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HomeMy WebLinkAbout09-3801IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DAVID T. : No. pq- 3801 LI -wil le.rm BERDEL, her husband 20 Kohler Lane Etters, York County, Pennsylvania 17319 Plaintiffs vs. : Civil Action - Law JON D. RITCHIE 2302 Claridge Court Enola, Cumberland County, PA 17025 Defendant : 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 Sheriff for service. 6011"C cv;;? Herman A. Gailey, III, Esquire Counsel for Plaintiffs Martz & Gailey, LLP 96 South George Street Suite 430 York, PA 17401 (717) 852-8379 Date: Supreme Court ID Number: 31097 SUMMONS IN CIVIL ACTION TO: JON D. RITCHIE YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. M4d othonot , ivil Division Date: &14109 BY. Deputy o FILED-OFFiCE OF rr?L PROTHOYNOTARY. 1009 JUM -9 PM 12: 3 9 cup ?? : k UU?'uNTY 418.50 PO ATr-/ flit al o8¢ Sheriffs Office of Cumberland County Thomas Kline "%V s comb",Edward L Schorpp Sheriff Solicitor Ronny R Anderson ti wJody S Smith Chief Deputy OFFICE OF THE SHERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 06/11/2009 03:05 PM - Steve Bender, Deputy Sheriff, who being duly sworn according to law, states that on June 11, 2009 at 1505 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Jon D. Ritchie, by making known unto Marelle Ritchie, wife of defendant at 2302 Claridge Court Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handinc to her personally the said true and correct copy of the same. SHERIFF COST: $41.50 June 12, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF '10?11174t-l- 'Deputy Sheriff 2009-3801 Elizabeth Sariano Rerdel V Jon D. Ritchie n r ? M r CF7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs V. JON D. RITCHIE, Defendant NO. 09-3801 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO PA.RC.P. 1012 TO THE PROTHONOTARY: Kindly enter the appearance of Michael B. Scheib, Esquire, of Griffith, Strickler, Lerman, Solymos & Calkins, as attorney for the Defendant, Jon D. Ritchie, in the above-captioned matter and mark the docket accordingly. Date: June 23, 2009 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS By. MICHAEL B. SCHEIB, ESQUIRE Supreme Court I.D. No. 63868 110 South Northern Way York, PA 17402-3737 (717) 757-7602 Attorney for Defendant, Jon D. Ritchie T w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs V. JON D. RITCHIE, Defendant NO. 09-3801 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 23`d day of June, 2009, I, Michael B. Scheib, Esquire, a member of the firm of Griffith, Strickler, Lerman, Solymos & Calkins, hereby certify that I have this date served a copy of the Praecipe for Entry of Appearance Pursuant to Pa. R.C.P. 1012, by United States Mail, postage prepaid, addressed to the party or attorney of record as follows: Herman A. Gailey, III, Esquire Martz & Gailey, LLP 96 South George Street Suite 430 York, PA 17401 (Attorney for Plaintiffs) GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS By: 1/'l -X,?i MICHAEL B. SCHEIB, ESQL Supreme Court I.D. No. 63868 110 South Northern Way York, PA 17402-3737 (717) 757-7602 Attorney for Defendant, Jon D. Ritchie ?tl .7 Hr i iL1`1 `' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs NO. 09-3801 CIVIL TERM V. JON D. RITCHIE, Defendant TO THE PROTHONOTARY: CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE Please enter a Rule upon Elizabeth Sariano-Berdel and David T. Berdel, Plaintiffs, to file a Complaint within twenty (20) days from the date of the service of this Rule or suffer Judgment non-pros. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS Date: June 23, 2009 By: Ida 4 ij? MICHAEL B. S EIB, ESQUIRE Supreme Court I.D. No. 63868 110 South Northern Way York, PA 17402-3737 Attorney for Defendant, Jon D. Ritchie NOW, jLmo 24 , 2009, RULE ISSUED AS ABOVE. Ic 0,6? f?_u n othonotary By: . Deputy RL E I-1i A?Y t ? CflrtJ :? _ ? ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs V. JON D. RITCHIE, Defendant NO. 09-3801 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA : COUNTY OF YORK ss. Before me, a Notary Public in and for said Commonwealth and County, personally appeared Michael B. Scheib, Esquire, who, being duly sworn according to law, deposes and says that he caused to be served on Herman A. Gailey, III, Esquire, a true and correct copy of the original Rule to File Complaint, originally filed in the above-captioned matter on June 24, 2009, by U.S. Mail, Certified delivery, at Martz & Gailey, LLP, 96 South George Street, Suite 430, York, PA 17401, on the 26`h day of June, 2009. Date: July o' , 2009 Sworn anq subscribed to before me this c;? f' day of July, 2009. ca'?-'02'e ??Lkox- Notary Public GRIFFITH, STRI KLE , L AN, SOL S ALK S By:_ MICHAEL B. SCHEIB, ESQUIRE Supreme Court I.D. No. 63868 110 South Northern Way York, PA 17402-3737 Telephone (717) 757-7602 Attorney for Defendant, Jon D. Ritchie My Commission Expires: COMMONWEALTH OF PENNSYLVANIA ENotarial Seal Carole E. Slagle, Notary Public Springettsbury Twp., York County My Commission Expires July 26, 2012 Member, Pennsylvania Association of Notaries Complete Items 1, 2, and 3. Also complete TA. .1111 Nun 4 If Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. g, by (Frio ¦ Attach this card to the back of the maiipiece, or on the front N space permits. 1. Article Addressed-to. oSu _ 4,30 P D. is degmy address different from Item If YES, enter delivery address below. Agent Of 3. SnpTps D E>Tives Mau D fiegisterad m Pt for Mwdmndba 0 Insured Mail ? C.O.D. 4. PaMicted Deliveryl (Extra Feel ? YA8 2. Article Number Murzferbomservice kd" 7004 1160 0003 3338 4870 Pe Farm 3811, Febrtmy 2W4 Domeoc Room PAce" -tom IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs V. JON D. RITCHIE, Defendant NO. 09-3801 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this -.? r) d. day of July, 2009, I, Michael B. Scheib, Esquire, a member of the firm of Griffith, Strickler, Lerman, Solymos & Calkins, hereby certify that I have this date served a copy of the Affidavit of Service, by United States Mail, postage prepaid, addressed to the party or attorney of record as follows: Herman A. Gailey, III, Esquire Martz & Gailey, LLP 96 South George Street Suite 430 York, PA 17401 (Attorney for Plaintiffs) GRIFFITH, STRICKLER, LERMAN, SOLY OS CALKIN By: MA-HAEL 13. SCHEIB, ESQUIRE Supreme Court I.D. No. 63868 110 South Northern Way York, PA 17402-3737 Telephone (717) 757-7602 Attorney for Defendant, Jon D. Ritchie 2009 JUL -6 Ph 1. 2 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action - Law JON D. RITCHIE Defendant : Jury Trial Demanded PRAECIPE TO AMEND CAPTION TO THE PROTHONOTARY: Kindly amend the caption in the above matter to reflect that Plaintiff is DANIEL T. BERDEL, and not David T. Berdel. Respectfully submitted, ay ?{+fG°-4 C° Date: --I ' I ? 09 Herman A. Gailey, III, Esquire Martz & Gailey LLP Counsel for Plaintiffs 96 S. George Street, Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action - Law JON D. RITCHIE Defendant : Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that I have this Isi- day of ax.\y , 2009, served a true and correct copy of the foregoing Praecipe to Amend Caption by placing a copy in the United States First Class Mail, directed to the office address of the following: Michael B. Scheib, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 By: Herman A. Gailey, III, Esquire Martz & Gailey LLP Counsel for Plaintiffs 96 S. George Street, Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 QFTry_ F(LED- ;-L ;F 2009 JUL -b PIM 2: 04 CU?r??E PEIN :;,a of 3'?a( IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. Civil Action - Law JON D. RITCHIE Defendant : Jury Trial Demanded NOTICE TO DEFEND You have been sued in court. 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 Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a 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 THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service PA Bar Association P.O. Box 186 Harrisburg, PA 17108 800-692-7375 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T BERDEL, her husband Plaintiffs vs. JON D. RITCHIE Defendant AVISO No. 09-3801 CIVIL TERM : Civil Action - Law Jury Trial Demanded Usted Ha Sido Demandado en la corte. Si usted desea defenderse 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 presentar 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. 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 cualiquier otra queja o compensacion reclamados por el Demandante. Usted puede perder dinero, o propiedades u 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 OBTENER ASISTENCIA LEGAL. Cumberland County Lawyer Referral Service PA Bar Association P.O. Box 186 Harrisburg, PA 17108 800-692-7375 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. Civil Action - Law JON D. RITCHIE Defendant : Jury Trial Demanded COMPLAINT 1. Plaintiffs, Elizabeth Sariano Berdel and Daniel T. Berdel, are adult individuals residing at 20 Kohler Lane, Etters, York County, Pennsylvania 17319. 2. Defendant, Jon D. Ritchie, is an adult individual residing at 2302 Claridge Court, Enola, Cumberland County, Pennsylvania 17025. 3. On August 15, 2007, at or about 5:20 p.m. Plaintiff Elizabeth Sariano Berdel was the owner and operator of 1996 Mercedes Benz with Pennsylvania Registration Number GSP-0726 and was eastbound on Lowther Street approaching its intersection with South Third Street in Lemoyne, Cumberland County, Pennsylvania. 4. On August 15, 2007, at or about 5:20 p.m. Defendant Jon Ritchie was the owner and operator of 2007 Cadillac Escalade with Pennsylvania Registration Number ESP-3921 and was westbound on Lowther Street, having just crossed over its intersection with South Third Street in Lemoyne, Cumberland County, Pennsylvania. 5. On August 15, 2007, at or about 5:20 p.m., Plaintiff Elizabeth Sariano Berdel was lawfully operating her vehicle as described above when Defendant caused or allowed his vehicle to cross the center lines of said Lowther Street and entered Plaintiff Elizabeth Sariano Berdel's lane of travel, causing a collision with her vehicle and resulting in personal injuries and damages to Plaintiffs as hereinafter set forth. 6. Said accident and the resulting injuries and damages to Plaintiffs were caused solely by the negligence and carelessness of Defendant as hereinafter set forth and were due in no manner whatsoever to any act or failure to act on the part of Plaintiffs. 7. At the time of the subject accident Plaintiffs were covered by the full tort option on their motor vehicle insurance policy issued in accordance with the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 8. This matter is alleged to exceed the applicable limits of arbitration and a jury trial is hereby demanded. COUNT I - ELIZABETH SARIANO BERDEL vs. JON D. RITCHIE 9. The allegations set forth in paragraph numbers one through eight (1 - 8) are incorporated herein by reference hereto. 10. The negligence and careless of Defendant Jon D. Ritchie in the operation of the motor vehicle which he was operating at the time of this accident consisted of, but is not limited to, the following: (a) Failure to have his vehicle under proper control; (b) Failure to keep a proper lookout for the presence of other motor vehicles on the roadway and surrounding traffic conditions; (c) Continuing to operate his vehicle in a direction towards the motor vehicle which Plaintiff was lawfully operating when Defendant saw, or in the exercise of reasonable diligence should have seen, that further operation in that direction would result in a collision; (d) Failure to keep his vehicle on the right side of the roadway and instead causing or allowing his vehicle to cross the center lines of the roadway and onto the wrong side of the roadway and collide with Plaintiff's vehicle in Plaintiff's lane of travel in violation of the provisions of the Pennsylvania Motor Vehicle Code found at 75 Pa.C.S.A.§3301; (e) Operating his vehicle with careless disregard for the rights and safety of other individuals lawfully proceeding on the roadway, including Plaintiff, in violation of the provisions of the Pennsylvania Motor Vehicle Code found at 75 Pa.C.S.A. §3714; and (f) Failure to operate his vehicle at such a speed and with such control with regard to the roadway and weather conditions such that he could bring his vehicle to a stop within his assured clear distance ahead and/or keep his vehicle in his lane of travel on the right side of the roadway in violation of the provisions of the Pennsylvania Motor Vehicle Code found at 75 Pa.C.S.A. §3361. 11. Solely as a result of said accident and the negligence and carelessness of Defendant, Plaintiff has suffered personal injuries including, but not limited to, the following: injuries to her neck, back, shoulders and arms, with symptoms associated with these injuries. 12. As a further result of the accident, Plaintiff has sustained and may sustain the following damages: (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) Past and future incidental costs; (e) Past and future reasonable and necessary medical expenses in excess of the statutory reclusion; and (f) Past and future loss of earnings in excess of first party benefits. WHEREFORE, Plaintiff Elizabeth Sariano Berdel respectfully requests this Honorable Court to enter judgment against Defendant Jon D. Ritchie in an amount in excess of the applicable arbitration limits, plus costs and interest as allowed by law. COUNT II - DANIEL T. BERDEL vs. JON D. RITCHIE 13. The allegations set forth in paragraphs one through twelve (1 - 12) are incorporated herein by reference thereto. 14. Solely as a result of said accident and the injuries suffered by his wife, Plaintiff Daniel T. Berdel has been and in the future will or may be deprived of the assistance, companionship, society, services, affection, love, and consortium of his wife, Plaintiff Elizabeth Sariano Berdel, all to his great loss and detriment. WHEREFORE, Plaintiff DanielT. Berdel respectfully requests this Honorable Court to enter judgment against Defendant Jon D. Ritchie in an amount in excess of the applicable arbitration limits, plus costs and interest as allowed by law. Respectfully submitted, Date: 1-611 By: ALA?C-14 Lr<::I - Herman A. Gailey, III, Esquire Martz & Gailey LLP Counsel for Plaintiffs 96 S. George Street, Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T BERDEL, her husband Plaintiffs vs. JON D. RITCHIE Defendant VERIFICATION No. 09-3801 CIVIL TERM Civil Action - Law Jury Trial Demanded We verify that the foregoing facts as stated in Plaintiffs' Complaint are true, upon our personal knowledge or information and belief. This verification is made subject to the penalties of Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: --Eliza 0th Saria o-Berdel 4&J r, aniel T. Berdel ELIZABETH SARIANO BERDEL and DANIEL T. BERDEL, her husband Plaintiffs vs. JON D. RITCHIE Defendant : No. 09-3801 CIVIL TERM Civil Action - Law Jury Trial Demanded CERTIFICATE OF SERVICE hereby certify that I have this ? day of , 2009, served a true and correct copy of the foregoing Complaint by placing a copy in the United States First Class Mail, directed to the office address of the following: Michael B. Scheib, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 By: ? ; u " Herman A. Gailey, III, Esquire Martz & Gailey LLP Counsel for Plaintiffs 96 S. George Street, Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 FILE, I` 2 G 0 3 i JL 10 P?; 2-: 51 44 rt Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs NO. 09-3801 CIVIL TERM v. JON D. RITCHIE, Defendant TO: David T. Berdel, Plaintiff c/o Herman A. Gailey, III, Esquire Martz &Gailey, LLP 96 South George Street Suite 430 York, PA 17401 CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered againsl: you. Date: August 14, 2009 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS DAVID E. COOK, ESQUIRI? Supreme Court I.D. No. 78318 110 South Northern VG'ay York, PA 17402-373i' Telephone (717) 757-7602 Attorney for Defendant, Jon D. Ritchie IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT.', PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs NO. 09-3801 CIVIL TERM v. JON D. RITCHIE, Defendant TO: Elizabeth Sariano-Berdel, Plaintiff c/o Herman A. Gailey, III, Esquire Martz &Gailey, LLP 96 South George Street Suite 430 York, PA 17401 CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against. you. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS Date: August 14, 2009 By:~ --~ DAVID E. COOK, ESQUIRI? Supreme Court I.D. No. 78318 110 South Northern VV'ay York, PA 17402-373i' Telephone (717) 757-.'602 Attorney for Defendant, Jon D. Ritchie IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs NO. 09-3801 CIVIL TERM v. JON D. RITCHIE, Defendant CIVIL ACTION -LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT TO PLAINTIFFS' COMPLAINT 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 1 of Plaintiffs' Complaint, and the same are denied and strict proof thereof is demanded. 2. Admitted. 3. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 3 of Plaintiffs' Complaint, and the same are denied and strict proof thereof is demanded. 4. Admitted in part and denied in part. It is admitted that Jon Ritchie was the owner and operator of a 2007 Cadillac Escalade which was traveling westbound on Louther Street on August 15, 2007. The remaining allegations of paragraph 4 of Plaintiffs'' Complaint are denied and strict proof thereof is demanded. 5. Admitted in part and denied in part. It is admitted that the vehicle being driven by Plaintiff, Elizabeth Sariano-Berdel came into contact with Defendant's vehhicle. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations set forth in paragraph 5 of Plaintiffs' Complaint, and the same are denied and strict proof thereof is demanded. 6. Denied. Paragraph 6 of Plaintiffs' Complaint states a legal conclusion to which no responsive pleading is required. Should paragraph 6 of Plaintiffs' Complaint contain factual allegations, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in pay°agraph 6 of Plaintiffs' Complaint, and the same are denied and strict proof thereof is demanded. 7. Denied. After reasonable investigation, Defendant is without. knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 7 of Plaintiffs' Complaint, and the same are denied and strict proof thereof is demanded. 8. Denied. It is denied that this matter exceeds the applicable limits of arbitration. COUNTI Elizabeth Sariano-Berdel v. Jon D. Ritchie 9. Paragraph Nos. 1 - 8, inclusive, of Defendant's Answer too Plaintiffs' Complaint are hereby incorporated by reference, as if fully set forth at length. 10. Denied. Paragraph 10 of Plaintiffs' Complaint states a legal conclusion(s) to which no responsive pleading is required. 1 1. Denied. Paragraph 11 of Plaintiffs' Complaint states a le€;al conclusion to which no responsive pleading is required. Should paragraph 11 of Plaintiffs' Complaint contain factual allegations, after reasonable investigation, Defendant is without kno~~vledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 11 of Plaintiffs' Complaint, and the same are denied and strict proof thereof is demanded. 12. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations sf°t forth in paragraph 12 of Plaintiffs' Complaint, and the same are denied and strict proof thereof i.s demanded. WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment in his favor together with costs of this suit. COUNT II Daniel T. Berdel v. Jon D. Ritchie 13. Paragraph Nos. 1 - 13, inclusive, of Defendant's Answer to Plaintiffs' Complaint are hereby incorporated by reference, as if fully set forth at length. 14. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 14 of Plaintiffs' Complaint, and the same are denied and strict proof thereof is demanded. WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment in his favor together with costs of this suit. NEW MATTER 15. Paragraph Nos. 1 - 14, inclusive, of Defendant's Answer to Plaintiffs' Complaint are hereby incorporated by reference, as if fully set forth at length. 16. Plaintiffs injuries, if any, may be barred or limited by the Motor Vehicle Financial Responsibility Law. 17. Plaintiff's injuries, if any, may be barred or limited by a limited tort selection. 18. Plaintiffs injuries, if any, were caused by events which either predated or postdated the motor vehicle accident which is the subject of this lawsuit. 19. Plaintiff s damages, if any, were caused by her own conducit. WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment in his favor together with costs of this suit. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS Date: August, 2009 __ ___. By: -~~ _.__ _~ DAVID E. COOK, ESQUIRI? Supreme Court LD. No. 78318 110 South Northern Way York, PA 17402-3737 Telephone (717) 757-7602 Attorney for Defendant, Jon D. Ritchie VERIFICATION I, Jon D. Ritchie, hereby verify that the statements made in the foregoing Answer and New Matter to Plaintiffs' Complaint are true and correct to the best of my personal knowledge or information and belief, as well as reports, records, conferences and other investigatory nnaterial made available to me. To the extent that the foregoing contains averments which are inconsistent in fact, I verify that my knowledge or information is sufficient to form a belief that one or more of them is true, although I am currently unable, after reasonable investigation, to ascertain which of the inconsistent averments are true To the extent that the foregoing contains legal conclusions or opinions, I hf;reby state that my Verification is made upon the advice of counsel, upon whom I have relied in the filing this document. This Verification is made subject to the penalties of 18 Pa. C.S. § 4904 related to unsworn falsifications to authorities. Dated: August ~, 2009 ~_ ON D. ITCHIE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and DAVID T. BERDEL, her husband, Plaintiffs NO. 09-3801 CIVIL TERM v. JON D. RITCHIE, Defendant CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 14'" day of August, 2009, I, David E. Cook, Esquire, a member of the firm of Griffith, Strickler, Lerman, Solymos & Calkins, hereby certify that I have this date served a copy of the Answer With New Matter of Defendant to Plaintiffs' Complaint, by United States Mail, postage prepaid, addressed to the party or attorney of record as follows: Herman A. Gailey, III, Esquire Martz &Gailey, LLP 96 South George Street Suite 430 York, PA 17401 (Attorney for Plaintiffs) GRIFFITH, STRICKLER, LE',RMAN, SOLYMOS & CALKINS By: DAVID E. COOK, ESQUIRE Supreme Court I.D. No. 78318 110 South Northern Way York, PA 17402-3737 Telephone (717) 757-7602; Attorney for Defendant, Jon D. Ritchie FItE~-t~rr;C;E O~ THE Fc~:~-'s~R'OrA~Y 240 fiu'v i 7 P~~ 2~ i ``' ~ ' ~~ ; I~iLEC~ ::: ; .'c ~~ TN" r;~ r ;~{~Y 2010 MAY 20 pJ~ 3: Q9 Cl1l,~~~4 --, .~ ,r 7U~~~i1' tr'~C:i~v!~J~'~d 'u f ~ ' r.., r;i~~tlA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. :Civil Action -Law JON D. RITCHIE Defendant :Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that I have this ~~~ day of (~'~ ~V 2010 served a true and correct copy of the foregoing Answers to Defendant's Interrogatories -Set #2 by placing a copy in the United States First Class Mail, directed to the office address of the following: David E. Cook, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 ~ ~ ~~ By: Herman A. Gailey, III Esquire Martz &Gailey LLP Counsel for Plaintiffs 96 S. George Street, Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 r k. PRAECIPE FOR LISTING CASE FOR JURY TRIAL i Must bet typewritten and submitted in triplicate) Y rn TO THE PROTHONOTARY OF CUMBERLAND COUNTY << Please list the following case for a jury Trial. ------------------------------------------- ------------------------------------------------------------------- -- --- CAPTION OF CASE ,(entire caption must be stated in fulll' (check one) -4 Civil Action—Law Q=Appeal from arbitration F] Elizabeth Sariano Berdel and Daniel T. .(other) Berdel o (Plaintiff) No. 09-3801 Civil Term VS. The trial list will be called on June 18,2013 Jon D. Ritchie and (Defendant) Pretrials will be held on July 3, 2013 (Briefs are due 5 days before Pretrials) VS. Trials commence on July 15,2013 Indicate the attorney who.will try case for the party who fiies'thi's praecipe: Herman A.Gailey,Ili,Counsel for Plaintiffs,Martz&Gailey,LLP,96 South George Street,Suite 430,York PA 17401 Indicate trial counsel for other parties if known: Michael B. Scheib, Esquire Griffith Strickler Lerman Solymos & Calkins 110 South Northern Way York, PA 17402 (717) 757-7602 This case is ready for trial. Signed: t "� ryry Print Name: Herman X Gailey,111,Esquire{ID#31097} Date Attorney for: Plaintiffs PA AV--, C�a7a�r7 A-A a�9 X11 ELIZABETH SARIANO-BERDEL and IN THE COURT OF COMMON PLEAS OF DAVID T. BERDEL, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW JON D. RITCHIE, Defendant NO. 09-3801 CIVIL TERM IN RE: CIVIL TRIAL LIST ORDER OF COURT AND NOW, this 23rd day of April, 2013, the Defendant having requested a continuance in this matter, and over the objection of the Plaintiff, this matter is hereby continued until the next civil trial list . By the Court; Chris ylee Peck, J. 4Ierman A. Gailey, III, Esquire For the Plaintiffs Michael B. Scheib, Esquire For the Defendant pcb 50` O MOD C�A ui r- p�'3 C) CAP ELIZABETH SARIANO BERDEL IN THE COURT OF COMMON PLEAS OF AND DANIEL T. BERDEL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. JON D. RITCHIE, CIVIL ACTION - LAW Defendant NO. 09-3801 CIVIL TERM IN RE: CALL OF CIVIL TRIAL LIST ORDER OF COURT AND NOW, this 18th day of June, 2013, this matter will remain on the trial list . By the Court, Christyl ,6 L. Peck, J. --Herman A. Gailey, III, Esquire For the Plaintiffs 115ichael B. Scheib, Esquire For the Defendant : lfh eo �L4 -' le�2o�l3 srn C= . �. © C �� = �' w a ELIZABETH SARIANO-BERDEL IN THE COURT OF COMMON PLEAS OF and DAVID T. BERDEL, CUMBERLAND COUNTY, PENNSYLVANIA her husband, NINTH JUDICIAL DISTRICT Plaintiffs CIVIL ACTION - LAW `-C w ---i v NO. 09-3801 CIVIL TERM MOO c- .` JON D. RITCHIE, , ;m' Defendant JURY TRIAL DEMANDED r- cj IN RE: PRETRIAL CONFERENCE , = - ORDER OF COURT AND NOW, this 3rd day of July, 2013, a pretrial conference was held in the jury deliberation room of Courtroom Number 6 of the Cumberland County Courthouse in the above case. Present on behalf of Plaintiffs was Herman A. Gailey, III, Esquire, and present on behalf of Defendant was Michael B. Scheib, Esquire . This is a personal injury action arising out of an automobile accident occurring in 2007 on Lowther Street in Lemoyne. The defense is admitting liability, and the issue will be causation and damages based on Plaintiff ' s preexisting condition. Damages requested in this case are in the approximate amount of $150, 000 and include compensation for damages suffered by Plaintiff and her husband. With respect to settlement negotiations, some negotiations have occurred and an offer has been made, which has not been accepted, and at this point it does not appear that the case will resolve amicably, to no fault of the attorneys . It is therefore ordered and directed that : 1 . This will be a jury trial in which each side will have 4 peremptory challenges, for a total of 8, with 2 .alternates being selected, and the Court Administrator is directed to call in no less than 40 potential jurors . 2 . The estimated duration of this trial is at best 3 days, which may spill over into a 4th day. 3 . Jurors will be permitted to take notes . 4 . Both counsel have indicated no specific scheduling concerns . However, there are several video depositions to be shown that will require the court being set up and able to present those to the jury. 5 . The initial day of trial is scheduled for July 15, 2013, beginning at 9 : 00 a.m. 6. The parties shall prepare an exhibit list . Two copies of this exhibit list shall be provided to the Court no later than Friday prior to the commencement of trial . 7 . All visual aides in the case shall be disclosed to the opposing party in advance of trial . 8 . Counsel for each party is directed to file with the Court no later than Friday prior to the commencement of trial a list of numbered standard jury instructions the party is requesting, together with a proposed verdict slip. 9 . If a party is requesting a unique jury instruction or a significant modification of a standard instruction, that party shall provide the full text of the requested instruction as part of the jury instruction request . 10 . To the extent that any deposition testimony is to be shown or read to the jury which contains objections requiring rulings by the trial judge, counsel are directed to supply to the Court no later than Friday prior to the commencement of trial copies of the affected transcripts, with the areas of objection being pursued highlighted, and with brief memoranda in support of their respective positions on the objections . 11 . There is not a need for a view in this case . 12 . There are no judicial conflicts in the case . Any potential conflict was discussed with counsel . Further, counsel do not object if a judge picks the jury, with a different judge actually trying the case because of the County' s scheduling issues . 13 . There is a concern that Plaintiff may need to stand at some point during the trial, which if not obtrusive is not objectionable . It is requested that Plaintiff do so either during the change of a witness or at a natural break in the case. 14 . The Plaintiffs ' medical expense exhibit shall be in a columnar format with four columns, one being date, the next being provider, the next short column, two words, on purpose, and the last column being the co-pay amount . 15 . The Court recognizes that in cases of this sort with the multiple issues existing in this case it is difficult to value with an uncertain jury result. The Court believes that the proper value range may well be below Plaintiffs ' demand and above Defendant ' s offer, and suggests that the parties discuss a possible middle ground. B , Thomas I Placey C. P. J. ✓ Gaile III Esquire M'� ichael B. Scheib, Esquire Herman A. y, q 96 South George Street 110 South Northern Way Suite 430 York, PA 17402-3737 York, Pa 17401 For Defendant For Plaintiffs Court Administrator :mae I igs, /7z�l&� 7lQl!-3 - -t rl IN THE COURT'OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and No. 09-3801 CIVIL TERM DANIEL T. BERDEL, her husband, Plaintiffs `" F-a V. CIVIL ACTION—LAW r CID C JON D. RITCHIE, 'i o r Defendant JURY TRIAL DEMANDED _ u CD DEFENDANT JON RITCHIE'S POSITION REGARDING DEPOSITION FOR USE AT TRIAL OF DR. CIPKO AND DR.LUPINACCI I. DR. CIPKO'S TRIAL DEPOSITION During Dr. Cipko's deposition Plaintiffs counsel objected to his testimony at page 29. 1 believe that Plaintiff's counsel's objection is without merit. Dr. Cipko's position is that Ms. Berdel was capable of alternative employment which would have paid her a salary in the range of$24,000- $30,600. There are alternative positions and the salary range of these positions are clearly set forth in his report at page 22. A copy of Dr. Cipko's report is attached as Exhibit 1. Plaintiff is mistaken to allege that Dr. Cipko believes that Ms. Berdel could not start the alternative employment until 2010. On the contrary,there are no medical records or any other-reports which would indicate that'she was unable to begin the alternative employment in 2007, or shortly after the motor vehicle accident. I believe that Plaintiffs objection should be overruled.. II. DR. LUPINACCI'S TRIAL DEPOSITION Objection 1,;page 22. During Dr. Lupinacci's direct testimony, Dr. Lupinacci was asked a question about Dr Triantafyllou's report. Defendant objected because Dr. Lupinacci's expert report dated August'3, 2009 did not make any mention of Dr. Triantafyliou's report. Defendant objected because he had no knowledge of what Dr. Lupinacci's response would be and it was beyond the scope of any previously disclosed expert report. A copy of Dr. Lupinacci's expert report dated August 3, 2009 is attached as Exhibit 2. Objection 2,page 25. Defendant moved to strike. The topic of Dr. Triantafyllou's report was not addressed in Dr. Lupinacci's expert report dated August 3, 2009 and is beyond the scope of the report. Objections 3 and 4, pages 49, 50 and 51. Defendant objected because Dr. Lupinacci did not recommend surgery. See Dr. Lupinacci's report dated August 3,2009 attached as Exhibit 2. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS Dated: ]AJ 2013 By: Ml(",Ii XEL B. SC14EIB, ESQUIAP- Attorney I.D. No. 63868 110 South Northern Way York,Pennsylvania 17402 Telephone(717) 757-7602 Fax (717) 757-3783 mscheib@gslsc.com Attorney for Defendant Ritchie IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and No. 09-3801 CIVIL TERM DANIEL T. BERDEL, her husband, Plaintiffs V. CIVIL ACTION—LAW JON D. RITCHIE, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this �Aday of JU, , 2013, I, Michael B. Scheib, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Defendant Jon Ritchie's Position Regarding Deposition for use at Trial of Dr. Cipko and Dr. Lupinacci, by United States Mail, addressed to the party or attorney of record as follows: Herman A. Gailey, III, Esquire Martz& Gailey, LLP 96 South George Street, Suite 430 York, PA 17401 (Attorney for Plaintiffs) GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CA INS i By: MI HAEL B. SdIEYB, ESQUI Attorney I.D. No. 63868 110 South Northern Way York, Pennsylvania 17402 Telephone (717) 757-7602 Fax (717) 757-3783 mscheibgpslsa.com Attorney for Defendant Ritchie I i I I I I I I` i � 1 I 1 I I i 1 r • Rehabilitation Planning, Inc. Since 1981 March 27, 2013 Erick Violago, Esquire Griffith, Strickler, Lerman, Solymos, and Calkins 110 South Northern Way York, PA 17402 Re: Elizabeth Berdel RPI: 0171113PA Dear Mr. Violago: ' As per your request, I am providing you with a report regarding the above- referenced individual. I have had an opportunity to conduct a vocational evaluation of Elizabeth Sariano Berdel and review the records. The report contains information ascertained from the evaluation, records review, and resources such as the Dictionary of Occupational Titles and wage surveys from the State of Pennsylvania through the Center for Workforce Information and Analysis. I have included a vocational profile and wage analysis. The report ,consists of the following sections: Background Information Medical History Educational and Employment Background Behavioral Observations Tests Administered Test Results Vocational Profile/Transferable Skills Wage Analysis Records Reviewed Comments on the Records Reviewed Conclusion CORPORATE HEADQUARTERS: PLYMOUTH GREENE OFFICE CAMPUS,B-5 1000 GERMANTOWN PIKE PLYMOUTH MEETING,PA 19462 (800)837-8835 FAX(610)278-0742 www.RehabPlan.com A NATIONAL DISABILITY MANAGEMENT COMPANY Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 2 of 36 When arriving at the law office of Herman A. Gailey, I was introduced to Ms. Berdel in the reception area and then taken to the conference room. The vocational evaluation with Ms. Berdel took place on February 7, 2013. Background Information Per the vocational evaluation and review of the records, Ms. Berdel is a 57-year- old, married white female who was born in Harrisburg, PA, on April 25, 1955. Her maiden name was Soriano. She currently resides with her husband, Daniel Berdel, at 20 Kohler Lane, Etters, PA, 17025. She has remained a resident of the state all of her life. When describing herself in the interview, she reported that she was 5'0" in height and 130 pounds in weight. She has blonde hair and blue eyes. She uses glasses from a drug store if needing to read fine print. Having right-hand dominance, she is bondable and not a smoker. She has a driver's license and knows how to drive a vehicle with an automatic or standard transmission. She owns a 2010 Hyundai Sonata. She commented that she had not operated a car with a standard transmission since the 1980's. In terms of a family background as obtained from the evaluation and information in the records, Ms. Berdel is married to Daniel Berdel. They were married on June 23, 2003. Mr. Berdel is 52-years-old and was born on December 6, 1960. She has two sons: Daniel Wolf and Andrew Wolf. Daniel, who is 31, was born on April 14, 1981, and resides in Paxtang, PA. Andrew, who is 29, was born on November 10, 1983, and resides in New Cumberland, PA. Ms. Berdel had been married to Michael "Pete" Wolf, their father, in 1976 and then was divorced in 1998. Medical History In the vocational evaluation, Ms. Berdel was asked about the incident that occurred on August 15, 2007. She responded by saying that she was the driver of a car and was taking care of her aunt. She was approaching a red light at 5 miles per hour. A car hit her vehicle head on and she was whipped around. She had on her seatbelt but the air bag did not deploy. An ambulance came to the scene. However, she went home even though her neck hurt immediately. When the pain escalated, she went to the hospital. She indicated that she has a cervical and lumbar injury from the incident. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 3 of 36 When interviewed, Ms. Berdel reported that she treats with Dr. Michael Lupinacci in the Mechanicsburg Office once every 3 months for pain management. He conducts examinations, discusses her status, and prescribes pain medications. She takes Tramadol (narcotic analgesic) and Vicodin/Hydrocodone (narcotic analgesic) for pain. In her deposition on April 1, 2010, Ms. Berdel testified about the incident on August 15, 2007. She expressed that a vehicle came toward her and hit her in the front of the driver's side of the car. She experienced pain in the neck and left shoulder. She went home. The next day she went to the Emergency Department at the Holy Spirit Hospital. She reported neck, middle of the back, lower back pain, and numbness in the arms. There were x-rays taken, she was given Vicodin for pain, and discharged. She noted that she had pre-existing back problems. A Police Crash Reporting Form was contained in the records from August 15, 2007. The form was from the West Shore Regional Police Department. Ms. Berdel was the Driver of a 1996 Mercedes-Benz. Her car was hit on the left front corner. She reportedly had pain in her neck and shoulder. In view of her medical history and current status, the records document that Ms. Berdel has been evaluated and treated by numerous medical professionals before and after the incident on August 15, 2007. The course of treatment since then has been thoroughly documented in the file records. That is, medical experts have reviewed the records and prepared comprehensive reports. Thus, for the purpose of this report, a focus will be placed on highlighting the current medical opinions especially pertaining to the vocational factors and physical capacities of Ms. Berdel. Also, in view of her pre-exiting history, medical opinions concerning information about vocational factors have been included. A report was available from the Holy Spirit Hospital by Dr. Donald Buxton and dated August 16, 2007. Dr. Buxton conducted an exam of the lumbar, thoracic, and cervical areas of the spine. He determined the following conclusions. There was an accentuation of normal lordosis of the lumbar spine but otherwise the exam was negative. The thoracic spine had changes at T11 and T12 which may be due to prior trauma. The cervical spine had degenerative disc disease with associated degenerative changes in the midportion. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 4 of 36 Dr. Steven Triantafyllou wrote a medical report about Ms. Berdel on October 30, 2007. Her chief complaint was listed as neck pain, low back pain, and midback pain. Dr. Triantafyllou described her as a Wallpaper Hanger who had been doing the job for approximately 20 years. As based on his evaluation, he provided the following diagnosis: Cervical, thoracic, and lumbar disc disease. He concluded that she was capable of sedentary to light duty with only occasional lifting and no repetitive use of the arms in an overhead position. Functional Capacity Evaluation (FCE) Reports were prepared by David Raptosh, MA, about Ms. Berdel on February 2, 2009, and October 11, 2012. She was referred for the FCE's by Dr. Lupinacci. In the first report, Mr. Raptosh described her as a right-hand dominant, self-employed female who was 5'1" in height and 116 pounds. She worked as a"Drywall Hanger, Installer, Remover" for residential and commercial places. The listed diagnosis was cervical and lumbar pain. She was working on a part-time basis. The results of the FCE indicated that she had the ability to meet the physical demands at the light level. Dr. Michael Lupinacci wrote a special letter to Mr. Gailey about Ms. Berdel on August 3, 2009. Mr. Gailey had requested the letter. Dr. Lupinacci outlined his treatment of Ms. Berdel from when had initially seen her on August 28, 2007, for neck pain, scapular area pain, mid back pain, and lower back pain. Per her prior history, she had pre-existing osteoarthritis with degenerative changes in the neck and back. He indicated that previous x-rays were taken on October 18, 2006. A cervical x-ray showed "marked cervical spondylosis with multilevel bilateral foraminal stenosis with facet arthropathy."A lumbar x-ray showed "degenerative changes of the lumbar spine, most pronounced distally with facet arthropathy at U-S 1." He added that she had been treated for the osteoarthritis by Dr. Roumm and had "significant degenerative spondylosis noted at C4-5, C5-6, and C6-7 with foraminal stenosis, annular bulge" as far back as September of 2001. In the special letter, Dr. Lupinacci described Ms. Berdel as a Wallpaper Decorator. He medically permitted her to return to work at 3 times per week to build up her stamina with a lifting restriction to 30 pounds as a Designer and Wallpaper Finisher as of February 25, 2008. He decreased her work to 2 days a week and 8 hours a day on April 24, 2008. He added that she was working 2 days weekly at 8 hours a day for a total of 16 to 20 hours a week as a maximum work capacity at her business as a Wallpaper Installer. He noted that she had a Functional Capacity Evaluation (FCE) on April 2, 2009, and that she was released Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 5 of 36 to light duty. He reported that she was unable to work from August 15, 2007, to February 25, 2008. He believed that she had reached maximum medical improvement and her present symptoms were superimposed on her pre-existing condition. Dr. Daniel Hely authored an Independent Medical Evaluation(IME) Report about Ms. Berdel on August 5, 2010. In his report, Dr. Hely noted that he was seeing her for symptoms of neck and low back pain and that she had a longstanding difficulty with her neck and low back as the result of osteoarthritis. He described her as married and living with her husband. She was a non-smoker and non- drinker. He added that Ms. Berdel related that she had been able to work regularly doing paper hanging as a business for almost 25 years. He noted that, at the time of the medical evaluation, she had given up the business of paper hanging. Although not working in her business, she was caring for her 91-year-old aunt. Based on the medical evaluation, Dr. Hely arrived at diagnostic impressions. He listed the impressions as follows: Ms. Berdel suffers from ongoing symptoms of neck pain associated with degenerative arthritis and ongoing symptoms of back pain associated with degenerative arthritis of the lumbar spine dating back to evaluations prior to the motor vehicle accident of August 15, 2007. He did not find any objective evidence in the medical records to identify a specific injury occurring from the motor vehicle accident. He opined that any claim for lost wages as a result of her inability to work must take into account that her limitations are a result of an arthritic condition and not necessarily as a result of the motor vehicle accident. He was not able to explain why she could not return to her paper hanging activity level other than to cite the arthritic changes in the neck and back. A letter was addressed to Dr. Lupinacci from Mr. Gailey on August 9, 2012. In the letter, Mr. Gailey asked for an update on the condition of Ms. Berdel especially pertaining to her employability. He questioned Dr. Lupinacci about whether she could still work at a full-time sedentary position or had her work capability been reduced to a total disability or part-time status. At the end of the letter, he prepared a checklist of three options for Dr. Lupinacci to consider. They were as follows: (1) Capable of full-time sedentary work, (2) Capable of part-time sedentary work, and (3) Totally disabled from all employment. A check mark was placed on the first option of"Capable of full-time sedentary work" and signed by Dr. Lupinacci on October 19, 2012. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 6 of 36 A report of an Outpatient Evaluation was prepared by Dr. Lupinacci on September 26, 2012. In the report, Dr. Lupinacci had a history of cervical back pain and low back pain with a history of a motor vehicle accident in August of 2007. He noted that she was continuing with yoga,massage, and stretching which helped. She was taking Tramadol and Hydrocodone. The pain was described as having waxing and waning days. Dr. Lupinacci's impression was that Ms. Berdel had a"cervical history of degenerative arthritis with aggravation of her symptoms following motor vehicle accident in 2007 without return to baseline" and that she had a"right sacroiliac (SI)joint dysfunction."He continued her on the present medications and recommended an updated disability evaluation. He noted that the last one placed her at a light-duty capacity. In the FCE Report on October 11, 2012, Mr. Raptosh described Ms. Berdel as a self-employed, Owner/Operator of a residential and commercial wallpaper business who was not working. The listed diagnosis was cervicalgia and lumbago. The results of the FCE indicated that she had the ability to meet the physical demands at the sedentary level. Ms. Berdel, per the records, had a prior medical history. An Initial Report was prepared by Dr. Thomas Smarsh about Ms. Berdel on August 8, 2004. He performed a chiropractic examination of Ms. Berdel, who arrived with symptoms of neck, shoulder, midback, and low back pain. He diagnosed the following: Moderate cervical sprain/strain, subluxation complex, myofascitis, and cervical facet syndrome. Dr. Suzanne Wolanin-Saifi prepared a medical report about Ms. Berdel, who presented for a physical examination, on July 14, 2006. Dr. Wolanin-Saifi wrote that Ms. Berdel had a history of osteoarthritis and chronic lower back pain. Ms. Berdel also had hypothyroidism. She described Ms. Berdel as a Wallpaper Hanger who was a non-smoker, drank alcohol about 3 times a week, was married, and had two sons who were 25 and 22 and two stepsons. In terms of a review of the systems, Dr. Wolanin-Saifi reported that Ms. Berdel had reported neck and lower back pain. On a daily basis,Ms. Berdel was in some degree of pain and occasionally has some muscle tenseness around the scapular area after wallpaper hanging. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 7 of 36 Dr. Alan Roumm addressed a medical report to Dr. Wolanin-Saifi about his medical evaluation of Ms. Berdel on October 11, 2006. He wrote that Ms. Berdel was a"female who has had almost 30 years of intermittent cervical spine pain, who now describes more widespread musculoskeletal symptoms in the neck and back."As per Dr. Roumm in the report, Ms. Berdel had told him that almost 30 years ago she had noticed intermittent neck pain and stiffness and that x-rays early in her adult life showed osteoarthritis. She had increasing pain and some numbness down into her arms about 6 years prior to the medical evaluation. An MRI from 6 years earlier had shown that she had degenerative spondylosis at multiple cervical levels including C4-5, C5-6, and C6-7. More recently to the medical evaluation, she had experienced some pain and stiffness in the hands, neck, and low back. He described Ms. Berdel as a Wallpaper Hanger who had been able to continue working her usual schedule of 26 to 30 hours per week. Based on the medical evaluation, Dr. Roumm arrived at certain impressions. For instance, he listed the following: Osteoarthritis of the cervical spine currently only symptomatic now and pain and stiffness in the low back consistent with osteoarthritis of the lumbosacral spine. Ms. Berdel was questioned about her physical capacities in the vocational interview. She reported that she could lift up to 5 pounds, sit for 20 minutes, stand for 30 minutes, and walk for 20 minutes. Stooping and bending were described as difficult to do. She could drive a vehicle for 30 minutes and be a passenger in a vehicle for 60 minutes and recline the seat. When describing her daily routine in the vocational interview, Ms. Berdel related that she gets up in the morning, gets her husband coffee, puts lunch in a freeze bag that is insulated, goes back to bed, spends about 30 to 45 minutes in bed, gets in the stretching exercises, takes care of her personal hygiene, showers, combs her hair, has hot tea, and puts in a yoga compact disk. She does the yoga which is beneficial for around 45 to 60 minutes, has some mobility, lays down for a little bit, does things in increments, lays down a little bit, goes upstairs and puts in a load of laundry, and sits down with a paper tablet, One thing Ms. Berdel she does every day,per the interview, is write a list of things to prepare for dinner. She expressed that she feels like she should do as much as she can like prepare a good dinner by cutting up the onions and peppers. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 8 of 36 She reads a newspaper, unloads the dishwasher, sits or lays down, gets up and sets the table, goes and does the prep work for dinner, gets out the pans, follows the process of doing a little bit throughout the day, checks the bills in the household, and writes cards out to people, for instance, like thinking about them. Ms. Berdel may call to renew a prescription for her husband and, occasionally if up to it, may drive to the grocery store. She leaves the heavy things in the trunk for her husband. She related that there are days when she does not have a "grip on my pain management" and indicated that she is not a lazy person. She may spend several hours laying down. At night time, she tries to read. When interviewed, Ms. Berdel commented that she makes the dinner and that her husband works all day and comes home. She noted that it would not be fair for him to make the dinner. Her husband puts away the dishes and cleans the table. He watches sports and she lays down and reads. But every day is different and depends on the situation. She,watches sports on the television with her husband and the news. She also enjoys watching forensic shows, Law and Order, SVU (Special Victims Unit), murder mystery, and CSI (Crime Scene Investigation) type shows. She reads suspense and history novels. She goes on long walks on level ground. In the past, Ms. Berdel went fishing on a boat, hiked, traveled to different places, and now her husband goes without her like on a plane ride. She related that"way back when I use to snorkel" and before that"I did swimming, skiing, and traveling"with her family. She would go to Lewes in Delaware, Wildwood in New Jersey, and places in Florida. She used to do yard work like trim the bushes and plant flowers. She also used to do a lot of sewing to make clothing and items like a pillow case or a Halloween costume. Educational and Employment Background In regards to an educational background, Ms. Berdel reported that she graduated from Bishop McDevitt High School in Harrisburg, PA, in 1973. She was in an academic curriculum and had a "B" average in school. She took classes in subjects like biology, chemistry, social studies, mathematics, and English. She noted that she was not good at mathematics. She participated in some coursework after high school. She took a course in Italian language at the Harrisburg Area Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 9 of 36 Community College (HAAC), shorthand at the Thompson Institute in Harrisburg, and English at Penn State. She was not in the military. When interviewed, Ms. Berdel related that she initially worked as an Operator for one month at Bell Telephone in Harrisburg in 1973. She was promoted to another department to do clerical work and upgraded to the corporate office. She did the scheduling for the people listening or observing the Operators. She was a Service Representative in residential and handled payment and billing problems along with toll fraud investigating. She would try to sell the customers other products and services until 1981. She gave birth to a son and stayed home. Ms. Berdel returned to work on a part-time or sporadic basis as a Paperhanger or Wallhanger around 1990. Her husband worked for Bethlehem Steel at the time but he would get laid off. So, she needed a job to work on her own. Her cousin was a Professional Wallpaper Hanger. She noted that "It was the best choice of work" and "People would come to me due to my reputation."The job gave her a sense of pride. The job duties, as described by Ms. Berdel, began with a telephone call from a customer. That is, a person would call her and she would set up an appointment to do an estimate on the`labor. The customer would pick out the wallpaper. She would do the measurements and give a written proposal. If the customer accepted the proposal, then she would pick up the adhesives and wallpaper, and schedule appointments to do the stripping and installing of wallpaper. She noted that,prior to the incident, she would erect scaffolding as needed, use a stepladder, or place a metal plank between two ladders. She had 300 to 400 pounds of equipment including 5-gallon drums of adhesive, sizing, buckets, drop cloths, tool boxes, tool pouch; hammers, and screwdrivers. She had to take down the lights, remove the wall plates, measure, cut, use the levels and plumb lines, work with a flat ruler and scissors, operate a smoothing tool, and use a utility knife and pencil. Ms. Berdel did residential wallpapering mostly and occasionally commercial properties. The living rooms, dining rooms, family rooms, foyers, bedrooms, and bathrooms were wallpapered. She applied paper, fabric, and silk screen. The time involved in doing a job would vary depending on the size and location of the area to be removed of old wallpaper, sized, and installed with new wallpaper. The written estimate included the size and location of the areas and the cost of the Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 10 of 36 wallpaper. Depending on the type,the wallpaper could cost from $30 to $150 a roll. The cost of the wallpaper had to be calculated. An inquiry was made into the hourly or weekly income from the wallpaper business. Ms. Berdel related that "It would be difficult to say what I made whether an hour or a week." Her job hours varied pending the family responsibilities, for example, concerning her father and mother. She related that she was available to do what she wanted to do around 7'/2 months prior to the incident on August 15, 2007, and could work full-time or five days a week. Most of the jobs were local but, at times, she traveled to Hershey, Harrisburg, Mechanicsburg, and York. After the incident,the travel time was less than 10 miles. In regards to her family, Ms. Berdel reported that she took care of her father, mother, and aunt when they were ill. After her mother passed away in 2006, she took care of her estate and then went full force into wallpaper hanging in 2007. She had built a reputation with Interior Designers and was able to take the job referrals because of having the time. She felt like she made an honest profit but her prices were undercut and not the going rate. She should have investigated the rate that other Wallpaper Hangers were charging. She did return to work after the incident but could not lift certain stuff. Some of the customers would help with the lifting. She noted that her husband said it was ridiculous for her to do the work because she would come home and have to go to bed. So, she declined the wallpaper jobs and stopped working. Ms. Berdel reported that she called Wallpaper Hangers in the area to ask about their charges. For example, she spoke to a woman who was in the business for 23 years. The woman noted that she charged $65 an hour for stripping the old wallpaper and $35 for installing new wallpaper. A man with over 25 years of business charged $45 an hour for installation of wallpaper and $240 a day minimum. At the time of the vocational interview, Ms. Berdel reported that she did not have any income or money from benefits. She may have had an income in 2010, but there was no income in 2011 or 2012. Ms. Berdel reported in the vocational interview that she does have a familiarity with Microsoft Word but not PowerPoint or Excel. She uses a hunt and peck Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 11 of 36 method or her two index fingers to enter data through the keyboard. She referred to the style as her "two finger express." In her deposition on April 1, 2010, Ms. Berdel testified that she was a Service Representative for the Bell Telephone Company for 8 years. She reported that she had raised her children prior to starting the business. She also took care of her father, who had cancer, and mother, who had cancer. She reported that she had been self-employed with the business name of"Beth Berdel" for over 10 years. Her job duties included wallpaper hanging, installing, stripping of the existing wallcovering, and estimating jobs. The wage for the work was determined on a per job basis. In describing the tasks that she performed for estimating, she outlined the following steps: Would get a telephone call to give an estimate, go to the location, walk into the house,measure the room, give a proposal to the customer for the wallcovering needed to be purchased, estimate the labor cost, and give the customer a cost for the job. The customer would get the wallpaper independent of her. When responding to an inquiry about the charges for her doing a job in the deposition, Ms. Berdel related that she would do an estimate for a roll of wallpaper and stripping at an hourly rate. For example, she would charge $18 to install a single roll and $50 for the sizing of a medium-sized dining room. She had to take into consideration the architectural things in the room, like the cut-outs or beams, to estimate the charges. Per her deposition, Ms. Berdel related that about a month later after the incident on August 15, 2007, she started going back to work. She indicated that she worked about 5 days a week before the incident and, afterwards, she attempted 3 days for a short time. Due to the pain, she then tried 2 days a week. Dr. Lupinacci had given her capacities for lifting. She noted that she had pre-existing back pain, an arthritic discomfort, which started approximately 10 years earlier. Behavioral Observations The vocational evaluation was held in the conference room at the law firm of Martz and Gailey in York, PA. I sat across from Ms. Berdel at the table when conducting the evaluation. Upon beginning the evaluation with Ms. Berdel, I outlined the purpose of the evaluation along with my role and responded to questions about the testing. I informed her that I would be preparing a report in Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 12 of 36 regards to the evaluation. She was made aware that the ascertained information would'be made available to others and thus would not be confidential. She indicated that she was aware of the nature of the evaluation. I explained to Ms. Berdel that I would be conducting an interview and administering tests. She was informed that she could, for instance,take breaks and stretch as preferred. The interview took place and then I administered the tests and inventories. During the evaluation,Ms. Berdel was cooperative and friendly. She appeared to be relaxed concerning the evaluation. Her speech was clear and she spoke in an articulate manner. Her responses were direct regarding the questions and she conversed spontaneously about topics such as her family, schooling, and jobs. She was conversational and made good eye contact. When working on the tests, for instance, she did so in a deliberate and neat fashion. She thought aloud at times when working on the tasks. She was dressed nicely in a blouse, black slacks, and flat shoes. She was accompanied to the law office by her friend, Suzanne Osman. She mostly sat for the evaluation but did stand intermittently and changed positions. She mentioned that she was in pain and took a pill. During the meeting, she did leave the conference room and went to see her friend, Ms. Osman, in the waiting area. Tests Administered Bender Gestalt Test(BGT) Slosson Intelligence Test-Revision 3 (SIT-R3) (Not administered) Wide Range Achievement Test-Fourth Edition (WRAT4) Career Assessment Inventory Myers-Briggs Type Indicator Test Results The Bender Gestalt Test requires that the person reproduce designs presented serially on nine cards with the use of a pencil and paper. Errors in perceiving and drawing the designs can be indicative of visual-motor-perceptual difficulties. Ms. Berdel reproduced the figures in an accurate manner. The results are not indicative of any significant fine eye-hand-motor coordination difficulties according to the norms. Memory of the designs is tested by asking the person to draw as many of the designs as possible without looking at the cards. In the Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 13 of 36 memory phase procedure, Ms. Berdel remembered five of the nine designs in a fairly accurate fashion and showed an average visual recall. The test is not timed. The Slosson Intelligence,Test-Revision 3 (SIT-R3) was not administered. The SIT-R3 is a test of verbal intelligence. Ms. Berdel indicated after the end of the vocational interview that she was experiencing pain. In light of the amount of time that would be involved in administering the SIT-R3 and that she was experiencing pain, the test was not given. She did express that she would be willing to meet again to do the test. The Wide Range Achievement Test-Fourth Edition (WRAT4) was administered during the evaluation. The WRAT4 provides a measurement of certain basic academic skills. Ms. Berdel obtained a standard score of 106 on Word Reading and a Grade Equivalent of greater than 12.9. As a high school graduate, she has maintained good academic skills in Word Reading. The Career Assessment Inventory (CAI) is designed to assess an individual's interest in a variety of occupations as compared with people actually performing in those occupations. The results are presented in terms of general themes, basic interests, and occupations. Please note that the inventory was not administered during the meeting since she indicated that she was in pain. Rather than continue the evaluation at the law office, I told her that she could take the inventory home to complete and gave her a stamped, self-addressed envelope. I did instruct her in regards to the directions for filling out the inventory. She did return the inventory with her responses. Ms. Berdel's responses on the CAI indicate a high preference for the investigative theme and a preference for the social, artistic, and enterprising themes. Investigative people like activities and occupations that are related to science and mathematics. They prefer to work by themselves or with one or two other people. They like to solve problems, and they do not like to work where there are a lot of rules. They enjoy working with ideas and words to find their own answers and solutions, especially in scientific areas. They describe themselves as achieving, confident, curious, inventive, and scientific. They prefer occupations such as laboratory research worker, medical technician, computer programmer, dental hygienist, and drafter. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 14 of 36 Social people tend to be very concerned about others and like to help them with their personal problems. They see themselves as cheerful and good leaders. They describe themselves as thoughtful, considerate, patient, and generous. They prefer occupations like social worker, recreation leader,teacher, child care assistant, and nurse. Artistic people prefer jobs that offer them the opportunity to express themselves by creating works of art. They usually like to work alone, and they tend to get very involved in what they are doing. They enjoy doing such things as writing poetry, drawing, and sketching. They frequently describe themselves as imaginative, original, expressive, and artistic. Their occupational choices include artist, author, cartoonist, singer, musician, poet, actor/actress, newspaper reporter, photographer, librarian, and interior designer. Enterprising people are good at talking and using words to persuade other people. They often work in sales, and they are clever at thinking of ways to lead and convince people. They see themselves as energetic, enthusiastic, adventurous, ambitious, competitive, outspoken, and confident. They like power, status, and wealth, and they frequently work in business. They often become realtors, buyers/merchandisers, hotel managers, advertising managers, and insurance salespeople. The CAI, furthermore, shows that Ms. Berdel has a high preference for the basic interests of science, art/crafts, and medical services. She has an average preference for the basic interests of social service, business, office practices, clerical/clerking, carpentry, teaching, food service, sales, and writing. The basic interest of science includes studying biology, astronomy, geology, and physics; reading books about science; and doing scientific activities. Arts/crafts is the engagement in fine arts activities such as going to concerts or art galleries and pursuing hobbies such as making pottery or leather goods. Medical services is associated with giving medical aid to people, working in a hospital, studying first aid, and helping at an accident. Social service involves being with people, making new friends, working on a group project, and doing volunteer work. Business has to do with interviewing people, working in an office, being a manager, and working on a sales campaign. Office practices involves typing letters; operating office machines such as computers, copying machines, and calculators; and working at a desk. Clerical/clerking means working with files often to provide Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 15 of 36 information to the public. Carpentry includes working with wood and fixing antiques or building objects such as furniture. The basic interest in teaching has to do with helping individuals learn, especially in school. Food service is associated with serving food, planning a dinner for guests, and working in a kitchen. Sales has to do with selling and being with the public. Writing involves covering news stories, writing poetry, and creating stories. In terms of the occupations, Ms. Berdel's responses indicated that she has a preference for jobs like chiropractor, radiologic technician, computer programmer, respiratory therapy technician, photographer, medical lab technician, operating room technician, registered nurse, licensed practical nurse, chemical dependency counselor, interior designer, reservation agent, travel agent, dental assistant,personnel manager, buyer/merchandiser, card/gift shop manager, caterer, florist, and math/science teacher. Per her responses, there is a lack of interest in jobs such as machinist, musician, forest ranger, and sheet-metal worker. The Myers-Briggs Type Indicator(MBTI) evaluates the preferences of an individual. That is, the inventory can be used to assess an individual in regards to the preferred kinds of work settings and occupations. Per Ms. Berdel's choices on the MBTI, her responses were associated with people who use their thinking to run as much of the world as may be theirs to run. They like to organize projects and then act to get things done. Reliance on thinking makes them logical, analytical, objectively critical, and not likely to be convinced by anything but reasoning. There is a tendency to focus on the job, not the people behind the job. They like to organize facts, situations, and operations related to a project, and make a systematic effort to reach their objectives on schedule. Having little patience with confusion or inefficiency, her type can be tough when the situation calls for toughness. They think conduct should be ruled by logic, and govern their own behavior accordingly. Living by a definite set of rules that embody their basic judgments about the world, any change in their ways requires a deliberate change in their rules. Furthermore, Ms. Berdel, according to her responses on the MBTI, is the kind of person who would be more interested in seeing present realities than future possibilities, which makes her matter-of-fact, practical,realistic, and concerned with the here-and-now. She can use past experiences to help her solve problems and wants to be sure that ideas,plans, and decisions are based on solid fact. She Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 16 of 36 tends to like jobs where the results of her work are immediate, visible, and tangible. She has a natural bent for business, industry,productions, and construction. There is an enjoyment in administration, where she can set goals, make decisions, and give the necessary orders. Getting things done is a strong suit. Vocational Profile/Transferable Skills Ms. Berdel is a 57-year-old female who graduated from Bishop McDevitt High School in 1973, was in an academic curriculum, and had a "B" average in school. After graduating, she took a course in Italian language at the Harrisburg Area Community College, shorthand at the Thompson Institute, and English at Penn State. In terms of an employment background, she initially worked as an Operator for one month at Bell Telephone in 1973, was promoted to another department to do clerical work, and upgraded to the corporate office where she did the scheduling for the people listening or observing the Operators. She was a Service Representative in the residential department until 1981 when giving birth to a son and stopped working. She returned to work on a part-time or sporadic basis as a Paperhanger or Wallhanger around 1990. In that her husband would get laid off from work, she needed a job to work on her own. Her cousin was a Professional Wallpaper Hanger and Ms. Berdel chose to be a Wallpaper Hanger also. She worked until 2007 when involved in a motor vehicle accident, returned to work afterwards, and then stopped working in 2010. Accordingly, the Dictionary of Occupational Titles (DOT) provides job definitions. The Classification of Jobs (COJ) outlines information about the types of skills, aptitudes, and interests associated with her work experiences. The Occupational Information Network (O*NET) offers information, for instance, about the tasks, knowledge, skills, abilities, and work activities as of March, 2013. In regards to her work experiences, Ms. Berdel initially worked as an Operator before being promoted to a clerical position and then she advanced to a position as a Service Representative for Bell Telephone. She then was self-employed as a Wallpaper Hanger or Paperhanger. The DOT provides definitions for the types of jobs that Ms. Berdel has had while working in her own business. The DOT, for instance, has a definition for the title of Paperhanger, which is as follows: Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 17 of 36 841.381-010 PAPERHANGER (Construction) Covers interior walls and ceilings of rooms with decorative wallpaper or fabric, using band tools: Measures walls and ceiling to compute number and length of strips required to cover surface. Sets up pasteboard and erects scaffolding: Marks vertical guideline on wall to align first strip, using plumb bob and chalk line. Smooths rough spots on walls and ceilings, using sandpaper. Fills holes and cracks with plaster, using trowel. Removes paint,varnish, and grease from surfaces, using paint remover and water soda solution. Applies acetic acid to damp plaster to prevent lime from bleeding through paper. Applies sizing (thin glue)to waterproof porous surfaces, using brush, roller, or pasting machine. Measures and cuts strips from roll of wallpaper or fabric, using shears or razor. Mixes paste to desired consistency and brushes paste on back of wallpaper or fabric, using paste brush. Trims selvage (rough edge) from strips, using straightedge and trimming knife. Places paste-coated strips on wall or ceiling to match adjacent edges of figured strips, and smooths strips with dry brush or felt-covered roller to remove wrinkles and bubbles. Smooths joints with seam roller and trims excess material at ceiling and baseboard, using knife. Removes old paper, using water, steam machine, or chemical remover and scraper. A specific vocational preparation(SVP)time of"over 2 years up to and including 4 years" is required for the position Paperhanger per the COJ. An above average skill in reasoning along with above average aptitude in manual dexterity and average aptitudes in spatial comprehension, form perception,motor coordination, finger dexterity, and color discrimination are usually,associated with the position. There are interests in activities that deal with things and objects, are carried on in relation to machines and techniques, and result in the prestige of others. In terms of temperaments, there are preferences for making generalizations based on measurable criteria,making decisions based on sensory criteria, and being in situations requiring the precise attainment of set standards. The position is classified as Medium in terms of the physical demands. According to the O*NET,the title of Paperhanger is associated with tasks such as the following: Smooth strips or sections of paper with brushes or rollers to remove wrinkles and bubbles and to smooth joints;trim rough edges from strips, using straightedges and trimming knives;trim excess material at ceilings or Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 18 of 36 baseboards, using knives. Check finished wall coverings for proper alignment, pattern matching, and neatness of seams; mark vertical guidelines on walls to align strips, using plumb bobs and chalk lines; cover interior walls and ceilings of rooms with decorative wallpaper or fabric, using hand tools; apply adhesives to the backs of paper strips, using brushes, or dunk strips of pre-pasted wall covering in water; wiping off any excess adhesive; measure and cut strips from rolls of wallpaper or fabric, using shears or razors;place strips or sections of paper on surfaces, aligning section edges and patterns; and fill holes, cracks, and other surface imperfections preparatory to covering surfaces. Per the O*NET, for example, the related knowledges for a Paperhanger are customer and personal service, building and construction, mathematics, administration and management, mechanical,public safety, and English language. The skills are active listening, coordination, and speaking. There are abilities in terms of manual dexterity, near vision, arm-hand steadiness, extent flexibility, multi-limb coordination, finger dexterity, gross body equilibrium, trunk strength, control precision, and information ordering. The work activities are performing general physical activities, handling objects, inspecting structures or materials, operating the equipment, maintaining interpersonal relationships, communicating with others, making decisions, and using relevant knowledge. The Department of Labor classifies work according to sedentary, light, medium, heavy, or very heavy. Sedentary work is generally defined as that which requires lifting up to 10 pounds maximum and occasional lifting and/or carrying of articles such as dockets or ledgers. Although the work involves sitting, a certain amount of standing and walking may be required only occasionally. Light work may require lifting up to 20 pounds. However, even though the job may only require up to 5 pounds of lifting, if there were requirements for more than occasional standing or walking, then the light duty classification would be applied. Medium work may require lifting up to 50 pounds. Heavy work could require lifting up to 100 pounds, while very heavy would be over 100 pounds. Wage Analysis According to information ascertained from the vocational interview and records, Ms. Berdel is a 57-year-old female who graduated from Bishop McDevitt High School. She has worked as a Telephone Operator, Clerk, and Service Representative. She operated her own business, named Beth Berdel, on a part- Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 19 of 36 time basis around 1990 and worked until 2007 when involved in a motor vehicle accident, returned to work afterwards, and then stopped working in 2010. She has not returned to any employment. According to the records in the file, Ms. Berdel has been seen by multiple medical profes"sionals who have offered opinions about her and the incident on August 15, 2007. She also had a prior medical history before the incident. On August 16, 2007, Ms. Berdel was examined at the Holy Spirit Hospital by Dr. Buxton a day after the motor vehicle accident. Dr. Buxton conducted an exam of the lumbar, thoracic, and cervical areas of the spine. He determined that the thoracic spine had changes at T11 and T12 which may be due to prior trauma and the cervical spine had degenerative disc disease with associated degenerative changes in the midportion. Dr. Triantafyllou, on October 30, 2007, diagnosed cervical, thoracic, and lumbar disc disease. He concluded that she was capable of sedentary to light duty with only occasional lifting and no repetitive use of the arms in an overhead position. The results of the Functional Capacity Evaluation, as conducted by Mr. Raptosh on February 2, 2009, indicated that Ms. Berdel could meet the physical demands at the light level. In his evaluation report on October 11, 2012, he noted that she could meet the physical demands at the sedentary level. Dr. Lupinacci began treating Ms. Berdel on August 28, 2007, for neck, scapular area, mid back, and lower back pain. She had pre-existing osteoarthritis with degenerative changes in the neck and back. During the treatment, he had medically permitted her to return to work at 3 days per week to build up her stamina with a lifting restriction to 30 pounds as a Wallpaper Finisher as of February 25, 2008. He decreased her work to 2 days a week and 8 hours a day on April 24, 2008. He added that she was working 2 days weekly at 8 hours a day for a total of 16 to 20 hours a week as a maximum work capacity at her business. He reported that she was unable to work from August 15, 2007, to February 25, 2008. Dr. Hely,per an Independent Medical Evaluation on August 5, 2010, reported that Ms. Berdel had symptoms of neck and low back pain and that she had a longstanding difficulty with her neck and low back as the result of osteoarthritis. He noted that, at the time of the medical evaluation, she had given up the business of paper hanging. His.diagnostic impression was that she had ongoing symptoms of neck pain associated with degenerative arthritis and ongoing symptoms of back Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 20 of 36 pain associated with degenerative arthritis of the lumbar spine dating back to evaluations prior to the motor vehicle accident of August 15, 2007. He did not find any objective evidence in the medical records to identify a specific injury occurring from the motor vehicle accident. He opined that any claim for lost wages as a result of her inability to work must take into account that her limitations are a result of an arthritic condition and not necessarily as a result of the motor vehicle accident. He was not able to explain why she could not return to her paper hanging activity level other than to cite the arthritic changes in the neck and back. Dr. Lupinacci signed off on a checklist about the work capability of Ms. Berdel on October 19, 2012. He checked the option of"Capable of full-time sedentary work." In conducting the wage analysis, vocational scenarios are apparent concerning the information ascertained from the records. Ms. Berdel was involved in an incident on August 15, 2007. She continued to work but then stopped prior to August 5, 2010. However, she has been medically permitted to return to full-time work at a sedentary classification by Dr. Lupinacci. Dr. Hely was not able to explain why Ms. Berdel could not return to her paper hanging activity level other than to cite the arthritic changes in the neck and back. He did not find any objective evidence in the medical records to identify a specific injury occurring from the motor vehicle accident. He believed that any lost wage claim regarding her inability to work was due to her arthritic condition. Pertaining to the wage analysis and the scenarios, there were Federal Income Tax Forms, namely the Schedule C for Profit or Loss from Business, in the records ranging from 2003 to 2010. The records documented the Gross Income, Total Expenses, and Net Profit or Loss for the period of 8 years while Ms. Berdel was self-employed in the business of"Wallcovering Installer." The following Profit or Loss Table: 2003-2010 provides an outline obtained from her tax forms. --------------------------------------------------------------------------------------------------- Profit or Loss Table: 2003-2010 Year Gross Income Total Expenses Net Profit or Loss 2003 $ 5,245.00 $5,203.00 $ 42.00 2004 $ 1,945.00 $1,918.00 $ 27.00 Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 21 of 36 2005 $ 2,472.50 $2,442.00 $ 30.50 2006 $ 2,764.50 $2,612.16 $ 152.34 2007 $13,859.00 $2,050.00 $11,809.00 -----------------------------------------------------------=----------------- 2008 $ 6,315.00 $2,326.00 $ 3,989.00 2009 $ 8,186.88 $2,997.71 $ 5,189.17 2010 $ 1,356.75 $ 877.70 $ 479.05 ---------------------------------------------------------------------------- According to the tax forms as outlined in the table, Ms. Berdel had Net Profits during each filing season for the period of 8 years in her business. However, before the incident on August 15, 2007, the Net Profits ranged from a low of$27 in 2004 to a high of$11,809 in 2007. More specifically, she had a Gross Income of$1,945 and Total Expenses of$1,918 in 2004 and Gross Income of$13,859 and Total Expenses of$2,050 in 2007. She only had Net Profits of$42 in 2003; $30.50 in 2005; and $152.34 in 2006. Ms. Berdel was self-employed from 2003 to 2007 but, as highlighted by the table, had a significantly low Net Profit for an individual reportedly working on a full- time basis. During 2007, she had an opportunity to operate her business for approximately 7 months and 14 days (January 1, 2007, to August 14, 2007). In approximately 7'/2 months, she had a Gross Income of$13,859; Total Expenses of $2,050; and a Net Profit of$11,809. On a monthly basis, the average Net Profit would be about$1,575 ($11,809/7.5 months) and the annual amount would be calculated as approximately $18,900 ($1,575 x 12 months) for 2007. Otherwise, the table outlines her Net Profit was minimal. Except for 2007, the Net Profit ranged from $27.00 to $152.34 even before the incident. As such, a wage analysis for Ms. Berdel would need to consider the ongoing variance in her Net Profits. The Pennsylvania Occupational Wages, Statewide, for May, 2009, were researched and used for the analysis. The state, through the Center for Workforce Information and Analysis,published the wages for the occupation of Paperhanger and alternative occupations such as Telephone Operator and Customer Service Representative. I have used the publication to prepare an outline of the occupation of Paperhanger and the kinds of alternative occupations that are appropriate for Ms. Berdel in view of her vocational profile. The following table contains examples of the types of occupations that she could consider as alternatives to the position of Paperhanger. Per the interview and the records, a vocational profile was developed which indicated that occupations like Telephone Operator, Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 22 of 36 Customer Service Operator, Receptionist/Information Clerk, and Interviewer are appropriate. The Statewide Occupational Annual Wage Table outlines three levels of wages: Entry, 25%, and 50% or Median Wage. -------------------------------------------------------------------------------- Statewide Occupational Annual Wage Table Occupations Entry 25% 50% or Median ------------------------------------------------------------------------------ Paperhanger $27,040 $30,160 $43,400 ------------------------------------------------------------------------------- Telephone Operators $21,560 $23,900 $30,600 Customer Service Representatives $21,870 $24,500 $31,010 Receptionists and Information $18,330 $19,800 $24,190 Clerks Interviewers $23,290 $25,040 $30,320 -------------------------------------------------------------------------------- Per the Statewide Occupational Annual Wage Table for May, 2009, Paperhangers had an entry level wage of$27,040; 25% level wage of$30,160; and 50% or median level of$43,400. The Paperhanger typically has the classification of medium. The Receptionists, for example, had an entry level wage of$18,330; 25% level wage of$19,800; and 50% or median level wage of$24,190 while the Customer Service Representatives had an entry level wage of$21,870; 25% level wage of$24,500; and 50% or median level wage of$31,010. The entry wage and 25%wage would be representative of the lower levels for the position. The median annual wage represents the midpoint of the surveyed wages or the 50th percentile. The median typically offers the best representation of the average wage of an occupation. Please note that the entry level wage for a Paperhanger was $27,040 in 2009. The Net Profit for Ms. Berdel, as based on her highest year of earnings in 2007, was $11,809. Her annual Net Profit would have been approximately $18,900 as calculated for a full year. When compared to the entry level wage for a Paperhanger, as published by the state, her Net Profit of$18,900 was considerably less than the entry level wage of$27,040 by the amount of$8,140. A comparison can be made to the entry level wages of the alternative occupations. The entry level wages for alternative occupations were as follows: Telephone Operators at $21,560; Customer Service Representatives at $21,870; Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 23 of 36 Receptionists and Information Clerks at $18,330; and Interviewers at $23,290. She would have had a Net Profit of$18,900 as a Paperhanger or within the low end of the range of$18,330 to $23,290. In view of the opinions about Ms. Berdel and the work classifications, there are various scenarios. The records indicate that medical professionals have offered opinions about her work classifications ranging from sedentary to medium. The Opinions Regarding Work Classifications Table outlines the classifications starting with Dr. Lupinacci in 2008 and ending with him in 2012. The table is as follows: ------------------------------------------------------------------------------- Opinions Regarding Work Classifications Table Date Work Classifications 02/25/08 Dr. Lupinacci: Medium modified (3 days a week as a Paperhanger) 04/25/08 Dr. Lupinacci: Medium modified (2 days a week as a Paperhanger) 02/02/09 Functional Capacity Evaluation by Mr. Raptosh: Light 10/30/09 Dr. Triantafyllou: Sedentary to light 08/03/09 Dr. Lupinacci: Not able to work from 8/15/07 to 2/25/08 08/05/10 Dr. Hely: No wage claim based on the motor vehicle accident .10/11/12 Functional Capacity Evaluation by Mr. Raptosh: Sedentary 10/19/12 Dr. Lupinacci: Sedentary (Full-time) ------------------------------------------------------------------------------------ According to the Opinions Regarding Work Classifications Table, Dr. Lupinacci reported in a special letter on August 3, 2009, that Ms. Berdel was not able to work from August 15, 2007, to February 25, 2008. In that he noted that she was not able to work, then Ms. Berdel experienced a loss of wages for approximately 6 months. However, he medically permitted her to return to work as a Paperhanger, which is classified as medium, on a part-time basis for 3 days which was later reduced to 2 days a week. So, one scenario would be that she experienced a loss of wages for 6 months at the calculated monthly Net Profit of $1,575. The loss would be equivalent to $9,450. Ms. Berdel worked in 2008 and had a Net Profit of$3,989 for a period of about 10 months. At a calculated Net Profit of$1,575 monthly in 2007, the loss for the 10-month period would be equal to $11,761 ($15,750-$3,989). The Functional Capacity Evaluation by Mr. Raptosh and the medical opinion of Dr. Triantafyllou Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 24 of 36 indicated that she had a sedentary to light classification in 2009 when she had a Net Profit of$5,189 as a Paperhanger. At a calculated annual Net Profit of $18,900 in 2007, the difference would be $13,711 in 2009. In total, there was a loss of wages of$34,922 ($9,450 + $11,761 + $13,711). In 2010, Ms. Berdel stopped working as a Paperhanger. Her Net Profit was $479. Although she ended the paperhanging business, she still had been medically released from the sedentary to the light classification. However, even though permitted to work at a sedentary or light classification, she did not begin working , in an alternative occupation and has not returned to the workforce. Dr. Lupinacci, as recently as October 19, 2012, medically permitted her to work full-time at a sedentary job. Nevertheless, at the time of the vocational interview on February 7, 2013, she was not employed. Although Ms. Berdel continued to operate her business up until 2010, she also had an opportunity to locate a job in an alternative occupation. Another scenario would be that she could have pursued employment in a sedentary job such as Customer Service Representative or Receptionist. The alternative occupations had entry level wages comparable to her calculated Net Profit of$18,900 as a Paperhanger. The entry level wages ranged from $18,330 to $23,290. There would not be a loss of wages from 2010 onward when she ended her business since the alternative occupations offered a comparable wage even at the entry level. Thus, the loss of wages would remain as a total of$34,922. In terms of another scenario, as of August 5, 2010, Dr. Hely determined that Ms. Berdel had given up the business and she was caring for her 91-year-old aunt. He did not find any objective evidence in the medical records to identify a specific injury occurring on August 15, 2007. He opined that her limitations were due to a pre-existing arthritic condition and not a result of the motor vehicle accident. He was not able to explain why she could not return to her paper hanging activity level other than to cite the arthritic changes in the neck and back. Given the medical opinion of Dr. Hely about her pre-existing arthritic condition, there would not be a wage loss from the motor vehicle accident that occurred on August 15, 2007. Rather, any loss of wages would be attributable to her arthritic condition. So, although I have listed partial wage losses from 2007 to 2009 which totaled $34,922, they are not associated with the motor vehicle accident per Dr. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 25 of 36 Hely. Therefore, Ms. Berdel did not have a loss of wages related to the motor vehicle accident. According to the USDOL, the job duties of occupations are described. For example, a Customer Service Representative interacts with customers and callers to provide information in response to inquiries about products and services or handle and resolve their concerns. A Receptionist answers inquiries and obtains information for the general public and customers and provides information regarding the locations of departments and employees. The alternative occupations are typically classified as sedentary in physical requirements. Per the Center for Workforce Information and Analysis, there are educational levels associated with the occupations. The educational levels, for instance, are ' "short-term on-the-job-training" (ST OJT), "moderate-term on-the-job-training" (MT OJT), "long-term on-the-job-training" (LT OJT), associate's degree (AD), and bachelor's degree (BD). The alternative occupations of Telephone Operator, Customer Service Representative, Receptionist/Information Clerk, and Interviewer are all identified with the educational level of ST OJT. The occupation of Cashier also has the same educational level as the alternative occupations. As a vocational expert, I apply methodology that follows a long-term model in the vocational field. The methodology has been reviewed by peers and uses sources which are relied upon by vocational experts. I took the following steps in preparing the report. Collected the data and facts concerning Ms. Berdel from a vocational evaluation and review of the records; put together the obtained information with an emphasis about her potential employability; identified and used information ascertained from sources such as a review of the literature like government publications from the DOT, COJ, and ONET along with medical documentation; utilized a wage survey published by the state government; determined a wage overview in view of her vocational profile; and formulated opinions concerning her earning capacity. I believe, as a vocational expert, that any wage calculations would be based on information ascertained from the Statewide Occupational Annual Wage Table in light of the vocational profile of Ms. Berdel. Please note that the wage overview does not include factors such as raises, vacation time, and fringe benefits. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 26 of 36 Records Reviewed Regarding the records in the file, the following have been utilized and listed below in preparing this report. Deposition of Elizabeth Berdel; dated 4/1/10 Civil Action Complaint; dated 7/9/09 Police Accident Report from the West Shore Regional Police Department; dated 8/15/07 Federal Tax Returns, Schedule C, of Elizabeth Berdel; dated 2003-2010 Medical Records from Tristan Associates; dated 2001-2006 MRI Report by Joseph Bellissimo, MD; dated 7/30/01 Chiropractic Records from Thomas Smarsh, DC; dated 2004-2008 Medical Records of Alan Roumm, MD; dated 2006-2007 Medical Records of Suzanne Wolanin-Saifi, MD; dated 2006-2009 X-ray Report by Judith Josefiak, MD; dated 10/18/06 Physical Therapy Records from Drayer Physical Therapy; dated 2007-2008 Medical Records of William Rolle, MD; dated 2007-2008 Medical Records of Michael Lupinacci, MD; dated 2007-2012 Medical Record from the Holy Spirit Hospital; dated 8/16/07 Medical Report by Kvita Sanghvi; dated 9/4/07 Patient Health Questionnaire from Elizabeth Berdel; dated 10/30/07 Medical Report by Steven Triantafyllou, MD; dated 10/30/07 Letter to Thomas Smarsh, DC, from Elizabeth Berdel; dated 1/15/08 Functional Capacity Evaluation Report by David Raptosh, MA; dated 2/1/09 Letter to Michael Lupinacci, MD, from Elizabeth Berdel; dated 7/2/09 Medical Report to Herman Gailey, Esquire, by Michael Lupinacci, MD; dated 8/3/09 . Independent Medical Evaluation Report by Daniel Hely, MD; dated 8/5/10 Vocational Assessment Report by Terry Leslie, M.Ed.; dated 5/2/11 Letter to Michael Lupinacci, MD, by Herman Gailey, Esquire; dated 8/9/12 Outpatient Evaluation Report by Michael Lupinacci, MD; dated 9/26/12 Functional Capacity Evaluation Report by David Raptosh, MA; dated 10/11/12 Response to Herman Gailey, Esquire, by Michael Lupinacci, MD; dated 10/19/12 Calculation of Lost Profits Report by Charles Kern, MBA; dated 10/31/12 Update on the Vocational Assessment Report by Terry Leslie, M.Ed.; dated 1/22/13 Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 27 of 36 Comments on the Records Reviewed According to the records, Ms. Berdel was seen for a vocational assessment by Terry Leslie. In his report, which was dated on May 2, 2011, Mr. Leslie indicated that he conducted an interview of Ms. Berdel. He wrote another report about her on January 22, 2013, to provide an updated opinion. Comments will be made about his two reports. Mr. Leslie, in the "Conclusions" section of his initial report, wrote that Ms. Berdel "would not have any skills that transfer to light work" in that her career has been that of a Wallpaper Hanger. He then designated the occupation of Cashier for her and no other occupations as based on his vocational assessment. He assumed that she "would only be competitive to earn entry level earnings." For the most part, he has dismissed any of the skills that she has used in running the wallpapering business. Ms. Berdel is a high school graduate and has the skills to be a Cashier. However, she certainly has skills associated with many alternative occupations. She did initially work as a Telephone Operator, Clerk, and Service Representative. She later operated her own business, which was named "Beth Berdel," on a part-time basis around 1990 and worked until 2007 when involved in a motor vehicle. She did return to work as a Paperhanger but stopped before August 5, 2010 In her paperhanging business, Ms. Berdel continued to perform not only the types of duties she had at Bell Telephone in using the telephone, doing clerical duties, and providing service representation, she also had additional responsibilities by being self-employed. When operating her business, for example, she would converse with people by telephone and in person, schedule appointments to meet with them, determine the travel routes to their locations, discuss the types and procedures for installing the wallpaper, estimate the costs of the labor and materials for a job, assist the customers in choosing the wallpaper, write up a proposal for her services, order supplies, communicate with the suppliers,take care of the billing, collect payments for her services, and make payments. The Statewide Occupation Wage Table, which I presented, highlights the kinds of alternative occupations which would be appropriate for Ms. Berdel in addition to the occupation of Cashier as designated by Mr. Leslie. Alternative occupations Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 28 of 36 such as Customer Service Representative and Receptionist are sedentary and allow for changes in physical positions. In the "Conclusions" section of his report, Mr. Leslie noted about the Cashier job that the "entry level wages for this occupation is $15,620 in 2009 when this testing was completed."I did not-locate any kinds of testing that Mr. Leslie completed such as an academic or aptitude,test. In his "Introduction" section, he did report that he conducted an interview and reviewed certain documents. Concerning the documents, Mr. Leslie listed the following medical records in the section on"Medical Status"regarding Ms. Berdel: August 3, 2009, and March 22, 2011, correspondence from Dr. Lupinacci; Functional Capacity Evaluation from February 1, 2009; and August 5, 2010,report from Dr. Hely. He did not include any records about Ms. Berdel which contained information about her medical status prior to the incident and dated before August 15, 2007. He also listed the deposition of Ms. Berdel and her tax returns from 2003 to 2009. In Mr. Leslie's section containing his "Vocational Impressions" concerning Ms. Berdel,he reported that she was able to type, use a computer, is familiar with Microsoft Word, and has done record keeping and bookkeeping. Nevertheless, he then wrote that she has not operated a cash register, switchboard, copier, or fax machine. He added that she has not done any filing. Please note that she did work as a Telephone Operator for Bell and performed clerical duties. She had operated her own business. Yet he believes that she has no knowledge about using a copy machine or filing away paperwork. In the "Vocational Impressions" section, Mr. Leslie reported that the "mean earnings of Paperhangers in the Commonwealth of Pennsylvania as of the date of her injuries equal $46,930."He obtained the information about the mean earnings from a survey published by the Pennsylvania Department of Labor and Industry. He chose the mean earnings of$46,930 to be representative of her pre-injury earning capacity and the entry level wages of$15,620 for a Cashier as her post- injury earning capacity. He then calculated historical and future wage losses. His selections are certainly not representative of the pre-injury or post-injury capacities of Ms. Berdel. Mr. Leslie truly has not reviewed the tax returns of Ms. Berdel in an objective manner and he likewise has subjectively positioned her as a person without any skills even though she had the capacity to operate her own business. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 29 of 36 I disagree with his projections about her earnings capacity as noted in the report on May 2, 2011. When analyzing her work history and annual Net Profit, Ms. Berdel did not have a career as a Paperhanger which resulted in earnings anywhere near the mean earnings of$46,930 that Mr. Leslie assumed. In his "Historical Wage Loss Projections" section, Mr. Leslie used an "Earnings Growth"percentage. He then, in a table,projected an "Annual Income" of $48,150 in 2008; $48,824 in 2009; and $49,703 in 2010. Again,he based the projection on mean earnings of$46,930. He multiplied $46,930 by 2.6%to arrive at $48,150 in 2008. I once more disagree with his assumption that she would have had earnings at that base level. Additionally, I have included a Comparative Statewide Occupational Annual Wage Table which outlines the four levels of wages as of May, 2011, for the following: Mean, Entry, 25%, and 50%,or Median Wage. The table, which includes the Mean, highlights the wages of a Paperhanger as listed in 2009 and then 2011. --------------------------------------------------------------------------------------------------- Comparative Statewide Occupational Annual Wage Table Occupations Mean Entry 25% 50% or Median ------------------------------------------------------------------------------7-------------------- Paperhanger(2009) $45,170 $27,040 $30,160 $43,400 --------------------------------------------------------------------------------------------------- Paperhanger(2011) $36,200 $25,470 $28,380 $34,720 --------------------------------------------------------------------------------------------------- Per the Comparative Statewide Occupational Annual Wage Table for 2009 and 2011, the survey documented that the wage of a Paperhanger actually decreased notably rather than increase as assumed by Mr. Leslie. His projected wages are not supported by the actual data published by the state. That is, a Paperhanger had a Mean Wage of$45,170 as of May, 2009, and a Mean Wage of$36,200 as of May, 2011, for a decrease of$8,970 or almost 20%.Nevertheless, as pointed out earlier,the Median Wage represents the best indicator. The Median Wage decreased by 20% from $43,400 to $34,720. A calculation of the Gross Income for Ms. Berdel, as based on her highest year of earnings, was noted earlier. The calculation indicated that she would have had a Net Profit of approximately $18,900 in 2007. Her Net Profit of$18,900 would Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 30 of 36 still be below the Entry Level Wage of$25,470 for a Paperhanger as of May, 2011, and certainly below the Median Wage of$34,720. Mr. Leslie did indicate that as of August 15, 2007, Ms. Berdel was "52.31 years of age with a high school diploma."He calculated that she "would have a worklife expectancy of 8.51 years from that date" which he explained as meaning she would remain "actively involved in the world of work" for that amount of time. He did write that the worklife expectancy takes into account factors such as the statistical probability of death and disability. Again, he appears to have not been aware of the medical status of Ms. Berdel prior to the incident in that no medical records were listed before August 15, 2007, except for the tax records. Assuming a worklife expectancy of even 8.51 years fails to recognize her medical status prior to the incident and the physical demands of a Paperhanger. Her worklife as a Paperhanger likely would be less than 8.51 in view of her pre- existing medical status. In the "Future Wage Loss Projections" section, Mr. Leslie did write that"based on the medical opinion of Dr. Hely, Ms. Berdel suffered no injuries and would not have any losses." Given his medical opinion, Dr. Hely did opine that Ms. Berdel would not have experienced any loss of wages regarding the motor vehicle accident on August 15, 2007. Regarding the report on his updated opinion, dated January 22, 2013, Mr. Leslie wrote about the work ability of Ms. Berdel. On the first page he reported that "Dr. Lupinacci on March 22, 2011,rendered the opinion that Ms. Berdel was totally disabled from her employment as a Wallpaper Hanger and the combination of her limitations would prevent her from sustaining any gainful employment." He apparently was reporting that Dr. Lupinacci had not medically permitted her to return to any work. In an Outpatient Evaluation Report on March 22, 2011, Dr. Lupinacci indicated that Ms. Berdel was not working. He noted that she was limited to a"light duty capacity at work."According to the letter that was sent back to Mr. Gailey on October 19, 2012, Dr. Lupinacci medically permitted her to work on a full-time basis at the sedentary level. Yet, Mr. Leslie wrote that Dr. Lupinacci rendered her as totally disabled and unable to have gainful employment even though she was medically permitted by Dr. Lupinacci to work at a light level on March 22, 2011. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 31 of 36 On the second page of his updated opinion, Mr. Leslie re-introduced a table from the first report about Ms. Berdel's pre-injury and post-injury earning capacities. He again used the mean earnings of$46,930. However, he increased the annual incomes for the pre-injury capacity in the updated opinion. For example, $48,150 was changed to $48,487 for 2008 and $48,824 was changed to $49,166 for 2009. Yet, he kept the annual incomes for the post-injury capacities the same. He used the entry wage of a Cashier in the first report. The annual income was $15,620 in the first report and $15,620 in the updated opinion for 2009. The.annual income was listed as $15,901 for 2009 in the first report and remained as $15,901 in 2010 for the updated opinion. Please note that the Entry Level Wage of a Cashier increased from 2009 to 2011 according to the wage surveys published by the state. The Entry Level Wage for a Cashier was $15,620 in 2009 and $16,970 in 2010. The wage increased by $1,350. Nevertheless, Mr. Leslie did not factor in an increase for the annual income for the post-injury earning capacity for a Cashier position. In that I have critiqued many areas of the two reports authored by Mr. Leslie and have documented certain inaccuracies or unsupported assumptions, I must disagree with his conclusions pertaining to the wage analysis of Ms. Berdel. I believe that she has had an opportunity to opt for employment in the kinds of alternative occupations as highlighted and have wages equal to, or better than,her Net Profit as a Paperhanger. The alternative occupations are appropriate for her in view of her vocational profile and are within the sedentary classification. A Calculation of Lost Profits Report was prepared by Charles Kern on October 31, 2012. Mr. Kern, as based on his calculations, for instance, determined that Ms. Berdel had an average yearly net profit of$62.96 for the 4 years before the motor vehicle accident on August 15, 2007, and there was an increase in her wall covering business in the 3 years following the accident. That is, he wrote that the business had average revenues of$3,106.75 in the 4 years before the accident and then average,revenues of$5,761.83 for the 3 years after the accident. He noted that the average yearly net profit after the accident was $3,219.07. His conclusion was that Ms. Berdel "did not have any economic loss as a result of the August 2007 accident, but in fact had an excess reimbursement"of$17,709.64. He added that she was reimbursed by Erie Insurance for the amount of$15,000 for lost revenues. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 32 of 36 Ms. Berdel wrote a letter to Dr. Smash on January 15, 2008. Ms. Berdel requested that Dr. Smash type a written statement that she had a treatment of spinal adjustments from him for minor discomfort in her spine. She indicated that since she had pre-existing arthritis and a minor discomfort condition, then a letter would clarify that she did not have a chronic problem before the date of the incident. She suggested some of the wording for Dr. Smarsh to use. For instance, she noted that he could write that she was "Seen in our office for spinal adjustments due to minor discomfort and arthritis stiffness." Furthermore, Ms. Berdel suggested that he add "upon completion of adjustment"and "treatment," "she was relieved from her discomfort and was pain free." Dr. Smarsh addressed a letter to Ms. Berdel on January 23, 2008. He wrote the following: "Elizabeth was treated in my office for Spinal Related discomfort and stiffness. She was treated periodically from March to July 2007 and at that time was pain free." A letter was sent to Dr. Lupinacci by Ms. Berdel on July 2, 2009. In her letter, she requested that he provide a narrative report to her attorney so that her case could continue. Dr. Lupinacci did forward a narrative report to Mr. Gailey on August 3, 2009, about his medical treatment of Ms. Berdel in response to her request. He limited her to 2 days at 8 hours each for a total of 16 to 20 hours per week. Ms. Berdel did work in her business from January 1, 2007, to the time of the incident on August 15, 2007. However, she only had a Net Profit of$11,809 during that time period. She reportedly worked full-time in her business. A job with regular full-time hours would be 40 hours per week. However,per one medical record in the file prior to the incident, she worked 25 to 30 hours a week. There were no business records, for example, available for review pertaining to her actual hours of work in 2007 or receipts such as accounts receivable. Ms. Berdel did not report an exact hourly, weekly, or monthly income during the vocational interview. Rather, she noted that the charge for her services would vary depending on factors such as the architectural design of the rooms. Even at her highest Gross Income in 2007, Ms. Berdel had a calculated Net Profit less than the Entry Annual Wage of a Paperhanger. Her calculated Net Profit for the year was $18,900 and the Entry Annual Wage of a Paperhanger was $27,040 in May, 2009. Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 33 of 36 Conclusion As a vocational expert, I primarily conducted an evaluation and reviewed the records pertaining to Ms. Berdel for the purpose of determining her vocational profile and preparing a wage analysis. That is, I interviewed her, administered a series of tests and inventories, and documented information from the records. Based on the aforementioned evaluation and documentation, Ms. Berdel is a 57-year-old female who graduated from Bishop McDevitt High School in 1973, was in an academic curriculum, and had a "B" average in school. After graduating, she took post-high school courses in Italian language, shorthand, and English. She was initially employed as an Operator for Bell Telephone in 1973, was promoted to another department to do clerical work, upgraded to the corporate office where she did the scheduling for the people listening or observing the Operators, and then was a Service Representative in the residential department until 1981. She started working as a part-time Paperhanger or Wallhanger around 1990 and began her own business. She worked until 2007 when involved in a motor vehicle accident, returned to work afterwards in 2008, and then stopped working in 2010. She has not returned to the workforce. During the vocational evaluation, certain tests and inventories were administered. Per the testing, Ms. Berdel reproduced the geometric designs on an eye-hand- motor test in an accurate manner. She showed an average visual recall of the designs. She obtained a standard score of 106 on Word Reading and a Grade Equivalent of greater than 12.9 on an academic test. A career inventory, for instance, indicated that she has a preference for the investigative, social, artistic, and enterprising themes. She has basic interests in science, art/crafts,medical services, social service, business, office practices, clerical/clerking, carpentry, teaching, food service, sales, and writing. She is the type of person who likes to use her thinking to run as much of the world as may be hers to run, likes to organize projects, and then acts to get things done. Ms. Berdel was involved in a motor vehicle accident on August 15, 2007. According to the records in the file, she has been seen by multiple medical professionals who have offered opinions about her and the incident on August 15, 2007. She also had a prior medical history before the incident. Dr. Triantafyllou, on October 30, 2007, diagnosed cervical, thoracic, and lumbar disc disease and concluded that she was capable of sedentary to light duty. Mr. Raptosh conducted Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 34 of 36 a Functional Capacity Evaluation on February 2, 2009, which resulted in her meeting the physical demands at the light level and another evaluation on October 11, 2012, where she met the physical demands at the sedentary level. Dr. Lupinacci, who began treating Ms. Berdel on August 28, 2007, for neck, scapular area, mid back, and lower back pain, indicated that she had pre-existing osteoarthritis with degenerative changes in the neck and back. During the treatment, he had medically permitted her to return to work as a Paperhanger, a medium duty classification, at 3 days per week initially and then 2 days a week. On October 19, 2012, he determined that she had the capability to perform full- time sedentary work. In addition, he noted that she was unable to work from August 15, 2007, to February 25, 2008. Dr. Hely, who conducted an Independent Medical Evaluation on August 5, 2010, reported that Ms. Berdel had a longstanding difficulty with her neck and low back as the result of osteoarthritis. His diagnostic impression was that she had ongoing symptoms of neck pain and back pain associated with degenerative arthritis back to evaluations prior to the motor vehicle accident of August 15, 2007. He did not find any objective evidence in the medical records to identify a specific injury occurring from the motor vehicle accident and opined that any claim for lost wages as a result of her inability to work must take into account that her limitations are a result of an arthritic condition and not necessarily as a result of the motor vehicle accident. In conducting the wage analysis, various vocational scenarios were apparent concerning the information ascertained from the records. Ms. Berdel was involved in an incident on August 15, 2007. She continued to work but then stopped prior to August 5, 2010. However, she has been medically permitted to return to full- time work at a sedentary classification by Dr. Lupinacci. Dr. Hely was not able to explain why Ms. Berdel could not return to her paper hanging activity level other than to cite the arthritic changes in the neck and back. He did not find any objective evidence in the medical records to identify a specific injury occurring from the motor vehicle accident. He believed that any lost wage claim regarding her inability to work was due to her arthritic condition. One scenario included Ms. Berdel experiencing a loss of wages for 6 months at the calculated monthly Net Profit of$1,575. The loss would be equivalent to Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 35 of 36 $9,450. There was also a loss of wages of$11,761 in 2008 and $13,711 in 2009 for a total of$34,922. In 2010, when Ms. Berdel stopped working as a Paperhanger, she had the option to continue employment in the workforce in alternative occupations at the sedentary classification. The alternative occupations such as Customer Service Representative or Receptionist. The alternative occupations had entry level wages comparable to her calculated Net Profit of$18,900 as a Paperhanger. The entry level wages ranged from $18,330 to $23,290. There would not be a loss of wages from 2010 onward when she ended her business since the alternative occupations offered a comparable wage even at the entry level. Thus, the loss of wages would remain as a total of$34,922. In terms of another scenario, Dr. Hely, on August 5, 2010, determined that he did not find any objective evidence in the medical records to identify a specific injury occurring on August 15, 2007. He opined that the limitations of Ms. Berdel were due to a pre-existing arthritic condition and not a result of the motor vehicle accident. He was not able to explain why she could not return to her paper hanging activity level other than to cite the arthritic changes in the neck and back. Given his medical opinion about her pre-existing arthritic condition,there would not be a wage loss associated with the motor vehicle accident that occurred on August 15, 2007. Rather, any loss of wages would be attributable to her arthritic condition. So, although partial wage losses were listed from 2007 to 2009 for a total of$34,922, they are not associated with the motor vehicle accident per Dr. Hely. Therefore, Ms. Berdel did not have a loss of wages related to the motor vehicle accident. The wage analysis does not include factors such as raises, vacation time, and fringe benefits. In the interview, Ms. Berdel was asked about her job preferences. She responded by saying that she would like to have a flexible schedule and did not feel like she could be reliable. She said "there are days where I am not able to work" and "I still have a struggle to get through simple things because of how I feel." She related that she would like to do something creative and from her home. So, while at home, she sometimes spends time to create. When replying to a question about her willingness to go on job interviews, she replied to the inquiry by saying "Yes, I would be willing."However, she Erick Violago, Esquire Re: Elizabeth Berdel March 27, 2013 Page 36 of 36 commented that sticking to a schedule would be difficult because of her pain. She noted that she may not be reliable at times. This report consists of information ascertained from a review of the records and resources such as wage surveys from the United States Department of Labor. Upon receipt of any additional records such as further documentation about her employment or medical status, I would like to reserve the right to review and report on them especially in regards to her vocational profile and wage analysis. As a vocational expert, I have used the information to provide you with opinions. All of the opinions in this report have been stated with a reasonable degree of vocational certainty. Please feel free to contact me if you have any questions. Sincerel , Robert D. Cipko, Ph.D., CRC, ABVE ClinicalNocational Supervisor Licensed Psychologist RDC __ __ . � y i � � I , � J t S f,�.. � _ z ` .. r August 3:2009 Herman A. Gailey. Esq. PFJSI\4 Martz& Gailey, LLP 96 South George St., Suite 430 York, PA 17401 Physicians of Rehabilitation, PATIENT: ELIZABETH BERDEL indu5t6al 5Pine Medicine,P ACCT#: 4726 DATE: 08/03/09 Dear Mr. Gailey: ']'his is a special letter regarding Elizabeth Berdel which you requested on February 29,2009. .1 Sp:ear:au.�r,tlr:?irdl Srrit;: Elizabeth Berdel is a 54-year-old woman who was involved in a motor vehicle accident on 08/15/07. We inilialk, say. 1?;.r or At tl:e.time of the accident slie -,vas a restrained drivel wni. Was nit !'h:ysic,'d rne3�,�n in a head-on collision with the primary collision being on the driver's side. The passenger airbag E icn a.;d rry no:,is deployed, but not the driver's airbag. She subsequently developed increased neck pain, scaprdar area pain, mid back pain, and low back pain radiating down both arms with a numbness that was intermittent. She also noted reduced range of motion in all of her spine. ua} he; pale was 97;0. "Ile day ] saw her it was 8/10. Her rµr. . rsc -..- - With sitting, standincy, bending forward, lifting, exercising, and driving. It is improved with medications, heat. and massa,e. She had no bowel or bladder difficulties. No.clear weakness. 01'signif7cance, she,had a history of pre-existing osteoarthritis with degenerative changes in her neck Michael F. Lupinacci,MD and back. William A. Rolle,Jr.,MD Lisa Eaton,PsyD Previous cervical x-rays from 10/18/06 showed marked cervical spondylosis with multilevel bilateral foraininal stenosis with facet arthropathy. X-rays of her lumbar area showed degenerative changes of the lumbar spine, most pronounced distally with facet arthropathy at L5-S1. following her accident on 08/16/07 she had followup x-rays which again showed degenerative changes in the cervical spine, degenerative changes in the thoracic spine, and an otherwise unremarkable lumbar x-ray. Jennifer L.Tanner, PA-C She has been treated for osteoarthritis by Dr. Roumm, and had been on Mobic and Vicodin. She has Rebecca H. Lingenfelter, PA-( Kelley Simpson, PA-C -Been unable to take Celebrex because of sulfa sensitivity. She.also has significant degenerative Michelle Kaufman,PA-C spondylosis noted at C4-5, C5-6, and C6-7 with foramina] stenosis, annular bulge by x-ray as far back as September. 2001. At the time that i saw her she was undergoing a pelvic evaluation for increased pelvic pain in relation to an ovarian cyst, questionably related to seatbelt trauma. PAST MEDICAL HISTORY: Her past medical history otherwise was unremarkable. SOCIAL HISTORY: Her social history was remarkable for her being a full time wallpaper 175 Lancaster Boulevard decorator. t'.O. Box 2,oz8 Mechanicsburg, PA 17655,. MEDICATIONS: Her medications included Synthroid, Tramadol, Dexatrim, Tylenol, Prempro, Phone 717691-3755' Flexeril. Vicodin. Aleve or ibuprofen, calcium with vitamin D, and multivitamin. Fax 717691-3834 Bloom Bldg., Suite I06' 4310 Londonderry Rd. Harrisburg, PA 17109 Phone 717 561-4242 Fax 717 561-4903 www.prismdrs.com 6 Page 2 Elizabeth Berdel 08/03/09 PHYSICAL EXAM: Initially cervical neck range of motion was markedly limited in all planes. She had increased pain with extension and extension combined with right and left lateral rotation. Spurling's maneuver was negative. She had moderate cervical paraspinal muscle tenderness, moderate thoracic paraspinal muscle tenderness, and moderate lower lumbar paraspinal muscle tenderness throughout. Lumbar flexion was to 60 degrees with increased pain. Extension was to 10 degrees with increased pain with extension. She had severe pain with right and left lateral rotation of the lumbar spine. Straight leg raise was negative bilaterally. My initial impressions were of cervical, thoracic, and lumbar.pain following a motor vehicle accident with a baseline history of spinal arthritis. Her present symptom complex represented an aggravation of a pre-existing condition. She exhibited elements of discogenic, as well as facet-mediated spinal pain. At that time we had recommended cervical,thoracic, and lumbar MRIs. Her cervical MR] showed moderate degenerative changes at C4-5, C5-6, and C6-7. Her thoracic MR] showed minimal degenerative changes at T1 1-12. Her lumbar MRI showed a probable small annular tear of 1_2-3 with minimal degenerative changes at L2-3 through L5-SI without evidence of nerve root alt; r it central canal of foaan.iliai to a�tia'. I next saw her on 09/07/07. We reviewed her MR-1 results and recommended her for cervical facet injections. She was again seen on 10/04/07. At that time she had had cervical facet injections at C34, C4-5, and C5-6. She had also continued outpatient therapies for her cervical spine. Overall she was 60% better with reduced pain and improved range of motion. She continued to have back symptoms,however,we were going to continue treating the neck and then move on to the back as the neck unproved. She was again seen on 11/08/07. Her neck range continued with gradual reduction in pain and improvement in range of motion. She was having some good days,which she did not have prior to her interventions. She reported aching and stiffness generally in the neck, but no severe pain. Her low back continued to be stiff. At that point in time we recommended a trial of lumbar facet injections and to continue her physical therapy. She continued on Flexeril and Vicodin. She still had cervical pain on range of motion and some mild cervical'paraspinal muscle tenderness and mild lumbar paraspinal muscle tenderness. Her low back had moderate lumbar paraspinal muscle tenderness. On 12/13/07 she had overall 70% improvement of her neck and back pain since the initiation of treatment. Her low back was still stiff and she had reduced range of motion and some tightness, with only mild pain. With respect to her cervical neck she had some reduced range of motion, more reduced with right lateral rotation. Her neck was getting progressively better, although it was tightened and stiff at times. She at that time had been taking some Tramadol and a rare Vicodin, and had difficulty riding in a car for longer than two hours. Her cervical facet injections helped dramatically. Her lumbar facet injections helped equivocally. On 01/17/08 she was noted to be definitely improved, approximately 75% overall. She had some degree of stiffness in the cervical spine and to a much lesser extent her lumbar spine. She had dull achiness,in her cervical area. Therapies continued to go well. She took a rare Vicodin. Pa-e 3 Elizabeth Berdel 08/03/09 At that time we elected for her to have a second cervical facet injection at C3-4, C4-5, and C5-6, and also to continue physical therapy, and ordered a home traction unit. She was again seen on 02/25/08. Her most recent cervical neck injection went well, with some improvement. She finished physical therapy. She reported she really was at pre-accident baseline, however, she still required Tramadol and Tylenol for symptom control in order to get to pre-accident baseline. She also continued Vicodin three times a week. Her cervical neck range of motion at that visit was markedly improved.. Her lumbar paraspinal muscles were nontender. She had been off of wort: until that day. On that day we elected to return her to work Dart time three days per week with a lifting limit.of 30 lbs. As mentioned, she was a designer and wallpaper finisher. She was to continue her home exercises, continue Tramadol, Tylenol, and Vicodin. My impression was that we would need a slow build up of her stamina over time to return to work since she has a very physical job, but she was very well motivated. She was again seen on 04/24/08. Since we returned her to three days per week she had had a resurgence of her cervical neck symptoms with significantly increased right-sided back pain. She continued to take Tramadol and Tylenol, and occasional Vicodin, and continued to do her home exercise program. Her cervical and lumbar symptoms were clearly worse at this appointment. Impressions at that time again included a history of cervical, thoracic, and lumbar spinal arthritis with an aggravation of a pre-existing condition of the cervical and lumbar areas following her MVA. Additionally, she had a significant increase in cervical and lumbar pain following a trial of return to wort: three days per week, 8 hours per day, and also it was felt she had probable Sl joint dysfunction related to her accident,contributing to her back pain. At that time we were cutting her work schedule back to two days per week, 8 hours per day. She again continued all of her medications. We were also scheduling her for a right SI joint injection. She was again seen on 05/29/08. She had an excellent response from a right SI joint injection. Her main complaints were of neck achiness, stiffness, and back achiness and stiffness,"but overall they were improved with reduction of her work hours. She still took Tramadol and an occasional Vicodin. Her sitting tolerance was up to 3 hours a day. She was able to tolerate her two days of work back to back and needed Vicodin after that. She was doing better; but was.not pain-free. We subsequently increased her work schedule back to three days per week, 8 hours per day. She was to continue her medications. We saw her again on 07/28/08. In general, at that point in time she reported her symptoms were 20% above her baseline pre-accident symptoms. Therefore she was 80% better since the accident. She continued on Tramadol and occasional Vicodin. She was able to manage two days of wallpapering full time. but the third day increased her symptoms significantly,so she paid for it the next day. Therefore she was really limiting her work time to two days per week. She was unable to do jobs greater than 10 feet in height, and she could not really carry the scaffolding and ladder equipment for that without having significant pain consequences. At that point in time we were continuing to have her work two days a week, 8 hours per day. She continued her medications. q h Page 4 Elizabeth Berdel 08/03/09 On 12/01/08 she continued to do very well. Her symptoms have stayed about the same, again, 20% above her baseline pre-accident symptoms. She was. still having difficulty working more than two eight hour shifts a weel< and needed to have a day break in between. She continued to use Vicodin four to five per week, and Tramadol three per day. Her low back symptoms have been consistently worse than her neck. She was still unable to'do jobs greater than 10 feet in height and could not really carry scaffoldin- and ladder equipment. She needed to break her work into smaller.chunks and carry less �veiglits and materials at times; less than •10 to 20 lbs. On some days her back pain was fairly significant. She was again seen on 04/02/09. Her symptoms remained the same. She did have a Functional Capacity Evaluation which placed her in a light duty capacity, which is really overall a recommended lesser capacity than she is doing now as a wallpaper hanger. She was to continue two days per week, 8 hours per day. She was to continue Tramadol and Vicodin. We last saw her on 04/02/09 and symptomatically she was at about the same level with medication use. At that visit we had recommended she may increase her Tramadol at tihies up to four times a day and continue with Vicodin three to four times a week without escalating that component. "` E iiziib`efh.BeFdel's'spin i condition is such that she has a history of pre-exisiurig ustcvaahr-icis=offier— -_- --- neck, cervical, thoracic, and lumbar spine, with lumbar spine symptoms aggravated by the motor vehicle accident of 08/15/07. The pain is emanating most specifically from a combination of discogenic facet and ligamentous pain in the spine area. Although Ms. Berdel had pre-existing spine arthritis prior to her accident she was functional and worked without restrictions. The motor vehicle accident aggravated her arthritic condition and caused a substantial increase in her symptoms initially. She has had improvement over time, however, she has had a continued level of aggravation amounting to approximately 20% in excess of her previous baseline discomfort. At this time Ms. Berdel has reached maximum medical improvement, and her present symptoms, which are superimposed upon her pre-existing condition can therefore be expected to persist permanently and are related to the accident in which she was involved. Ms. Berdel was totally unable to work from August 15, 2007 to February 25, 2008, and this is a confirmed period of disability which was reasonable, necessary,and accident-related. Presently Ms. Berdel continues to have limitations in her occupation as a wallpaper installer. She has difficulty in performing these activities, which include prolonged standing, reaching, bending, climbing, and working in unusual positions, and her productivity reduction is consistent with the condition for which I have treated her. She presently is limited to two 8 hour days of work per week, which she spaces out in the course of the week. She is unable to do jobs greater than 10 feet of height, and is unable to carry heavy scaffolding and equipment that she often needs, and must take increased time and carry less weight over time to get her work done without marked increase in her pain. She does have increased pain and is quite fatigued after a full work day. As mentioned,she is unable to work two days back to back and must have a day break in between. Pale 5. Elizabeth Berdel 08/03/09 She has rejected certain jobs that involve more extensive lifting and handling of materials of significant weight. a As mentioned, she is working a maximum of 8 hours per day,two days per week with a total of 16 to 20 hours per weel< as a maximum work capacity, and these limitations are appropriate and medically indicated. Ms. Berdel did have a Functional Capacity Evaluation done on 02/01/09. This put her in a light duty range of work. Her current physical demand level of light duty is below the safe lifting and carrying parameters for her job, which requires up to 38 lbs. of lifting and carrying, which does help provide objective support of her work limitations. With regard to opinions expressed in this report they are all within a reasonable degree of medical certainty. If you have any questions, please do not hesitate to contact me. Sincerely, Michael F. Lupinacci, M.D., FAAPM&R, DABPM,CIME Medical Director Physical Medicine and Rehabilitation Board Certified, Pain Medicine MFL/DS-kts Dictated: 08/03/09 Transcribed: 08/05/09 r THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action — Law JON D. RITCHIE Defendant : Jury Trial Demanded VERDICT FORM 1. Was the negligence of Defendant Jon D. Ritchie a factual cause in bringing about harm to Plaintiff Elizabeth Berdel? X Yes No If you answer Question #1 above "No," Plaintiff cannot recover any amount and you should notify the Clerk that you have reached a verdict and you will be returned to the Court Room. If you answer Question #1 above "Yes," please proceed to the next question. 2. State the dollar amount which you award to Plaintiff Elizabeth Berdel for any and all damages. s q5 bOO 3. State the amount of damages you award to Plaintiff husband Daniel Berdel for loss of consortium. $ ODD Signed: Date: Jul Foreperson 1 In the Court of Commons Pleas of Cumberland County,PA., ELIZABETH SARIANO BERDEL&DAN Docket No.2009-3801 Judge:HESS ----V S---- JON D.RITCHIE l'Y� Acsi Attorney:�,r �1'1 A leUT- Attorney:_ f"lIc ap—) . &eib Date: 5 1- JURORS Moor Vehide Aeciden No. Juror# NAMES OF JURORS CALLED CAUSE P D 1 1H[Ti1 foil 11111 Hill 11111 Hit fill III JUL15-31 DANIELS,MATTHEW H 111111 111111111NIIIICiIllllilllllllll JUL15-122 REED,CODIE•J 3 iilllli 44, 11 11 c f 5 JUL15-121 MACKEY,JOHN-R 7 IIHII 5-67 UNDERKOF � s ' 1 E I 10 JUL15-102 GLUNT,RONALD V 11 1111111 loll l[Il[IlloilIII JUL15-245 PARRY,JOHN J 12 JUL15-143 HOKE,MICHELE R 13 JUL15-231 MENTZER,RANDALL A - 1 15 JUL15-75 PETERSON-DUTCH,CYNDE L 16 1111111111111111 11111(IIIIIIl11111110 JUL15-56 SHEMANSKI,GEORGE E 17 illoI11111D111liiil>CiDi[I[(118 JUL15-48 SMITH,HANNAH E 18 11111111E1111111311111[I11111111111I JUL15-91 BURKHOLDER,SHANNON R 19 111111illllllllllili11111 Sj4 j 20 _ Id-0 21 JUL15-120 ANDERSON,DARLENE E 22 JUL15-299 HARMON,CATHY J In the Court of Commons Pleas of Cumberland County,PA., ELIZABETH SARIANO BERDEL&DAN Docket No.2009-3801 Judge:HESS ----V S---- JON D.RITCHIE Attorney: Herman A a1leH� Attorney: p d-aa I S , b Date: JURORS No. Juror# NAMES OF JURORS CALLED CAUSE P D 3-3,ut�ililii - 24 H111ltllllll111111111ltN1111111t1 JUL15-165 FRENCH,DANIEL L 25- l!!t!!!11ltllllll111111!!11l1111lt1 JUL15-37 CONRAD,CARL V 26 IIIIIIUUII Illllltllllllllll JUL15-272 BOBS,BROOKE A 27 1011(1lilll(((1(1111lII((I JUL15-237 MARPOE,KIMBERLY A 28 11111(11111111!l11111(11111111111(IIIHI 15-30 FAIRCHOK,SARAH N 29 1111 1118tlilll11111111lI1i81111ltli JUL15-2 MOSCATO,GINA M 30 1111111l111111l1111UI1lIlIli11!!I JUL15-183 B RICK,DANETTE S 31 JUL15-215 HOY,NE T 32 111111 111111110111111111111111111 JUL15-275 WAIDELICH,K ETH R 33 11l1lilliilllillitlliiliili!11111111 JUL15-240 GUTHRIE,DONALD R 34 111 1111111 111111lIllllllitlllll111111 JUL15-219 SHEHATA,SHERIF N 36 JUL15-17 GANTZ,C Y J tWI315 161 38 Illllllllllllllllllll 111111111111111111 JUL15-257 BARRY,TERRY W 39 iit11 11i71(111t11111111111flt1(111 JULI 97 WARNICK,JAMES V 40 111111111l01lIIIIIlIIIlll fllllllAl L15-288 SAVIDGE,RONALD P 41 42 43 44 L 1 3 I Viz ' E ;F' rt l t' 0 T/,xt . � 2013 JU ,�1 1C: C11NP,r c �'ENNS yL L, 1AI T Y i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09.3801 CIVIL TERM BERDEL, her husband Plaintiffs VS. : Civil Action — Law JON D. RITCHIE Defendant : Jury Trial Demanded NOTICE You are hereby notified to file a written answer to the attached motion.for delay damages within twenty (20) days from the ding of the motion or the delay damages sought in the motion may be added to;the verdict or decision against you. i �i 4 F1 LL_F0-0i"t=li OF RiE PROTHOIQ`fAE"' 20i3 JUL 24 N 10: 06 CUMBIL:_'RLAt'40 CQU.NTY IN THE COURT OF COAMbAWIA9\01F CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action — Law JON D. RITCHIE Defendant : Jury Trial Demanded PLAINTIFFS' MOTION FOR DELAY DAMAGES AND NOW this 2?,r\8 day of July 2013 come Plaintiffs, Elizabeth Sariano Berdel and Daniel T. Berdel, and through their attorney, Herman A. Gailey, III, respectfully prays Your Honorable Court as follows: 1. The above-captioned case is a civil action seeking monetary relief for bodily injury sustained by Plaintiff, Elizabeth Sariano Berdel and loss of consortium on behalf of Plaintiff Daniel Berdel. 2. Original process was served in this case on June 11, 2009. A copy of the Cumberland County Sheriff's return of service is attached hereto as Exhibit "A." 3. The maximum settlement offer advanced by Defendant amounted to $15,000.00. A copy of a letter from David E. Cook, Esquire, counsel for Defendant, dated February 3, 2011 is attached hereto as Exhibit "B." f 4. No additional offer was advanced at any time thereafter by Defendant. 5. A jury verdict in the amount of$50,000.00 was rendered on July 17, 2013, allocated as follows: + $45,000.00 to Elizabeth Berdel for personal injuries; and • $5,000.00 to Daniel Berdel for loss of consortium 6. Plaintiff now seeks delay damages in accordance with Pa.R.C.P. 238 from June 11, 2010, one (1) year after the date of service of original process, through July 17, 2013, the date of verdict. 7. Plaintiff avers that said damages are calculated in accordance with Rule 238 as follows: June 11, 2010 — December 31, 2010 = 5.5 months x 4.25% (prime rate of 3.25% plus 1%) x $50,000.00 = $973.94; January 1, 2011 — December 31, 2011 = 1 year x 4.25% (prime rate of 3.25% plus 1%) x $50,000.00 = $2,125.00; January 1, 2012 — December 31, 2012 = 1 year x 4.25% (prime rate of 3.25% plus 1%)x $50,000.00 = $2,125.00; January 1, 2013 — July 17, 2013 = 6.5 months x 4.25% (prime rate of 3.25% plus 1%) x $50,000.00 = $1,151.02 Total $6,374.96 i l 8. A copy of the applicable prime rate of interest for the relevant { periods as set forth in the Pennsylvania Rules of Civil Procedure is attached hereto as Exhibit "C." WHEREFORE, Your Honorable Court is respectfully requested to award delay damages in the amount of $6,374.96 based upon the period of delay involved in this case. Respectfully submitted, Herman A. Gailey, III, Esquire MARTZ & GAILEY, LLP 96 South George Street, Suite 430 York, Pennsylvania 17401 (717) 852-8379 Date: ID Number: 31097 i i 'I IN THE COURT OF COMMON PLEAS OF�CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs VS. : Civil Action -- Law JON D. RITCHIE Defendant : Jury Trial Demanded CERTIFICATE OF SERVICE h� I hereby certify that I have this 22 day of ,July 2013 served a true and correct copy of the foregoing Motion for Delay Damages by placing a copy in the i United States First Class Mail, directed to the office address of the following: i Michael B. Scheib, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Herman A. Gailey, III Esquire Martz & Gailey LLP Counsel for Plaintiffs 96 S. George Street, Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 I Shay_ : f Office of Cumberland Coup R Thomas Kline Sheriff4tix�tio �t 4�'sari�l r�yi�1; Edward L Schorpp Solicitor Ronny R A J-P nderson Chief Deputy OF!icy of THE SKERIFF Jody S Smith Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 06/11/2009 03:05 PM-Steve Bender, Deputy Sheriff,who being duly sworn according to law, states that on June 11, 2009 at 1505 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Jon D. Ritchie, by making known unto Marelle Ritchie, wife of.defendant at 2302 Claridge Court Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handinc to her personally the said true and correct copy of the same. SHERIFF COST: $41.50 SO ANSWERS, June 12, 2009 R THOMAS KLINE, SHERIFF puty Sheriff 2009-3801 Elizabeth Sariano Rerdel v . Jon D. Ritchie i Y l J I, f • � • r /mom LAW OFFICES GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 S. NORTHERN WAY ROBERT H.GRIFFITH(1928-2009) YORK,PENNSYLVANIA 17402-3737 MICHAEL P.BIANCHINI(1939-2010) ROBERT M.STRICKLER TELEPHONE;(717)757-7602 ANN MARGARET GRAB ROBERTA.LERMAN° FAX:(717)757-3783 DAVID E.COOK PETER D.SOLYMOS EMAIL: infoagslsc.com ERICK V.VIOLAGO- CHARLES B.CALKINS WEBSITE:www.qslsc.com JOHN C.PORTER- PAUL G.LUTZ- MICHAEL B.SCHEIB* HANOVER OFFICE THOMAS B.SPONAUGLE°+ 846 Broadway *Also Member MD Bar Hanover, PA 17331 'LL.M(Taxation);also Member CT Bar (717)637-0140 `Also Member NY and D.C.Bars -Also Member NJ Bar +Board Certified Civil Trial Attorney Gregory W.Bair,II's EMAIL:GBairng gslsc.com By the National Board of Trial Advocacy Please reply to York office February 3, 2011 Herman A. Gailey, III, Esquire MARTZ&GAILEY,LLP 96 South George Street Suite 430 York, PA 17401 Re: Elizabeth Sariano-Berdel and Daniel T. Berdel v. Jon D. Ritchie Cumberland County C.C.P. No. 09-3801 Civil Term Dear Herm: Please allow this correspondence to serve as an offer to settle the above-captioned matter for the sum of Fifteen Thousand Dollars ($15,000.00). This figure is consistent with the conclusions in Dr. Hely's report that that there are no objective findings to support that Plaintiff's current complaints are related to the motor vehicle accident and that all of her complaints are related to her pre-existing arthritic condition. This offer will remain in effect for at least 90 days or until commencement of trial, whichever occurs first. Should you have any additional questions or concerns regarding this matter, please do not hesitate to contact me. Very truly yours, DAVID E. COOK ritchie-ltr/dra e r a BUSINESS OF COURTS Rule 239 Rule 239. Local Rules of.paYn1ent under`v''itten by a financially respon- q 3ible entity. Paragraph (2) recognizes that (a) For the purpose of this rule, the term "local A note added top rule" shall include every rule, regulation, directive, `most entities underwriting a structured settle- cannot commit to the exact pay- policy, custom, usage, form or order of general. h, annuity application, however labeled or promulgated, '.ment of a strucuu-ed settlement for the -iiient terms .which is adopted and enforced by a court of com- '''� entire ninety-day Period required under the rule - because the payment is often dependent on the mon pleas to govern civil practice and procedure. financial market which may fluctuate over the Note: The caption or other words used as a - period of the offer. Variations in the amount l- label or designation shall not determine whether the payment due to market forces shall not inval- idate the o�ifO1apons°ofsthetofferuare not the- definition in subdiv soon)(a) ofltli slrule istsaus- _ repeated fied the matter is a local rule regardless of what quired. it may be called. The provisions of this rule are Paragraph (3) continues without change the Y provision of former subdivision (b) that an offer also intended to apply to any amendments to a is valid to toll the running of delay damages only "local rule." if the plaintiff does not recover "more than 125 (b)(1) Local rules shall not be inconsistent with percent of either the specified sum or the cost of any general rule of the Supreme Court or any Act the structured settlement plus any cash payment of Assembly. - to the plaintiff." Note: The policy of the Supreme Court as Addendum to Explanatory Comments declared in the Order promulgating this rule is "to implement the unified judicial system r unde The prime rate as set forth in the first edition the Constitution of 1968, to facilitate the state- _ of the Wall Street Journal for a particular year is wide practice of law under this Court's general the basis for calculating damages for delay under rules, and to promote the further policy that a Pa.R.C.P.238 as revised November 7, 1988. The general rule of civil procedure normally prime rate published in the first edition of the preempts the subject covered." In accordance Wall Street Journal for each of the years speci- °C with the Court's policy, it is intended that local a fied is as follows: rules should not repeat general rules or statutory Date of Publication Prime Rate provisions verbatim or substantially verbatim nor 11-2 January 2, 1980 15%to 15'14% should local rules make it difficult for attorneys January 2, 1981 20'14%to 21'14% to practice law in several counties. January 4, 1982 153A% '14% (2) Except as otherwise provided by Rule 239.8, January 3, 1983 11%to 1 1 January 3, 1984 11% local rules which implement general rules shall be - January 2, 1985 103A% given numbers that are keyed to the numbers of the January 2, 1986 9114% general rules to which the local rules correspond. January 2, 1987 7'h% January 4, 1988 83/4% (c) Except as otherwise provided by Rule 239.8, January 3, 1989 10'h% to be effective and enforceable: January 2, 1990 10'14% January 2, 1991 9M to 10% (1) A local rule shall be in writing. ; January 2, 1992 0% l rule shall be - January 4, 1993 6% (2) One certified copy of the loca , January 3, 1994 6% filed by the court promulgating the rule with the b January 3, 1995 8'14% Administrative Office of Pennsylvania Courts. January 2, 1996 8'14% 4F January 2, 1997 H%4% (3) Two certified copies of the local rule and a January 2, 1998 8'14% computer diskette containing the text of the local January 4, 1999 73A% rule shall be distributed by the court promulgating 6_ January 3, 2000 814% the rule to the Legislative Reference Bureau for a<- January 2,2001 91h% publication in the Pennsylvania Bulletin. January 2, 2002 434% January 2, 2003 4'/4% Note: The diskette must (1) be formatted in January 2,2004 4% one of the following formats: MS-DOS, ASCII, January 3, 2005 5'A% Microsoft Word, or WordPerfect, (2) contain the January 3,2006 7'4% local rule text as reflected in the "hard copy" January 2, 2007 H%4% version of the rule, and (3) be labeled with January 2, 2008 7'A% court's name and address and computer file January 2,2009 3'A% name. See 1 Pa. Code§ 13.11(b). January 4,2010 3'A% (4) One certified copy of the local rule shall be - January 3, 2011 3'/4% '/4%o filed by the court promulgating the rule with the January 3, 2012. 3 January 2, 2013 3%4% Civil Procedural Rules Committee, unless the rule 345 {_ i , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and : NO 09-3801 CIVIL TERM -=- LS DANIEL T. BERDEL, her husband, c7) rn r Plaintiffs • v. CIVIL ACTION—LAW r --• • JON D. RITCHIE, • y Defendant • JURY TRIAL DEMANDED - ' ANSWER TO PLAINTIFFS' MOTION FOR DELAY DAMAGES Now comes, Defendant, Jon D. Ritchie, through his attorney Griffith, Strickler, Lerman, Solymos & Calkins and Michael B. Scheib, Esquire in response to Plaintiffs' Motion for Delay Damages as follows: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that on February 3, 2011, Defendant made a reasonable settlement offer of$15,000. It is denied that the settlement offer was the maximum amount that Defendant would have offered. To the contrary, the Defendant was willing to negotiate a settlement; however, on August 9, 2012 Plaintiff withdrew her demand and refused to participate in further settlement negotiations. See Plaintiffs' Pre-Trial Conference Memorandum wherein Plaintiff refuses to participate in settlement negotiations. 4. Denied. To the contrary, Plaintiff withdrew her demand and refused to participate in further settlement negotiations. 5. Admitted. 6. Admitted. 7. Denied. Plaintiff did not calculate the damages in accordance with Rule 238. To the contrary, delay damages are not applicable to a loss of consortium claim. See Anchorstar v. Mack Trucks, Inc., 533 Pa. 177, 620 A.2d 1120, attached hereto as Exhibit"A". 8. Admitted. WHEREFORE, Defendant, Jon D. Ritchie, respectfully requests this Honorable Court enter an Order denying Plaintiffs' Motion for Delay Damages as requested. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & C4,KINS Dated: July .?(-1", 2013 BY Ad j4i MICHAEL B. SCHEIB,ESQ Attorney I.D.No. 63868 Attorney for Defendant Jon D. Ritchie 110 South Northern Way York, PA 17402-3737 (717) 757-7602 (717) 757-3783 fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO-BERDEL and : NO. 09-3801 CIVIL TERM DANIEL T. BERDEL, her husband, • Plaintiffs v. • CIVIL ACTION—LAW • JON D. RITCHIE, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this (t ' day of July, 2013, I, Michael B. Scheib, Esquire, a member of the firm of Griffith, Strickler, Lerman, Solymos & Calkins, hereby certify that I have this date served a copy of the Answer to Plaintiff's Motion for Delay Damages, by United States Mail, postage prepaid, addressed to the party or attorney of record as follows: Herman A. Gailey, III, Esquire Martz & Gailey, LLP 96 South George Street Suite 430 York, PA 17401 (Attorney for Plaintiffs) GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS By: A'1\,\}\^i1. sf1st k `�,,y\, ) MICHAEL B. SCHEIB, ESQUIRt Attorney I.D.No. 63868 110 South Northern Way York, PA 17402-3737 Telephone (717) 757-7602 Attorney for Defendant, Jon D. Ritchie ■■••••min.•■ Westtaw. 620 A.2d 1120 Page 1 533 Pa. 177,620 A.2d 1120 (Cite as: 533 Pa. 177,620 A.2d 1120) P 219 Interest Supreme Court of Pennsylvania. 2191 Rights and Liabilities in General Milton ANCHORSTAR,Jr., and Phyllis Anchorstar, 219k14 k.Unreasonable or Vexatious Delay in his wife,Appellees, Payment. Most Cited Cases v. MACK TRUCKS,INC.,Ross Gear Division,TRW, Rule awarding delay damages was designed to Inc.,and Penn Truck Leasing,Inc.,Appellants. encourage defendants to make reasonable settlement offers in certain types of cases, thereby alleviating Argued Oct. 19, 1992. delays in judicial system and compensating plaintiffs Decided Feb. 19, 1993. for delays in receiving damage awards. Rules Civ.Proc., Rule 238,42 Pa.C.S.A. The Superior Court, Schuylkill County, 414 Pa.Super. 642, 598 A.2d 1324,reversed in part order *178 Charles W. Rubendall, II, Donald M.Lewis,III, of the Court of Common Pleas, Schuylkill County, Harrisburg,for TRW,Inc.,acting for all appellants. refusing to award delay damages on wife's loss of consortium award. Defendants appealed. The Su- David E. Turner, Reading, for appellant Penn Truck preme Court, 528 Pa. 617, 596 A.2d 800, granted Leasing,Inc. appeal. The Supreme Court, Flaherty, J., held that delay damages are not available on loss of consortium Terrence Grube, Asst. Gen. Counsel, for appellant claim. Mack Trucks,Inc. Order reversed. **1121 Joseph H. Jones, Jr., Pottsville, for appellees Milton and Phyllis Anchorstar,h/w. West Headnotes Before NIX, C.J., and FLAHERTY, ZAPPALA, III Interest 219 E 14 PAPADAKOS and CAPPY,JJ. 219 Interest OPINION OF THE COURT 2191 Rights and Liabilities in General FLAHERTY,Justice. 219k14 k.Unreasonable or Vexatious Delay in This is an appeal from a memorandum opinion Payment. Most Cited Cases and order of the Superior Court which affirmed in part and remanded in part orders of the Court of Common Delay damages may not be awarded on underly- Pleas of Schuylkill County. The appellees, Milton ing claim for loss of consortium. Rules Civ.Proc., Anchorstar, Jr., and Phyllis Anchorstar, his wife, in- Rule 238,42 Pa.C.S.A. stituted this action for damages against the appellants, Mack Trucks, Inc., TRW, Inc., and Penn Truck al Interest 219 X14 Leasing, Inc., as a result of a highway accident in which Mr. Anchorstar suffered serious injuries. The ©2013 Thomson Reuters.No Claim to Orig. US Gov. Works. 620 A.2d 1120 Page 2 533 Pa. 177,620 A.2d 1120 (Cite as: 533 Pa. 177,620 A.2d 1120) accident occurred when, in 1984, a truck being driven by Mr. Anchorstar went out of control, left the high- Hence, delay damages are to be awarded only in way, and burst into flames. The Anchorstars corn- civil actions seeking monetary relief for "bodily in- menced this action alleging,inter alia,that*179 one of jury, death or property damage...." A literal and the components in the truck's steering box was defec- non-expansive interpretation has normally, and quite tive and that the appellants were liable on a theory of properly, been accorded to Rule 238, allowing delay strict liability. Mr. Anchorstar's claim was based on damages to be awarded only in cases falling clearly injuries that he sustained in the accident. Mrs. within the purview of the "bodily injury, death or Anchorstar was not, however, involved in the acci- property damage" requirement. *180Colodonato v. dent.Her claim was,therefore,based solely on loss of Consolidated Rail Corp., 504 Pa. 80, 83, 470 A.2d consortium. In 1989, in a trial by jury, a verdict was 475,477 (1983). See also Butler v. Flo—Ron Vending rendered in favor of the Anchorstars and judgment Co.. 383 Pa.Super. 633, 651-56, 557 A.2d 730, was entered thereon. 739-41 (1989) (delay damages not applicable to claims for emotional injury, humiliation, loss of rep- Pursuant to Pa.R.C.P. 238 (Rule 238), the trial utation, etc.), appeal denied, 523 Pa. 646, 567 A.2d court awarded delay damages to Mr.Anchorstar.Mrs. 650(1989);Rizzo v.Haines, 357 Pa.Super.57,65,515 Anchorstar's claim for delay damages was denied. An A.2d 321, 325 (1986) (delay damages not applicable appeal was taken to the Superior Court, whereupon it to claims for legal malpractice),affd,520 Pa.484,555 was held that the trial court erred in denying delay A.2d 58 (1989); Wainauskis v. Howard Johnson Co., damages for Mrs.Anchorstar. 339 Pa.Super. 266, 282, 488 A.2d 1117, 1125 (1985) (delay damages inapplicable to action for malicious al The sole issue presented in this appeal is prosecution); Reliance Universal v. Ernest Renda whether Rule 238 provides for delay damages to be Contracting Co., 308 Pa.Super. 98, 107,454 A.2d 39, awarded where the underlying claim is for loss of 44 (1982) (delay damages not available in contract consortium. We hold that, under the clear and express cases). language of Rule 238, delay damages are not appli- cable to such a claim. The claim filed in the present case by Mr. Anchorstar was plainly one seeking compensation for El Rule 238 was designed to encourage defend- bodily injury. In contrast, the claim filed by Mrs. ants to make reasonable settlement offers in certain Anchorstar was for loss of consortium. A claim for types of cases, thereby alleviating delays in the judi- loss of consortium is quite different from a claim for cial system and compensating plaintiffs for delays in bodily injury. While it stems from the spouse's bodily receiving damage awards. Schrock v. Albert Einstein injury,it is nevertheless a**1122 separate and distinct Medical Center, 527 Pa. 191, 196-97. 589 A.2d 1103, claim.Loss of consortium is a loss of services,society, 1 106-07(1991).In pertinent part, Rule 238 provides: and conjugal affection of one's spouse. Bedillion v. Frazee, 408 Pa. 281, 285, 183 A.2d 341, 343 (1962); (a)(1)At the request of the plaintiff in a civil action Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 seeking monetary relief for bodily injury, death or (1973), affd, 457 Pa. 90, 320 A.2d 139 (1974). One property damage, damages for delay shall be added who has suffered a loss of consortium has not sus- to the amount of compensatory damages awarded tained a bodily injury but rather has experienced an against each defendant or additional defendant injury to marital expectations. Clearly, too, the mere found to be liable to the plaintiff.... fact that such a claim is joined in the same civil action as a claim for bodily injury does not alter its basic ©2013 Thomson Reuters.No Claim to Orig.US Gov. Works. 620 A.2d 1120 Page 3 533 Pa. 177,620 A.2d 1120 (Cite as: 533 Pa. 177,620 A.2d 1120) character as a separate and distinct claim. See Manzini v. Amsler, 379 Pa.Super. 454,457-65, 550 A.2d 537, 538-42 (1988), affd, 524 Pa. 587, 574 A.2d 601 (1990). In allowing an award of delay damages in this case, the Superior Court relied on its decision in Novelli v. Johns-Manville Corp., 395 Pa.Super. 144, 576 A.2d 1085 (1990) (delay damages applicable to loss of consortium claims), appeal denied, 527 Pa. 621, 625, 592 A.2d 42, 45 (1991). In Novelli and the present case,however,the Superior Court ignored the plain language of Rule 238 which clearly provides for such *181 damages to be awarded only where the plaintiff seeks compensation for"bodily injury, death or property damage." Compensation for loss of con- sortium is simply not encompassed by these terms. In short, the decision below holding that delay damages are applicable to a claim for loss of consor- tium was in error. The order of the Superior Court must,therefore, be reversed. Order reversed. LARSEN, J., did not participate in the consideration or decision of this case. Pa.,1993. Anchorstar v.Mack Trucks, Inc. 533 Pa. 177,620 A.2d 1120 END OF DOCUMENT ©2013 Thomson Reuters.No Claim to Orig.US Gov.Works. LAW OFFICES GRIFFITH, STRICKLER, LERMAN,SOLYMOS&CALKINS 110 S.NORTHERN WAY ROBERT H.GRIFFITH(1928-2009) YORK,PENNSYLVANIA 17402-3737 ROBERT M.STRICKLER TELEPHONE:(717)757-7602 ANN MARGARET GRAB ROBERT A LERMAN° FAX:(717)757-3783 JOHN C.PORTER- PETER D.SOLYMOS EMAIL: info(caaslsc.com ROBERT D.O'BRIEN CHARLES B.CALKINS WEBSITE:www.oslsc.com CHARLES T.YOUNG,JR.x PAUL G.LUTZ- ROBERT W.MELICK" MICHAEL B.SCHEIB* Judith M.Becker's EMAIL:jbecker©gslsc.com THOMAS B.SPONAUGLE°+ °Also Member MD Bar ^LL.M(Taxation);also Member CT Bar *Also Member NY and D.C.Bars "Also Member NY Bar -Also Member NJ Bar Also Member WI Bar +Board Certified Civil Trial and Pretrial Practice Advocate by the National Board of Trial Advocacy July 29, 2013 David D. Buell, Prothonotary Office of the Prothonotary Cumberland County Courthouse One Court House Square Carlisle, PA 17013-3387 Re: Elizabeth Sariano-Berdel and Daniel T. Berdel v. Jon D. Ritchie Cumberland County C.C.P. No. 09-3801 Civil Term Dear Mr. Buell: Enclosed please find an original and two (2) copies of Defendant's Answer to Plaintiffs' Motion for Delay Damages. Kindly file the original Answer and return the copies to my attention in the envelope provided herein. If you have any questions, please do not hesitate to give me a call. Thank you for your assistance. Sincerely, Ju ith M. Becker Litigation Paralegal Enclosures cc: Herman A. Gailey, III, Esquire (w/encl.) • r1 pp TP 2013 JUL 2 4 A N 10: 0 C:UME3ERLAND I0(,'NT f'EIMS Y,LVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action - Law JON D. RITCHIE Defendant : Jury Trial Demanded C�-der' - E You are hereby notified to file a written answer to the attached motion for delay damages within twenty (20) days from the filing of the motion or the delay damages sought in the motion may be added to the verdict or decision against you. Q -7 Zd 13 -C x' ---t Ct .e E. 46 CtJ11R RLAND ,,, PEHidS YLVA dIA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action—Law JON D. RITCHIE Defendant : Jury Trial Demanded PLAINTIFFS' RESPONSE TO ALLEGATIONS IN THE NATURE OF NEW MATTER CONTAINED IN DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION FOR DELAY DAMAGES AND NOW this Z``� day of August 2013 come Plaintiffs, Elizabeth Sariano Berdel and Daniel T. Berdel, and through their attorney, Herman A. Gailey, 111, reply to allegations in the nature of New Matter/Defenses contained in Defendants Answer to Plaintiffs' Motion for Delay Damages as follows: 1. No response required. 2. No response required. 3. Admitted that Plaintiff withdrew her settlement demand. It is expressly denied that Rule 238 requires an outstanding demand at the time of trial to support a claim for delay damages. f i i i i 4. Admitted that Plaintiff recognized that further settlement G negotiations would prove fruitless and chose not to engage in this exercise in f futility. f i 5. No response required. 6. No response required. 7. Admitted that Defendant is correct in the assertion that delay i damages are not applicable to a loss of consortium claim. Pursuant to this concession, Plaintiffs aver that delay damages are properly calculated in f accordance with Rule 238 with respect to Plaintiff Elizabeth Berdel's personal injury claim as follows: l June 11, 2010—December 31, 2010 = 5.5 months x 4.25% (prime rate of 3.25% plus 1%) x $45,000.00 = $876.56; January 1, 2011 — December 31, 2011 = 1 year x 4.25% (prime rate of 4 3.25% plus 1%) x $45,000.00 = $1,912.50.00; January 1, 2012— December 31, 2012 = 1 year x 4.25% (prime rate of f I 3.25% plus 1%) x $45,000.00 = $1,912.00; I I January 1, 2013—July 17, 2013 = 6.5 months x 4.25% (prime rate of 3.25% f plus 1%) x $45,000.00 = $1,035.94 j Total $5,737.50 f r i i I M WHEREFORE, Plaintiffs respectfully request Your Honorable to enter an order awarding delay damages in the amount of$5,737.50. Respectfully submitted, Herman:A. Gailey, III, Esquire MARTZ & GAILEY, LLP 96 South George Street, Suite 430 York, Pennsylvania 17401 (717)_852-8379' Date: .. 2,113 ID Number: 31097. C i / f { [F t I f j IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA I ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM f BERDEL, her husband Plaintiffs r vs. : Civil Action—Law JON D. RITCHIE Defendant : Jury Trial Demanded CERTIFICATE OF SERVICE i h� I hereby certify that I have this 2 day of August 2013 served a true and correct copy of the foregoing Response to Allegations in the Nature of New i Matter Contained in Defendants Answer to Plaintiffs' Motion for Delay Damages by placing a copy in the United States First Class Mail, directed to the office f address of the following: 1 i Michael B. Scheib, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 p Herman A. Gailey, III Esquire Martz & Gailey LLP Counsel for Plaintiffs 96 S. George Street, Suite 430 York, PA 17401 (717) 852-8379 I.D. No. 31097 i i F i i i ELIZABETH SARIANO BERDEL IN THE COURT OF COMMON PLEAS OF and DANIEL T. BERDEL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION—LAW VS. NO. 09-3801 CIVIL JON D. RITCHIE, Defendant IN RE: PLAINTIFFS' MOTION FOR DELAY DAMAGES ORDER AND NOW, this day of August, 2013, a brief oral argument is set in the above matter for Thursday, August 29, 2013, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, 14 Kevin . ess, P. J. ✓Herman A. Gailey, III, Esquire For the Plaintiffs v'e-Kchael B. Scheib, Esquire For the Defendant :rlm f e//411 3 � D �,y f.-3 iA is I L RLAtio COOT1' FNNSYLVp'N1A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action - Law JON D. RITCHIE Defendant : Jury Trial Demanded PRAECIPE TO WITHDRAW MOTION FOR DELAY DAMAGES To the Prothonotary: Kindly withdraw the Motion for Delay Damages filed by Plaintiffs Elizabeth Sariano Berdel and Daniel T. Berdel.. Respectfully submitted, B ���"�7 � Y• Herman A. Gailey, III, Esquire Martz & Gailey, LLP Counsel for Plaintiffs 96 South George Street Suite 430 York, PA 17401 I 717-852-8379 Date: I D# 31097 i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action — Law JON D. RITCHIE Defendant : Jury Trial Demanded CERTIFICATE OF SERVICE I hereby certify that I have sent a true and correct copy of the foregoing Praecipe to Withdraw Motion for Delay Damages this 4tday of August 2013 by First Class United States Mail to the following: Michael B. Scheib, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Y Herman A. Gailey, III, Esquire Martz & Gailey, LLP Counsel for Plaintiffs 96 South George Street Suite 430 York, PA 17401 i4 113 717-852-8379 Date: ID# 31097 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH SARIANO BERDEL and DANIEL T. : No. 09-3801 CIVIL TERM BERDEL, her husband Plaintiffs vs. : Civil Action — Law ' n M C= JON D. RITCHIE : � � Defendant : Jury Trial Demanded cni- --- -uu <> cn CD E PRAECIPE TO REMOVE . r,a C) . To the Prothonotary: ' ( X ) Please mark the above captioned action as settled and satisfied. Please issue a Certificate of Satisfaction. OR ( ) Please mark the above captioned judgment or lien settled or satisfied. Herman A. Gailey, III, Esquire Attorney for Plaintiff 96 South George Street Suite 430 York, PA 17401 (717) 852-8379 `� I.D. #31097 Dated: �I Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, do hereby acknowledge that the above-mentioned case settled, discontinued and ended on the_5 day of -% , 2013. In witness whereof l have hereunto set my hand and seal of said Court this day of 12013. APA ProtTl8notary