ever receive any confirmation 11 your left ankle or your right knee? 11 from the hotel or anybody associated with the hotel 12 A I have from time to time sprained my 12 that the ramp and truck were associated with the 13 ankles and probably have sprained my left ankle or 13 tool sale? 14 twisted it. 14 A I never received any indication of 15 Q And how have those injuries occurred? 15 anything from the Hotel Carlisle. 16 A Walking on uneven surfaces. 16 Q Okay. Did you ever learn from any other 17 Q Okay. Do you recall prior to April 4th 17 person or entity that the truck and the ramp were 18 of 2008 the last time you'd had a sprain to your 18 associated with the tool sale? 19 ankle? 19 A Not really, other than what Brian has 20 A No, I don't. 20 been able to determine. 21 Q Do you recall the name of the person you 21 Q Well, Mr. Black, you've sued a person Page 35 Page 37 1 spoke to at the front desk? 1 named Scott Roy in this lawsuit. Do you know what 2 A No, I don't. 2 Scott Roy's role in this is? 3 Q Okay. What did they tell you? 3 A I do not know. 4 A Regarding what? 4 Q Do you know why Mr. Roy is a defendant in 5 Q Well, tell me what you recall of your 5 this lawsuit? 6 communication with the hotel attendant. 6 A I do not know personally, no. 7 A I told them what had happened. 7 Q Okay. And it's your testimony today that 8 Q What did you tell them? 8 nobody has ever informed you and you've never 9 A I told them that, when I was leaving, I 9 learned that the ramp and the truck was associated 10 had tripped over this ramp that was along the edge 10 with the tool sale? 11 of the sidewalk. 11 A Other than discussions with counsel and 12 And the fellow whom I'm assuming was the 12 what he's determined. 13 lodging manager then called someone who was 13 Q Okay. And did anyone ever tell you that 14 purportedly part of the security for the hotel, and 14 ramp or truck were associated with any of the 15 they had a discussion. 15 hotel's business? 16 And as I recall, the security fellow gave 16 A No. 17 no indication that he knew what was going on. 17 Q Okay. If you could explain to me, you're 18 Q In terms of what? 18 standing at the front desk having a communication 19 A The tool show and any activities they 19 of some sort with the person you believe to be the 20 might be doing. 20 manager; is that correct? 21 Q How did you make the connection between 21 A The lodging manager, I guess, yes. 10 (Pages 34 to 37) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 I Page 38 Page 40 1 Q And now a security person becomes 1 Q Okay. Other than the person by the 2 involved in this conversation? 2 truck, the hotel manager and security guard, you 3 A Yes. 3 didn't speak to anybody else? 4 Q You were testifying you had indicated 4 A No. 5 that your perception was the security guard didn't 5 Q Okay. And did they ask you to complete 6 know what was going on and didn't have any 6 an incident report? 7 knowledge regarding the tool sale? 7 A Yes. 8 A No. 8 Q I'm going to show you what's been marked 9 Q Okay. What was your testimony with 9 as Exhibit 1. 10 regard to the security guard then? 10 Is that the incident report that you 11 A That he wasn't aware of any activities 11 completed? 12 out there related. 12 A Yes. 13 Q Related to what? 13 Q Okay. And did you fill this out? Is 14 A Related to why the ramp would be there or 14 this your handwriting? 15 anything of that nature. 15 A Yes. 16 Q Okay. So is it your testimony that the 16 Q And it states in the incident report, 17 hotel personnel were not aware that the ramp was 17 "Workers loading truck from tool sale had truck 18 there? 18 loading ramp lying on the sidewalk." 19 A That was the sense I got. 19 How did you have that information 20 Q Okay. Do you remember anything else 20 available to you if you nobody confirmed or 21 about your communication with the hotel 21 informed you that the ramp was associated with the Page 39 Page 41 1 representatives that night? 1 sale? Strike that. Let me ask this question. 2 A They asked me if I wanted to go see a 2 How did you obtain that information 3 doctor. 3 that's in the description section of the incident 4 Q And what did you tell them? 4 report? 5 A I declined at the time. 5 A That was an assumption on my part. 6 Q And why did you decline? 6 Q What was that assumption based on? . 7 A Because I didn't want to be in a 7 A That there were people from this tool 8 small-town hospital emergency room at 10:00 on a 8 sale that was going on. 9 Friday night. 9 Q How did you make the connection to the 10 Q Did they offer any sort of aid in terms 10 people and the tool sale? 11 of ice or aspirin or anything of that nature? 11 A I might have lept to a conclusion. 12 A No. 12 Q Well, sir, you couldn't have just drawn 13 Q Did you ask for anything of that nature? 13 this out of thin air. It had to have been based on 14 A No. 14 some observation or something you heard or 15 Q Okay. Did you speak to anybody other 15 perceived. There has to be some basis for a 16 than the front desk attendant and the security 16 conclusion or assumption. 17 guard? 17 And I'm trying to understand how it is 18 A I think I indicated earlier, someone 18 you came to state this description if the hotel had 19 asked me if I was okay. 19 not been able to inform you who those people were 20 Q One of the people out by the truck? 20 or why the ramp was there. How did you incorporate A Yes. 21 this into your incident report? 11 (Pages 38 to 41) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 42 Page 44 1 A There was obviously activity that looked 1 Q -- correct? 2 like they were taking the tool sale down. 2 A Well, before I exited the hotel. 3 Q Where was that activity? 3 Q As you were walking down the corridor 4 A That was in the hallway, in the rooms 4 towards the exit door, correct? 5 along the hallway -- 5 A Yes. 6 Q Okay. 6 Q Okay. Was there any of this activity 7 A -- where I exited. 7 actually happening in the corridor itself? 8 Q Okay. So take me back to when you exited 8 A Not that I recall. 9 because that might fill in the gaps that are 9 Q Was there anything blocking the corridor 10 missing. 10 as you moved down towards the door? 11 As you approached the south exit from the 11 A No. 12 inside when you were leaving -- 12 Q Okay. Were there any people in that 13 A Yes. 13 corridor as you walked towards the door? 14 Q -- is that a hallway or some sort of 14 A That, I don't recall. 15 corridor that you walk through? 15 Q Okay. Was your passage down the corridor 16 A It's a corridor with rooms on either 16 to the door blocked or impeded in any way? 17 side, as I recall. 17 A No, it wasn't. 18 Q Okay. And what, if any, activities did 18 Q Okay. So your statement in the 19 you observe in that corridor as you approached the 19 description section of the incident report is based 20 exit door? 20 on what you observed as you went down that corridor 21 A Not so much in the corridor, but it 21 towards the exit door; is that correct? Page 43 Page 45 1 looked as though they were dismantling the area 1 1 A Yes. 2 had noted as a tool-sale area when I was entering. 2 Q Okay. And you indicate in this statement 3 Q What were they dismantling? 3 that it was an unlighted area? 4 A They were boxing up different tools and 4 What area do you contend was unlighted? 5 things like that that were -- that they had for 5 A As I recall, there weren't lights along 6 sale that they hadn't sold. 6 the sidewalk. 7 Q Where was this activity taking place? 7 Q Okay. Were there any lights by the door? 8 Was it in the corridor itself, or was it in a -- 8 A I don't recall for sure. 9 A Room. 9 Q Were there any lights in the parking lot? 10 Q -- room off the corridor? 10 A I don't recall that for sure either. 11 A Rooms off the corridor. 11 Q Did you have any difficulty walking from 12 Q Okay. We're going to have a problem with 12 the point where you fell to your car due to 13 the court reporter here. You have to let me finish 13 darkness or lack of lighting? 14 my sentence. 14 A I really wasn't paying attention to the 15 So there were rooms off the corridor 15 lighting at that point. 16 where you observed people packing up tools; is that 16 Q Okay. Did you have any difficultly 17 correct? 17 getting you car keys and getting into your car 18 A Yes. 18 because of a lack of light in the parking lot? 19 Q And you observed that as you exited the 19 A No. My car keys were in my pocket, and I 20 hotel -- 20 have an electric door opener. 21 A Yes. 21 Q Okay. And then you indicate it was an 12 (Pages 42 to 45) -11 Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 46 Page 48 1 unsigned area. 1 Q Did you call anyone on the way home to 2 What do you mean when you state that it 2 let them know you'd had an accident? 3 was unsigned? 3 A I don't recall if I called my wife or 4 A There was nothing there to alert me to 4 not. 5 any potential danger. 5 Q Did you have to stop anywhere to get some 6 Q What would you have expected to have been 6 ice or Aleve or anything of that nature? 7 there? 7 A No. 8 A Well, I would have thought that if there 8 Q Did you make any stops on your way home? 9 were some danger there with use of that exit that 9 A Not that I recall. 10 they would have put signs on, do not exit, or 10 Q What did you do when you got home? 11 something like that. 11 A I got home. I took some pictures of my 12 Q Did you notice any other people exiting 12 ankle in case there was any question if there was 13 through those doors at around the time you 13 an injury. 14 departed? 14 Q Why did you do that? 15 A No. 15 A Because I didn't know how the insurance 16 Q Okay. And on the second page next to the 16 would cover that, what kind of issues there might 17 entry that says, "Was medical refused," you checked 17 be. 18 yes, but then somebody wrote in "For the time 18 Q What did your ankle look like? 19 being." 19 A It was extremely swollen and there was 20 Is that your handwriting? 20 discoloring. 21 A That's my time being -- my writing, yes. 21 Q Okay. Is there anything else that you Page 47 Page 49 1 Q And what did you mean by that? 1 did when you got home that night? 2 A I meant that I didn't want to go to the 2 A I iced it. 3 hospital emergency room. 3 Q You iced what? 4 Q Okay. Did you feel you were able to get 4 A I iced my ankle. 5 yourself home safely? 5 Q Is there anything else that you did 6 A I believed I was. 6 before you went to bed that night? 7 Q Okay. And did you have any difficultly 7 A I think I took some Aleve. 8 driving yourself home that night? 8 Q Is that something you ordinarily take for 9 A I had pain in my right knee. 9 aches and pains and headaches and things? 10 Q What sort of pain? 10 A Yes. 11 A Just sort of an aching pain and, of 11 Q And did that help? 12 course, my ankle. 12 A No, not really. 13 Q Was it a sharp pain, a dull pain? Was it 13 Q Were you able to sleep okay that night? 14 constant? Was it intermittent? 14 A No. 15 A It was pretty much constant. And my left 15 Q Okay. Tell me what happened. How did 16 ankle was constant burning pain. 16 you feel when you woke up that morning, the morning 17 Q Okay. You were able to get yourself home 17 of the 5th? 18 okay? 18 A Not very rested. My ankle was hurting 19 A Yes. 19 and my knee was hurting. 20 Q And how long is the drive? 20 Q Okay. How did your ankle look at this N 1 A I don't know, 35, 45 minutes. 21 point? 13 (Pages 46 to 49) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 50 Page 52 1 A It was still swollen and discolored. 1 Q What do you mean by the "entire period"? 2 Q Okay. And what about your knee, was 2 A Through the progression of getting the 3 there any discoloration or swelling on your knee 3 diagnosis and the surgery. 4 that you could observe? 4 Q When did you stop wearing the knee brace? 5 A Slightly -- I'm sorry. My left -- or my 5 A I actually haven't stopped wearing it. I 6 right knee was slightly swollen, and I had pain in 6 still wear it from time to time. 7 my knee. 7 Q Okay. Did you wear it on a -- I need 8 Q Were you able to walk okay? 8 some more specifics. How often did you wear the 9 A No. 9 knee brace between April 5th of 2008 and May 20th 10 Q Okay. How was your walking impeded? 10 of 2008? 11 A I hobbled. 11 A Virtually, every day. 12 Q Okay. And when did you first seek 12 Q Okay. 13 medical treatment? 13 A As I said, I think he's the one who 14 A On Saturday, which was the day -- 14 prescribed it. I'd have to check my records. But 15 Q The day after? 15 I wore it every day from the time I put it on. 16 A Yes. 16 Q And was that just an elastic sleeve or 17 Q Okay. Who did you go to? 17 mechanical brace? 18 A I went to Norlanco Medical Center and saw 18 A It was a sleeve. 19 Dr. Yoder. 19 Q How long did your ankle bother you? 20 Q Okay. Dr. Yoder at Norlanco? 20 A It still bothers me. 21 A Yes. 21 Q How long did the ankle have discoloration Page 51 Page 53 1 Q Is that your primary care physician? 1 and swelling? 2 A The Norlanco Center is, yes. 2 A Several weeks. I don't recall exactly 3 Q Okay. Saturday morning -- you've got a 3 how long. 4 doctor that works on Saturday morning? 4 Q Well, let's use the date of your surgery 5 A The center is open Saturday mornings. 5 as a benchmark on May 20th, 2008. Was your left 6 Q What did Dr. Yoder do? 6 ankle still swollen and discolored at that point? 7 A He examined me, confirmed the sprained 7 A No, I don't believe it was. 8 ankle and indicated he thought that my knee was 8 Q Okay. Was there a point when your doctor 9 just sprained. 9 indicated to you that he believed the sprain of 10 Q Okay. And do you recall what treatment 10 your left ankle had fully resolved? 11 he recommended at that point? 11 A No. 12 A As I recall, he put an air cast on my 12 Q If there's an indication in the medical 13 ankle. And I think he's the one who suggested the 13 records that after a few weeks of visits your 14 knee brace. 14 doctor determined that the ankle had healed, you 15 Q Okay. And did you wear the air cast? 15 would disagree with that? 16 A Yes. 16 A I don't think there was ever a point 17 Q For how long? 17 where he said, "It's healed." It's just one of 18 A I don't recall. A week, two weeks 18 those things that, after a time, it is healed. And 19 probably. 19 I don't think there was -- as I recall, I don't 20 Q Okay. How about the knee brace? 20 think the doctor gave an indication, it's now 21 A I wore it through the entire period. 21 healed. 14 (Pages 50 to 53) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 54 Page 56 1 Q Well, was there a time at which he 1 symptomatology, I guess, as compared to the prior 2 stopped treating you for your ankle injury? 2 sprains you had suffered. 3 A I think when I last saw Dr. Yoder about 3 A It was probably less severe than the one 4 it, he said that it would take awhile for it to be 4 I had in my right ankle. 5 completely healed, but it was doing well. 5 Q Okay. And did your left ankle ever 6 Q Okay. In the past when you'd had ankle 6 bother you? 7 sprains, how long did it take for them to resolve? 7 A That was 15 years ago and -- 8 A In terms of the swelling going down? Is 8 Q Well, does it bother -- 9 that the question? 9 A It doesn't bother me now. 10 Q Well, I want to know how long it took for 10 Q Okay. And how about your right knee, is 11 your ankle to heal previously when you had ankle 11 it your testimony today that, prior to April 4th, 12 sprains. 12 2008, you didn't have any aches, pains or stiffness 13 A I don't really recall the exact time. 13 with respect to your right knee? 14 Q Okay. Were you having any residual 14 A I can't say that I didn't have any aches 15 aches, pains or burning sensations due to the prior 15 or pains. I did have some pain from time to time. 16 sprains before the April 4th incident? 16 Q Okay. How often? 17 A No. 17 A Maybe once a month. 18 Q Okay. So those prior sprains didn't have 18 Q Can you tell me a little bit about your 19 any residual effect on your ankle? 19 physical activities? What do you do for exercise? 20 A No. 20 A l walk. I've biked in the past. l hunt. 21 I Q Okay. But it's your testimony today that 21 I fish. Page 55 Page 57 1 the sprain you received on April 4th did cause you 1 Q Okay. And had that right knee ever given 2 some residual problems? 2 you any difficultly with respect to those 3 A I still have some, yes. 3 activities before April 4th, 2008? 4 Q And why do you believe that is? 4 A Could you ask that again, please? 5 A I don't know. I -- I don't know. 5 Q Had the right knee given you any 6 Q You don't know why this sprain in 6 difficulty with those activities prior to 7 particular has caused you residual problems as 7 April 4th, 2008? 8 opposed to the prior ones? 8 A Other than some burning from time to 9 A I don't recall how long the residual 9 time, no. 10 problems might have been with the prior ones. 10 Q And how often did you have that burning? 11 Q Okay. 11 A Maybe once a month. 12 A So I don't know that this is extreme. 12 Q Okay. Had anyone told you prior to 13 Q Okay. Was the sprain that you received 13 April 4th, 2008 that you had any arthritis in your 14 on April 4th significantly different from prior 14 knee? 15 sprains that you had sustained to your ankles? 15 A No. 16 A I don't know if I can make that 16 Q Okay. There's some indication in your 17 conclusion. I'm not, you know -- 17 medical records of a sprained fracture of your 18 Q Well, you experienced them so, yeah, I 18 right fibula. 19 want some understanding of how -- 19 Do you remember when that happened? 20 A I -- I don't -- 20 A That may have been when I did the severe ?1 Q Was this different in severity or 21 sprain of my ankle. 15 (Pages 54 to 57) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 58 Page 60 1 Q Okay. How did you sustain that injury? 1 Q You were standing up from a chair? 2 A I was going down steps. 2 A Yes, probably, or a couch. But it was 3 Q And what sort of treatment did you 3 just, you know, all of a sudden, this intense pain 4 receive for that? 4 was there. 5 A There was a cast put on for awhile. 5 Q Okay. How long did that last? 6 Q A plaster cast? 6 A Do you mean the shot of pain or -- 7 A No, a fiberglass cast. 7 Q Yes. 8 Q Okay. I think with respect to your right 8 A I really don't know. When I have that 9 knee you testified that there was a progression of 9 kind of pain, I -- you know -- 10 symptoms. Could you describe that for me? 10 Q Was it before you went to the doctor on 11 A At first, I had the pain and aches in the 11 Saturday or after you went to the doctor on 12 knee, and that was what I experienced when I was 12 Saturday? 13 leaving the Hotel Carlisle. 13 A It was -- I think it was after I went to 14 The next few days, I noticed when I was 14 the doctor that I first noticed the pain when I 15 walking along, every once in a while, I'd get a 15 tried to walk. 16 severe pain that almost brought me to my knees just 16 Q Okay. And what did you do when you felt 17 sort of randomly. 17 that pain? Did you call the doctor? 18 Q What area of your knee would you feel 18 A He told me that I should just let my knee 19 that in? 19 go for a week or so and see how it went. And when 20 A Right in the joint. 20 I started to experience this pain, I don't remember 21 Q Was it on the other side or on the top? 21 how soon it was, I went back to him. Page 59 Page 6: 1 A It was the kind of pain I really couldn't 1 And he, again, said he thought it was 2 tell where it was coming from. It was that severe. 2 just a sprain. And that wasn't satisfactory 3 Q You couldn't identify any particular area 3 because it didn't feel like just a sprain. 4 of your knee that was affected? It was just you 4 Q Did he prescribe any medication or other 5 would generally say your knee? 5 treatment besides the brace? 6 A Yes. 6. A I don't know if he gave me any medication 7 Q It wasn't on either side. I mean, I need 7 or not. I don't recall. 8 you to tell me, are you able to associate it with 8 Q Did he tell you to ice it? 9 the inside or the outside of your knee? 9 A Yes. 10 A It was probably on the -- more on the 10 Q And did you ice it? 11 inside of my knee, but it was just -- 11 A Yes. 12 Q It was a sharp pain? 12 Q Did that alleviate the pain? 13 A It was an extreme pain, sharp pain, and 1 13 A It did in the ankle, but not the knee. 14 don't know how to describe it. 14 Q The ice didn't help your knee at all? 15 Q When did you first notice it? 15 A Not really, no. It didn't help those 16 A It was probably Saturday afternoon and 16 pains when I was walking. 17 maybe -- 17 Q Okay. Did you feel pains constantly or 18 Q What were you doing when you first 18 just when you were walking? 19 noticed it? 19 A At first just when I was walking, but 20 A I was just standing up to walk someplace 20 then it got to the point where, if I were lying in 21 to get a glass of water or something. 21 bed and turned, I'd feel the pain. If I rolled 16 (Pages 58 to 61) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service 1 Terry L. Black 4/7/09 Page 62 Page 64 'l 1 over in the night, it would wake me up. 1 Q Did any of your doctors recommend that / 2 Q Okay. At some point, surgery is the 2 you engage in any physical therapy? 3 subject of some discussion with you and your 3 A No. 4 doctor. Who first proposed that? 4 Q During the period of April 5th to 5 A I went -- I think my third visit on the 5 May 20th, did you take any medications at the 6 thing was to see Dr. Harnly at Norlanco. 6 recommendation of your doctors to treat the 7 Q Does he have some sort of specialty? 7 symptoms you had in your knee and ankle? 8 A I think they're all GPs. 8 A I don't think any of the prescribed 9 Q Okay. 9 medications, but I was taking Aleve. 10 A And he examined my knee and indicated he 10 Q And that was at your own discretion? 11 believed I had a torn meniscal cartilage and 11 A Yes. 12 prescribed X-rays and then an MRI, which confirmed 12 Q Did any of the doctors recommend any 13 I had torn cartilage. 13 exercises or what I would call home exercises to 14 Q So no X-rays or MRIs were taken until 14 help alleviate the symptoms in your knee or ankle? 15 several visits in? 15 A No. 16 A Right. 16 Q How long have you been seeing the doctors 17 Q Did you ever see an orthopedist? 17 at Norlanco? 18 A From -- after the MRI, I went to see 18 A Since the early'70s. 19 Dr. Conrad. 19 Q Had you ever seen Dr. Conrad before? 20 Q Okay. And Dr. Conrad is the orthopedist? 20 A No. 21 A Yes. 21 Q Have you ever been to an orthopedist of Page 63 Page 65 1 Q What did Dr. Conrad tell you? 1 any kind before? 2 A He confirmed that I had torn cartilage. 2 A, No. 3 Q And has anyone ever told you that the 3 Q Between the period of April 4th and 4 torn cartilage was because of the fall on 4 May 20th, were you doing your regular exercise 5 April 4th? 5 routine? 6 A I don't understand the question. 6 A No. 7 Q Have any of these doctors told you that 7 Q Did you go hunting or fishing or any of 8 the torn cartilage was caused by the fall on 8 those activities? 9 April 4th? 9 A No. 10 A I don't recall that they did, no. 10 Q Is it your testimony that you did not 11 Q Okay. And who is it that recommended 11 injure or reinjure your knee between April 5th and 12 surgery? 12 May 20th? 13 A Dr. Conrad. 13 A That is correct. 14 Q Okay. Did Dr. Conrad discuss with you 14 Q Okay. Have you ever attended physical 15 any alternatives to surgery? 15 therapy to treat your knee or ankle? 16 A I don't recall he indicated any. 16 A I have not attended physical therapy. 17 Q During the period of April 5th to 17 Q How about optional therapy, anything of 18 May 20th when you did have the surgery, were you 18 that nature? 19 engaging in any physical therapy or other such 19 A No. As I recall, after the sprain on my 20 treatment activities? 20 right ankle, I was given some elastic to exercise 1 A No. 21 my right foot against. That's the only therapy. 17 (Pages 62 to 65) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 66 Page 68 1 Q And who recommended that? 1 Q What did the X-ray do? 2 A The doctors at Norlanco. 2 A The X-ray was preliminary, as I 3 Q And when did you start to do that? See, 3 understand it, to the MRI. It's something that has 4 this is what I mean by things like home exercises. 4 to be done prior to an MRI. 5 A I don't even recall exactly when that 5 Q And the MRI revealed some torn cartilage? 6 injury was. 6 A Yes. 7 Q Oh, this is your other ankle? 7 Q And what part of the knee was affected? 8 A This is my right ankle. 8 A Medial meniscal cartilage. 9 Q So a past injury? 9 Q Okay. Tell me about the postsurgical 10 A Yes. 10 activities. This was arthroscopic surgery? 11 Q Did you ever do those exercises? 11 A Yes. 12 A Yes. 12 Q On an outpatient basis? 13 Q Okay. For how long did you do those 13 A Yes. 14 exercises? 14 Q At a surgery center? 15 A I don't recall. 15 A Yes. Basically, yes. 16 Q Did anyone recommend that you engage in 16 Q How long were you off work? 17 similar exercises for your left ankle? 17 A A couple of days. 18 A No. 18 Q Would that be documented with your 19 Q So you had the surgery on May 20th. What 19 employer? 20 exactly did they do, do you recall? 20 A As I indicated earlier, I work on a 21 A Dr. Conrad indicated he removed some 21 part-time basis. I go into work basically when I Page 67 Page 69 1 cartilage and cleaned up some arthritis that I had 1 want. 2 in my knee. 2 Q Was that your arrangement with ERM as 3 Q Does your left knee ever bother you? 3 well? 4 A No. 4 A That's my arrangement with ERM, yes. 5 Q And what, if anything, has Dr. Conrad 5 Q Well, when I ask you about lost wages, 6 told you with respect to the arthritis? 6 what I need to understand is, was there any time 7 A I don't recall except that he said I had 7 you were scheduled to or expected to work that you 8 arthritis and that he cleaned it up. 8 were unable to work because of the surgery? 9 Q Has he ever told you what to expect with 9 A As I indicated, there is no schedule for 10 regard to the arthritis in terms of future issues? 10 my working. I work on the projects and I can work 11 A It's not going to go away. 11 at home. I work, you know -- 12 Q And did Dr. Conrad ever tell you that the 12 Q So you're not expected to go to the 13 arthritis was caused by the fall on April 4th of 13 office -- 14 2008? 14 A Right. 15 A No, he didn't. 15 Q -- and engage in work activities there? 16 Q Okay. Did he explain to you that that's 16 A Right. 17 a degenerative condition? 17 Q So was there any work that you were 18 A Yes. 18 expected to do but were unable to do because of the 19 Q I think your testimony was the X-ray 19 surgery you had on May 20th? 20 revealed some torn cartilage. Did anyone -- 20 A There were projects I was working on that 21 A No, the X-ray didn't. 21 I had to put off working on. 18 (Pages 66 to 69) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 70 Page 72 1 Q Did you miss any deadlines or were any 1 do? 2 completion dates delayed because of the surgery? 2 A Stationary cycle, balancing activities, 3 A No. 3 leg extension activities, that sort of thing. 4 Q Tell me what your recovery consisted of 4 Q Okay. 5 in the five days after your surgery. 5 A And I did that for three to four weeks. 6 A I can't remember the exact days, but a 6 Q Did they recommend that you continue any 7 day or two after surgery, I started physical 7 home exercise routines when you completed the 8 therapy. 8 physical therapy? 9 Q I thought you testified you didn't engage 9 A Not after I completed physical therapy 10 in any physical therapy? 10 , but during the physical therapy period twice a day 11 A Prior to this, I didn't. 11 and sometimes three times a day, I was to do 12 Q Well, that wasn't my question. 12 exercises at home. 13 A Sorry. 13 Q And did you do those exercises? 14 Q So you did engage in some physical 14 A Yes. 15 therapy? 15 Q And did you do them as often as 16 A After the surgery. 16 recommended? 17 Q And you began that two, three days after 17 A Yes. 18 the surgery? 18 Q Tell me how your knee felt after three to 19 A Yeah. Well, one to two days. I think it 19 four weeks of physical therapy. 20 was the second day that I started. 20 A I had the extension that they had 21 Q Who was the physical therapy provider? 21 expected. I had the flexing capability. And the l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 0 ( Page 71 A I think they're part of Lancaster General Hospital. Q Is that where you had the surgery? A Yes. Q And who performed the surgery? Wasit Dr. Conrad? A Dr. Conrad, so far as I know. I was unconscious at the time. Q And how long did you participate in physical therapy after the surgery? A I don't recall exactly how long it was. Q Well, let me -- A Probably three or four weeks. Q -- explain it to you this way. Did it help? A I guess it did. Q How often did you go? A I think it was twice a week. Q How long did the sessions last? A About an hour each time. Q What sort of activities did they have you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Page 73 severe pain that I experienced before the surgery was gone. Q Okay. And how's your knee feeling today? A Today, it feels all right. Q Okay. Are you continuing any sort of home exercises or exercise routines that were recommended by the physical therapists or the doctors? A No, I'm not. Q When was the last time that you saw a doctor for complaints related to your knee? A I think it was mid November I went to see Dr. Conrad. Q Why did you see Dr. Conrad in mid November? A Because I had pain and swelling in my knee. Q That was November of '08? A Yes. Q What did Dr. Conrad tell you about that? A He said that was probably related or 19 (Pages 70 to 73) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 74 Page 76 1 could be related to arthritis. 1 A I believe you did. 2 Q And did he give you any medication or 2 Q Did I ask you how's your ankle today? 3 treatment for that? 3 A Right now, I don't feel any pain in it. 4 A He took fluid out of my knee and gave me 4 Q Okay. Does it ever give you any 5 a cortisone treatment. 5 problems? 6 Q . Was that the first time you had the 6 A Pardon me? 7 cortisone treatment? 7 Q Does your ankle ever give you any 8 A No. That was the third cortisone 8 problems? 9 treatment following surgery. 9 A In terms of? 10 Q Okay. Did your symptoms improve after 10 Q Your left ankle, in terms of being able 11 the cortisone injection and the drainage? 11 to do your normal day-to-day activities. 12 A Yes. 12 A It causes me concern. I don't want to 13 Q Okay. Is he having you take any regular 13 turn it again, so it makes me more cautious perhaps 14 medication for the arthritis? 14 in some things I do. 15 A No. 15 Q Okay. And how about your right knee, 16 Q How about your left ankle, when's the 16 does that get in the way of your day-to-day 17 last time you saw any doctors for symptoms related 17 activities in any way? 18 to your left ankle? 18 A Not really, except for the caution or the 19 A As I recall, that was my second visit 19 fear of doing something that would injure it again. 20 with Dr. Conrad -- or Dr. Yoder. 20 Q Okay. This is going to sound odd, but 1 21 Q Your second visit after the accident? 21 have to ask you, do you ever use any assistive Page 75 Page 77 # 1 A Yes. 1 devices for any reason, a cane or the brace that we 2 Q And that's the last time you spoke to him 2 talked about earlier? 3 about your ankle symptoms? The second visit after 3 A I use the brace. 4 the accident, is that the last time you spoke to 4 Q How often do you use the brace? 5 any doctor about your left ankle? 5 A It depends on what my activities are. 6 A As I recall, yes. 6 Q And the brace is for your right knee? 7 Q Okay. Has a doctor or physical 7 A Yes. 8 therapist, healthcare provider of any sort told you 8 Q Okay. What sort. of activity would prompt 9 you need further treatment for your left ankle or 9 you to use the brace? 10 right knee? 10 A If I'm -- if I know I'm going to be 11 A No one has said anything about my right 11 walking on uneven surfaces like hunting or fishing. 12 ankle. Dr. Conrad has said that -- 12 Q But you're still able to hunt and fish? 13 Q I think your left ankle. 13 A Yes. 14 A Or my -- I'm sorry. My left ankle. 14 Q Okay. Okay. Mr. Black, I'm going to ask 15 Q I need to be sure to make a clear record. 15 you some questions about -- this is marked as Black 16 A Okay. And insofar as my right knee goes, 16 Exhibit 2. 17 Dr. Conrad indicated that I may need additional 17 And I was thoroughly confused by this 18 cortisone or possible other treatment for my 18 document that was attached to your answers to 19 arthritis. 19 interrogatories. 20 Q Okay. So how is your knee today? 20 I was curious for you to explain what it 21 Forgive me if I've already asked you that question. 21 is. This is a document marked Record. It's Black 20 (Pages 74 to 77) Court Reporting in Evans Reporting Service over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 78 Page 80 1 Exhibit 2. 1 received them today. 2 At the top, it says, "PEBTF Claims 2 MS. SMITH: Well, if you just received 3 Utilization," and it's stamped "Confidential." If 3 them today, how did he prepare this before the 4 you could, take a look at that and tell me what 4 answers to interrogatories? 5 this is. 5 MR. ZELLNER: He used them. 6 A This is the first time I've seen it, and 6 THE WITNESS: They are mine. They were 7 all I can tell you is, it must be a record of 7 sent to me. 8 claims I've made to PEBTF, Pennsylvania Employee 8 MS. SMITH: So you just received them 9 Benefit. Trust Fund. 9 from him? 10 Q This is your healthcare insurance form? 10 MR. ZELLNER: From him today. 11 A Yes. 11 BY MS. SMITH: 12 Q Okay. And so you don't know what any of 12 Q Okay. I see there are, for example, two 13 the individual entries are associated with? 13 charges for an EKG on May 12th. Do you know why 14 A I have no idea what this all represents, 14 there are two separate charges for an EKG on 15 I really don't. 15 May 12th? 16 MS. SMITH: Okay. Off the record. 16 A I have no idea. 17 (Discussion off the record.) 17 Q Okay. And there are two separate charges 18 BY MS. SMITH: 18 for anesthesia on May 20th. Do you know why there 19 Q I'm also going to ask you about what's 19 are two charges on May 20th? 20 been marked as Black Exhibit 3, which is a 20 A I don't understand how the medical 21 four-page document that was also attached to your 21 profession bills. Page 79 Page 81 1 answers to interrogatories. 1 Q Okay. And there's an entry on 12/12/08 2 Do you know who prepared this document? 2 for drugs. What drugs are you referring to? 3 A I think I did a draft of it. And this 3 A On 12/12/08? 4 isn't the same format I used, but it appears to be 4 Q On the second page. In fact -- 5 the same information that was on the one 1 5 A I don't know what that is. 6 prepared. 6 Q There's an entry on June 2nd, 2008 for 7 Q Who told you to prepare this draft? 7 surgery and drugs, an entry on June 27th for 8 A Counsel. 8 surgery and drugs and an entry on December 12, 2008 9 Q And what is supposed to be represented on 9 for surgery and drugs. 10 this document? 10 Do you know what those are? 11 A These are expenses pulled from the 11 A They may have been the draining of my 12 explanation of benefits, the charges that were on 12 knee and the steroid injections, but I don't -- the 13 the explanation of benefits and copays and that 13 12/12 -- 14 sort of thing. 14 Q It's your recollection you had three 15 Q And what did you base this chart 15 series of injections and drainage? 16 information on? 16 A Yes. 17 A I think it was the charge on the 17 Q Okay. And then there were several 18 explanation of benefits. 18 entries for medications. I thought your testimony 19 Q Do you still have those explanation-of- 19 was that you just took Aleve at you own discretion 20 benefits forms? 20 for this. ( 1 MR. ZELLNER: I have them. I just 21 Do you know what those medication entries 21 (Pages 78 to 81) Court Reporting in Evans Reporting Service Over 20 years of Balimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 82 Page 84 1 are for? 1 A Yes. 2 A Was that at the time of surgery? As l 2 Q And you used it for each entry? 3 recall, the only medications that I took was some 3 A Yes. 4 pain medication after the surgery. 4 Q So there's no log book or anything of 5 Q Okay. So you don't know why there would 5 that nature? 6 be entries in November of '08 for medication? 6 A No, there isn't a log book. 7 A Off the top of my head, I don't know. 7 MS. SMITH: Can I get a copy of the 8 Q Okay. And how long did you take the pain 8 actual bills? 9 meds after surgery? 9 MR. ZELLNER: Yes. 10 A A couple of days. 10 MS. SMITH: Not just the EOBs, but -- 11 Q And on this chart -- I think it's 11 MR. ZELLNER: I'll get the bills also. 12 supposed to be a spread-sheet type document. 1 12 MS. SMITH: Okay. 13 can't really tell, but there's a column for 13 BY MS. SMITH: 14 mileage. 14 Q And in your answers to interrogatories, 15 A Yes. 15 there's a statement that you have $1,400 in lost 16 Q How did you keep track of that? I can't 16 wages. 17 really make sense of this, but how did you 17 What is that based on? 18 calculate those amounts? 18 A Basically, a couple of days. I estimated 19 A I checked the odometer, as I recall, 19 a couple of days off work. 20 and -- 0 Q From your work with ERM? 21 Q And did you keep a log book? Did you 21 A Yes. Page 83 Page 85 1 write it down every time you went to the doctor? 1 Q What sort of projects do you do for them? 2 A No, but I know when I went to the doctor, 2 A Air-quality permitting. 3 and I use the EOBs as an indication of when I went 3 Q Is there a lot of paperwork? 4 to the doctor. 4 A Yes. 5 Q Okay. So when you got the EOBs, you 5 Q And why is it that you were unable to 6 calculated the distance from your home to the 6 work fora few days? 7 healthcare provider and back? 7 A For a few days after surgery, it was 8 A Yes. 8 primarily an issue of pain and lack of ability to 9 Q Is that fair to say? 9 concentrate. 10 A Yes. 10 Q It's your testimony that you actually 11 Q Okay. And how did you calculate that 11 lost income that you would have earned but for the 12 mileage? 12 surgery? 13 A I checked the odometer on the vehicle. 13 A I believe that to be true, yes. There 14 Q Well, if you weren't maintaining a log 14 were days when I could have been at work when 1 15 contemporaneously, how would you check it on the 15 wasn't at work. 16 odometer? 16 Q How do you bill ERM for your time? 17 A The distance from my house to Norlanco 17 A I fill out a time sheet. 18 Medical Center is the same no matter how often 1 18 Q Okay. And what's your monthly average 19 go. 19 hours? 20 Q Okay. So you checked it once with the 20 A Generally, 130-plus hours a month, 30 to 21 odometer? 21 35 a week. 22 (Pages 82 to 85) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 86 Page 88 1 Q Do you know what you billed them in April 1 the exterior architecture that much. 2 of 2008? 2 Q Okay. Well, let me ask you this way. 3 A I don't recall. 3 How far from your car was the front 4 Q Do you still have those records? 4 entrance to the hotel? 5 A There probably are time sheet records, 5 A Distance-wise, I couldn't estimate. 6 yes. 6 Q Was it a significant distance greater to 7 MS. SMITH: Could I obtain a copy of the 7 walk out the front entrance to your car than out of 8 time sheet records for the last six months of 2008? 8 the south exit to your car? 9 MR. ZELLNER: Yes. 9 A Yes. 10 MS. SMITH: Okay. Thank you. Okay. 10 Q How much greater was that distance? 11 Let's just a take a brief break and let me go over 11 A Twice the distance, I would estimate. 12 my notes and see if I have any other questions. 12 Q Okay. And how long would it have taken 13 (Recess taken -- 11:47 a.m.) 13 you to walk from the front entrance to your car? 14 (After recess -- 11:49 a.m.) 14 A I don't know, a minute or two. 15 BY MS. SMITH: 15 Q Okay. Was it raining or any sort of 16 Q Mr. Black, did you go to the Fly Fishers' 16 precipitation when you left the hotel that night? 17 banquet this year? 17 A I don't recall. 18 A No, I didn't. 18 Q Do you recall your clothes being wet when 19 Q Do you know if they held one this year? 19 you stood up? 20 A Yes. 20 A No. 21 Q And where was it held? 21 Q After you spoke to the hotel Page 87 Page 89 1 A At the Hotel Carlisle. 1 representative after you went back in to make your 2 Q Okay. Can you describe for me the layout 2 incident report -- first of all, if you could refer 3 of the hotel? It is a, you know, rectangular 3 to Exhibit 1, which I believe is the incident 4 structure with two wings, the parking lot on the 4 report, second page, is that your signature on the 5 sides and back? I mean, you've been there for 15 5 second page? 6 years at the banquets. 6 A Yes. 7 A I have never paid attention to the 7 Q Did they walk outside to the side exit 8 architecture of the place. 8 with you and observe what was going on? 9 Q You couldn't give me simple description 9 A I didn't walk back out to the side exit. 10 of the general layout? 10 1 don't know what they did. 11 A As I recall, you walk in the lobby, you 11 Q Did you ever see them in the course of 12 pass a bar and then you go into a large conference 12 your contact with them go in that direction? 13 meeting room. 13 A I don't recall. 14 Q I'm not talking about the interior. I'm 14 Q Okay. So you simply verbally explained 15 talking about the placement of the structure on the 15 what had occurred? 16 property. 16 A Yes. 17 A No. I -- 17 Q It's your testimony that you did not walk 18 Q You've been to the conference there for 18 out the side exit and show them what you had 19 15 years, and you can't tell me if it's a 19 tripped on? 20 rectangular structure with two wings on the side? 20 A That's correct. I didn't reenact it. 1 A As I said, I have not paid attention to 21 Q You didn't what? 23 (Pages 86 to 89) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 90 Page 92 1 A I didn't reenact it. 1 State of Maryland (. 2 Q Okay. You didn't take them out there to 2 . County of Baltimore 3 show them? 3 I, Kathleen E. Thibodeau, a Notary Public 4 A No. 4 of the State of Maryland, County of Baltimore, do 5 Q Have you talked with anybody associated 5 hereby certify that the within-named witness 6 with the hotel since this April 4th incident? 6 personally appeared before me at the time and place 7 A Directly associated, no. There was the 7 herein set out, and after having been first duly 8 one telephonic statement that I made, and I don't 8 sworn by me, according to law, was examined by 9 know who the -- what the association there was. 9 10 counsel. I further certify that the examination was 10 Q And you described the ramp having some 11 recorded stenographically by me, and that this 11 sides on it that came up a few inches from the 12 transcript is a true record of the proceedings. 12 ground. 13 I further certify that I am not of 13 Do you know what part of the ramp you 14 counsel to any of the parties, nor an employee of 14 tripped on? 15 counsel, nor related to any of the parties, nor in 15 A It would have been the side of the ramp. 16 any way interested in the outcome of the action. 16 Q Okay. And your knees came down onto the 17 As witness my hand and seal this 15th day 17 walkway park of it, the center part? 18 of April, 2009. 18 A Yes. 19 19 Q Is that correct? 20 20 A My right ankle was twisted out to the Kathleen E. Thibodeau 21 side. 21 My Commission Expires 04-28-12 Page 91 Page 93 # 1 Q Was it your right ankle or your left 1 INDEX 2 ankle? 2 The Deposition of TERRY L. BLACK 3 A My right -- my right ankle, the lower 3 April 7, 2009 4 right leg was twisted out to the side. 4 5 Q Did you land straight on your knees? 5 Examination by Ms. Smith 3 6 A I don't really recall whether I was 6 7 straight on my knees. I landed on my knees, yes. 7 8 Q On both of them? 8 EXHIBITS 9 A Yes. 9 Ex. 1 Guest Incident Report 3 10 Q Okay. Were your knees bruised at all in 10 Ex. 2 PEBTF Claims Utilization 3 11 the days following the accident? 11 Ex. 3 Expense Report 3 12 A Not that I noted, no. 2 Ex. 4 Photographs 28 13 Q Did you ever have any aches, pains or 3 14 other symptoms in your left knee after April 4th of 14 15 2008? 15 (Note: Exhibits attached hereto.) 16 A No. 16 17 MS. SMITH: I have no further questions. 7 Requested information: Page 84, Page 86 18 MR. ZELLNER: I have no questions. 8 19 THE REPORTER: Read and sign? 9 20 MR. ZELLNER: Yes. 0 21 (The Deposition concluded at 11:53 a.m.) 1 24 (Pages 90 to 93) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Terry L. Black 4/7/09 Page 94 1 }2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ERRATA AND SIGNATURE SHEET I, TERRY L. BLACK, have read the foregoing deposition and verify the same to be stenographically accurate with the exception of the following changes (if any): Page Line Reads Should Read ( ) I have no corrections. 25 (Page 94) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., Defendants. VERIFICATION I, Susan E. Smith, am the attorney for Defendants Glendale Lodging L.P. II and Glendale Management Company II and in such capacity am duly authorized to make this verification on their behalf. I verify that the facts set forth in the foregoing Motion for Summary judgment are true and correct to the best of my knowledge, information and belief, and that I make this statement subject to the penalties of 18 Pa.C.S. 54904 which provides for certain penalties for making false statements to authorities. Date: Susan E. Smith IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., Defendants. ERTIFICATE OF SERVICE I, Susan E. Smith, Esquire, an attorney in the law offices of Crosswhite, Limbrick & Sinclair, LLP, hereby certify that a true and correct copy of the foregoing Motion for Summary judgment has been served on the following person(s) in the following manner on the O??-day of June 2009. Service by first-class, United States mail addressed to: Brian K. Zellner, Esquire Hynum Law 2608 North 3`d Street Harrisburg, PA 17110 Susan E. Smith Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants, Glendale Lodging LP. II and Glendale Management Company II ALED-C) Fi-lCE OF THE PR;CJT"+" W)TARY 1009 JUN 10 PM 1: z 8 GUly>' 'NTY A t:v Sj ' t.. h PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Terry Black, Plaintiff, VS. Glendale Lodging LP II, Glendale Management,Co., and Scott Roy, No. ()8_7011 Civil Tenn Defendants. 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion for Summary Judgment of Defendants 2. Identify all counsel who will argue cases: (a) for plaintiffs: (Name and Address) Susan E Smith, Esq., Crosswhite, Limbrick & SinclaiR (b) for defendants: 405 Frederick Road, Suite 260, Baltimore, MD 21228 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Signature .Susan Smith Print your name Defendants Glendale Attorney for Date: Lodging and Glendale Mgmt. INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. CA / AL BLED-4),,I ICE dF THE P+ i {n",`OTARY 2009 JUN 10 PAR 1.28 U???4: tS a4.w; {{ t? 1 V?( h ;A 4, { 1 { ?V4r1 ttJ?yr'?J V { CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., : Defendants. PRAECIPE TO REMOVE CASE FROM ARGUMENT TO: PROTHONOTARY AND NOW comes the defendant, Glendale Lodging L.P. II, and Glendale Management Company II, by and through its attorneys, Kristine A. Crosswhite, Susan E. Smith and Crosswhite, Limbrick & Sinclair, LLP, and files this Praecipe to remove case from argument currently scheduled for July 22, 2009. This Praecipe has been consented to by counsel for the plaintiff, Brian K. Zellner, Esquire, as evidenced by the Letter of Agreement of Counsel filed contemporaneously with this Praecipe. 1 CROSSWHITE, LIMBRICK & SINCLAIR, LLP B Kristine A. Crosswhite, Esquire Attorney I.D. No. 202393 Susan E. Smith, Esquire Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7188 Attorneys for Defendants, Glendale Lodging L.P. II and Glendale Management Company II Date: / // ?t 166 2 CERTIFICATE OF SERVICE I, Kristine A. Crosswhite, Esquire, an attorney in the law offices of Crosswhite, Limbrick & Sinclair, LLP, hereby certify that a true and correct copy of the foregoing Praecipe to Remove Case from Argument has been served on the following person(s) in the following manner on the 101 day of July, 2009. Service via facsimile and first-class, United States mail addressed to: Brian K. Zellner, Esquire HYNUM LAW 2608 North 3`d Street Harrisburg, Pennsylvania 17110 Facsimile: (717) 774-0788 CROSSWHITE, LIMBRICK & SINCLAIR, LLP B y Kristine A. Crosswhite Attorney I.D. No. 202393 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants, Glendale Lodging L.P. II Glendale Management Company, II 3 ' 're CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., : Defendants. PRAECIPE TO REMOVE CASE FROM ARGUMENT TO: PROTHONOTARY AND NOW comes the defendant, Glendale Lodging L.P. II, and Glendale Management Company II, by and through its attorneys, Kristine A. Crosswhite, Susan E. Smith and Crosswhite, Limbrick & Sinclair, LLP, and files this Praecipe to remove case from argument currently scheduled for July 22, 2009. This Praecipe has been consented to by counsel for the plaintiff, Brian K. Zellner, Esquire, as evidenced by the Letter of Agreement of Counsel filed contemporaneously with this Praecipe. 1 CROSSWHITE, LIMBRICK & SINCLAIR, LLP B Kristine A. Crosswhite, Esquire Attorney I.D. No. 202393 Susan E. Smith, Esquire Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7188 Attorneys for Defendants, Glendale Lodging L.P. II and Glendale Management Company II Date: 7// ?/ 16q 2 CERTIFICATE OF SERVICE I, Kristine A. Crosswhite, Esquire, an attorney in the law offices of Crosswhite, Limbrick & Sinclair, LLP, hereby certify that a true and correct copy of the foregoing Praecipe to Remove Case from Argument has been served on the following person(s) in the following manner on the 16TMIday of July, 2009. Service via facsimile and first-class, United States mail addressed to: Brian K. Zellner, Esquire HYNUM LAW 2608 North 3`d Street Harrisburg, Pennsylvania 17110 Facsimile: (717) 774-0788 CROSSWHITE, LIMBRICK & SINCLAIR, LLP By: ?A" Kristine A. Crosswhite Attorney I.D. No. 202393 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants, Glendale Lodging L.P. II Glendale Management Company, II 3 Fi` ;F 2 09 JIJ-; 17 F1' 1: 1 J CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., . Defendants. . MOTION FOR SUMMARY JUDGMENT Defendants Glendale Lodging L.P. II and Glendale Management Company II (hereinafter, "the Hotel Defendants" or "the Moving Defendants"), by and through their undersigned attorneys, Susan E. Smith and Crosswhite, Limbrick & Sinclair, LLP, pursuant to Rules 208.3(a) and 1035.2(a) of the Cumberland County Rules of Civil Procedure, move for summary judgment as to all claims of the plaintiff's Complaint in the above-captioned case, and for grounds therefore, state as follows: Pertinent Procedural History 1. On or about December 1, 2008, the plaintiff, Terry Black, initiated this case by filing a Complaint against Glendale Lodging L.P. II, Glendale Management Company, and Scott Roy. A true and correct copy of the plaintiff's Complaint is attached hereto as Exhibit 1. 2. The plaintiff alleges that on April 4, 2008, he was caused to trip as a result of a loading ramp which was lying along the sidewalk at the south exit of the Hotel Carlisle and Embers Convention Center in Carlisle, Pennsylvania (hereinafter, "Hotel Carlisle"), while he was exiting the hotel. (See Exhibit 1 at J¶ 8, 10.) 3. The plaintiff has sued Glendale Lodging L.P. II and Glendale Management Company II for negligence, under a general premises liability theory, on the basis that they were the owners of the Hotel Carlisle at the time of the occurrence. (See Exhibit 1 at ¶¶ 6, 7, 16-21.) The specific allegation of negligence is that the defendants failed to provide a safe exit for the plaintiff to leave the premise. (See Exhibit 1 at T¶ 11, 12.) The plaintiff has also sued Scott Roy, on the basis that he left the truck loading ramp along the sidewalk, while loading his truck, and that he blocked the sidewalk with his truck, forcing the plaintiff to turn off the sidewalk to get around it. (See Exhibit 1 at $111, 12.) There is no allegation that the Hotel Carlisle defendants are liable for the conduct of Defendant Roy. 4. On the date of the loss, defendant Glendale Lodging L.P. 11 was the owner of the real estate where the Hotel Carlisle is located, and Glendale Management Company II d/b/a Hotel Carlisle and Embers Convention Center (incorrectly named in the Complaint as "Glendale Management Company,") was the manager of the Hotel Carhsle.1 There is No Evidence That the Moving Defendants Caused, Created, or had Notice of the Alleged Unsafe Condition 5. There is no evidence sufficient for the plaintiff to carry his burden of proof that the Moving Defendants were negligent in connection with the alleged occurrence. 6. The evidence developed in discovery, including the deposition testimony of the plaintiff, Terry Black, establishes that the Moving Defendants did not cause or create the condition that was the alleged proximate cause of the plaintiff's injuries, and did not have actual or constructive notice thereof. See Answer to Complaint of Defendants Glendale Lodging L.P. II and Glendale Management Company II d/b/a Hotel Carlisle and Embers Convention Center, at IM 6-7. 7. The evidence demonstrates that the loading ramp on which the plaintiff allegedly tripped was placed on the ground by workers loading a truck from a tool sale being held at the Hotel Carlisle. (See, Guest Incident Report completed by plaintiff, attached as Exhibit 2.) 8. There is no evidence that the Moving Defendants had actual notice that the loading ramp was on the ground adjacent to the sidewalk at the south exit of the hotel. (See, Transcript of Deposition of Terry Black, attached as Exhibit 3, at pp. 35-38.) According to Mr. Black, there was no indication that the hotel employees were aware of the loading ramp: Q:... So is it your testimony that the hotel personnel were not aware that the ramp was there? A: That was the sense I got. (See Exhibit 3 at p. 38.). 9. There is also no evidence that the Moving Defendants had constructive notice that the loading ramp was on the ground adjacent to the sidewalk at the hotel's south exit. The evidence demonstrates that the plaintiff did not notice the loading ramp when he entered the hotel through the south exit door at approximately 4:30 p.m. on April 4, 2008. (See Exhibit 3 at p. 18.) Indeed, he testified that he did not notice the ramp at any time before he tripped. (See Exhibit 3 at p. 25.) As he was exiting the hotel, he did notice a swarm of activity by persons who appeared to be packing up the tool sale that he had previously observed underway in rooms off of the corridor leading to the hotel's south exit. (See Exhibit 3 at p. 37, 43; see also Exhibit 2.) He eventually learned that persons operating the tool sale were responsible for the loading ramp. (Id.) The hotel employees to whom Mr. Black reported his fall had no knowledge of the ramp or other associated activity at the south exit. (See Exhibit 3 at p. 38.) Motion for Summary judgment 10. The Hotel Defendants move for summary judgment on the basis that the foregoing admitted and undisputed facts of record establish that the plaintiff cannot make out a prima facie case of negligence against them. The plaintiff bears the burden of proving the existence of a defect or unsafe condition and that the Hotel Defendants had actual or constructive notice of it. Estate of Swift v. Northeastern Hospital of Phila., 456 Pa.Super. 330, 336 (1997); Moultrey v. Great Alt. &Pac. Tea Co., 281 Pa.Super.525 (Pa.1980); Restatement (Second) of Torts § 343. See also Porno P. Century III Associates, 846 A.2d 1282, 1285-6 (Pa.Super.2004) (to prevail in a negligence action against the property owner, an invitee must present evidence which proves the owner either created the condition that was the proximate cause of the invitee's injury, or had actual or constructive notice of an unsafe condition). 11. There is no evidence that the Hotel Defendants created any defect or unsafe condition that was the proximate cause of the plaintiff's alleged injury. There is also no evidence that the Hotel Defendants had actual or constructive knowledge of any such defect or unsafe condition. Accordingly, the plaintiff cannot establish a prima facie case of negligence against the hotel defendants, and summary judgment should be entered in their favor. See, e.g., Porm v. Century III Associates, 846 A.2d 1282 (Pa.Super.2004); Lanni v. Pennsyvlania RR. Co., 371 Pa. 106, 88 A.2d 887 (Pa. 1952). 12. There are no genuine disputes of any fact material to this Motion, and the Moving Defendants are entitled to summary judgment as a matter of law. 13. This motion is being filed pursuant to Pennsylvania Rule of Civil Procedure 1035.2(a). 14. No judge has ruled upon any other issue in this or any related matter. WHEREFORE, Defendants, Glendale Lodging L.P. II and Glendale Management Company II, respectfully submit that summary judgment should be entered in their favor as to all counts of the plaintiff's Complaint. A proposed Order is attached. Respectfully submitted, Susan E. Smith Attorney ID No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suit e 260 Baltimore, Maryland 21228 Telephone: 410-747-4174 Facsimile: 410-747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Mgmt. Company II Date: 7 , 2009 f Exhibit 1 12/11/2008 13:37 7172640431 VALLEY AGENCY S?rv04 12.;t0 6)9 PAGE 02/07 r I Bffan K Zdtmf, isquft H iium L* w Me Nod 05 M St"M "amM m, PA 17140 TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff' CUMBERLAND COUNTY, PENNSYLVANIA N. GLENDAL,E LODGING L.P. Il, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants NO. cab -?at? CIVIL ACTION -LAW et 4, ? L'F" ME-CE You have been. sued in court. If you wish to defend against the claims set forth In the following. pages, you action within twenty da safterfts-c IAifftt an -Must are served, by entering &'44 ten appearance persona lly or by eftomey a Ling in wr f 9 voth'the court your defenses or objections to the claims set.forth against you. You are warned that ff you fail to do so the case may proosed.without you and a judgment may be entered against you by the court without further notice for any money dalmed In the oornpletlnt or for any dUwr claim or relief requested by the plalnti f. You may lose money or property or other rights Important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Legal Aid of Sout s aatem Penne"nis 625 Swede'&owt Norrisbwn, PA 18401 Phone (877) 4285884 ..J Cokl ?w ??`??' LAY a'd ??ae#s??as?rr, auedwoa .•a?eaf??n asa r to ao I 'T 08u 12/11/2008 13:37 7172640431 VALLEY AGENCY Win K. Zekw, t fquhe Hr w Low Atry.10 MW 255 Noah 3" $tNW Hwhibum. PA 17110 TERRY BLACK, Plaintiff v. GLENDALE LODGING L.P. 11, GLENDALE MANAGEMENT COMPANY AND SCOTT ROY, Defendants PAGE 03/07 .1 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW COMPLAINT 1. Plaintiff, Terry Black, Is an adult individual with an address of 26 Westbury Court, Elimbethtown, PA 17022. 2. Defendant, Glendale Lodging, L.P., IL, Is a Imited partnership organized under the Laws of the Commonwealth of Pennsylvania with a registered office address of 1310 Holly Pike, P.O. Box 28, Carlisle, PA 17013. 3. DeMndant, Glendale Management Company, is a corporation organized under the Laws of the Commonwealth of Pennsylvania with a registered offloe address of 1810 Holly Pike, P.O. Box 26, Carlisle, PA 17013. 4. Defendant, Scotfi Roy, is an adult individual with an address of 9829 Country Road, 3160 Mountain View, MO 66648. 6. On April 4, 2008, the Plaintiff attended the Harrisburg Fly Fishers' Banquet at the Hotel Carlisle, 1700 Harrisburg Pike, Carlisle, PA 170155. 6. The Defendant Glendale Lodging, L.P., II Is the owner of the real estate located at 1700 Harrisburg Pike, Carlisle, PA 17016. i'd LLZ6#91??#L1G AUQdW03 4040MA&M d93=10 00 ti aaa 12%11/2008 13:37 7172640431 VALLEY AGENCY PAGE 04/07 7. The Defendant Glendale Management Company is the owner.of the Hotel Carlisle looted at 1700 Harrisburg Pike, Carlisle, PA 17015. 8. On April 4, 2008 at 9:85 p.m., then Plaintiff was leaving the Harrisburg Fly Fishers' Banquet and exiting the Hotel Carlisle via the south exit by door 01. 9. It is believed and therefore averred that the Plaintiff was a business lnvitee on April 4, 2008. 10. On April 4, 2008, the Plaintiff caught his M foot on a truck landing ramp which was lying along the sidewalk in an unlighted, unsigned area. 11. The Plaintiff believes and therefore avers that the Defendant Scott Roy and/or his agents; servants, workers or employees were loading a truck from a tool sale at the Hotel Carlisle and had left a truck loading ramp along the sidewalk at the south exit by door #11 an unlighted, unsigned area. 12. The Plaintiff believes. and therefore avers that the Defendant Scott Roy arWor his agents, servants, workers or employees blocked the parking lot end of the sidewalk with his trailer forcing the plaintiff to turn tiff the sidewalk to go around tho truck. 13. The Plaintiff twisted his left ankle and fell twisting his right knee. 14. The.Plaintiff suffered the following Injuries to his right knee as a result of the incident a tear to his medial meniscus, a sprain of the medial collateral ligament and a bone bruise of the medial tibiel plateau, 16. The Plaintiff suffered a sprained left ankle as a result of the incident. 18. Paragraphs 1 through 15 are Incorporated herein by refers noe as though set forth at length. 17. The Defendants had a duty to keep the property safe for business invitees. 18. The defendants breached this duty by falling to provide a safe exit for the Plaintllf. C-01 G406#9*3#4I L Rucdwo3 JSXWWRRM J93 c t o so it ODU 12/11/2008 13:37 7172640431 VALLEY AGENCY PAGE 05/07 18. As a result of the Defendants' breach of their duty, the Plaintiff suffered 'an Injury to his right knee and left ankle. 20. As a result of the Injury to his right knee and left ankle; the Plaintiff has Incurred medical expenses and. will incur medical expenses in the future. 21. As a result of the Injudes,,the Plaintiff has suffered a loss of enjoyment of life and will continue to do so In the future. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in his favor and against.the Defendants In an amount in excess of $50,000 and In exceas of the amount requiring compulsory arbitration. R on K. ZaIlner - f Attorney ID 59262 Hynum Law 2606 North 3'" Street Harrisburg, Ply 17110 (717) 774.1357 Attomey for Plaintiff' 6 2641 LLZ6#91??#LiL AuedwoC ,aajeWARM J93210 so T1 09d 12/11/2008 13:37 7172640431 VALLEY AGENCY V9F9E CaT1oN 1, = ?f Cr! hereby state that I am the Plaintiff in this action and that the s tements of fact made In the foregoing Complaint aye true and correct to the best of my information and belief. The underslgned understands that the statements hereln are made subject to the penalties of 18 Pa. Cons. Stat. Ann, & relating to unsworn falaH3catlon to authorities. Date: to (a8.1Oe C Bla Terry PAGE 06/07 V x •d Laaaea?as?,i? au?dWpa .,a,?ewRer, davio 8o IT wea 12/11/2008 13:37 7172640431 VAI..LEY AGENCY PAGE 07/07 r? LISTED HA SIDO OEMANIDADO EN CORTE. SI usted doses defenderse de tea demandes quo se presenten mss adelants an lea siguientes pagines, dabs tomar eoclon dentro de is proximos vients (20) dies despusa'de Is notiAoation de eats Demands y aviso radleando personaimente o por medio de un abogedo una compareoencia e?sa is y radioando on la Carte pot eecritosus defienses _do, y objeociones a, las demander ptesentadas aqul do contra Buys. Be le advierts de quo ei usted Mile de tomar accion omno se escribe enteriorrnents, el osso puede prooeder sin usted y un fallo por qualquier suma de dhero redamsda an Is demendaa o cuskluier otra re+olamsoion o remedlo solicitado por el dernandanta puede ser diotado on. contra suys por is Corte sin mar aviso adtcional. Usted puede perder dinero o propiedad y otrca direohos importantse pars usted. USTED DEBE LL.EVAR ESTE DOCUMENTO A SU ABOGADO 1MMEDIATAMENTE. SI. USTED NO "TIENE UN ABOC3ADO, LLAME 0 VAYA A LA SIQUIENTE OFICINA. ESTAOFICINA PUEDE PRO VEERLE INFORMACION A CERCA DE COMO CONSEGUTR UNABOGADO. } ST LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADQ, ES POSSIBLE QUE ESTA OFICINA LE PUEDA PRO VEER INFaRMACION SOBRE AGENCIES QUE OFREZCAN SERVTCIOS LEGALES SIN CARGO 6 BAJO C08TO A PERSONAS QUECUALIFICAN. Legal Aid of SwAheastem Pennsylvania 625 Swede Street Norristown, PA 19401 Phone (877) 425-5994 a.d 6Gas 9?a#GTG Ruedw r'JeaRe d : ? ., n sa z o ea t c3®Q Exhibit 2 A 08/0812008 12:22 7172640431 VALLEY AGENCY PAGE 02/03 AUG-01-,008 THE 1.0:58 AN HOTEL CARLISLE FAX No. 111 243 6355 P1002 H Curie R7 GUEST INCIDENT REPO Name of person ilkV rdiat `--Lpr? 'Addrees: Mme cu:-- nen t k.*1 • _ , -- 1'?+r++OIYrY+lltl1.+..+1lIWYI?/IY?Iw TWophwve: Honw _J& 'f 'Bueinew. {, Do* of Intent??la???? Data Ind4e t rep~. 717me t m-pottl^ a .• .Peron Ding r?pe? Guest otr_„Nohgu?s# or 1,,.?'',?iQt? ftry?.{cheak d?r?' if.guestw Cho" date: Doom: if non ju+ N"w *! ht vislt.• Oe=Wrn "uds IncIded, nature of gory, mAWft dwmRsv, dg=mk rskr o ultsll on ?w,fa-F#*?d f ,ytc? LoW00n of Incident; . c i _ I A 0E/08/2008 12:22 7172640431 VAUXY AGD CY PA©E 03/03 AUG-01-.2008 THU 10:58 AEI OTEI CARLISLE W No. 111 243 035b w. 003 'Nell)E T IMPORT, P gQ 7 Was a e(s) im+oww: No Yeas: ? `esr: . Mfe A Modsh WhOm w" VGhW* pa*ed; 1 Metficdtl ftatmehE t?qulr ? No, Yll ,?ll'hciltEar - . onvRonq ad* mow? Yes ' XOMWO e yes 'c' -4e w, v quest slollow Are sudlorihes it g V6 nt? taps n aoil *,; Cab #: ounwd autos of.sltudorv " of the•in .. `r ' Mob emit Mmkw row to dte Lac Updded Bl"Ap3 50 Exhibit 3 L ?.J Terry L. Black 4/7/09 Page 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TERRY L. BLACK, Plaintiff * Civil Action-Law V. * No. 08-7011 GLENDALE LODGING L.P. II, et al., Defendants DEPOSITION OF TERRY L. BLACK The Deposition of Terry L. Black, taken in the above-captioned case on Tuesday, April 7th, 2009, commencing 10:00 a.m., at Hynum Law, 2608 North Third, Harrisburg, Pennsylvania 17110, and realtime reported by Kathleen E. Thibodeau, Court. Reporter and Notary Public. EVANS REPORTING SERVICE The Munsey Building, Suite 705 Seven North Calvert Street Baltimore, Maryland 21202 410.727.7100 800.256.8410 Court Reporting in Evans Reporting Service Over 20 years of Batdmore/WashingtDn 800-256-8410 award-winning service 1 J i1.Vnum LuW 2608 North 3rd Street 4 1-1 1. Va. ¦ Q Okay. I will try to make my questions 4 Harrisburg, Pennsylvania 17110 717.774.1357 5 clear. That s why I wanted to reach that 5 bzellner@hynumpc.com 6 understanding. On Behalf of the Plaintiff 7 If you don't understand anything I say, 6 7 SUSAN E. SMITH, ESQUIRE 8 please let me know, and I'll try agam I tend to Crosswhite, Limbrick & Sinclair, LLP 9 speak fast and sometimes mumble. If you don't 8 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 10 understand me, please let me know. 9 410.747.4174 11 If you answer my question, I will presume ses@cmllaw.net 12 that you understand it. 10 On Behalf of the Defendants, Glendale 13 A Oka Lodging L.P. II and Glendale Management y. 11 Company II 14 Q Please for her benefit. make an effort to 12 13 15 answer the questions verbally. We all have a 14 16 tendency to give gestures or partial verbal answers 15. 17 which she can't take down, nods of the head and 16, 17 18 partial utterances and so forth. So if you could, '18 19 please be mindful to give a full verbal response to 19 20 my questions. 21 21 The other thing about a deposition is Page 3 Page 5 1 REALTI:ME PROCEEDINGS: 1 that its sort of an unnatural conversation. I 2 (Black Deposition Exhibit Nos. I through 2 have to finish my question before you can start 3 3 were marked for identification.) 3 your answer. 4 Whereupon, 4 Ordinarily, the flow of conversation is a 5 TERRY L. BLACK, 5 little more fluid. And for her benefit, again, I 6 the witness herein, having first declared or 6 would ask you to please wait for me to finish my 7 affirmed under penalty of perjury to tell the 7 question before you begin to answer. 8 truth, the whole truth, and nothing but the truth, 8 There are times when you'll know the 9 was examined and. testified as follows: 9 question before I get three words out of my mouth 10 EXAMINATION 10 and you'll want to begin to answer, but please wait 11 BY MS. SMITH: 11 for me to finish so she can take down a complete 12 Q Good morning, Mr. Black. My name is 12 transcript. 13 Susan Smith.. I'm an attorney and I'm representing 13 Have you given a deposition before? 14 the hotel entities for the Hotel Carlisle in your 14 A Yes. 15 lawsuit. I'm here to ask you about the events of 15 Q How many times? 16 April 4th, 2008. 16 A Just once. 17 When I refer to the "hotel" in my 17 Q And in what sort of matter was that? 18 questions, I'm referring to the Hotel Carlisle and 18 A it was a civil litigation involving my 1'9 Embers Convention Center on Harrisburg Pike. 19 employment with the Commonwealth of Pennsylvania. 20 And when I refer to the, "incident," I'm 20 Q Okay. And what was the outcome of that 21 referring to your trip:.and fall that's described in 21 litigation? Court Reporting in Evans Reporting Service BalUrnore/Wash n 800-256-8410 2 (Page.s 2 to 5 Over 20 years of award.vdnt g service Terry L. Black 417/09 I Page 6 Page 8 A The litigation was decided in favor of 1 professional certificates? 2 the Commonwealth.. 2 . A I have a bachelor of science in 3 Q You just gave one deposition in that 3 .education. 4 matter? 4 Q. Okay. When you say part-time at 5 A Actually, yes, just one. 5 Environmental Resources Management, how many hours 6 Q And did you testify at trial? 6 per week? 7 A Yes. 7 A Well, 30 to 35, generally. 8 Q Well, let me start with some background 8 Q What's your wage? 9 questions. 9 A lim paid at $60 an-hour. 10 For the record, can you please state your 10 Q Is that the rate you had in April of 11 full name and address? 11 2008? 12 A My name is Terry_ L. Black. My residence 12 A Yes. .13 is 26 Westbury Court, Elizabethtown, Pennsylvania. 13 Q Okay. And what's your supervisor's name 14 Q How long have you lived at that address? 14 at Environmental Resource Management? 15 A Twenty-one, 22 years; I believe. 15 A Mark DiPrinzio. 16 Q Okay. Have you ever gone by any other 16 Q And do you have any otherjobs? 17 name, nicknames? 17 A Not now, no. 18 A No. 18 Q How about in April of 2008? 19 Q Okay. And your date of birth, sir? 19 A I was driving a delivery truck part-time. 20 A September 21 st, 1946. 20 Q And who were you doing that for? 1 Q Okay. And your marital status? 21 A . Ad-Tech CCI. i Page 7 Page 9 1 A Married. 1 Q And what kind of-company is Ad=Tech CCI? 2 Q On the date of the accident? 2 A They are a wholesaler, I guess, of 3 A I was married. 3 electronic and electrical equipment. .4 Q What's your wife's name? 4 Q And when did you stop working for Ad-Tech 5 A Patricia Ann Black. 5 CCI? 6 Q Okay. And, sir, how are you employed? 6 A I think since the incident I've driven 7 A I am employed on a part-time basis by 7 for them t:wo) or three times. That's all. 8 ' Enviromental Resources Management, which is a 8 Q And how about at the time of the 9 environmental consulting firm. 9 incident, how often? 10 Q What do you do for them? 10 A Pardon me? 11 A I do air quality consulting. 11 Q In April of 2008, what was your work 12 Q How long have you been doing that? 12 arrangement with Ad-Tech CCI? 13 A Since September of 2007. 13 A Generally, one day a week. 14 Q And what sort of background do you have, 14 Q Okay. And how were you paid for that? 15 education or training, that allows you to be an air 15 A Payroll check. 16 quality consultant? 16 Q What was your rate? 17 A I spent approximately 25 years with the 17 A It was $20 an hour. 18 Commonwealth of Pennsylvania doing air pollution 18 Q Did you average an eight-hour day? 19 control work and held progressively more 19 A No. It was around five to seven hours,. 2 0 responsible positions. 20 depending on the number of deliveries that had to 1 Q Do you hold any advanced.degrees or 21 be done. 3 (Pages 6 to 9) Court Reporting in Evans Reporting Service Over 20 years of Baitlmore/Washington 800-256-8410 award-winning service 4 aroune. -- 5 Q Okay. 6 A -- well enough to drive. And then, 7 subseo went to that, they cut back on their number 8 of truck deliveries. 9 Q Okay. And tell me about the equipment . 10 you used to make those deliveries. 11 A It's a box truck with a liftgate. 12 Q When did you start that work with 13 Ad-Tech? 14 A Probably May or June. of 2007. 15 Q And who was your supervisor at Ad-Tech? 16 A. John Duncan. 17 Q And when were you told that they were 8 cutting back the number of deliveries, or were you 19 told that they were cutting back? 20 A I really wasn't told. I just gathered 21 that in conversation when they - once in. a while, Page 11 1 they'd call me to see if I could drive for them 2 after that. 3 There were a couple times I could 4 accommodate them, but they indicated the deliveries 5 had been cut back in terms of truck deliveries. 6 Q Is it your testimony that you're. unable 7 to do that job because of the injury you sustained 8 in the accident? 9 A No. 10 Q Okay. You mentioned a prior lawsuit 11 involving your employment with the Commonwealth. 12 Have you been involved in any other 13 litigation? 14 A. No. 15 Q Were. you taking any medications on a 16 regular basis in April of 2008? 17 A No. 18 Q Are you currently taking any medications 19 that would affect your ability to give clear and 20 accurate testimony today? 21 A No. several tirues a wo. r> () Okay, A -- for pair wi ray ankie wic kitce, from 8 time to time. `a Q Okay. I'm going to ask.,,ou some 10 questions about the accident that took place on 11 April 4th of 2008 at the Hotel Carlisle. 12 If you could tell me, why were you 13 visiting the Hotel Carlisle that day? } 14 A I was at the Hotel Carlisle for the 15 Harrisburg Fly Fishers' Banquet. 16 Q Okay. Had you attended that banquet in 17 previous years? 18 A Yes. 19 Q And where had it been held? 0 A Every time I was there, it was at the 1 Hotel Carlisle, or whatever its name was at the Page 13«. 1 time. 2 Q Approximately how many years had you been 3 attending? 4 A Probably ten, 15 anyway. 5 Q Are you member of the Harrisburg Fly 6 Fishers -- what is the organization called? 7 A That's an interesting question. The 8 Harrisburg Fly Fishers isn't an officially 9 chartered organization. It's group of people who 10 get together. for dinner once a year. 11 Q So it's an informal gathering? 12 A Yes. 13 Q People you usually see on the river? 14 A . Right. 15 Q Okay. Do you know who organizes that 16 function? 17 A No, I don't. 18 Q Okay. There's no sponsoring organization 19 who takes charge of deciding wigs it is or when it 20 is? 21 A There are a group of volunteers who take 4 (Pages 10 to 13; Court Reporting In Evans Reporting Service Over 20 years of Bekknore,?Washington 800-256-8410 awar ning.servlce Terry L. Black 4/7/09 j -? Page 14 care of that. 1 Page 16 end of hotel. . )2 Q Do you know any names? 2 Q Could you describe for me the parking lot 3 A Not off the top of my head. 3 arrangement? What are the parking options when you 4 Q Okay. Is there any sort of registration 4 arrive at the hotel? 5 that you have to complete to attend? 5 A There's parking in the front of the 6 A Yes. 6 hotel, as I recall. And then there's parking along 7 Q Were you registered? 7 the south side. And I don't know how far around 8 A Yes. 8 the south side and towards the back that parking 9 Q Did you bring anyone with you? 9 goes. 10 A No. 10 Q Okay. And how did you enter the hotel? 11 Q Approximately how many people were there? 11 A Pardon me? 12 A I think they estimate about 350 attend. 12 Q After you parked your car in the lot, how 13 Q Was there a group of friends or 13 did you enter the hotel? 14 associates that you sat with and attended the 14 A Through the -- I guess its entrance or 15 banquet with, or were you just on your own? 15 Exit 1, the one on the south end. 16. A I sat with one person that I know. 16 Q Okay. Would that be considered the main 17 Q And who's that person? 17 entrance? 18 A His name is Khervin Smith. 18 A No. 19 Q ' Do you know how to spell Khervin? 19 Q Where's the main entrance? 20 A .. ; K-h-e-r-v-i-n, I believe it is. 20 A The main entrance is in the front.. 1 Q And what do they do at the Harrisburg Fly 21 Q Is. it fair to say that there's a front Page 15 Page 17 ' 1 Fishers' Conference? How long was the program? 1 entrance and then an entrance on each side of the 2 A , The program itself was -maybe an hour; an 2 building? 3 hour and -- sort of in that range, an hour. 3 A I know there's. an entrance on the south 4 There's a mixer and then dinner and then . 4 side, but I don't know about the other sides. 5 a presenter. 5 Q How about the rear? 6 Q What time did you arrive at the hotel? 6 A I don't know about that either. 7 A Probably around 4:30, 5:00. 7 Q Okay. So you mentioned that there's 8 Q And what else had you done that day? 8 dinner and a mixer. I understand that there were 9 A I recall I worked awhile. Fin not sure 9 some vendors at the conference. 10 what all the events were leading up to it. 10 Did you visit any of the vendors' booths? 11 Q You worked for awhile that day? 11 A Therewere to the best of my knowledge no 12 A Yes. 12 vendors -- 13 Q Was that a weekday? 13 Q No vendors? 14 A That was a Friday. 14 A - at the Harrisburg Fly Fishers -- 15 Q It was a Friday. Okay. 15 Q Were there any other events going on at . 16 How far is the Hotel Carlisle from your 16 the hotel that night? 17 residence? 17 A There probably were. There was one, I 18 A Thirty-five, 40 miles. 18 think, that was a tool sale or something like that. 19 Q And where did you park when you arrived 19 Q Okay. How did you become aware of the 0 at the hotel? 20 tool sale? v` { 1 A I parked at the -- it would be the south 21 A They were set up in some rooms along the 5 (Pages 14 to 17) Court Reporting in Evans Reporrting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service Q Okay. 6 A. .1 j ust: noticed they were there. E' .' Q Okay. Did ;you see the tool vendor's E3 truck anywhere. in the parking lot when you.arrived? 8 Sy A No. , 9 10 Q Okay., 'What time did you prepare to leave 10 11 the conference? 11 12 A Shortly before 10:00. 12 13 Q I take it it was dark.outside at that 13 14 point? 14 15 A Yes. 15 16 Q Okay. And did you speak to anybody 16 17 before you left? 17 18 A I spoke briefly with my brother and his 18 19 wife. 19 20 Q And what's your brother's name? 20 21 A Lindley Black. 21 a ,Ili .'rough what I believe was Exit 1. The same door that you came in? (A? a?) . And when you first opened the door, what were the lighting conditions in the parking lot: A 1 really don't recall that I noted that in my mind. Q It wasn't so dark that you consciously thought, oh my gosh, it's so dark out here? A Well, it was dark outside but -- Q Not to a degree that would cause you to pause or be alarmed or concerned? A Right. Q Do you remember the weather conditions? Was it overcast? Was it clear? . A I don't recall. M Page 19 1 Q Lindley? 1 2 A L-i-n-d-l-e-y. 2 3 Q Okay. Did anyone leave with you? 3 4 A No. 4 5 Q Were you carrying anything with you? 5 6 A No. 6 7 Q You don't bring your fly rods and all 7 8 that fancy gear? 8 9 A No. And I wasn't lucky enough to win a 9 10 raffle prize, 10 11 Q Where do they fish around here, by the 11 12 way? If there's 350 people attending a Harrisburg 12 13 Fly Fishers' Conference, there's got to be -- 13 14 A Three blocks behind us is the Susquehanna 14 15 River. 15 16 Q I understand that. 16 17 A Or behind me. People fish there. They 17 18, fish.- this area is noted for its high-quality 18 19. trout streams. 19 20 Q Oh, okay. I won't tell anyone-, 20 21 Off the record.. 21 Page 21 Q Okay. Did you take note of any light fixtures in the area? A No. Q Would it surprise you to hear that there were five separate light futures in the area of the south exit? A I don't know that it would surprise me, no. Q Where were you looking as you headed out that side door? A I was looking in front of me, as you do when you walk. Q And describe for me what leads out of that door. Are you on a sidewalk? A Yes. Q Are you going directly into the parking lot? How does that work? A There's a sidewalk. that runs to a parking lot. Q How wide is the sidewalk? A I don't know. It's a concrete sidewalk. 6 (Pages 18 to 211, Court Reporting in Evans Reporting Service Over 20 years of Baltlmore/Washington 800-256-8410 awamkvkmng ser m Terry L. Black 4/7/09 Page 22 e f h ' 1 Page 24 1 o t e s on either sid Q And what that semi at the end of the sidewalk? 2 sidewalk? 2 A Pardon? 3 A As I recall -- I haven't been there since 3 Q What did you do when you first noticed 4 there was grass. 4 the semi at the end of the sidewalk? 5 Q Okay. And then the sidewalk terminates 5 A I knew that I was going to have to turn 6 in the park lot; is that correct? 6 off the sidewalk to go around it. 7 A Yes. 7 Q Did you. ever think to go back in and try 8 Q What did you observe as you headed down 8 a different exit? 9 the sidewalk? 9 A That didn't cross my mind, no. 10. A As I started down the sidewalk, I noted 10 Q Was there some point when you left the 11. that there was a semi trailer, tractor-trailer 11 sidewalk -- 12 trailer that was parked across the end of the 12 A Yes. 13 sidewalk. 13 Q -- to enable your passage to your car? 14 Q It it fair to say that it was 14 A Yes. 15 perpendicular to the sidewalk? 15 Q When was that? 16 A Perpendicular to the sidewalk. 16 A Sometime, I'm guessing -- I. won't say I'm 17 Q Do you remember any company names on the 17 guessing.. As best I can recall, a third to a 18 semi trailer? 18 halfway down the sidewalk. 19 A No, I don't. 19 Q You stepped onto the grass; is.that 20 Q And it was one of those big 20 correct? l tractor-trailers we see on 83 and get frightened 21 A I turned to step onto the grass, yes. Page 23 Page 25 1 by? - 1 Q And what happened next? 2 A It was -- it was a tractor-trailer 2 A I caught my left toe on what apparently 3 trailer. 3 was a loading ramp and tripped and fell and twisted 4 Q Okay. It was a big truck. 4 my knee as I fell. 5. A Yes. 5 Q That's your right knee? 6 Q Did you see any people around? 6 A Yes. 7 A There were some people standing around 7 Q Which toe, left toe? 8 the area at the exit. 8 A My left foot. 9 Q And were they wearing any uniforms or any 9 Q Okay.. And did you actually fall to the 10 designations of who they were employed by? 10 ground? 11 A I didn't see any. I don't recall any. 11 A I fell to my knees. 12 Q . Okay. What were they doing? 12 Q And did you fall onto the grass or around 13 A I don't think anybody was doing anything 13 to the sidewalk? 14 except standing around. 14 A As I recall, my knees were inside the 15 Q Okay. How many steps out of the hotel 15 loading ramp, between the side rails on the loading 16 had you taken when you first noticed the semi? 16 ramp. I didn't actually land on the grass. 17 A I don't recall the exact number. 17 Q Okay. Had you ever noticed a loading 18 Q Were you halfway down the sidewalk or -- 18 ramp before you tripped and fell? 19 A. Probably a third, halfway. I'm not sure 19 A No. 0 exactly. 20 Q Where did the loading ramp lead to? ?1 Q What did you do when you first noticed 21 A It was just lying on the ground. 7 (Pages 22 to 25) Court Reporting In Evans Reporting Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service S n'.a*formi on. the grass? ? A N^- 5 A It wasn't a platform. It's aloading (13 lack Deposition Exhibit No. 4 was E> ramp with sides that stick up from the ground as it marked for identification.) rt,as lying there. BY MS. SMITH: 8 Q And how -- Q l got discombobulated this morning. I 9 A It was flat on the ground. 9 didn't have a chance to make copies, but I'm going 10 Q How far up did the sides stick up? 10 to hand you what's been marked as Exhibit 4. 1:1 A I don't know. Several inches. 1- This is a copy of what I understand to be 12 Q What was it maids out of? 121 the south exit of the Hotel Carlisle, the 13 A I reallly didn't stop to examine that. 13 photograph at the top. 14 Q Had you ever used that type of ramp in 14 Does that photograph depict the south 15 your work as a delivery person? 15 exit of the Hotel Carlisle to your recollection? 16 A No. 16 A I don't know that it does. I don't 17 Q Okay. Sir, I seem to recall a prior. 17 recall that there were double doors there. 18 statement you'd given where you indicated you had 18 Q But the configuration of the sidewalk to 19 seen it before you encountered it physically. 19 the parking lot, is that true, to your 20 Is it your testimony today that you did 20 recollection? 21 see it -before you tripped? Hol 21 A Yes, but I don't recall that there was t Page 27 Page 2.9 1 A I don't recall that I said I saw it 1 planting along the sidewalk. Actually, I don't 2 before I tripped, but I didn't see it before I 2 think -- the sidewalk that I. came out was not along 3 tri?rped. 3. a wall. 4 Q So its your testimony today that you did 4 Q Okay. 5 not see it before you tripped? 5 A There wasn't -- as I recall, there wasn't 6 A That is correct. 6 a wall immediately to the right. I could be wrong 7 Q Did any of these people come to your aid 7 but -- 8 after you fell? 8 Q Well, how about that (kgicating), does 9 A ' One person asked if I was all right or 9 that look familiar to you? 10 something to that effect, but no one offered 10 A That looks like the one near the swimming 11 assistance. 11 pool. 12 Q Okay. Were you able to get yourself up 12 Q Okay. So that does not look familiar to 13 off the ground -- 13 you, the top photograph on Exhibit. 4? It is not 14 A Yes.. 14 consistent with your recollection of the south exit 15 Q -- unassisted? 15 to the Hotel Carlisle? 16 A Yes.. 16 A I'm trying to recall if there was a wall 7 Q Okay. How far from the truck was the 17 along the right side. I can't say co"wlusively. 18 ramp on the grass? 18 Q Okay. But the length of dw sidewalk, is 15. A I don't recall the exact distance. I 19 that consistent with your recollection of the 0 can't even recall the exact distance from the door 20 layout of the south exit? 1 to the parking lot, but I would estimate "some 20 21 A Fairly so, I guess, yes. 8 (Pages 26 to. 29 court Reporting in Evans Reporting. Service Over 20 years cif Babnore/Washingt:on 800-256-8410 award-wirvilng service Terry L. Black 4/7/09 Page 30 ?1 Q Okay. Could you mark on the photograph 2 . where approximately you fell and where the ramp 3 was? 4 A If this (indicating) is the sidewalk from 5 the exit, it would be about here (indicating). . 6 Q Let me represent to you that -- well, . 7 there's a pen. Assuming for purposes of this set 8 of questions that this is a depiction of the south 9 exit for the Hotel Carlisle, if you could, mark on 10 here -- and subject to.the understanding that 11 you've testified that the sidewalk is consistent 12 with your recollection of the sidewalk, with the 13 exception of there being a wall there, could you 14 mark on here where the ramp was? 15 A Someplace in this area here (indicating). 16 Q Okay.. Yeah. I need you to make an."V 17 or a deeper mark on it. You can even mark on the 18 sidewalk area, if you like, so it's visible. 19 A Someplace in here (indicating). I don't 20 remember. exactly where, though. 1 Q And the truck, was there any space Page 31 1 between the end of the sidewalk and the truck, or 2 was the track blocking the end of the sidewalk? 3 A I believed it to be blocking the end of 4 the sidewalk. 5 Q Okay. What was your plan as you exited? 6 I mean, the semi truck is quite large. What was 7 your plan to get into the parking lot if the semi B was blocking the end of sidewalk? 9 A As I said, I was turned and I was going 10 to go across the grass to the parking lot. 11 Q Okay. You were going to walk around the 12 truck? 13 A Yes. 14 Q Do you have any recollection of how long 15 the ramp was? 16 A No, I don't. 17 Q Did it extend out to the grassy area in 18 this picture? 19 A As I recall, it was perpendicular to the 20 sidewalk. ,Al Q Okay. Did the ramp encroach onto the Page 32 1 sidewalk at all? 2 A Not that I recall. 3. Q Was the truck idling or was it totally 4 off? 5 A I don't recall. 6 Q Okay. ithink you testified you were 7 able to get yourself up off the ground without 8 assistance; is that correct? 9 A That's correct. 10 Q What did you do after you stood up? 11 A I hobbled to my truck. 12 Q Where was your truck parked in relation 13 to this sidewalk? 14 A , Someplace in this area over here 15 (indicating). There's some parking along the far 16 side of that area (indicating). 1.7 Q Can you give me a distance between the 18 sidewalk and your car? 19 A I don't know. Twenty, 30 feet, maybe a 20 little more. 21 Q _ And what did you do when you got to your Page 33 1 car? 2 A I drove around to the front of the hotel 3 and went to the lodging desk and told the folks at 4 the lodging desk what had happened. 5 Q And, sir, you testified that you hobbled 6 to your.truck. 7 A Yes. 8 Q What exactly did you mean by that? 9 A Well, I had what turned out to be a 0 severely sprained ankle and a knee that was 1 injured. I didn't walk comfortably. I hobbled. 2 Q Okay. Were you feeling discomfort or 3 pain in any part of your body? 4 . A I was feeling discomfort in my knee and 5 my ankle. .6 Q Okay, Which knee and which ankle? 7 A My left ankle and my right. knee. 8 Q Were you bleeding anywhere? 9 A No.. 0 Q Were you scraped, or did you have any 1 abrasions anywhere? y (Pages 30 to 33) Court Reporting In Evans Reporting Service Over 20 years of Baltirwre/Washingtpn 800-256-8410 award-winning seMce .r, A ,.;-ere was no t.earing on my c,(*., ,. -n 5 toe of rimy left shoe was scuffed. i4 aat w ?u tlhai on? Did 6 Q What sort of shoe: were you Nvearing? Y o.i see arty unif61-trr iat ;iivw, i,rv company? A Penny loafers. 8 Q Sir, how tall are you? Did you see anr+ toois oeing ioaded? 9 A Approximately six feet. 6. No. 10 Q Have you ever had any prior injuries to 10 i ? Did you ever receive any confirmation 11 your left ankle or your right knee? 11 from the hotel or anybody associated with the hotel 12 A . I have from time to time sprainoi my 12 that the ramp and truck were associated with the 13 ankles and probably have sprained my left ankle or 13 tool sale? 14 twisted h. 14 A I never received any indication of 15 Q And how have those injuries occurred? 15 anything from the Hotel Carlisle. 16 A Walking on uneven surfaces. 16 Q Okay. Did you ever learn from any other 17 Q Okay. Do you recall prior to April 4th 17 person or entity that the truck and the ramp were 18 of 2008 the last time you'd had a sprain to your 18 associated with the tool sale? 19 ankle? 19 A Not really, other than what Brian has 20 A No, I don't. 20 been able to determine. 21 Q Do you recall the name of the person you 21 Q Well, Mr. Black, you've sued a person Page 35 Page 37 1 spoke to at the front desk? 1 named Scott Roy in this lawsuit. Do you know what 2 A No, I don't. 2 Scott Roy's role in this is? 3 Q Okay: What did they tell you? 3 A I do not know. 4 A Regarding what? 4 Q Do you know why Mr. Roy is a defendant in 5 Q Well, tell me what you recall of your 5 this lawsuit? 6 communication with the hotel attendant. 6 A I do not know personally, no. 7 A . I told them what had happened. 7 Q Okay. And its your testimony today that 8 Q What did you tell them? 8 nobody has ever-informed you and you've never 9 A I told them that, when I was leaving, I 9 learned that the ramp and the truck was associated 10 had tripped over this ramp that was along the edge 10 with the tool sale? 11 of the sidewalk. 11 A Other than discussions with counsel and 12 And the fellow whom I'm assuming was the 12 what he's determined. 13 lodging manager then called someone who was 13 Q Okay. And did anyone ever tell you that 14 purportedly part of the security for the hotel, and 14 ramp or truck were associated with any of the 15 they had a discussion. 15 hotel's business? 16 And as I recall, the security fellow gave 16 A No. 17 no indication that he knew what was going on. 17 Q Okay. If you could explain to me, you're 18 Q - In terms of what? 18 standing at the front desk having a communication 19 A The tool show and any activities they 19 of some sort with the person you believe to be the 20 might be doing. 20 manager; is that correct? 1 .Q How did you make the connection between 21 A The. lodging manager, I guess, yes. 10 (Pages 34 to 37 Court Reporting in Evans Reporting Service Over 20 years c f 6a1nore/Washington 800-256-8410 awatd-wlnrgng service Terry L. Black 4/7/09 Page 38 Q And now a security person becomes 2 involved in this conversation? 3 A Yes. 4 Q You were testifying you had indicated 5 that your perception was the security guard didn't 6 know what was going on and didn't have any 7 knowledge regarding the tool sale? 8 A. No. 9 Q Okay. What was your testimony with 10 regard to the security guard then? 11 A . That he wasn't aware of any activities 12 out there related.. 13 Q Related to what? 14 A Related to why the ramp would be there or 15 anything of that nature. 16 Q Okay. So is it your testimony that the 17 hotel personnel were not aware that the ramp was 18 there? 19 A That was the sense I got. 20. Q Okay. Do you remember anything else 1 about your communication with the hotel Page 39 1 representatives that night? 2 A They asked me if I wanted to go see a 3 doctor. 4 Q And what did you tell them? 5 A. I declined at the time. 6 Q And why did you decline? . 7 A Because I didn't want to be in a 8 small-town hospital emergency room at 10:00 on a 9 Friday night. 10 Q Did they offer any sort of aid in terms 11 of ice or aspirin or anything of that nature? 12 A No. 13 Q Did you ask for anything of that nature? 14 A No.. .15 Q Okay. Did you speak to anybody other 16 than the front desk attendant and-the security 17 guard? 18 A I think I indicated earlier, someone 19 asked me if I was okay. 0 Q One of the people out by the truck? A - Yes. Page 40 1 Q Okay. Other than the person by the 2 truck, the hotel manager and security guard, you 3 didn't speak to anybody else? 4 A No. 5 Q Okay. And did they ask you to complete. 6 an incident report? 7 A Yes. 8 Q I'm going to show you what's been marked 9 as Exhibit 1. 10 Is that the incident report that you 11 completed? 12 A Yes. 13 Q Okay. And did you fill this out? Is 14 this your handwriting? 15 A Yes. 16 Q And it states in the incident report, 17 "Workers loading truck from tool sale had truck 18 loading ramp lying on the sidewalk." 19 How did-you have that information 20. available to you if you nobody confirmed or 21 informed you that the ramp was associated with the Page 41 1 sale? Strike that. Let me ask this question. 2 How did you obtain that information 3 that's in the description. section of the incident 4 report? 5 A That was an assumption on my part. 6 Q What was that assumption lased on? - 7 A That there were people from this tool 8 sale that was going on. 9 Q How did you make the connection to the 10 people and the tool sale? 11 A I might have lept to a.conclusion. 12 Q Well, sir, you couldn't have just drawn 13 this out of thin air. It had to have been based on 14 some observation or something you heard or 15 perceived. There has to be some basis for a 16 conclusion or assumption. 17 And I m trying to understand how it is 18 you came to state this description if the hotel had 19 not been able to inform you who those people were 20 or why the ramp was there. How did you incorporate 21 this into your incident report? 11 (Pages 38 to 41) Court Reporting in Evans Reporting Service Over 20 years of Baldmore/Washington 800-256-8410 award-winning service 1 ./ A -- V:' ere T -,x tee. - 8 Q Okay. Su takz: me back to when you exited 9 because that might fill in the gaps that are 10 missing: 11 As you ap prou had the south exit from the 12 inside when you were leaving -- 13 A Yes. 14 Q -.- is that a hallway or some sort of 15 corridor that you walk through? . 16 A It's it corridor with rooms on either 17 side, as I recall, 18 Q Okay. And what, if any, activities did 19 you observe in that corridor as you approached the 20 exit door? 21 A Not so much in the corridor, but it Page 43 1 looked as though they were dismantling the area I 2 had noted as a tool-sale area when I was entering. 3 Q What were they dismantling? 4 A They were boxing up different tools and 5 things like that that were -- that they had.for 6 sale that they hadn't sold:,. 7 Q Where was this activity taking place? 8 Was it in the corridor itself, or was it in a -- 9 A Room. 10 Q -- room off the corridor? 11 A Rooms off the corridor. 12 Q Okay. We're going to have a problem with. 1.3 the court reporter here. You have to let me finish 14 my sentence. 15 So there were rooms off the corridor 16 where you observed people packing up tools; is that 17 correct? 18 A Yes. 19 Q And you observed that as you exited the 20 hotel -- 21 A Yes. 9;? V, :_? ti?:r: ?t?? tlutrg??u,.tc?ntu ?itV corridor , X10 as you_mr,,c) ;c?,oir& tfi? do(,- 11 d, No 12 te) Okay. Were :.here arty people in that 13 corridor as you walked towards the door? 14 A 1hat,1 don't recall. 15 Okay. Was your passage down the corridor 16 to the door blocked or impeded in any way? 17 A No, it wasn't. 18 Q Okay. So your statement in the 19 description section of the incident report is based 20 on what you observed as you went down that corridor 21 towards the exit door; is that correct? Page 45 1 A Yes. 2 Q Okay. And you indicate in this statement 3 that it was an unlighted area? 4 What area do you contend was unlighted? 5 A As I recall, there weren't lights along 6 the sidewalk. 7 Q Okay. Were there any lights by the door? 8 A I don't recall for sure. 9 Q Were there any lights. in the parking lot? 10 A I don't recall. that for sure either. 11 Q Did you have any difficulty walking from 12. the point where you fell to your car due to 13 darkness or lack of lighting? 14 A I really wasn't paying attention to the 15 lighting at that point. 16 Q Okay. Did you have any difficultly 17 getting you car keys and getting into your car 18 because of a lack of light in the parkin lot? 19 A No. My car keys were in my pocket, and I 20 have an electric door opener... 21 Q Okay. And then you indicate it was an 12 {Pages 42 to 45 Court RepoMng In Evans Reporting Service Over 20 years;,cf BabMre/Wad*Vton 800-256-8410 award-wlnritg serv-- Terry L. Black 4/7/09 Page 46 Page •48 1 unsigned area. 1 . Q Did you call anyone on the way home to 2 What do you mean when you state that it 2 let them know you'd had an accident? 3 was unsigned? 3 A I don't recall if I called my wife or 4 A There was nothing there to alert the to 4 not. 5 any potential danger. 5 Q Did you have to stop anywhere-to get some 6 Q What would you have expected to have been 6 ice or Aleve or anything of that nature? 7 there? 7 A No. 8 A Well, I would have thought that if there 8 Q Did you make any stops on your way home? 9 were some danger there with use of that exit. that 9 A Not that I recall. 10, they would have put signs on, do not exit, or 10 Q What did you do when you got home? 11 something like that. 11 A I got home. I took some pictures. of my 12 . Q Did you notice any other people exiting 12 ankle in case there was any question if there was 13 through those doors at around the time you 13 an injury. 14 departed? 14 . Q Why did you do that? 15 A No. . 15 A Because I didn't know how the insurance 16 Q Okay. And on the second page next to the 16 would cover that, what kind of issues there might 17 entry that says, "Was medical refused," you checked 17 be. 18 yes, but then somebody wrote in "For the.time 18 Q What did your ankle look like? 19 being." 19, A It was extremely swollen and there was 2 0 Is that your handwriting? 20 discoloring. 1 A That's my time being - my writing, yes. 21 Q Okay. Is there anything else that you Page 47 Page 49 1 Q And what did you mean by that? 1 did when you got home that night? 2 A. I meant that I didn't want to go to the 2 A I iced it. 3 hospital emergency room. 3 Q You iced what? 4 Q Okay. Did you feel you were able to get 4 A I iced my ankle. 5 yourself home safely? . 5 Q Is there anything else that you did . 6 'A I believed I was. 6 before you went to bed that night? 7 Q Okay. And did you have any difficultly 7 A I think I took some Aleve. 8 driving yourself home that night"? 8 Q Is that something you ordinarily take for 9 A I had pain in my right knee. 9 aches and pains and headaches and things? 10 Q What sort of pain? 10 A Yes. 11 A Just sort of an aching pain and, of 11 Q And did that help? 12 course, my ankle. 12 A No, not really. 13 . Q Was it a sharp pain, a dull pain? Was it 13 Q Were you able to sleep okay that night? 14 constant? Was it intermittent? 14 A No. 15 A It was pretty much constant. And my left 15 Q Okay. Tell me what happened How did 16 ankle was constant burning pain. 16 you feel when you woke up that morning, the morning 17 Q Okay. You were able to get yourself home 17 of the 5th? 18 okay? 18 A Not very rested. My ankle was hurting 19 A Yes. 19 and my knee was hurting. 0 Q And how long is the drive? ' 20 Q Okay. How did your ankle look at: this 1 t know, 35, 45 minutes. A I don 21 point? -" 13 (Pages 46 to 49) (hurt Reporting in Evans Reporting Service Over 20 years of Saltlmore/Washington 800-256-8410 award-winning service 4 that you could observe? Z Q When did you stop wearing the knee brace? 5 A Slightly -- I'm sorry. My left -- or my A l actually haven't stopped wearing it. I 6 right knee was slightly swollen, and I had pain in 6 still wear it from time to time. 7 my knee. 7 Q Okay. Did you wear it on a -- I need 8 Q . Were you able to walk okay? 8 some more specifics. How often did you wear the 9 A No. 9 knee.brace between April 5th of 2008 and May 20th 10 Q Okay. How was your walking impeded? 10 of 2008? 11 A I hobbled. 11 A Virtually, every day. 12 Q Okay. And when did you first seek 12 Q Okay. 13 medical treatment? 13 A As I said, I think he's the one who 14 A On Saturday, which was the day -- 14 prescribed it. I'd have to check my records. But 15 Q The day after? 15 I wore it every day from the time I put it on. 16 A Yes. 16 Q And was that just an elastic sleeve or 17 Q Okay. Who did you go to? 17 mechanical brace? 18 A I went to Norlanco Medical Center and saw 18 A It was a sleeve. 19 Dr. Yoder. 19 Q How long did your ankle bother you? 20. Q Okay. Dr. Yoder at Norlanco? 20 A It still bothers me. 21. A Yes. 21 Q How long did the ankle have discoloration Page 51 Page 53 1 Q Is that your primary care physician? 1 and swelling? 2 A The Norlanco Center is, yes. 2 A . Several weeks. I don't recall exactly 3 Q Okay. Saturday morning -- you've got a 3 how long. 4 doctor that works on Saturday morning? 4 Q Well, let's use the date of your surgery 5 A The center is open Saturday mornings. 5 as a benchmark on May 2W.2008. Was your left 6 Q What did Dr. Yoder do? 6 ankle still swollen and discolored at that point? 7 A He examined me, confirmed the sprained 7 A No, I don't believe it was. t 8 ankle and indicated he thought that my knee was 8 Q Okay. Was there a point when your doctor 9 just sprained. 9 indicated to you that he believed the sprain of 10 Q Okay. And do you recall what treatment 10 your left ankle had fully resolved? 11 he recommended at that point? - 11 A No. 12 A As I recall, he put an air cast on my 12 Q If there's an indication in the medical 13 ankle. And I think he's the one who suggested the 13 records that after a few weeks of visits your 14 knee brace. 14 doctor determined that the ankle had healed, you 15 Q Okay. And did you wear the air cast? 15 would disagree with that? 16 A Yes. 16 A I don't think there was ever a point 17 Q For how long? 17 where he said, "It's healed." Its just one of 18 A . I don't recall. A week, two weeks 18 those things that, after a time, it is healed. And 19 probably. 19 I don't think there was -- as I recall, I don't 20 Q Okay. How .about the knee brace? 20 think the doctor gave an indication, it's now 21 A I wore it through the entire period. 21 healed. 14 (Pages 50 to 53 Court Reporting in Evans Reporting Service over 20 years c l Baby ore/WashingtDn 800.256-8410 award-winning setvlo? Tent' L. Black 4/7/09 Page 54 Page 56 } 1 Q Well, was there a time at which he 1 symptomatology, I guess, as compared to the prior 2 stopped treating you for your ankle injury? 2 sprains you had suffered. . 3 A I think when I last saw Dr. Yoder about 3 A It was probably less severe than the one 4 it, he said that it would take awhile for it to be 4 I had in my right ankle. 5 completely healed, but it was doing well. 5 Q Okay. And did your left ankle ever 6 Q Okay. In the past when you'd had ankle 6 bother you? 7 sprains, how long did it take for them to resolve? 7 A That was 15 years ago and 8 A In terms of the swelling going down? Is 8 Q Well, does it bother -- 9 that the question? 9 A It doesn't bother me now. 10 Q Well, I want to know how long it took- for 10 Q Okay. And how about your right knee, is. 11 your ankle to heal previously when you had ankle 11 it your testimony today that; prior to April 4th, 12 sprains, 12 2008, you didn't have. any aches, pains or stiffness 13 A I don't really recall the enact time. 13 with respect to your right knee? 14 Q Okay. Were you having any residual 14 A :.I can't say that I didn't have any aches 15 aches, pains or burning sensations due to the prior 15 or pains. I did have some pain from time to time. 16 sprains before the April 4th incident? 16 Q Okay. How often?. 17 A No. 17 A Maybe once a month. 18 Q Okay. So those prior sprains didn't have 18 Q Can you tell. me a little bit about your, 19 any residual effect on your ankle? 19 physical activities? What do you do for exercise? 20. A No. 20 A I walk. I've biked in the past. 1 hunt. 1 Q Okay. But it's your testimony today that 21 1 fish. Page 55 Page 57 1 the sprain you received on April 4th did cause you 1 Q Okay. And had. that. right knee ever given 2 some residual problems? 2 you any difficultly with respect to those 3 A I still have some, yes. 3 activities before April 4th, 2008? 4 Q And why do you believe that is? 4 A Could you ask that again, please? 5 A I don't know. I. -- I don't know. 5 Q Had the right knee given you any 6 Q You don't know why this. sprain in 6 difficulty with those activities prior to .7 particular has caused you residual problems as 7 April 4th, 2008? 8 opposed to the prior ones? 8 A Other than some burning from time to 9 A I don't recall how long the residual 9 time, no. 10 problems might have been with the prior ones. 10 Q And how often did you have that burning? 11 Q. Okay. 11 A Maybe once a month. 12 A So I don't know that this is extreme. . 12 Q Okay. Had anyone told you prior to 13 Q Okay. Was the sprain that you received 13 April 4th, 2008 that you had any arthritis in your 14 on April 4th significantly different from prior 14 knee? 15 sprains that you had sustained to your ankles? 15 A No. 16 A I don't know if I can make that 16 Q Okay. There's some indication in your 17 conclusion. I'm not you know -- 17 medical records of a sprained fracture of your 18 Q Well, you experienced them so, yeah, I 18 right fibula. 19 want some understanding of how -- 19 Do you remember when that happened? 20 A I -- I don't -- 20 ..A That may have been when I did the severe 1 Q Was this different in severity or 21 sprain of my ankle. 15 (Pages 54 to 57) Court Reporting in Evans RepoMng Service Over 20 years of Babnore/Washinghon 800-2568410 award-winning service I 4 receive for that? 4. was there. 5 A There was a cast put on for awhile. 5 Q Okay. How long did that last? 6 Q A plaster cast? E) A Do you mean the shot of pain or - 7 A No, a fiberglass cast. 7 Q Yes. 8 Q Okay. I think with respect to your right 8 A I really don't know. When I have that 9 knee you testified that there was a progression of 9 kind of pain, I -- you know -- 10 symptoms. Could you describe that for me? 10 Q Was it before you went to the doctor on 11 A At first, I had the pain and aches in the 11 Saturday or after you went to the doctor on 12 knee, and that was what I experienced when I was 12 Saturday? 13 leaving the Hotel Carlisle. 13 A It was -- I think it was after I went to 14 The next few days, I noticed when I was 14 the doctor that I first noticed the pain when I 15 walking along, every once in a while, I'd get a 15 tried to walk., 16 severe pain that almost brought me to my knees just 16 Q Okay. And what did you do when you felt 17 sort of randomly. 17 that pain? Did you call the doctor? 18 Q What area of your knee would you feel 18 A He told me that I should just let my knee 19 that in? 19 go for a week or so and see how it went. And when 20 A Right in the joint. 20 I started to experience this pain, I don't remember 21 Q Was it on the other side or on the top? 21 how soon it was, I went back to-him. Page 59 Page 61 1 A It was the kind of pain I really couldn't 1 And he; again; said he thought it was 2 tell where it was coming from. It was that severe. 2 just a sprain. And that wasn't satisfactory 3 Q You couldn't identify any particular area. •3 because it didn't feel like just a sprain. 4 of your knee that was affected? It was just you 4 Q Did he prescribe any medication or other 5 would generally say your knee? 5 treatment besides the brace? 6 A Yes. 6 A I don't know if he gave me any medication 7 Q It wasn't on either side. I mean, I need 7 or not. I don't recall. 8 you to tell me, are.you able to associate it with 8 Q Did he tell you to ice it? 9 the inside or the outside of your knee? 9 A Yes. 10 A It was probably on the - more on the 10 Q And did you ice it? 11 inside of my knee, but it was just - 11 A Yes. 12 Q It was a sharp pain? 12 Q Did that alleviate the pain? 13 A It was an extreme pain, sharp pain, and I 13 A It did in the ankle, but not the knee. 14 don't know how to describe it. 14 Q The ice didn't help your knee at all? 15 Q When did you first notice it? 15 A Not really, no. It didn't help dwse 16 A It was probably Saturday afternoon and 16 pains when I was walking. 17 maybe -- 17 Q Okay.. Did you feel pains oon?tly or 18 Q What. were you doing when you first 18 just when you were walking? 19 noticed it? 19 A At first just when I was walking, but 0 A I was just standing up to walk someplace 20 then it got to the point where, if 1 were lying in 1 to get a glass of water or something. 21 bed and turned, I'd feel the pain. If I rolled 16 (Pages 58 to 61 Court Reporting in Evans Reporting Service Over.20 years of Baltknore/WaShington 800-256-8410 avmrti ning service Terry L. Black 4/7/09 Page 62 over in the night, it would wake me up. 2 Q Okay. At some point, surgery is the 3 subject of some discussion with you and your. 4 doctor. Who first proposed that? 5 A I went -- I think my third visit on the 6 thing was to see Dr. Hamly at Norlanco. 7 Q Does he have some sort of specialty? 8 A I think they're all GPs. 9 Q Okay. 10 A And he examined my knee and indicated he 11 believed I had a torn meniscal cartilage and 12 prescribed X-rays and then an MRI, which confirmed 13 I had torn cartilage. 14 Q So no X-rays or MRIs were taken until 15 several visits in? 16 A Right. 17 Q Did you ever see an orthopedist? 18 A From - after the MRI, I went to see 19 Dr. Conrad. 20 Q Okay. And Dr. Conrad is the orthopedist? 21 A Yes. Page 63 1 Q Vat did Dr. Conrad tell you? 2 A He- onfirmed that I had torn cartilage. 3 Q And has anyone ever told you that the 4- torn cartilage was because of the fall on 5 April 4th? 6 A I don't understand the question. 7 Q Have any of these doctors told you that 8 the torn cartilage was caused by the fall on 9 April 4th? 10 A I don't recall that they did, no. 11 Q Okay. And who is it that recommended 12 surgery? 13 A Dr. Conrad. 14 Q Okay. Did Dr. Conrad discuss with you 15 any alternatives to surgery? 16 A I don't recall he indicated any. 17 Q During the period of April Sth to 18 May 20th when you did have the surgery, were you 19 engaging in any physical therapy or other such 20 treatment activities? 1 A No. - Page 64 1 Q Did any of your doctors recommend that 2 you engage. in any physical therapy? 3 A No. 4 Q During the period of April 5th to 5 May 20th, did you take any medications at the 6 recommendation of your doctors to treat the. 7 symptoms you had in your knee and ankle? 8 A I don't think any of the prescribed 9 medications; but I was taking Aleve. 10 Q And that was at your own discretion? 11 A Yes. 12 Q Did any of the doctors recommend any 13 exercises or what I would call home exercises to 14 help alleviate the symptoms in your knee or ankle? 15 A No. 16 Q How long have you been seeing the doctors 17 at Norlanco? 18 A Since the early '70s. 19 Q Had you ever seen. Dr. Conrad before? 20 A No. 21 Q Have you ever been to an orthopedist of Page 65' 1 any kind before? 2 A. No. 3 Q Between the period of April 4th and 4 May 20th, were you doing your regular exercise 5 routine? 6 A No. 7 Q Did you go hunting or fishing or any of 8 those activities? 9 A No. 10 Q Is it your. testimony that you did not 11 injure or reinjure your knee between April 5th and 12 May 20th? 13 A That is correct. 14 Q Okay. Have you ever attended physical 15 therapy to treat your knee or ankle? 16 A I have not attended physical therapy. 17 Q How about optional therapy, anything of 18 that nature? 1.9 A No. As I recall, after the sprain on my. 2 20 right ankle, I was given some elastic to exercise 21. ' my right foot against. That's the only therapy. 17 (Pages 62 to 65) Court Reporting in Evans Reporting Service Over 20 years of Baidmore/Washingion 800-256-8410 award-winning service 4 this is what I mean by things like home exercises. I to be done prior to an VP,:T 5 A I don't even recall exactly when that Q And the MRI ro paled some torn cartilage? 6 injury was. 6 A Yes. .7 Q Oh, this is your other ankle? Q And what part of the knee was affected? 8 A This is my right ankle. 8 A Medial meniscal cartilage. 9 Q So a past injury? 9 Q Okay. Tell me about the postsurgical 10 A Yes. 10 activities. This was arthroscopic surgery? 11 Q Did you ever do those exercises? 11 A Yes. 12 A Yes. 12 Q On an outpatient basis? 13 Q Okay. For how long did you do those 13 A Yes. 14 exercises? 14 Q At a. surgery center? 15. A I don't recall. 15 A Yes. Basically, yes. 16 Q Did anyone recommend that you engage in 16 Q How long were you off work? 17 similar exercises for your left ankle? 17 A A couple of days. 18. A No. 18 Q Would that be documented with your 19 Q So you had the surgery on May 20th. What 19 employer? 20 exactly did they do, do you recall? . . 2 0 A As I indicated earlier, I work on a 21 A Dr. Conrad indicated he removed some 21 part-time basis. I go into work basically when I Page 67 Page 69 1 car tilage and cleaned up some arthritis that I had 1 want. 2 in my knee. 2 Q Was that your arrangement with ERM as 3 Q Does your left knee ever bother you? 3 well? 4 A No. 4 A That's my arrangement with ERK yes. 5 Q And what, if anything, has.Dr. Conrad 5 Q Well, when I ask you about lost wages, 6 told you with respect to the arthritis? 6 what I need to. understand is, was there any time 7 A I don't recall except that he said I. had 7 you were scheduled to or expected to work that you 8 arthritis and that he cleaned it up. 8 were unable to work. because of the surgery? 9 Q Has he ever told you what to expect with 9 A As I indicated, there is no schedule for 10 regard to the arthritis in terms of future issues? 10 my working. I work on the projects and. I can work 11 A It's not going to go away. 11 at home. I work, you know.-- 12 Q And did Dr. Conrad ever tell you that the 12 Q So you're not expected to go to the 13 arthritis was caused by the fall on April 4th of 13 office -- 14 2008? 14 A Right. 15 A No, he didn't. 15 Q -- and engage in work activities there? 16 Q. 'Okay. Did he explain to you that that's 16 A Right. 17 a degenerative condition? 17 Q So was there any work that you were 18 A Yes. 18 expected to do but were unable to do because of the 19 Q I think your testimony was the X-ray 19 surgery you had on May 20th? 0 revealed some torn cartilage. Did anyone -- 20 A There were projects I was working on that 1 A No, the X-ray didn'L 21 I had to put off working on. 18 (Pages 66 to 69 Court Reporting. In Evans Reporting Service Over 20 Years c,P .BaMtlinore/WnshingWn 800-256-8410 award- nrting service Terry L. Black 4/7/09 Page 70 Q Did you miss any deadlines or were any 1 2 completion dates delayed because?of the surgery? 2 3 A No. 3 4 Q Tell me what your recovery consisted of 4 5 in the five days after your surgery. 5 6 A I can't remember the exact days; but a 6 7 day or two after surgery, I started physical 7 8 therapy. 8 9. Q I thought you testified you didn't engage 9 .0 in any physical therapy? 10 L l A Prior to this, I didn't. 11 L2 Q Well, that wasn't my question. . 12 13 A Sorry. 13 14 Q So you did engage in some physical 14 15 therapy? 15 16 A After the surgery. 16 17 Q And you began that two, three. days after 17 18 the surgery? 18 19 A Yeah. Well, one to two days. I think it 19 20 was the second day that I started. . 20 1 Q Who was the physical therapy provider? 21 Page 72 do? A Stationary cycle, balancing activities, leg extension activities, that sort of thing. Q Okay.. A And I did that for three. to four weeks. Q Did they recommend that you continue any home exercise routines when you completed the physical therapy? A Not after I completed physical therapy, but during the physical therapy period twice a day and sometimes three times a day, I was to do exercises at home. Q And did you do those exercises? A Yes. Q And did you do them as often as recommended? A Yes. Q Tell me how your knee felt after three to four weeks of physical therapy. A I had the extension that they had expected. I had the flexing capability. And the Page 71. Page 73 1 A I think they're part of Lancaster General 1 severe pain that I experienced before the. surgery 2 Hospital. 2 was gone. 3 Q . Is that where you had the surgery? 3 Q Okay. And how's your knee feeling today? 4 A Yes. 4 A .Today, it feels all right. 5 Q And who performed the surgery? Was it 5 Q Okay. Are you continuing any sort of .6 Dr. Conrad? 6 home exercises or exercise routines that were 7 A Dr. Conrad, so far as I know. I was 7 recommended by the physical therapists or the 8 unconscious at the time. 8 doctors? 9 Q And how long did you participate in 9 A No, I'm not. 10 physical therapy after the surgery? .10 Q When was the last time that you saw a 11 A I don't recall exactly how long it was. 11 doctor for complaints related to your knee? 12 Q Well, let me -= 12 A I think it was mid November I went to see 3 A Probably three or four weeks. 13 Dr. Conrad. 4 Q -- explain it to you this way. 14 Q Why did you see Dr. Conrad in mid 15 Did it help? 15 November? 16 A I guess it did. 16 A Because I had pain and swelling in my 17 Q How often did you go? 17 knee. 18 A I think it was twice a week. 18 . Q That was November of '08? 19 Q How long did the sessions last? 19 A Yes. 0 A About an hour each time. 20 Q What did Dr. Conrad tell you about that? 1 Q What sort of activities did they have you 21 A He said that was probably related or 1y k rages /U Lo 1-3) Court Reporting in Evans Reporting Service Over 20 years of Baltimore/Washingbon 800-256-8410 award-winning service 4 A He took fluid out of my knee and gave me €. Q Okay. Does it ever give you any 5 a cortisone treatment. 5 problems`? 6 Q . Was that the first time you had the 6 A. Pardon me? 7 cortisone treatment? Q Does your ankle ever give you any 8 A No. That was the third cortisone 8 problems? 9 treatment following surgery. 9 A In terms of? 10 Q Okay. Did your symptoms improve after 10 Q Your left ankle, -in terms of being able 11 the cortisone injection and the drainage? 11 to do your normal day-to-day activities. 12 A Yes. 12 A It causes me concern. I don't want to 13 Q Okay. Is he having you take. any regular 13 turn it again, so it makes me more cautious perhaps 14 medication for the arthritis? 14 in some things I do. 15 A No. 15 Q Okay. And how about your right knee, t 16 Q How about your left ankle, when's the 16 does that get in the way of your day-to-day 17 last time you saw any doctors for symptoms related 17 activities in any way? 18 to your left ankle? 18 A Not really, except for the caution or the 19 A As I recall, that was my second visit 19 fear of doing something that would irqure it again. 20 with Dr. Conrad -- or Dr. Yoder. 20 Q Okay. This is going to sound odd, but I 21 Q Your second visit after the. accident? 21 have to ask you, do you ever use any assisttve Page 75 Page 77 1 A Yes. 1 devices for any reason, a cane or the brace that we 2 Q And that's the. last time you spoke to him 2 talked about earlier? 3 about your ankle symptoms? The second visit after 3 A I use the brace. 4 the accident, is that the last time you spoke to 4 Q How often do you use the brace? 5 any doctor about your left ankle? 5 A It depends on what my activities are. .6 A As I.recall, yes. 6 Q And the brace is for your. right knee? 7 Q Okay. Has a doctor or physical 7 A Yes. .8 therapist, healthcare provider of any sort told you 8 Q Okay. What sort, of activity would prompt 9 you need further treatment for your left ankle or 9 you to use the brace? 10 right knee? 10 A If I'm -- if I know I'm -going to be 11 A . No one has said anything about my right 11 walking on uneven surfaces like hunting or fishing. 12 ankle. Dr. Conrad has said that - 12 Q But you're still able to hunt and fish? 13 Q I think your left ankle. 13 A Yes. 14 A Or my -- I'm sorry. My left ankle. 14 Q Okay. Okay. Mr. Black, I'm going to ask 15 Q I need to be sure to make a clear record. 15 you some questions about --. this is marked as Black 16. A Okay. And insofar as my right knee goes, 16 Exhibit 2. 17 Dr. Conrad indicated that 1 may need additional 17 . And I was thoroughly confer by this 18 cortisone or possible other treatment for my 18 document that was attached to your answers to 19 arthritis. 19 interrogatories. 20 Q Okay: So how is your knee today? 20 I was curious for you to explain what it 21 Forgive me if I've already asked you that question. 21 is. This is a document marked Record. It's Black low M 20 (Pages 74 to 77 Court Reporting in Evans Resting Service Over 20 years of Bal wre/Washington 800-256-8410 award-wi wft service Terry L. Black 4/7/09 L Page 78 Page 80 / Exhibit 2. 1 received them today. 2 At the top, it says, "PEBTF Claims 2 MS. SMITH: Well, if you just received 3 Utilization," and it's stamped ".Confidential." If 3 them today, how.did he prepare this before the 4 you could, take a look at that and tell me what 4 answers to interrogatories? 5 this is. 5 MR. ZELLNER: He used them. 6 A This is the first time I've seen it, and 6 THE WITNESS: They are mine. They were 7 all I can tell you is, it must be a record of 7 sent to me. 8 claims I've made to PEBTF,.Pennsyivania Employee 8 MS. SMITH: So you just received them 9 Benefit-Trust Fund. 9 from him? 10 Q This is your healthcare insurance form? 10 MR. ZELLNER:From him today. 11 A Yes. 11 BY MS. SMITH: 12 Q Okay. And so you don't know what any of 12 Q Okay. I see there are, for example, two 13 the individual entries are associated with? 13 charges for an EKG on May 12th. Do you know why 14 A 1 have no idea what this all represents, 14 there are two separate charges for an EKG on 15 I really don't. 15 May 12th? 16 MS. SMITH: Okay. Off the record. 16 A I have no idea. 17 (Discussion off the record.) 17 Q Okay. And there are two separate charges' 18 BY MS. SMITH: 18 for anesthesia. on May 20th.. Do you know why there 19 Q I'm 'also going to ask you about what's 19 are two charges on May 20th? .20 been marked as Black Exhibit 3, which is.. a 20 A I don't understand how the medical 1 four-page document that was also attached to your 21 profession bills. Page 79 Page 81 1 answers to .interrogatories. 1 Q Okay. And there's an entry on 12/12/08 - 2 Do you know who prepared this document? 2 for drugs. What drugs are you referring to? 3 A I think I did a draftof it. And this 3 A. On 12/12/08? 4 isn't the same format I used, but it appears to be 4 Q On the second page. In fact - 5 the same information that was-on the oneI 5 A I don't know what that is. 6 prepared. 6 Q There's an entry on June 2nd, 2008 for 7 Q Who told you to prepare this draft? 7 surgery and drugs, an entry on June 27th for 8 A Counsel. 8 surgery and drugs and an entry on December 12, 2008 9 Q And what is supposed to be represented on 9' for surgery and drugs. 10 this document? 10 Do you know what those are? 11 A These are expenses pulled from the 11 A They may have been the draining of my 12 explanation of benefits, the charges that were on 12 knee and the steroid injections, but I don't -- the 13 the explanation of benefits and copays and that 13 12/12- 14 sort of thing. 14 Q Irs your recollection you had three 15 Q And what did you base this chart 15 series of injections and drainage? 16 information on? 16 A Yes. 17 A I think it was the charge on the 17 Q Okay. And then there were several 18 explanation of benefits. 18 entries for medications. I thought your testimony 19 Q Do you still have those explanation-of- 19 was that you just took Aleve at you own discretion 20 benefits forms? 20. for this. 1 MR. ZELLNER: I have them. I just 21 Do you know what those medication entries G1 ?rayc.a iv ?,.v vii Court Reporting In Evans. Reporting Service Over 20 years of BalBmore/Washington 800-256-8410 award-winning service 4: pain medication after the surgery. Q o here's no -og `)oo'( or anyf:'- ng 07 R, 5 Q Okay. So 's ou don't know why there would 5 that nature" 6 be entries in November of '08 for medication? F) 4 'No, there isn't a log book. 7 A Off the top of my head, I don't know. a' MS. SMITH: C-an I got a copy ofthe 8 Q Okay. And how long did you take the pain E3 actual bills`, 9 meds after surgery? C) MR. ZELLNER: Yes 10 A A. couple of days. 10 MS. SMITH: Not just the EOBs, but -- 11 Q And on this chart -- I think its 11 MR. ZELLNER: I'll get the bills also. 12 supposed to be a spread-sheet type document. I 12 MS. SMITH: Okay. 13 can't really tell, but there's a column for 13 BY MS. SMITH: 14. mileage. 14 Q And in your answers to interrogatories, 15 A Yes. 15 there's a statement that you have $1,400 in lost 16 Q How did you keep track of that? I can't 16 wages. 17 really make sense of this, but how did you 17 What is that based on? 18 calculate those amounts? 18 A Basically, a couple of days. I estimated 19 A I checked the odometer, as I recall, 19 a couple of days off work. 20 and -- 0 Q From your work with ERM? I 21 Q And did you. keep a -log book? Did you 1 A Yes. Page .83 Page 85 f 1 .1 write it down every time you ment to the doctor? 1 Q What sort of projects, do you do for them? _ .2 A No, but I know when I went to the doctor, 2 A Air-quality permitting. 3 and I use the EOBs as. an indication of when I went 3 Q Is there a lot of paperwork? 4 to the doctor. 4 A Yes. 5 Q Okay. So when you got the EOBs, you 5 Q And why is it that you were unable to 6 calculated the distance from your home to the 6 work for a few days? 7. healthcare provider and back? 7 A For a few days after surgery, it was 8 A Yes. 8 primarily an issue of pain and lack of ability to 9 Q Is that fair to say? 9 concentrate. 10 A Yes. 10 Q It's your testimony that you actually 11 Q Okay. And how did you calculate that 11 lost income that you would. have. earned but for the 12 mileage? 12 surgery? 13 A I checked the odometer on the vehicle. 13 A I believe that to be true, yes. There 14 Q Well, if you weren't maintaining a log 14 were days when I could have been at work when I 15 contemporaneously, how would you check it on the 15 wasn't at work. 16 odometer? 16 Q How do you bill ERM for your time? 17 A The distance from my house to Norlanco 17 'A I fill out a time sheet. 18 Medical Center is the same no matter how often I 18 Q Okay. And what's your monthly average 19 go. 19 hours? 20 Q Okay. So you checked it once with the 20 A Generally, 130-plus hours a month, 30 to 21 odometer? 21 35 a week.. r 22 (Pages 82 to 85 Court Reporting in Evans Reporting Service Over 20 years r F Salta noWWashington 800-256-8410 award-winning setvic Terry L. Black 4/7/09 Page 86 Q Do you know what you billed them in April 2 of 2008? 3 A I don't recall. 4 Q Do you still have those records? 5 A There probably are time sheet records, 6 yes. 7 MS. SMITH: Could t obtain a copy of the 8' time sheet records for the last six months of 2008? 9 MR. ZELLNER: Yes. 10 MS. SMITH: Okay. Thank you. Okay. 11 Lets just a take a brief break and let me go over 12 my notes.and see if I have any other questions. 13 (Recess taken -- 11:47 a.m.) 14 (After recess -- 11:49 a.m.) 15 BY MS. SMITH: 16 Q . Mr. Black, did you go to the Fly Fishers' 17 banquet this year? 18 A No, I didn't. 19 Q Do you know if they held one this year? 20 A Yes. 01 Q And where was it held? Page 87 1 A At the Hotel Carlisle. 2 Q Okay, - Can you describe for -me the layout 3 of the hotel? It is a, you know, rectangular 4 structure with two wings, the parking lot on the 5 sides and back? I mean, you've been there for 15 6 years at the banquets. 7 A I have never paid attention to the 8 architecture of the place. - 9 Q You couldn't give me simple description 10 of the general layout? 11 A As I recall, you walk in the lobby, you 12 pass a.bar and then you go into a large conference 13 meeting room. 14 Q I'm not talking about the interior. I'm 15 talking about the placement of the structure on the 16 property. 17 A No. I -- 18 Q . You've been to the conference there for 19 15 years, and you can't tell me if it's a 20 rectangular structure with two wings on the side? 1 A As I, said, I have notpaid attention to. Page 88 1 the exterior architecture that much. 2 Q Okay. Well, let me ask you this way. 3 How far from your car was the front 4 entrance to the hotel? 5 A Distance-wise, I couldn't estimate. 6 Q Was it a significant distance greater to 7 walk out the front entrance to your car than out of 8 the south exit to your car? 9 A Yes.. 10 Q. How much greater was that distance? 11 A Twice the distance, I would estimate. 12 Q Okay. And how long would it have taken 13 you to walk from the front entrance to your car? 14 A I don't know, a minute or two. 15 Q Okay. Was itrammg. or any sort of 16 precipitation when you left the hotel that night? 17 A I don't recall. 18 Q Do you recall your clothes being wet when 19 you stood up? 20, A No. 21 Q After you spoke to the hotel page 89 1 representative after you went back in to make your 2 incident report - first of all, if you could refer 3 to Exhibit 1, which I believe is the incident 4 report, second page, is that your signature on the 5 second page? 6 A Yes. 7 Q Did they walk outside to the side exit 8 with you and observe what was going on? 9 A I didn't walk back out to the side exit. 10 I don't know what they did. 11 Q Did you ever see them in the course of 12 your. contact with them go in that direction? 13 A I don't recall. 14 Q Okay. So you simply verbally explained 15 what had occurred? 16 A Yes. 17 Q It's your testimony that you did not walk 18 out the side exit and show them what you had 19 tripped on? 20 A Thafs correct. I didn't reenact it. 21 Q You didn't.what? 23 (Pages 86 to 89) Court Reporting In Evans Reporting Service Over 20 years of Baltimore/Washingtbn 800-256-8410 award-winning service C. A No. ? 5 Q F[ave you talked with anybody associated 6 with the hotel since this April 4th incident? .' A Directly associated, no. There was the 8 one telephonic statement that 1 made, and I don't 9 know who the -- what the association there was. 10 Q And you described the ramp having some 11 sides on it that came up a few inches from the 12 ground., 13 Do you know what part of the ramp you 14 .ttipped on? 15 A It would have been the side of the ramp. 16 Q Okay. And your knees came down onto the 17 walkway park of it, the center part? 18 A Yes. 19 Q Is that correct? 20 A My right ankle was twisted out to the 21 side. .Page 91 Q nttho tt?nta n+ 11,A?tR/Int?N <;nit»t1r nt KAlttmflr?.. rl(? 5 hereby certify that the wzthin-named witness 6 personally appeared before me at the time and place 7 herein set out, and after having been first duly 8 sworn by me, according to law, was examined by 9 counsel. 10 I further certify that the examination was 11 recorded stenographically by me, and that this 12 transcript is a true record of the proceedings. 13 I further certify that I am not of 14 counsel to any of the parties, nor an employee of 15 counsel, nor related to any of the parties, nor in 16 any way interested in the outcome of the action. 17 As witness my hand and seal this 15th day 18 of April, 2009. 19 20 Kathleen E. Thibodeau 21 My Commission Expires 04-28-12 Page 93 1 Q Was it your, right ankle or your left 1 2 ankle? 2 3, A My right -- my right ankle, the lower 3 4.' right leg was twisted out to the side. 4 5 Q Did you land straight on your knees? 5 6 A I don't really recall whether I was 6 7 straight on my knees. 1landed on my knees, yes. 7 8 Q On both of them? 8 9 A Yes. 9 10 Q Okay. Were your knees bruised at all in 0 11 the days following the accident? 1 12 A Not that I noted, no. 2 13 'Q Did you ever have any aches, pains or, 3 14 other symptoms in your left knee after April 4th of 4 15 2008? 15 16 A No. 6 17 MS. SMITH:. I have no further questions. 7 18 MR. ZELLNER: I have no questions. 8 19 THE REPORTER: Read and sign? 9 20 MR. ZELLNER: - Yes. 0 21 (The Deposition concluded at 11:53 a.m.) 1 INDEX The Deposition of TERRY L. BLACK . April-7,2009 Examination by Ms. Smith EXmwTS 3 Ex. 1 Unrest Incident Report 3 Ex. 2 PEBTF Claims Utilization 3 Ex. 3 Expense Report 3 Ex. 4 Photographs 28 (Note: Exhibits attached hereto.) Requested information: Page 84, Page -86 24 (Pages 90 to.931 Gait Reporting In Evans Reporting SwAm Over 20 years . of service edonore/Washington 800-256-8410 avardwWWWg. Terry L. Black 4/7/09 Page 94 ` ERRATA AND SIGNATUR$ SHEET j 2 I, TERRY L. BLACK, have read the 3 foregoing deposition and verify the some to be 4 stenographically accurate with the exception of the 5 following changes (if any): 6 Page Line Reads Should Read . 7 8 9 1'0 11 12 13 14 15 16 17 18 O I have no corrections. 19 20 25 (Page 94) Court Reporting in Evans Reportlng Service Over 20 years of Baltimore/Washington 800-256-8410 award-winning service IN THE COURT QF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., : Defendants. VERIFICATION I, Susan E. Smith, am the attorney for Defendants Glendale Lodging L.P. II and Glendale Management Company II and in such capacity am duly authorized to make this verification on their behalf. I verify that the facts set forth in the foregoing Motion for Summary judgment are true and correct to the best of my knowledge, information and belief, and that I make this statement subject to the penalties of 18 Pa.C.S. §4904 which provides for certain penalties for making false statements to authorities. Date: t'4-12_4::2d6? ??- Susan E. Smith IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., : Defendants. ORDER UPON CONSIDERATION of the Motion for Summary judgment filed by the defendants Glendale Lodging L.P. II and Glendale Management Company II pursuant to Pa.R.C.P. 1035.2(a), and any response thereto, it appearing that the defendants are entitled to the relief requested, it is this day of , 2009, hereby ORDERED and DECREED that the Motion be, and hereby is, GRANTED. IT IS FURTHER ORDERED, that judgment be entered in favor of the defendants, Glendale Lodging L.P. II and Glendale Management Company II, as to all of the plaintiff's claims against them set forth in the Complaint. JUDGE, Court of Common Pleas for Cumberland County, Pennsylvania Copies to: Susan E. Smith, Esquire Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Bryan K. Zellner, Esquire Hynum Law 2608 North 3`d Street Harrisburg, Pennsylvania 17110 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., : Defendants. CERTIFICATE OF SERVICE I, Susan E. Smith, Esquire, an attorney in the law offices of Crosswhite, Limbrick & Sinclair, LLP, hereby certify that a true and correct copy of the foregoing Motion for Summary Judgment, Rule to Show Cause, Verification, and Proposed Order has been served on the following person(s) in the following manner on the L7-'-'day of August 2009. Service by first-class, United States mail addressed to: Brian K. Zellner, Esquire Hynum Law 2608 North 3rd Street Harrisburg, PA 17110 Susan E. Smith Attorney I.D. No. 202378 Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants, Glendale Lodging LP. II and Glendale Management Company II CROSSWHITE, LIMBRICK & SINCLAIR, LLP Kristine A. Crosswhite (ID # 202393) Susan E. Smith (ID # 202378) 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Telephone: (410) 747-4174 Facsimile: (410) 747-7177 Attorneys for Defendants Glendale Lodging L.P. II and Glendale Management Company II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TERRY BLACK, Civil Action-Law Plaintiff, No. 08-7011 V. GLENDALE LODGING L.P. II, et al., Defendants. ORDER RULE TO SHOW CAUSE AND NOW, this day of , 2009, upon consideration of the foregoing Motion, it is hereby ORDERED that: 1. A rule is hereby issued upon the plaintiff, Terry Black, to show cause why Glendale Lodging L.P. II and Glendale Management Company II is not entitled to the relief requested. 2. The plaintiff shall file an answer to the Motion within thirty (30) days of this date; 3. The Motion shall be decided under Pa.R.C.P. 206.7; 4. Depositions shall be completed within sixty (60) days of this date, if necessary. 5. Argument shall be held on 2009, at a.m./p.m. in Courtroom of the Cumberland County Courthouse. 1 6. Notice of the entry of this Order shall be provided by counsel for the moving parties to the plaintiff's attorney, Bryan K. Zellner, Esquire, Hynum Law, 2608 North 3`d Street, Harrisburg, Pennsylvania 17110. BY THE COURT: J 2 HLED-CV-FI E OF THE R. -{n",'OTAP 7009 AUG 19 Phi 3: 0 7 'j`rly PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Terry Black, Plaintiff, VS. Glendale Lodging LP II, Glendale Management Co., and Scott Roy, Defendants. No. 08-7011 Civil Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion for Summary Judgment of Glendale Defendants 2. Identify all counsel who will argue cases: (a) for plaintiffs: Brian K. Zellner, Esquire, Hynum Law, 2608 North 3rd Street, Harrisburg, PA 17110 (Name and Address) (b) for defendants: Susan Smith, Esquire, Crosswhite, Limbrick & Sinclair,LLP (Name and Address) 405 Frederick Road, Suite 260, Baltimore, Maryland 21228 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Signature Susan Smith, Esquire Print your name Defendants Glendale Lodging LP II / Date: Attorney for an en a e gm . Co. INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. A C41 AL Flt OFFICE OF THF PP?Or-(MTAW 2009 AUG 19 Pty 3: 06 TERRY BLACK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, CO., AND SCOTT ROY NO. 2008 - 7011 CIVIL TERM IN RE: DEFENDANT GLENDALE LODGING L.P. II'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this day of NOVEMBER, 2009, for the reasons set forth in the accompanying opinion, the Motion for Summary Judgment filed by Defendant Glendale Lodging L.P. II is GRANTED. B e Court, Edward E. Guido, J. /Brian K. Zellner, Esquire 2608 North Third Street Harrisburg, Pa. 17110 usan E. Smith, Esquire 405 Frederick Road, Suite 260 Baltimore, Md. 21228 :sld rr??l?9 TERRY BLACK V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, CO., AND SCOTT ROY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008 - 7011 CIVIL TERM IN RE: DEFENDANT GLENDALE LODGING L.P. II'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, OLER, GUIDO, JJ. OPINION AND ORDER Currently before us is the motion for summary judgment filed by defendant Glendale Lodging, L.P., II. In order to grant a motion for summary judgment we must be satisfied that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Sphere Drake Ins. Co. v. Philadelphia Gas Works, 566 Pa. 541 782 A.2d 510 (2001). For the reasons hereinafter set forth the motion will be granted. On April 4, 2008 the plaintiff attended a banquet at the Hotel Carlisle.' He arrived at 4:30 p.m. and left around 10:00 p.m. On that same date the defendant Scott Roy was conducting a tool sale in one of the side rooms of the hotel. The plaintiff noticed that sale on his way into the banquet. As plaintiff was leaving, defendant Scott Roy was packing up his tools and loading them into a truck. The truck was positioned at the same exit the plaintiff used. It was parked perpendicular to the end of the sidewalk, blocking plaintiff's route to the 1 Hotel Carlisle is owned by Defendant Glendale Lodging L.P. II. NO. 2008 - 7011 CIVIL TERM parking lot. He was forced to step off the sidewalk to get around the truck. The area was unlighted. As plaintiff stepped off the sidewalk onto the grass, he tripped and fell over the truck's loading ramp. Both parties agree that plaintiff was a business invitee. The law with regard to a business invitee is as follows: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover 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 the danger. Restatement (Second) Torts, Section 343. There is no evidence that defendant Glendale Lodging, L.P., II actually knew that the truck was parked blocking the sidewalk. However, plaintiff contends that it should have discovered the dangerous condition by the exercise of reasonable care. Therefore, he argues, it had constructive notice of the truck and the dangerous condition it created. There are many factors that go in to determining the existence of constructive notice. The courts of this Commonwealth have long recognized that "one of the most important factors to be taken into consideration is the time elapsing between the origin of the defect or hazardous condition and the accident." Neve v. Insalaco 's, 771 A.2d 786, 791 (Pa.Super. 2001). While the issue of constructive notice is usually left for the jury, where the evidence would require "conjecture, guess, or suspicion" the question is for the court. Loeb v. Allegheny County, 394 Pa. 433, 147 A.2d 336, 338 (1959). 2 NO. 2008 - 7011 CIVIL TERM In the instant case there is not one scintilla of evidence as to how long the truck had been blocking the sidewalk.2 Without some evidence as to the length of time the hazardous condition existed, a jury could not find constructive notice without resorting to conjecture. Under these circumstances summary judgment is appropriate. See Porro v. Centruy, III Associates, 846 A.2d 1282 (Pa. Super. 2004). ORDER OF COURT AND NOW, this 19TH day of NOVEMBER, 2009, for the reasons set forth in the accompanying opinion, the Motion for Summary Judgment filed by Defendant Glendale Lodging L.P. II is GRANTED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Brian K. Zellner, Esquire 2608 North Third Street Harrisburg, Pa. 17110 Susan E. Smith, Esquire 445 Frederick Road, Suite 260 Baltimore, Md. 21228 Ad z Plaintif'f's counsel conceded as much at oral argument. 3 FILED-+ -T-ICE OF ?N,- r, r,.ti,-, t:;nN0TARY 2009 NOV 20 Ate 9: 5 5 "Iry • I TERRY BLACK, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7011 V. GLENDALE LODGING L.P. ll, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants CIVIL ACTION - LAW NOTICE OF APPEAL Notice is hereby given that the Appellant, Plaintiff below, appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the 19th day of November, 2009. This order has been entered in the docket as evidenced by the attached copy of the docket entries. Date: / L//y /p1 Brian K. Zellner, Esquire Supreme Court ID #59262 2608 N. 3`d Street Harrisburg, PA 17110 (717) 774-1357 Attorney for Plaintiff CERTIFICATE OF SERVICE On this 14th day of December, 2009, 1 certify that a copy of the foregoing Notice of Appeal was served upon the following by placing the same in the United States mail, first class, postage prepaid, addressed as follows: Susan E. Smith, Esquire Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road Suite 260 Baltimore, Maryland 21228 HYNUM LAW Brian K. Zellner, Esquire Supreme Court ID #59262 2608 North 3rd Street Harrisburg, PA 17110 (717) 774-1357 Attorney for Plaintiff Cr F ,! Zrt ?,' riCE 1??9 DEC t ? F, 3: 14 ?? ? 3015 PYS511 Cumberland County Prothonotary's Office Page 1 0- Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL Reference No... Filed......... 12/01/2008 Case Tyyppe..... . COMPLAINT Time. .... . 2.00 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************** ************ General Index Attorney Info BLACK TERRY PLAINTIFF ZELLNER BRIAN K 26 WESTBURY COURT ELIZABETHTOWN PA 17022 GLENDALE LODGING L P II DEFENDANT 1310 HOLLY PIKE P 0 BOX 28 CARLISLE PA 17013 GLENDALE MANAGEMENT COMPANY DEFENDANT 1310 HOLLY PIKE P 0 BOX 28 CARLISLE PA 17013 ROY SCOTT DEFENDANT 9929 COUNTRY ROAD 3160 MOUNTAIN VIEW MO 65548 ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - 12/01/2008 COMPLAINT - CIVIL ACTION FILED BY BRIAN K ZELLNER ESQ FOR PLFF ------------------------------------------------------------------- 12/10/2008 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: GLENDALE LODGING L P II Address..: 1310 HOLLY PIKE P O BOX 28 Q /St/Zp• CARLISLE, PA 17013 To: WILLIAM DUNCAN, ESQUIRE Shf/D ty.: KENNETH E GOSSERT Date/ Time: 12/09/2008 0015:07 Costs....: $32.92 Pd By: HYNUM LAW 12/10/2008 ------------------------------------------------------------------- 12/10/2008 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: GLENDALE MANAGEMENT COMPANY- Address..: 1310 HOLLY PIKE P O BOX 28 Ctyy/St/Z • CARLISLE, PA 17013 Hnd To: WILLIAM DUNCAN, ESQUIRE Shf/D ty.: KENNETH E GOSSERT Date/Time: 12/09/2008 0015:07 Costs....: $16.00 Pd By: HYNUM LAW 12/10/2008 ------------------------------------------------------------------- 12/30/2008 NOTICE OF SERVICE - DEFTS INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS UPON PLFF AND PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 12/30/2008 ANSWER - BY SUSAN E SMITH ATTYF OR DEFTS ------------------------------------------------------------------- 1/14/2008 CERTIFICATE OF SERVICE - COMPLAINT UPON DEFT SCOTT ROY - BY BRAIN K ZELLNER ATTY FOR PLFF ------------------------------------------------------------------- 3/02/2009 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY SUSAN E SMITH ATTY FOR DEFT ------------------------------------------------------------------- 3/13/2009 NOTICE OF SERVICE - AMENDED NOTICE OF ORAL DEPOSITION OF MR TERRY BLACK UPON PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 3/23/2009 NOTICE OF SERVICE - GLENDALE LODGING LP II AND GLENDALE MANAGEMENT COMPANY IIS ANSWER TO PLFFS INTERROGATORIES UPON PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS PYS511 Cumberland County Prothonotary's Office Page r Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL Reference No... Filed......... 12/01/2008 Case Type.....: COMPLAINT Time........ 2:00 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ------------------------------------------------------------------- 6/10/2009 MOTION FOR SUMMARY JUDGMENT - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 6/10/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT OF DEFTS - BY SUSAN SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 7/17/2009 PRAECIPE TO REMOVE CASE FROM ARGUMENT - BY KRISTINE A CROSSWHITE ATTY FOR DEFTS ------------------------------------------------------------------- 8/19/2009 MOTION FOR SUMMARY JUDGMENT - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 8/19/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT OF GLENDALE DEFTS - BY SUSAN SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 11/20/2009 OPINION AND ORDER - 11/1909 IN RE: DEFT GELNDALE LODGING LP IIS MOTION FOR SUMMARY JUDGMENT - BY EDWARD E GUIDO J - COPIES MAILED 11/20/09 - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 2 ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal***P*ymts/Adl End Bal ******************************** **** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 9.00 9.00 .00 --------------- 87.50 --------- --- 87.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** . In FF ..t f-ny hand In and the s:a o1 mid %v::: af?t nnUr"le, Pa. This ..... ?? .... day o#....1 .' ......., ..?..? ........ ?..? othonotary TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants : NO. 08-7011 : CIVIL ACTION - LAW AMENDED CERTIFICATE OF SERVICE On this 15th day of December, 2009, 1 certify that a copy of the foregoing Notice of Appeal was served upon the following by placing the same in the United States mail, first class, postage prepaid, addressed as follows: Susan E. Smith, Esquire Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road Suite 260 Baltimore, Maryland 21228 Honorable Judge Guido's Chambers Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Court Administrator's Office Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 L HYNUM LAW Brian K. Zellner, Esquire Supreme Court ID #59262 2608 North 3rd Street Harrisburg, PA 17110 (717) 774-1357 Attorney for Plaintiff OF 7i Fitt??'i?' N GARY 2009 DEC 15 AM i 1: 59 CUM t-i ; V? + P ?,?;ITY ENh4` YLVANiA Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 AOPC 3014 Rev.12/21/2009 Karen Reid Bramblett, Esq. Ouperior Court of VennopCbania Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary December 21, 2009 RE: Terry Black Appellant Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us v. Glendale Lodging, LP II, Glendale Management Company and Scott Roy 2123 MDA 2009 Trial Court Docket No: 08-7011 Dear Attorney Zellner 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. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /alv Enclosure cc: Court Reporter The Honorable Edward E. Guido, Judge Mr. Curtis R. Long, Prothonotary Susan Elizabeth Smith, Esq. 4:15 P.M. Appeal Docket Sheet Docket Number: 2123 MDA 2009 Page 1 of 2 December 21, 2009 Superior Court of Pennsylvania Secure CAPTION Terry Black Appellant v. Glendale Lodging, LP II, Glendale Management Company and Scott Roy CASE INFORMATION Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: December 14, 2009 Journal Number: Case Category: Civil CONSOLIDATED CASES Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Appellant Black, Terry Pro Se: No IFP Status: No Attorney: Bar No: Law Firm: Address: Awaiting Original Record Case Type(s): Civil Action Law RELATED CASES SCHEDULED EVENT COUNSEL INFORMATION Appoint Counsel Status: Represented Zeliner, Brian Kenneth 059262 Hynum Law 2608 N 3rd St Next Event Due Date: January 4, 2010 Next Event Due Date: February 12, 2010 Harrisburg, PA 17110-2003 Phone No: (717) 774-1357 Fax No: (717) 774-0788 Receive Mail: Yes Receive EMail: Yes EMail Address: bzellner@hynumpc.com Appellee Glendale Lodging, LP II, Glendale Management Company and Scott Roy Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Smith, Susan Elizabeth Bar No: 202378 Law Firm: Crosswhite, Limbrick & Sinclair, L.L.P. Address: Crosswhite Limbrick ET AL 405 Frederick Rd Ste 260 Baltimore, MD 21228 Phone No: (410) 747-4174 Fax No: Receive Mail: Yes Receive EMail: Yes EMail Address: ses@cls4aw.com 4:15 P.M. Appeal Docket Sheet Docket Number: 2123 MDA 2009 Page 2 of 2 December 21, 2009 Date Name 12/14/2009 Notice of Appeal Superior Court of Pennsylvania Secure FEE INFORMATION Receipt Number Fee Amt Paid Amt 73.50 0.00 AGENCY/TRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Order Appealed From: November 19, 2009 Judicial District: Documents Received: December 16, 2009 Notice of Appeal Filed: Order Type: Order Entered OTN(s): Lower Ct Docket No(s):08-7011 Lower Ct Judge(s): Guido, Edward E. Judge Cumberland County Civil Division 09 December 14, 2009 ORIGINAL RECORD CONTENT Original Record Item Filed Date Content Description Date of Remand of Record: None BRIEFING SCHEDULE None DOCKET ENTRY Filed Date Docket Entry Participant Type Filed By December 14, 2009 Notice of Appeal Docketed Appellant Black, Terry Comment: **NO Proof of Service to Lower Court Judge rec'd** December 21, 2009 Docketing Statement Exited (Civil) Middle District Filing Office f 11159 D;c, rat 1 F .? 4 ?t TERRY BLACK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. 08-7011 GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT COMPANY AND SCOTT ROY, Defendants IN RE: APPEAL OF PLAINTIFF ORDER AND NOW, December 21, 2009, in accordance with Rule 1925 of the Rules of Appellate Procedure, the Plaintiff having filed a notice of appeal, the appellant is directed to file of record, within twenty-one (21) days hereof, and serve upon the undersigned a concise statement of the matters complained of on the appeal. Any issue not properly included in the concise statement timely filed and served pursuant to Rule 1925(b) shall be deemed waived. ?Brian K. Zellner, Esquire For the Plaintiff ? Susan E. Smith, Esquire For the Defendant nrlm ??, ?alaq Edward E. Guido, J. 7DQ9 DEC 22 PH ?*. 52 6 PLOD-OFFICE Or THE FAO? I i-,,0NOTAR'Y 2010 JAN -6 PM 1:26 TERRY BLACK, IN THE COURT OF C01"k TY Plaintiff OF CUMBERLAND COUNTY," PENNSYLVANIA : NO. 08-7011 V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants : CIVIL ACTION - LAW PLAINTIFF TERRY BLACK'S CONCISE STATEMENT OF ERRORS COMPLAINED OF ON APPEAL Your Honorable Court committed error in granting the Motion for Summary Judgment filed by the Defendant Glendale Lodging L.P. II. Pa. R.C.P. 1035.2(1) indicates that: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. A motion for summary judgment must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law will summary judgment be entered. Skipworth v. Lead Industries Ass'n., Inc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). The issue before Your Honorable Court was whether the Defendants had actual or constructive notice of the condition which caused the Plaintiffs injury. The Defendants should have known about the tool sale that was going on at its facility and by the exercise of reasonable care should have discovered that there was a trailer parked perpendicular to the sidewalk and a loading ramp on the grass. The Plaintiff testified that he observed the tool sale when he entered the hotel and that as he approached the south exit to leave that he observed people boxing up different tools in the rooms along the hallway. Plaintiff's Deposition p. 42-44. The Defendants would have booked the room and/or rooms for the tool sale to the Defendant Scott Roy or the entity he was working for. The Defendants through their employees should have observed a trailer parked perpendicular to the sidewalk and made sure that business invitees like the Plaintiff could get safely to his car. A genuine issue of material fact in this case is how long the truck was blocking the side walk. Your Honorable Court committed error in granting the Motion for Summary Judgment of the Defendant Glendale Lodging L.P. II when there was an issue of fact as to how long the truck was blocking the sidewalk. Date: b Z /C2 Brian K. Zenner, Esquire Attorney ID. 59262 Hynum Law 2608 N. Third Street Harrisburg, PA 17110 (717) 774-1357 CERTIFICATE OF SERVICE On this 5th day of January, 2010, 1 certify that a copy of the Concise Statement of Errors Complained of on Appeal was served upon the following by placing the same in the United States mail, first class, addressed as follows: Susan E. Smith, Esquire Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road Suite 260 Baltimore, Maryland 21228 Honorable Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 L k,2- Brian K. Zellner, Esquire Attorney for the Plaintiff Hynum Law 2608 N. Third Street Harrisburg, PA 17110 mfr OF THE ice, ONOTAP.Y 2010 FEB --5 PM 1: 51 Brian K. Zellner, Esquire '' CUli?ioG ?,.1 a,:":t1fi! Hynum Law P .i 1NSYi,\/A A Atty. IQ #k59262 2608 North 3 Street Harrisburg, PA 17110 (717) 774-1357 TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7011 V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants : CIVIL ACTION - LAW PLAINTIFF'S MOTION TO AMEND ORDER DATED NOVEMBER 19, 2009 1. On or about June 8, 2009, the Defendants Glendale Lodging L.P. II and Glendale Management Company ("Glendale Defendants") filed a Motion for Summary Judgment. 2. Argument was held on the Glendale Defendants' Motion for Summary Judgment on October 14, 2009. 3. On November 19, 2009, the Honorable Edward E. Guido entered an Order granting the Summary Judgment Motion. 4. The Summary Judgment Motion was granted as to the Defendant Glendale Lodging L.P. II only. See attached hereto as Exhibit "A" a true and correct copy of the Opinion and Order 5. The Plaintiff believes and therefore avers that granting the Motion for Summary Judgment as to the Defendant Glendale Lodging L.P. II was inadvertent. 6. The Plaintiff believes and therefore avers that the Court intended to grant the Summary Judgment Motion in favor of both Glendale Lodging L.P. II and Glendale Management Company. 7. The Plaintiff requests that Your Honorable Court amend its Order dated November 19, 2009 to include both Glendale Defendants. 8. The Amendment of the Order will allow the Plaintiff to appeal the Order granting the Summary Judgment Motion to the Superior Court of Pennsylvania as it will be a final appealable order. 9. Counsel for the Defendants Glendale Lodging L.P. II and Glendale Management Company does not oppose this Motion. WHEREFORE, the Plaintiff respectfully requests that Your Honorable Court amend its Order dated November 19, 2009 to include Glendale Lodging L.P. II and Glendale Management Company. /1 /6 `4 Date: 2 Ll a Brian K. Zellner, Esquire Attorney for Plaintiff Hynum Law Attorney Id. 59262 2608 N. Third Street Harrisburg, PA 17110 (717) 774-1357 EXHIBIT "A" TERRY BLACK V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, CO., AND SCOTT ROY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO, 2008 - 7011 CIVIL TERM IN RE: DEFENDANT GLENDALE LODGING L.P. II'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this day of NOVEMBER, 2009, for the reasons set forth in the accompanying opinion, the Motion for Summary Judgment filed by Defendant Glendale Lodging L.P. II is GRANTED. B e Court, Edward E. Guido, J. Brian K. Zellner, Esquire 2608 North Third Street Harrisburg, Pa. 17110 Susan E. Smith, Esquire 405 Frederick Road, Suite 260 Baltimore, Md. 21228 :sld FAG, COPY' MREGORU ? t Ft; t k?"rw. . I tars ef ft- pp,,,,,s?t nay to% 44 .?l 4 ? rCall . Pty. TERRY BLACK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, CO., AND SCOTT ROY NO. 2008 - 7011 CIVIL TERM BEFORE HESS, OLER, GUIDO, JJ. OPINION AND ORDER Currently before us is the motion for summary judgment filed by defendant Glendale Lodging, L.P., II. In order to grant a motion for summary judgment we must be satisfied that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Sphere Drake Ins. Co. v. Philadelphia Gas Works, 566 Pa. 541 782 A.2d 510 (2001). For the reasons hereinafter set forth the motion will be granted. On April 4, 2008 the plaintiff attended a banquet at the Hotel Carlisle.' He arrived at 4:30 p.m. and left around 10:00 p.m. On that same date the defendant Scott Roy was conducting a tool sale in one of the side rooms of the hotel. The plaintiff noticed that sale on his way into the banquet. As plaintiff was leaving, defendant Scott Roy was packing up his tools and loading them into a truck. The truck was positioned at the same exit the plaintiff used. It was parked perpendicular to the end of the sidewalk, blocking plaintiff's route to the 'Hotel Carlisle is owned by Defendant Glendale Lodging L.P. I1. NO. 2008 - 7011 CIVIL TERM parking lot. He was forced to step off the sidewalk to get around the truck. The area was unlighted. As plaintiff stepped off the sidewalk onto the grass, he tripped and fell over the truck's loading ramp. Both parties agree that plaintiff was a business invitee. The law with regard to a business invitee is as follows: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover 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 the danger. Restatement (Second) Torts, Section 343. There is no evidence that defendant Glendale Lodging, L.P., II actually knew that the truck was parked blocking the sidewalk. However, plaintiff contends that it should have discovered the dangerous condition by the exercise of reasonable care. Therefore, he argues, it had constructive notice of the truck and the dangerous condition it created. There are many factors that go in to determining the existence of constructive notice. The courts of this Commonwealth have long recognized that "one of the most important factors to be taken into consideration is the time elapsing between the origin of the defect or hazardous condition and the accident." Neve v. Insalaco's, 771 A.2d 786, 791 (Pa.Super. 2001). While the issue of constructive notice is usually left for the jury, where the evidence would require "conjecture, guess, or suspicion" the question is for the court. Loeb v. Allegheny County, 394 Pa. 433, 147 A.2d 336, 338 (1959). i 2 NO. 2008 - 7011 CIVIL TERM In the instant case there is not one scintilla of evidence as to how long the truck had been blocking the sidewalk.2 Without some evidence as to the length of time the hazardous condition existed, a jury could not find constructive notice without resorting to conjecture. Under these circumstances summary judgment is appropriate. See Porro v. Centruy, 111 Associates, 846 A.2d 1282 (Pa. Super. 2004). ORDER OF COURT AND NOW, this 19TH day of NOVEMBER, 2009, for the reasons set forth in the accompanying opinion, the Motion for Summary Judgment filed by Defendant Glendale Lodging L.P. II is GRANTED. By the Court, Is/ Edward E. Guido Edward E. Guido, J. Brian K. Zellner, Esquire 2608 North Third Street Harrisburg, Pa. 17110 Susan E. Smith, Esquire 405 Frederick Road, Suite 260 Baltimore, Md. 21228 :sld z Plaintiffs counsel conceded as much at oral argument. 3 CERTIFICATE OF SERVICE On this 4th day of February, 2010, 1 certify that a copy of the foregoing Plaintiffs Motion to Amend Order was served upon the following Defendant by placing the same in the United States mail, first class, postage prepaid, addressed as follows: Susan E. Smith, Esquire Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road Suite 260 Baltimore, Maryland 21228 HYNUM LAW Brian K. Zellner, Esquire Supreme Court ID #59262 2608 North 3rd Street Harrisburg, PA 17110 (717) 774-1357 Attorney for Plaintiff TERRY BLACK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, CO., AND SCOTT ROY NO. 2008 - 7011 CIVIL TERM ORDER OF COURT AND NOW, this 5TH day of FEBRUARY, 2010, our order of November 19, 2009, is amended to provide the following: The Motion for Summary Judgment filed by Defendants Glendale Lodging L.P. II and Glendale Management, Co., is GRANTED. Court, Brian K. Zellner, Esquire 2608 North Third Street Harrisburg, Pa. 17110 ,,--'g'usan E. Smith, Esquire 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 :sld IfS (L a g??v Edward E. G %fio, J. Mo ;,- i CO ©M •• r TERRY BLACK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, CO., AND SCOTT ROY NO. 2008 - 7011 CIVIL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., February 5- , 2010 Our reasons for granting summary judgment on behalf of Defendants Glendale Lodging L.P., II and Glendale Management, Co. were fully set forth in the opinion which accompanied our order of November 19, 2009. DATE -' Brian K. Zellner, Esquire 2608 North Third Street Harrisburg, Pa. 17110 . 'Susan E. Smith, Esquire 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 Edward E. Guido, J. tiM 'CD A sld ?Ti'Y1 b FEB 0 8 2010 3 TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA 0 ^' - NO. 08-7011 C t t ° r r, -t v . v .- r - c7 ril GLENDALE LODGING L.P. II, [=- t ry ? ' GLENDALE MANAGEMENT, w COMPANY AND SCOTT ROY, .. Defendants r- CIVIL ACTION - LAW e4 , ii" ,. ORDER AND NOW, this day of Fa-u ?' 2010, upon consideration of the Plaintiffs Motion to Amend Order dated November 19, 2009, it is hereby ORDERED AND DECREED that said Motion is GRANTED. • Mamended that Summary Judgment was granted in favor of Glendale Lodging L.P. II and Glendale Management Company. BY THE COURT: J. ?? ian K. Zeliner, Esquire, 2608 N. Third Street, Harrisburg, PA 17110 ? Susan E. Smith, Esquire, 405 Frederick Road, Suite 260, Baltimore, MD 21228 W t F S' /ri13.1 Lid. P q c) l! a? ?:?n 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: Terry Black Vs. Glendale Lodging L. P., II Glendale Management Company and Scott Roy 08-7011 Civil 2123 MDA 2009 The documents comprising the record have been numbered from No.1 to 131, 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 02/12/2010 aJ-a'w David D. Buell, Prothonotary Regina Lebo, Deputy An additional copy 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: David D. Buell , Prothonotary In TESTIMONY WHEREOF, I have hereunto this 12th 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 Terry Black Plaintiff, and Glendale Lodging L. P. -U Glendale Managfnent, Company and Scott Roy Defendant , as the same remains of record before the said Court at No. 08-7011 of civil Term, A. D. 19 . set my hand and affixed the seal of said Court day o February A. D., 19201 Prothonotary 1, Kevin A. Hess President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that David D. Buell , 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 nimhPrl ant9 in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by the roper officer. f President Judge Commonwealth of Pennsylvania County of Cumberland ss: 1, David D. Buell , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess 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 my hand and affixed the seal of said Court this Nth day o Februa A. D. 4#2010 c Prothonotary Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of 33 ACturtnberland in the Commonwealth of Pennsylvania to No. 008-p1'12Cwi 1 Term, 19 is contained the following: COPY OF Appearan(-e DOCKET ENTRY Terry Black VS. Glendale Lodging L.P. II, Glendale Management, Company and Scott Roy ***SEE CERTIFIED COPY OF THE DOCKET ENTRIES** G ^ O ? 6 a tin G n 0 c o I ?1+ cu W m ? LO H, La ro G C z ?. o a ' ?.i ?o O 3 ? I ' I uumner.iana county erotnonotary Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL rag t Reference No... Filed......... 12/01/2008 Case Ty e..... . COMPLAINT Judgment..... .00 Time. ... Execution Date 2.00 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments - ------------ Higher Crt 1.: 2123MD 2009 Higher Crt 2.: ***************************** ***************** ********************************** General Index Attorney Info BLACK TERRY PLAINTIFF ZELLNER BRIAN K 26 WESTBURY COURT ELIZABETHTOWN PA 17022 GLENDALE LODGING L P II DEFENDANT 1310 HOLLY PIKE P 0 BOX 28 CARLISLE PA 17013 GLENDALE MANAGEMENT COMPANY DEFENDANT 1310 HOLLY PIKE P 0 BOX 28 CARLISLE PA 17013 ROY SCOTT DEFENDANT 9929 COUNTRY ROAD 3160 MOUNTAIN VIEW MO 65548 ******************************************************************************** * Date Entries ******************************************************************************** - - - - -• - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 12/01/2008 COMPLAINT - CIVIL ACTION FILED BY BRIAN K ZELLNER ESQ FOR PLFF ------------------------------------------------------------------- -? 12/10/2008 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: GLENDALE LODGING L P II Address..: 1310 HOLLY PIKE P 0 BOX 28 Ctyy/St/Z • CARLISLE, PA 17013 Hnd To: WILLIAM DUNCAN, ESQUIRE Shf/D ty.: KENNETH E GOSSERT Date/ Time: 12/09/2008 0015:07 Costs....: $32.92 Pd By: HYNUM LAW 12/10/2008 ------------------------------------------------------------------- 12/10/2008 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: GLENDALE MANAGEMENT COMPANY Address..: 1310 HOLLY PIKE P 0 BOX 28 Ctyy/St/Z • CARLISLE, PA 17013 Hnd To: WILLIAM DUNCAN, ESQUIRE Shf/D ty.: KENNETH E GOSSERT Date/ Time: 12/09/2008 0015:07 Costs....: $16.00 Pd By: HYNUM LAW 12/10/2008 ------------------------------------------------------------------- c?- 12/30/2008 PRODUCTION NOTICE OSERVICE OF V DOCUMENTS T UPON INTERROGATORIES AND REQUESTS FOR SMITH ATTY FOR DEFTS --------------------------- ---------------------------------------- 11._ 12/30/2008 ANSWER - BY SUSAN E SMITH ATTYF OR DEFTS -------- ---------------------------------------------------------- 1 1/14/2008 CERTIFICATE OF SERVICE - COMPLAINT UPON DEFT SCOTT ROY - BY BRAIN K ZELLNER ATTY FOR PLFF ------------------------------------------------------------------- ` _.? 3/02/2009 CER9I2ICATE PREREQUISITE TOASERVICE DOF A EFT SUBPOENA PURSUANT TO RULE ------------------------ ------------------------------------------- ?•5 3/13/2009 NOTICE OF SERVICE - AMENDED NOTICE OF ORAL DEPOSITION OF MR TERRY BLACK UPON PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 02 ?.f 3/23/2009 NOTICE OF SERVICE - GLENDALE LODGING LP II AND GLENDALE MANAGEMENT COMPANY IIS ANSWER TO PLFFS INTERROGATORIES UPON PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS PYS511 Cumberland county rrotnonotary,s ur=ice rCLyc Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL Reference No..: Filed........: 12/01/2008 Case Ty e...... COMPLAINT Time. 2.00 Judgmen?..... : .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/000000 ------------ Case Comments --------- Higher Crt 1.: 2123MD 2009 Higher Crt 2.: ---------------------------- --------------------------------------- -,? 6/10/2009 MOTION FOR SUMMARY JUDGMENT - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 6/10/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT OF DEFTS - BY SUSAN SMITH ATTY FOR DEFTS -------------------------------------- (`,y`- j•(`, 7/17/2009 APTRATYCIOR TO REMOVE CASE FROM ARGUMENT - BY KRISTINE A CROSSWHITE DEFTS ------------------------------------------------------------------- 8/19/2009 MOTION FOR SUMMARY JUDGMENT - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 8/19/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT OF GLENDALE DEFTS - BY SUSAN SMITH ATTY FOR DEFTS ------------------------- ----------------- 11/20/2009 OPINION ORDER - JUDGMENT /S-IBYREDWARDDEFT EGGUIDOLJ - LODGING COPIES LP MAILED 11/20/09 --------------- >( fG>7 12/14/2009 NOTICE OF APPEAL TO SUPERIOR COURT - BY BRAIN K ZELLNER ATTY FOR PLFF -------------------------------------------------------- 11 O 12/15/2009 AMENDED CERTIFICATE OF SERVICE - NOTICE OF APPEAL UPON DEFTS COUNSEL COURT ADMINISTRATION JUDGE GUIDO AND COURT REPORTER - BY BRIAN K ZELLNER ATTY FOR PLFF ------------------------------------------------------------------- 12/22/2009 OOPIES M12/ED/09 IN 09• APPEAL OF PLFF - BY EDWARD E GUIDO J - CL 12/22/ ------------------------------------------------------------------- 12/22/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #2123 MDA 2009 ------------------------------------------ ------------------------- 11 ?J0, 1/06/2010 PLAINTIFF TERBRIANACKZELLNERIESQSTATEMENT OF ERRORS COMPLAINTED OF ON APPEAL BY K ------------------------------------------------------------------- 2/05/2010 PLAINTIFF'S MOTION TO AMEND ORDER DATED NOVEMBER 19, 2009 - BY BRIAN K ZELLNER ESQ ------------------------------------------------------------------- / 2/08/2010 ORDER OF COURT - 2/5/10 - THE MOTION FOR SUMMARY JUDGMENT IS GRANTED - BY EDWARD E GUIDO J - COPIES MAILED 2/8/10 ----------------------------------------- -------------------------- 2/08/2010 OPINION - 2/5/10 - BY EDWARD E GUIDO J - COPIES MAILED 2/8/10 ----------------------------------------- -------------------------- / z 10 IN RE DATED 2/09/2010 MORDER - OTION IS/GRRANTED - BYPEDWARDLFFS JM- COPIESRMAILED 2/9/1009 ------------------------------------------------------------------- 2/12/2010 NOTICE OF DOCKET ENTRIES MAILED TO SUSAN E SMITH ESQ AND BRIAN K ZELLNER ESQ ? - - - - - - - - - - - LAST ENTRY 1,31 * Escrow Information * Fees & Debits Beg Bal Pmts/Adj End Bal ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 9.00 9.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 135.50 135.50 .00 ******************************************************************************** * End of Case Information ***;F*********:F***:4;F***ir*?F*?r;F ?c is*****ic***?r*?t***•1c?F*ic 9c is ?c*i;****ic Y: A:**?F**k***********?F* TRUE COPY FROM RECORD In Tes9maw Whavd, l twm unto set my hand WW to "W of said sf Carlisle, Pa. Thb _1 ' .dUl of , 20 Prothonotary -ch VA oft W ?buperior Court of Venuop(bauia Karen Reid Bramblett, Esq. Pennsylvania Judicial Center Middle District Prothonotary P.O. Box 62435 Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 March 5, 2010 (717) 772-1294 w w w .superior .court .state . pa . u s Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 C7 r" b <si RE: Black, T. v. Glendale Lodging L.P., II ,rr, No. 2123 MDA 2009 r,?rn Trial Court Docket No: 08-7011 e=,: CO _CD _ - =} rri Dear : cn Enclosed please find a certified copy of an order dated January 26, 2010 e t recRn thl above-captioned matter. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /alv Enclosure Terry Black V. Glendale Lodging, LP II, et al. ORDER IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 08-7011) No. 2123 MDA 2009 Filed: January Z W , 2010 Appellant, plaintiff below, filed a notice of appeal from the November 19, 2009 order granting the motion for summary judgment filed by Glendale Lodging L.P. II. An appeal lies only from a final order unless otherwise permitted by rule or statute. McCutcheon v. Philadelphia Electric Co., 788 A.2d 345 (Pa. 2002). A final order is any order that disposes of all claims and all parties. Pa.R.A.P. 341(6)(1). In an action involving multiple defendants, an order granting summary judgment as to one defendant becomes appealable as of right only after disposition of the claims against the remaining defendants. B.K. v. Chambersburg Hospital, 834 A.2d 1178 (Pa. Super. 2003), appeal denied, 847 A.2d 1276 (Pa. 2004). As the subject order did not dispose of the claims filed against Glendale Management Company, the above-captioned appeal is hereby QUASHED without prejudice to be re-filed once a final order has been entered in the trial court. Per Curiam TRUE COPY FROM RBCM Attest: HAR ? 0 1 Pte' r Court of PA - MIMS ?„>r CIVIL ACTION - LAW NOTICE OF APPEAL TERRY BLACK, Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7011 V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants -0 T, M y C--, b? Notice is hereby given that the Appellant, Plaintiff below, appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the 5th day of February, 2010. This order has been entered in the docket as evidenced by the attached copy of the docket entries. Date: Brian K. Zellner, Esquire Supreme Court ID #59262 2608 N. 3`d Street Harrisburg, PA 17110 (717) 774-1357 Attorney for Plaintiff ?a 4 d MM 1 r ? -r :3C N --4 o r 'x 66 ?39v-?3 ? r TERRY BLACK, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7011 V. : CIVIL ACTION - LAW CERTIFICATE OF SERVICE On this 4t" day of March, 2010, 1 certify that a copy of the foregoing Notice of GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, COMPANY AND SCOTT ROY, Defendants Appeal was served upon the following by placing the same in the United States mail, first class, postage prepaid, addressed as follows: Susan E. Smith, Esquire Crosswhite, Limbrick & Sinclair, LLP 405 Frederick Road Suite 260 Baltimore, Maryland 21228 Honorable Judge Guido's Chambers Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Court Administrator's Office Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 HYN U M LAW Brian K. Zellner, Esquire Supreme Court ID #59262 2608 North 3rd Street Harrisburg, PA 17110 (717) 774-1357 Attorney for Plaintiff 13595,,03042010 Cumberland County Prothonotary's Office Page 1 PYS-5-10 Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL Reference No..: Filed........: 12/01/2008 Case Type...... COMPLAINT Time.......... 2:00 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments - ------------ Higher Crt 1.: 2123MDA2009 Higher Crt 2.: ***************************** *************************************************** General Index Attorney Info BLACK TERRY PLAINTIFF ZELLNER BRIAN K 26 WESTBURY COURT ELIZABETHTOWN PA 17022 GLENDALE LODGING L P II DEFENDANT 1310 HOLLY PIKE P 0 BOX 28 CARLISLE PA 17013 GLENDALE MANAGEMENT COMPANY DEFENDANT 1310 HOLLY PIKE P 0 BOX 28 CARLISLE PA 17013 ROY SCOTT DEFENDANT 9929 COUNTRY ROAD 3160 MOUNTAIN VIEW MO 65548 ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - 12/01/2008 COMPLAINT - CIVIL ACTION FILED BY BRIAN K ZELLNER ESQ FOR PLFF ------------------------------------------------------------------- 12/10/2008 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: GLENDALE LODGING L P II Address..: 1310 HOLLY PIKE P 0 BOX 28 Ctyy/St/Z • CARLISLE, PA 17013 Hnd To: WILLIAM DUNCAN, ESQUIRE Shf/D ty.: KENNETH E GOSSERT Date/Time: 12/09/2008 0015:07 Costs....: $32.92 Pd By: HYNUM LAW 12/10/2008 ------------------------------------------------------------------- 12/10/2008 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: GLENDALE MANAGEMENT COMPANY- Address..: 1310 HOLLY PIKE P 0 BOX 28 Ctyy/St/Z • CARLISLE, PA 17013 Hnd To: WILLIAM DUNCAN, ESQUIRE Shf/D ty.: KENNETH E GOSSERT Date/ Time: 12/09/2008 0015:07 Costs....: $16.00 Pd By: HYNUM LAW 12/10/2008 ------------------------------------------------------------------- 12/30/2008 NOTICE OF SERVICE - DEFTS INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS UPON PLFF AND PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 12/30/2008 ANSWER - BY SUSAN E SMITH ATTYF OR DEFTS ------------------------------------------------------------------- 1/14/2008 CERTIFICATE OF SERVICE - COMPLAINT UPON DEFT SCOTT ROY - BY BRAIN K ZELLNER ATTY FOR PLFF ------------------------------------------------------------------- 3/02/2009 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY SUSAN E SMITH ATTY FOR DEFT ------------------------------------------------------------------- 3/13/2009 NOTICE OF SERVICE - AMENDED NOTICE OF ORAL DEPOSITION OF MR TERRY BLACK UPON PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 3/23/2009 NOTICE OF SERVICE - GLENDALE LODGING LP II AND GLENDALE MANAGEMENT COMPANY IIS ANSWER TO PLFFS INTERROGATORIES UPON PLFFS COUNSEL - 13595803042010 Cumberland County Prothonotary's Office Page 2 PYS51CT Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL Reference No... Filed......... 12/01/2008 Case Type...... COMPLAINT Time.......... 2:00 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 2123MDA2009 BY SUSAN E SMITH ATTY FOR DEFTS Higher Crt 2.: ------------------------------------------------------------------- 6/10/2009 MOTION FOR SUMMARY JUDGMENT - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 6/10/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT OF DEFTS - BY SUSAN SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 7/17/2009 PRAECIPE TO REMOVE CASE FROM ARGUMENT - BY KRISTINE A CROSSWHITE ATTY FOR DEFTS ------------------------------------------------------------------- 8/19/2009 MOTION FOR SUMMARY JUDGMENT - BY SUSAN E SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 8/19/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT OF GLENDALE DEFTS - BY SUSAN SMITH ATTY FOR DEFTS ------------------------------------------------------------------- 11/20/2009 OPINION AND ORDER - 11/19/09 IN RE: DEFT GELNDALE LODGING LP IIS MOTION FOR SUMMARY JUDGMENT - BY EDWARD E GUIDO J - COPIES MAILED 11/20/09 ------------------------------------------------------------------- 12/14/2009 NOTICE OF APPEAL TO SUPERIOR COURT - BY BRAIN K ZELLNER ATTY FOR PLFF ------------------------------------------------------------------- 12/15/2009 AMENDED CERTIFICATE OF SERVICE - NOTICE OF APPEAL UPON DEFTS COUNSEL COURT ADMINISTRATION JUDGE GUIDO AND COURT REPORTER - BY BRIAN K ZELLNER ATTY FOR PLFF ------------------------------------------------------------------- 12/22/2009 ORDER - 12/21/09 IN RE: APPEAL OF PLFF - BY EDWARD E GUIDO J - COPIES MAILED 12/22/09 ------------------------------------------------------------------- 12/22/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #2123 MDA 2009 ------------------------------------------------------------------- 1/06/2010 PLAINTIFF TERRY BLACK'S CONSICE STATEMENT OF ERRORS COMPLAINTED OF ON APPEAL BY BRIAN K ZELLNER ESQ ------------------------------------------------------------------- 2/05/2010 PLAINTIFF'S MOTION TO AMEND ORDER DATED NOVEMBER 19, 2009 - BY BRIAN K ZELLNER ESQ ------------------------------------------------------------------- 2/08/2010 ORDER OF COURT - 2/5/10 - THE MOTION FOR SUMMARY JUDGMENT IS GRANTED - BY EDWARD E GUIDO J - COPIES MAILED 2/8/10 ------------------------------------------------------------------- 2/08/2010 OPINION - 2/5/10 - BY EDWARD E GUIDO J - COPIES MAILED 2/8/10 ------------------------------------------------------------------- 2/09/2010 ORDER - 2/9/10 IN RE: PLFFS MOTION TO AMEND ORDER DATED 11/19/09 - MOTION IS GRANTED - BY EDWARD E GUIDO J - COPIES MAILED 2/9/10 ------------------------------------------------------------------- 2/12/2010 NOTICE OF DOCKET ENTRIES MAILED TO SUSAN E SMITH ESQ AND BRIAN K ZELLNER ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Bw*Bal***Pmts/Add End Bal *********************************** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 9.00 9.00 .00 APPEAL HIGH CT 48.00 -- 48.00 .00 ------------ 135.50 ---------- --- 135.50 --------- .00 *******************************************************'1RUffA06"VR0MftE0C"**** * End of Case Information * hMro1I#onw ogot h" d1V41 20 bud Ym Ift 09M aw I.Www* thq WOOT ed .09.6 is hLoo bi t b WK wo bno ork a.......,,..,,..¦.r,tovmb.....,....Owr ?anorlsaA Karen Reid Bramblett, Esq. Middle District Pennsylvania Judicial Center Prothonotary P.O. Box 62435 Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 March 11, 2010 (717) 772-1294 www. superior, court. state. Pa. us Buell, David D. 0 7 Prothonotary Q Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 `- N MO )r5 RE: Black, T. v. Glendale Lodging L.P., II No. 2123 MDA 2009 ~ `' _ Trial Court Docket No: 08-7011 4M Dear : Enclosed please find a certified copy of an order dated March 11, 2010 entered in the above-captioned matter. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /alv Enclosure . Terry Black V. Glendale Lodging, LP II, et al. ORDER IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 08-7011) No. 2123 MDA 2009 Filed: January Z W , 2010 Appellant, plaintiff below, filed a notice of appeal from the November 19, 2009 order granting the motion for summary judgment filed by Glendale Lodging L.P. II. An appeal lies only from a final order unless otherwise permitted by rule or statute. McCutcheon v. Philadelphia Electric Co., 788 A.2d 345 (Pa. 2002). A final order is any order that disposes of all claims and all parties. Pa.R.A.P. 341(b)(1). In an action involving multiple defendants, an order granting summary judgment as to one defendant becomes appealable as of right only after disposition of the claims against the remaining defendants. B.K. v. Chambersburg Hospital, 834 A.2d 1178 (Pa. Super. 2003), appeal denied, 847 A.2d 1276 (Pa. 2004). As the subject order did not dispose of the claims filed against Glendale Management Company, the above-captioned appeal is hereby QUASHED without prejudice to be re-filed once a final order has been entered in the trial court. Per Curiam TRUE (W FRQM RECORD Attest: 11 2010 Supft Coun°° PA - MIMO Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Middle District March 10, 2010 Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Terry Black Appellant V. Glendale Lodging L.P. 391 M DA 2010 Trial Court Docket No: Dear : II, Glendale Management and Scott Roy 08-7011 Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.pa.us b 77 m Tl J r-ri c=) -c 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. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /wjt Enclosure 3:39 P.M. Appeal Docket Sheet Docket Number: 391 MDA 2010 Page 1 of 2 March 10, 2010 CAPTION Terry Black Appellant V. Glendale Lodging L.P. II, Glendale Management and Scott Roy CASE INFORMATION Initiating Document: Case Status: Case Processing Status: Journal Number: Case Category: Notice of Appeal Active March 8, 2010 Civil CONSOLIDATED CASES Case Type(s) Civil Action Law RELATED CASES SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: March 24, 2010 Next Event Type: Original Record Received Next Event Due Date: May 3, 2010 COUNSEL INFORMATION Appellant Black, Terry Pro Se: No IFP Status: No Attorney: Bar No: Law Firm: Address: Appoint Counsel Status: Represented Zellner, Brian Kenneth 059262 Hynum Law 2608 N 3rd St Harrisburg, PA 17110-2003 Phone No: (717) 774-1357 Fax No: (717) 774-0788 Receive Mail: Yes Receive EMail: No Appellee Glendale Lodging L.P. II, Glendale Management and Scott Roy Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Smith, Susan Elizabeth Bar No: 202378 Law Firm: Crosswhite, Limbrick & Sinclair, L.L.P. Address: 405 Frederick Rd Ste 260 Baltimore, MD 21228 Phone No: (410) 747-4174 Fax No: (410) 747-7177 Receive Mail: Yes Receive EMail: No Awaiting Original Record 3:39 P.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 391 MDA 2010 Page 2 of 2 Secure March 10, 2010 FEE INFORMATION Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 03/08/2010 Notice of Appeal 73.5003/09/2010 2010-SPR-M-000194 73.50 AGENCYITRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: February 5, 2010 Judicial District: 09 Documents Received: March 8, 2010 Notice of Appeal Filed: March 4, 2010 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):08-7011 Lower Ct Judge(s): Guido, Edward E. Judge ORIGINAL RECORD CONTENT Original Record Item Filed Date Content Description Date of Remand of Record: BRIEFING SCHEDULE None None DOCKET ENTRY Filed Date Docket Entry / Representing Participant Type Filed By March 8, 2010 Notice of Appeal Docketed Appellant Black, Terry March 10, 2010 Docketing Statement Exited (Civil) Middle District Filing Office TERRY BLACK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. GLENDALE LODGING L.P. II, : NO. 2008 - 7011 CIVIL TERM GLENDALE MANAGEMENT, COMPANY : AND SCOTT ROY, CIVIL ACTION -LAW Defendant : ORDER OF COURT AND NOW, this 17TH day of MARCH, 2010, the Plaintiff shall file of record and serve on this judge, within twenty-one (21) days of this date, a concise statement of errors complained of on appeal. Any issue not properly included in the concise statement timely filed and served pursuant to Rule 1925 (b) shall be deemed waived. -'__'Brian K. Zellner, Esquire usan E. Smith, Esquire Court Reporter sld Co PS ?a -3/a ;L '=r?l By the Court, 040 Edward E. Guido, J. n -' rv ?? rv 01 TERRY BLACK, IN T E COURT OF COMMON PLEAS Plaintiff OF C MBERLAND COUNTY, PEN SYLVANIA NO. 08-7011 V. n o GLENDALE LODGING L.P. II, ?-ri, GLENDALE MANAGEMENT, > r COMPANY AND SCOTT ROY, . c-n Defendants r t-: ? CIVI ACTION - LAW; PLAINTIFF TERRY BLACK'S CONCISE STAT MENT OF ERRORS COMPLAINED OF ON APP L Your Honorable Court committed error in ranting the Motion for Summary Judgment filed by the Defendants Glendale Lodgi ng L.P. II and Glendale Management. Pa. R.C.P. 1035.2(1) indicates that: After the relevant pleadings are closed, ut within such time as not to unreasonably delay trial, any party may ove for summary judgment in whole or in part as a matter of law (1) Whenever there is no genuine ssue of any material fact as to a necessary element of the cause o action or defense which could be established by additional discove or expert report. A motion for summary judgment must bye viewed in the light most favorable to the nonmoving party, and all doubts as to the Oxistence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law v4ill summary judgment be entered. Skipworth v. Lead Industries Ass'n., Inc., 547 Pa. (1997). The issue before Your Honorable Court actual or constructive notice of the condition ,230, 690 A.2d 169, 171 whether the Defendants had caused the Plaintiffs injury. The Defendants should have known about tte tool sale that was going on at its facility and by the exercise of reasonable care 4hould have discovered that there was a trailer parked perpendicular to the sidewalk hand a loading ramp on the grass. The Plaintiff testified that he observed the tool sale when he entered the hotel and that as he approached the south exit to leave that he observed people boxing up different tools in the rooms along the hallway. Plaintiffs Deposition p. 42-44. The Defendants would have booked the room and/or rooms for the tool sale to the Defendant Scott Roy or the entity he was working for. The Defendants through their employees should have observed a trailer and made sure that business invitees like the Pla A genuine issue of material fact in this blocking the side walk. Your Honorable Court committed error in perpendicular to the sidewalk could get safely to his car. is how long the truck was ng the Motion for Summary Judgment of the Defendants Glendale Lodging LIP. II and Glendale Management when there was an issue of fact as to how long the truck was blocking the sidewalk. Date: +i o Brian K. 2 Attorney I Hynum L, 2608 N. I (717) 77, Ilner, Esquire .59262 iird Street , PA 17110 1357 CERTIFICATE ERVICE On this 31st day of March, 2010, 1 certify th t a copy of the Concise Statement of Errors Complained of on Appeal was served upon he following by placing the same in the United States mail, first class, addressed as fol ows: Susan E. Smith, Esquire Ho orable Edward E. Guido Crosswhite, Limbrick & Sinclair, LLP Cu berland County Courthouse 405 Frederick Road On a Courthouse Square Suite 260 Ca lisle, PA 17013 Baltimore, Maryland 21228 Brian K. ellner, Esquire Attorney or the Plaintiff Hynum I.Law 2608 N. hird Street Harrisbu Ig, PA 17110 TERRY BLACK V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT, CO., AND SCOTT ROY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008 - 7011 CIVIL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., April I J , 2010 Our reasons for granting the summary judgment on behalf of Defendants Glendale Lodging L.P. II and Glendale Management Company are fully set forth in the opinion which accompanied our order of November 19, 200 41 it I. (16 DATE Edward E. Guido, J. .','-an K. Zellner, Esquire 2608 North Third Street Harrisburg, Pa. 17110 , Asan E. Smith, Esquire J 405 Frederick Road, Suite 260 Baltimore, Maryland 21228 :sld O? C 10 ..Q -r N r 4= •.J 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: Terry Black Vs. Glendale Lodging L. P., II Glendale Management Company and Scott Roy 08-7011 Civil 2123 MDA and 391 MDA 2010 The documents comprising the record have been numbered from No.1 to 148, 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 04/23/2010 Buell, Prothonotary Regina Lebo, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania ss: County of Cumberland In TESTIMONY WHEREOF, I have hereunt, this 23rrl I, David D But.11 , Prothonotary 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 TPrrr R1Ack Plaintiff, and rl and=1 o Lodging r P. 11 rl anrlal o M?nanort?? / 9Ft$n--- Defendant , as the same remains of record b.efor,g the said Court at No. 08-7011 of C1V11 Term, A. D. 19 . set my hand and affixed the seal of said Court day of A. D.,>&Q2 44- "'-L Prothonotary I, Kevin A. Hess President Judge of the Minth Judicial District, composed of the County of Cumberland, do certify that David D Buell , 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 Q tmharl And in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by the p oper officer._ President Judge Commonwealth of Pennsylvania County of Cumberland ss: I David D. Buell , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A HP?G 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 my hand and affixed the seal of said Court this day of A12ri 1 A.D. 2Q14. I b kug, Prothonotary Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of nraberland in the Commonwealth of Pennsylvania 2128 MDA 2009 end 391 MDA 2010 to No. 20 5-7011 Civil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Terry Black VS. Glendale Lodging L. P. II, Glendale Management, Company and Scott Roy **SEE CERTIFIED COPY OF THE DOCKET EN'T'RIES** 0 O 7 I a o? o. a -n 0 3 ? x b G n 0 r"1 C O G r G7 L y (? ? r t r rr zN I o r' N w J N O O A N O z c 3 1 Cumberland County Proth.onotarv's Ottice Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL Reference No... Filed........ Case Type ..... . COMPLAINT Time. ... . Judgment. ... .00 Execution Date Judge Assigned: Jury Trial... Disposed Desc.: Disposed Date. ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: i,a.ge 12/01/2008 2:00 0/00/0000 0/00/0000 2123MDA2009 391 MDA 2010 ******************************************************************************** General Index Attorney Info BLACK TERRY PLAINTIFF ZELLNER BRIAN K 26 WESTBURY COURT ELIZABETHTOWN PA 17022 GLENDALE LODGING L P II DEFENDANT 1310 HOLLY PIKE P 0 BOX 28 CARLISLE PA 17013 GLENDALE MANAGEMENT COMPANY DEFENDANT 1310 HOLLY PIKE P 0 BOX 28 CARLISLE PA 17013 ROY SCOTT DEFENDANT 9929 COUNTRY ROAD 3160 MOUNTAIN VIEW MO 65548 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 12/01/2008 COMPLAINT -- CIVIL ACTION FILED BY BRIAN K ZELLNER ESQ FOR PLFF -------------------------------------------------------------------- 12/10/2008 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: GLENDALE LODGING L P II Address..: 1310 HOLLY PIKE P 0 BOX 28 Ctyy/St/Zp• CARLISLE, PA 17013 Hnd To: WILLIAM DUNCAN, ESQUIRE Shf/D ty.: KENNETH E GOSSERT Date/ Time: 12/09/2008 0015:07 Costs....: $32.92 Pd By: HYNUM LAW 12/10/2008 -------------------------------------------------------------------- 12/10/2008 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT & NOTICE Ret Type.: Regular Litigant.: GLENDALE MANAGEMENT COMPANY Address..: 1310 HOLLY PIKE P 0 BOX 28 Ctyy/St/Z • CARLISLE, PA 17013 Hnd To: WILLIAM DUNCAN, ESQUIRE Shf/D ty.: KENNETH E GOSSERT Date/ Time: 12/09/2008 0015:07 Costs....: $16.00 Pd By: HYNUM LAW 12/10/2008 ------------------------------------------------------------------- 12/30/2008 NOTICE OF SERVICE - DEFTS INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS UPON PLFF AND PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS -------------------------------------------------------------------- ??- j(y 12/30/2008 ANSWER - BY SUSAN E SMITH ATTYF OR DEFTS -------------------------------------------------------------------- ?7 1/14/2008 CERTIFICATE OF SERVICE - COMPLAINT UPON DEFT SCOTT ROY - BY BRAIN K ZELLNER ATTY FOR PLFF -------------------------------------------------------------------- j 2 y 3/02/2009 CER I2ICATEYPREREQUISITE TOASERVICE DOF A EFT SUBPOENA PURSUANT TO RULE -------------------------------------------------------------------- a 3/13/2009 NOTICLACKEUPONOF BYOSUSANOE SSMITHDATTOYIFORNDEFTSR TERRY -------------------------------------------------------------------- a 7 3/23/2009 NOTICE OF SERVICE - GLENDALE LODGING LP II AND GLENDALE MANAGEMENT COMPANY IIS ANSWER TO PLFFS INTERROGATORIES UPON PLFFS COUNSEL - BY SUSAN E SMITH ATTY FOR DEFTS rX5!D ! uumner.iana uouncy Nrctnonotarw s urrice rage Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL Reference No... Filed......... 12/01/2008 Case Type .COMPLAINT Time. .. 2:00 Judgment ..... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial . . . . Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 2123MDA2009 Higher Crt 2.: 391 MDA 2010 ------------------------------------------------------------------- ?6/10/2009 MOTION FOR SUMMARY JUDGMENT - BY SUSAN E SMITH ATTY FOR DEFTS -3 6/10/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT OF DEFTS - BY SUSAN SMITH ATTY FOR DEFTS ------------------------------------------------------------------- ? 7/17/2009 PRAECIPE TO REMOVE CASE FROM ARGUMENT - BY KRISTINE A CROSSWHITE ATTY FOR DEFTS ------ ----------- --------- ----------- -------- ----- ---------- 1?D 8/19/2009 MOTION-FOR SUMMARY JUDGMENT - BY SUSAN E SMITH ATTY FOR DEFTS - - - - - - ------------------------------------------------------------------- 10/ 8/19/2009 PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR SUMMARY JUDGMENT OF GLENDALE DEFTS - BY SUSAN SMITH ATTY FOR DEFTS ------------------------------------------------------------------- ??? 11/20/2009 OPINION DORDER - S - I BY R EDWARD T E G GUIDO LJ - LODGING COPIES LP IIS MOTION FOR SUMMARY JUDGMENT MAILED 11/20/09 ------------------------------------------------------------------- 12/14/2009 NOTICE OF APPEAL TO SUPERIOR COURT - BY BRAIN K ZELLNER ATTY FOR PLFF ------------------------------------------------------------------- ??L1 12/15/2009 AMENDED CERTIFICATE OF SERVICE - NOTICE OF APPEAL UPON DEFTS COUNSEL COURT ADMINISTRATION JUDGE GUIDO AND COURT REPORTER - BY BRIAN K ZELLNER ATTY FOR PLFF -------------------------------------------------------------------- 12/22/2009 ORDER - 12/21/09 IN RE: APPEAL OF PLFF - BY EDWARD E GUIDO J - COPIES MAILED 12/22/09 ------------------------------------------------------------------- f/ I/s 12/22/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #2123 MDA 2009 ------------------------------------------------------------------- 0 1/06/2010 PLAINTIFF 'T'ERRY BLACK'S CONSICE STATEMENT OF ERRORS COMPLAINTED OF ON APPEAL BY BRIAN K ZELLNER ESQ -------------------------------------------------------------------- , 2/05/2010 BRIANPLAINTKIFFZELLNERIS TO AMEND ORDER DATED NOVEMBER 19, 2009 - BY ESQ ------------------------------------------------------------------- E MOTION 2/08/2010 GRRANTEDF-CBYREDWARD5EIGUIDOHJ - COPIESOMAI EDA2/8%IIDOGMENT IS ------------------------------------------------------------------- 2/08/2010 OPINION - 2/5/10 - BY EDWARD E GUIDO J - COPIES MAILED 2/8/10 -------------------------------------------------------------------10 IN RE DATED 2/09/2010 MORDER - OTION IS/G/RANTED - BYPEDWARDLFFS ON TO AM- COPRIESRMAILED 2/9/1009 ------------------------------------------------------------------- 2/12/2010 NOTICE OF DOCKET ENTRIES MAILED TO SUSAN E SMITH ESQ AND BRIAN K Z LLUR ESQ 131 ,?--------------------------------------------------------------- `3•135-3/04/2010 POPFCE OF APPEAL TO SUPERIOR COURT - BY BRIAN K ZELLNER ATTY FOR 13 ?3 RT OF 3/08/2010 NOTEDISPOSEUOF AGLENDALES THE ORDER DID COMPANY THE ABOVE-CAPTIONED APPEAL IS HEREBY QUASHED WITHOUT PREJUDICE TO BE RE-FILED ONCE A FINAL ORDER HAS BEEN ENTERED IN THE TRAIL COURT PER CURIAM ------------------------------------------------------------------- 13 ?}'3/12/2010 OORDER - RDER DIDNNOTEDISPOSEOOFCTTHETCLLAIMSNFILED AGAINSTASGLENDALETHE MANAGEMENT COMPANY THE ABOVE-CAPTIONED APPEAL IS HEREBY QUASHED WITHOUT PREJUDICE TO BE RE-FILED ONCE A FINAL ORDER HAS BEEN ENTERED IN THE TRIAL COURT PER CURIAM -----------•-------------------------------------------------------- /qo"1yd3/12/2010 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 391 MDA 2010 ------------------------------------------------------------------- ly 3/22/2010 SERVE ON THIS TJUDGE IWITHIN 21EDAYS FOFHTHIS FDATE SA CONCISE D STATEMENT OF ERRORS COMPLAINED OF ON APPEAL - ANY ISSUE NOT PROPERLY INCLUDED IN THE CONCISE STATEMENT TIMELEY FILE AND SERVED (-?umoeriana younzy rroznonozarv,s orrice race .3 Civil Case Print 2008-07011 BLACK TERRY (vs) GLENDALE LODGING LP II ET AL Reference No..: Filed........: 12/01/2008 Case Type ..... : COMPLAINT Time.........: 2:00 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 2123MDA2009 Higher Crt 2.: 391 MDA 2010 PURSUANT TO RULE 1925B SHALL BE DEEMED WIAVED - BY EDWARD E GUIDO J - COPIES MAILED 3/22/10 ------------------------------------------------------------------- /!?L% 4/05/2010 PLAINTIFF TERRYBBLACKS ZCONCISE ELLNER ST TE ENTPOFFERRORS COMPLAINED OF ON APPEAL - BY K FOR ------------------------------------------------------------------- 4/20/2010 IN RE: JOPINION PURSUANT 4/20/10 P 1925 - 4/19/10 - BY EDWARD E GUIDO - COPIES MAILED -------------------------------------------------------------------- 4/23/2010 NOTICE OF DOCKET ENTRIES MAILED TO BRIAN K ZELLNER ESQ AND SUSAN E SMITH ESQ - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Pmts/Adj End Bal ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 9.00 9.00 .00 APPEAL HIGH CT 48.00 48.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 183.50 183.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FR? M Mo ? RDA in Teetirrwny Pa. and a,. ssr of No !:P? o A3 d" at. Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.pa.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: Prothonotary RE: Black, T. v. Glendale Lodging 391 MDA 2010 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 08-7011 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part w/envelope attached April 26, 2010 1 Remand/Remittal Date: 01/03/2011 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, /krc Enclosure cc: The Honorable Edward E. Guido, Judge Susan Elizabeth Smith, Esq. Brian Kenneth Zellner, Esq. ' Milan K. Mrkobrad, Esq '--D ` om :-:I-- r- Deputy Prothonotary n . c-n - n-' ? ' CD n Black, T. v. Glendale Lodging 391 MDA 2010 Letter to: Buell, David D. Acknowledgement of Certificate of RemittaURemand of Record (to be returned): Signature Date Printed Name 3. S62036/10 NON-PRECEDENTIAL DECISION - SEE SUPRERIOR COURT I.O.P. 65.37 TERRY BLACK, Appellant V. GLENDALE LODGING L.P. II, GLENDALE MANAGEMENT and SCOTT ROY, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA No. 391 MDq; 0' J } Appeal from the Order of February 5, 2010, in the Court of Common Pleas of Cumberland County, Civil Division, at No. 08-7011 BEFORE: FORD ELLIOTT, P.J, MUNDY and COLVILLE*, JJ. MEMORANDUM: FILED: November 24, 2010 Appellant Terry Black appeals from the entry of summary judgment in favor of Appellees Glendale Lodging L.P., II and Glendale Management Company.' Appellant raises the following issue for our review: whether the trial court erred in determining that a factfinder could not find Appellees had constructive notice of the condition that caused Appellant's injuries without resorting to conjecture and granting Appellees' motion for summary judgment. We affirm. The trial court summarized the facts as follows: ' It appears that Appellant settled with Defendant Scott Roy after the commencement of the action. *Retired Senior Judge assigned to the Superior Court. ]. S62036/10 On April 4, 2008 [Appellant] attended a banquet at the Hotel Carlisle.' He arrived at 4:30 p.m. and left around 10:00 p.m. On that same date the defendant Scott Roy was conducting a tool sale in one of the side rooms of the hotel. [Appellant] noticed that sale on his way into the banquet. ' Hotel Carlisle is owned by [Appellee] Glendale Lodging L. P., II. X21 As [Appellant] was leaving, defendant Scott Roy was packing up his tools and loading them into a truck. The truck was positioned at the same exit [Appellant] used. It was parked perpendicular to the end of the sidewalk, blocking [Appellant's] route to the parking lot. He was force to step off the sidewalk to get around the truck. The area was unlighted. As [Appellant] stepped of the sidewalk onto the grass, he tripped and fell over the truck's loading ramp. Both [sides] agree [Appellant] was a business invitee. Trial Court Opinion, 11/19/09, at 1-2. Appellant brought a claim against Appellees alleging that he sustained injuries as a result of Appellees' negligence in failing to provide a safe exit for Appellant. Appellees moved for summary judgment on the basis that Appellant failed to produce evidence sufficient to prove the elements of his negligence cause of action, namely that Appellant failed to prove Appellees caused, created, or had actual or constructive notice of the condition that allegedly caused Appellant's injuries. Thereafter, the trial court granted summary judgment in favor of Appellees based on its conclusion that -2- J. S62036/10 Appellant failed to produce any evidence that Appellees had notice of the condition that allegedly caused Appellant's injuries. This timely appeal followed. The standard for an appellate court's review of an entry of summary judgment requires the following: [A]n appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo. Payne v. Commonwealth Dept of Corr., 871 A.2d 795, 800 (Pa. 2005) (citations omitted). In order to establish a cause of action in negligence, a party must prove the following elements: a duty or obligation recognized by law, a breach of the duty, a causal connection between the breach and the injury sustained, and actual loss or damage suffered by the injured party. Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005). Section 343 of the Restatement (Second) of Torts provides that: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, 2 Appellee Glendale Management Company managed the Hotel Carlisle on the date of the incident. -3- 3. S62036/10 he (a) knows or by the exercise of reasonable care would discover 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 the danger. Restatement (Second) of Torts § 343 (1965); see Estate of Swift by Swift v. Northeastern Hosp., 690 A.2d 719, 723 (Pa. Super. 1997) (applying Section 343 of the Restatement (Second) of Torts to negligence action brought by invitee). In determining whether an owner had notice of a harmful condition, this Court has stated: If the harmful transitory condition is traceable to the possessor or his agent's acts, (that is, a condition created by the possessor or those under his authority), then the plaintiff need not prove any notice in order to hold the possessor accountable for the resulting harm. In a related context, where the condition is one which the owner knows has frequently recurred, the jury may properly find that the owner had actual notice of the condition, thereby obviating additional proof by the invitee that the owner had constructive notice of it. Where however, the evidence indicated that the transitory condition is traceable to persons other than those for whom the owner is, strictly speaking, ordinarily accountable, the jury may not consider the owner's ultimate liability in the absence of other evidence which tends to prove that the owner had actual notice of the condition or that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it. Porro v. Century III Assocs., 846 A.2d 1282, 1285-86 (Pa. Super. 2004) (emphasis added). Moreover, "[w]hat constitutes constructive notice must depend on the circumstances of each case, but one of the most important -4- 3. S62036/10 factors to be taken into consideration is the time elapsing between the origin of the defect or hazardous condition and the accident." Neve v. Insalaco's, 771 A.2d 786, 791 (Pa. Super. 2001). "A jury is not permitted, however, to speculate or guess; conjecture, guess or suspicion do not amount to proof." Lanni v. Pennsylvania R. Co., 88 A.2d 887, 889 (Pa. 1952). The trial court found there was no evidence Appellees actually knew the truck was parked blocking the sidewalk; Appellant does not contest this finding. Instead, Appellant argues the trial court erred when it determined that Appellees did not have constructive notice of the alleged harmful condition that caused his injuries, i.e., the truck blocking the sidewalk and the loading ramp that was on the grass. Appellant argues there was an issue of fact as to how long this condition existed. In support of his claim, Appellant contends that because Appellees were aware of the tool sale on the premises and the means by which Roy had initially unloaded the truck and tools, and given the hour of the evening, it would not be mere conjecture, guess or suspicion for a factfinder to determine that Appellees had constructive notice of the alleged harmful condition. Appellant argues the court failed to view Appellees' motion for summary judgment in the light most favorable to Appellant and that the issue of constructive notice should be left to a factfinder. - 5 - J. S62036/10 In rendering its decision, the trial court stated: In the instant case, there is not one scintilla of evidence as to how long the truck had been blocking the sidewalk. Without some evidence as to the length of time the hazardous condition existed, a jury could not find constructive notice without resorting to conjecture. Under these circumstances summary judgment is appropriate. Trial Court Opinion, 11/19/09, at 3 (footnote omitted). The trial court's findings are supported by the record and its conclusions are sound. We note Appellant offers no support in the record for his assertion that Appellees were aware of the means by which Roy had initially unloaded the truck and tools. To the extent Appellant implies there is evidence that Roy created the same alleged harmful condition when he initially unloaded his truck, the record contains no such evidence. Appellant testified in his deposition that he did not see the truck in the parking lot when he arrived at Appellees' premises. He further testified that when he reported the incident to hotel staff, there was no indication they knew what was going on regarding the tool show activities or of the presence of the loading ramp. Because the record contains no evidence as to the length of time the alleged harmful condition existed, we agree a factfinder would not be able to determine Appellees had constructive notice without resorting to conjecture. Accordingly, we find no error in the trial court's determination that summary judgment in favor of Appellees is appropriate. See Lanni, 88 A.2d at 889 (finding evidence of constructive notice of an unsafe condition was -6- 1. S62036/10 insufficient to take to jury where it could not be determined from the evidence, facts or circumstances, and, at best, it would only be a guess, as to the length of time a grease spot was on the driveway prior to the plaintiff's accident); Porro, 846 A.2d at 1286 (affirming summary judgment in favor of the appellees where the appellant admitted he did not know how long the liquid substance he slipped on was present on the stairs and the nature of the substance did not establish that any of the appellees' employees spilled the substance or that they should have been aware of its presence). Order affirmed. Judgment Entered. Deputy Prothonotary November 24, 2010 Date: -7-