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Home My WebLink About08-7090IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER . 6859 Wertzville Road Enola, PA 17025 Plaintiff VS. ELIZABETH A. SCHOPPERT 7 Monarch Lane Mechanicsburg, PA 17050 Defendant NO.: d j, 7G 9e CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in trespass in the above case. Writ of Summons shall be issued and forwarded to Attorney. XX Writ of Summons shall be issued and forwardedAOW54f Respectfully Date: I ala I a T Timothy L , Esquire KATHERM GS & GREENBERG 7 East Mark et York, PA 1 717-848-3838 Tele Attorney for the Plaintiff Attorney ID No. PA 77398 SUMMONS IN CIVIL ACTION TO: ELIZABETH A. SCHOPPERT, YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU Pr onot k, Ci 1 Division Date: ljz?z(l By: Deputy rv ? v ? ? w SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-07090 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND STROHECKER DIAN L VS SCHOPPERT ELIZABETH A R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT SCHOPPERT ELIZABETH A but was unable to locate Her in his bailiwick. He therefore returns the WRIT OF SUMMONS the within named DEFENDANT 7 MONARCH LANE NOT FOUND , as to SCHOPPERT ELIZABETH A MECHANICSBURG, PA 17050 CURRENT RESIDENT MOVED IN JULY 2008. POST OFFICE STATES FORWARDING ADDRESS IS 1016 CORNERSTONE PKWY, ALLONS, TN 38541 Sheriff's Costs: So answer Docketing 18.00 j -? Service 9.00 '-' Postage .42 R. Thomas Kline Surcharge 10.00 Sheriff of Cumberland County Not Found _ 5.00 V;" 42.42 KATHERMAN BRIGGS 12/11/2008 Sworn and Subscribed to before me this day of , A. D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER 6859 Wertzville Road Enola, PA 17025 Plaintiff VS. ELIZABETH A. SCHOPPERT , 7 Monarch Lane Mechanicsburg, PA 17050 Defendant , NO.: di. 7G JD ('1 r" utm CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in trespass in the above case. Writ of Summons shall be issued and forwarded to Attorney. XX Writ of Summons shall be issued and forwarded r,. Respectfully S Date: Ca la?ob' i imothy L 5 , Esquire KATHERM GS & GREENBERG TRUE C+f? ??? ?1???1 7 East Mark f? et rustionot y wh01'l , I hNO dtf u so tyly ? York, PA 17 ":d t of Said W.ita d Oa Y 717-848-3838 ork, A 17 Tele i ? atnit Attorney for the Plaintiff Attorney ID No. PA 77398 SUMMONS IN CIVIL ACTION TO: ELIZABETH A. SCHOPPERT, YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AG ST YOU. Prot notary/Cl evil ivision Dater By: Deputy t? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER NO,; 6859 Wertzville Road , Enola, PA 17025 Plaintiff VS. ELIZABETH A. SCHOPPERT 7 Monarch Lane Mechanicsburg, PA 17050 Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in trespass in the above case. Writ of Summons shall be issued and forwarded to Attorney. XX Writ of Summons shall be issued and forw Respectfully Date: RUE cop FROM RECOM festlt:togy whew, I hoe Uft M iYty tai, )d the aid C IIA, Pa 7'*?Pr(i Timothy L , Esquire KATHERM GS & GREENBERG 7 East Mark 1"? et York, PA 17 717-848-3838 Tele Attorney for the Plaintiff Attorney ID No. PA 77398 SUMMONS IN CIVIL ACTION TO: ELIZABETH A. SCHOPPERT, YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGA ST YOU. Proth otary/Cle , iv 1 D' ision Dater `A By: Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER NO.: ??. -7G 9(/ Pi of l -WOvl 6859 Wertzville Road Enola, PA 17025 Plaintiff CIVIL ACTION - LAW VS. ELIZABETH A. SCHOPPERT 7 Monarch Lane Mechanicsburg, PA 17050 JURY TRIAL DEMANDED Defendant PRAECIPE FOR SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in trespass in the above case. Writ of Summons shall be issued and forwarded to Attorney. XX Writ of Summons shall be issued and forwarded r' f. Respectfully S Date: Ja ?a `6 g Timoth L S Esquire RUF COPY FROM REV0111 KATFIERM GS & GREENBERG fie tt010 bbl Inv 7 East Mark et I I"USAM- 0?ty h VW1 York, PA 17 A.d m d all said t 717-848-3838 Tele f w Attorney for the Plaintiff Attorney ID No. PA 77398 SUMMONS IN CIVIL ACTION TO: ELIZABETH A. SCHOPPERT, YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAI T YOU. Protho ary/Clerk, C' iv' ion Date:. By: Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff VS. . ELIZABETH A. SCHOPPERT, Defendant NO.: 2008-7090 CIVIL ACTION - LAW JURY TRIAL DEMANDED RETURN OF SERVICE I, Timothy L. Salvatore, being duly sworn according to the law, state the following: 1. I am an adult individual and counsel for Plaintiff in the above-captioned matter. 2. On December 17, 2008, I served Defendant Elizabeth Schoppert with a true and correct copy of a Writ of Summons by FedEx Delivery. 3. A true and correct copy of the delivery confirmatio from FedEx, indicating the delivery was signed for by E. Schoppert, is attached as Exhib? s, Timothy L. Attorney II Commonwealth of Pennsylvania S: County of York On 444tttA4q_ 6, o200 , the Affiant, being known to me or having provided satisfactory proof of iden , did personally appear before me and, being duly sworn according to the law by me, did execute this Affidavit before me. aj-e-.Ra-Ck*./ COMMONWEALTH OF PENN UbliC NOTARIAL SEAL DEBORAH A. ATTARD, Notary Public G Cady of'York, York County 15xki ki-? ?- Expr s December 18,2008 Fed Ex Express Customer Support Trace 3875 Airways Boulevard Module H, 4th Floor Memphis, TN 38116 Dear Customer: The following is the proof-of-delivery for tracking number 866532393846. U.S. Mail: PO Box 727 Memphis, TN 38194-4643 Telephone: 901-369-3600 Delivery Information: Status: Delivered Delivery date: Dec 17, 2008 16:45 Signed for by. E.SCHOPPERT Service type: Priority Envelope NO SIGNATURE IS AVAILABLE FedEx Express proof-of-delivery details appear below; however, no signature is currently available for this shipment. Please check again later for a signature. Shipping Information: Traddng number. Recipient: US Reference 866532393846 Ship date: Shipper US DIAN STROHECKER Dec 16, 2008 Thank you for choosing FedEx Express. FedEx Worldwide Customer Service 1.800.GoFedEx 1.800.463.3339 FedEx I Track EspaBol I Customer Support I FedEx Locations earch Go co PE Page 1 of 1 PackagefEnvelope Freight Expedited Office/Print Services* Ship Track G0 Manage _ ....? lo ge ? Business Solutions ? FedEx Express Signature Proof of Delivery (3) Quic* Help No Signature Found Proof-of-delivery details appear below; however, no signature is currently available for this FedEx Express® shipment. Please check again later for a signature. Shipment Information Tracking number: 866532393846 ship date: uec lb, zuuts Status: Delivered Delivery date: Dec 17, 2008 16:45 Signed for by: E.SCHOPPERT Service type: Priority Envelope Recipient: US Shipper: US Reference DIAN STROHECKER Account number If account number is not entered or it does not match the shipper or third party payor account number, then only limited SPOD information will be provided. Your next step r, View/print letter (no signature) t E-mail letter (no signature) t Fax letter (no signature) C Make anew request Related Links • Track more shipments • M F x Please note: If you have any questions about this shipment, please ont ct va. Global Home I FedEx Mobile I Service Info About FedEx I Investor Relations I Careers fedex.com Terms of Use I Privacy Policy I Site Map This site is protected by copyright and trademark laws under US and International law. All rights reserved. ®1995-2008 FedEx https://www.fedex.comISpod?cntry_code=us&trackingNumber--866532393846&shipYea... 12/18/2008 co cz? jr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, CIVIL DIVISION Plaintiff, NO. 08 - 7090 V. PRAECIPE FOR APPEARANCE ELIZABETH A. SCHOPPERT, Defendant. (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #16835 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff, V. ELIZABETH A. SCHOPPERT, Defendant. CIVIL DIVISION NO. 08 - 7090 (Jury Trial Demanded) PRAECIPE FOR APPEARANCE TO: THE PROTHONOTARY Kindly enter the Appearance of the undersigned, Kevin D. Rauch, Esquire, of the law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., on behalf of the Defendant, Elizabeth A. Schoppert, in the above case. JURY TRIAL DEMANDED Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEE1, L.L.P. By: n`b. Rauch, Esquire nsel for Defendant i CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE FOR APPEARANCE has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 22nd day of January, 2009. Timothy L. Salvatore, Esquire Katherman, Briggs & Greenberg 7 East Market Street York, PA 17401 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEWL, L.L.P. By: K vin D. RFauch, Esquire Counsel for Defendant ?? ?? ,?; ?? -# ? .? - ,? c.:s --? .. : ? '?.E '„'.°' n'+ . ,Q "': IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff, CIVIL DIVISION V. ELIZABETH A. SCHOPPERT, Defendant. NO. 08 - 7090 PRAECIPE FOR RULE TO FILE COMPLAINT (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #16835 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff, V. ELIZABETH A. SCHOPPERT, Defendant. CIVIL DIVISION NO. 08 - 7090 (Jury Trial Demanded) PRAECIPE FOR RULE TO FILE COMPLAINT TO: The Prothonotary Kindly rule the Plaintiff, Dian L. Strohecker, to file a Complaint in Civil Action within twenty (20) days. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL. L_L_P By: -Gvpl -. rxauun, r--squire Counsel for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE FOR RULE TO FILE COMPLAINT has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 22"d day of January, 2009. Timothy L. Salvatore, Esquire Katherman, Briggs & Greenberg 7 East Market Street York, PA 17401 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: R uch, Esquire 4ffouor Defendant t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff, CIVIL DIVISION V. ELIZABETH A. SCHOPPERT, Defendant. NO. 08 - 7090 (Jury Trial Demanded) RULE AND NOW, this , day of 2009, upon consideration of Defendant's Praecipe for Rule to File a Complaint, a Rule is hereby granted upon Plaintiff to file a Complaint within twenty (20) days of service, or suffer judgment Non Pros. Rule issued this day of 2009. Prothonotary Distribution to: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 Timothy L. Salvatore, Esquire Katherman, Briggs & Greenberg 7 East Market Street York, PA 17401 --a °n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff, V. ELIZABETH A. SCHOPPERT, Defendant. CIVIL DIVISION NO. 08 - 7090 (Jury Trial Demanded) RULE AND NOW, this a3rd day of \.6n 2009, upon consideration of Defendant's Praecipe for Rule to File a Complaint, a Rule is hereby granted upon Plaintiff to file a Complaint within twenty (20) days of service, or suffer judgment Non Pros. Rule issued this JSrd day of \Janw 1/ , 2009. thon ary Distribution to: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 Timothy L. Salvatore, Esquire Katherman, Briggs & Greenberg 7 East Market Street York, PA 17401 3 ?'?- ", ? ,,?; ' n? ~ ?' ?' `. ?.? w _ ?".• ^'T3 ? CI _? . ?: ? « .? Katherman, Briggs & Greenberg, LLP By: Timothy L. Salvatore, Esquire Attorney ID No. PA 77398 7 East Market Street York, PA 17401 717-848-3838 Tele 717-854-9172 Fax Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff vs. ELIZABETH A. SCHOPPERT, Defendant NOTICE YOU HAVE BEEN SUED IN COURT. NO.: 2008-7090 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD A VISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenerse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presenter comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. If you wish to defend against the claims set forth against you in the following pages, you must take action within twenty (20) days after this Complaint and Notices 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 default 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 THIS OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. Usted puede perder dinero, o propriedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENDER ASISTENCIA LEGAL. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 or 800-990-9108 Katherman, Briggs & Greenberg, LLP By: Timothy L. Salvatore, Esquire Attorney for Plaintiff Attorney ID No. PA 77398 7 East Market Street York, PA 17401 717-848-3838 Tele 717-854-9172 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, NO.: 2008-7090 Plaintiff VS. CIVIL ACTION - LAW ELIZABETH A. SCHOPPERT, Defendant JURY TRIAL DEMANDED COMPLAINT Plaintiff, Dian L. Strohecker, by her attorneys, Katherman, Briggs & Greenberg, LLP., files this Complaint and states the following: 1. Plaintiff Dian L. Strohecker ("Plaintiff'), is an adult individual who resides at 6859 Wertzville Road, Enola, Cumberland County, Pennsylvania, 17025. 2. Defendant Elizabeth A. Schoppert ("Defendant") is an adult individual who resides at 1016 Cornerstone Parkway, Allons, Tennessee, 38541. 3. On December 22, 2006, Dian Strohecker was the owner and operator of a 2002 Chevrolet Impala, Pennsylvania registration number GDM3984. 4. At all relevant times, Defendant Elizabeth Schoppert was the owner and operator of a 2002 Honda Civic, registration number 7213MX for the State of Maine. 5. On December 22, 2006, at approximately 12:45 p.m., Plaintiff was stopped for a stop sign on Trindle Road (SR0641), at its intersection with Central Boulevard (SR1021) in Hampden Township, Cumberland County, Pennsylvania. 6. As Plaintiff Dian Strohecker sat stopped at the stop sign, Defendant Elizabeth Schoppert failed to stop her vehicle and drove into the rear end of Plaintiff Dian Strohecker's vehicle. 7. Plaintiff Dian Strohecker's brake lights were lit and visible to Defendant prior to impact. 8. Defendant's negligence, negligence per se, carelessness, and recklessness were the direct and proximate cause of the collision and Plaintiff's injuries and damages. 9. The negligence, negligence per se, carelessness, and recklessness of Defendant consisted of the following: a. operating her vehicle at an unsafe speed under existing conditions; b. failing to maintain proper control of her vehicle; C. failing to maintain an assured clear distance ahead within which to safely stop her vehicle; d. failing to operate her brakes in a prudent manner; e. driving her vehicle into the rear of Plaintiff's vehicle; f. failing to keep alert and maintain a proper lookout for other traffic on the roadway; g. failing to make keep alert and observe road conditions then existing; 2 h. failing to comply with the provisions of the Pennsylvania Motor Vehicle Code, Title 75 of the Pennsylvania Code, specifically as they relate to the above mentioned acts, in particular, 75 Pa.C.S. § § 3310, 3323 and 3361. COUNTI Dian L. Strohecker v Elizabeth A. Schoppert 10. The paragraphs set forth above are incorporated by reference. 11. As a result of the collision, Plaintiff Dian Strohecker has suffered serious and permanent injuries, including, but not limited to, whiplash, head, neck and back pain, right leg and knee pain and swelling, ACL tear of the right knee resulting in surgical intervention, severe dental injuries, and severe shock to her nerves and nervous system. 12. Plaintiff has sustained or may sustain the following damages as a result of her injuries: a. past and future pain and suffering; b. past and future embarrassment, humiliation, and mental anxiety; C. past and future loss of life's enjoyment; d. scarring and disfigurement; e. past and future incidental costs; f. past and future loss of earnings and earning capacity as may be recovered under the Pennsylvania Motor Vehicle Financial Responsibility Law; and g. past and future medical expenses as may be recovered under the Pennsylvania Motor Vehicle Financial Responsibility Law. 13. Plaintiff's damages exceed the applicable limits of arbitration and a jury trial is demanded. 3 WHEREFORE, Plaintiff demands judgment against Defendant for compensatory damages in an amount in excess of $50,000, together with interest, costs of suit, and delay damages. Respectfully submitted, KATHERMAN, BRIGG,8 & Q BERG, LLP Date: I By: Timothy L. 1 qt Attorney ID 98 7 East Marke tr York, PA 17 1 717-848-3838 ele 717-854-9172 Fax Attorney for the Plaintiff 4 r • VERIFICATION I verify that the foregoing facts are true, upon my personal knowledge or information and belief. This verification is made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. -va IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, NO.: 2008-7090 Plaintiff vs. ELIZABETH A. SCHOPPERT, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On this day, the attached Complaint, was sent by first-class pre-paid mail, as indicated below, to the following: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 I certify that the foregoing is true and correct subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. KATHERMAN, BRIGGS & GREENBERG, LLP Date: 310 It By: ot6?ttj" Deborah A. Attard, Paralegal 7 East Market Street York, PA 17401 717-838-3838 Tele 717-854-9172 Fax C Q -n m r r=' Ln t , "< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff, V. CIVIL DIVISION NO. 08 - 7090 ELIZABETH A. SCHOPPERT, Defendant. TO: Plaintiff You are hereby noted to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be?engaipgt you. rs, M90onnell, Hudock, 8 Skeel, L.L.P. ANSWER AND NEW MATTER (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #16835 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, CIVIL DIVISION Plaintiff, V. NO. 08 - 7090 ELIZABETH A. SCHOPPERT, (Jury Trial Demanded) Defendant. ANSWER AND NEW MATTER AND NOW, comes the Defendant, Elizabeth A. Schoppert, by and through her counsel, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and Kevin D. Rauch, Esquire, and files the following Answer and New Matter and in support thereof avers as follows: 1. After reasonable investigation, the Defendant has insufficient information as to the truth or falsity of said averments, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted that a collision occurred between the vehicles identified on the date, time, and place of the subject accident. The remainder of the allegations in paragraph 6 are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 7. After reasonable investigation, the Defendant has insufficient information as to the truth or falsity of said averments, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 8. Paragraph 8 states a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 9. Admitted in part, denied in part. It is admitted that the Defendant was negligent in the operation of her motor vehicle on the date, time, and place of the subject accident. The remainder of the allegations in paragraph 9 and all of its subparts state legal conclusions to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pe.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. COUNT I 10. In response to paragraph 10, the Defendant reiterates and repeats all her responses in paragraphs 1 through 9 as if fully set forth at length herein. 11. Paragraph 11 states a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 12. Paragraph 12 and all of its subparts state legal conclusions to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 13. Paragraph 13 states a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Elizabeth A. Schoppert respectfully requests this Honorable Court enter judgment in her favor and against the Plaintiff with costs and prejudice imposed. NEW MATTER 14. The motor vehicle accident in controversy is subject to the Pennsylvania Motor Vehicle Financial Responsibility Law and this Defendant asserts, as affirmative defenses, all rights, privileges and/or immunities accruing pursuant to said statute. 15. Some and/or all of Plaintiffs claims for damages are items of economic detriment which are or could be compensable pursuant to either the Pennsylvania Motor Vehicle Financial Responsibility Law and/or other collateral sources and same may not be duplicated in the present lawsuit. 16. This Defendant pleads any and all applicable statutes of limitation under Pennsylvania Law as a complete or partial bar to any recovery by Plaintiff in this action. WHEREFORE, Defendant, Elizabeth A. Schoppert respectfully requests this Honorable Court enter judgment in her favor and against the Plaintiff with costs and prejudice imposed. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: Koh-T Ra ch, Esquire ounsel for Defendant VERIFICATION Defendant verifies that she is the Defendant in the foregoing action; that the foregoing ANSWER AND NEW MATTER is based upon information which she has furnished to her counsel and information which has been gathered by her counsel in the preparation of the lawsuit. The language of the ANSWER AND NEW MATTER is that of counsel and not of the Defendant. Defendant has read the ANSWER AND NEW MATTER and to the extent that the ANSWER AND NEW MATTER is based upon information which she has given to her counsel, it is true and correct to the best of her knowledge, information and belief. To the extent that the content of the ANSWER AND NEW MATTER is that of counsel, she has relied upon counsel in making this Affidavit. Defendant understands that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: 4A6??- V lizabeth A. Schoppert #16835 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ANSWER AND NEW MATTER has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this day of March, 2009. Timothy L. Salvatore, Esquire Katherman, Briggs & Greenberg 7 East Market Street York, PA 17401 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: iv. P such, Esquire sel for Defendant ?a ? .?, '' a' z ? E `,r :. .. ? ? ++??..yy ?+rat ??~- ~ , ,>,a .x.?- ?} ri. ""d ?? 7 w t..`} Katherman, Briggs & Greenberg, LLP By: Timothy L. Salvatore, Esquire Attorney ID No. PA 77398 7 East Market Street York, PA 17401 717-848-3838 Tele 717-854-9172 Fax Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff vs. ELIZABETH A. SCHOPPERT, Defendant NO.: 2008-7090 CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER Plaintiff, Dian L. Strohecker, by her attorneys, Katherman, Briggs & Greenberg, LLP., files this Reply to New Matter and states the following: 14.-16. These paragraphs contain conclusions of law to which no response is required. To the extent that a response is required, the allegations contained in these paragraphs are denied generally pursuant to Pa.R.C.P. 1029. Respectfully submitted, KATHERMAN, Date: --311)(ol By: Timothy , Esquire Attorney I 77398 7 East Mar et York, PA 717-848-38 ele 717-854-9172 Fax Attorney for the Plaintiff LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, NO.: 2008-7090 Plaintiff V5. ELIZABETH A. SCHOPPERT, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On this day, the attached Reply to New Matter, was sent by first-class pre-paid mail, as indicated below, to the following: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 I certify that the foregoing is true and correct subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. KATHERMAN, BRIGGS & GREENBERG, LLP Date: 3 / f By: La - atteva Deborah A. Attard, Paralegal 7 East Market Street York, PA 17401 717-838-3838 Tele 717-854-9172 Fax N `=-? { v. :? .-? „ : ? ?.; - ...,, ,?t'fi , ?_ """' ,? ?,; -.G. r 4 Katherman, Briggs & Greenberg, LLP By: Timothy L. Salvatore, Esquire Attorney ID No. PA 77398 7 East Market Street York, PA 17401 717-848-3838 Tele 717-854-9172 Fax Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, NO.: 2008-7090 Plaintiff vs. ELIZABETH A. SCHOPPERT, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S OBJECTIONS TO DEFENDANT'S SUBPOENAS PURSUANT TO RULE 4009.21 Plaintiff, Dian L. Strohecker, objects to Defendant's proposed subpoenas that are attached to these objections, which subpoenas are directed to the following: 1. Gettysburg Hospital 2. Nationwide Insurance - Harrisburg 3. Penn Rehabilitation Associates 4. Quantum Imaging 5. Zabinski Chiropractic Plaintiff objects to disclosure of medical treatment records from 1957 to the present, as such disclosure is not reasonably calculated to lead to discovery of admissible evidence and is intended 1 solely to harass and embarrass Plaintiffs. Date: Respectfully submitted, KATHERMAN, By: imo"hy' T reEsquire ey 7398 Attorn 7 East Mk t York, PA I' 1 717-848-383 Tele 717-854-9172 Fax Attorney for the Plaintiff 2 SUBPOENA NOTICE OF INTENT Page I of 3 PENNSYLVANIA COURT OF COMMON PLEAS COUNTY OF CUMBERLAND Dian L. Strohecker Court of Common Pleas vs. Elizabeth A. Schoppert 08-7090 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Provider: Nationwide Insurance-Harrisburg Zambinski Quantum Imaging Gettysburg Hospital Penn Rehabilitation Associates TO: Timothy Salvatore, Esquire note: please see enclosed list of all other interested counsel Litigation Solutions, LLC ('LSLLC') on behalf of Seth Black, Esquire intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Date of Issue: 4/13/2009 Litigation Solutions, LLC on behalf of: CC: Seth Black, Esquire - Court of Common Pleas Seth Black, Esquire Defense C" j 0-Mrnes??e?nea?? ?1 c kc% bax If you have any questions regarding this matter, please contact: Litigation Solutions, LLC (412.263.5656) Brentwood Towne Centre 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 Record Type: First-Party Benefits Medical Medical Medical Medical SUBPC}ENA NOTICE OF INTENT COUNSEL LISTING FOR DIAN L. STROHECKER VS. ELIZABETH A. SCHOPPERT County of Cumberland Court of Common Pleas Counsel Firm Salvatore, Esquire, Timothy 7 East Market Street York PA 17401 1-6 Page 2 of 3 Counsel Type Opposing Counsel ??tfn•//iroto 14o l nnm/rataavanta /nntira of infant ao-9va- --n,-f fn ;A-D7 0 1.C' n /1') innnn SUBPOENA NOTICE OF INTENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dian L. Strohecker Court of Common Pleas VS. Elizabeth A. Schoppert 08-7090 Request For Records Copies Related To Subpoena Document Request Page 3 of 3 Provider: Copy Sets Requested: Nationwide Insurance- Harrisburg Zambinski Quantum Imaging Gettysburg Hospital Penn Rehabilitation Associates Please return this completed form to Litigation Solutions, LLC. Please be advised that Litigation Solutions, LLC requires prepayment for all requested records above. Therefore, once the requested records are obtained an invoice for prepayment will be generated and sent directly to your attention. This prepayment includes a $5.00 administrative fee. Once payment has been received the records will be promptly forwarded to your attention. If you should happen to have any questions or concerns regarding this matter, please don't hesitate to contact Krystal Morris at 412-253-1144 or fax at 412-253-1162. Date of Issue: 4/13/2009 littn://rats.litsol.com/ratsevents/notice of intent.asn?save report to db=X&PfJd=P1,3153 4111i1)nn9 COMMONGVEALTH OF PENNSYLVANLq COUNTY OF CUMBERLAND Dian L. Strohecker VS. Elizabeth A. Schoppert 08-7090 File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUAN'T' TO RULE 4009.22 TO: Gettysburg Hospital (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the. right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Seth Black, Esquire ADDRESS:- 100 Sterling Parkway, Suite 306 Mechanicsburg PA, 17050 TELEPHONE: _ (717) 901-5916 SUPREME COURT ED # 2 0 3 0 7 5 ATTORNEY FOR: Defense :BY OU*on rothon Date: Seal of the Court Deputy SUBPOENA RIDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Gettysburg Hospital 147 Gettys Street Gettysburg PA 17325 Attention: Medical Records Correspondence Subject: Strohecker, Dian L. SS#: 3554 Date of Birth: 5/26/1957 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records (5/26/1957 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. http://rats.litsol.com/ratsevents/subpoena rider. asn?PLid=PT,3153.56&..WRid=WRIR4?7 All Qi")nnn COMMONWEALTH OF PENNSYLVANLk COUNTY OF CUMEERLAND Dian L. Strohecker vs. Elizabeth A. Schoppert 08-7090 File No. SUBPOENA TO PRODUCE DOCUMENTS OR TAGS FOR DISCOVER' PURSUANT TO RULE 4009.22 TO. Nationwide Insurance-Harrisburg (Name of Person or Entity) Vdiia twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Seth Black, Esquire ADDRESS: 100 Sterling Parkway, Suite 306 Mechanicsburg PA, 17050 TELEPHONE:_ (717) 901-5916 SUPREME COURT ID# 2 0 3 0 7 5 ATTORNEY FOR: D e f e n s e Date: tl t /U Seal of the Court BY THE URT: Pr onotary, C1-4iViSi Deputy SUBPOENA RIDER ' • Page 1 of 1 Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Nationwide insurance-Harrisburg 1000 Nationwide Drive Harrisburg PA 17105 Attention: Claims Department Subject: Strohecker, Dian L. SS#: 3554 Date of Birth: 5/26/1957 Requested Items: Please remit a complete copy of the entire First Party Benefit File (DOL: August 14, 1996; Claim No. 5A37C79182808149601), including but not limited to applications for benefits, declaration page, wage loss documents, medical records and bills. httn //rats litsnl rom/ratcPve.ntc/cnhnnPna r1dt-x acn9PT iri=PT 11 COhSfON1%JEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dian L.-Strohecker 08-7090 File No. vs. Elizabeth A. Schoppert SUBPOENA TO PRODUCE DOCUMENTS OR TBINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Penn Rehabilitation Associates (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Seth Black, Esquire ADDRESS: 100 Sterling Parkwa , Suite 306 Mechanicsburg PA, 17050 TELEPHONE: (717) 901-5916 SUPREME COURT ID # 2 0 3 0 7 5 ATTORNEY FOR: Defense Date:_ ?l /ai Seal of the Court BY THE T: Pr onotary, Civ' rvisio Deputy SUBPOENA RIDER Rider to. Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Penn Rehabilitation Associates 2151 Linglestown Road Suite 240 Harrisburg PA 17110 Attention: Medical Records Correspondence Subject: Strohecker, Dian L. SS#: 3554 Date of Birth: 5/26/1957 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records (5/26/1957 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. httD://rats.litsol.com/ratsevents/subpoena rider. asD?PLid=PL3 153 5 7& WRid=WR3 8427 4/1/?nnq CoMNiONW EALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dian L. Strohecker File No. 08-7090 vs. Elizabeth A. Schoppert SUBPOENA TO PRODUCE DOCUMENTS OR TAGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Quantum Imaging (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party-serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Seth Black, Esquire ADDRESS: 100 Sterling Parkway, Suite 306 Mechanicsburg PA, 17050 TELEPHONE: (717) 901-5916 SUPREME COURT ID # 2 0 3 0 7 5 ATTORNEY FOR: D e f e n s e Date: 1- G' lb 1 Seal of the Court BY THAllo T: Prry, Civi visig Deputy SUBPOENA RIDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Quantum Imaging 629 D Lowerther Street Lewisberry PA 17339 Attention: Medical Records Correspondence Subject: Strohecker, Dian L. SS#: 3554 Date of Birth: 5126/1957 .Page I of I Requested Items: Please remit: a complete copy of any and all medical records (5/26/1957 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. COIV ONWEALTH OF PENNSYLVANIA COUNTY OF CUMDERLA D Dian L. Strohecker VS. Elizabeth A. Schoppert 08-7090 File No. SUBPOENA. TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Zambinski (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party-serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Seth Black, Esquire ADDRESS: 100 Sterling Parkway, Suite 306 Mechanicsburg PA, 17050 TELEPHONE: (717) 901-5916 SUPREME COURT ID # 2 0 3 0 7 5 ATTORNEY FOR: D e f e n s e Date: Seal of the Court BY THE URT: Pr thonotary, ivis' n Deputy' SUBPOF,NARIDER Page 1 of-1 Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Zambinski 3028 Market Street Camp Hill PA 17011 Attention: Medical Records Correspondence Subject: Strohecker, Dian L. SS#: 3554 Date of Birth: 5/26/1957 Requested Items: Please remit: a complete copy of any and all medical records (5/26/1957 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. ?, K.,. llrn}n 1;+?„1 rnn??ratcavPntc/m ihi?nana r;rlar aci?7AT irl-AT :1 G,G?.Qr«IA i.7-TIJDZ QA )7 A/1']/7 Mf1 41 & IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, NO.: 2008-7090 Plaintiff VS. ELIZABETH A. SCHOPPERT, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On this day, the attached Plaintiffs Objections to Defendant's Subpoenas Pursuant to Rule 4009.21, was sent by first-class pre-paid mail, as indicated below, to the following: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway Suite 306 Mechanicsburg, PA 17055 I certify that the foregoing is true and correct subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. KATHERMAN, BRIGGS & GREENBERG, LLP Date: -4 h ce I_ o R _ By: r 1 ?? I,/ Deborah A. Attard, Paralegal 7 East Market Street York, PA 17401 717-838-3838 Tele 717-854-9172 Fax FILED- OF THE 2009 APR 17 Ph 1. 9 Pr, ,r ?, a f .P -4 Katherman, Briggs & Greenberg, LLP By: Timothy L. Salvatore, Esquire Attorney ID No. PA 77398 7 East Market Street York, PA 17401 717-848-3838 Tele 717-854-9172 Fax Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, VS. Plaintiff ELIZABETH A. SCHOPPERT, Defendant NO.: 2008-7090 CIVIL ACTION LAW JURY TRIAL DEMANDED OBJECTIONS TO DEFENDANT'S SUPPLEMENTAL INTERROGATORIES - SET # 1 15. Plaintiff objects to this interrogatory to the extent that it calls for the disclosure of protected or privileged information, including information concerning the existence of or treatment for sickle cell anemia, HIV/AIDS, substance abuse and/or mental health. Plaintiff has not made a claim for psychiatric or psychological injury beyond the embarrassment and humiliation attendant to the physical injuries sustained in the accident. Information related to mental health, emotional counseling, alcoholism, or narcotic addiction is protected by 50 P.S. §7111 and 71 P.S. § 1690.101, et. seq., as privileged and is not discoverable in this action. Plaintiff objects to this interrogatory on the basis that it is not reasonably calculated to lead to discovery of admissible evidence. Plaintiff objects to this interrogatory on the basis that it is intended to solely harass and embarrass Plaintiff-to the extent that it pertains to such protected and/or privileged information or inadmissible evidence. To the extent that this interrogatory is not objectionable, Plaintiff will respond appropriately. r 4 16. Plaintiff objects to this interrogatory on the basis that it is not reasonably calculated to lead to discovery of admissible evidence. Plaintiff objects to this interrogatory on the basis that it is intended to solely harass and embarrass Plaintiff-to the extent that it pertains to such protected and/or privileged information or inadmissible evidence. To the extent that Plaintiff has ever been convicted or pled guilty to a criminal offense involving falsification, Plaintiff will respond appropriately. To the extent that this interrogatory is not objectionable, Plaintiff will respond appropriately. Respectfully submitted, KATHERMAN, B Date: eat 1C)q By: Timothy L ore, Esquire Attorney I PA 773'98 7 East M Street York, PA 17401 717-848-3838 Tele 717-854-9172 Fax Attorney for the Plaintiff' 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, NO.: 2008-7090 Plaintiff VS. ELIZABETH A. SCHOPPERT, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On this day, the attached Objections to Defendant's Supplemental Interrogatories - Set # 1, was sent by first-class pre-paid mail, as indicated below, to the following: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway Suite 306 Mechanicsburg, PA 17055 I certify that the foregoing is true and correct subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. KATHERMAN, BRIGGS & GREENBERG, LLP Date: kct By:? t_ Deborah A. Attard, Paralegal 7 East Market Street York, PA 17401 717-838-3838 Tele 717-854-9172 Fax Oc T W.erS' CA/% PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: X1 for JURY trial at the next term of civil court. ? for trial without a jury. ------------------------------------------------------------------------------------------ CAPTION OF CASE The trial list will be called on November 2 and (entire caption must be stated in full) (check one) X? Civil Action -- Law Dian L. Strohecker ? Appeal from arbitration ? (other) (Plaintiff) VS. Elizabeth A. Schoppert Trials commence on December 6, 2010 _F'?`s? NaY F11 n. 00 N: `{ 11MA (Defendant) Pretrials will be held on November 10, 2010 VS. (Briefs are due S days before pretrials No. 7090 2008 Term Indicate the attorney who will try case for the party who files this praecipe: Seth T. Black, Esquire Indicate trial counsel for other parties if known: Timothy L. Salvatore, Esquire This case is ready for trial. 9/2/10 Date: Seth T. Black, Esquire Print Name: Attorney for: Defendant 4.,25, oo P6 A-r? cTM*ayal te* 24.1785 #5 DIAN L. STROHECKER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 7090-2008 CIVIL TERM ELIZABETH A. SCHOPPERT, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Wednesday, November 10, 2010, before the Honorable Edward E. Guido, Judge. Present for the Plaintiff Timothy L. Salvatore, Esquire, and present for the Defendant was Seth T. Black, Esquire. This is a rear-end collision in which Defendant admits liability. The only issue to be determined by the jury are the nature and extent of the Plaintiff's injuries. The parties indicate the case will take two to two and one half days to try. Plaintiff's counsel is attached to the Superior Court on Tuesday, December 7, 2010. Therefore, they would like the case to start first thing on Wednesday, December 8, 2010. Defense counsel would prefer to pick the jury on Wednesday because his client is from Virginia. However, they could be available to pick on Monday if necessary. There are no complicated legal issues. -a z Settlement is unlikely since the Defendant is negctia g s^.°7 backwards. V -: By the Cour Edward E. Guido, J. Timothy L. Salvatore, Esquire Seth T. Black, Esquire For the Plaintiff For the Defendant srs Court Administrator F OF THELP FILED- ROTHOFFICE 2010 DEC -7 AM 8: 4 6 CUMBERLAND CUUNTy PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff, CIVIL DIVISION NO. 08 - 7090 V. ELIZABETH A. SCHOPPERT, Defendant. MOTION IN LIMINE TO PRECLUDE DENTAL CLAIMS (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 Seth T. Black, Esquire Pa. I.D. #203075 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #16835 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff, CIVIL DIVISION V. ELIZABETH A. SCHOPPERT, Defendant. NO. 08 - 7090 (Jury Trial Demanded) MOTION IN LIMINE TO PRECLUDE DENTAL CLAIMS AND NOW, comes the Defendant, Elizabeth A. Schoppert, by and through her counsel, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and files the following Motion in Limine and in support thereof avers as follows: BACKGROUND FACTS 1. This matter arises from an automobile accident where personal injuries have been alleged. 2. Part of the personal injuries alleged to have been a result of the automobile accident are dental injuries. 3. On December 3, 2010, the depositions for use at trial of Michael P. Mendelson, D.D.S. and Steven B. Fisher, D.D.S. were completed. 4. On December 6, 2010, the transcripts from said depositions were produced. 5. The Defendant now files this Motion in Limine to preclude the recovery of dental injuries as there is no expert testimony made to a reasonable degree of medical certainty relating the alleged injuries to the auto accident. MOTION IN LIMINE 6. Pennsylvania law requires expert medical testimony to establish a casual connection between alleged injuries and a traumatic event. Smith v. German, 253 A.2d 107 (Pa. 1969). 7. Further, Pennsylvania Law requires that expert testimony be employed to explain to the jury the complexities of injuries to the human body as it is outside the knowledge of the average layperson. Pa.R.E. 702; Lambert v. Soltis, 221 A.2d 173 (Pa. 1966); Smith v. Yohe, 194 A.2d 167 (Pa. 1963). 8. In this case, the Plaintiff retained both Drs. Mendelson and Fisher to testify on her behalf regarding her dental treatment following the accident and the cause of her dental injuries as required by law. 9. Both Doctors were asked to give their opinion within a reasonable degree of medical certainty unless they stated otherwise. 10. Dr. Fisher gave no testimony regarding the cause of the Plaintiffs alleged dental injuries, whatsoever. 11. In fact, the automobile accident is not mentioned in Dr. Fisher's testimony at all. A true and correct copy of Dr. Fisher's deposition transcript is attached hereto as Exhibit "A." 12. Dr. Mendelson, however, was asked whether the accident was the cause of the Plaintiffs alleged injuries. 13. In response, he testified: You know, I can't say with any certainty. You know, she came in, I think it was a week or tow after the accident. The tooth had been fine, everything seemed to be healthy, it seemed to be holding in there just fine. She handed me the tooth. To knock something out like that takes a little bit of trauma. So I have to assume that she was in some kind of trauma to break the tooth off like that. I'll take her word that it came out during the accident. But I'm not sure any other thing that would have knocked it out. See page 14, line 23 of Dr. Mendelson's deposition transcript attached hereto as Exhibit "B." 14. As indicated above, Dr. Mendelson was to testify within a reasonable degree of medical certainty unless otherwise stated. See Exhibit "B" at page 6, line 25. 15. Prior to giving his opinion on causation, Dr. Mendelson stated "You know, I can't say with any certainty" which is not only "otherwise stating" as instructed but is clearly not within a reasonable degree of medical certainty. 16. Since Dr. Mendelson did not testify to a degree of medical certainty as required by law, his opinion on those matters should not be heard by the jury at the time of trial. 17. Further since Dr. Mendelson's stricken opinion is the sole opinion on the causation of the Plaintiffs dental injuries, the Plaintiffs claims for the same cannot be maintained. WHEREFORE, the Defendant, Elizabeth A. Schoppert, respectfully requests that this Honorable Court enter the attached Order striking Dr. Mendelson's opinion regarding the causation of the Plaintiffs dental injuries thereby precluding any recovery of the same at the time of trial. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. Semi T.`131ack, Esquire Counsel for Defendant x IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Civil Action Law Plaintiff . vs. No. 2008-7090 ELIZABETH A. SCHOPPERT, Defendant Jury Trial Demanded Videotape Deposition of: STEVEN B. FISHER, DDS Taken by Plaintiff Date December 3, 2010; 11:14 a.m. Place 4824 Trindle Road Mechanicsburg, Pennsylvania Before Gail D. McLucas, Notary Public Registered Professional Reporter - and - Craig Ashway, Videographer APPEARANCES: KATHERMAN, BRIGGS & GREENBERG, LLP By: TIMOTHY L. SALVATORE, ESQ. For - Plaintiff SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP By: SETH T. BLACK, ESQ. For - Defendant a 21 I N D E X WITNESS STEVEN B. FISHER, DDS Direct By Mr. Salvatore 4 By Mr. Black 10 EXHIBITS Fisher Deposition Exhibit Numbers 1 Two-page Curriculum Vitae 2-A Letter to Dr. Michael Mendelson from Steven B. Fisher, DDS, dated 8/25/2009 2-B Letter to Dr. Michael Mendelson from Steven B. Fisher, DDS, dated 3/3/2009 2-C Letter to Dr. Michael Mendelson from Steven B. Fisher, DDS, dated 12/8/2008 2-D Letter to Mr. Timothy Salvatore from Steven B. Fisher, DDS, dated 10/23/2008 2-E Letter to Dr. Mike Mendelson from Steven B. Fisher, DDS, dated 7/14/2008 2-F Dental record 2-G Dental record 2-H Dental record 2-I Letter to Doctor Michael Mendelson from Steven B. Fisher, DDS, dated 7/29/2010 2-J Dental record Marked Identified 3 5 3 10 3 10 3 10 3 10 3 10 3 10 3 10 3 10 3 10 3 10 Cross Redirect Recross Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived. (Fisher Deposition Exhibits #1, #2-A, #2-B, #2-C, #2-D, #2-E, #2-F, #2-G, #2-H, #2-I and #2-J marked for identification) MR. ASHWAY: My name is Craig Ashway. I represent Video Images, 155 Wynshire Drive, Red Lion, Pennsylvania. Today's date is December 3rd, 2010. The time of day is 11:14 a.m. This deposition was videotaped at 4824 Trindle Road, Mechanicsburg, Pennsylvania. The caption of the case is Strohecker versus Schoppert. The name of the witness is Steven B. Fisher, DDS. This deposition is being videotaped on behalf of plaintiff. Will counsel introduce themselves? MR. SALVATORE: Tim Salvatore for Dian Strohecker. MR. BLACK: Seth Black on behalf of Beth Schoppert. MR. ASHWAY: Will the court reporter identify herself and swear in the witness? Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. MCLUCAS: My name is Gail MCLucas with the court reporting firm of Filius & McLucas. STEVEN B. FISHER, DDS, called as a witness, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SALVATORE: Q. Doctor, would you please tell the jury what your profession is? A. I'm a periodontist, a specialty in dentistry. Q. And how did you become qualified as a periodontist? A. I graduated from dental school and I did a residency in periodontics. Q. When did you graduate from dental school? A. 1975. Q. When did you do your residency in periodontics? A. 1976 to 1978. Q. And do you currently practice periodontics? A. I do. Q. And where do you practice? A. I practice for a firm called Periodontal Associates, mainly in Harrisburg, 3825 Linglestown Road, in Harrisburg. Q. How long have you been practicing there? A. 32 years. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/ Salvatore - Steven B. Fisher, DDS 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Today your deposition is being takers at Dr. Mendelson's office. Correct? A. Correct. Q. As a matter of convenience. Could I have you look over what's been marked as Exhibit Number 1 to your deposition. Does that appear to be a current copy of your curriculum vitae? A. Yes, it does. Q. And in the course of your practice, do you perform dental extractions? A. Yes. Q. And do you perform implant procedures? A. Yes, we do. Q. What percentage of your practice is devoted to those two types of procedures? A. Probably now, probably 30 to 40 percent of our practice is implants and implant procedures. Q. Can you approximate for us how many such procedures you might perform in a year? A. We probably, I probably place 500 implants a year. MR. SALVATORE: At this time I'd offer Dr. Fisher as an expert in dentistry and periodontics. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Direct/Salvatore - Steven B. Fisher, DDS 61 MR. BLACK: No objections. BY MR. SALVATORE: Q. Doctor, a couple other housekeeping matters. Could I get you to briefly look over what has been marked as Exhibits 2-A through I to your deposition and verify that these are accurate copies of your records as they relate to treatment of Dian Strohecker. I'm sorry, it would be Exhibits 2-A through J. A. Yes, these are all copies of my records. Q. Thank you. And can we agree at the outset that any opinions you express today will be expressed within a reasonable degree of dental certainty unless you specifically state otherwise? A. Yes. Q. Thank you. Can you explain for us the course of care and treatment that Dian Strohecker followed with you? A. Okay. She originally presented in 2008 with a fractured Tooth Number 14, the upper left first molar. When I saw her, the crown that had previously been on this tooth was off, and she Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/ Salvatore - Steven B. Fisher, DDS 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was referred by her general dentist, Dr. Mendelson, to extract this tooth and eventually place an implant. The tooth was extracted on June 25th, 2008, at which time a small perforation was noted in the sinus. That was sealed and a bone graft placed in the extraction site. I then saw Dian for postop appointments, and on October 29, 2008, we took a CAT scan of the area to determine what would need to be done further in order to place an implant.. At that time it was determined that there was not adequate bone to place an implant without first raising her maxillary left sinus. That was done on February 11th, 2009. And that was allowed to heal and the implant was then placed March 10, 2010. The implant was allowed to heal for four months. And when I last saw Dian, which was July 28, 2010, the implant appeared to be solid and ready to be restored by her general dentist, Dr. Mendelson. Q. At that time did you refer her back to Dr. Mendelson? A. Yes, I did. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Direct/ Salvatore - Steven B. Fisher, DDS Q. Can you describe for us how the procedures that you're talking about are performed? A. Okay. Everything we do in our office is done under local anesthetic, so she was not put to sleep, it was all local. The extraction was relatively a simple extraction. The tooth was extracted. The bone was placed and there was some sutures. The sinus lift, which was done in February of 2009, was a little bit more involved, again done under local. But that is a more involved procedure in that the tissue was flapped in a larger area. A hole was made in the :bone, the sinuses raised, bone is placed into that area where the sinus had previously been, and then that's sutured. That will result in, more postoperative swelling, more postoperative discomfort. Again, that was allowed to heal for over a year, and then the implant was placed. Again, done under local. That is a less involved procedure. The gum is opened just a little bit, the implant is placed and the tissue sutured back over it. Q. Is the implant installed like installing a screw Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/ Salvatore - Steven B. Fisher, DDS 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in a piece of wood? A. It basically is. It is screwed into the bone. Q. You pre-drill a hole? A. Drill a hole and screw it in. Q. Following any of the procedures that you've described, is prescription pain medication required? A. Yes. Q. During all of the procedures? A. Yes. Q. From a patient perspective, which of the procedures creates the most discomfort? A. The sinus lift would be the most discomfort. Q. And what is the typical healing period for a sinus lift? A. Like I say, there's going to be some swelling, some bruising. So she was probably black and blue. Fortunately, we don't see them for two weeks after the postop. So, by that. time, the swelling is down, the bruising is done. We would typically have them take the day off, we do it, and possibly the next, day off for the sinus lift. For the other procedures, just the day off that we do it. Q. During this entire period of time up until you Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 ' 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Direct/ Salvatore - Steven B. Fisher, DDS 10 released her and returned her to Dr. Mendelson's care, was she essentially without a tooth? A. Yes, she was without a tooth. Q. And is the condition of the gum such that during the course of the treatment, that she had to a avoid chewing objects on that area? A. Certainly for the first week or so after each procedure, whether the extraction or the sinus lift or the implant placement, we would want her to chew as much as she could on the right side. It would be obviously painful for her to chew on the left side initially after the surgeries. Q. At this point, do you anticipate any further follow-up care from Dian? A. Not on my end, no. Q. Doctor, thank you very much. A. Sure. CROSS-EXAMINATION BY MR. BLACK: Q. Doctor, just real briefly. You talked about a few procedures that were undergone. All those procedures went well? A. Yes. Q. And she's healed fine to be discharged? A. As of July 28, 2010, yes. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Cross/Black - Steven B. Fisher 11 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Just briefly, you said she should avoid chewing on the left side after the sinus lift. Is that right? A. Yes. Q. Because she is missing a tooth at that point? A. Well, she wouldn't be able to chew because she's missing a tooth. So she has no -- she had no molars on the left side. Q. That's what I wanted to get at. A. So she would have difficulty chewing in either case. But even so, we would want her to try to stay away from that area, just because it's going to be sore. MR. BLACK: Thank vou, Doctor. That's all I have. MR. SALVATORE: Thank you very much. MR. ASHWAY: This videotaped deposition is now concluded. The time of day is 1_1:23 a.m. (The deposition concluded at 11:23 a.m.) Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 12 COMMONWEALTH OF PENNSYLVANIA ) SS COUNTY OF YORK I, Gail D. McLucas, Registered Professional Reporter and Notary Public in and for the Commonwealth of Pennsylvania and County of York, do hereby certify that the foregoing deposition was taken before me at the time and place hereinbefore set forth, and that it is the testimony of: STEVEN B. FISHER, DDS I further certify that said witness was by me duly sworn to testify the whole and complete truth in said cause; that the testimony then given was reported by me stenographically, and subsequently transcribed under my direction and supervision; and that the foregoing is a full, true and correct transcript of my original shorthand notes. I further certify that I am not counsel for or related to any of the parties to the foregoing cause, or employed by them or their attorneys, and am not interested in the subject matter or outcome thereof. Dated at York, Pennsylvania this 6th day of December 2010. ,4,J J - ff,&4-4C-4e(,4 Gail D. McLucas, Notary Public Registered Professional Reporter (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA. . . . . . . . . . . . . . . DIAN L. STROHECKER, Civil Action - Law Plaintiff . VS. No. 2008-7090 ELIZABETH A. SCHOPPERT, Defendant Jury Trial Demanded . . . . . . . . . . . . . . Videotape Deposition of: MICHAEL P. MENDELSON, DDS Taken by Plaintiff Date December 3, 2010; 10:06 a.m. Place 4824 Trindle Road Mechanicsburg, Pennsylvania Before Gail D. McLucas, Notary Public Registered Professional Reporter - and - Craig Ashway, Videographer APPEARANCES: KATHERMAN, BRIGGS & GREENBERG, LLP By: TIMOTHY L. SALVATORE, ESQ. For - Plaintiff SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP By: SETH T. BLACK, ESQ. For - Defendant 21 I N D E X WITNESS MICHAEL P. MENDELSON, DDS Direct Cross Redirect Recross By Mr. Salvatore 4 22 By Mr. Black 15 24 EXHIBITS Mendelson Deposition Marked Identified Exhibit Numbers 1 Curriculum Vitae 3 5 2-A Letter to "Dear Sirs" from 3 6 Michael P. Mendelson, DDS, dated 1/7/2007 2-B Dental record Page 5 3 6 2-C Dental record Page 4 3 6 3 Estimate of Dental Service to 3 13 be Performed, dated 8/5/2010 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived. (Mendelson Deposition Exhibits #1, #2-A, #2-B, #2-C and #3 marked for identification) MR. ASHWAY: My name is Craig Ashway. I represent Video Images, 155 Wynshire Drive, Red Lion, Pennsylvania. Today's date is December 3rd, 2010. The time of day is 10:06 a.m. This deposition was videotaped at 4824 Trindle Road, Mechanicsburg, Pennsylvania. The caption of the case is Strohecker versus Schoppert. The name of the witness is Michael P. Mendelson, DDS. This deposition is being videotaped on behalf of plaintiff. Will counsel introduce themselves? MR. SALVATORE: Tim Salvatore on behalf of Dian Strohecker. MR. BLACK: Seth Black on behalf of Beth Schoppert. MR. ASHWAY: Will the court reporter identify herself and swear in the witness? MS. McLUCAS: My name is Gail McLucas with Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 the court reporting firm of Filius & McLucas. MICHAEL P. MENDELSON, DDS, called as a witness, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SALVATORE: Q. Good morning, Doctor. What is your profession? A. I'm a general dentist. Q. How long have you been a general dentist? A. Since 1978, so, 32 years. Q. And this deposition is being recorded at your office. Correct? A. Correct. Q. How long have you been at this location? A. We've been here since 1991. So, 19 years. Q. Can you tell the jury a little bit about your professional qualifications, where you went to school to become qualified as a dentist. A. I graduated undergraduate school at Syracuse University in 1974. From there, I went to Temple University. It's now, I think the Kornberg School of Dentistry. I graduated in 1978 and passed my northeast regional boards and started practicing in Philadelphia. Q. Did you get any subsequent training? A. I have earned a fellowship from the Academy of Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 General Dentistry. I'm not sure what percentage of dentists do that, maybe 10 percent or something like that. So, not a whole lot. I also have a fellowship in the International Congress of Oral Implantologists, which is a lot less than that, even. Q. What are fellowships? A. Fellowships are additional training that you undertake to further your professionalism and knowledge of the, of your occupation in dentistry, so to speak. So, in order to earn a fellowship, I think you have to take, for the Academy of General Dentistry, I think it's something like 1500 continuing education hours and then you have to pass a comprehensive exam in order to earn that fellowship. Q. Doctor, I want to show you what has been marked as Exhibit Number 1 to your deposition. Is this a brief CV or curriculum vitae? A. That is accurate. MR. SALVATORE: At this time I offer Dr. Mendelson as an expert in dentistry. MR. BLACK: I have no questions and no objection. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. SALVATORE: Q. Doctor, you understand that you've been asked to testify concerning your patient, Dian Strohecker, particularly with regard to injuries that she sustained in a motor vehicle accident of December 22, 2006? A. Yes, I am. Q. And at one point you prepared, it looks like January 7th of 2007, you prepared a report concerning her injuries. I show you what's been marked as Exhibit Number 2. Is that an accurate copy of the report that you prepared concerning Dian's accident related injuries? A. Yes, it is. Q. And just a couple other housekeeping matters. I want to show you what have been marked as Exhibits 2-B and 2-C. And would you, please, verify that these are accurate copies of your treatment records concerning Dian Strohecker from February 19, 2002, through -- A. Yes, those are my treatment notes. Q. And is the end date on Exhibit B, it looks like August 5th of 2008? A. Yes, it is. Q. Can we agree at the outset of the deposition Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that any opinions you express will be expressed to within a reasonable degree of dental certainty unless did you specifically state otherwise? A. Yes. Q. Can you describe your doctor-patient relationship with Dian Strohecker in the course of her treatment over the years? A. Dian has been a patient in the office since 1984. So I've known her for, what does that come out to, 26 years. She's been a pretty reliable patient. Comes in pretty much every six months and we've done a lot of treatment over that time period. Q. Can you detail some of the specific treatment that she's had prior to December 22nd of 106 as it relates to her accident-related dental injury? A. In what regards? I'm not sure I understand the question. Q. I understand. Did she have a crown and root canal performed on a tooth? A. Okay. Can I look at my notes? Q. Absolutely. A. Tooth Number 14 had had a large, what we call an Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/ Salvatore - Michael P. Mendelson, DDS 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 amalgam restoration in it. The nerve had died -- let me find my notes on that -- in 1997, where we sent her to a specialist and they performed a root canal therapy. That was in August of 197. Because there was such a large restoration, the tooth was, had to be re-restored. And we put some posts in there and restored the tooth again with a large amalgam restoration. Then in 2002, we put a crown on there to further protect the tooth and strengthen it so that it would not fail or break out or whatever. And everything was fine until she showed up in January of 107 and basically handed the tooth to me, said that it was the result of an accident and that it had, because of the trauma, it had snapped out of her mouth. I looked at it and the tooth was no longer restorable because it pretty much had snapped off at the gum line. And the posts and the buildup which used to be in the tooth were now inside the crown, basically. I attempted to re-cement the crown, the core and the post back into the tooth. I said, We can see if this will work for you, but it Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 probably won't. We're probably looking at an extraction and an implant. There's no other way to really restore that area. And I believe that held in January. In February, she returned. We re-cemented it one more time. I said I really didn't think it was going to hold. And, yes, then she came back in March 1st. I guess, February 13th, we re-cemented it, and March 1st she came back and said she had swallowed the crown. So I think we sent her to the hospital to make sure that it had not gone into her lungs. And she had, I guess everything was fine, because I never heard anything about that. And basically at that point, there was no other way to restore the tooth. Q. Let me go back to some of the pre-accident treatment. In 2002 she had a crown put on the tooth? A. Correct. Q. Do you have any films that you can show the jury so that they understand what we're talking about? A. Sure. Q. And for my purposes and for the jury's purposes, Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/ Salvatore - Michael P. Mendelson, DDS 10 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can you tell us where Tooth Number 14 is located? A. Tooth Number 14 is the upper left first molar. She no longer had her wisdom teeth. Tooth Number 15 had been extracted previously. So that was the only molar she had up there on the upper left side. This is kind of a pretreatment X-ray. Let's do it this way. You can kind of see the root canals, which are these :little fillings that go up into the roots. The tooth is basically all filling material at that point, which has very little strength. Those things tend to break. So in order to try and add some longevity to the tooth, we put a crown on it, which is basically made out of porcelain and gold. The gold metal surrounds the whole tooth basically in a protective shell. Locks onto the whole circumference of the tooth, rather than within the tooth as a filling does. And that generally holds up a lot better, with a lot more strength. The porcelain is placed on it to make it look like a tooth, basically, but it's the gold that actually has the retentive qualities of it. Q. Are you able to show us a film that depicts her Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 Direct/ Salvatore - Michael P. Mendelson, DDS 11 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tooth after it was built up? A. If I have that. MR. BLACK: Just so we're clear. Are we talking about the buildup before the accident or after the accident? MR. SALVATORE: Before the accident. A. Well, I'm not sure you'll be able to tell the difference a whole lot. But that's basically a picture of the crown over the top of the tooth with the root canal. It just fits a little bit better. It's just a lot stronger than just a large silver filling in there. BY MR. SALVATORE: Q. Is that generally a long-term solution? A. They generally last about 20 to 25 years. Q. And this one had been, you installed this one in 2002? A. In 2002. Q. Had, prior to the motor vehicle accident in 2006, so between the time that the tooth, the crown was installed in 2002 and up until her motor vehicle accident of December 2006, had there been any notations in the course of your treatment of Dian that there were any problems with the crown or the tooth? Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 12 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. None that I was aware of. Q. When had she last had a prophylactic exam or a routine cleaning exam prior to the 2006 accident? A. I think the last time we had seen her before the accident was in June -- no, I'm sorry, February 20th of 106. Q. Now, jumping back ahead to March of 2007, when she came in and said she had swallowed the tooth, what was the course of treatment that was undertaken at that time? A. We were going to basically send her to a surgeon to evaluate the extraction of the tooth and the placement of an implant. Q. Was she referred to a surgeon? A. Yes, to a Dr. Fisher. Q. And has she, to your knowledge, completed her treatment now with Dr. Fisher? A. I believe he has completed treatment. So I believe he extracted the tooth. I think he had to perform a sinus lift surgery in order to get enough bone in there to place the implant properly, and I think he has placed the implant. Q. Has she returned to you for further treatment? A. We have not placed the final restoration in the Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/ Salvatore - Michael P. Mendelson, DDS 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implant as of yet. Q. what is the condition of her tooth at this time? A. I mean, I have no idea. I haven't seen her now for, I don't know when the last time I saw her. It was, I guess, October of 109. So. Q. And at that time she was not yet ready for -- A. For, yes, I don't think the implant was quite ready yet to be restored. And I think we've been waiting for a resolution of the financial picture before we undertook the final restoration on that implant. Q. Doctor, I'd like to show you what's been marked as Exhibit Number 3. Can you identify for us what that document is? A. That's the fee payment that we have for the final restoration. Q. And can you explain to us what the charges are and what the procedures themselves are to be performed yet? A. The implant is titanium, basically, screw that goes up into the bone. It's usually, up under the gum line inside the bone. So we need something called an implant abutment, which is a machined implant part that comes from the implant company that screws down into the Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/ Salvatore - Michael P. Mendelson, DDS 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implant. That is then built, that builds the tooth back up over the gum line, similar to a crown preparation that we would do on a regular crown. So we would screw that in, and then on top of that goes another porcelain to gold crown, similar that we had on the other tooth. And that gets cemented on top of this implant abutment. Q. What are the costs associated with the abutment and the crown? A. Our fee for the procedures, the abutment runs $809. And our crown fee is $967. Q. Once these final procedures are performed, will her tooth have been essentially restored? A. Yes, it should be restored, hopefully, for the rest of her life. So this is a lifetime restoration. Q. Doctor, one final question for you, just to be clear. Do you have an opinion with regard to the nature of the dental injury that. Dian suffered as a result of her motor vehicle accident? A. You know, I cant say with any certainty. You know, she came in, I think it was a week or two after the accident. The tooth had been fine, Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 1 ? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Direct/ Salvatore - Michael P. Mendelson, DDS 15 everything seemed to be healthy, it seemed to be holding in there just fine. She handed me the tooth. To knock something out like that takes a little bit of trauma. So I have to assume that she was in some kind of trauma to break the tooth off like that. I'll take her word that it came out during the accident. But I'm not sure any other thing that would have knocked it out. MR. SALVATORE: Doctor, thank you very much. MR. BLACK: Can we go off camera, please? MR. ASHWAY: Off the record at 10:22. MR. BLACK: Doctor, can I see your chart? You don't have to make copies, but I do want to take a peek at her previous records, if you don't mind. A. (Handing). MR. ASHWAY: Back on the record at 10:28. CROSS-EXAMINATION BY MR. BLACK: Q. Doctor, just a few brief questions about her prior history before the accident. She had some problems with Tooth Number 14 before the accident. Correct? A. Correct. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Cross/Black - Michael P. Mendelson, DDS 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And, in fact, she had some problems with the teeth adjacent to it and I guess that means Number 19 as well. Is that correct? A. Correct. Q. And that's directly below Tooth Number 14? A. Correct. Q. And it was suspected that she was a grinder. Is that right? A. I'd have to look back in my records. Q. I'm looking at 8/27/02. A. Oh, okay. Yes, we have a note regarding that. Q. And the other question I had for you, Doctor, you had said on direct that her last. exam before the accident was February 20, 106, and you had testified that she was a reliable patient, came every six months. Before the accident, I'm looking back, at least three times, it looks like it covers about a span of two years. You didn't actually, you weren't the dentist who actually saw her during those appointments. Is that correct? A. Dr. Foer saw her on February of 106 and the one before that, Dr. Foer saw her before that, also. Q. And you don't -- A. Actually I saw her in 104, yes. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Cross/Black - Michael P. Mendelson, DDS 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. And, Doctor, the other thing, I thought you testified you last saw her in October of 109 and the implant wasn't ready yet to put the cap on. Is that what you testified to? A. Okay. Actually that's not, yes, you're right. Actually it was August of 110, actually was the last time we saw her. Q. Okay. A. So, you're right. I was wrong, incorrect. And I think it was ready to be restored at that time. Q. I was going to say, it wasn't in yet in October of 09. Right? A. Right. But in August of 110, yes, it was, it would have been ready to be restored. MR. BLACK: That's all I have, Doctor. Thank you. MR. SALVATORE: Thank you very much. MR. ASHWAY: This videotape deposition is now concluded. The time of day is 10:30 a.m. (The deposition concluded at 10:30 a.m.) Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 18 COMMONWEALTH OF PENNSYLVANIA ) SS COUNTY OF YORK I, Gail D. McLucas, Registered Professional Reporter and Notary Public in and for the Commonwealth of Pennsylvania and County of York, do hereby certify that the foregoing deposition was taken before me at the time and place hereinbefore set forth, and that it is the testimony of: MICHAEL P. MENDELSON, DDS I further certify that said witness was by me duly sworn to testify the whole and complete truth in said cause; that the testimony then given was reported by me stenographically, and subsequently transcribed under my direction and supervision; and that the foregoing is a full, true and correct transcript of my original shorthand notes. I further certify that I am not counsel for or related to any of the parties to the foregoing cause, or employed by them or their attorneys, and am not interested in the subject matter or outcome thereof. Dated at York, Pennsylvania this 6th day of December 2010. Gail D. McLucas, Notary Public Registered Professional Reporter (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 V CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing MOTION IN LIMINE TO PRECLUDE DENTAL CLAIMS has been e-mailed by U.S. Mail to counsel of record, this 6th day of December, 2010. Timothy L. Salvatore, Esquire Katherman, Briggs & Greenberg 7 East Market Street York, PA 17401 SUMMERS, McDONNELL, HUDOCK, GUTHRIE &.SKEEL, P.C. Wh T. Black, Esquire Counsel for Defendant ?"? N C-n C7 teeny r'] ""t AJ -( ? Cr7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA " DIAN L. STROHECKER, NO.: 08-7090 Plaintiff VS. CIVIL ACTION - LAW ELIZABETH A. SCHOPPERT, Defendant JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION IN LIMINE TO PRECLUDE DENTAL CLAIMS Plaintiff, Dian L. Strohecker, by her attorneys, Katherman, Briggs & Greenberg, LLP., files this Answer to Defendant's Motion in Limine to Preclude Dental Claims, and states the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. No response required. 6. Admitted. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that Dr. Mendelson was called upon to testify concerning the causal relationship between Dian Strohecker's dental injury, a dislodged crown on tooth #14, and her motor vehicle accident of 12/22/2006. Dr. Mendelson is a general dentist. Dian Strohecker sought treatment from him for her damaged crown. In the course of his treatment - after determining that the crown could not be restored, Dr. Mendelson referred Dian Strohecker to Dr. Steven Fisher, a periodontist, for specific treatment of her damaged tooth, specifically for extraction of the # 14 roots, bone grafting, a sinus lift, and implantation of a post, so that he could later restore her tooth with a prosthetic. 9. Admitted. 10. Admitted. See number 8 above. 11. Admitted. 12. Admitted. 13. Admitted in part and denied in part. It is admitted that the quote included by Defendant is an accurate quote of part of Dr. Mendelson's testimony. It is denied that this statement is the only part of Dr. Mendelson's testimony concerning causation. Dr. Mendelson also identified a report that he authored, dated January 7, 2007, in which he addressed causation. See Mendelson TR Page 6, Line 8, and Exhibit 2 to Mendelson TR (attached as Exhibit "A"). In his report, Dr. Mendelson stated clearly that "[t]he force of the automobile accident caused the crown along with the post and buildup to break out from the tooth structure on tooth #14." Moreover, taken in it's proper context, Dr. Mendelson's testimony beginning at Mendelson TR Page 14, merely qualifies the basis of his opinion as relying on (1) the veracity of Dian's report 2 of how and when her crown had become dislodged - which she had related to him at the onset of treatment for her damaged tooth (See Mendelson TR Page 8, Line 13); (2) that Dian had not reported, and he had not found, any other problems with the tooth after the crown was installed in 2002 up until Dian sought treatment for the dislodged crown after her 12/22/06 accident (Mendelson TR Page 11, Line 9); and (3) that the crown would not have come off in the absence of trauma (Mendelson TR Page 15, Line 3 ). Dr. Mendelson can't say with absolute certainty because he must rely on the report of his patient and other circumstantial evidence. Nevertheless, the substance of Dr. Mendelson's testimony adequately establishes to within a reasonable degree of certainty that the crown on Dian Strohecker's tooth # 14 had become dislodged as a result of the accident. His opinion is not remotely speculative. 14. Admitted. 15. Denied. An expert's opinion must not be speculative, but it need not be expressed using magic words. The substance of the expert's opinion, taken as a whole, must rise to the level of reasonable certainty. Most importantly, the court must consider the substance of the expert's testimony in its entirety to determine if it is speculative. As recently stated by the Superior Court: Initially, we note that "[t]he admission of expert testimony is a matter of discretion [for] the trial court and will not be remanded, overruled or disturbed unless there was a clear abuse of discretion." Blicha v. Jacks, 2004 PA Super 448, 864 A.2d 1214, 1218 (Pa. Super. 2004). Indeed, admission of the disputed testimony "must be shown to have been not only erroneous but also harmful... Evidentiary rulings which did not affect the verdict will not provide a basis for disturbing the jury's judgment." Detterline v. D'Ambrosio's Dodge, Inc., 2000 PA Super 372, 763 A.2d 935,940 (Pa. Super. 2000) (quoting Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695, 707 (Pa. Super. 2000)). 3 We recognize, of course, that "to be competent, expert testimony must be stated with reasonable certainty." Peerless Dyeing Co., Inc. v. Industrial Risk Insurers, 392 Pa. Super. 434, 573 A.2d 541, 547 (Pa. Super. 1990). The purpose of this standard is not, however, to render proof needlessly difficult, but to avoid speculation under the rubric of "expert opinion." Accordingly, "[i]t is not enough to say that something could have happened. Anybody can guess. Expert testimony must assert that it is the professional opinion of the witness that the result in question came from the cause alleged." Woods v. Pleasant Hills Motor Co., 454 Pa. 224, 309 A.2d 698, 703 (Pa. 1973). Nevertheless, [i]n determining whether the expert's opinion is rendered to the requisite degree of certainty, we examine the expert's testimony in its entirety. Carrozza v. Greenbaum, 2004 PA Super 464, 866 A.2d 369, 379 (Pa. Super. 2004) (citation omitted). "That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty." Id. (citation omitted). Accordingly, an expert's opinion will not be deemed deficient merely because he or she failed to expressly use the specific words, "reasonable degree of medical certainty." See Commonwealth v. SSvotz, 562 Pa. 498, 756 A.2d 1139 (2000) (indicating that "[i]n this jurisdiction, experts are not required to use'magic words"' but, rather, "this Court must look to the substance of [the expert's] testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation"). Griffin v. Univ. of Pittsburgh Med. Ctr., 2008 PA Super 104, 950 A.2d 996, 1000 (Pa. Super. 2008) (quoting Vicari v. Spiegel, 2007 PA Super 316, 936 A.2d 503, 510- 11 (Pa. Super. 2007)). Consequently, an expert's "failure to state an opinion with such certainty need not be fatal if we could look to his testimony in its entirety and find that it expresses reasonable certainty." Peerless Dyeing Co., Inc., 573 A.2d at 547. Betz v. Erie Ins. ExchgWe, 2008 PA Super 221, P22, 957 A.2d 1244, 1258 (Pa. Super. 2008). See opinion attached at Exhibit "B." 16. Denied. 17. Denied. 4 Wherefore, Plaintiff requests that the Court deny Defendant's Motion in Limine. Date: Respectfully Submitted, KATHERMAN, By: Timothy L. Attorney ID 7 East Mark r, Esquire 77398 York, PA 17401 717-848-3838 Tele 717-854-9172 Fax Attorney for the Plaintiff 5 , LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Plaintiff VS. ELIZABETH A. SCHOPPERT, Defendant NO.: 2008-7090 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE On this day, the attached Plaintiffs Answer to Defendant's Motion in Limine to Preclude Dental Claims, was sent via FedEx delivery, as indicated below, to the following: Seth T. Black, Esquire Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 Facsimile: 717-920-9129 I certify that the foregoing is true and correct subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. KATHERMAN, BRIGGS & GREENBERG, LLP Date: V By: LLACe:LA a • a?kAj Deborah A. Attard, Paralegal 7 East Market Street York, PA 17401 717-838-3838 Tele 717-854-9172 Fax ????I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, Civil Action - Law Plaintiff . VS. No. 2008-7090 ELIZABETH A. SCHOPPERT, Defendant Jury Trial Demanded . . . . . . . . . . . . . . Videotape Deposition of: MICHAEL P. MENDELSON, DDS Taken by Plaintiff Date December 3, 2010; 10:06 a.m. Place 4824 Trindle Road Mechanicsburg, Pennsylvania Before Gail D. McLucas, Notary Public Registered Professional Reporter - and - Craig Ashway, Videographer APPEARANCES: KATHERMAN, BRIGGS & GREENBERG, LLP By: TIMOTHY L. SALVATORE, ESQ. For - Plaintiff SUMMERS, MCDONNELL, HUDOCK, GUTHRIE & SKEEL, LLP By: SETH T. BLACK, ESQ. For - Defendant - FILIUS & McLLICAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 21 I N D E X WITNESS MICHAEL P. MENDELSON, DDS Direct Cross Redirect Recross By Mr. Salvatore 4 22 By Mr. Black 15 24 EXHIBITS Mendelson Deposition Exhibit Numbers 1 Curriculum Vitae 2-A Letter to "Dear Sirs" from Michael P. Mendelson, DDS, dated 1/7/2007 2-B Dental record Page 5 2-C Dental record Page 4 3 Estimate of Dental Service to be Performed, dated 8/5/2010 Marked Identified 3 5 3 6 3 6 3 6 3 13 Filius & McLucas Reporting Service, Inc. HarrisburLy 717-236-0623 York 717-845-6418 PA 1-R00-'T;-QA77 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived. (Mendelson Deposition Exhibits #1, #2-A, #2-B, #2-C and #3 marked for identification) MR. ASHWAY: My name is Craig Ashway. I represent Video Images, 155 Wynshire Drive, Red Lion, Pennsylvania. Today's date is December 3rd, 2010. The time of day is 10:06 a.m. This deposition was videotaped at 4824 Trindle Road, Mechanicsburg, Pennsylvania. The caption of the case is Strohecker versus Schoppert. The name of the witness is Michael P. Mendelson, DDS. This deposition is being videotaped on behalf of plaintiff. Will counsel introduce themselves? MR. SALVATORE: Tim Salvatore on behalf of Dian Strohecker. MR. BLACK: Seth Black on behalf of Beth Schoppert. MR. ASHWAY: Will the court reporter identify herself and swear in the witness? MS. McLUCAS: My name is Gail McLucas with Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the court reporting firm of Filius & McLucas. MICHAEL P. MENDELSON, DDS, called as a witness, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SALVATORE: Q. Good morning, Doctor. What is your profession? A. I'm a general dentist. Q. How long have you been a general dentist? A. Since 1978, so, 32 years. Q. And this deposition is being recorded at your office. Correct? A. Correct. Q. How long have you been at this location? A. We've been here since 1991. So, 19 years. Q. Can you tell the jury a little bit about your professional qualifications, where you went to school to become qualified as a dentist. A. I graduated undergraduate school at Syracuse University in 1974. From there, I went to Temple University. It's now, I think the Kornberg School of Dentistry. I graduated in 1978 and passed my northeast regional boards and started practicing in Philadelphia. Q. Did you get any subsequent training? A. I have earned a fellowship from the Academy of Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatote - Michael P. Mendelson, DDS 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 General Dentistry. I'm not sure what percentage of dentists do that, maybe 10 percent or something like that. So, not a whole lot. I also have a fellowship in the International Congress of Oral Implantologists, which is a lot less than that, even. Q. What are fellowships? A. Fellowships are additional training that you undertake to further your professionalism and knowledge of the, of your occupation in dentistry, so to speak. So, in order to earn a fellowship, I think you have to take, for the Academy of General Dentistry, I think it's something like 1500 continuing education hours and then you have to pass a comprehensive exam in order to earn that fellowship. Q. Doctor, I want to show you what has been marked as Exhibit Number 1 to your deposition. Is this a brief CV or curriculum vitae? A. That is accurate. MR. SALVATORE: At this time I offer Dr. Mendelson as an expert in dentistry. MR. BLACK: I have no questions and no objection. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. SALVATORE: Q. Doctor, you understand that you've been asked to testify concerning your patient, Dian Strohecker, particularly with regard to injuries that she sustained in a motor vehicle accident of December 22, 2006? A. Yes, I am. Q. And at one point you prepared, it looks like January 7th of 2007, you prepared a report concerning her injuries. I show you what's been marked as Exhibit Number 2. Is that an accurate copy of the report that you prepared concerning Dian's accident related injuries? A. Yes, it is. Q. And just a couple other housekeeping matters. I want to show you what have been marked as Exhibits 2-B and 2-C. And would you, please, verify that these are accurate copies of your treatment records concerning Dian Strohecker from February 19, 2002, through -- A. Yes, those are my treatment notes. Q. And is the end date on Exhibit B, it looks like August 5th of 2008? A. Yes, it is. Q. Can we agree at the outset of the deposition Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that any opinions you express will be expressed to within a reasonable degree of dental certainty unless did you specifically state otherwise? A. Yes. Q. Can you describe your doctor-patient relationship with Dian Strohecker in the course of her treatment over the years? A. Dian has been a patient in the office since 1984. So I've known her for, what does that come out to, 26 years. She's been a pretty reliable patient. Comes in pretty much every six months and we've done a lot of treatment over that time period. Q. Can you detail some of the specific treatment that she's had prior to December 22nd of '06 as it relates to her accident-related dental injury? A. In what regards? I'm not sure I understand the question. Q. I understand. Did she have a crown and root canal performed on a tooth? A. Okay. Can I look at my notes? Q. Absolutely. A. Tooth Number 14 had had a large, what we call an Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 amalgam restoration in it. The nerve had died -- let me find my notes on that -- in 1997, where we sent her to a specialist and they performed a root canal therapy. That was in August of '97. Because there was such a large restoration, the tooth was, had to be re-restored. And we put some posts in there and restored the tooth again with a large amalgam restoration. Then in 2002, we put a crown on there to further protect the tooth and strengthen it so that it would not fail or break out or whatever. And everything was fine until she showed up in January of 107 and basically handed the tooth to me, said that it was the result of an accident and that it had, because of the trauma, it had snapped out of her mouth. I looked at it and the tooth was no longer restorable because it pretty much had snapped off at the gum line. And the posts and the buildup which used to be in the tooth were now inside the crown, basically. I attempted to re-cement the crown, the core and the post back into the tooth. I said, We can see if this will work for you, but it Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS , 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 probably won't. We're probably looking at an extraction and an implant. There's no other way to really restore that area. And I believe that held in January. In February, she returned. We re-cemented it one more time. I said I really didn't think it was going to hold. And, yes, then she came back in March 1st. I guess, February 13th, we re-cemented it, and March 1st she came back and said she had swallowed the crown. So I think we sent her to the hospital to make sure that it had not gone into her lungs. And she had, I guess everything was fine, because I never heard anything about that. And basically at that point, there was no other way to restore the tooth. Q. Let me go back to some of the pre-accident treatment. In 2002 she had a crown put on the tooth? A. Correct. Q. Do you have any films that you can show the jury so that they understand what we're talking about? A. Sure. Q. And for my purposes and for the jury's purposes, Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 10 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can you tell us where Tooth Number 14 is located? A. Tooth Number 14 is the upper left first molar. She no longer had her wisdom teeth. Tooth Number 15 had been extracted previously. So that was the only molar she had up there on the upper left side. This is kind of a pretreatment X-ray. Let's do it this way. You can kind of see the root canals, which are these little fillings that go up into the roots. The tooth is basically all filling material at that point, which has very little strength. Those things tend to break. So in order to try and add some longevity to the tooth, we put a crown on it, which is basically made out of porcelain and gold. The gold metal surrounds the whole tooth basically in a protective shell. Locks onto the whole circumference of the tooth, rather than within the tooth as a filling does. And that generally holds up a lot better, with a lot more strength. The porcelain is placed on it to make it look like a tooth, basically, but it's the gold that actually has the retentive qualities of it. Q. Are you able to show us a film that depicts her Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 11 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tooth after it was built up? A. If I have that. MR. BLACK: Just so we're clear. Are we talking about the buildup before the accident or after the accident? MR. SALVATORE: Before the accident. A. Well, I'm not sure you'll be able to tell the difference a whole lot. But that's basically a picture of the crown over the top of the tooth with the root canal. It just fits a little bit better. It's just a lot stronger than just a large silver filling in there. BY MR. SALVATORE: Q. Is that generally a long-term solution? A. They generally last about 20 to 25 years. Q. And this one had been, you installed this one in 2002? A. In 2002. Q. Had, prior to the motor vehicle accident in 2006, so between the time that the tooth, the crown was installed in 2002 and up until her motor vehicle accident of December 2006, had there been any notations in the course of your treatment of Dian that there were any problems with the crown or the tooth? Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 12 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. None that I was aware of. Q. When had she last had a prophylactic exam or a routine cleaning exam prior to the 2006 accident? A. I think the last time we had seen her before the accident was in June -- no, I'm sorry, February 20th of 106. Q. Now, jumping back ahead to March of 2007, when she came in and said she had swallowed the tooth, what was the course of treatment that was undertaken at that time? A. We were going to basically send her to a surgeon to evaluate the extraction of the tooth and the placement of an implant. Q. Was she referred to a surgeon? A. Yes, to a Dr. Fisher. Q. And has she, to your knowledge, completed her treatment now with Dr. Fisher? A. I believe he has completed treatment. So I believe he extracted the tooth. I think he had to perform a sinus lift surgery in order to get enough bone in there to place the implant properly, and I think he has placed the implant. Q. Has she returned to you for further treatment? A. We have not placed the final restoration in the Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 13 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implant as of yet. Q. What is the condition of her tooth at this time? A. I mean, I have no idea. I haven't seen her now for, I don't know when the last time I saw her. It was, I guess, October of '09. So. Q. And at that time she was not yet ready for -- A. For, yes, I don't think the implant was quite ready yet to be restored. And I think we've been waiting for a resolution of the financial picture before we undertook the final restoration on that implant. Q. Doctor, I'd like to show you what's been marked as Exhibit Number 3. Can you identify for us what that document is? A. That's the fee payment that we have for the final restoration. Q. And can you explain to us what the charges are and what the procedures themselves are to be performed yet? A. The implant is titanium, basically, screw that goes up into the bone. It's usually up under the gum line inside the bone. So we need something called an implant abutment, which is a machined implant part that comes from the implant company that screws down into the Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 14 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implant. That is then built, that builds the tooth back up over the gum line, similar to a crown preparation that we would do on a regular crown. So we would screw that in, and then on top of that goes another porcelain to gold crown, similar that we had on the other tooth. And that gets cemented on top of this implant abutment. Q. What are the costs associated with the abutment and the crown? A. Our fee for the procedures, the abutment runs $809. And our crown fee is $967. Q. Once these final procedures are performed, will her tooth have been essentially restored? A. Yes, it should be restored, hopefully, for the rest of her life. So this is a lifetime restoration. Q. Doctor, one final question for you, just to be clear. Do you have an opinion with regard to the nature of the dental injury that Dian suffered as a result of her motor vehicle accident? A. You know, I can't say with any certainty. You know, she came in, I think it was a week or two after the accident. The tooth had been fine, Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Direct/Salvatore - Michael P. Mendelson, DDS 15 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 everything seemed to be healthy, it seemed to be holding in there just fine. She handed me the tooth. To knock something out like that takes a little bit of trauma. So I have to assume that she was in some kind of trauma to break the tooth off like that. I'll take her word that it came out during the accident. But I'm not sure any other thing that would have knocked it out. MR. SALVATORE: Doctor, thank you very much. MR. BLACK: Can we go off camera, please? MR. ASHWAY: Off the record at 10:22. MR. BLACK: Doctor, can I see your chart? You don't have to make copies, but I do want to take a peek at her previous records, if you don't mind. A. (Handing). MR. ASHWAY: Back on the record at 10:28. CROSS-EXAMINATION BY MR. BLACK: Q. Doctor, just a few brief questions about her prior history before the accident. She had some problems with Tooth Number 14 before the accident. Correct? A. Correct. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Cross/Black - Michael P. Mendelson, DDS 16 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And, in fact, she had some problems with the teeth adjacent to it and I guess that means Number 19 as well. Is that correct? A. Correct. Q. And that's directly below Tooth Number 14? A. Correct. Q. And it was suspected that she was a grinder. Is that right? A. I'd have to look back in my records. Q. I'm looking at 8/27/02. A. Oh, okay. Yes, we have a note regarding that. Q. And the other question I had for you, Doctor, you had said on direct that her last exam before the accident was February 20, '06, and you had testified that she was a reliable patient, came every six months. Before the accident, I'm looking back, at least three times, it looks like it covers about a span of two years. You didn't actually, you weren't the dentist who actually saw her during those appointments. Is that correct? A. Dr. Foer saw her on February of '06 and the one before that, Dr. Foer saw her before that, also. Q. And you don't -- A. Actually I saw her in '04, yes. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Cross/Black - Michael P. Mendelson, DDS 17 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. And, Doctor, the other thing, I thought you testified you last saw her in October of '09 and the implant wasn't ready yet to put the cap on. Is that what you testified to? A. Okay. Actually that's not, yes, you're right. Actually it was August of '10, actually was the last time we saw her. Q. Okay. A. So, you're right. I was wrong, incorrect. And I think it was ready to be restored at that time. Q. I was going to say, it wasn't in yet in October of 09. Right? A. Right. But in August of '10, yes, it was, it would have been ready to be restored. MR. BLACK: That's all I have, Doctor. Thank you. MR. SALVATORE: Thank you very much. MR. ASHWAY: This videotape deposition is now concluded. The time of day is 10:30 a.m. (The deposition concluded at 10:30 a.m.) Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 COMMONWEALTH OF PENNSYLVANIA ) SS COUNTY OF YORK I, Gail D. McLucas, Registered Professional Reporter and Notary Public in and for the Commonwealth of Pennsylvania and County of York, do hereby certify that the foregoing deposition was taken before me at the time and place hereinbefore set forth, and that it is the testimony of: MICHAEL P. MENDELSON, DDS I further certify that said witness was by me duly sworn to testify the whole and complete truth in said cause; that the testimony then given was reported by me stenographically, and subsequently transcribed under my direction and supervision; and that the foregoing is a full, true and correct transcript of my original shorthand notes. I further certify that I am not counsel for or related to any of the parties to the foregoing cause,. or employed by them or their attorneys, and am not interested in the subject matter or outcome thereof. Dated at York, Pennsylvania this 6th day of December 2010. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Gail D. McLucas, Notary Public Sppring Garden Twp., York County J _LC?_____ My&mmisslonExpires Nov. 22,2012 _it D. MCLUcas, Notary Public Registered Professional Reporter (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) - FILIUS & McLUCAS REPORTING SERVICE, INC. - Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 MENDELSON = FOER HARRISON Dr. Michael P. Mendelson A.A.S. F.A.G.D. F.LC.U.I. 1. Graduated from Syracuse University in 1974 with a B.S. in Psychology 2. Graduated from Temple University Kornberg School of Dentistry with a Doctor of Dental Surgery degree in 1978 3. Received a Fellowship from the Academy of General Dentistry in 1993 4. Received a Fellowship from the International Congress of Oral Implantology in 2004 V E66 A IV D E N T A L A S S O C I A T E S 4824 EAST TRINDLE ROAD O MECNANICSBURG. PENNSYLVANIA 170.55 D (717)761-&156 NDV-30-2010 13=07 QQ C) M-7 = MENDELSON = FOER HARRISON 0 p 1/7/2007 Dear Sirs, My patient Dian Strohecker was recently involved in an automobile accident. There was a post and buildup on tooth # 14 which was protected with a porcelain to gold crown. The force of the automobile accident caused the crown along with the post and buildup to break out from the tooth structure on tooth # 1.4. We relined the buildup and recemented the crown and post temporarily but it will not hold for long and no longer fits adequately. Because there was little tooth structure to begin with and more was lost due to the accident, the tooth is no longer restorable. My recommendation to Dian Strohecker was to refer her to an oral surgeon to extract the root tips and the placement of an endosseous implant. A sinus lift and bone graft may be necessary and we would leave that decision up to the oral surgeon. After the implant osseointegrates, we would then restore the implant with an implant abutment and porcelain to gold crown. I would estimate the fee with the oral surgeon to be about S 2000.00 and the fee for the implant abutment and crown in my office to be about $ 1500.00. If there is any additional information that you need, please do not hesitate to call my office. Sincerely, Michael P. Mendelson D.D.S. F.A.G.D. 116, CIA 6;j D E N T A L A S S O C I A T E S IM] 4824 EAST TRINDLE ROAD O MECHANICSBURG. PENNSYLVANIA 17050 O (717) 761=8056 0 WWW WHDENTAL.COM -I7;t'1!-_r- niA? I hfHr%t f/A•/...ry DATE NO. TREATMw,r NOTES D TE NO. TREATMENT NOTES 7 s _ ,v?? 5 . p 13 v 92- ?r .? - ` in ri 1/I wear ovt. e c . 4-? MENDELSON-FOER '1 ?M?G.1 4'•t '? 3-iy o7 ?"' ° ^^y 5evt VVlfd.(W t.U)Y r 24 E. T4A& Road Mechanicsburg, PA 17055 Urr .u? s ?` . i - %1 lydt? ' '..? ? :2t• . CZ?' 61\ CL, CIA_ t b W, i r•, W iv) Q-V1G? r DEPOSMN ?UXQXI C?' A1 12,3,16 64 /11 ORDER • k 198 BERG SYSTEMS I • t S v , . pETALUMA, CA DER CALL TOLL FREE: (BOO) BIBBERO (800-242-2378) OR FAX (800) 242-9330 ... ... nur. • ,n A 1 A.V 1 ' `? NAN StMXCj?-,. ti DATE NO. NOTES NO. ..' TREATMENT NOTES V L S H AR N-4 4wm ti v z . Mechanic '? -... vt .,.? lu X r ' OCIA S D& < C a as 114 cast "` .? F 7- s.rd LA? Ale ?i S brw kv r ?. Y Qm *-167 L v WA--\ Ac-.?,,, r s ?- -4-03 UL SLIAA t /Q OIL= N9 s 1 ?1 7 ???Pa' l?tfP,vtClr vi GLr s*,rr Jt •. _ ?(P o I7/o Mc M le er tv Ph 5) Ah DEPOStT1pN EXHIBIT At IRDER 128-B098 O 1880 BIBBERQ SYSTEMS IN aC C C. • PETALUMA, CA TO REORDER CALL TOLL FREE: (BOO) BIBBERO . MENDELSON FOER HARRISON Estimate of Dental Service To Be Performed for D1 A N ,S 1 00 CKE-R_ Treatment Plan _* Fee IMPLANT IVILTMEVT -*Iq 809, A8GCT ENE SUPPOR ej) CWajly #- / 4 " qW, QO 8/5/2010 Accepted Treatment Plan Total $ 17 71o, 00 Less Approximate Insurance ($ ) Patient Responsibility $ / p7.7&, °O 00 Less Pre payment courtesy ($ 0 9s , Total $ )- fd?? NOTE: Insurance payments are estimated. It is possible for actual payments to be higher or lower than expected. We will refund any overpayment or request that you pay the remaining balance. Treatment plans are valid for 60 days. Fee Payment Options 1. Cash in Advance or at the time service is rendered is customary in our office unless other financial arrangements have been made. 2. VISA or MASTERCHARGE, DISCOVER or AMERICAN EXPRESS 3. Wells Fargo Financial or Care Credit- 6 months interest-free financing or 12 months at 5% financing when approved with a short application. 4. Pre-Payment (Applicable to fees of $200 or more). The entire fee to be paid on or before the first appointment will afford a 5% savings. OR 5. Senior Citizen Discount - A 10%a courtesy for patients age 60 and over if payment is made at time of treatment. If the above plans are not satisfactory, please feel free to discuss alternate methods with the financial secretary or the doctor. It is the policy of this office to make financial arrangements BEFORE the first treatment appointment. We will willingly review these plans with you and answer any question you may have. Accounts outstanding more than 30 days from statement date will bear a late charge of 1.5% a month or 18% per year. DENTAL INSURANCE Dental Insurance is meant to be partial reimbursement of basic dental services. Every plan is different and very complicated. We will be happy to file all your dental claims and assist you in understanding your dental benefits. Dental Insurance is a contract between you, your employer, and your insurance company. Based upon information given to us by your insurance company, your estimated co-payment will be calculated and collected at the time service is rendered. D E N T A L A S S O C I A T E S 4824 TRINDLE ROAD •MECHANICSBURG, PENNSYLVANIA 17050 • (717) 761-8056 • www.Mfhdental.com N DD'YBR' `3 `1&41f/ro.) 112,1,1o c..I,v, ?X?'?i? ??/ / / // Page 1 0 LexisNexis? FOCUS - 6 of 39 DOCUMENTS RICHARD BETZ AND DONNA BETZ, Appellees v. ERIE INSURANCE EX- CHANGE, Appellant No. 3067 EDA 2007 SUPERIOR COURT OF PENNSYLVANIA 2008 PA Super 221; 957 A. 2d 1244; 2008 Pa. Super. LEXIS 2639 August 20, 2008, Argued September 22, 2008, Filed SUBSEQUENT HISTORY: Appeal denied by Betz v. Erie Ins. Exch., 2010 Pa. LEXIS 987 (Pa., May S, 2010) PRIOR HISTORY: [***1] Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Civil Division, No.: 1247 Septem- ber Term, 2005. Before PAPALINI, J. Betz v. Erie Ins. Exch., 2007 Phila. Ct. Com. P1. LEXIS 336 (2007) COUNSEL: Robert M. Runyon, III, Blue Bell, for appellant. Martin J. Beck, Philadelphia, for appellee. JUDGES: BEFORE: STEVENS, MUSMANNO and BENDER, JJ. OPINION BY BENDER, J. OPINION BY: BENDER OPINION [**1249] OPINION BY BENDER, J.: [*Pl] Erie Insurance Exchange appeals the judgment in favor of Richard Betz and Donna Betz (the Betzes), which awarded damages on the Betzes' claims for insurance coverage under a "Sinkhole Collapse" [**1250] endorsement to the Betzes' homeowners' insurance policy. Initially, Erie raises multiple claims of error in support of an award of a new trial. These claims include, inter alia, error in finding the Sinkhole Collapse endorsement legally ambiguous, ap- portioning the burden of proof to demonstrate coverage under the policy, admitting certain testimony of the Betzes' expert while restricting other testimony by Erie's expert, instructing the jury concerning exclusions under Erie's policy of insurance, and refusing special interrogatories to the jury. In addition, Erie asserts that the trial court should properly have entered judgment notwithstanding the verdict, and the court abused its discretion in denying Erie's motion for remittitur. Upon review, we [***2] find Erie's claims without merit. According, we affirm the judgment of the trial court [*P2] Litigation in this case follows extensive damage suffered to the Betzes' residence when, on September 18, 2004, rainfall from Hurricane Ivan infiltrated the substrate under their home, eroding support from beneath the base- ment floor and causing the cement to rupture. A portion of the cement slab of the basement floor subsided several inches and, over the course of the morning, water bubbled through a large crack at the point where the floor had sepa- rated, rising thirteen inches into the basement. Although the Betzes' basement was equipped with a sump pump, the pump failed due to a loss of electrical service occasioned by the storm and water continued to enter the house through the pump well over the course of the morning. The water receded by the end of the day and, upon further inspection, the 2008 PA Super 221, *; 957 A.2d 1244, **; 2008 Pa. Super. LEXIS 2639, *** Page 2 Betzes observed that the floors had dropped in the garage, the laundry room, and other parts of the basement and cracks had appeared in the rooms above the basement. Proposals for work and invoices for completed repairs documented the cost of repair to be $ 44,151.64. [*P3] Over the course of some thirty years [***3] prior to these events, the Betzes purchased various policies of insurance from Erie. In 2004, they purchased the "Extracover Insurance Policy" at issue here, an "all risk" policy that provided "property protection" and "home and family liability protection" subject to numerous exclusions. Among the losses excluded from coverage under the basic policy were "earth movement" and "water damage" attributable to vari- ous enumerated causes. This exclusion provides as follows: We do not pay for loss resulting directly or indirectly from any of the following, even if other events or happenings contributed concurrently, or in sequence, to the loss: 1. by earth movement, due to natural or manmade events, meaning earthquake including land shock waves, or tremors before, during, or after a Volcanic Eruption, mine subsidence, sinkhole, landslide, mud flow, earth sinking, rising, or shifting. Direct loss by Fire, Explosion, Sonic Boom, Theft or Breakage of Glass resulting from earth movement, mine subsidence, sinkhole, landslide, mudslide, mud flow, earth sinking, rising or shifting is covered. 2. by water damage, meaning: c. water below the surface of the ground. This includes water which exerts pressure [***4] on, or flows, seeps or leaks through any part of the building or other structure, in- cluding sidewalks, driveways, foundations, pavements, patios, swimming pools or decks. Extracoverage Insurance Policy, at 10, P2.c. (attached to Plaintiffs' Amended Complaint as Exhibit A). [*P4] [**1251] To supplement the coverage under the "Extracoverage" policy notwithstanding the exclusions, the Betzes purchased the "Sinkhole Collapse" endorsement under which they ultimately made their claim for coverage of the loss here. That endorsement specifies as follows: SINKHOLE COLLAPSE ENDORSEMENT DEFINITIONS Each word in bold type is used as defined in the policy. PROPERTY PROTECTION -- SECTION I OUR PROMISE For an additional premium, we will cover direct physical loss to covered property caused by: Sinkhole Collapse, meaning actual physical damage to covered property arising out of, or caused by, sudden settlement or collapse of the earth supporting such property and only when such settlement or collapse results from subterranean voids created by the action of water on limestone or similar rock for- mations. The Section I--Earthquake and other Earth Movement exclusion does not apply to Sinkhole Col- lapse. ALL OTHER PROVISIONS OF [***5] THE POLICY APPLY. Sinkhole Collapse Endorsement at 1. Additionally, the Betzes purchased a Limited Fungi, Wet or Dry Rot of Bacteria Coverage Endorsement, an Enhancement Endorsement, an Earthquake Coverage Endorsement, and a Replacement Cost Settlement on Personal Property Endorsement. Page 3 2008 PA Super 221, *; 957 A.2d 1244, **; 2008 Pa. Super. LEXIS 2639, *** [*P5] Following the events in question here, the Betzes made claims for coverage of personal property loss and loss caused by the failure of the basement sump pump to clear water from the basement, as well as a claim under the Sinkhole Collapse endorsement. Erie paid claims for personal property loss amounting to $ 4864.03, and loss caused by failure of the sump pump of $ 10,000. Nevertheless, it denied coverage under the Sinkhole Collapse endorsement, as- serting that there was no limestone or "similar rock formation" under the Betz home on which water could have acted to create a sinkhole and that the damage had instead been caused by the pressure of subsurface groundwater and therefore excluded as "water damage" under the foregoing exclusion 2.c. [*P6] In May 2006, the Betzes filed an Amended Complaint stating claims for Breach of Contract and Relief Pur- suant to the Declaratory Judgments Act. At the close of discovery, [***6] the parties filed cross-motions for summary judgment, which the trial court denied. Prior to trial, Erie filed a Motion in Limine to preclude the expert testimony of the Betzes' expert, Timothy Martin, P.E., on grounds that Martin's report failed to satisfy the Frye standard for admissi- bility, see Frye v. United States, 293 F. 1013 (D. C. Cir. 1923), and failed to state its conclusions with a "reasonable degree of scientific certainty." The trial court denied Erie's motion and, following a six-day trial, the jury rendered a verdict in favor of the Betzes in the amount of $ 48,415.3 8, which the court allowed the jury to record on a general ver- dict slip. Pursuant to Pa.R.C.P. 227.1, Erie filed a motion for post-trial relief requesting judgment notwithstanding the verdict, or in the alternative, a new trial or remittitur. The court denied Erie's motion in is entirety and Erie then filed this appeal raising the following questions for our review: 1. Whether the trial court abused its discretion and/or erred as a matter of law when it concluded that the "Sinkhole Collapse" endorsement contained within the Erie policy of [**1252] insurance was am- biguous as a matter of law[?] II. Whether the trial court [***7] abused its discretion and/or erred as a matter of law when it placed the burden of proof on Defendant Erie Insurance Exchange, requiring that Erie prove that the plaintiffs' damages were not caused by a sinkhole[?] III. Whether the trial court abused its discretion and/or erred as a matter of law when it admitted im- proper evidence from plaintiffs' expert, Timothy Martin, but restricted the testimony of defense expert Roy Hunt[?] IV. Whether the trial court abused its discretion and/or erred as a matter of law in its jury charge and verdict sheet[?] V. Whether the trial court abused its discretion and/or erred as a matter of law when it denied Erie Insurance Exchange's motion for judgment notwithstanding the verdict[?] VI. Whether the trial court abused its discretion and/or erred as a matter of law when it refused to mold the verdict to reflect the damages requested by Mr. and Mrs. Betz[?] Brief for Appellant at 6. [*P7] Erie's first, second, third, fourth, and sixth questions challenge the trial court's denial of Erie's motion for a new trial. Our review of such claims starts from the premise that "the decision whether to grant a new trial, in whole or in part, rests in the sound discretion [***8] of the trial court." Mendralla v. Weaver Corp., 703 A.2d 480, 485 (Pa. Su- per. 1997). Accordingly, our consideration of related questions is relatively deferential: Our standard of review in denying a motion for a new trial is to decide whether the trial court commit- ted an error of law which controlled the outcome of the case or committed an abuse of discretion. A new trial will be granted on the grounds that the verdict is against the weight of the evidence where the ver- dict is so contrary to the evidence it shocks one's sense of justice. An appellant is not entitled to a new trial where the evidence is conflicting and the finder of fact could have decided either way. Thomas Jefferson University v Wapner, 2006 PA Super 156, 903 A. 2d 565, 576 (Pa. Super. 2006) (quoting Ty-Button Tie, Inc. v. Kincel and Co., Ltd, 2002 PA Super 375, 814 A. 2d 685, 692 (Pa. Super. 2002)). Page 4 2008 PA Super 221, *; 957 A.2d 1244, **; 2008 Pa. Super. LEXIS 2639, *** [*P8] In support of its first question, Erie argues that the trial court erred in concluding that the "Sinkhole Col- lapse" endorsement in the Betzes' policy was ambiguous as a matter of law. Brief for Appellant at 16. The court based its determination upon the provision's definition of a sinkhole as a "sudden settlement or collapse of the earth" resulting from the [***9] action of water on limestone "or similar rock formations." The court found this reference insufficiently clear to put the policyholder on notice of what the endorsement actually covered in that "similar rock formations" are not defined or enumerated anywhere in the policy. Trial Court Opinion, 12/19/07, at 5-6. Erie contends that the refer- ence to "similar rock formations," if considered with specific reference to the language preceding it, renders the en- dorsement clear on its face. Id. at 17. Erie reasons that such a construction limits the coverage of the endorsement to three types of rock that have solubility characteristics similar to limestone, namely dolomite, gypsum, and halite, none of which were determined to be under the Betzes' home. Brief for Appellant at 18. We find Erie's position frivolous. [*P9] Insurance policies, like all contracts, are enforceable in accordance [**1253] with the language used and the scope of their coverage may be determined by the court as a matter of law. See Pappas v Unum Life Ins. Co. of Am., 2004 PA Super 310, 856 A. 2d 183, 187 (Pa. Super. 2004). "In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances [***10] ascribes the most reason- able, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished." Charles D. Stein Revocable Trust v. Gen. Felt Indus., Inc., 2000 PA Super 103, 749 A. 2d 978, 980 (Pa. Super. 2000). [*P10] Nevertheless, other contract principles have only limited application. Indeed, our Courts have observed on multiple occasions that "'normal' contract principles do not apply to insurance transactions." Drelles v. Mfr's. Life Ins. Co., 2005 PA Super 249, 881 A. 2d 822, 836 (Pa. Super. 2005). See also Pressley v. Travelers Prop. Cas. Corp., 2003 PA Super 58, 817 A.2d 1131, 1139 (Pa. Super. 2003) (quoting Collister v. Nationwide Life Ins. Co., 479 Pa. 579, 388 A. 2d 1346, 1351 (Pa. 1978) ("Contrary to Travelers' contention, 'normal contract principals [a]re no longer applicable in insurance transactions."). Rather, "[t]he proper focus regarding issues of coverage under insurance contracts is the rea- sonable expectation of the insured." ' Bubis v. Prudential Prop. & Cas. Ins. Co., 718 A.2d 1270, 1272 (Pa. Super. 1998) (quoting Frain v Keystone Ins. Co., 433 Pa. Super. 462, 640 A. 2d 1352 (Pa. Super. 1994)). Contrary to Erie's assertions here, see Brief for Appellant at 22, a court's focus upon the insured's "reasonable expectations" [***11] is not limited only to situations in which the insurance contract might be deemed ambiguous, see Pressley, 817 A.2d at 1140. In fact, our decisions have affirmed that "regardless of the ambiguity, or lack thereof, inherent in a given set of insurance documents" insurance transactions with non-commercial insureds are subject to a review of the totality of the underlying circumstances, Pressley, 817 A.2d at 1139 (quoting Tonkovic v. State Farm Mut. Auto Ins. Co., 513 Pa. 445, 521 A. 2d 920, 926 (Pa. 1985)). Although the parties' reasonable expectations remain "best evidenced by the lan- guage of the insurance policy[,]" Allstate Ins. Co. v McGovern, 2008 U.S. Dist. LEXIS 40611, 2008 WL 2120722, at *2 (E.D.Pa. May 20, 2008) a court's decision to look beyond the policy language is not erroneous under all circumstances, see Pressley, 817 A.2d at 1139. 1 "Because the insurer is in the business of writing insurance agreements, the recent trend in insurance cases has been away from strict contractual approaches towards a view that insurance policies (and other insurance contracts) are no longer private contracts in the traditional sense (if they ever were). The traditional contractual approach fails to consider the true nature of the [***12] relationship between the insurer and its insureds. Only through the recognition that insurance contracts are not freely negotiated agreements entered into by parties of equal status; only by acknowledging that the conditions of an insurance contract are for the most part dictated by the insurance companies and that the insured cannot "bargain" over anything more than the monetary amount of coverage purchased, does our analysis approach the realities of an insurance transaction." Pressley, 817 A. 2d at 1139 (quoting Collister, 388 A. 2d at 1353). [*P11] In any event, where the court finds the policy language to be ambiguous, as it did here, determination of the parties' intent poses a question of fact and extraneous evidence may be admitted to resolve it. See Shepard v. Tem- ple Univ., 2008 PA Super 93, 948 A. 2d 852, 857 (Pa. Super. 2008). A contract may be deemed ambiguous "[i]f, and only if, it is reasonably or fairly susceptible of differ- ent constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning." [**12541 Young [v Equitable Life As- sur. Soc.1, 350 Pa. Super. 247, 504 A. 2d [339,J 341 (Pa. Super. 2004). Policy language is not rendered [***13] ambiguous "if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends[.]" 2 Id. Mere 2008 PA Super 221, *; 957 A.2d 1244, **; 2008 Pa. Super. LEXIS 2639, *** disagreement between the parties on the meaning of language or the proper construction of contract terms does not constitute ambiguity. See id Pappas, 856 A. 2d at 187 (footnote inserted). Page 5 2 Of course, contracts may also suffer from latent ambiguity wherein language that appears clear is subject to more than one reasonable interpretation when applied to a particular set of circumstances. See Millers Capital Ins. Co. v Gambone Bros. Development Co., Inc., 2007 PA Super 403, 941 A. 2d 706, 712 (Pa. Super. 2007) (quoting Steuart v. McChesney, 498 Pa. 45, 444 A. 2d 659, 663 (Pa. 1982) ("[A] latent ambiguity arises from extraneous or collateral facts which make the meaning of a written agreement uncertain although the language thereof, on its face, appears clear and unambiguous."). Due to the patent ambiguity of the language at issue, however, we need not consider latent ambiguity here. Id ("A patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language [***141 used."). [*P121 In this case, the trial court deemed the language of Erie's policy ambiguous on its face, citing the endorse- ment's reference to "the action of water on limestone or similar rock formations." Trial Court Opinion, 12/19/07, at 5-6; 9. The court concluded that the provision's mention of "similar rock formations" is "reasonably susceptible of different constructions and capable of being understood in more than one sense." See id Consequently, the court construed the language of the endorsement in the Betzes' favor. We find no error in this determination, as the policy language fails to describe in what manner rock formations other than limestone must be "similar" to limestone and further, fails to name any type of rock other than limestone. Although Erie asserts that the similarity of "other rock formations" referenced by the provision necessarily relates to the solubility characteristics of the respective rocks, its argument derives from the testimony of expert witnesses whose opinions were unavailable to the insureds when they purchased the endorsement. [*P131 In any event, the opinions of Erie's experts do not express the only possible interpretation of the endorse- ment, or even the [***151 one most readily understood. Despite their assertions that sinkholes can occur only in the presence of four types of rock, nothing in the endorsement's "plain language" compels so limited a reading of the cover- age it makes available. Quite simply, the policy names only one type of rock when it could have named others. More- over, although as Erie contends, the language of the provision "inextricably link[s]" the indicated "similar rocks" to limestone, Brief for Appellant at 18, it does not compel a conclusion that the similarity to be shared relates to solubility characteristics. Rather, the provision establishes only that a sinkhole must result from the "action of water" on limestone or other rocks. It does not establish the manner in which those rocks must be similar to limestone. Thus, although the linkage of solubility characteristics Erie urges is not unreasonable, it does not constitute the only reasonable interpreta- tion of the language used. [*P141 Moreover, Erie's interpretation is self-serving and falls well outside the reasonable expectations of any purchaser of insurance. Following Erie's rationale, the language used would place the onus on the policyholder, al- though he paid a premium [***161 for extra coverage, to investigate [**12551 the geology underlying his property and educate himself on the mechanics of sinkholes merely to discern whether to purchase the endorsement. Given the ab- sence of a single interpretation compelling the coverage limitation Erie advocates, we find no basis for so reading a pro- vision that delineates extra coverage for an extra premium. Accordingly, we find no error in the trial court's recognition that the operative language of the "Sinkhole Collapse endorsement" is ambiguous as a matter of law, and we find no merit in Erie's first question. ' 3 Erie also argues that the trial court improperly applied a subjective standard to determine whether the Sinkhole Collapse endorsement was ambiguous. Brief for Appellant at 21. To support its claim, Erie cites the trial court's observation that "[t]his individual [Mr. Betz] is of a ninth grade education. He is not a geologist. And why should he be bound by the specific testimony of geology experts?" Id (citing N.T., 3/5/07, at 192). We recognize that the presence of ambiguity is generally measured by an objective standard. See Consulting Eng'rs, Inc. v. Ins. Co. of North America, 710 A.2d 82, 85 (Pa. Super. 1998) [***171 ("Only where reasonably intelligent men, considering the word in the context of the entire policy, would honestly differ as to its meaning, will an ambiguity be found."). Nevertheless, we do not find the trial court's reference a source of error. Regardless of whether the standard applied invokes the expectation of the "reasonable man" or subjectively defers to those of the actual purchaser of the policy, in this case, the ambiguity of the policy language is so pronounced as to support only the conclusion that the language is in fact ambiguous and, therefore, must be interpreted against Erie as the drafter. 2008 PA Super 221, *; 957 A.2d 1244, **; 2008 Pa. Super. LEXIS 2639, *** Page 6 [*P15] In support of its second question, Erie contends that the trial court erred in requiring Erie to bear the bur- den of proof to show that the Betzes' damages were not caused by a sinkhole. Brief for Appellant at 26. Erie argues that the basic policy it issued to the Betzes excluded coverage for damage resulting even in part from earth movement or the flowing, seeping, leeking, or exertion of pressure by subsurface water. Id at 27. Although Erie acknowledges that the Sinkhole Collapse endorsement effectively nullified aspects of those exclusions, it appears to contend that their exis- tence [***18] as part of the original policy and the status of the endorsement as an amendment impose a burden of proof on the Betzes as the insureds to establish coverage. Id at 26-27. Because the trial court declined to apportion the burden of proof in that manner and instead required Erie to prove the exclusion, Erie argues that the court committed legal error. In this regard, Erie argues specifically that: [g]iven that the amendatory endorsement extended coverage only for a specifically defined cause of loss and removed that cause of loss from the exclusionary language of the main policy, the sinkhole en- dorsement can only be characterized as either a named peril coverage extension, an exception to a policy exclusion, or both. However, under either characterization the [Betzes] should bear the burden of proving a sinkhole collapse in order to trigger the application of the endorsement, and as such, the trial court erred in exempting [the Betzes] from doing so. Brief for Appellant at 28. [*P16] In support of its contention that the Betzes, as insureds, must bear the burden of showing coverage, Erie analyzes one case that applies coverage under a named peril coverage extension and one that applies an exception [***19] to a policy exclusion. Id at 28-29 (citing Allen v. Ins. Co. of North America, 175 Pa. Super. 281, 104 A.2d 191, 192 (Pa. Super. 1954) and Lower Paxton Twp. v United States Fid & Guar. Co., 383 Pa. Super. 558, 557 A.2d 393, 399 (Pa. Super. 1989) (respectively)). In analyzing these cases, however, Erie does not fully reconcile the [**1256] fact that the policy it issued to the Betzes was an "all-risks" policy that by definition "covers every kind of insurable loss except what is specifically excluded."' BLACK'S LAW DICTIONARY 815 (8th ed. 2004); see also Miller v Boston Ins. Co., 420 Pa. 566, 218 A.2d 275, 278 (Pa. 1966) ("[A] policy against 'all risks,' ... ordinarily cov- ers every loss that may happen, except by the fraudulent acts of the insured."). Nor, in asserting technical distinctions between coverage extensions and exclusions, does Erie acknowledge the long standing mandate of our jurisprudence that all portions of an insurance contract must be read together. Indeed, its argument appears to treat the point in the policy at which the exclusion appears as the dispositive element in determining where the burden of proof must rest to show whether an event is covered. Under Erie's construct, it would appear that if an exclusion appears [***20] in the language of the primary policy, the burden rests on the insured to establish coverage even if the insured later purchases an endorsement that nullifies the terms of that exclusion. This distinction, which seeks to redirect the burden of proving coverage depending upon whether and when the endorsement is purchased poses an artificial distinction that cannot be squared with the rules governing interpretation of contracts, the reasonable expectations of the insured, or the legal basis of an "all-risks" policy. 4 Neither of the cases Erie cites involved an "all-risks" policy. In Allen, the plaintiff made a claim under a pol- icy of fire insurance, while in Lower Paxton Township, the township sought recovery for damage suffered to a third party under a general liability policy. Moreover, in Lower Paxton Township, this Court disposed of the appeal on the basis of the lack of ambiguity in the language of the underlying policy. Accordingly, we find nei- ther of these cases compelling in their consideration of any issue before us on the question of burden of proof. [*P17] Our Supreme Court has long recognized that "it is a necessary prerequisite to recovery upon a policy for the insured to show a [***21] claim within the coverage provided by the policy." Miller, 218 A.2d at 278. Neverthe- less, "[a] defense based on an exception or exclusion in a policy is an affirmative one, and the burden is cast upon the defendant to establish it." Id. Interpreting Miller, this Court has recognized that "[i]n an action based upon an 'all risks' insurance policy, the burden is upon the insured to show that a loss has occurred, thereafter, the burden is on the insurer to defend by showing that the loss falls within a specific policy exclusion." Wexler Knitting Mills v. Atlantic Mut. Ins. Co., 382 Pa. Super. 405, 555 A.2d 903, 905 (Pa. Super. 1989) (citing Miller, 218 A.2d at 278) (emphasis added). [*P181 Although Erie's argument acknowledges Wexler and Miller, it construes their language to require not that the insured must demonstrate a "loss," as Wexler requires, but that the insured must instead demonstrate coverage under the terms of the policy, Brief for Appellant at 26, such that if an exclusion appears in the form contract, the insured is automatically denied coverage because he can show no entitlement to it and the insurer is relieved of any obligation to 2008 PA Super 221, *; 957 A.2d 1244, **; 2008 Pa. Super. LEXIS 2639, *** Page 7 prove an affirmative defense. Such an analysis applies Miller's [***221 language far too expansively and openly con- tradicts our holding in Wexler. Regardless of whether the loss in question is cognizable under the language of the basic policy or under an endorsement purchased separately, that loss is "a claim within the coverage provided by the policy." Miller, 218 A. 2d at 278. So long as reasonable people could conclude that the claimed loss is covered by language any- where in the policy or the amendatory endorsements, [**12571 the insured has carried his burden as concerns an "all- risks" policy. Any other construct would merely encourage insurers to orchestrate a shell game of exclusions and excep- tions to exclusions (or "named peril coverage extensions"), Brief for Appellant at 28, in full recognition that the ultimate risk of loss would rest upon the insured notwithstanding his payment of an extra premium for coverage he reasonably thought he was getting. [*P191 Such a conclusion is consistent with authority elsewhere, which recognizes that as concerns first-party claims, the burden of proof under an "all-risk" policy shifts to the insured only after the insurer has established some exclusion enumerated by the contract terms. See Strubble v United Services Auto. Assn., 35 Cal. App. 3d 498, 110 Cal. Rptr. 828, 832 (Cal. App. 1973) [***23] (concluding that insurer had the burden of showing that loss to insureds was proximately caused by the excluded peril of earth movement other than earthquake, which was an included peril); see also Travelers Cas. & Sur. Co. v Superior Court, 63 Ca1.App.4th 1440, 1453-55, 75 Cal. Rptr.2d 54, 62-63 (Cal. App. 1998) (limiting rule in Strubble to first party claims). In Travelers, the California Court of Appeals explained Strubble, and recognized the limitation it imposes on the burden of proof to be assigned the insured making a first party claim under an "all-risks" policy: [T]he court in Strubble determined that an insured who makes a first party claim under an all-risks homeowners policy has no burden ofproof In effect, there is a presumption of coverage, which the in- surer has the burden to rebut by proving that the claim falls within a specific policy exclusion. Since the insured has no initial burden to prove that his first party claim falls within the basic scope of coverage of the all-risks policy, it follows, under Strubble, that the insured has no burden to prove that coverage is restored by an exception to the exclusion. Thus, because only the insurer had a burden of proof [***24] regarding coverage under the all-risks homeowners policy at issue in Strubble, it was the insurer who was required to negate the earthquake exception to the earth movement exclusion. Id. We find the California courts' treatment of the burden of proof consistent with our own as enunciated in Wexler. We conclude accordingly that the trial court did not err in apportioning the burden of proof at trial. ' 5 To counter the Betzes' reliance on Strubble, Erie cites as persuasive authority the memorandum opinion and findings of fact and conclusions of law of a magistrate judge in the United States District Court for the Eastern District of Pennsylvania. Id. (citing S.R.P. Management Corp. v. Seneca Ins. Co., 2008 U.S. Dist. LEXIS 38651, 2008 WL 203966 (E.D.Pa. May 13. 2008)). Erie argues that this decision "soundly reasoned that once the insurer proved an excluded loss, the burden of proof falls squarely on the policyholder to establish that an exception to the exclusion provides coverage under the policy." Supplemental Brief of Appellant at 1. Of course, the authority Erie cites is not binding on this Court. Moreover, we find it no more compelling than the argument in Erie's original brief which, as discussed, supra, would [***251 merely empower insurers to manipulate the burden of proof by sleight of hand. [*P20] In support of its third question, Erie asserts that the trial court admitted improper testimony proffered by the Betzes' expert, Timothy Martin, while erroneously restricting the testimony of Erie's expert, Roy Hunt. Brief for Appellant at 31. In support of its claims concerning the Betzes' expert, Erie contends that his testimony failed to satisfy the prerequisites for admissibility established in Frye v United States, 293 F. 1013, 1014 (D. C. Cir. 1923), and that, accordingly, the trial court erred in denying Erie's motion in limine to exclude his testimony in its [**12581 entirety. Brief for Appellant at 31-32. In addition, Erie contends that the expert's opinions fell below the requisite standard of a "reasonable degree of scientific certainty" in that two references indicated "possible" causes of the collapse of the floor in the Betzes' basement. Id. at 32-33. [*P211 Concerning Erie's first assertion, challenging compliance of the expert's opinion with the Frye standard, 6 Erie alleges that the Betzes failed to establish that their expert used any accepted methodology to reach his conclusions. Brief for Appellant at [***26132. This claim fails on two bases. First, Erie fails to suggest why the proposed testimony of the Betzes' expert constituted "novel scientific evidence." See Trach v Fellin, 2003 PA Super 53, 817 A.2d 1102, 1109 (Pa. Super. 2003) (concluding that Frye test to determine admissibility of expert testimony only applies when a r 2008 PA Super 221, *; 957 A.2d 1244, Page 8 **; 2008 Pa. Super. LEXIS 2639, *** party seeks to introduce novel scientific evidence). More importantly on this record, however, Erie failed entirely to pose any Frye-related argument to the trial court. N.T., 2/28/07, at 6-9. Indeed, Erie's motion in limine, as well as the argument it offered at trial, asserted that the expert's opinion was deficient because in certain passages, his report ex- pressed more than one possible cause for the collapse beneath the Betzes' house and did not consistently state his con- clusions "to a reasonable degree of scientific certainty." Id Because Erie raises its Frye-related claims for the first time on appeal, those claims are waived by operation of the Rules of Appellate Procedure. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Accordingly we decline to con- sider the merits of the related claims. 6 "The Frye [***271 standard is simply whether the party proffering ... novel scientific evidence has demon- strated that the principles and methodology the scientist employed has gained general acceptance in the relevant [scientific] community." A.J.B. v M.P.B., 2008 PA Super 39, 945 A.2d 744, 749 (Pa. Super. 2008). [*P221 Concerning Erie's second assertion, that the court erred in admitting the expert's testimony because his opinions fell below the requisite standard of a "reasonable degree of scientific certainty," we find no reversible error. Initially, we note that "[t]he admission of expert testimony is a matter of discretion [for] the trial court and will not be remanded, overruled or disturbed unless there was a clear abuse of discretion." Blicha v. Jacks, 2004 PA Super 448, 864 A.2d 1214, 1218 (Pa. Super. 2004). Indeed, admission of the disputed testimony "must be shown to have been not only erroneous but also harmful.... Evidentiary rulings which did not affect the verdict will not provide a basis for dis- turbing the jury's judgment." Detterline v. D'Ambrosio Is Dodge, Inc., 2000 PA Super 372, 763 A.2d 935, 940 (Pa. Su- per. 2000) (quoting Raid v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A. 2d 695, 707 (Pa. Super. 2000)). [*P231 We recognize, of course, that "to be competent, [***281 expert testimony must be stated with reasonable certainty." Peerless Dyeing Co., Inc. v. Industrial Risk Insurers, 392 Pa. Super. 434, 573 A.2d 541, 547 (Pa. Super. 1990). The purpose of this standard is not, however, to render proof needlessly difficult, but to avoid speculation under the rubric of "expert opinion." Accordingly, "[i]t is not enough to say that something could have happened. Anybody can guess. Expert testimony must assert that it is the professional opinion of the witness that the result in question came from the cause alleged." Woods v Pleasant Hills Motor Co., 454 Pa. 224, 309 A.2d 698, 703 (Pa. 1973). Nevertheless, [i]n [**12591 determining whether the expert's opinion is rendered to the requisite degree of certainty, we examine the expert's testimony in its entirety. Carrozza v Greenbaum, 2004 PA Super 464, 866 A. 2d 369, 379 (Pa. Super. 2004) (citation omitted). "That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty." Id (citation omitted). Accordingly, an expert's opinion will not be deemed deficient merely because he or she failed to expressly use the specific words, "reasonable degree [***291 of medical certainty." See Commonwealth v. Spot, 562 Pa. 498, 756A.2d 1139 (2000) (indicating that "[i]n this jurisdiction, experts are not required to use 'magic words"' but, rather, "this Court must look to the substance of [the expert's] testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation"). Griffin v Univ of Pittsburgh Med Ctr., 2008 PA Super 104, 950 A. 2d 996, 1000 (Pa. Super. 2008) (quoting Vicari v. Spiegel, 2007 PA Super 316, 936 A.2d 503, 510-11 (Pa. Super. 2007)). Consequently, an expert's "failure to state an opinion with such certainty need not be fatal if we could look to his testimony in its entirety and find that it expresses reasonable certainty." Peerless Dyeing Co., Inc., 573 A.2d at 547. [*P241 Upon review of the testimony offered by the Betzes' expert, we find its expression sufficiently clear and its conclusion sufficiently certain to satisfy the foregoing standard. On direct examination, the witness explained that the Betzes' home sits atop the Martinsburg Formation, an ancient deposit of sedimentary rock consisting of shale, silt stone, sandstone, silty limestone, and shaley lime. N.T., 3/1/07, at 101. He then explained [***30] how the action of water on those rock formations had gradually, over a period of centuries, created voids that allowed the earth under the Betzes' house to fall away, depriving the foundation slab of support and causing it to collapse under its own weight. Id at 105- 110. The portion of the testimony Erie cites in support of its assertion begins with cross-examination of the witness on the poor construction technique used in pouring the slab beneath the Betzes' home during which the witness recognized the inherent deficiency. N.T., 3/1/07, at 135-136. Following that discussion, Erie's counsel challenged the witness, char- acterizing his earlier opinion concerning the cause of the loss of support beneath the foundation as an attribution of cau- , . Page 9 2008 PA Super 221, *; 957 A.2d 1244, **; 2008 Pa. Super. LEXIS 2639, * * * sation to two different causes. The witness unequivocally disabused counsel of this premise, however, and opined that the purportedly different causes were, in fact, the same thing. The following exchange is illuminating: Q. Now this process that you talked about, basically the first scenario, that's essentially erosion, what you described, isn't it? A. Subsurface erosion. The transportation of any kind of material--any material in water is by defini- tion [***31] erosion. Q. And you also talked in scenario number two about the possibility of a sinkhole. A. Right. Q. The process you described in process number one is different and distinct from the process that you talked about in process number two, isn't it? A. No. Q. They're the same thing? A. They--yes. If I may, the voids created in a carbonate geology, in a limestone or dolomite, occur over hundreds [**1260] of thousands of years. It's the slow dissolution of the calcite mineral within the limestone. So there's these huge voids, and voids all over the place in the rock. As they become interconnected and find their way up to the rock surface and water is introduced from the ground surface or groundwater is already present, the soils start to migrate into these intercon- nected voids; i.e., erosion. And as this erosion continues to work its way up higher into the ground sur- face, at the point where it exposes itself, expresses itself at the ground surface, it's called a sinkhole. But a very integral part of the sinkhole process is subsurface erosion. Id. at 139-40. This exchange bears directly on Erie's claim here--and facially contradicts it. The expert attributed the damage suffered by the Betzes' home to [***32] one cause, not two. Accordingly, Erie's assertion that the expert's testi- mony failed to achieve the requisite degree of certainty because it offered divergent possibilities for the cause of the collapse erects a false premise that is, at best, contrived. The expert's testimony appears fully competent and nothing in Erie's argument establishes reversible error in the trial court's ruling to admit it. [*P25] Concerning the trial court's limitation of the testimony of Erie's own expert, Roy Hunt, Erie argues that the court abused its discretion in refusing to allow an opinion of whether two photographs supported his opinion of the cause of the damage suffered by the Betzes' home. Brief for Appellant at 34. Erie asserts that the two photographs showed water "spouting from cracks and bore holes in the basement in October 2005." Id. Hunt had opined that the damage at issue, which occurred in September 2004, resulted from a build-up of subterranean water pressure which, ostensibly, would not be a covered event under the sinkhole endorsement. Later, when counsel for Erie produced the photos in question, the court sustained the Betzes' objection on the ground that the photos were beyond the scope [***33] of the expert's report. We find no error in the court's ruling. Hunt offered a report concerning the cause of dam- age that occurred over a year prior to the date on which the photos in question were taken. The photos were not included in the report and the report does not establish how photos taken so long after the event in question could possibility es- tablish why that event occurred. Absent such a foundation, the very relevance of the photos is itself debatable. Accord- ingly, we find no merit in this claim. [*P26] In support of its fourth question, Erie contends that the trial court provided a charge that was vague and confusing and erred in failing to instruct the jury on the relevant coverage exclusions in the policy. Brief for Appellant at 38. Erie also contends that the court erred in failing to require the jury to answer special interrogatories as part of the verdict slip. Id. at 41. Concerning claims of error surrounding the court's charge to the jury, our Courts have often reaf- firmed the limits of appellate review: We will grant a new trial based on error in the court's charge if, upon considering all the evidence of record we determine that the jury was "probably misled" by the court's [***34] instructions or that an omission from the charge amounted to "fundamental error." Price v. Guy, 558 Pa. 42, 735 A. 2d 668, 671 (1999); see also Carpinet v. Mitchell, 2004 PA Super 197, 853 A. 2d 366, 371 (Pa. Super. 2004). Con- , 2008 PA Super 221, *; 957 A.2d 1244, Page 10 **; 2008 Pa. Super. LEXIS 2639, *** versely, "[a] jury instruction will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations." Cruz v. [**1261] Northeastern Hosp., 2002 PA Super 185, 801 A. 2d 602, 611 (Pa. Super. 2002). In accordance with this prescription, "all issues which are relevant to pleadings and proof may be- come the subject of jury instructions." Carpinet, 853,4.2d at 371. Although the court's instructions "should not exclude any theory or defense that has support in the evidence," McClintock v. Works, 716 A. 2d 1262, 1266 (Pa. Super. 1998), the court may charge "only on the law applicable to the factual pa- rameters of a particular case and it may not instruct the jury on inapplicable legal issues." Cruz, 801 A.2d at 611. Angelo v Diamonton1, 2005 PA Super 120, 871 A.2d 1276, 1279 (Pa. Super. 2005); see also Quinby v Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A. 2d 1061, 1069-70 (Pa. 2006). Accordingly, "[a] trial judge is not required to refer to the testimony of every witness in reviewing the evidence in the [***35] case nor refer to every contention made by counsel in his presentation to the jury." Finnerty v. Darby, 391 Pa. 300, 138 A.2d 117, 127-28 (Pa. 1958). [*P27] In this instance, Erie contends that the trial court erred in not reading the exclusions of the insurance policy to the jury verbatim. Brief for Appellant at 39. Erie argues that this omission, combined with the instruction of the court regarding Erie's burden of proof, "left [the jury] with the impression that, regardless of the evidence presented, Erie was bound to provide coverage for all of the Betz's [sic] damage." Id. Nevertheless, Erie fails to cite even a single source of authority that requires the court to recite policy exclusions. Moreover, we are aware of none. In point of fact, the court did read the Sinkhole Collapse endorsement and instructed the jury on Erie's contention that the loss the Betzes claimed was not covered under that endorsement. N.T., 3/6/07, at 202. In addition, Erie, during its case in chief, called claims adjuster Michael W. Free to read aloud the exclusions that Erie deemed applicable. N.T., 3/2/07, at 51-56, 61-62. Ac- cordingly, the jury was apprised of the specific language of the exclusions that Erie asserted and [***36] was instructed by the court on how to consider it. In view of the record compiled for the jury, coupled with the court's specific instruc- tion on Erie's theory of the case, including the Sinkhole Collapse endorsement, we find no support for an award of a new trial as Erie requests. [*P28] Erie's companion claim that the court issued a vague and confusing charge falls similarly wide of the mark. Erie argues that the court erred specifically in refusing to rephrase the language of "Addendum No. 17" to the charge, wherein the court instructed on its determination that the term "limestone or similar rock" appearing in the Sinkhole Collapse endorsement is ambiguous. Brief for Appellant at 40. Unfortunately, Erie cites no authority to support this section of its argument and, consequently, we deem its related assertion waived. See Pa.R.A.P. 2119(a); see also Estate of Lakatosh, 441 Pa. Super. 133, 656 A.2d 1378, 1381 (Pa. Super. 1995) (deeming claims of error waived where appel- lant failed to cite pertinent authority in support). Moreover, we note that the claim is without merit. A trial court has wide discretion in choosing the language of its instructions to the jury. See Janis v. AMP, Inc., 2004 PA Super 301, 856 A.2d 140, 147 (Pa. Super. 2004). [***37] So long as the resulting expression adequately conveys the required informa- tion, we will not deem it grounds for a new trial. See id. In this instance, the alleged flaw in the court's language amounts to no more than its failure to impose Erie's theory of the case. The court did not en in refusing to rephrase the instruction. [*P29] [**1262] In its final argument in support of this question, Erie raises the distinct issue of the court's re- fusal to provide special interrogatories to the jury upon which the jurors' findings could have been separated into more detail. Brief for Appellant at 41. Although Erie acknowledges that the use of special interrogatories in a given case is discretionary with the trial court, it argues that this case involves "several important and distinct issues" concerning which special interrogatories would have been appropriate. Brief for Appellant at 41-42. We find this claim unconvinc- ing. [*P30] "Generally, a trial judge may grantor refuse a request for specific findings on the basis of whether such would add to a logical and reasonable understanding of the issue." Walsh v Pennsylvania Gas & Water Co., 303 Pa. Super. 52, 449 A.2d 573, 577 (Pa. Super. 1982) (quoting Willinger v Mercy Catholic Medical Center, 482 Pa. 441, 393 A.2d 1188, 1190 n.4 (Pa. 1978)). [***38] Thus, where the evidence in the case is such that the use of special inter- rogatories may be helpful to the jury in understanding the issues for decision, a request for such special findings may be granted. Nevertheless, "[t]o permit the jury to return special findings, where they are unnecessary, can create misleading issues and defeat justice." Id (quoting Willinger, 393 A.2d at 1190 n. 4). 2008 PA Super 221, *; 957 A.2d 1244, **; 2008 Pa. Super. LEXIS 2639, *** Page 11 [*P311 In view of this limitation on the proper use of interrogatories, we find Erie's position perplexing. Erie ap- pears to contend that the court oversimplified the case in focusing the jury's attention on the Sinkhole Collapse en- dorsement as the pivotal element of the case, suggesting that exclusions in the body of its policy remained at issue. Brief for Appellant at 42. Ostensibly to redirect the jury's attention to those provisions of the policy, Erie offered the court a verdict sheet composed of 35 separate questions. Id Unfortunately, Erie offers no explanation of why so extensive a roster of questions was necessary or how it might have assisted the jury in any meaningful way. Recognizing the surplu- sage of Erie's submission, the court denied its request and rejected the interrogatories stating "it's [***391 like amazing that we would ask them that." N.T., 3/5/07, at 227. Given the prolixity of Erie's submission, we concur in the trial court's assessment. It did not err in refusing Erie's special interrogatories. [*P321 In support of its fifth question, Erie contends that the trial court erred in refusing to grant judgment not- withstanding the verdict (JNOV) on two bases. First, Erie contends that the undisputed evidence established that the cause of the damage the Betz property sustained was not in fact a sinkhole, but the shoddy construction technique used in pouring the basement slab on which the home was erected. Brief for Appellant at 44. Second, Erie contends that given that earth movement and water below the surface of the ground were agents in causing the collapse of the Betzes' basement, the collapse was excluded as a covered loss by the anti-concurrent cause provision in the earth movement exclusion of the basic policy. Id. at 48-50. We shall address these claims in sequence. Our scope of review with respect to whether JNOV is appropriate is plenary, as with any review of questions of law. Phillips v A-Best Products Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995). It is axio- matic that, "[t]here [***40] are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant." Moure v. [**12631 Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (1992) (citations omitted). To uphold JNOV on the first basis, we must review the record and conclude "that even with all the factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second [we] review the evidentiary record and [conclude] that the evidence was such that a verdict for the movant was beyond peradventure." Id When we review a motion for JNOV, we must consider the evidence in the light most favorable to the verdict winner, who must receive "the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor." Id (citing Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741, 745 (1977)). Any doubts must be resolved in favor of the verdict win- ner, and JNOV should only be entered in a clear case. Id Rohm and Haas Co. v. Continental Cas. Co., 566 Pa. 464, 781 A.2d 1172, 1176 (Pa. 2001). [*P33] [***41] Erie's first claim, asserting that shoddy construction practice was the cause of the collapse, bla- tantly mischaracterizes the record and conflates cause and effect. Contrary to Erie's assertion, none of the evidence of causation was "undisputed;" indeed, all such evidence was strongly contested by the parties. Although Erie's experts refused to characterize the condition that damaged the Betz property as a sinkhole, the Betzes' expert, whose testimony we discussed, supra, described a process of erosion that occurred under the cement slab over time and did form a sink- hole as soil fell away into voids created in the rock formations underlying the house. N.T., 3/1/07, at 139-140. Although the expert did criticize the "slab on grade" technique used to build the Betzes' home, he did not describe it as the cause of the loss they suffered. In point of fact, each of the experts who testified, two for Erie and one for the Betzes, sug- gested different causes for the damage to the home. Consequently, the evidence is not such that "no two reasonable minds could disagree." Reasonable minds did disagree and the jury was entitled, indeed required, to determine which of the respective opinions offered [***42] more closely comported with the facts of the case. Erie's assertion to the con- trary that undisputed evidence established a cause for the collapse other than a sinkhole is simply not sustained by the record. [*P341 Erie's second claim, that the "undisputed evidence" established that the Betzes' loss was caused by events outside the "anti-concurrent cause" provision of the earth movement exclusion, is similarly meritless. In support of its assertion, Erie employs one provision of the underlying policy which excludes coverage for damage caused by "bulging, cracking, expansion, settling or shrinking in ceilings, foundations, floors ...... Brief for Appellant at 47-48, and a sec- ond that excludes coverage for earth movement caused by water, id at 48. Initially, we note that Erie's argument de- 2008 PA Super 221, *; 957 A.2d 1244, Page 12 **; 2008 Pa. Super. LEXIS 2639, *** pends in its entirety on the premise that the damage sustained by the Betzes' property resulted from subsurface water pushing upward against the concrete slab under the house. Id. at 48-49. This view reflects the opinion of one of Erie's experts which, not surprisingly, was rebutted in detail by the Betzes own expert, Timothy Martin, P.E. N.T., 3/1/07, at 110-112. Martin stated specifically, "I do not think [***43] that's a plausible explanation for the crack in the base- ment." Id at 110. Accordingly, the notion that all of the evidence established the applicability of either of the exclusions on which Erie relies is a fiction. [**1264] To impose either exclusion, the jury would have to accept the veracity of Erie's expert's opinion which, of course, it was free to disregard. Although the jury could have accepted that testimony and applied the exclusions on which Erie relies, it chose not to do so. Such action was well within its province as fact finder and does not serve as grounds for entry of JNOV. [*P35] Finally, in support of its sixth question, Erie asserts that the trial court erred in denying Erie's motion for remittitur to reduce the jury's award to reflect the amount of damages for which the Betzes produced invoices or repair estimates. Brief for Appellant at 50. Erie argues that because those figures total only $ 44,151.64, the jury's award of $ 48,415.38 should be reduced. Id. at 51. Erie argues that "a compensatory damage award'must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence at trial."' Id at 50-51 (quoting Nelson v Hines, 539 Pa. 516, 653 A.2d 634, 637 (Pa. 1995)). [***44] Significantly, however, Erie concedes that the goal of contract damages is to "make the plaintiff whole again, by awarding the non-breaching party a sum that would put them in as good a position as he/she would have been had the contract been performed." Id. at 50 (quoting Trosky v. Civil Sere Comm'n, 539 Pa. 356, 652 A.2d 813, 817 (Pa. 1995)). Based upon the foregoing authority, which Erie ac- knowledges, we fmd no error in the trial court's determination that remittitur was not required. [*P36] Where an appellant's claim arises from a challenge to the jury's determination of damages, our review is highly circumspect: "The duty of assessing damages is within the province of the jury and should not be interfered with by the court, unless it clearly appears that the amount awarded resulted from caprice, prejudice, partiality, corruption or some other improper influence." Tonik v Apex Garages, Inc., 442 Pa. 373, 275 A. 2d 296, 299 (1971) (citation omitted). "In reviewing the award of damages, the appellate courts should give def- erence to the decisions of the trier of fact who is usually in a superior position to appraise and weigh the evidence." Delahanty v. First Pennsylvania Bank, 318 Pa. Super. 90, 464 A. 2d 1243, 1257 (1983). Ferrer v. Trustees of University of Pennsylvania, 573 Pa. 310, 825 A.2d 591, 611 (Pa. 2002). [***45] "If the verdict bears a reasonable resemblance to the damages proven, we will not upset it merely because we might have awarded different damages." McManamon v. Washko, 2006 PA Super 245, 906 A.2d 1259, 1285 (Pa. Super. 2006). [*P37] In this case, the Betzes' damage witness, Timothy R. Kline, provided repair invoices and estimates and tes- tified at trial concerning the content of each. N.T., 3/1/07, at 52-62. Kline testified also that the numbers he provided reflected the cost of repairs in 2004 and that the cost would increase at a rate of approximately four percent per year thereafter. Id at 75-76. Extrapolating from Kline's testimony, when this case came to trial in 2007, the cost of repair would have risen approximately twelve percent or $ 5298.20. Erie did not dispute Kline's testimony. Accordingly, the undisputed evidence established that in 2007, the cost to repair the Betzes' property would have been $ 49,449.84, an amount that exceeds the award by approximately $ 1000. Consequently, we find nothing in the record to substantiate Erie's claim for remittitur. ' 7 Erie also asserts, summarily, that the trial court erred in not reducing the verdict to reflect Erie's payment of $ 10,000 related to the failure [***46] of the Betzes' sump pump to function during the hurricane that precipitated the damages at issue here. However, Erie provides neither analysis nor citation to authority to support remittitur on such a basis. Accordingly, we deem that claim waived. See Estate of Lakatosh, 656 A.2d at 1381 (deeming claims of error waived where appellant failed to cite pertinent authority in support). [*P38] [**1265] For the foregoing reasons, we affirm the judgment in favor of the Betzes. [*P39] Judgment AFFIRMED. DIAN L. STROHECKER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ELIZABETH A. SCHOPPERT, Defendant NO. 08-7090 CIVIL TERM IN RE: MOTION IN LIMINE TO PRECLUDE DENTAL CLAIMS ORDER OF COURT AND NOW, this 16'h day of December, 2010, upon consideration of Defendant's Motion in Limine To Preclude Dental Claims, a hearing is scheduled for Tuesday, January 11, 2010, at 11:15 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Timothy L. Salvatore, Esq. 7 East Market Street York, PA 17401 Attorney for Plaintiff ,,-?Seth T. Black, Esq. 100 Sterling Parkway Suite 306 Mechanicsburg, PA 17050 Attorney for Defendant :rc ?^ f?S CC?( (ac ?,Nl BY THE COURT, J ILL esley Oler, *0/0? j. at /. J :i DIAN L. STROHECKER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ELIZABETH A. SCHOPPERT, Defendant NO. 08-7090 CIVIL TERM IN RE: MOTION IN LIMINE TO PRECLUDE DENTAL CLAIMS ORDER OF COURT AND NOW, this 12'h day of January, 2011, upon consideration of Defendant's Motion in Limine To Preclude Dental Claims, and following a hearing held on January 11, 2011, the motion is denied. 'Timothy L. Salvatore, Esq. 7 East Market Street York, PA 17401 Attorney for Plaintiff ? Seth T. Black, Esq. 100 Sterling Parkway Suite 306 Mechanicsburg, PA 17050 Attorney for Defendant BY THE COURT, J ?d j« COP 11 ? 00 G? 5_ :rc A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENN '' LVaNIAg DIAN L. STROHECKER, 3 MW ;zrn CIVIL DIVISION T" = -4 z m Plaintiff, ?n w o0 V. NO. 08 - 7090 v° o ELIZABETH A. SCHOPPERT, (Jury Trial Demanded) v Defendant. x' ORDER AND NOW, to wit this day of VIA- 2--,,,,L 2011, upon consideration of the foregoing petition, it is hereby ordered that (1) a rule is issued upon the Plaintiff to show cause why the docket should not be closed in this matter as requested; (2) the Plaintiff shall file an answer to the petition within 30 days of this date; (3) should the Plaintiff fail to file an answer the docket shall be closed by the Prothonotary as a matter of course; and (4) notice of the entry of this order shall be provided to all parties by the Defendant. Distribution: ? Timothy L. Salvatore, Esq.; Katherman, Briggs & Greenberg; 7 East Market Street, York, PA 17401 ? Seth T. Black, Esq.; Summers McDonnell; 100 Sterling Parkway, Suite 306, Mechanicsburg, PA 17050 ??II OVA BY THE COURT: r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, CIVIL DIVISION Plaintiff, NO. 08 - 7090 v. PETITION TO CLOSE DOCKET ELIZABETH A. SCHOPPERT, Defendant. (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 Seth T. Black, Esquire Pa. I.D. #203075 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #16835 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, CIVIL DIVISION Plaintiff, NO. 08 - 7090 V. PRAECIPE TO CLOSE DOCKET ELIZABETH A. SCHOPPERT, Defendant. (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 Seth T. Black, Esquire Pa. I.D. #203075 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 ,-, - r o cm r C _ * #16835 r *7 . -Tj em -c -Y,? r f . = W Ca --4 C D r N : i ,v (ji s.r J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DIAN L. STROHECKER, CIVIL DIVISION Plaintiff, V. NO. 08 - 7090 ELIZABETH A. SCHOPPERT, (Jury Trial Demanded) Defendant. PRAECIPE TO CLOSE DOCKET To The Prothonotary: As no Answer has been filed by the Plaintiff pursuant to Judge Oler's March 21, 2011 Order, kindly close the docket in this matter. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: ,Seth T. Black, Esquire Counsel for Defendant , a CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE TO CLOSE DOCKET has been e-mailed by U.S. Mail to counsel of record, this 2nd day of May, 2011. Timothy L. Salvatore, Esquire Katherman, Briggs & Greenberg 7 East Market Street York, PA 17401 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. Seth TB15'ck, Esquire Counsel for Defendant