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09-7816
r . u IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHONE BOOKHART, ; NO. v 9 _ 7 -'/ 6 Ct u -7Z- Plaintiff CIVIL ACTION - LAW V. McDONALD'S HAMBURGERS, Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFENDANT AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY OR BY FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Joseph D. Seletyn, Esq. Prothonotary Jennifer Traxler, Esq. Deputy Prothonotary 'uperior Court of Venuoptania Middle District Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.pacourts.us/courts/superior-court CERTIFICATE OF REMITTAL/REMAND OF RECORD TO: David D. Buell Prothonotary RE: Bookhart, S. v. Cheung Enterprises 2008 MDA 2012 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 09-7816 Civil Term Annexed hereto pbrsuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part w/ envelope attached RemandiRemittal Date:: 06/10/2014 January 18, 2013 1 1 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, ja- -7;;- Jennifer Traxler, Esq. Deputy Prothonotary /alv Enclosure cc: Alphonso Arnold Jr., Esq. The Honorable Christylee L. Peck, Judge John F. Yaninek, Esq. r; J -S31027-13 f1 NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 STEPHONE BOOKHART Appellant v. IN THE SUPERIOR COURT OF PENNSYLVANIA CHEUNG ENTERPRISES r' —cr Q G t ,r. Appellee No. 2008 MDA `2 o -= c, c..�, z r -- c_-)% co Appeal from the Order Entered October 16, 2012 x("3 In the Court of Common Pleas of Cumberland County 7,:_c, `ry,_, Civil Division at No(s): 09-7816 Civil Term=, fir' BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.* MEMORANDUM BY OTT, J.: FILED SEPTEMBER 25, 2013 Stephone Bookhart appeals from the order entered on October 16, 2012, in the Court of Common Pleas of Cumberland County granting summary judgment in favor of defendant, Cheung Enterprises (Cheung).1 Bookhart claims the trial court erred in granting summary judgment for numerous reasons. After a thorough review of the submissions by the parties, the certified record, and relevant law, we affirm. The trial court accurately related the factual history of this matter in its order and opinion granting summary judgment in favor of Cheung: * Former Justice specially assigned to the Superior Court. 1 Both parties filed motions for summary judgment. The trial court denied Bookhart's motion. J -S31027-13 [Cheung] is a corporation registered to do business in the Commonwealth of Pennsylvania, with an office in Middletown, Pennsylvania. [Cheung] owns a McDonald's restaurant (the "Restaurant"). On August 28, 2009, [Bookhart] slipped and fell at the Restaurant. [Bookhart] had an interview scheduled for 2:00 p.m. on that day with Jacobson Staffing in Camp Hill, Pennsylvania. At about 1:30 p.m. [Bookhart] and his friend, Kenneth Rice, traveled by bus to the Restaurant, located about a block from Jacobson Staffing. It began "misting" rain as [Bookhart] and Mr. Rice got off the bus at the Restaurant. [Bookhart] went into the Restaurant and purchased an order of french fries while Mr. Rice waited outside. It was still "misting" rain when [Bookhart] exited the Restaurant carrying the french fries and walked down a ramp. i The ramp in question is comprised of a mix of cement and pebbles that are imbedded in the cement. The ramp is built on a downward grade in a westerly direction leading from a doorway, of the Restaurant. There were no puddles or running water either on or nearby the ramp on the day in question. [Bookhart] was wearing leather soled shoes. [Bookhart] slipped and fell on the portion of the ramp located about a foot and a half to two feet away from where the cement ramp turns to asphalt. [Bookhart's] photographs of record depict the asphalt as the end of the ramp and the beginning of the parking lot. [Bookhart] alleged in his amended complaint that he slipped on the wet surface of the ramp. At his deposition, however, [Bookhart] could not explain the exact cause of his fall, stating, "I was just walking normally with my fries in my hand. And I really don't know what was - at that time I don't know exactly if the sidewalk was level or whatever but I just slipped. My shoes just (indicating)." [Bookhart's] right foot slipped and he fell in a straight position with his arm back in an attempt to break his fall. Mr. Rice, who was waiting outside, i witnessed the fall. After his fall, [Bookhart] walked to his interview at Jacobson Staffing. At 3:30 p.m. [Bookhart] walked back to the Restaurant and [Bookhart] and Mr. Rice filed an incident report with the manager of the Restaurant regarding [Bookhart's] slip and fall on the ramp. At about 4:00 p.m. [Bookhart] took a bus to Harrisburg Hospital. [Bookhart] arrived at Harrisburg Hospital at about 4:30 p.m. -2 3-S31027-13 Tim Tansmore, whom [Bookhart] intended to call as an expert at trial, was not previously qualified as an expert in litigation, but is a certified construction engineer. Mr. Tansmore is employed by Pints Bar and Grill. Mr. Tansmore is [Bookhart's] friend who does the maintenance and cooking at the building where [Bookhart] lives. In Mr. Tansmore's opinion, there was a drop of approximately a half-inch to one inch at the end of the ramp. Based on his assessment of the ramp's dimensions and construction, Mr. Tansmore concluded that "the ramp was not laid correctly" and "the ramp in question could cause one to fall on its surface when wet or otherwise." [Bookhart's] alleged injuries from the fall included: cervical myopasm; narrowing of the disc 'spaces in the cervical spine; myopasm of the thoracic spine; narrowing of the disc spaces in the thoracic spine; neck pain; back pain; bruising of the sternum; pain in the sternum area; left shoulder strain; and emotional distress. [Bookhart] has alleged the fall and his resultant injuries were caused solely by the negligence of [Cheung] by: (1) failing to keep the ramp free of rain water; (2) constructing the ramp of pebbles and cement when it knew or should have known that the surface of the ramp, when wet, created a dangerous condition which could cause business patrons to slip and fall on it; (3) failing to warn business patrons that the ramp, when wet, created a dangerous condition; and (4) failing to remove the rainwater from the ramp prior to Plaintiff's fall and resultant injuries. Trial Court Opinion and Order, 10/16/12, at 2-5 (footnotes omitted).2 2 Bookhart's expert, Tim Tansmore, who was never deposed and for whom Bookhart did not provide a curriculum vitae, authored a handwritten report that states, in' entirety: Finding on Conc. Ramp Location: McDonalds @ PA Subject: Conc. Ramp w/ Stone Surface Facts: 1) Ramp Leading to Entrance of Building on right Side had drop of'3'4" from the beginning of ramp to the Point of distance 3'4". (Footnote Continued Next Page) -3 f J -S31027-13 The trial court determined Bookhart had not provided sufficient evidence supporting the allegation that a dangerous condition existed on or as a part of the ramp. Further, the trial court concluded that even if such a dangerous condition existed, Bookhart provided no evidence that Cheung knew or should have known about the defect. Bookhart now argues the trial court erred: (1) in granting summary judgment where genuine issues of material fact existed as to the existence of a dangerous condition; (2) in misapplying the rules of constructive notice; (3) in failing to consider whether the dangerous condition was a substantial factor in causing the fall; and (4) in failing to consider the doctrine of res ipsa loquitur.3 (Footnote Continued) 2) On right Side of ramp next to building in the Last section which the distance is 3'4" is higher than the left side of the 3'4" which is approx. 2'8" in width. 3) Protaing [sic] to the 3'4" There is a drop of 1/2" - 1" approx. @ the end of the section of the 3'4" 6" in diameter. 4) In my Professional Opinion the ramp was not laid correctly. 4) [sic] In conclusion the ramp in question could cause one to fall on its surface when wet or otherwise. See Tansmore Report, 2/22/10, attached to Plaintiff's Answer to Defendant's Motion to Compel Discovery, filed 4/30/2010. 3 We have restated the claims for ease of understanding. We also note that in his brief, Bookhart raises a number of other issues that were not included in the Pa.R.A.P. 1925(b) statement of matters complained of on appeal. The (Footnote Continued Next Page) r J -S31027-13 Our standard of review of a challenge to the grant of summary judgment is well established: [We] may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary. In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ed?. Linde Const. Corp, v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) (citation omitted). The first three issues can be addressed together. There is no dispute that Bookhart was a business invitee of Cheung. Section 343 of the Restatement (Second) of Torts sets forth the duty owed to such invitees: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (Footnote Continued) four claims noted herein are the four claims raised in the 1925(b) statement and are the only issues we will address. -5 J -S31027-13 (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Myers v. Penn Traffic Co., 414 Pa.Super. 181, 606 A.2d 926 (1992), appeal denied, 533 Pa. 625, 620 A.2d 491 (1993). The owner of the store, however, is not an insurer of the safety of its patrons. Id. Additionally, "the mere existence of a harmful condition in a public place of business, or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of the proprietor's duty of care to his invitees, nor raises a presumption of negligence." Moultrey v. Great A. & P. Tea Co., 281 Pa.Super. 525, 422 A.2d 593, 596 (1980). In order to recover damages in a "slip and fall" case such as this, the invitee must present evidence which proves that the store owner deviated in some way from his duty of reasonable care under the existing circumstances. Id. This evidence must show that the proprietor knew, or in the exercise of reasonable care should have known, of the existence of the harmful condition. Id. Section 343 also requires the invitee to prove either that the store owner helped to create the harmful condition, or that it had actual or constructive notice of the condition. Id. Zito v. Merit Outlet Stores, 647 A.2d 573, 574-75 (Pa. Super. 1994). Therefore, based upon Section 343 of the Restatement (Second), in order to prevail, a claimant must demonstrate both the existence of a hazardous condition and knowledge by the business that the hazardous condition exists. Here, we need not address whether Tansmore's statements - that the ramp was not laid properly and that the ramp could cause one to fall - constitute sufficient evidence to establish a hazardous condition, J -S31027-13 because we agree with both the trial court and Cheung that even assuming arguendo the ramp was slippery when wet, Bookhart has provided no evidence that Cheung knew or should have known of the condition at the time he fell. Bookhart supplied photographs of the ramp in question. There are no obvious defects in the ramp. The "drop" of 1/2 inch to one inch mentioned in the report cannot be visually detected in the evidentiary photographs. Neither Bookhart nor Tansmore claimed the alleged defect was grossly observable nor that Cheung had any notice of the alleged defect of construction. Further, Bookhart has provided no documentary evidence, such as accident reports, that demonstrate there had been previous incidents on the ramp. Similarly, Bookhart has not provided any anecdotal evidence demonstrating that: Cheung should have been aware that the ramp was unreasonably dan9erous. Neither was there any showing that any relevant governmental agency had cited Cheung for a defect in the ramp. Given there was no obvious defect in the ramp, and no indication that anyone other than Bookhart had ever encountered a problem with the ramp regardless of weather conditions, the certified record is devoid of evidence that Cheung had either actual or constructive notice of the alleged hazardous condition. Because Bookhart must prove notice to prevail and he did not, none of Bookhart's first three claims can overcome this deficiency. -7 J -S31027-13 Bookhart has also claimed that the doctrine of res ipsa /oquitur applied to the accident. The hallmark of res ipsa /oquitur is that the event complained of ordinarily does not occur in the absence of negligence on the part of the alleged tortfeasor. See Restatement (Second) of Torts, Section 328(D)(1)(a). Bookhart's only argument on this issue is that Cheung owed him a duty of care and yet he fell down. See Bookhart's Brief, at 10-12. As noted in Restatement (Second) of Torts, Section 343 and Zito, supra, the mere happening of an accident is not proof of negligence. Bookhart has provided no substantive argument that slipping and falling while walking is an event that does not ordinarily occur in the absence of negligence. Therefore, res ipsa /oquitur does not apply to this matter. Order affirmed. Judgment Entered. Deputy`Prothonotary Date: 9/25/2013 ,PDQ -8 t S '% IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHONE BOOKHART, Plaintiff V. McDONALD'S HAMBURGERS, Defendant NO. 0 4 - `7 S/L Tom,.. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT 1. Stephone Bookhart is an adult individual who resides at 701 North Front Street, Harrisburg, Dauphin County, Pennsylvania 17102. 2. Defendant McDonald's Hamburgers is a restaurant corporation registered to do business in the Commonwealth of Pennsylvania, with a branch at 4230 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. On August 28, 2009, at approximately 2:00 p.m., Plaintiff consumed and paid for a meal at Defendant's said restaurant at 4230 Trindle Road, Camp Hill, PA, and as such he was a business invitee of Defendant. 4. Prior to Plaintiff leaving said restaurant it had been raining hard for a period of time in the area of said restaurant and on said restaurant. 5. Located on the northern side of said restaurant for ingress and egress, is a fifteen foot long and two foot wide walkway made of cement mixed with pebbles. 6. Said walkway is built on a downward grade in a westerly direction leading from a doorway of said restaurant. :.s 7. Said walkway consisting of cement with pebbles leading in a downward grade for guests leaving said restaurant constitutes a dangerous condition at said restaurant when it becomes wet, because the surface becomes extremely slippery which causes patrons to slip and fall on said walkway. 8. When Plaintiff left said restaurant at said time and place, he slipped and fell on the wet surface of said walkway and suffered severe injuries. 9. Defendant knew or should have known that said walkway, when it is wet due to its surface, becomes extremely slippery, creating a dangerous condition which can injure a patron of Defendant restaurant walking thereon. 10. The aforesaid occurrence and the injuries to Plaintiff resulting therefrom were caused solely by the negligence of the Defendant by: (1) failing to keep said walkway free of rainwater; (2) constructing said walkway to said business premises of pebbles and cement when it knew or should have known that the surface of said walkway, when wet, creates a dangerous condition which could cause business patrons to slip and fall on it; (3) failing to warn business patrons of said restaurant that said walkway, when wet, creates a dangerous condition; and (4) failing to remove the rainwater from said walkway prior to Plaintiff's fall and resultant injuries. 11. Defendant owed a high duty of care to Plaintiff, as a business invitee, which it violated by permitting the dangerous condition of rainwater being located on said cement and pebble walkway, when it knew or should have known that business patrons could walk on said walkway in leaving said premises and slip on the surface of said walkway and injure themselves. 12. Plaintiff's injuries from said fall consisted of: a) Cervical myopasm; b) Narrowing of the disc spaces in the cervical spine; c) Myopasm of the thoracic spine; d) Narrowing of the disc spaces in the thoracic spine; e) Neck pain; f) Back pain; g) Bruising of the sternum; h) Pain in the sternum area; i) Emotional distress; and j) Left shoulder strain. 13. Plaintiff's injuries were caused solely by the negligence of Defendant, as described. 14. Due to said negligence of Defendant causing said injuries to Plaintiff, Plaintiff has been unable to work for an extended period of time and may never be able to work. 15. Plaintiff makes claim for lost wages and future lost wages due to Defendant's negligence, as described. 16. Due to Defendant's said negligence, Plaintiff has been forced to incur medical expenses for his injuries and will incur future medical expenses for said injuries. 17. Plaintiff makes claim for medical expenses already incurred and future medical expenses to be incurred for his injuries due to Defendant's negligence. 18. Plaintiff makes claim against Defendant for compensation for past pain and suffering and future pain and suffering caused by Defendant's negligence, as aforesaid. 19. Plaintiff makes claim against Defendant for compensation for past pain and suffering and future pain and suffering caused by Defendant's negligence, as aforesaid. 20. Plaintiff has suffered a loss of life's pleasures due to Defendant's negligence, as aforesaid, for which he seeks compensation from Defendant. WHEREFORE, for all the foregoing reasons, Plaintiff Stephone Bookhart seeks money damages against Defendant McDonald's Hamburgers in excess of the compulsory arbitration limits. November L , 2009 ?e, Peter B. Foster, Esquire Attorney for Plaintiff 114 South Street Harrisburg, PA 17101 717-234-9321 I.D. #15357 . •. VERIFICATION The undersigned, Stephone Bookhart, hereby verifies that the facts set forth in the foregoing Complaint are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, unsworn falsification to authorities. November ? , 2009 . Stephone Bookhart FILED-{ FFI`E CF THE F'Ft T` ?DPINOTAPY 2604NOY 10 FN 2:20 ,.T ic, -J , ..2 33 :3,2- t- SHERIFF'S OFFICE OF CUMBERLAND COUNTY R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor Stephone Bookhart vs. McDonald's Hamburgers ~4~tiytt3~ of ~a~n~i,rrlxa ~d !~ - ~.. i i • i Case Number 2009-7816 SHERIFF'S RETURN OF SERVICE 11/12/2009 11:46 AM -Michael Garrick, Deputy Sheriff, who being duly sworn according to law, states that on November 12, 2009 at 1146 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: McDonald's Hamburgers, by making known unto Janice Clemons, Manager at 4230 Trindle Road Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $41.94 November 13, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF 13y y Sheri _u~ - F n ~ r?cr ~P _ 5ef1. Gam,. ' ~ ~ - ~~~' 7i r_ IL's J4 ~•'(~ I~Y IN THE COURT OF COMMON PLEAS Y OF CUMBERLAND COUNTY, PENNSYLV~~; `~ ~ ? p ~: STEPHONE BOOKHART, . Plaintiff . v. CHEUNG ENTERPRISES, Defendant ,, CIVIL TERMfl ` `.: .:_. # ` , a ry JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, this 20th day of January, 2010, comes Plaintiff, Stephone Bookhart, by his attorney, Peter B. Foster, Esquire, and replies to Defendants New Matter, as follows: 21. Admitted. 22. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 23. Denied. Said averment states a conclusion of law to which no responsive pleading is required. Furthermore, said averment is speculative. 24. Denied. Said averment states a conclusion of law to which no responsive pleading is required. Furthermore, said averment is speculative. 25. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 26. Denied. Said averment states a conclusion of law to which no responsive pleading is required. f ~ ~ t 27. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 28(a). Denied. Said averment states a conclusion of law to which no responsive pleading is required. 28(b). Denied. Said averment states a conclusion of law to which no responsive pleading is required. Furthermore, Plaintiff did keep a proper lookout at the time of the accident. 28(c). Denied. Said averment states a conclusion of law to which no responsive pleading is required. 29. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 30. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 31. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 32. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 33. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 34. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 35. Denied. Said averment states a conclusion of law to which no responsive pleading is required. Furthermore, said averment is speculative. 36. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 37. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 38. Denied. Said averment states a conclusion of law to which no responsive pleading is required. 39. Denied. Said averment states a conclusion of law to which no responsive pleading is required. Furthermore, said averment is speculative. WHEREFORE, for the foregoing reasons, Plaintiff Stephone Bookhart respectfully requests this Honorable Court to dismiss Defendant's New Matter. January 20, 2010 Respectfully submitt, ed~, Peter B. Foster, Esquire Attorney for Plaintiff 114 South Street Harrisburg, PA 17101 717-234-9321 I.D. #15357 i = . VERIFICATION I, Stephone Bookhart, hereby verify that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, unsworn falsification to authorities. January 20, 2010 /'l, ,~ . ~ ., J ~ ~~ ..~ Stephone Bookhart ~ t ~ ; + ~ CERTIFICATE OF SERVICE I hereby certify that on this date, January 20, 2010, I served a copy of the foregoing Reply to New Matter on the Defendant by mailing said copy by first class mail at Harrisburg, PA, to the attorney for Defendant at the following address: Crystal H. Clark, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 1710&0999 January 20, 2010 ~~ Peter B. Foster, Esquire Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP Crystal H. Clark, Esquire Identification Number: 91069 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717-237-7103 cclark .tthlaw.com Attorneys for Defendants Cheung Enterprises, Inc. STEPHONE BOOKHART, Plaintiff v. CHEUNG ENTERPRISES, INC., Defendant {~r-t:~i~fC~ OF TE-!c" F'~~T~'ARY Zt11QMAR 25 PM 2.55 CU~~,~:~~~~•~i~ ~~ F'~i~4'~yLV~Af~TY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-7816 CIVIL TERM JURY TRIAL DEMANDED DEFENDANTS' MOTION TO COMPEL PLAINTIFF TO ANSWER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS AND NOW comes the Defendant, Cheung Enterprises, Inc., and moves this Honorable Court to compel Plaintiff to answer its written discovery for the following reasons. 1. Defendant served Interrogatories and Requests for Production of Documents on Plaintiff on January 26, 2010. (See transmittal letter and Written Discovery attached hereto as Exhibit "A.") 2. Defendant forwarded correspondence to Plaintiff on March 1, 2010 requesting that Plaintiff respond to Defendant's Interrogatories and Requests for Production of Documents by March 15, 2010 to avoid the need for a Motion to Compel. (See March 1, 2010 correspondence attached hereto as Exhibit "B.") 3. To date, no extensions have been requested, and no objections or answers to the Interrogatories or responses to Request for Production of Documents have been received by Defendant from Plaintiff. 4. Defendant will suffer unfair prejudice should Plaintiff fail to answer the aforesaid written discovery. WHEREFORE, Defendant Cheung Enterprises request that the Plaintiff be ordered to Answer Defendant's Interrogatories and Respond to Defendant's Request for Production of Documents, pursuant to Pa.R.C.P. No. 4019 within ten (10) days, or sanctions will be issued on further application to this Court. Respectfully submitted, THO AS, THOMAS HAFER, LLP /~ By: - Crystal .Clark, Esquire I.D. No. 91069 P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7103 cclark _tthlaw.com DATE: March 24, 2010 Attorneys for Cheung Enterprises, Inc. ' THOMAS., THOMAS 8 HAFER ).,.>> ~~ Atun~neas At Law Street Address. 305 Notth From Street, Harrisburg. PA 17101 Mailing Address: P.O. Box 999, Harrisburg, PA 17105 Phone: 717.237.7100 Fax: 717237.7105 Crustal H. Clarlr (717) 237-7103 cclark~ uhlahr. com January 26, 2010 Peter B. Foster, Esquire 114 South Street Harrisburg, PA 17101 Re: Stephone Bookhart tip. McDonald's Hamburgers Our File No. 340-91840 Dear Attorney Foster: Enclosed please find Defendant's Request for Production of Documents and Interrogatories directed to your client. Please respond to said discovery within the time provided for in the Rules of Procedure. Should you have any questions or comments, please do not hesitate to get in touch with my office. Very truly yours, T MAS, THO & HAFER, LLP Cryst .Clark CHCamb:758781.3 Enclosures Harrisburg Bethlehem Pittsburgh Baltimore Philadelphia www.tthtaw.com THOMAS, THOMAS & HAFER, LLP Crystal H. Clark, Esquire Identification Number: 91069 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717)237-7103 cclark@tthlaw.com STEPHONE BOOKHART, Plaintiff v. Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION -LAW O. 09-7816 CHEUNG ENTERPRISES Defendant URY TRIAL DEMANDED nvTFUUn('iATnRiES OF DEFENDANT DIRECTED TO PLAINTIN'r' To: Stephone Bookhart, Plaintiff c% Peter B. Foster, Esguire 114 South Street Harrisburg, PA 17101 DEFINITIONS compilations from which information can be obtained. "Document" means any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, including photographs, microfilms, phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells, drums, and other data "Identify" or "Identity" means when used in reference to -- (1) A natural person, his or her: (a) full name; and (b) present or last known residence and employment address (including street name and number, city or town, and state or country); (2) A document: (a) its description (e.g., letter, memorandum, report, etc.), title, and date; (b) its subject matter; (c) its author's identity; (d) its addressee's identity; (e) its present location; and (f) its custodian's identity; (3) An oral communication: (a) its date; (b) the place where it occurred; (c) its substance; (d) the identity of the person who made the communication; (e) the identity of each person to whom such communication was made; and (f) the identity of each person who was present when such communication was made; (4) A corporate entity: (a) its full corporate name; (b) its date and place of incorporation, if known; and (c) its present address and telephone number; (5) Any other context: a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identification of relevant people, entities, and documents. "Incident" means the occurrence that forms the basis of a cause of action or claim for relief set forth in the Complaint or similar pleading. "Person" means a natural person, partnership, association, corporation, or government agency. ' e STANDARD INSTRUCTIONS (1) Duty to answer. -- The Interrogatories are to be answered in writing, verified, and served upon the undersigned within thirty (30) days of their service on you. Objections must be signed by the attorney making them. In your answers, you must furnish such information as is available to you, your employees, representatives, agents, and attorneys. Your answers must be supplemented and amended as required by the Pennsylvania Rules of Civil Procedure. (2) Claim of privilege. -- With respect to any claim of privilege or immunity from discovery, you must identify the privilege or immunity asserted and provide sufficient information to substantiate the claim. (3) Option to produce documents. -- In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding Interrogatories. Respectfully Submitted, THOMAS, THOMAS & HAFER, LLP By: Crystal H. Clark, Esquire Identification Number: 91069 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7103 Attorney for Defendant Date: INTERROGATORIES 1. State: (a) Your full name; (b) Each other name, if any, which you have used or by which you have been known; (c) The name of your spouse at the time of the accident and the date and place of your marriage to such spouse; (d) The address of your present residence and the address of each other residence which you have had during the past five (5) years; (e) Your present occupation and the name and address of your employer; (f) Date of your birth; (g) Your Social Security number; (h) Your military service and positions held, if any; and ANSWER: 2. List and describe all expenses and losses that you have personally incurred because of the incident. ANSWER: 3. Identify all expenses and charges you have personally paid as a result of the alleged incident. ANSWER: 4. State with particularity the factual basis for each claim or defense you are asserting in this case. ANSWER: 5. (a) Identify each person who (1) Was a witness to the incident through sight or hearing; and/or (2) Has knowledge of facts concerning the happening of the incident or conditions or circumstances at the scene of the incident prior to, at the time of, or after the incident; and/or (3) You intend to call as a non-expert witness at the trial of this matter. (b) With respect to each such person identified, state that person's exact location and activity at the time of the incident; and/or what information you expect the witness to be able to testify regarding. ANSWER: 6. Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: (a) The subject matter about which the expert is expected to testify; and (b) The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this Interrogatory, the report of the expert or have the Interrogatory answered by your expert.) ANSWER: 7. Identify all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. ANSWER: 8. If you intend to use any admission(s) of a party at trial, identify such admission(s). ANSWER: 9. Except as set forth above, list the names and addresses of any and all persons known or believed by Plaintiff or anyone acting on Plaintiffs behalf to have firsthand knowledge of the facts and circumstances of the incident; the conditions at the scene of the incident existing prior to, at or immediately following the incident, the events leading up to or following the incident, or of the injuries allegedly sustained. ANSWER: 10. State in detail the nature of the injuries that you allege have been suffered as a result of this incident and with specificity, state the following information: (a) The nature and extent of such injuries; (b) The location of any injuries sustained; and (c) Whether any restraint from normal activities was suffered due to the injuries allegedly sustained. ANSWER: 11. If, either prior to or subsequent to the incident, you suffered any injury or disease in those portions of the body claimed by you to have been affected by the incident state: (a) The injury or disease you suffered; (b) The date and place of any accident, if such injury or disease was caused by an accident; (c) The identity of hospitals, doctors, or practitioners who rendered treatment or examination because of such injury or diseases; and (d) The identity of anyone against whom a claim was made, and the tribunal and docket number of any claim or lawsuit that was filed in connection with such injury or disease. ANSWER: 12. If you received medical treatment or examination (including x-rays) because of injury or disease you suffered as a result of the incident, state: (a} The identity of each hospital at which you were treated or examined; (b) The date on which each such treatment or examination at a hospital was rendered, and the charge by the hospital for each; (c) The identity of each doctor or practitioner by whom you were treated or examined; (d) The date on which each such treatment or examination by a doctor or practitioner was rendered, and the charge for each; and (e) The identity of any document(s) (except reports of experts subject to Pa.R.C.P. No. 4003.5) regarding any medical treatment or examination, setting forth the author and date of such document(s). ANSWER: 13. Please state the name, address, and telephone number of your family physician and each and every physician you have consulted in the last five (5) years prior to the date of this incident, as well as indicate the date on which Plaintiff last consulted any physician for any type of physical complaint and the reason for such consultation. ANSWER: 14. For the period of three years immediately preceding the date of the incident, state: (a) The name and address of each of your employers, or if you were self- employed during any portion of that period, each of your business addresses and the name of the business while self-employed; (b) The dates of commencement and termination of each of your periods of employment or self-employment; (c) The nature of your occupation in each employment or self-employment; and (d) The wage, salary, or rate of earnings received by you in each employment or self-employment, and the amount of income from employment and self- employment for each year. ANSWER: 15. If you have engaged in one or more gainful occupations subsequent to the date of the incident, state: (a) The name and address of each of your employers or, if you were self- employed at anytime subsequent to the incident, each of your business addresses and the name of the business while self-employed; (b) The dates of commencement and termination of each of your periods of employment or self-employment; (c) The nature of your occupation in each employment or self-employment; (d) The wage, salary or rate of earnings received by you in each employment or self-employment, and the amount of income from employment and self- employment for each year; and (e) The date(s) of any absence(s) from your occupation resulting from any injury or disease suffered in this incident, and the amount of any earnings or other benefits lost by you because of such absence(s). ANSWER: 16. If you are making a claim for lost wages as a result o received in this incident, please indicate the amount of wa es to f the injuries you allegedly any and all lost wages, g st and specify the source(s) of ANSWER: 17. If, as a result of this incident, you have been unable to perform any of your customary occupational duties or social or other activities in the same manner as prior to the incident, state with particularity: (a) The duties and/or activities you have been unable to perform; (b) The periods of time you have been unable to perform; and (c) The identity of all persons having knowledge thereof. ANSWER: 18. Was Plaintiff wearing shoes, boots, sandals, etc. at the time of the incident? If so, describe same in detail and state whether the shoes are still in possession of the Plaintiff, their counsel, or any person acting on Plaintiffs behalf with respect to this litigation. If the shoes are no longer in your possession, please identify what you did with them, when you did so, and why you did so. ANSWER: 19. Set forth the precise time, date and location where Plaintiff allegedly fell, and on what type of surface it occurred giving a description of the location of the fall. In doing so, please identify the presence of all items or materials on the floor in the area of the Plaintiff's fall. ANSWER: 20. Indicate whether you contend Plaintiffs fall resulted from: (a) Slipperiness of the floor or other surface; (b) Defects in the floor or other surface; (c) Variations in the level of the floor or other surface; (d) Inadequate lighting; (e) Debris or litter on the floor or other surface; (f) Obstructions on the floor or other surface; (g) Other conditions (specify) ANSWER: 21. As to each condition, defect or substance that was allegedly on the floor, which you contend caused the alleged incident, state: (a) a description of the condition which made the premises dangerous; (b) each fact which indicates the length of time the condition had existed prior to the accident; (c) each fact which tends to show that the Defendant knew, or should have known, of the condition; (d) whether you had any knowledge of the existence of the alleged defect, condition or foreign substance or object before the accident; (e) the manner and time in which you first acquired such knowledge of the alleged defect, condition or substance on the floor; (f) a description of the said defect, condition or substance that was on the floor, indicating specifically the size, depth and color of same; and (g) what, if any, actions you took to avoid said defect, condition or substance that was on the floor. ANSWER: 22. Please state with specificity the time, in relation to other events, if necessary, at which Plaintiff first became aware of the presence of the allegedly dangerous condition of the floor. ANSWER: 23. Set forth the specific acts of negligence (either omission or commission) that you contend were committed by the Defendant(s). ANSWER: 24. State whether you contend that any officials, agents, servants or employees of Defendant observed Plaintiff fall, or observed Plaintiff following said fall, and identify by name, address and position. ANSWER: 25. State whether Plaintiff or any persons accompanying Plaintiff, spoke to any officials, agents, servants, or employees of Defendant, following said fall, and if so, set forth what was said by Plaintiff or persons accompanying Plaintiff and said persons. ANSWER: 26. Has Plaintiff ever suffered from or received treatment for [please check all that apply] a. double vision b. polio c. blurred vision d. apoplexy e. instability of balance f. paralysis g. infection or disease of the inner ear h. heart disease i. vertigo j. high blood pressure k. dizzy spells 1. diabetes m. fainting spells n. brain or nervous disorder o. epilepsy p. muscular disorder q. other (please specify) 27. If the answer to any of the items in the previous Interrogatory is yes, for each such disorder, please state: (a) A description of the disorder; (b) The date of Plaintiffs last attack prior to the accident; (c) The name and address of each medical practitioner or chiropractor who examined or treated Plaintiff for the disorder; (d) A description of the treatment Plaintiff received; and (e) Whether Plaintiff was under treatment at the time of the alleged accident. ANSWER: 28. Had Plaintiff undergone any medical procedures within 24 hours prior to this incident? If so, for each procedure, state: (a) the date and time of each said procedure; (b) the name and address of the doctor performing each said procedure; (c) the purpose of each said procedure; and (d) a brief description of the procedure. ANSWER: 29. Were any medicines, controlled substances, drugs or medical supplies used by the Plaintiff within 24 hours prior to this incident? If so, for each type of medication, controlled substance, drug or medical supplies, state: (a) The name or description; (b) The name and addresses of the doctor or practitioner prescribing each medication and/or supply; and (c) Each date and place of acquisition. ANSWER: 30. Please identify the location where you have purchased or acquired or any prescription medication within a period of five years before this accident. (Please identify these locations by providing their name and address.) Please identify the doctor and/or healthcare professional who prescribed any of the medications that you have identified in response to this Interrogatory. (Please identify the doctor or healthcare professional who prescribed this medication by providing their complete name and address and the reason why you believe the medication was prescribed.) ANSWER: 31. Prior to the alleged incident, had you at any time felt dizzy, faint, tired and/or in any way not completely healthy and/or at risk or need to sit down? If so, please fully describe your symptoms. ANSWER: 32. Have you ever been involved in any other legal action for personal injury, or property damage, either as a Plaintiff or as a Defendant? If so, please state: (a) The date and place each such action was filed, identifying the name of the Court, docket number, and attorneys representing each party; (b) A brief description of each such incident or lawsuit; and (c) The result of each such action, whether or not there was an appeal, and the nature and result of any such appeal. ANSWER: 32. State the name and address of each school, college or other educational or vocational institution which you attended, listing the dates of attendance and the course of study, including on-the job and specialized training which you received. ANSWER: 33. Have you ever made a disability claim or any claim under any insurance policy or filed any lawsuit against any person or entity for personal injuries or physical or mental conditions? If so, then state: (a) The injury or condition for which such claim is made; (b) The name and address of the person, firm or corporation to whom or against whom it was made; and (c) The date it was made; and the nature and amount of any payment or judgment received. ANSWER: 34. State whether you have ever been arrested or convicted and, if so, then state the charge, disposition, date of disposition and the court in which it was processed. ANSWER: 35. Please itemize all special damages which you contend to have sustained, including but not limited to property losses, medical expenses, lost wages and diminished earning capacity. Please also explain how they are calculated. ANSWER: 36. Identify the source and state the amount and date of any and all benefits or payments of any kind that you have received or have been paid on your behalf because of losses you sustained or expenses you incurred as a result of the subject accident, including but not limited to all first party insurance benefits, workers' compensation, medical expense coverage and compensation for disability, dismemberment or disfigurement, death, income or hospital indemnity and lost income or earnings. ANSWER: 37. State the amount of all liens that are or may be applicable to a settlement or judgment in this matter, identifying the lienholder, basis thereof and how it was calculated. ANSWER: 38. Identify and attach to your answers all documents that relate to your answers to the foregoing Interrogatories. ANSWER: THOMAS, THOMAS & HAFER, LLP By: Crys 1 H. Clark, Esquire Identification Number: 91069 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7103 Attorney for Defendants Date: I/2 ~ w CERTIFICATE OF SERVICE I, Crystal H. Clark, Esquire, hereby state that a true and correct copy of the foregoing document was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: Peter B. Foster, Esquire 114 South Street Harrisburg, PA 17101 THOMAS, THOMAS & HAFER LLP By: Cry 1 H. Clark, Esquire Date: I Z1 ~~ THOMAS, THOMAS & HAFER LLP Crystal H. Clark, Esquire Identification Number: 9]069 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 237-7103 cclark@tthlaw.com STEPHONE BOOKHART, Plaintiff v. CHEUNG ENTERPRISES, Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, PENNSYLVANIA CIVIL ACTION -LAW 0.09-7816 URY TRIAL DEMANDED REQUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT DIRECTED TO PLAINTIFF To: Stephone Bookhart, Plaintiff c% Peter B. Foster, Esquire 114 South Street Harrisburg, PA 17101 Defendants hereby requests that you furnish pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, at our expense, or permit the Defendants or someone acting on its behalf to inspect, examine, and copy the following items concerning this action which are in the possession, custody, or control of the Plaintiff, counsel for Plaintiff, or any other person or entity acting on behalf of Plaintiff, including any insurer(s) for Plaintiff. Said items shall be produced or made available for inspection at the office of Defendant's attorneys located at 305 North Front Street, Harrisburg, Pennsylvania within thirty (30) days after service of this Request, on a date and time to be arranged between counsel: 1. All photographs showing, representing or purporting to show any of the instrumentalities, locales, persons, property, injuries and any and all other matters related to the subject matter of this litigation. 2. All diagrams, sketches, drawings, plans, measurements or blueprints showing, representing or purporting to show any of the instrumentalities, locales, persons, property, injuries or other matter involved in the incident, which form the basis of Plaintiffs Complaint or cause of action. 3. All statements, including but not restricted to those defined by Pa.R.C.P. 4003.5, signed statements, transcripts of recorded statements or interviews, or any memoranda or .. summary of transcripts of statements or interviews of any party, person or witness, or their agents or employees, who have any knowledge or information of the facts concerning or pertaining to the incident, the subject matter, the claims, the damages, injuries, or any other matter involved in or pertaining to this case. 4. A curriculum vitae as to each expert or experts you have retained to testify on your behalf at the trial of this case. 5. All documents prepared by you or by any insurer(s), representative(s), agent(s) or anyone acting on your behalf, except your attorney(s), during an investigation of any aspect of the incident in question. Such documents shall include any documents made or prepared through the present time with the exclusion of mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. (NOTE: As referred to herein, "documents" includes written, printed, typed, recorded or graphic matter, however produced or reproduced, including correspondence, telegrams, other written communications, data processing storage units, tapes, videos, films, microfilm, microfiche, contracts, agreements, notes, memoranda, summaries, analyses, projections, indices, work papers, studies, test reports, test results, surveys, diaries, calendars, films, photographs, videos, movies, diagrams, drawings, sketches, minutes of meetings or any other writing [including copies of the foregoing, regardless of whether the parties to whom this request is addressed is not in the possession, custody or control of the original] now in the possession, custody or control of Plaintiff, her former or present counsel, agents, employees, officers, insurers or any other persons acting on their behalf.) 6. If not otherwise covered by the above Requests, any and all documents regarding your investigation of the incident in question, with the exclusion of the mental impressions, conclusions or opinions respecting the value or merit of a claim or defense, or respecting strategy or tactics. 7. All documents relating in any way to all injuries, damages and losses sustained by Plaintiff. This should include, but not be limited to, bills, invoices, medical reports, medical records, medical bills, receipts, hospital records, charts and x-rays, wage and employment information, and all other documents in any way relating to Plaintiffs alleged injuries and damages. 8. Any release or other agreement between any person or entities given or obtained in regard to the subject incident. 9. Any and all documents evidencing or pertaining to any lien by any person or entity against potential recovery of damages by Plaintiff in this action. 10. All documents or exhibits which you intend to offer or identify as exhibits and/or evidence at any depositions or at the trial of this matter. 11. All financial records concerning the Plaintiff including but not limited to any and all tax returns, W-2's, and other filings, employment records, and wage or salary information, for a period of three (3) years prior to the date of this incident. 12. Any and all documents which evidence any facts on the basis of which it will be asserted that the Defendant(s) caused or contributed to the happening of the injuries sustained by the Plaintiff. 13. Any documents identified in your Answers to any set of Interrogatories. 14. All documents which would support any claims for injuries/damages averred in Plaintiff s Complaint. 15. Copies of all records and documents reflecting the payment of medical bills for Plaintiff and the amounts paid in satisfaction of such bills. 16. Any and all documents relating to any physical or medical conditions which Plaintiff had been diagnosed with and/or suffered from at the time of Plaintiff's alleged fall. This should include, but not be limited to, bills, invoices, medical reports, medical records, medical bills, receipts, hospital records, charts and x-rays, wage and employment information, and all other documents in any way relating to Plaintiffs alleged injuries and damages. 17. Any application for disability benefits from any source since the alleged incident or for a period of five (5) years prior to the alleged fall filed by you or on your behalf. 18. The footwear being worn by Plaintiff at the time of the fall which forms the basis for this litigation. THOMAS, THOMAS & HAFER LLP By C stal H. Clark, Esquire Identification Number: 91069 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7103 Atto~~ney for Defendants Date: I~~ / - I'v .~ CERTIFICATE OF SERVICE I, Crystal H. Clark, Esquire, hereby state that a true and correct copy of the foregoing document was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: Peter B. Foster, Esquire 114 South Street Harrisburg, PA 17101 THOMAS, THOMAS & HAFER LLP B C tal .Clark, Esquire Date: ~~ ~U • THOlV~AS, T~ivMAS & HAFER t,La~ Attorneys At Law Sweet Address: -305 North Front Street, Harrisburg, PA 17101 Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Phone: 717.237.7100 Fax: 717237.7105 Crpstal H. Clcn•k (717) 237-7103 cclark~tthlat~~. corn March 1, 2010 Peter B. Foster, Esquire 114 South Street Harrisburg, PA 17101 Re: Stephone Bookhart v. McDonald's Hamburgers Oul• File No. 340-91840 Dear Attorney Foster: On January 26, 2010, my office served you with Requests for Production of Documents and Inten-ogatories directed to your client. Responses to same were due by February 25, 2010. To date, we have not received said responses. Kindly provide us with your responses to discovery by no later than Monday, March 15. In the event that responses are not received by that date, we will be prepared to file a Motion to Compel at that time. Should you have any questions or comments, please do not hesitate to get in touch with my office. Very truly yours, ~OMAS, THO S & HAFER, LLP ryst H. Clark CHC:smb:758781.4 Harrisburg Bethlehem Pittsburgh Baltimore Philadelphia wwva.tthlaw.com CERTIFICATE OF SERVICE AND NOW, this 24th day of March, 2010, I hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Peter B. Foster, Esquire 114 South Street Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP By: ~~ 1 Crystal F~Clark, Esquire I.D. No. 91069 P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7103 cclark(a~tthlaw. com Attorneys for Cheung Enterprises, Inc. n_ STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVc4NIA C C-S -oz CIVIL ACTION - LAW rn m M C_ ? C/> NO. 09-CV-7816 -zz cr% s JURY TRIAL DEMANDED ? -r r, WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: '"77 -a ' Please withdraw the appearance of Crystal H. Clark, Esquire, as attorney for Defendant, Cheung Enterprises, Inc., in the above-captioned case. THO S,HOMAS & HAFER LLP By: Crystal H. lCk, Esquire Identification Number: 91069 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7103 Date: June 15, 2011 i CERTIFICATE OF SERVICE I, Crystal H. Clark, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Peter B. Foster, Esquire 114 South Street Harrisburg, PA 17101 Attorney.for Defendants T AS, THOMAS & HAFER, LLP B y Crystal H ark, Esquire Date: June 15, 2011 THOMAS, THOMAS & HAFER LLP John F. Yaninek, Esquire Attorney ID #55741 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3952 jyaninek@tthlaw.com TIIIE FILED-OFFICE l E Vi 5 5 i?? i I JUH 16 AM It: 42 CUMBERLAND l+ "n I PENNSYLVAM Attorney for Defendant STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL ACTION - LAW NO.2009 Civil 7816 JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of John F. Yaninek, Esquire on behalf the Defendant in the above-captioned matter. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: o F. ni k No. 55741 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 441-3952 Date: June 15, 2011 CERTIFICATE OF SERVICE I, Angela A. Kelly, of the law firm Thomas, Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Peter B. Foster, Esquire 114 South Street Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP By: Angela lly Date: June 15, 2011 956969.1 , ' THOMAB, THOMAS & HAFER LLP " F ~ . ) f° ~ ~ t- John F. Yaninek, Esquire + ~ "~`~~~~~ii~ Attorney ID #55741 , ~ f~ 305 N. Front Street t= ! P.O. Box 999 Harrisburg, PA 17108 u j'13 E ~.iL~~~ ~~~~l T i, (717) 441-3952 ~ENNS} jyaninek@tthlaw.com VA NIA Attorney for Defendant STEPHONE BOOKHART, IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA Plaintiff CIVIL ACTION - LAW v. N0.2009 Civil 7816 CHEUNG ENTERPRI5ES, INC., JURY TRIAL DEMANDED Defendant ~'3,~NTS MOT'#ON FOR.STATUS V0NPFJW= AND NOW, comes Defendant, Cheung Enterprises Inc., by and through its attorneys, Thomas, Thomas & Hafer, LLP, and hereby moves this Court to schedule a Case Management Conference in the above-captioned matter pursuant to Pa.R.C.P. 1042.41 for the following reasons: l. This case involves an alleged slip and fall incident at Defendant's place of business on Trindle Road in Camp Hill, Cumberland County, Pennsylvania. 2. It is alleged that Plaintiff slipped on a wet concrete walkway located at Defendant's place of business. 4. On December 3, 2009, Plaintiff filed a Complaint against Cheung Enterprises, Inc. in the Court of Common Pleas of Cumberland County, Pennsylvania. 5. Discovery has been completed and depositions have been taken. 6. It also appears that Plaintiff's counsel is now deceased and the issue of new counsel needs to be resolved. ~ 7. Pleadin s have been closed and the case is ri e for a Case Mana g p gement Conference pursuant to Pa.R.C.P. 1042.41. 8. Defendant believes that a Case Management Conference would serve the purpose of allowing all parties to complete their discovery in a timely fashion, set deadlines for dispositive motions, and set a deadline for new counsel to enter an appearance. A trial date could also be secured. WHEREFORE, Defendant, Cheung Enterprises, Inc., respectfully requests this Honorable Court schedule a Case Management Conference in this matter. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ?hn F. Esquire Aorneys for Defendant Date: November 14, 2011 s STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL ACTION - LAW NO.2009 Civil 7816 JURY TRIAL DEMANDED C'> G -.O3 =M ?;o ?c N -Tj r? rn r_j r ----r CD z n- ORDER C) 73 ?? _< A ' iJ NG ' ti; s / , day of / 1??? l?- ;? 3 - ?7 01I, upon nPf°ndar± s Motion Requesting a Case Management Conference and to issue a Scheduling Order pursuant to Pa.R.C.P. 1042.41, it is hereby ORDERED that a Case Management Conference will be held on this matter on the ? day of 2011, at ' go'clock a.m./pm. The conference will take place before the Honorable in Courtroom 5 and counsel for all parties shall attend. '? ?ohn F• yaninek, Est Pew Roskr, Ziephone BY THE COURT: I QKg STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, Defendant To The Prothonotary: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 09-7816 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE rna; 0 rn it3 "C F L) C D Please enter my appearance for Stephone Bookhart, (Plaintiff) in the above captioned matter. Date: November 19, 2011 B Alphonso Arnold, Jr., Esquire 17 North 2nd Street, 16th Floor Harrisburg, PA 17101 717.260.3060 Fax 717.260.3072 prinump comcast.net Appearing for Plaintiff CERTIFICATE OF SERVICE Alphonso Arnold, Jr., Esquire, hereby certifies that a true and correct copy of the foregoing, Praecipe, was served upon the following persons, in the following manner: John F. Yaninek, Esquire c/o Thomas & Thomas 305 North Front Street Harrisburg, PA 17101 Date: November 19. 2011 By: Alphonso Arnold, Jr., Esquire STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL ACTION - LAW NO.2009 Civil 7816 JURY TRIAL DEMANDED CASE MANAGEMENT ORDER ? ?H?? 2Ca r z AND NOW, this day of rr ? `, upon consideration of the agreement of the parties, it is hereby ORDERED and DECREED that the following Case Management Order, with the following deadlines, shall apply to this case: Discovery, including depositions, shall be completed by March 30, 2012; Plaintiffs expert report(s) shall be provided to Defendant by April 30, 2012; Defendant's expert report(s) shall be provided to Plaintiff by May 31, 2012; Motions for Summary Judgment and Motions in Limine shall be filed by June 29, 2012; Either party may list this matter for trial on or after July 2, 2012. BY THE COURT: Hon. Judge Albert H. Masland Alphon?o Arnold, Jr r' `? Ihn r. Yo-ninek,E-sq_ ies ? 70 -u I1, "??1Gg 7,r ac? Z = CD q c.n ;P s THOMAS, THOMAS & HAFER LLP John F. Yaninek, Esquire Attorney ID #55741 305 N. Front Street P.O. Box 999 Harrisburg, PA 171o8 (717) 441-3952 jyaninek@tthlaw.com PRO"?tUOTAR C'f THE ,all al; 28 1t 2 CUTAB SLAl10 c()UtAr( PENHSYLN^%u? Attorney for Defendant STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.2009 Civil 7816 JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes Defendant, Cheung Enterprises Inc., by and through its attorneys, Thomas, Thomas & Hafer, LLP, and hereby files this Motion for Summary Judgment pursuant to Pa.R.C.P. 1035.2 and in support thereof, avers as follows: 1. The instant cause of action stems from a slip and fall that occurred on the sidewalk outside the McDonald's restaurant on August 28, 20o9 at approximately 2:00 p.m. 2. Plaintiff instituted the above-captioned lawsuit against the Defendant for personal injuries he allegedly sustained in a slip and fall by filing a Complaint in the Court of Common Pleas of Cumberland County on or about November 10, 2009. 3. An Amended Complaint was filed on or about December 3, 2oo9. A copy of the Amended Complaint is attached hereto as Exhibit "A". 4. Plaintiff contends in his Complaint that while walking outside the restaurant after eating his meal, he slipped on the wet surface of the walkway and suffered injuries. Amended Complaint, ¶ 8. 5. In paragraph 10 of the Amended Complaint, Plaintiff complains that Defendant was negligent for the following: (1) failing to keep its walkway free of rainwater; (2) constructing a walkway to said business premises of pebbles and cement when it knew or should have known that the surface of said walkway, when went, creates a dangerous condition which would cause business patrons to slip and fall on it; (3) failing to warn business patrons of said restaurant that said walkway, when wet, creates a dangerous condition; and (4) failing to remove the rainwater from said walkway prior to Plaintiff s fall and resultant injuries. 6. Following a case management conference, the Court entered an Order requiring Plaintiffs to produce any expert report to Defendant by April 30, 2012. 7. Plaintiff has not produced an expert report that would confirm: (1) the construction of a sidewalk with pebbles creates a dangerous condition; (2) the walkway in question required to be covered so that rain would not fall upon it; and (3) that Defendant's premises was in violation of any local or state building code. 8. The pleadings in this matter are closed, discovery has been completed, and this matter is now ripe for disposition. 9. Summary judgment is appropriate when the record demonstrates that there is no genuine issue of material fact and the moving parry is entitled to judgment as a matter of law. Pa.R.C.P.1035., et. seq. 10. Specifically, Rule 1035.2 of the Pennsylvania Rules of Civil Procedure allows for summary judgment when the record is insufficient for the opposing party to sustain a prima facia case. 11. In order to recover in this case, Plaintiff must prove: (a) the existence of a dangerous condition; (b) the dangerous condition caused the harm sustained; (c) the Defendant had actual or constructive notice of the dangerous condition; and (d) the Defendant failed to correct the dangerous condition after having notice of its existence. 12. The Plaintiff was deposed on May 24, 2010. A copy of Plaintiffs deposition transcript is attached as Exhibit "B". 13. Plaintiff testified that he was wearing David Eden alligator shoes when he slipped and fell on the outside sidewalk. 14. Plaintiff was unable to articulate the cause of his fall: Q: OK, slipped. Just wanted to be clear. Tell me how you slipped and fell. A: I was just walking normally with my fries in my hand. And I really don't know what it was - - at the time I don't exactly know if the sidewalk was level or whatever, but I just slipped. My shoes (indicating). Exhibit "B", page 33• 15. Because Plaintiff cannot sustain his burden of proving that any defect in the property caused his fall, Defendant is entitled to summary judgment as a matter of law. Summary Judgment Standard. 16. A proper grant of summary judgment depends on an evidentiary record that either (1) shows that material facts are undisputed, contains insufficient evidence and facts to make out a prima facia cause of action or defense, and, therefore, there is no issue to be submitted to a jury. Pa.R.C.P. 1035.2; McCarthy v. Dan Lepore & Sons, Inc., 724 A.2d 938, 940 (Pa. Super. 1998)• 17. When a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve their causes of action. Id. 18. If the non-moving parry fails to come forward with sufficient evidence to establish or contest the material issue to the case, the moving parry is entitled to judgment as a matter of law. Id. Plaintiff cannot establish that a dangerous condition existed which caused the accident and Plaintiffs injuries and damages to set forth a prima facia case of negligence. 19. A proprietor of a business is not an insurer of the safety of its patrons, and the mere existence of a harmful condition in the public place of business or a mere happening of an accident due to such conditions, is neither, in and of itself, evidence of a breach of a proprietor's duty of care to its invitees, or raises a presumption of negligence. Zito v. Merit Outlet Stores, 647 A.2d 573, 574-75 (Pa. Super. 1994)• 20. In order to establish liability in a case of this nature, Plaintiff must prove what legally caused the accident; it is not sufficient for him to merely prove that an accident occurred or what might or could have caused it. Loeb v. Allegheny County, 147 A.2d 336, 338 (Pa. 1959)• 21. Plaintiff has produced insufficient evidence to sustain his burden of proof that a wet sidewalk constitutes a dangerous condition. 22. Accordingly, Plaintiff cannot establish negligence on the part of Defendant, and Defendant is entitled to judgment as a matter of law. Plaintiff cannot establish actual constructive notice to the Defendant in order to set forth a prima facia case of negligence. 23. Assuming arguendo that a dangerous condition existed, Plaintiff is still deficient because there is no evidence of record that Defendant created the dangerous condition, or had actual or constructive knowledge that misty rain on an outside sidewalk constituted a dangerous condition. 24. A proprietor's duty to a business invitee arises no higher than to keep his premises in reasonably safe condition and to correct unsafe conditions discoverable through exercise of reasonable care and diligence. Martino v. GreatAItantic & Pacific Tea Company, 213 A.2d 6o8, 61o (Pa. 1965). 25. An invitee must prove that the proprietor of the land had a hand in creating the condition or actual notice or constructive notice of it for duty to arise. Moultrie v. GreatAtlantic & Pacific Tea Company, 422 A.2d 593, 598 (Pa. Super. 198o). 26. There is no evidence Defendant ever received actual or constructive notice that a wet walkway outside its premises was a dangerous condition. 27. Plaintiff has produced no evidence that any one, in fact, notified the Defendant that the wet walkway outside its premises was a dangerous condition. 28. Accordingly, Plaintiff cannot establish negligence on the part of Defendant and Defendant is entitled to judgment as a matter of law. WHEREFORE, Defendant, Cheung Enterprises, respectfully requests this Honorable Court grant the Motion for Summary Judgment and enter an Order in the form proposed. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP L- ?- -VP ? ? Jo ?- Yaninek-,-Asquire s for Defendant y b 12? I v AtE Date: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHONE BOOKHART, NO. 09-7816 CIVIL TERM Plaintiff n CIVIL ACTION - LAVA -7 V. JURY TRIAL DEMANDED , -M m CHEYUNG ENTERPRISES, INC., %tj Defendant NOTICE =r cr, =n YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO. DEFENDANT AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY OR BY FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 EA- 71 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHONE BOOKHART, NO. 09-7816 CIVIL TERM Plaintiff V. CIVIL ACTION - LAW JURY TRIAL DEMANDED CHEYUNG ENTERPRISES, INC., Defendant AMENDED COMPLAINT 1. Stephone Bookhart is an adult individual who resides at 701 North Front Street, Harrisburg, Dauphin County, Pennsylvania 17102. 2. Defendant Cheyung Enterprises, Inc. is a restaurant corporation registered to do business in the Commonwealth of Pennsylvania, with an office at 2286 West Harrisburg Pike, Middletown, PA 17057. 3. On August 28, 2009, at approximately 2:00 p.m., Plaintiff consumed and paid for a meal at Defendant's said restaurant at 4230 Trindle Road, Camp Hill, PA, and as such he was a business invitee of Defendant. 4. Prior to Plaintiff leaving said restaurant it had been raining hard for a period of time in the area of said restaurant and on said restaurant. 5. Located on the northern side of said restaurant for ingress and egress, is a fifteen foot long and two foot wide walkway made of cement mixed with pebbles. 6. Said walkway is built on a downward grade in a westerly direction leading from a doorway of said restaurant. 7. Said walkway consisting of cement with pebbles leading in a downward grade for guests leaving said restaurant constitutes a dangerous condition at said restaurant when it becomes wet, because the surface becomes extremely slippery which causes patrons to slip and fall on said walkway. 8. When Plaintiff left said restaurant at said time and place, he slipped and fell on the wet surface of said walkway and suffered severe injuries. 9. Defendant knew or should have known that said walkway, when it is wet due to its surface, becomes extremely slippery, creating a dangerous condition which can injure a patron of Defendant restaurant walking thereon. 10. The aforesaid occurrence and the injuries to Plaintiff resulting therefrom were caused solely by the negligence of the Defendant by: (1) failing to keep said walkway free of rainwater; (2) constructing said walkway to said business premises of pebbles and cement when it knew or should have known that the surface of said walkway, when wet, creates a dangerous condition which could cause business patrons to slip and fall on it; (3) failing to warn business patrons of said restaurant that said walkway, when wet, creates a dangerous condition; and (4) failing to remove the rainwater from said walkway prior to Plaintiff's fall and resultant injuries. 11. Defendant owed a high duty of care to Plaintiff, as a business invitee, which it violated by permitting the dangerous condition of rainwater being located on said cement and pebble walkway, when it knew or should have known that business patrons could walk on said walkway in leaving said premises and slip on the surface of said walkway and injure themselves. ' 12. Plaintiff's injuries from said fall consisted of: a) Cervical myopasm; b) Narrowing of the disc spaces in the cervical spine; c) Myopasm of the thoracic spine; d) Narrowing of the disc spaces in the thoracic spine; e) Neck pain; f) Back pain; g) Bruising of the sternum; h) Pain in the sternum area; i) Emotional distress; and j) Left shoulder strain. 13. Plaintiff's injuries were caused solely by the negligence of Defendant, as described. 14. Due to said negligence of Defendant causing said injuries to Plaintiff, Plaintiff has been unable to work for an extended period of time and may never be able to work. 15. Plaintiff makes claim for lost wages and future lost wages due to Defendant's negligence, as described. 16. Due to Defendant's said negligence, Plaintiff has been forced to incur medical expenses for his injuries and will incur future medical expenses for said injuries. 17. Plaintiff makes claim for medical expenses already incurred and future medical expenses to be incurred for his injuries due to Defendant's negligence. 18. Plaintiff makes claim against Defendant for compensation. for past pain and suffering and future pain and suffering caused by Defendant's negligence, as aforesaid. 19. Plaintiff makes claim against Defendant for compensation for past pain. and suffering and future pain and suffering caused by Defendant's negligence, as aforesaid. 20. Plaintiff has suffered a loss of life's pleasures due to Defendant's negligence, as aforesaid, for which he seeks compensation from Defendant. WHEREFORE, for all the foregoing reasons, Plaintiff Stephone Bookhart seeks money damages against Defendant Cheyung Enterprises, Inc. in excess of the compulsory arbitration limits. December 3 , 2009 Peter B. Foster, Esquire Attorney for Plaintiff 114 South Street Harrisburg, PA 17101 717-234-9321 I.D. #15357 VERIFICATION The undersigned, Stephone Bookhart, hereby verifies that the facts set forth in the foregoing Complaint are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. g 4904, unsworn falsification to authorities. December 3 ,2009 Stephone Bookhart CERTIFICATE OF SERVICE I hereby certify that on this date, December 1, 2009, I served a copy of the foregoing Amended Complaint on the Defendant by mailing said copy by first class mail at Harrisburg, PA, to the attorney for the Defendant at the following address: Crystal Clark, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, Suite 600 Harrisburg, PA 17101 December3, 2009 Peter B. Foster, Esquire Attorney for Plaintiff I STEPHONE BOOKHRRT, PLAINTIFF V CHEUNG ENTERPRISES, DEFENDANT IIN THE COURT OF COMMON PLEAS ICUMBERLAND COUNTY, PA I NO. 09-7816 1 CIVIL ACTION - LAW I I I JURY TRIAL DEMANDED DEPOSIT--ON OF: STEPHONE BOOKHART TAKEN BY: DEFENDANT BEFORE: KAREN C. ALBRIGHT, RPR NOTARY PUBLIC DATE: MAY 24, 2010, 10:00 A.M. PLACE: THOMAS, THOMAS & HAFER, LLP 305 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: PINSKEY & FOSTER BY: PETER B. FOSTER, ESQUIRE FOR - PLAINTIFF THOMAS, THOMAS & HAFER, LLP BY: CRYSTAL H. CLARK, ESQUIRE FOR - DEFENDANT Hughes, Albright, Foltz & Natale Reporting Service, Inc EXHIBIT 3540 N. Progress Avenue • Suite 207-A • Harr1'shura, PA 17110 717-540-0220•Fax 717-540-0221 Multi-Pager` STEPHONE BOOKHART MAY 24, 2010 Page 2 Page 4 1 I here today who is furiously typing away as we speak. She 1 WITNESSES ATION 2 is going to be taking down everything that you or I or your 2 NAME EXAMIN 3 attorney says here today. For that reason you have to be 3 STEPHONE BOOKHART 3 4 verbal in all of your responses. No nods of the head, no 4 BY: MS. CLARK 5 shakes of the head. You can't use your hands to 5 BY: MR. POSTER _ 6 gesticulate because she can't put that down for the record. 6 7 Okay? 8 8 A Okay. 9 Q In addition, we have the tendency in every day 9 10 speak to say things like huh-uh or uh-huh. For purposes of 10 11 the record that becomes very unclear and hard to 11 12 distinguish the two, so if you'd please say yes or no or 12 13 otherwise assent or dissent, I would appreciate it. All 13 19 14 right? 15 15 A Yes. 16 Q You're attorney indicated earlier, sir, that 16 17 you've taken some pain medication this morning? 17 18 18 A (Nods affirmatively). 19 19 Q You have to answer verbally. 20 20 A I'm sorry. Yes. 21 21 Q What have you taken, sir? 22 22 A Some Vicodins. 23 23 Q How many did you take? 24 24 A Two. 25 25 Q When did you take them? Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 STEPHONE BOOKHART, called as a witness, being 9 duly sworn, testified as follows: 10 EXAMINATION 11 BY MS. CLARK: 12 Q Would you please state your full name for the 13 record, sir? 14 A Stephon T. Bookhart. 15 Q Mr. Bookhart, my name is Crystal Clark. We were 16 introduced earlier. I'm here today representing the 17 defendant Cheung Enterprises in a case that you've brought 18 against them arising out of a slip and fall. We're here 19 today to take your deposition. Have you ever been deposed 20 before? 21 A (Shakes head negatively). 22 Q You have to answer verbally. 23 A I'm sorry. No. 24 Q I'll give you a couple of instructions. As you 25 can see, there's a young woman sitting next to both you and Page 5 1 A About 7:00 this morning. 2 Q It's about 10 o'clock as we sit here today. Is 3 there any reason that you believe that having taken those 4 Vicodins today would in any way affect your ability to 5 testify honestly and truthfully as to the facts and 6 circumstances surrounding this litigation? 7 A No. 8 Q Is there any other reason why you would not be 9 able to testify honestly and truthfully as we sit here 10 today about the facts and circumstances of this litigation? 11 A No. 12 Q If at any time you need to take a break -- we 13 shouldn't be here for too long, but if you do need to take 14 a break for any reason, to use the bathroom, get up and 15 stretch, to speak to your attorney, for any reason, you're 16 welcome to do that; you just need to let, us know. Okay? 17 A Okay. 18 Q If I ask you a question and you don't understand 19 my question for some reason, please let me know and I will 20 either rephrase or restate that question for you. Okay? 21 A Yes. 22 Q If you don't hear me, same instruction, please 23 ask me to repeat and I will do so. Okay? 24 A Okay. 25 Q Mr. Bookhart, what's your date of birth? Page 2 - Page 5 MTGHF.S_ ALBRIGHT_ FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi-Page I A June 4th, 1963. 2 Q What's your current address, sir? 3 A 25 South Fourth Street. 4 Q South Fourth? 5 A Yes. 6 Q Is that here in Harrisburg, sir? 7 A Yes. 8 Q How long have you lived at that location? 9 A Probably for about four months now. 10 Q Do you reside there with anyone? 11 A Myself. 12 Q Prior to four months ago moving into the Fourth 13 Street address, where did you reside? 14 A 701 South Front -- North Front Street. 15 Q Again, that's here in Harrisburg'? 16 A Yes. 17 Q With whom did you reside at that location? 18 A That's the Men's YMCA. 19 Q How long did you reside there? 20 A For about two and a half years. 21 Q Do you remember where you lived prior to that 22 time? 23 A 436 Lincoln Street. 24 Q Where is that'? 25 A That's in Steelton. Page 6 Page 7 1 Q How long did you reside there? 2 A Probably about five, six years. 3 Q Did you reside with anyone at that location? 4 A My parents. 5 Q What are their names? 6 A Mr. And Mrs. Bookhart. Annie Bookhart and 7 Mr. Luther Bookhart. 8 Q Do they own that residence or do they rent that 9 residence? 10 A They rent. I 1 Q Are you currently married, sir? 12 A No. 13 Q Have you ever been married? 14 A Once. 15 Q To whom? 16 A Hope Weatherspoon. 17 Q When did you marry Miss Weatherspoon? 18 A In '05. 19 Q Are you legally divorced? 20 A Not right now. 21 Q Legally separated? 22 A Yes. 23 Q Has there been a legal separation proceeding to 24 establish that or are you just physically separated? 25 A It's a legal. Wage r Did you havc an attorney who assisted you with _ y0U1 legal separation:' r? She did. She did. You did not'.' 5 A Im-hum. 0 Q When did the legal separation take place? 7 `06_ Q Do you. have any support obligations with regard 9 to M iss Weatherspoon? [ 10 A My two kids. 1 I Q What are your kids' names'? l2 A Terrance Stephone Bookhart and Paton Bookhart. 13 Q What is Terrance's age, sir? 14 Terrance is three. 15 Q And your daughter, sir? 16 My son, Paton. I7 Q 1 apologllc. I A That's all right. 19 Q How old is he'? 20 A TWO. I 21 Q Are you current on your support payments to your 22 children, sir? 23 A I pay my own. 24 Q I'm sorry ? j 25 A I pay my own support. Page 9 I I MR. FOSTER: 1 think what he's saying is there's 2 no court ordered support. 3 BY M S. CLARK: 4 Q There's no formal support order in existence at 5 any court? 6 A No. Q Are there any formal custody arrangements that 8 have been entered in any court of law regarding your 9 children'? I{i A No. I I Q Did you complete high school, sir? 12 A Yes. 13 Q Where did you go to high school? 14 A Central Dauphin East High. 15 Q When did you graduate? 16 A '81. 17 Q Did you have any particular field of study? 18 A Business. 19 Q Any post high school education? 20 A Afterwards? 21 Q Yes. 22 A Job Corps, Pittsburgh Job Corps. 23 Q How long did you attend that field of study? 24 A Two years. 25 Q One other instruction, sir. Again, because the Page 6-Page 9 Multi-Page TM STEPHONE BOOKHART MAY 24, 2010 Page 10 1 court reporter is taking down everything that we say, it's 2 important that we not speak over one another. If you'd let 3 me finish my question before you begin the answer, I'll try 4 to do the same with regard to letting you finish your 5 answer before I begin my next question. Okay? 6 A All right. 7 Q You attended the Job Corps training program for 8 two years? 9 A Yes. 10 Q What was your field of study there? 11 A Business construction. 12 Q Did you receive a formal degree as a result of 13 that s tudy? 14 A Yes. 15 Q What kind of a degree was that? 16 A A certificate, a diploma. 17 Q That was again with regard to construction? 18 A Yes. 19 Q Any other post high school education, training or 20 certifications? 21 A No. 22 Q Did that certification through Job Corps, did 23 that h ave any expiration date? 24 A No. 25 Q Have you ever served in the military? Page 11 1 A No. 2 Q Are you currently employed? 3 A No. 4 Q When was your last employment, sir? 5 A My last employment was about a month and a half 6 ago, maybe two months ago. 7 Q Where was that employment? 8 A JFC Temp through Diapers.com. 9 Q What did you do at Diapers.com? 10 A I was a forklift operator. 11 Q When did you begin work there? 12 A Around April. 13 Q April of 2010? 14 A Yeah. 15 Q How long were you employed there? 16 A For about two, three months. 17 Q Well, if you began in April of 2010, and it's 18 currently May of 2010, that's only -- 19 A I'm sorry. January, February, March. It was 20 Marc h. It was March. 21 Q When you began employment or when you ceased 22 employment? 23 A When I began employment. 24 Q And you worked through March and April? 25 A Yes. Page 12 1 Q What was your hourly rated at Diapers.com, sir? 2 A 11.50. 3 Q Was that full time or part time employment? 4 A Full time. 5 Q 40 hours per week? 6 A Yes. 7 Q Did you have any overtime? 8 A Some. 9 Q On average, how much overtime would you work in a 10 week? 11 A I'd say maybe about two or three. 12 Q Two or three hours in overtime a week, okay. 13 Were you terminated from that position or did you resign? 14 A My job had ended. 15 Q It was a temporary position? 16 A Yes. 17 Q What were your job duties as a forklift operator? 18 A We had what you call product pickers. I would go 19 around on my forklift, and whatever they needed to be 20 picked at high heights, my job was to bring it down for 21 them. Anything that they needed for the line, and it was 22 hard for them to get, I would assist them. 23 Q Any other job duties? 24 A No, just stacking and helping them, that's it. 25 Q Did you have any physical limitations in Page 13 1 performing the job at Diapers.com? 2 A Well, they knew I wasn't able to -- I wasn't able 3 to lift , and they knew I wasn't able to bend. 4 Q How did they know that? 5 A I told them. 6 Q Your restrictions with regard to lifting or 7 bendi ng, are those restrictions that have been placed on 8 you b y a physician, or are they self-imposed restrictions? 9 A Physician. 10 Q Who imposed those restrictions on you? 11 A My surgeon who did my shoulder. 12 Q Who was that? 13 A April Armstrong. 14 Q When did she impose those restrictions? 15 A Right after I had my surgery. 16 Q When did you have that surgery, sir? 17 A In June of '07, I think it was. 18 Q What was that shoulder surgery related to? 19 A A fall. 20 Q Can you be more specific? 21 A On the job fall, on the job accident. 22 Q Where did that fall occur? 23 A Cameron Management on Cameron and on Herr. 24 Q So those restrictions have been in place since 25 the time of your shoulder surgery in June of 2007? Page 10 -Page 13 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi-Page ' ` Page 14 1 A Yes. 2 Q Have they changed at. any time since your shoulder 3 surgery in June of 2007? 4 A No. 5 Q Do you have any recollection of what the 6 specific, for instance, restriction on your lifting is, 7 like nothing over 25 pounds, nothing over 50 pounds'? 8 A Nothing over 20. 9 Q Nothing over 20. What about with regard to 10 bending? 11 A IIow fear can I bend? 12 Q Fither -- it may be a restriction on how far you 13 can bend or how often you can bend, do you know what the 14 restriction is? 15 A As far as what weight? Between 15 to 20. 16 Q Did you miss any days of employment at 17 Diapers.com for any reason? 18 A Yeah. 19 Q Tell me about those missed days of work? 20 A My missed days of work, a lot of them had to deal 21 with my back, my shoulder, and I had a death in my 22 family. Some of it -- a lot of it had to do with my back 213 and my neck. 24 Q During the two months that you were employed by 25 Diapers.com, how many days work did you miss? Page 15 1 A I'd say maybe about 10, 11, 12 days. 2 Q How many days of those 10 to 12 days did you miss 3 related to this death in the family? 4 A Three. 5 Q flow many were related to your shoulder? 6 A Probably about 9 or 10. 7 Q How many were related to your back and neck? 8 A About the same, nine or ten. 9 Q Did you present physician notes for any of the 10 absences related to your back or your shoulder? 11 A To my job? 12 Q Yes. 13 A No, they didn't ask me, they just told me when I 14 was ready just come back. 15 Q Were they consecutive days, sir, or were they 16 periodic occasional days off work? 17 A It was about three or four that was consecutive. 18 Some of it was periodic. 19 Q Prior to your employment at Diapers.com, where 20 did you work? 21 A At the Men's Y where I was living at. 22 Q What was your job title there? 23 A Customer service. 24 Q What were your job duties? 25 A Answer the phone, answer questions that people Page 6 had as far as where they needed to go to get to as far as 2 what area the pool is at, where the weight lifting room is 3 at, the sauna, the nautilus center, help people fill out 4 papers of certain activities that was going on that they 5 came to the Y for. 6 c1 Did you have any bending or lifting duties in 7 this position as customer service representative? n No. 9 Q How many hours per week did you work at the Y'?j 10 A Probably about 23. 11 Q So it was a part time position? 12 A Yes. 13 Q What was your hourly rate`' 14 A 7. 2 5). 1 s Q How long did you work at the Y, sir? 16 A I'd say probably six, seven months. i 17 Q Do you remember when you last worked at the Y? 18 A Probably about the middle of February. Probably 119 the middle of February. 1 20 Q Of 2010? 21 A Yes. 22 Q Why did you leave your employment with the Y? 2' There was some things that wasn't good for my 24 health as far as the stairs. The cleanliness of the Y had 25 a lot to do with it, also. It really wasn't supporting me Page 17 1 and my two kids I had to support at the time. 2 MR FOSTER: Do you mind if Mr. Bookhart and 1 3 discuss the answer to this question outside? 4 MS. CLARK: Once he's finished with the question, 5 that's fine. 0 13Y MS CLARK Q Any other reasons why you left the Y? 8 A I wanted better living conditions. 9 MS CLARK: Okay, go ahead, Pete. 10 If you want to take a break, Stephone. I 1 MR. FOSTER: Yeah, we can take a break. 12 T11E wnNLss: Yeah, I'm all right. 13 (Discussion held off the record.) 14 MR. FOSTFR: We have nothing further on that 15 question. 16 MS. CLARK: Okay. 17 BY MS. CLARK: 18 Q During your time at the Y, did you miss any days 19 of work'? 20 A Yes. 21 Q flow many days of work did you miss at the Y? 22 A Probably about 12, 13. No, 15 days. 23 Q What was the reason for your missed work`' 24 A My accident I had, my back and my neck. And my 25 arias. Page 14 - Page 17 Multi-Page TM STEPHONE BOOKHART MAY 24, 2010 Page 18 Q Any other reasons for the missed work? 2 A No. 3 Q Did you provide any doctors' notes to anyone at 4 the Y related to your absences? 5 A Yes. 6 Q Which doctors provided you with those absenteeism 7 notes? 8 A All of theirs. 9 Q All of them, meaning who, sir? 10 A My physician -- my doctor who did my surgery, and 11 Harrisburg Hospital. 12 Q I think you said Dr. Armstrong and Harrisburg 13 Hospital? 14 A Yes. 15 Q Any other physicians provide you with absence 16 notes? 17 A No. 18 Q Were those days missed consecutive or were they 19 occasional? 20 A A couple of them was consecutive. A few of them 21 was occasional. 22 Q Prior to your work at the Y, where did you work? 23 A Cameron Management. 24 Q When was the last time you worked at Cameron 25 Management? 1 A The day of my accident, August the 28th. 2 THE WITNESS: Am I right, Pete? 3 MR. FOSTER: I can't refresh your recollection, Page 19 4 Stephone. 5 BY MS. CLARK: 6 Q Do you remember what year that was, sir? 7 A '06. 8 Q How long had you worked at Cameron Management at 9 the time of your accident? 10 A Nine months. 11 Q What was your job duties at Cameron Management? 12 A Labor. 13 Q What kind of things did you do as a laborer? 14 A I would lift, use jackhammer, grade, help pour 15 concrete, help form concrete, help form walls for concrete. 16 I would patch holes that's in the walls with concrete. 17 Things that needed to be lifted to put in the crane, set up 18 top as far as different deck when we get ready to pour, I 19 was responsible for setting the equipment up on different 20 decks. 21 Q Anything else? 22 A No. 23 Q Was that full time or part time? 24 A That was full time. 25 Q Was it 40 hours a week or did you have overtime 1 opportunities? 2 A Plus. Page 20 3 Q On average, do you recall how many hours per week 4 you worked? 5 A Including overtime? 6 Q Including overtime? 7 A Probably about 80 hours. 8 Q Per week or per pay period? 9 A Per week. 10 Q What was your hourly rate? II A 16.65. 12 Q Let me just go back, if I can, for a moment. You 13 said that your hourly rate at the Men's Y was and 7.25 an 14 hour? 15 A Yes. 16 Q Was that consistent throughout your employment 17 with the Y? 18 A Yes. 19 Q What about during your employment with Cameron 20 Management, was your hourly rate of 16.65 an hour 21 consis tent throughout that nine month period? 22 A Yes. 23 Q Now, you said your last day of work was August 24 28th, 2006, the date of your accident, is that correct? 25 A Yes. 1 Q Can you tell me a little bit more about that 2 accident, sir? Page 21 3 A Are you asking me as far as detail how it 4 happened? 5 Q Yes, sir. 6 A My boss came to me one time -- by me being on 7 that job as long as I was, I actually had a little 8 seniority. Even though I had the seniority, I put a lot of 9 action as far as doing my own work to help out the other 10 laborers. I was asked -- we was backfilling. I was asked 11 to go back in back of the one wall to put styrofoam up so 12 we could start backfilling with dirt. At that time down 13 from -- they were like about ten feet away from me, they 14 was removing a form from a wall. And the carpenter 15 foreman, he looked down on me, he said, just watch, because 16 when they release it, it might swing my way. So when they 17 released it, I heard it scraping the wall, and when it 18 started scraping the wall, I looked up. So I started 19 jogging backwards, and there was a piece of rebar sticking 20 up out the ground this way, and I tripped over, and I kind 21 of like spun in the air, and when I came down all this was 22 messed up. 23 Q And when you say all this, the court reporter 24 can't take down your gestures, so if you could specify for 25 me? Page 18 -Page 21 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi-Page" Page 22 1 A I'm sorry. My shoulder. 2 Q Your left shoulder`? 3 A Yes. 4 Q Did you actually fall on your left shoulder? 5 A Yes. 6 Q Did you fall on any other part of your body? 7 A Well, the whole -- I fell on my whole side. 8 Q The whole left side? 9 A My whole left side, but my shoulder caught the 10 majority of it, I 1 Q Did you suffer any injuries as a result of that 12 fall? 13 A Yes. 14 Q What injuries is it your understanding you 15 suffered as a result of that lall`? 16 A My glenoid was out of place, my rotator cuff 17 wouldn't stay in place because of my glenoid, which holds 18 the rotator cuff in place, and that's why I had to have my 19 surgery. 20 Q Any other injuries? 21 A I had something with my leg, but it really wasn't 22 that major. 23 Q When you say something with your leg, can you 24 describe for me? 25 A I had a lot of pain in it, and I had a lot of -- Page 23 1 1 was beat up quite a bit as far as black and blue 2 marks. But as far as the physical hurting of it, it was -- 3 I'd say it was limited. It was something that I could -- 4 my doctor told me I could get over that. 5 Q When you reference your leg, are you referring to 6 your left leg, sir? 7 A Yes. 8 Q Did your doctor provide you with any specific 9 treatment relating to your left leg injury? 10 A No. 11 Q And you described there was some pain in your 12 left leg. Can you recall for me how long that pain lasted? 13 A My pain lasted -- I guess you can say for about a 14 good four or five months. 15 Q In the leg? 16 A Yes. 17 Q Now, with regard to your shoulder, you've 18 indicated that you had shoulder surgery some time in 2007, 19 correct? 20 A Yes. 21 Q Any other treatment that you received as a result 22 of the shoulder injury at that time? 23 A After my surgery I started going to -- what's 24 that word I'm looking for? Physical therapy. 25 Q Where did you go to physical therapy? "a c <.' Same Mace where I had my surgery t'rotn_ Q And that was with Dr. Armstrong`? Yes. Bone and Joint Orthopedics Q Wherc are they located? A 3 I Hope Drive, Hershey. 6 Q You mentioned earlier that your doctor has put 7 you on lifting and bending restrictions as a result of that 8 shoulder surgery, is that correct? 9 A Yes. 10 Q Have those restrictions changed at all over time? II A No. 12 Q 'they've been consistent since your shoulder 13 surgery in 2007? 14 A Ycs. 15 Q Before we get to the accident that forms the 16 basis of this litigation, 1 just want to ask you a little 17 hit about what you did to prepare for the 18 deposition. Other than your attorney -- because I don't 19 want to know anything that you might have discussed with 20 your attorney -- did you meet with or speak to anyone else 21 to prepare for the deposition today? 22 A No. 21, Q Did you review any documents in preparation fof 24 today's deposition? 25 A Did I review any? Page 25 1 Q Yes. 2 n_ Ycs. 3 Q Can you tell me what documents you reviewed in 4 preparation for your deposition? 5 A All my documents since day one of my surgery -- 6 of my accident. Q What specifically are you referring to, sir? 8 A From day one when I hurt my arm to present. 9 Q So going back through the 2006 injury with 10 Cameron? 11 A To present, yes. 12 Q Do you have copies of all of your medical records 13 for all of the treatments relating to your injury in 2006, 14 up through the present date? I5 A Yes. 16 Q Have you provided all of those records to your 17 attorney? 18 A Yes. 19 MS. CLARK: Pete, I don't think I have anything 20 relating to the 2006 injury. I know that you provided some 21 medical records, but they have been since the date of 22 Mr. Bookhart's fall, so I would ask that all of the medical 23 records that Mr. Bookhart may have be provided to me 24 MR. 1,0STFR: From the 2006 accident? 25 MS. CLARK: Correct. Page 22 - Page 25 Multi-Page "m STEPHONE BOOKHART MAY 24, 2010 Page 26 I BY MS. CLARK: 2 Q Mr. Bookhart, other than the medical records, did 3 you revive any other documents in preparation for today's 4 deposition? 5 A I reviewed everything that he gave me in front of 6 me. 7 Q Everything that your attorney gave you to look 8 at? 9 A Yes. 10 Q Is there anything else specifically that you 1 l recall having looked at aside from the medical records? 12 MR. FOSTER: Stephone, you reviewed this, you 13 reviewed this, you reviewed this. 14 THE WITNESS: Yes. 15 MR. FOSTER: What are they? This is the 16 plaintiff's answer to defendant's motion to compel 17 discovery. 18 MR. FOSTER: The interrogatories, defendant's 19 interrogatories that you answered, you reviewed them, is 20 that right? 21 THE WITNESS: Yes. 22 MR. FOSTER: The response to the request for 23 production of documents, did you review your response? 24 THE WITNESS: Yes. 25 MR. FOSTER: And the Complaint, did you review -- Page 27 1 THE WITNESS: I reviewed that. You have to 2 excuse me, I'm sorry. 3 BY MS. CLARK: 4 Q That's okay. In preparation for today's 5 deposition did you speak with any witnesses to the 6 accident`? 7 A No. 8 Q Did you visit the scene of your accident in 9 preparation for today's deposition? 10 A No. 11 Q The accident in question happened on November 6, 12 2006, is that your recollection? 13 A November? 14 MR. FOSTER: It's August, I think. 15 MS. CLARK: I might have that wrong. Sorry. 16 MR. FOSTER: August 28. 17 BY MS. CLARK: 18 Q I'm sorry, what was the date of your -- 19 A August 28. 20 Q Of what year? 21 A Last year. 22 Q 2009? 23 A I guess last year, this year. 24 Q August 2009? 25 A Yes. Page 28 1 Q Sorry, I wrote that wrong. Do you remember what 2 day of the week that was, sir? 3 A If I recall, it was -- I think it was either on a 4 Thursday or a Friday. 5 Q Was anyone with you at the time that you arrived 6 at the McDonald's location in question? 7 A Yes. 8 Q Who was with you? 9 A Kenneth Rice. 10 Q Who is Kenneth Rice? 11 A He's a friend of mine that lived at the Y. 12 Q Why was he with you that day`? 13 A I had an interview that day, and the lady who 14 interviewed me, she said, if you know anybody that's 15 looking for a job, bring them with you. So I knocked on 16 Kenneth's door, I said, Kenneth, are you looking for a job. 17 He said, yeah. I said, get dressed, come on. 18 Q Where were you interviewing that day? 19 A This place called -- it was a staffing 20 agency. Jacobson Staffing. 21 Q Where were they located? 22 A They're off of Industrial Park Drive in Camp Hill 23 -- Mechanicsburg. 24 Q Do you recall what position you were interviewing 25 for that day? Page 29 1 A That was just -- it was a forklift job, but it 2 was a forklift slash order puller. 3 Q Do you remember what company that would have been 4 with? 5 A Jacobson Staffing. 6 Q They provide temporary placement, is that 7 correc t? 8 A Right. 9 Q Do you remember what company they were hiring for 10 or on behalf of? 11 A I think it was Cadbury. 12 Q When was your interview? 13 A My interview was at 2:00. Are you asking for a 14 time? 15 Q Yes, sir. 16 A 2:00 that afternoon. 17 Q Do you remember who you interviewed with? 18 A I forget the lady's name. 19 Q Did you attend the interview? 20 A Yes, I did. 21 Q Were you on time for the interview? 22 A Yes, I was. 23 Q When did you arrive at the McDonald's? 24 A I arrived at the McDonald's, it was like around 25 between 1, 1:30. Page 26 - Page 29 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi-Page Page 30 I Q Tell me in your on words what happened when you 2 arrived at the McDonald's. Just take me through the 3 sequence of events. 4 A When the bus pulled up, I rung the bell, got off. 5 1 told Ken, I said, I put nothing in this stomach this 6 morning, I said, I'm hungry. So I went into McDonald's, 7 told them what I wanted. I came out with some fries, 8 opened the door. It was a mist outside, it was getting 9 ready to pour down. I walked down their sidewalk. Abo 10 foot or two away from the asphalt, there was -- I I '1111" WITNESS: flow was that, Pete? An incline, 12 decline. 13 BY MS. CLARK: 14 Q He can't help you. You need to testify as to 15 what you recall. 16 A It was a -- the grade was going down, but then 17 the grade dropped down a little bit more. 18 Q Let me take you back. You walked into the 19 McDonald's. Was all you ordered fries'? 20 A Yes. 21 Q At you left the McDonald's, were you carrying 22 anything other than the fries you had ordered? 23 A No. 24 Q Did you consume any food while you were in the 25 McDonald's location before you exited? C> Where was he waiting while you were inside? A He was waiting on the side where I fell down. Q Were you carrying the fries out in the open, or were they in a bag'? F, x, I had them in my hand. MR. FOSTER: What was that? 8 T1 H,' WITNF.SS: 1 had them in my hand out in the 9 open. 10 BY M S. CLARK: 1 I Q You described earlier, you described it as 12 misting at the time that you exited the McDonald's 13 locati on, is that correct? 14 A Yes. 15 Q Do you recall how long it had been misting prior 16 to your exiting the McDonald's location? 17 A It started almost about after we got off the bus. 18 Q What kind of shoes were you wearing at the time 19 of yo ur fall? 20 A Some David Eden alligators, decent shoes. 21 Q How long had you had those at the time? 22 A Probably for about two years. 23 Q Were they new when you bought them'? 24 A Yes. 25 Q Do you still have those shoes? ut a Page 31 1 A No. 2 Q Did Mr. Rice go into the McDonald's with you'? 3 A No. 4 Q Did the bus say and wait for you to order? 5 A The bus? 6 Q Yes. 7 A No. 8 Q So where were you going at the time that you left 9 the McDonald's location? 10 A I was going to my job interview. 11 Q If you had exited the bus, how were you going to 12 the job interview? 13 A Job is right down the street from McDonald's. 14 Q So you were going to walk to the job site. You 15 weren't carrying anything else? 16 A No. 17 Q No umbrella, or nothing like that? 18 A No. 19 Q Were you wearing a poncho? 20 A No. 21 Q Any rain coat or other rain gear? 22 A No. 23 Q And I'm sorry, I asked you and you answered this 24 already, I apologize. Did Mr. Rice go into the McDonald's 25 location with you? Page 30 - Page 33 A Yes, I do. ,a, Page 3 3 2 Q Do you still continue to wear them after the time 3 of the accident'' 4 A No, I don't. 5 Q Were there any puddles or running water on the 6 sidewalk or nearby at the time that you exited the 7 McDonald's" 8 A No 9 Q When we stopped your story you said that you were 10 exiting the McDonald's on the sidewalk and the grade was 11 going down. Tell me what happened at that point. 12 A The grade was going -- the first grade was fine, 13 it was straight, but it was going down as far as like the 14 handicap ramp, it was a ramp that was going down. When I 15 got like two feet, a foot and a half away from the asphalt, 16 that's when I slipped and fell. And when I slipped and 17 fell, I tried to -- 18 Q I'm sorry, did you say stepped and fell'? 19 A Slipped. 20 Q Okay, slipped. Just wanted to be clear. Tell me 21 how you slipped and fell. 22 A 1 was just walking normally with my fries in my 23 hand. And I really don't know what was -- at that time 1 24 don't know exactly if the sidewalk was level or whatever, 25 but I just slipped. My shoes just (indicating.) Multi-P age " y` STEPHONE BOOKHART MAY 24, 2010 Page 34 1 Q Do you recall was it your left foot or your right 2 foot that slipped? 3 A It was my right. 4 Q What happened when your right foot slipped? 5 A I fell. 6 Q Well, in what position did you fall? 7 A A straight position with my arm back in the back 8 trying to break my fall. 9 Q You're putting your right arm behind you as we 10 sit here today? 1 l A I put both my anns behind me. 12 Q As you're falling down, your right foot slipped 13 out from underneath you, you put both arms behind you 14 trying to break your fall. What part of your body impacted 15 with the ground, sir" 16 A My buttocks and my right leg. My right leg bent 17 up underneath me. 18 Q Any other part of your body impact the sidewalk 19 when you fell? 20 A It was my butt. My chiropractor had mentioned I 21 could have -- might have fell a little with it on my back, 22 my lower back, because my back had -- my whole back had 23 twisted. 24 Q Any other part of your body impact the sidewalk? 25 A No. Page 35 1 Q Your head? 2 A I really wasn't too sure about that. 3 Q Your neck? 4 A No. 5 Q Your shoulders? 6 A No. 7 Q What about your left leg? 8 A That -- it impacted a little bit, but I kind of 9 like broke that just a little. My upper thigh. 10 Q You said that your right leg went behind 1l you. How did your left leg impact the ground? 12 A When I slipped this leg went up underneath me, 13 and by me trying to catch myself it stretched out, my whole 14 leg just stretched out. 15 Q As you are sitting here you were pointing to your 16 right leg going up underneath you, and you're saying that 17 your left leg stretched out straight in front of you? 18 A Yes. 19 Q Is that correct? Before I continue on with that, 20 have you been back to this McDonald's since the date of 21 your fall? 22 A (Shakes head negatively.) 23 Q No. Have you spoken with anyone from the 24 McDonald's location since your fall? 25 A No. Page 36 I Q Now, after you slipped and fell, tell me what 2 happened after that. 3 A I needed my job. I went to my -- I got up. My 4 left leg was in a lot of pain where it bends at. My right 5 leg was also in some pain. 6 Q Let me stop you there. You said that your left 7 leg was in pain where it bends. Do you mean at the hip, at 8 the knee, at the ankle? 9 A At the hip. 10 Q And you said that your right leg was in pain. 1 I Where was your right leg in pain? 12 A Within the knee, and also where it bends up at 13 the upper thigh. 14 Q At the hip and at the knees? 15 A At the hip. 16 Q Okay. 17 A I got up. I attempted to make it to my 18 interview. My interview really didn't last that long. So 19 I had to wait for the nearest bus, because I was going to 20 go to Holy Spirit, but Holy Spirit didn't want me over 21 there no more because when I was over there for my shoulder 22 1 kind of like gave them a little -- a little problem, so 1 23 wind up having to take the bus to Harrisburg Hospital. 24 Q Let's back up just a little bit. So you got up 25 after the fall, you walked to your interview at the Page 37 1 staffing company, correct? 2 A Yes. 3 Q Jacobson Staffing. About how far from the 4 McDonald's was the Jacobson Staffing site? 5 A I'd say maybe about -- maybe about a block, block 6 and a half. 7 Q Before you walked to your interview at Jacobson 8 Staffing, did you go in and notify anyone at the McDonald's 9 you had fallen? 10 A No. 11 Q Did you attempt to call 911 or otherwise seek 12 emergency treatment immediately after the fall? 13 A I went to the hospital after I had my -- after I 14 started feeling a lot more pain at my interview. When I 15 was at my interview, the lady, she was asking, are you all 16 right. I said no. Then I explained to her. She said, are 17 you going to be able to work. I said, I don't know. And I 18 told her why. So my interview kind of like got cut short 19 from that. Then after that I came back up to McDonald's 20 and told them. 21 Q So after your interview and before you sought 22 medical treatment, you came back up to the McDonald's? 23 A Yes. 24 Q Do you remember approximately what time it was 25 that you returned to the McDonald's? Page 34 -Page 37 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART Multi-Page MAY 24, 2010 Page 38 4(1 1 A It was like about maybe about 3:30. I know the you had fallen`' 2 bus had came about 4 something. A I'rn not really the type of person to go hack anti 3 Q After your interview at Jacobson Staffing, did 3 look at something where- I had an accident at. 4 you walk from the Jacobson's location back to the 1 c Do you know if Mr. Rice actually observed your 5 McDonald's to report your injury? ? fall? Was he watching you at the time you fell? 6 A Yes, and that's where I sat. 1Ic was turned to the side ways, and then when I 1 7 MR. FOSTER: You didn't report the injury at 7 came outside I said, Ken, are you ready. That was when he 8 McDonald's, did you'? 8 turned his back to start looking at me. He said, where do 9 THE WITNESS: What, this injury here? 9 we have to go. I said, we have to go straight down the 10 MR. FOSTER: Yes. 10 street. 11 THE WITNESS: Yeah. They got an incident report I I Q At the time you fell, where was he looking? Was 12 and everything. 12 he looking at you or away from you'? 13 BY MS. CLARK: ! 13 A He was looking at me, and then he actually turned 14 Q Who did you talk to at McDonald's to report the 14 around and tried to catch me. 15 injury'? 15 Q Did he touch you at all when you were falling? 16 A I don't remember the lady's name, but she was a ! 16 A No. 17 heavyset lady with glasses, if I recall. She was the store 17 Q flow far- away from him were you at the time that 18 manager. 18 you bell? 19 Q Is she the only person that you spoke to at 19 A Maybe like about a foot. 20 McDonald's? 20 Q Are you still in contact with Mr. Rice? 21 A According to the accident, yes. 21 A Since I moved, I may talk with him maybe like 22 Q With regard to the incident. 22 about once or twice a month. 23 A Yes. 23 Q Is he still residing at the Y`' 24 Q The other person that you spoke to at McDonald's ,' 24 A Yes. 25 what was that regarding? 25 Q Does he have a telephone? Page 39 Page 41 1 A There was no other person. A Yes, but I don't know it right now. 2 Q You said only with regard to the incident, and 2 Q Is it a cell phone or a land line? 3 that suggested that you went to talk to more than one 3 A Cell phone. 4 person, that's what I -- 4 Q Did anyone at McDonald's provide you with any 5 A I only spoke to one person. 5 documentation, a copy of the incident report, any other 6 Q You spoke to her on more than one occasion'? 6 documentation when you went back to report your fall'? 7 A No, the only time I spoke to her was with regard A No. 8 to the accident. 8 Q Have you been provided, aside from what may have 9 Q To report the accident? 19 received as a result of this litigation, have you at any 10 A Yes. 110 time been provided any documentation by McDonald's? 11 Q Did you provide a written statement to McDonald's 1 1 A No. 12 regarding this accident, or did you only speak to someone 112 Q Do you know whether or not anyone at McDonald's 13 about what happened? 13 actually observed your fall? 14 A I spoke to the manager. 114 A No. 15 Q Take me through that. 115 Q The position at Jacobson Staffing that you were 16 A I said, I slipped and fell going down your ramp. 16 interviewing for, did you actually obtain any offer of 17 She looked at me and said, I'm going back to get the 17 employment as a result of that interview? 18 incident papers and you give me your statement about what 18 A No. 19 happened. I gave her the statement. Kenneth Rice gave her 19 Q Do you know why? 20 his statement. After that I went and sat down for a minute 20 A The lady at the office when I called back over 21 until I knew what time the bus was coming. When I seen the 21 there, I asked her, I said, can I get another 22 bus coming up the street, I went and caught the bus and 22 interview. She had told me, she said the job was full. 23 went to the hospital. 23 Q Did she give you any indication why you were not 24 Q At the time that you arrived back at the 24 selected? 25 McDonald's, did you go back out and look at the site where 25 A No. Page 38 - Page 41 Multi-Pager"' STEPHONE BOOKHART MAY 24, 2010 Page 42 1 Q Do you remember when you called her to request 2 another interview or ask about the status of the job that 3 you had interviewed for? 4 A The day after. 5 Q Did Mr. Rice obtain that position? 6 A Yes. 7 Q Do you know whether or not Mr. Rice was the only 8 person who obtained a position? 9 A Well, basically that job, she was taking people 10 on for that -- she was taking like about 30 to 40 people on 11 for that job at the time. 12 Q At the time you reported the incident to 13 McDonald's, you did not write a statement, you just gave a 14 verbal statement as to the circumstances of the fall, 15 correct? 16 A Yes. 17 Q Have you ever given a written statement as to the 18 circumstances of the fall to anyone? 19 A No. 20 Q Have you ever given a verbal statement -- other 21 than discussions with your attorney, of course -- have you 22 ever given a verbal statement to anyone in connection with 23 the fall? 24 A Besides McDonald's? No. 25 Q Have you or anyone acting on your behalf taken Page 43 1 any statements, whether written or verbal, from any 2 individual with regard to this fall? 3 A No. 4 Q You haven't asked Mr. Rice to put in writing his 5 recollection of the accident? 6 A No. 7 Q You haven't asked him to provide you verbally 8 with any statements as to how the fall occurred? 9 A Huzn-um. 10 Q No? 11 A No. 12 Q You said that after you reported the accident to 13 McDonald's you stayed and waited for the bus, correct? 14 A Yes. 15 Q You initially were going to go to Holy Spirit, 16 but ultimately decided to go to Harrisburg? 17 A Yes. 18 Q You started to mention there was a reason why you 19 didn't go to Holy Spirit Hospital. Can you tell me what 20 that was? 21 A When I had my accident with my shoulder I was in 22 a lot of pain. I wanted pain medicine when they took me 23 over there, and the lady, she said, I'm not allowed to give 24 you no pain medicine till you see the doctor. So at that 25 time I got frustrated, you know, and in some ways I kind of Page 44 1 like acted out. So when I actually -- after I got seen and 2 everything, the person that was with me had stated, they 3 said, well, I overheard that they didn't want you coining 4 back over here. I said, okay, no problem. 5 Q Who was with you? 6 A At that time my fiancee was with me. 7 Q So you went to Harrisburg Hospital instead? 8 A Yes. 9 Q Do you remember about what time you arrived at 10 the hospital? 11 A I'd say maybe about 4:15, 4:30. 12 Q What were your complaints at that tune? 13 A My leg, my lower back, and my neck, and my right 14 side of my back. 15 MR. FOSTER: And the right side of what? 16 THE WITNESS: The right side of my back. 17 BY MS. CLARK: 18 Q Your leg, your lower back, your neck, and the 19 right side of your back? 20 A Yes. 21 Q Tell me what your complaints were with regard to 22 your leg? 23 A I was having a lot of -- I was having a lot of 24 sharp pain. I started getting muscle spasms in my leg. 25 Mainly it was spasms with sharp pains in my leg. Page 45 1 Q When you say you were having pain in your leg, 2 which leg? Right leg, left leg? 3 A My right leg was swelling a lot because of how I 4 sat on it when I fell. 5 Q Any other complaints with regard to your right 6 leg? 7 A That was it as far as that. 8 Q Did they provide you with any specific treatment 9 regarding your leg at the hospital? 10 A Well, they didn't. She just told me if I had 11 pain medicine, take the pain medicine, so they gave me a 12 prescription for some Vicodin. 13 Q Do you recall how much Vicodin they gave you? 14 A You mean the dosage? 15 Q Yes. 16 A 7.5s. 17 Q How many pills did they give you? 18 A 30. 19 Q Do you remember what the instructions were as to 20 how you were to take it? 21 A Take one or two or as needed. 22 Q What about with regard to your lower back, what 23 were your complaints in the lower back at that time? 24 A I was very stiff, I couldn't bend, I can't 25 twist. A lot of pain in the middle where my spine is at Page 42 -Page 45 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi-Page Page 46 1 hurted. 2 Q Can you describe the pain for me'? Was it 3 shooting? What was it like? 4 A At that time it was shooting. The majority of 5 the times it was very stiff, and it's very hard for me to 6 twist, bend. It was very hard for me to have any motion. 7 Q When you're saying the majority of times, are you 8 referring to since your treatment in the hospital on that 9 day? 10 A Yes. 11 Q What about with regard to your neck? 12 A Still have problems. I can't -- 13 Q For the moment I just want to know what your 14 complaints were at the time that you showed up at the 15 hospital. 16 A I can't turn or bend my neck. 17 Q Did they provide you with any treatment relating 18 to your neck at Harrisburg Hospital.? 19 A No, they had just told me to go see my physician. 20 Q Your family doctor, or a more specific doctor? 21 A A more specific doctor, like as in a 22 chiropractor. 23 Q Did they refer you to a specific physician? 24 A No. 25 Q I don't think I asked this. What treatment, if Page 47 1 any, did they provide you with regard to your lower back? 2 A The hospital? 3 Q Um-hum. 4 A None. 5 Q Finally, you said that you had complaints to the 6 right side of your lower back. What specifically do you 7 recall your complaints were at Harrisburg hospital with 8 regard to your right side lower back? 9 A I had a lot of muscle spasms in my right side. 10 The pain was shooting up my right side. When I tried to I 1 bend over I couldn't even bend fully. As a matter of fact, 12 I couldn't even bend halfway. When I did try to bend I had 13 a lot of -- a lot of pain. And a lot of inflammation. 14 Q Did they provide you any treatment with regard to 15 your right side lower back? 16 A The doctor who seen me told me I just need to go 17 ahead and try to get a whirlpool, sit in a whirlpool. 18 Q Do you recall if they performed any tests while 19 you were at Harrisburg Hospital? 20 A The only thing that they did, they took -- they 21 just took X-rays, that's it. 22 Q What was your understanding of what the results 23 of the X-rays were? 24 A My tailbone, I suffered a hairline fracture in 25 that. They re-took -- they re-took pictures of my left 1 5inoulder Pa{,_*e '1n Q What's your understanding of what the X-rays snowed with regard to your shoulder" -' A muscle; ?train or -- it wasn't that, because -- 5 l'm tryinv to think what it was. The doctor told me it 0 would have been a muscle strain or a torn iigatnent. Q What did you tell the hospital about how you were 1 8 injured" 9 A How it happened`? 110 Q Yes. ill A I told them I slipped and fell. 12 Q Did you tell them where you slipped and fell'? E 13 A I don't think I did. Yes, I did. 14 Q What did you tell them? 15 A I told them I slipped and fell at McDonald's i I o Q Any explanation for why the records would j 17 indicate that you fell at a friend's house? I 18 A Any what now'' 19 Q Do you have any explanation as to why the medical 120 records from Harrisburg Hospital would indicate that you 21 told them that you fell at a friend's house? 22 A No. 23 Q You mentioned that they gave you Vicodin. Other 24 than the Vicodin, did they provide you with any other 25 instructions, medications, et cetera, as a result of your Page 49 1 appearance at Harrisburg Hospital`? 2 A No. 3 Q Did they provide you with any walking devices`? 4 A Crutches. Q What did they tell you with regard to the use of 6 the crutches'? A Use them to the best of my ability, don't try to 8 use one, use them both. L) Q Did they give you any indication as to how long to you were to use the crutches? 1I A No. 12 Q How long did you, in fact, use the crutches that 13 you were provided by Harrisburg Hospital? 14 A I used the crutches I'd say maybe for about a 15 month, month and a half. 16 Q When you stopped using the crutches, did you 17 continue to use any other assistive devices? 18 A My cane. 19 Q When did you start using the cane? Immediately 20 after the crutches? 21 A Yes. 22 Q Was the cane prescribed by any physician? 23 A No. It was recommended. 24 Q Who recommended it? 25 A Dr. Becker. Page 46 - Page 49 Multi-Page""` STEPHONE BOOKHART MAY 24, 2010 Page 50 1 Q What's your understanding of what Dr. Becker's 2 recommendation was with regard to the use of the cane? 3 A He had told me, he said because of how my back is 4 and how I fell, I needed the support. Because from when 5 they had took -- I forget what that is. He took one and 6 then my physical therapist took the same thing, they gave 7 me this -- they put this device on my back and they put one 8 on my neck, and when they seen how I was stepping, I 9 couldn't put too much pressure on my leg. So he had told 10 me, he said, if I was you, I'd try to go ahead and get a I 1 cane or something to break the full pressure, because I 12 didn't have, on one side, my pressure was very low. 13 MS. CLARK: Okay, I have to call a quick break. 14 (Recess taken from 11:10 to 11:12.) 15 BY MS. CLARK: 16 Q Mr. Bookhart, are you ready to continue? 17 A (Nods affirmatively.) 18 Q That's ayes? 19 A Yes. 20 Q After you treated at the hospital, do you 21 remember the next time you sought medical treatment? 22 A I sought medical treatment after -- I really 23 wasn't trying to get -- I really wasn't trying to go to 24 just anybody, so there was a lady who comes to the Y for 25 Bible study, and she gave me the number of Dr. Becker, so I Page 51 1 called him up, and I told him who told me to call, so they 2 seen me right away. I think it was maybe like a day or two 3 afterwards. 4 Q A day or two after the accident? 5 A After my initial visit, yeah. 6 MR. FOSTER: If you want to stand up. 7 THE WITNESS: Can I? 8 MS. CLARK: Yes. If you need to take another 9 break or walk around for a minute or two? 10 THE WITNESS: Can I? 11 MS. CLARK: Absolutely, take the opportunity to 12 do that. 13 (Recess taken from 11:14 to 11:17.) 114 BY MS. CLARK: 15 Q Are you ready? 16 A Yes. 17 Q Do you want to stand for a little while? 18 A Please. 19 Q Not a problem. So you said that you treated with 20 Dr. Becker a day or two after you were seen at Harrisburg 21 Hospital, correct? 22 A Yes. 23 Q Do you recall what your complaints were at the 24 time that you treated with Dr. Becker? 25 A My lower part of my back and my neck. Page 52 1 Q What specifically was your complaint with regard 2 to the lower part of your back at that time? 3 A It was just -- it hurted badly. 4 Q What about with regard to your neck? 5 A Pain, stiffness. 6 Q Can you describe the pain in either your lower 7 part of your back or your neck? Was it shooting, was it 8 constant? 9 A Some of both. 10 Q If you can recall, can you describe the level of 11 your pain at that time? You know, if we were to put it on 12 a scale of 1 to 10? 13 MR. FOSTER: We're talking about the first visit? 14 BY MS. CLARK: 15 Q The first visit with Dr. Becker, correct. 16 A About a 9. 17 Q What kind of treatment did he provide to you at 18 that initial appointment? 19 A The majority of it, he did a lot of cracking. 20 Because he felt as though I had a lot of pinched nerves. A 21 little of his therapeutic work, like every other day or 22 come in and see him like about twice a week. 23 Q When you say therapeutic work, can you be more 24 specific about what you inean by that? 25 A Just loosening -- I should say try to loosen up Page 53 1 the areas that I was having problems with. Basically he 2 was just trying to see how severe I was. 3 Q Was he using heat, ice, electronic stimulation? 4 A Some of everything. 5 Q When you say cracking, you mean he was manually 6 manipulating your back trying to move your back to change 7 your alignment? 8 A He did that, but he didn't do it on a physical -- 9 real physically, because he knew I was -- when I went to go 10 see him I was very jumpy, I was nervous and tense. 11 Q How many times total did you treat with Dr. 12 Becker, to your recollection? 13 A Well, to when he told me he felt as though that 14 problem -- I'd say about six or seven times. 15 Q In total? 16 A Yes. 17 Q Over what period of time, if you recall? 18 A I'd say within that whole month. 19 Q Did he provide you with any medication as a 20 result of the treatment that you received from Dr. Becker? 21 A Yes. 22 Q What medication did he give you? 23 A I don't know what it is, I don't know the name of 24 it, but it was something that it was a pain -- it was a 25 medicine that was supposed to deal with the pain, but not Page 50 - Page 53 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi-Page Page 54 I on a level like Vicodin does. What else was it? And it 2 was m ore for muscle spasms, also. 3 Q Were they over the counter medications or were 4 they p rescription medications? 5 A Those were the medications that he sold at his 6 office. 7 Q So you didn't have to go to a pharmacy to obtain 8 them? 9 A Not from him I didn't. 10 Q Were they samples, or did you have to pay for 11 them? 12 A I paid for them. 13 Q Did he recommend any further treatment aside from 14 what h e was providing to you? 15 A Yes. 16 Q What did he recommend, to your understanding? 17 A That I go see a therapist. 18 Q Any other treatment recommmended by Dr. Becker? 19 A No. 20 Q Did he place you on any physical restrictions? 21 A Yes. 22 Q What physical restrictions did he place you on? 23 A No lifting. Basically no strenuous work to where 24 I had t o bend or lift. 25 Q No lifting at all'? Page 55 I A Yes. 2 Q How long did those restrictions last? 3 A Till present. 4 Q Did he provide you with a written note regarding 5 those physical restrictions? 6 A No. 7 Q What about with regard to the strenuous work? 8 How long did those restrictions last? 9 A I'm still following them, even though I don't see 10 him. 1 I Q Did he provide you anything in writing with 12 regard to those restrictions? 13 A No. 14 Q Did Dr. Becker ever provide you with a diagnosis? 15 A The diagnosis, he seen me -- he was saying I had 16 -- the reason why my neck was cracking the way it was, was 17 because of the pinched nerves, that I had a lot of them, 18 and I still do. 19 Q Did he provide you with any other diagnoses? 20 A Muscle problems. 21 Q Anything else? 22 A Some of my -- I forgot what it was that he said. 23 It was something else. I can't think of it right now. 24 Q With regard to the muscle problems, what did he 25 relate that diagnosis to? Where in your body? My lower back and up around my neck. Oh, when fi 2 was physically checking my neck, my last visit that I seen .a iim, he said I jammed my neck. 4 C, You said that he recommended physical therapy, is that correct" y'es. 7 Q Did you treat with any physical therapist? 8 A Yes 1 9 Q Who did you treat with? 10 A Madden therapists. 1 I Q When did you start treating with Madden 12 therapists`? h 13 A it took from me getting -- getting my scripts and 14 everything and for there to send everything for to be filed, 15 I'd say mayhc like about -- I'd say about four days to a I6 full week. 1 I 17 Q AI ter the accident`' e 18 A After Dr. Becker. 19 Q After Dr. Becker, okay. So a little over a month 20 after the accident then? 21 A No. That's not a month. 22 Q Well, if you treated with Dr. Becker for about a 23 month? 24 A It was like about a week after that. 25 Q A week after the first time you saw Dr. Becker'? Page 57 1 A No, it was about a week after my last visit with 2 him, because I had to get everything straightened out as 3 far as the -- what is that thing they call when a doctor 4 gives you another -- they needed a script from my doctor, 5 and then they had asked Dr. Becker to send some records 6 over to them, and they wasn't going to see me without his 7 records stating what was actually wrong with me, so it took 8 about a week after I seen him my last time. 9 Q How many occasions did you treat with Madden 10 Physical Therapy? 11 A I seen Madden for about four times until.... 12 Q Until what'' 13 A Until McDonald's insurance company said they 14 wasn't going to pay for my insurance -- pay to see. 15 Q Over what period of time did you treat al. Madden 16 Physical Therapy? 17 A You mean how many times? 18 Q You said it was four times. 19 A Yes. 20 Q Four times over a week, over two weeks, over a 21 month? 22 A It was four times basically within -- I'd say 23 within that week. 24 Q What kind of treatment did Madden Physical 25 Therapy provide you? Page 54 - Page 57 Multi-Pager"' STEPHONE BOOKHART MAY 24, 2010 Page 58 1 A When I first went to them they took like four 2 meter reads of my back, my neck, how far I could bend my 3 back, how far I could bend my neck sideways and to the 4 front. They gave me -- basically they was trying to get me 5 to get to a point where I could turn sideways, bend 6 frontwards. I was to where I could tilt my neck sideways 7 and to the front. As far as that was concerned, that went 8 for about maybe about a month until I got cut off. 9 Q Did they provide you with a home exercise program 10 that you could do on your own after your physical therapy 11 ended? 12 A No, because I wasn't -- my back and my neck was 13 so severe that they didn't want me doing nothing. 14 Q Did they provide you with any diagnosis, to your 15 understanding? 16 A All my records, my neck and my back are severely 17 injured. 18 Q Did they tell you what the name of your injury to 19 the neck and the back was? 20 A Basically a lot of it -- some of it had to deal 21 with the muscle and some had to deal with the bone. 22 Because I still have a lot of cracking in my back, cracking 23 in the neck. 24 Q Did they provide you with any medications? 25 A No, but they knew that I was on medication as far Page 59 1 as for my shoulder. They asked me what type of medicine, 2 what type of medication I was on. I told them. I told 3 them I was on Vicodin. They told me if I feel comfortable 4 I can continue it, to continue it. 5 Q So at that time you were still on Vicodin from 6 your shoulder injury as a result of the Cameron fall? 7 A Yes, because at that time when I went to -- when 8 I went back out Hershey Medical, when I went back out there 9 -- well, when I called my doctor who did my shoulder 10 surgery, I told her what had happened. She wanted to see 11 me right away. So I seen her like about a day after. 12 Q A day after what? 13 A It was like a day after I seen Madden Physical 14 Therapy. 15 Q Do you remember what that physician -- was that 16 Dr. Armstrong? 17 A No, that was with her assistant who assisted me 18 on my shoulder. 19 Q But that still would have been the Bone and Joint 20 Center that I mentioned earlier? 21 A Yes. 22 Q What treatment did they provide to you? 23 A They did the same thing that they did to me when 24 I first hurt my shoulder. They gave me CT scans, they gave 25 me -- it was another MR]. Then I forgot what else. I Page 60 1 think it was one more. It was just them two. At that time 2 I really was supposed to come in and give that and go home, 3 but Bruce Rudy wanted to see me right away. So when he 4 seen me, he looked, he said everything was intact that he 5 could see of, because I have a plate like 13 screws in my 6 shoulder. He said it's a possibility that I could have 7 strained it or I could have tore a ligament when I tried to 8 break my fall. So he kept me on Vicodins, but he said that 9 fall didn't make it no better, so they put me back in -- 10 they put me back in rehab. They put me back in physical I I therapy out at Hershey for my an-n, and everything after 12 that has been -- it hasn't been the same since. 13 Q At the time that you fell at McDonald's were you 14 still on pain medication, specifically Vicodin, relating to 15 your shoulder injury? 16 A Yes. 17 Q Were you on any other medications at that time of 18 your fall at McDonald's as a result of the shoulder injury? 19 A I was still on my Vicodins. 20 Q Anything else? 21 A Not at that time. 22 Q You said that they -- that Mr. Rudy -- again, 23 he's with the Bone and Joint Center? 24 A Yes. 25 Q You said he sent you back to rehab for your ann. Page 61 1 Where did you receive rehab for your an-n? 2 A Downstairs. 3 Q So still in the Bone and Joint Center? 4 A Yes. 5 Q How many occasions did you rehab relating to your 6 shoulder at the Bone and Joint Center? 7 A The second time? 8 Q Yes. 9 MR. FOSTER: After the McDonald's. 10 BY MS. CLARK: 11 Q After the McDonald's fall. 12 A I seen him about -- I'd say I seen him about five 13 times. 14 Q Over what period of time? 15 A Within that month. 16 Q Did they provide you with a home exercise program 17 after you stopped going to rehab at the Bone and Joint 18 Center? 19 A Yes. 20 Q What kind of home exercise program did they put 21 you on? 22 A It was numerous ones. I had some that I could 23 tie a large exercise rubber band to a door or to the head 24 of the bed. Or I could tie the rubber band to my foot and 25 try to work my arm. Page 58 - Page 61 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOK-HART Multi-Page MAY 24, 2010 Page 62 1 Q What were their instructions to you about how 2 often you were to be performing those home exercise? 3 A Every other day. 4 Q Did you follow that schedule? 5 A Yes. 6 Q For how long'? 7 A Till today. 8 Q So you currently still do that home exercise 9 program every other day? 10 A Yes, because I lost my range of motion, I lost my I 1 range of motion to the point where it's not like the way it 12 was. 13 Q Prior to the fall at McDonald's, had you been on 14 the same home exercise program? 15 A Yes. 16 Q Was it every other day you were required to do 17 those home exercises during the time before your fall at 18 McDonald's? 19 A Yes, until I felt comfortable that I could move 20 up or do more. 21 Q Did you treat with any other medical providers 22 after the McDonald's fall? 23 A No, because I didn't have no -- wait a minute. I 24 seen him like maybe one time afterwards, but since I really 25 didn't have too much or too good of medical insurance, I Page 63 Page 65 1 had to stop. A Every day. 2 Q You said you had to see him. Him who`? j 2 Q What about with regard to the muscle spasms'? 3 A Mr. -- Michael -- I forget his name. He was the 3 A Every day almost. 4 therapist. He was over in physical therapy at Madden. 4 Q How often? 5 Q Do you have a family physician? 5 A I got about four of them yesterday. 6 A Yes. 6 Q Have they changed at all since the time of your 7 Q Who is your family physician'? ? fall at McDonald's? 8 A MaryJo Szada. S A No. 9 Q Where is he out of? Q What about with regard to the range of motion'? 10 A She's out of Steelton. j 10 A No. 11 Q I'm sorry, did you say Mary? I 1 Q It hasn't changed? 12 A Mary. 12 A HUM-um. 13 MR. FOSTER: It's MaryJo, right? 13 Q What about with regard to your leg? 14 THE. WITNESS: MaryJo. 14 A How is my leg feeling now? 15 BY MS. CLARK: 15 Q Yes. 16 Q Have you seen him for any conditions related to 16 A I have very little pain. 17 the McDonald's fall? 17 MR. FOSTER: In the right leg? 18 A Yes. 18 MS. CLARK: That's what he referred to earlier. 19 Q How often have you treated with her related to 19 THE WITNESS: The right leg. 20 the McDonald's fall? 20 BY MS. CLARK: 21 A Well, it was only -- she was only limited to only 21 Q So very little pain. Any other complaints with 22 do so much with me, but she kept track of how my pain 22 regard to your leg? 23 levels were, and she just kept me on Vicodins. 23 A No. 24 Q Did she provide you with any other treatment 24 Q What about with regard to the low back? 25 relating to the McDonald's fall? 25 A Every day. No. Q Did you treat with her regarding the earlier fall at Cameron? A No. I went to their doctor. t> We've talked about Dr. Armstrong, the Bork and 6 Joint Center, Madden Physical Therapy, and we talked about MaryJo in Steelton. Since your fall at Cameron, have you 8 treated with any other medical providers at any time for 9 any reason? 10 MP.I'OSTER: Becker. 1 1 BY MS. CLARK: 12 Q Becker. I apologize. Those are the only ones? 13 No other medical providers that you can recall? 14 A No. I5 Q Let's talk a little bit about the neck pain that 16 you talked about, the neck complaints that you had 17 earlier. Are you still suffering from any issues relating 18 to your neck at this time? 19 A Very much. 20 Q Tell me what your complaints are currently with 21 regard to your neck. 22 A Stiffness, muscle spasms, my motion to turn, to 23 bend. 24 Q With regard to the stiffness, how often do you 25 experience stiffness in your neck'? Page 62 - Page 65 TTT T!_T7RQ AT TZT? U!_UT r 17"T T7 D, AT A 'VAT C '71-7 c e n n-1'1n l"7 1 '7 -31n-1 c 1 i Multi-Page TM 1 forklift job, is that right? 2 THE WITNESS: Yes. Page 66 1 Q Tell me what your current complaints are with 2 regard to the low back. 3 A Stiffness, the pain, muscle spasms, crackness in 4 the lower part of my waist. 5 Q Anything else? 6 A Just hard for me to get dressed in the mornings. 7 Q Let's talk about the stiffness. How often do you 8 experience the stiffness? 9 A That's everyday. 10 Q Has it changed at all since the time of the fall 11 at McDonald's? 12 A It got worse. 13 Q What about with regard to the pain? 14 A It got different as far as pain-wise. It's ease 15 bad. 16 Q Describe the difference in pain from the time of 17 the fall to now. 18 A Some times I wake up in the middle of the night, 19 my pain ranges from between a 7 and 8. Basically when I'm 20 feeling the neck pain, I'm feeling the back pain. 21 Q How often are you experiencing the back pain? 22 A I feel that every day. 23 Q What about with regard to the muscle spasms, how 24 often do you get muscle spasms in your low back? 25 A I'd say maybe about three to four times a day. Page 67 1 Q Has it changed at all over time since the fall? 2 A No. 3 Q What about with regard to the cracking at the 4 waist? 5 A Between the waist, my neck and my back, all that 6 is still the same. It just got worse because of what I 7 can't get. 8 Q What do you mean? 9 A My therapy, my physical therapy. I need that; I 10 can't get it. 11 Q You mentioned earlier that you have health 12 insurance. Can you tell me who your health insurer is? 13 A It's really not a big insurance 14 company. Allstate. 15 Q How did you obtain that health insurance? 16 A That was through JFC Temp Agency. 17 Q And you've had that since the time of the fall at 18 McDonald's? 19 A No. 20 Q Or prior to that, after that? 21 A I got that afterwards. 22 Q Can you tell me when did you obtain that health 23 insurance? 24 A The time when I started with them. 25 MR. FOSTER: Stephone, temp agency got you the STEPHONE BOOKHART MAY 24, 2010 Page 68 3 BY MS. CLARK: 4 Q So in March of this year. 5 A Yes. 6 Q That's when you obtained that health insurance? 7 A Yes. Because you have to be working for them in 8 order to obtain that insurance. And then once you're laid 9 off you have no more insurance with them. 10 Q So you had that from March through April? 11 A Yes. 12 Q So currently you have no health insurance? 13 A No. 14 Q Let me go back to your shoulders. Going all the 15 way back to the Cameron fall. Okay? 16 A Okay. 17 Q You mentioned that they had given you some 18 restrictions with regard to bending and lifting at that 19 time. Did they tell you that they expected any future 20 treatment as a result of that shoulder injury in the 21 Cameron fall? 22 A Can you reexplain that a little bit? 23 Q Sure, not a problem. You mentioned they put 24 restrictions on you regarding lifting and bending as to the 25 Cameron fall, correct? Page 69 1 A Yes. 2 Q Did the doctors who treated you with regard to 3 your shoulder injury with regard to the Cameron fall, did 4 they tell you, you were going to need any further kind of 5 future treatment? 6 A They said a possibility. 7 Q What kind of future treatment did they tell you, 8 you might have to have? 9 A Physical therapy. 10 Q Any other treatment they expected in the future? 11 A No. 12 MR. FOSTER: They operated on him. 13 MS. CLARK: I understand that. Future treatment, 14 anything other than what they actually provided to him. 15 BY MS. CLARK: 16 Q Was that injury covered by workers' compensation? 17 A What, my shoulder? 18 Q Yes. 19 A Yes. 20 Q Did you have to bring a claim or go to court 21 regarding that workers' compensation injury? 22 A Not until after--- not until after -- not until I 23 was closing my case. 24 Q Did you have an attorney who worked with you with 25 regard to that case? Page 66 - Page 69 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi-Page Page 70 1 A Yes. 2 Q Who worked with you with regard to that workers' 3 compensation case? 4 A Joseph Dixon. 5 Q Was that case actually resolved? 6 A Yes. 7 Q You received a settlement for that case? 8 A Yes. 9 Q As part of that settlement what did that resolve? 10 Your medical, your wages? 11 A Basically that was -- I'm trying to think how 12 they said it. It was for wages and -- yeah, and medical. 13 Q With regard to the wages, can you recall what 14 specifically that settlement covered with regard to your 15 wages? Did it involve future wage losses? 16 A No. 17 Q As part of the workers' compensation injury, do 18 you recall if'Cameron Management ever asked you to go to 19 what's called an independent medical examination with a 20 doctor that they selected? 21 A Yes. 22 Q Do you remember what physician they required you 23 to sec for that examination? 24 A You mean their doctor'? 25 Q Their doctor. Page 71 1 A Dr. Kaneda. 2 Q Do you remember where Dr. Kaneda was located? 3 A On Union Deposit. 4 Q Do you remember the name of the practice group 5 Dr. Kaneda was with? 6 A Orthopedic Institute of' Pennsylvania. 7 Q I want to talk to you a little bit more about the 8 physical limitations that you've identified in your 9 complaint. We already talked about the lifting 10 restriction, so I won't go over that again. You indicated I 1 also you have limited range of motion in your back and left 12 arm. Can you tell me further what you mean by that? 13 MR. FOSTER: As of today? 14 MS. CLARK: This is part of his Complaint, so I'm 15 going over whatever formed the basis for his Complaint. 16 THE WITNESS: I can't bend, I can't twist. All 17 the rotations that I'm supposed to have physically, I can't 18 do. 19 BY MS. CLARK: 20 Q And that's related to your back and your left 21 arm? 22 A Yes. 23 Q With regard to the left arm, are these 24 limitations different from the limitations that you had 25 following your shoulder surgery? Page 70 - Page 73 LITT!`_TSVe AT 11P1DTf11J r Page `Verv much different. L) Spccificalfv, can you tell me how they're i different from the limitations and range of motion you had 4 after the shoulder surgery" k r, When I had my first initial visit to my physical 0 therapy after I had my surgery, my range of motion in my 7 arm was 80, 90 percent. After they seen that my range of 8 motion was getting good and everything, they terminated I 9 me. I'm not going to say terminated me. They wrote me 10 off. So after this accident, after the accident at I i I McDonald's, and when I tried to break the fall, my -- I 12 lost my range of motion and I haven't got it hack. 13 Q You say that you can walk short distances only, 14 is that correct' t5 ?\ Yeti 16 Q Was that restriction imposed by a physician or is 17 that a self-imposed restrictions 18 A My physical therapist told me it might occur E 19 because of the lower back, you know, was damaged. He had 20 lust told me, he said, just watch how far you walk and how 21 you walk. 22 Q Did he provide you anything in writing that 23 indicated that you were not to walk long distances? 24 A I'm not too sure. 25 Q Did he give you any indication as to how long I Page 73 i that limitation would last? 2 A He said it could last me for a good bit_ Q What about with regard to bending? You said 4 you're not permitted to bend. Is that restriction 5 physician imposed or self-imposed'? 6 A Both. 7 Q What physician imposed that restriction on you'? 8 A Madden Physical Therapy. 9 Q Do you recall when they imposed that restriction 10 on you? 11 A My second day I went to see them. 12 Q Did they tell you how long that restriction was 13 to remain in place'? 14 A No, but he had told me it's a process that's 15 going to take a long -- that's going to take a while. 16 Q Did he provide you anything in writing that 17 indicated that you were not to perform any bending 18 activities? 19 A I think so, but then I'm not too sure. I got 20 some papers from them. 21 Q You indicated that you need assistance getting 22 dressed. Is that restriction physician imposed or 23 self-imposed? 24 A Mr. Becker, he had told me -- my chiropractor, he 25 told me there might come a time where I have to have Multi-Pager"' STEPHONE BOOKHART MAY 24, 2010 Page 74 1 somebody help me get dressed. As a matter of fact, Madden 2 told me the same thing because of the -- because of the -- 3 their meter reading that they put on me, and by reading so 4 low it could cause me not to be able to pull myself to put 5 my socks on or for me to kind of bend over to pull my pants 6 up or to tie my shoes? 7 Q Did they provide you anything in writing imposing 8 those restrictions on you? 9 A They provided my -- I forgot what it was. They 10 provided -- they provided a letter -- I mean, they provided 1 l in one of the paragraphs, I think, will have problems 12 bending, will have problems dressing. And it was due 13 because of lack of ability to bend. 14 Q With regard to Mr. Rice, have you ever discussed 15 with him his observations of your fall or the condition of 16 the sidewalk? 17 A I never really came out with him and discussed 18 that, it was just he would actually talk about it some 19 time. 20 Q What did he tell you? 21 A You know, he was stating that that certain area 22 isn't safe. He said it's a hazard. What else? That's 23 about what I remember right now. 24 Q You identified in your discovery responses a 25 gentleman by the name of Tim Tansamore who submitted a Page 75 1 report in this matter. Can you tell me who Mr. Tansamore 2 is? 3 A Mr. Tansamore is a friend of mine who works where 4 I lived at. He's a certified construction engineer. He's 5 certified in concretes as far as knowing measurements, and 6 concrete, knowing the difference slopes of concretes, 7 knowing different textures in concrete, that is, walls, 8 columns, sidewalks. Anything basically that had to deal 9 with building forin. 10 Q How did you know Mr. Tansamore? 11 A Because the building I live in, he does 12 maintenance there, plus he's a cook. 13 Q So he does maintenance and cooking at your 14 current residence? 15 A Yes. 16 Q By whom is he employed? 17 A He's employed by -- I can't think of the 18 gentleman's name, but he's employed by the Pints Bar and 19 Grill. 20 Q Do you know if he's ever been qualified as an 21 expert in litigation previously? 22 A Do I know if he has been? 23 Q Yes. 24 A No. 25 Q Were you present with him at the time that he Page 76 1 took the measurements that form the basis for his report? 2 A No. 3 Q Your discovery responses indicate that you're 4 stating a claim for lost wages in connection with this 5 fall, is that correct? 6 A Yes. 7 Q Has any physician indicated to you that you are 8 completely incapable of working'? 9 A Yeah. 10 Q Who? 11 A I had -- 12 THE WITNESS: Can I tell them about the thing I 13 just had, Pete? 14 MR. FOSTER: Well, the question is, has any 15 physician told you that you are incapable of working, 16 meaning any kind of work at all. If any physician has, 17 you've got to respond as to who that physician is and what 18 they've told you. If no physician has told you that you're 19 incapable of working, and the question is -- I'm assuming 20 the basis of the question includes any kind of work, 21 whether or not any physician has told you that. 22 THE WITNESS: Madden Physical Therapy told me I'm 23 going to have difficulty. 24 BY MS. CLARK: 25 Q What specifically did they tell you you're going Page 77 l to have difficulty with in terms of working? 2 A Bending, stooping, grabbing and holding and being 3 able to grip things. 4 Q But they haven't told you that you're incapable 5 of performing any kind of work? 6 A As far as me getting back in construction, they 7 told me I can't do. 8 Q Did they tell you there was anything that you can 9 do in terms of work? 10 A Yeah, work I don't know how to do. 11 Q Like what? 12 A Office work. 13 Q Has anyone else ever told you that you're 14 completely incapable of working? 15 A No, not. 16 Q Have you applied for social security disability 17 benefits at any time? 18 A Yes. 19 Q When? 20 A Back in '08. 21 Q Were those benefits granted? 22 A They denied me the first time. 23 Q When was that? 24 A Let me see. June -- July, August, September -- I 25 think it was in July of last year when they did that. Page 74 - Page 77 HI ICHFS_ AT.RRICTHT- F01.TZ & NATALF 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi-Page Page 78 1 Q You said they denied you the first time. Ilave 2 you submitted a second application for social security 3 disability benefits? 4 A Yes. 5 Q When was that? 6 A I just had my hearing last month. 7 Q Have you received a decision with regard to that 8 hearing? 9 A That I'm waiting for. 10 Q Did you submit any medical evidence with regard 11 to your application for social security disability 12 benefits? 13 A Lots. 14 Q From whom did you submit medical documentation in 15 support of that application? 16 A Everybody. 17 Q Everybody that we've already talked about here 18 today? 19 A Yes. 20 Q Anybody else? 21 A No. 22 Q Did you submit any other documentation other than 23 medical documentation in support of your application for 24 social security disability benefits from any other 25 individual? Page 79 1 A No. Everybody that you just mentioned was 2 involved in my case, if not physically. 3 MR. FOSTER: i believe what she's asking you, 4 Stephone, is aside from medical records, physician, 5 chiropractor, therapist, were there any witnesses, 6 non-medical people involved in your social security 7 application so far as the paper work. 8 THE wiTNESs: Are you talking about somebody that 9 was with me? No. That's what you're saying? 10 BY MS. CLARK: I 1 Q Was there any other -- anything other than 12 medical records, did you submit any other documentation in 13 support of your application aside from medical records? 14 A No, everything was medical. 15 Q No other experts or anything like that, that 16 you're aware of? 17 A (Shakes head negatively). 18 Q Do you have an attorney assisting with you with 19 that? 20 A Yes. 21 Q Who is assisting you with that application? 22 A Katherine Nivens. 23 MR. FOSTER: Do you mind, Crystal, if I try to 24 clarify this particular line of questioning? 25 MS. CLARK: GO for it. Paige 80 MR. FOS !,R. Traditionally, Stephone, thcrc arc rehabilitation experts that examine you and testily. Now or at least submit records. Technically speaking, 4 they'rc not doctors or therapists. Did you have a rehabilitation expert in connection with the social 6 security case, 11F; WITNESS: From them, no. 8 MR. FOSTER: From anybody supporting your case. 9 I IIE wlTNFSS: Well, basically everything that was 10 supporting my case was what I had from my previous acci I 1 that they went over also, and to this accident here, 12 MR. FOSTER: When I ask you, though, about a 13 rehabilitation expert, does that ring a bell'? 14 M-, WITNESS: The only rehabilitation 1 think of I5 is Madden. Is that what you're asking me? I6 MIL. FOSTF,IL: Not really. 17 M.S. CLARK. We'll obtain the SDI benefit. 18 information, that's fine. You filled out an authorization 19 for us to do that 20 BY MS. CLARK: 21 Q Since your employment at Diapers.com, have you 22 taken any other steps to find alternative employment? 23 A No. 24 MR. FOSTER: You're getting unemployment comp, is 25 that correct? Page 81 1rEtt;: wrrNtss: Yeah, just getting unemployment, 2 that's all. 3 BY MS. CLARK: 4 Q have you put in any applications anywhere for 5 employment? 6 A No. 7 Q Have you signed up for any job search websites, 8 for instance, through the Unemployment Compensation Board? 9 A No. 10 Q Have you sought any training or vocational 1 1 assistance with regard to potential future employment since 12 Diapers.com? 13 A No. 14 Q As part of' your Complaint you indicate that you 15 experienced a loss of life's pleasures as a result of the 16 accident at McDonald's. Can you tell me, aside from the 17 medical and physical issues that we already talked about 18 here today, how has this accident and the injuries that you 19 allege affected you in your ability to enjoy life's 20 pleasures? 21 A Well, one, I really haven't had a chance to hold 22 my oldest son, I haven't had a chance to hold my baby, my 23 youngest. I play drums on a professional level, I can't do 24 it no more. I can't hunt, I can't fish. I don't know if I 25 want to say this or not. Page 78 - Page 81 Multi-Page T' STEPHONE BOOKHART MAY 24, 2010 Page 82 I MR. FOSTER: Go for it. 2 THE WITNESS: My sex life is the pits. As far as 3 wanting to go and do things with my friend and her kid and 4 her grandson, I just don't -- I'm just not feeling it. My 5 attitude has been different towards things. I'm just not 6 able to do the things I'm used to, that I was able to 7 before. 8 BY MS. CLARK: 9 Q Let's go back and talk a little bit about these 10 things. You said you can't hold your children. Were you 11 able to do that prior to the fall at McDonald's? 12 A I held my oldest son twice. 13 Q Prior to the fall at McDonald's? 14 A Yes. 15 Q And since then you haven't at all? 16 A None. I haven't held neither of them. 17 Q You said that you can't play drums. How often 18 prior to the fall at McDonald's would you play drums? 19 A Zero. 20 Q So you weren't doing that before the fall at 21 McDonald's? 22 A Yeah, I was playing drums on a regular basis 23 every weekend. 24 Q Listen carefully to my questions. Before your 25 fall at McDonald's, how often were you playing drums? Page 83 1 A Oh, every other weekend. Every other weekend, 2 and about three times during the week practice. 3 MR. FOSTER: Do you want to take a break? 4 THE WITNESS: No, I'm all right. 5 BY MS. CLARK: 6 Q Since the fall at McDonald's, how often have you 7 played the drums? 8 A None. 9 Q Why is that? 10 A My lower back and my arm. 11 Q You said that you can't hunt and fish. How often 12 before your fall at McDonald's did you hunt and fish? 13 A I hunted every year, every day that I could get 14 out in the woods. I went fishing I guess you could say 15 almost on a regular basis. 16 Q How often, Mr. Bookhart? 17 A Well, when the hunting season come in, I would 18 hunt during the season. 19 Q You had a hunting license? 20 A Yes. Had a fishing license, also. 21 Q What kind of hunting license? 22 A Deer license, big game license. 23 Q You said that you went fishing. How often would 24 you go fishing? 25 A I'd say maybe out of a year, probably about 25 Page 84 1 times, 30 times. 2 Q Since the fall at McDonald's, how often have you 3 hunted or fished? 4 A None. 5 Q Prior to the fall at McDonald's, you indicated 6 that now you're having difficulty in your sex life. Prior 7 to McDonald's, how often did you have sexual activity? 8 A Everyday. 9 Q Since the fall at McDonald's'? 10 A Maybe twice a month. 1 I Q Is that a result of incapability or just a loss 12 of libido? 13 A Incapability. 14 Q You said that your attitude is different towards 15 things. Can you describe for me what you mean by that? 16 A Most -- a lot of people feel depression, they 17 don't want to be around people. I've been shutting myself 18 down from folks. Basically between my arm and this here, 19 just took a toll on me as far as just wanting to get 20 involved with people. Some time I don't even go -- I don't 21 even go to church like I used to, because my attitude's not 22 right. Some times people say things to me out of the 23 ordinary, I snap. I'm not going to say I snap, I just 24 watch an attitude. I'm not a -- as you could say, I'm not 25 -- I am, but then I'm not a people person now. Page 85 1 Q Anything else regarding your loss of life's 2 pleasures? 3 A That's about it. 4 Q Other than the workers' compensation injury that 5 we already talked about today, and this litigation, have 6 you ever been involved in litigation of any other kind as a 7 plaintiff or a defendant? 8 A No. 9 Q Have you ever had any other accidents or 10 injuries? 11 A Besides my shoulder and this? 12 Q Um-hum. 13 A No. 14 Q Have you ever been arrested or convicted of any 15 crime? 16 A Back in '95, misdemeanors. 17 Q For what? 18 A Parking violations, speeding. 19 Q Have you ever served any jail time? 20 A 60 days. 21 Q Relating to what? 22 A Traffic violations. 23 Where? 24 Pennsylvania. 25 What county? I I I I I Q A Q Page 82 -Page 85 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 STEPHONE BOOKHART MAY 24, 2010 Multi.-Page '', Page, 86 1 A Dauphin. 2 Q Any other arrests or convictions`? 3 A No. 4 Q In your discovery responses you've identified a 5 couple of out of pocket medical expenses. I just, want to 6 get a little bit more inforination from you on that. You 7 indicated you've experienced approximately 250 -- you paid 8 approximately $250 to Becker Chiropractic relating to your 9 treatment, is that correct? 10 A That should have been Madden Physical Therapy. 11 Q You've also indicated that you had $120 in 12 medical expenses for Madden Physical Therapy? 13 A Yes. 14 Q Do you recall what the expenses were to Becker 15 Chiropractic? 16 A Including the medicine and that -- yeah, you're 17 about right, about two something. 18 Q What were those charges for, sir? 19 A The visit, initial when I go in and get set up to 20 be laid down on the table to loosen my back and my neck up 21 Q So that $250 expense was for the initial visit'? 22 A Yes. 23 Q I think you said earlier the remainder of the 24 medical treatments were paid by McDonald's, is that 25 correct? Page 87 1 A They were supposed to, yes. 2 Q What do you mean they were supposed to? 3 A Because some of them, from what I understand, 4 haven't been paid yet. They've been calling me. 5 Q But $120 is what you've paid to Becker? 6 A Yes. 7 Q Do you know whether or not there are any 8 outstanding bills that have not been paid to Becker? 9 A Let's see, last phone call I got from them, I 10 think it's maybe one or two. 1 l Q Do you know how much that is? 12 A No, I don't. 13 Q Do you have receipts for any of the monies that 14 you've paid to Becker Chiropractic to date? 15 A Somewhere in my papers I do. 16 Q Have you provided those to your attorney? 17 A I got one of them here, and I think he should 18 have -- 19 MR. FOSTER: That's from Madden. 20 MS. CLARK: t don't believe that there were bills 21 in any of the materials you provided me in discovery, Pete, 22 so if you could please consult with your client and get any 23 of the receipts that he has for these materials and provide 24 them to me, I would appreciate it. 25 MR. FOSTER: He has one bill from Madden. ^> _ I' make a copy of that before we icavc here today, but anything else I'll need. MR. FOSTER We'll do it. 4 BY MS. CLARK, Q Since we're going to address that by receipts, 6 I'll just go on. You indicated also that you have paid approximately $75 out of pocket for medications. Do you 8 recall that`' 9 A Yes. 10 Q Where did you obtain those medications from'? i 1 A Rite Aide Pharmacy. 12 Q Can you tell me what Rite Aide'? 13 A Market Street downtown. 14 Q What was that for'? 1 s A You mean what medication'? 16 Q Yes, sir. 17 A Vicodin and Neurontin, Naprotin (phonetic). 18 Q Naproxen? 19 A Naproxen. I forgot the muscle relaxer that they 20 gave me. 21 Q Any other out of pocket medical expenses that you 22 recall, other than to Becker, Madden, and for the 23 medications';' 24 A No. 25 Q Arc you covered by Medicare or Medicaid, sir? Page 89 1 A No, Ma'am. Q I know I asked you earlier what your date of j 3 birth was. What's your current age, sir? 4 A 47. 5 MS. CLARK: i don't think I have any other 6 questions. (The deposition was concluded at 12:15.) c? '11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 86 - Page 89 Multi-Page TM STEPHONE BOOKHART MAY 24, 2010 Page 90 1 COUNTY OF DAUPHIN 2 : SS 3 COMMONWEALTH OF PENNSYLVANIA 4 I, Karen C. Albright, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of STEPHONE BOOKHART. 8 I further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 1 further certify I am not a relative or employee or 16 attorney or counsel to any of the parties, or a relative or 17 employee of such attorney or counsel, or financially 18 interested directly or indirectly in this action. 19 I further certify that the said deposition 20 constitutes a true record of the testimony given by the 21 said witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 18th day of June, 2010. 24 25 Karen C. Albright, RPR Page 90 - Page 90 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 CERTIFICATE OF SERVICE I, Angela Kelly, for the firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have this day served the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Alphonso Arnold, Jr., Esquire 17 North 2nd Street, 16th Floor Harrisburg, PA 17101 Date: t' 121 I ? THOMAS, THOMAS & HAFER, LLP 1 An la A. Kelly 1109723.1 CA 1 P? PRAECIPE FOR LISTING CASE FOR ARGUMENT r"¢1 w40-O F (GE (Must be typewritten and submitted in triplicate) ggtt uu ?p TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matt et<4p AQNU AM 11: 22 Argument Court.) - A`fC1jy CAPTION OF CASE (entire caption must be stated in full) STEPHONE BOOKHART VS. CHEUNG ENTERPRISES No 7816 2009 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendants demurrer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Alphonso Arnold, Esquire, 17 N. 2nd Street, 16th Floor, Harrisburg, PA 17101 (Name and Address) (b) for defendants: John F. Yaninek, Esquire, 305 N. Front Street, PO Box 999, Harrisburg, PA 17108-0999 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 7, 2012 Date: ?''"211 )-2, INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is resisted. ?ga3y? ?-)aR o r,a Print your name Attorney for Defendant C C-) ' r.J "ry C. Alphonso Arnold, Jr., Esquire r.n Ca C= a .? r n --- -, ; 17 North Second Street, 16t" Floor -< W ` Harrisburg, Pennsylvania 17101 < .?, 1.717.260.3060 Fax 1.717.260.3072 ?'- `•' -+ Pennsylvania Identification No. 29704 Attorney, for Plaintiff IN THE COURT OF COMMON PLEAS STEPHONE BOOKHART ) CUMBERLAND COUNTY Plaintiff ) CIVIL ACTION - LAW No. 2009 Civil 7816 V. ) CHEUNG ENTERPRISES, INC. ) DEMAND FOR JURY TRIAL Defendant ) PLAINTIFF's MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO Pa. R. C. P. 1035.2 COMES NOW Stephone Bookhart, Plaintiff in the above-captioned proceeding, and files his Motion for Partial Summary Judgment Pursuant to Pa. R. C. P. 1035.2. In support thereof, Plaintiff avers as follows: 1. This Motion is filed pursuant to Pa. R. C. P. 1035.2 which states, in pertinent part: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which. could be established by additional discovery or expert report, .. . 2. This is a personal injury tort action, sounding in negligence, filed by Stephone Bookhart (Plaintiff) against a property owner. On August 28, 2009, Plaintiff was injured on the premises of a McDonald's Restaurant while engaging in lawful activity as a business invitee. Defendant Cheung Enterprises, Inc., operates the McDonald's Restaurant as a franchisee/licensee. The nature of the action may be commonly referred to as a "slip and fall" case. 3. A complaint was filed December 9, 2009. Discovery has been completed and Plaintiff was deposed. On December 20, 2011, a Case Management Conference was held. This conference resulted in an agreed-upon procedural scheduling Order, signed by the Honorable Albert H. Masland. The parties have been operating pursuant to this schedule since that time. 4. On or about March 30, 2012, Plaintiff served upon Defendant a set of Requests for Admissions Pursuant to Pa. R. C. P. 4014. Defendant duly responded to these requests for admissions. 5. Based on the Admissions supplied by the Defendant, Plaintiff avers that the 2 there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report on the issue of the liability of Defendant, as property owner, for the fall of Plaintiff. 6. Plaintiff respectfully requests that partial summary judgment against Defendant be entered as to the issue of liability for the tortious harm to Plaintiff based on his fall. Summary judgment as to the liability of Defendant is proper under two legal theories. Those theories are negligence per se and res ipsa loquitor. 1. Summary Judgment Is Proper Under The Theory of Negligence Per Se 7. Generally, to prevail in a negligence case, a plaintiff must demonstrate the following elements: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff. Maham v. Am- Guard, Inc., 841 A.2d 1052 (Pa. Superior Ct. 2003). 8. The standard of care a possessor of land owes to one who enters upon the land depends upon the legal status of the person entering the land. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123 (1983), citing Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962); also Restatement (Second) of Torts §§ 328-434B (1965). 3 9. It is undisputed that Plaintiff was a business invitee to the premises of Defendant, Cheung Enterprises, Inc.'s McDonald's restaurant on August 28, 2009, when he fell and injured himself while walking down a walkway ramp entrance located on the north side of the restaurant. A photo of the ramp entrance walkway was presented to the Defendant and Defendant has admitted that the photo accurately reflects the condition of the walkway at the time of the accident. See Plaintiff's Request for Admissions #3; #5 and exhibits attached thereto; see also Plaintiff's Deposition, pp. 30-36. 10. Pennsylvania has adopted §§ 343 and 344 of the Restatement (Second) of Torts regarding the duty of possessors of land to business invitees. See Schon v. Scranton- Springbrook Water Svc. Co., 381 Pa. 148, 112 A.2d 89, 91 (1955) (adopting § 343); Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 246 A.2d 875, 878 (1968) (adopting § 344). 11. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of 4 Torts, Section 343. 12. Possessors of land owe invitees not only a duty to disclose dangerous conditions of which the possessor is aware but also a duty to exercise reasonable affirmative care to discover dangerous conditions and either rectify the condition or warn invitees of the danger. Id. 13. Under the doctrine of negligence per se, a court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part: (a) to protect a class of persons that includes the one whose interest is invaded; (b) to protect a particular interest that is invaded; (c) to protect that interest against the kind of harm that has resulted; and (d) to protect that interest against a particular hazard from which the harm results. See Wagner v. Anzon, Inc., 684 A.2d 570 (Pa. Superior Ct. 1996). 14. The north entrance walkway in question and where Plaintiff fell and was injured is believed and averred to be subject to the statutory and regulatory provisions of the Americans With Disabilities Act of 1990 (ADA), involving the requirement for the installation of handrails. A photo depiction of the north entrance to the restaurant leads to the conclusion based on judicial notice that the walkway serves no other purpose. In Plaintiff's Request for Admission # 11, the following admission and Defendant response was provided: Request for Admission No. 11. Admit that the McDonald's property was subject to the statutory and regulatory requirements of the Americans with Disabilities Act of 1990 (ADA). RESPONSE: Objection. This Request is an improper request for the admission of legal conclusions. See, Brindley v. Woodward Vill. Rest., 652 A.2d 865 (Pa. Super. 1995); Dwight v. Girard Med. Ctr., 623 A.2d 913 (Pa. Cmwlth. 1993). 15. Defendant has admitted that the walkway did not contain hand rails (Plaintiff Request for Admission #5), and was built on a downward slope (Plaintiff Request for Admission # 12). 16. The objection of Defendant as to a condition that it should know as owner of record of a McDonald's franchised/licensed property is insufficient. The insufficient admission should, therefore, be deemed admitted. See Pa. R. C. P. 4014. 17. Pennsylvania has adopted the Restatement (Second) of Torts, Section 286, concerning the proper application of the concept of negligence per se. Majors v. Broadhead Hotel, 415 Pa. 165, 205 A.2d 875 (1965); also Con ig ni by Congini v. Portersville Value Company, 504 Pa. 157, 470 A.2d 515 (1983). Comment (d) to section 286 provides in part that the court is free to adopt and apply the standard of conduct provided by statute when making its own judicial rules. 6 18. The Restatement of Torts (Second), Section 286 states, in pertinent part: The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part: (a) to protect a class of persons which includes the one whose interest is invaded; and (b) to protect the particular interest which is invaded; and (c) to protect that interest against the kind of harm which has resulted; and (d) to protect that interest against a particular hazard from which the harm results. 19. For reasons which will be extensively briefed in Plaintiff s Memorandum of Law in Support of Motion for Partial Summary Judgment Pursuant to Pa. R. C. P. 1035.2, summary judgment is proper based the doctrine of negligence per se. The concept of negligence per se establishes the elements of duty and breach of duty where a defendant violates an applicable statute, ordinance, or regulation designed to prevent a public harm. The safe ingress and egress of business invitees to the premises is a hazard for which building compliance with the ADA seeks to avoid. Plaintiff is within the class of persons for whom the regulations seek to protect (Plaintiff suffers injury from the accident and had a pre-existing shoulder injury prior to the accident.) 20. The following elements establish a claim of negligence per se: 1) the purpose of the statute must apply, at least partially, to protecting the interest of a specific 7 group rather than the public generally, 2) the statute or regulation must clearly apply to the conduct of the defendant, 3) the defendant must violate the statute, and 4) the defendant's violation of the statute must be the proximate cause of the plaintiffs injuries. Mahan, supra. Also, Plaintiff asserts that the same analysis applies when evaluating violations of federal regulations as the foundation of a negligence per se action. See Cecile Industries, Inc. v. U.S., 793 F.2d 97, 99 (3d Cir. 1986). II. The Admitted Absence of Hand Rails Provides Constructive Notice of an Unreasonably Dangerous Condition 21. In addition to the doctrine of negligence per se, summary judgment is further supported by Defendant's admission of the absence of hand rails on the north walkway entrance. This admission establishes constructive notice of the condition of the property - a condition which was unreasonably dangerous to the public. Plaintiff will heavily rely on the case of Neve v. Insalaco's n/k/o Bilo's Foods, 771 A.2d 786 (Pa. Superior Ct. 2001), for the facts and discussion of the law pertaining to duty of owners of land to business invitees. 22. Neither the mere existence of a harmful condition on the premises nor the mere happening of an accident due to such a condition evidences a breach of the proprietor's duty of care or raises a presumption of negligence. The invitee must present 8 evidence proving that the proprietor deviated from the duty of reasonable care that it owed in the circumstances, that is, that the proprietor knew or in the exercise of reasonable care should have known of the harmful condition. The invitee can satisfy this burden by establishing, inter alia, that the proprietor had constructive notice of the harmful condition. The invitee can also satisfy its burden by establishing that the proprietor helped to create the harmful condition or had actual notice of it. Neve v. Insalaco's n/k/o Bilo's Foods. III. The Doctrine of Res Ipsa Loquitor Further Supports the Entry of Partial Summary Judgment Against Defendant 23. As the court is aware, pursuant to the doctrine of res ipsa loquitor, it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when the event is of a kind which ordinarily does not occur in the absence of negligence; other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and the indicated negligence is within the scope of the defendant's duty to the plaintiff. 24. The Defendant, apparently, takes the position that its liability cannot be established without the use of expert witness testimony. By separate filing, Plaintiff will request a reasonable extension of the procedural schedule in this matter to provide any 9 required expert report that the court deems legally necessary for the trier of fact. At present, Plaintiff disagrees that an expert report is needed for establishing the Defendant's breach of its duty to Plaintiff, as a business invitee. 25. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving parry is entitled to a judgment as a matter of law. See Bleam v. Gateway Center Professional Assoc., citing Pa.R.Civ.P. 1035(b) (repealed and modified)'; Denlinger, Inc. v. Dendler, 608 A.2d 1061 (Pa. Superior Ct. 1992). 26. In making a determination that there are no genuine issues as to any material fact and the moving party is entitled to judgment, the court must view the record in a light most favorable to the non-moving party, accepting as true all well-pleaded facts and all reasonable inferences that can be drawn therefrom. Any doubt regarding the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Bleam, citing Ott v. Unclaimed Freight Co., 577 A.2d 894 (Pa. Superior Ct. 1990). 'Pa. R. C. P. 1035.2. 10 27. Based on the Admissions of Defendant, the Deposition of Plaintiff, and the undisputed physical condition of the north walkway ramp to the premises of the McDonald's Restaurant on the date of the accident, Plaintiff is entitled to summary judgment as a matter of law. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter partial summary judgment against Defendant and in favor of Plaintiff on the issue of liability. Date: June 29, 2012 By: lphonso Arnold, Jr., Esq. Attorney for Plaintiff No. 299704 11 APPENDIX IVTH THOMAS, THOMAS & HAFERLLP - Attorneys At Law Street Address: 305 North Front street, Harrisburg, PA 17101 Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Phone: 717.237.7100 Fax: 717.237.7105 John F. Yaninek (717) 441-3952 jyaninek@tthIaw.com April 30, 2012 Alphonso Arnold, Jr., Esquire 17 North 2nd Street, 16' Floor Harrisburg, PA 17101 RE: Bookhart v. Cheung Enterprises File No. 340-91840 Dear Mr. Arnold: Enclosed please find Defendant's Response to Requests for Admissions in regard to the above-captioned matter. Very truly yours, THOMAS, THOMAS & HAFER, LLP r ?ohn. Y ek dat1058548.2 Enc. Harrisburg Bethlehem Pittsburgh Philadelphia Wilkes-Barre Baltimore, MD Clinton, NJ www.tthlaw.com THOMAS, THOMAS & HAFER LLP John F. Yaninek, Esquire Attorney ID #55741 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3952 jyaninek@tthlaw.com Attorney for Defendant STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL ACTION - LAW NO.2009 Civil 7816 JURY TRIAL DEMANDED DWENlkN S:RLSPONSE TO REQUEST FOR ADMISSIONS AND NOW, comes Defendant, Cheung Enterprises Inc., by and through its attorneys, Thomas, Thomas & Hafer, LLP, and hereby responds to Plaintiff's Request for Admissions as follows: GENERAL OBJECTIONS: 1. Cheung Enterprises, Inc. objects to any and all requests for admission to the extent that they seek information and/or documents not reasonably calculated to lead to the discovery of admissible evidence (see Pa.R.C.P. 4003.1). 2. Cheung Enterprises, Inc. objects to any and all requests for admission to the extent that they seek the mental impressions of counsel or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories (see Pa.R.C.P. 4003.3). 3. Cheung Enterprises, Inc. objects to any and all requests for admission to the extent that they seek the mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics of a representative of Defendants other than counsel. 4. Cheung Enterprises, Inc. objects to any and all requests for admission to the extent that they seek information or documents protected from discovery by the attorney-client and/or attorney work-product privileges. 5. Cheung Enterprises, Inc. objects to any and all requests for admission to the extent that they seek information or documents to be used solely for witness impeachment. 6. Cheung Enterprises, Inc. objects to any and all requests for admission to the extent that they seek disclosure of expert consultant and expert witness information and materials that are beyond what is required to be disclosed by Pa.R.C.P. 4003.5(a)(1). 7. Cheung Enterprises, Inc. objects to any and all requests for admission to the extent that they seek information or documents otherwise protected from discovery by the Pennsylvania Rules of Civil Procedure and interpretive case law, in particular Pa.R.Civ.P. 4011.1. 8. Cheung Enterprises, Inc. objects to each and every request for admission on the ground and to the extent that it seeks information which is not in the possession, custody, or control of Cheung Enterprises, Inc. 9. Cheung Enterprises, Inc. objects to each and every request for admission on the ground and to the extent that it is duplicative of other discovery requests and/or requests information which is equally available to or ascertainable by Plaintiff. 10. Cheung Enterprises, Inc. objects to each and every request for admission on the ground and to the extent that it assumes the truth of disputed facts. 11. Cheung Enterprises, Inc. objects to each and every request for admission on the ground and to the extent that it calls for information not known to Cheung Enterprises, Inc., nor reasonably ascertainable by Cheung Enterprises, Inc. because such information is in the hands of or under the control of third parties. 12. The General Objections asserted above shall be deemed to be applicable to and continuing with respect to each of the requests for admission. The General Objections asserted above are incorporated into each and every one of Cheung Enterprises, Inc.'s responses. Each such objection is not waived, nor in any manner limited, by any response to any specific request for admission that may be made in the future. Cheung Enterprises, Inc. reserves the right to amend, supplement, or alter their responses and/or objection to such requests for admission at any time, including but not limited to the extent Cheung Enterprises, Inc. is unable to assert objections because of the vague, indefinite, and overbroad nature of any such request for admission. 2 Request for Admission No. 1. Admit that on August 28, 2009, Cheung Enterprises, Inc. operated a McDonald's restaurant (#2449) located at 4230 Trindle Road, Camp Hill, Pennsylvania, as a franchise or licensee. RESPONSE: Admitted. Request for Admission No. 2. Admit that on August 28, 2009, Cheung Enterprises, hic. through its employees, contractors, or agents, was responsible for the maintenance and upkeep of the McDonald's-franchised or leased restaurant property located at 4230 Trindle Road, Camp Hill, Pennsylvania.. RESPONSE: Admitted. Request for Admission No. 3. Admit that the photographs attached as Exhibit #1 to these Admissions are a reasonable and accurate portrayal of the McDonald's-franchised or leased restaurant property located at 4230 Trindle Road, Camp Hill, Pennsylvania, as the property existed on or about August 28, 2009. RESPONSE: Admitted. Request for Admission No. 4. Admit that the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property had a surface for ingress and egress of business patrons made of cement, mixed with stone or pebbles. RESPONSE: It is admitted that there is a walkway which provided for means of ingress and egress to said restaurant, comprised of a mix of cement and pebbles. 3 Request for Admission No.8. Admit that the surface of the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property was in a deteriorating condition as evidenced by the exposure of individual stone particles and "railroad tie" lumber depicted in the photographs of Exhibit #1. RESPONSE: Denied. Defendant objects as this Request is argumentative and ells for speculation rendering this Request the improper subject of a request for admission. Moreover, this Request assumes facts not in evidence and the phrase "deteriorating condition" is not defined, rendering this Request vague and ambiguous. Request for Admission No. 9. Admit that Cheung Enterprises, Inc., was aware through incident reports or other reports of other accidents, similar to Plaintiff s accident, involving slips and falls by business patrons on the walkway surface on the McDonald's franchised property during the years 2009-2010. RESPONSE: Denied. Request for Admission No. 10. Admit that Cheung Enterprises, Inc.'s theory of non-liability for the harm to Plaintiff, is based on the fact that Plaintiff was wearing David Eden alligator shoes with a leather sole, which became slippery when wet. RESPONSE: Objection. This Request is an improper request for the admission of legal conclusions. See, Brindley v Woodland HIL Rest., 652 A.2d 865 (Pa. Super. 1995); Dwight v Girard Med. Ctr., 623 A.2d 913 (Pa. Cmwlth.1993). 5 Request for Admission No. ll. Admit that the McDonald's property was subject to the statutory and regulatory requirements of the Americans with Disabilities Act of 1990 (ADA). RESPONSE: Objection. This Request is an improper request for the admission of legal conclusions. See, Brindley v Woodland YUL Rest., 652 A.2d 865 (Pa. Super. 1995); Dwight v Girard Med Ctr., 623 A.2d 913 (Pa. Cmwlth. 1993). Request for Admission No. 12. Admit that the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property was sloped or angled from the door to the street during the month of August 28, 2009. RESPONSE: It is admitted that said walkway is built on a downward grade. Request for Admission No. 13. Admit that Cheung Enterprises, Inc. as franchisee or licensee of McDonald's restaurant on August 28, 2009, did not offer its services to patrons or business invitees based on the type of shoes they wear. RESPONSE: Admitted. gm Date: April2012 Respectfully submitted, THOMAS, THOMAS & HAFER, LLP F. Yanine squire eys for De dart 6 CERTIFICATE OF SERVICE I, Deborah A. Tamny for the firm of Thomas, Thomas & Hafer, LLP„ hereby certify that I have this day served the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Alphonso Arnold, Jr., Esquire 17 North 2nd Street, 16'x' Floor Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP Deborah A. Tamny Date: April ID , 2012 1074842.1 Alphonso Arnold, Jr., Esquire Attorney at Law 17 North Second Street, 16'hFloor Harrisburg, Pennsylvania 17101 717.260.3060 Fax 717.260.3072 March 29, 2012 John F. Yaninek, Esquire c/o Thomas, Thomas & Hafer LLP 305 North Front Street Harrisburg, PA 17101 Re: Bookhart v. Cheung Enterprises, Inc. No. 09-7816 Cumberland County Your File: TT&H No. 340-91840 Dear Mr. Yaninek: Enclosed herewith, please find Plaintiff, Stephone Bookhart's, Requests for Admissions to Defendant, Cheung Enterprises, Inc. Sincerely, Alphonso Arnold, Jr., Esquire #29704 STEPHONE BOOKHART ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff ) No. 2009 Civil 7816 V. } CHEUNG ENTERPRISES, INC. ) CIVIL ACTION - LAW Defendant ) JURY TRIAL DEMANDED PLAINTIFF's REQUEST FOR ADMISSIONS FROM DEFENDANT Plaintiff, Stephone Bookhart, requests that Defendant Cheung Enterprises, Inc., admit, pursuant to Pa. R. C. P. 4014, the matters set forth below. The facts set forth below shall be deemed admitted unless the Defendant serves upon Plaintiff a sworn answer or objection within thirty (30) days after service hereof Request for Admission No. 1. Admit that on August 28, 2009, Cheung Enterprises, Inc. operated a McDonald's restaurant, (#2449) located at 4230 Trindle Road, Camp Hill, Pennsylvania, as a franchisee or licensee. Request for Admission No. 2. Admit that on August 28, 2009, Cheung Enterprises, Inc., through its employees, contractors, or agents, was responsible for the maintenance and upkeep of the McDonald's-franchised or leased restaurant property located at 4230 Trindle Road, Camp Hill, Pennsylvania. Request for Admission No. 3. Admit that the photographs attached as Exhibit #I to these Admissions are a reasonable and accurate portrayal of the McDonald's-franchised or leased restaurant property located at 4230 Trindle Road, Camp Hill, Pennsylvania, as the property existed on or about August 28, 2009. Request for Admission No. 4. Admit that the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property had a surface for ingress and egress of business patrons made of cement, mixed with stone or pebbles. Request for Admission No. 5. Admit that the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property (as depicted in the photographs of Exhibit # 1) did not have any hand-rails constructed on August 28, 2009. Request for Admission No. 6. Admit that the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property did not have any warning signs posted on August 28, 2009, that would have advised any business patron to exercise more than ordinary care when entering or exiting the restaurant. 2 Request for Admission No. 7. Admit that the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property was undergoing some stage of repair or construction by a contractor during the month of August 28, 2009. Request for Admission No. 8. Admit that the surface of the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property was in a deteriorating condition as evidenced by the exposure of individual stone particles and "railroad tie" lumber depicted in the photographs of Exhibit #1. Request for Admission No. 9. Admit that Cheung Enterprises, Inc., was aware, through incident reports or other reports, of other accidents, similar to Plaintiff s accident, involving slips and falls by business patrons on the walkway surface on the McDonald's franchised property during the years 2009-2010. Request for Admission No. 10. Admit that Cheung Enterprises, Inc.'s theory of non-liability for the harm to Plaintiff, is based on the fact that Plaintiff was wearing David Eden alligator shoes with a leather sole, which became slippery when wet. Request for Admission No. 11. Admit that the McDonald's property was subject to the statutory and regulatory requirements of the Americans with Disabilities Act of 1990 (ADA). Request Admission No. 12. Admit that the walkway leading to the entrance door located on the north side of the McDonald's-franchised restaurant property was sloped or angled from the door to the street during the month of August 28, 2009. Request Admission No. 13. Admit that Cheung Enterprises, Inc., as franchisee or licensee of McDonald's restaurant on August 28, 2009, did not offer its services to patrons or business invitees based on the type of shoes they wear. Date: March 29, 2012 By: Alphonso Arnold, Jr., Esquire No. 29704 Attorney for Plaintiff 4 CERTIFICATE OF SERVICE Alphonso Arnold, Jr., Esquire, hereby certifies that a true and correct copy of the foregoing, Plaintiffs Request for Admissions to Defendant was served upon the following persons, first class mail, postage prepaid: John H. Yaninek, Esquire c/o Thomas, Thomas & Hafer 305 North Front Street Harrisburg, PA 17101-1233 Date: March 29, 2012 By: Alphonso Arnold, Jr., Esquire No. 29704 Bookhart v. Cheung Enterprises, Inc. No. 09-7816 Cumberland County Plaintiff's Requests for Admissions to Defendant EXHIBIT # 1 Bookhart v. Cheung Enterprises, Inc. No. 09-7816 Cumberland County Plaintiffs Requests for Admissions to Defendant EXHIBIT # 1 CERTIFICATE OF SERVICE Alphonso Arnold, Jr., Esquire, counsel for Plaintiff, hereby certifies that on June 29, 2012, a true and correct copy of the instant, Motion, was mailed, first-class mail, postage pre-paid, addressed to the following: John F. Yaninek Esq. c/o Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 Date: June 29, 2012 By: Hon. Albert H. Hasland Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Alphonso Arnold, Jr., Esquire No. 29704 Attorney for Plaintiff STEPHONE BOOKHART, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHEUNG ENTERPRISES, INC., DEFENDANT 09-7816 CIVIL TERM ORDER OF COURT AND NOW, this day of July, 2012, upon consideration of Plaintiffs motion for extension of procedural schedule, a Rule is issued on Defendant to show cause why the requested relief should not be granted. Rule returnable twenty (20) days after service. Any answer filed shall be forwarded by the Prothonotary to chambers. By the Court, Albert H. Masland, J. V'Alphonso Arnold, Jr, Esquire For Plaintiff ? John F. Yaninek, Esquire {=2 For Defendant :saa jka -led -7 z ?z w L -- t cn y' f THOMAS, THOMAS & HAFER LLP John F. Yaninek, Esquire Attorney ID #55741 305 N. Front Street P.O. Box 999 Harrisburg, PA 171o8 (717) 441-3952 jyaninek@tthlaw.com STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant , FILED-OFFICE t.? 3t20?? ,IUL -9 A?1 ?? ? 36 s;UM6ER SYL? ?? ATE ENN Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.2009 Civil 7816 JURY TRIAL DEMANDED DEFENDANT'S REPLY TO PLAINTIFF'S MOTION FOR EXTENSION OF PROCEDURAL SCHEDULE AND NOW, comes Defendant, Cheung Enterprises Inc., by and through its Thomas, Thomas & Hafer, LLP, and hereby files its reply to Plaintiff s Motion for Procedural Schedule as follows: 1. Denied. This paragraph states a legal conclusion to which no required. 2. Admitted with clarification. Plaintiff s counsel has had adequate time to his case and obtain an expert in conformity with the Court's Order issued at the 2011 case management conference. 3. Admitted. 4. Admitted. 5. Admitted in part; denied in part. It is admitted that Plaintiff failed to his expert reports prior to April 30, 2012 and has not produced any expert reports to is However, it is respectfully denied that an extension request for such report due sixty (6o) ioh of days late is now reasonable. Defendant has justifiably relied on the Court's schedule and 4 its Motion for Summary Judgment in conformity and would be prejudiced by Plaintiffs request. Plaintiff has no expert and may never obtain an expert. Plaintiff waited montIhs after his deadline passed to even request an extension of the deadlines. 6. Admitted. Plaintiffs Motion for Summary Judgment is in compliance with the Court's Scheduling Order which is further evidence that Plaintiffs Motion the orderly sequence of events by attempting to re-open discovery months after it has closed. Defendant has filed its Motion for Summary Judgment and listed same argument. 7. Denied. After reasonable investigation, Defendant is without knowledge I or information sufficient to form a belief as to the allegations presented in paragraph 7 of Plaintiffs Motion and they are therefore denied, with strict proof requested at a motions hearing. Without waiving said denial, Plaintiff has waited approximately two (2) mon s to file this Motion for Extension, clearly knowing his report was overdue. 8. Denied. This paragraph states legal conclusions to which no response is required. WHEREFORE, Defendant, Cheung Enterprises, respectfully requests thi Honorable Court deny Plaintiffs Motion for an Extension due to its unreasonably filing after Plaintiff s deadline passed and prejudiced suffered by Defendant by relying on the Scheduling Order and filing its Motion for Summary Judgment. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP XVi F. Yaninsquiri Date: July 6, 2012 orneys for Defendant CERTIFICATE OF SERVICE I, Angela Kelly, for the firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have this day served the foregoing by depositing a copy of the same in the United Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Alphonso Arnold, Jr., Esquire 17 North 2nd Street, 16th Floor Harrisburg, PA 17101 Date: July- 6, 2012 THOMAS, THOMAS & HAFER, LLP ?nc ,?? A ?- -? i r i An ela A. Kelly 1113729.1 THOMAS, THOMAS & HAFER LLP John F. Yaninek, Esquire Attorney ID #55741 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-3952 jyaninek@tthlaw.com Fit_ED-OF1= -E CF THE EF,OTHONOTARY 2012 j& I I AM 11* 44 CU PEN NSYLVANO A TY Attorney for Defendant STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV CIVIL ACTION - LAW NO. 2009 Civil 7816 JURY TRIAL DEMANDED DEFENDANT'S REPLY TO PLAINT'IFF'S MOTION FOR PARTIAL JUDGMENT AND NOW, comes Defendant, Cheung Enterprises Inc., by and through its Thomas, Thomas & Hafer, LLP, and hereby files its reply to Plaintiffs Motion for Summary Judgment as follows: 1. Denied. This paragraph states a legal conclusion to which no required. 2. Admitted in part; denied in part. It is admitted that Plaintiff fell. testified that he was wearing David Eden alligator shoes and fell on the outside Plaintiff was unable to articulate the cause of the fall: Q: OK, slipped. Just wanted to be clear. Tell me how you slipped and fell. A: I was just walking normally with my fries in my hand. And I really don't know what it was - - at the time I don't exactly know if the sidewalk was level or whatever, but I just slipped. My shoes (indicating). is See Exhibit "A", deposition transcript of Stephone Bookhart at page 33. The remaining allegations within paragraph 2 of Plaintiffs Motion are denie d as conclusions of law. 3. Admitted. 4. Admitted. 5. Denied. This paragraph states legal conclusions to which no respon a is required. 6. Denied. This paragraph states legal conclusions to which no respon a is required. 7. Denied. This paragraph states legal conclusions to which no respon a is required. 8. Denied. This paragraph states legal conclusions to which no respo a is required. 9. Denied. This paragraph states legal conclusions to which no respon a is required. 10. Denied. This paragraph states legal conclusions to which no respon a is required. ii. Denied. This paragraph states legal conclusions to which no respon a is required. 12. Denied. This paragraph states legal conclusions to which no respori, a is required. 13. Denied. This paragraph states legal conclusions to which no respon a is required. 14. Denied. This paragraph states legal conclusions to which no respo a is required. Additionally, Plaintiffs Amended Complaint complains that the Defendant was negligent for the following: (1) failing to keep its walkway free of rainwater; (2) constructi g 2 walkway to said business premises of pebbles and cement when it knew or should have known that the surface of said walkway, when wet, creates a dangerous condition which would use business persons to slip and fall on it; (3) failing to warn business persons of said restau ant that said walkway, when wet, creates a dangers condition; and (4) failing to remove rainwater from said walkway prior to Plaintiffs fall and resultant injuries. Nowhere, in the Amended Complaint, does it state that Plaintiff had a disability which would grant him protection under the Americans with Disabilities Act ("AD " ). Plaintiff did not aver in his Amended Complaint that Defendant was negligent for failing to install a handrail. See Plaintiffs Amended Complaint attached heret as Exhibit "B". Plaintiff was carrying his food while walking and there is no testimony th he would have been able to use a handrail if there was one near the sidewalk. See Exhibit `A", page 33. The Americans with Disabilities Act does not require a handrail on a walkway u less a certain threshold of slope to the walkway is proven. Finally, the Americans with Disabil ties Act, inter alia, does not require a handrail on a walkway unless a certain threshold of slop to the walkway is proven. Plaintiff has not demonstrated how the ADA would require this property to have a handrail. 15. Denied. Defendant objected that the information saw was irrelevant as it so ght information to the issue of the litigation. The American with Disabilities Act was never p ead in Plaintiffs Amended Complaint to have been violated. Plaintiff has never alleged protections as a disabled person under said Act, or that handrails were ever an issue i the case. Further, Defendant's response to Request for Admission No. 5 was not include in Plaintiff s Appendix to his Motion (or at least as to the copy provided to Defendant). 16. Denied. This paragraph states legal conclusions to which no required. 17. Denied. This paragraph states legal conclusions to which no required. 18. Denied. This paragraph states legal conclusions to which no required. 19. Denied. This paragraph states legal conclusions to which no r required. The American with Disabilities Act was never plead in Plaintiffs Complaint to have been violated. Plaintiff has never alleged protections as a disabled under said Act, or that handrails were ever an issue in the case. Plaintiff never alleged a existing shoulder injury granting him ADA protection. Even assuming the ADA apy there are substantial questions of fact as to how a handrail would have ever helped som carrying food with a bad shoulder. Certainly, a jury would have to determine if the han would have prevented the fall under the circumstances. 20. Denied. This paragraph states legal conclusions to which no required. 21. Denied. This paragraph states legal conclusions to which no required. 22. Denied. This paragraph states legal conclusions to which no required. 23. Denied. This paragraph states legal conclusions to which no required. is is is is is is is is 24. Admitted in part; denied in part. It is admitted that Defendant's position is at Plaintiff has not met his prima facia case. It is specifically denied that Plaintiffs reques for an extension two (2) months after the deadline passed is reasonable. Defendant j relied on the agreed Scheduling Order entered into in December, 2011. 25. Denied. This paragraph states legal conclusions to which no response is required. 26. Denied. This paragraph states legal conclusions to which no respons? is required. 27. Denied. This paragraph states legal conclusions to which no respons+ is required. Further, there are numerous disputes related to Plaintiffs position, namely: (1) Plaintiff never plead in his Amended Complaint that the walkway was defective because it did not have a handrail; (2) that Plaintiff was a person with standing to invoke the protectio of the ADA; and (3) that there was ever a violation of the ADA in the case. Even arguendo, that the ADA applied, Plaintiff has failed to undisputedly prove that violated the ADA in any manner. Therefore, Plaintiffs Motion for Partial Summary J should be denied. WHEREFORE, Defendant, Cheung Enterprises, respectfiilly requests this Court deny Plaintiffs Motion for Partial Summary Judgment on the issue of liability. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP J Yaninek, uire Date: July 10, 2012 A orneys for Defendant S" _PHONE BOOKHART, PLAINTIFF V CHEUNG ENTERPRISES, DEFENDANT DEPOSITION OF TAKEN BY: BEFORE: DATE: SIN THE COURT OF COMMON PLEAS ICUMBERLAND COUNTY PA I NO. 09-7816 CIVIL ACTION - LAW I I JURY TRIAL DEMANDED STEPHONE BOOKHART DEFENDANT KAREN C. ALBRIGHT, RPR NOTARY PUBLIC MAY 24, 2010, 10:00 A.M. PLACE: THOMAS, THOMAS & HAFER, LLP 305 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: PINSKEY & FOSTER BY: PETER B. FOSTER, ESQUIRE FOR - PLAINTIFF THOMAS, THOMAS & HAFER, LLP BY: CRYSTAL H. CLARK, ESQUIRE FOR - DEFENDANT Hughes, Albright, Foltz & Natale Reporting Service, Inc 3540 N. Progress Avenue • Suite 207-.A • Harrishurg, PA 171 10 717-540-0220 • Fax 717-540-0221 MAY 2,_201 0 FayE 2 Page 4 1 I here today who is furiously typing away as we spea k. She VIITNESSES N 2 is going to be taking down everything that you or I your 2 NAME EXAMINATIO 3 attorney says here today. For that reason you have t be STEPHONL BOOKHARI 4 verbal in all of your responses. No nods of the head no BY MS. CLARI( 5 shakes of the head. You can't use your hands to BY: MR. FOSTER. 0 6 gesticulate because she can't put that down for the r ord. 7 Okay? 8 A Okay. e 9 Q In addition, we have the tendency in every day 10 speak to say things like huh-uh or uh-huh. For pure ses of Io 11 the record that becomes very unclear and hard to I 12 distinguish the two, so if you'd please say yes or no r 12 13 otherwise assent or dissent, I would appreciate it. A 1 13 14 right? 14 15 A Yes. 15 16 Q You're attorney indicated earlier, sir, that 16 17 you've taken some pain medication this morning? 13 18 A (Nods affirmatively). 18 19 Q You have to answer verbally. 19 20 A I'm sorry. Yes. 20 21 Q What have you taken, sir? 21 22 A Some Vicodins. 22 23 Q How many did you take? 23 24 24 A Two. 25 Q When did you take them? 2; Page 3 Page 5 1 STIPULATION 1 A About 7:00 this morning. 2 It is hereby stipulated by and between counsel 2 Q It's about 10 o'clock as we sit here today. Is 3 for the respective parties that reading, signing, sealing, 3 there any reason that you believe that having taken t se 4 certification and filing are hereby waived; and that all 4 Vicodins today would in any way affect your ability to 5 objections except as to the form of the question are 5 testify honestly and truthfully as to the facts and 6 reserved to the time of trial. 6 circumstances surrounding this litigation? 7 7 A No. 8 STEPHONE BOOKIIART, called as a witness, being 8 Q Is there any other reason why you would not 9 duly sworn, testified as follows: 9 able to testify honestly and truthfully as we sit here 10 EXAMINATION 10 today about the facts and circumstances of this litiga ion? I I BY MS. CLARK: I I A No. 12 Q Would you please state your full name for the 12 Q If at any time you need to take a break -- we 13 record, sir? 13 shouldn't be here for too long, but if you do need to ake 14 A Stephon T. Bookhart. 14 a break for any reason, to use the bathroom, get up a d 15 Q Mr. Bookhart, my name is Crystal Clark. We were 15 stretch, to speak to your attorney, for any reason, you 're 16 introduced earlier. I'm here today representing the 16 welcome to do that; you just need to let us know. Ol ay? 17 defendant Cheung Enterprises in a case that you've brought 17 A Okay. 18 against them arising out of a slip and fall. We're here 18 Q If I ask you a question and you don't understa nd 19 today to take your deposition. Have you ever been deposed 19 my question for some reason, please let me know an I will 20 before? 20 either rephrase or restate that question for you. Okay ? 21 A (Shakes head negatively). 21 A Yes. 22 Q You have to answer verbally. 22 Q If you don't hear me, same instruction, please 23 A I'1n sorry. No. 23 ask me to repeat and I will do so. Okay? 24 Q I'll give you a couple of instructions. As you 24 A Okay. 25 can see, there's ayoung woman sitting next to both you and 25 Q Mr. Bookhart, what's your date of birth? Page 2 - Page 5 o_ 1.7 A T A T r. '71 17 c.tn__n??nl?i ?_2o2_C 1 (11 MAY 24, 2010 Page 6 1 A June 4th, 1963. 2 Q What's your current address, sir`? 3 A 25 South Fourth Street. 4 Q South Fourth? 5 A Yes. 6 Q Is that here in Harrisburg sir? , 7 A Yes. 8 Q Now long havc you lived at that location? A Probably for about four months now. 10 Q Do you reside there with anyone? 1 n Myself. 12 Q Prior to four months ago moving into the Fourth 13 Stree t address, where did you reside? 1,11 A 701 South Front -- North Front Strcct. 15 Q Again, that's here in i-Iarrisbti 10 A Yes. 17 Q With whom did you reside at that location? Ix A That's the Men's YMCA. 19 Q How long did you reside there? 20 A For about two and a half years. 2 Q Do you rerncmbcr where you lived prior to that 2 time'' 4,16 i,lll?ulli .itl?lL 12:, A That's In Stcchon. Page 7 I Q HOW' long did you reside there? 2 A Probably about five, six years. 3 Q Did you reside with anyone at that location'' d A My parents. (i What are their names? 0 A Mr. And Mrs. Bookhart. Annie Bookhart and 7 Mr. Luther Bookhart. 8 Q Do they own that residence or do they rent that Q resid ence'? I U A They rent. I I Q Are you currently rnarried, sir? 12 A No. 13 Q Have you ever been married? 14 A Dnce. 15 Q To whom'? I6 A Hope Weathcrspoon. 17 Q When did you marry Miss Weatherspoon? 18 A In '05. 19 Q Are you legally divorced? 20 A Not right now. 21 Q Legally separated? 22 A Yes. 23 Q Has there been a legal separation proceeding to 24 estab lish that or are you just physically separated? 25 A It's a legal. Page 6-Page 9 Page Did you have au attorney who assisted you witll your lc-al separation? 3 She did. She did. You did not'' j Um-hum- 1 o When did the legal separation take place': Do you have any support obligations with regard to Miss Wcatherspoon" j 1(: A 1vly two kids. I 1 Q What are your kids' names? 12 ti Terrance Stephone Bookhart and Paton liookhart. 13 Q What is Tcrrancc's a-c, j 1,I _Crranc . 1s thrcc \nd your dMI01 tcr_ su'_ ?t Xlv son. Palon- I apolr,?i f; n That's all ril;ht - < How Oid IS hC' ?(? I w0_ j ?lrc You currcrnt on your support payments to your l childr er?. s.r? Uati' ITly' UV?IL 25 A i pay my own support. MR FOSTIIR i think what he's saying is there's 2 110 c ourt Ordered support. BY MS CLARK a U I hem's no formal support order in existence at ar1V C OUTT' No. Arc there any formal custody arrangements that have hccn entered in any court of law regarding your ?? child ren'' I(1 No. I I 1>,d you complete high school, sir? 1cs- Q Where did you go to high school? 14 A Central Dauphin East High. 15 Q When did you graduate? 16 A '8l. 17 Q Did you have any particular field of study? 1 A Business. 19 Q Any post high school education? 20 A Afterwards? 21 Q Ycs. 22 A Joh Corps, Pittsburgh Job Corps. 1 23 Q How Ion- did you attend that field of study? 24 A Two years. 25 Q One other instruction, sir. Again, because the HUGHES, ALBRIGHT, F©LTZ & NATALE 717-540-0220/717-393-5101 --I- Page 10 1 court reporter is taking down everything that we say, it's 2 important that we not speak over one another. If you'd let 3 me finish my question before you begin the answer, I'll try 4 to do the same with regard to letting you finish your 5 answer before I begin my next question. Okay? 6 A All right. 7 Q You attended the Job Corps training program for 8 two years? 9 A Yes. 10 Q What was your field of study there? 11 A Business construction. 12 Q Did you receive a formal degree as a result of 13 that study? 14 A Yes. 15 Q What kind of a degree was that? 16 A A certificate, a diploma. 17 Q That was again with regard to construction? 18 A Yes. 19 Q Any other post high school education, training or 20 certifications? 21 A No. 22 Q Did that certification through Job Corps, did 23 that have any expiration date? 24 A No. 25 Q Have you ever served in the military? Page I I Page 13 1 A No. I performing the job at Diapers.com? 2 Q Are you currently employed? _ A Well. they knew I wasn't able to --1 wasn't le 3 A No. 3 to lift, and they knew I wasn't able to bend. 4 Q When was your last employment, sir? 4 Q How did they know that? 5 A My last employment was about a month and a half 5 A I told them. 6 ago, maybe two months ago. 6 Q Your restrictions with regard to lifting or 7 Q Where was that employment? 7 bendi ng, are those restrictions that have been placed n 8 A 1FC Temp through Diapers.com. 8 you by a physician, or are they self-imposed restricti ons? 9 Q What did you do at Diapers.com? 9 A Physician. 10 A I was a forklift operator. 10 Q Who imposed those restrictions on you? 11 Q When did you begin work there? I 1 A My surgeon who did my shoulder. 12 A Around April. 12 Q Who was that? 13 Q April of'2010? 13 A April Armstrong. 14 A Yeah. 14 Q IvVhen did she impose those restrictions? 15 Q How long were you employed there? 15 A Right after I had my surgery. 16 A For about two, three months. 16 Q When did you have that surgery, sir? 17 Q Well, if you began in April of 2010, and it's 17 A In June of '07, I think it was. 18 curre ntly May of 2010, that's only -- 18 Q What was that shoulder surgery related to? 19 A I'm sorry. January, February, March. It was 19 A A fall. 20 March. It was March. 20 Q Can you be more specific? 21 Q When you began employment or when you ceased 21 A On the job fall, on the job accident. 22 employment? 22 Q Where did that fall occur? 23 A When I began employment. 23 A Cameron Management on Cameron and on He . 24 Q And you worked through March and April? 24 Q So those restrictions have been in place since 25 A Yes. 25 the time of your shoulder surgery in June of 2007? MAY .14, 2010 Page 12 1 Q What was your hourly rated at Diapers.com, fir? 2 A 11.50. 3 Q Was that full time or part time employment?' 4 A Full time. 5 Q 40 hours per week? 6 A Yes. 7 Q Did you have any overtime? 8 A Some. 9 Q On average, how much overtime would you ork in a 10 week? 1 1 A I'd say maybe about two or three. 12 Q Two or three hours in overtime a week, okay. 13 Were you terminated from that position or did you esign? 14 A My job had ended. 15 Q It was a temporary position? 16 A Yes. 17 Q What were your job duties as a forklift opera or? 18 A We had what you call product pickers. I wou ld go 19 around on my forklift, and whatever they needed to be 20 picked at high heights, my job was to bring it down for 21 them. Anything that they needed for the line, and it was 22 hard for them to get, I would assist them. 23 Q Any other job duties? 24 A No, just stacking and helping them, that's it. 25 Q Did you have any physical limitations in Page 10 - age 13 TSTT/'LT=k1 AT DD7(=TJT Tin? T7 Rr NATAT F 717-540-(127.(1/717-393-5101 MAY 24, 20 10 Page 14 1 A Ycs. 2 Q Ilave they changed at any Lime since your shoulder 3 surgery in June of 2007? 4 A No. 5 Q Do you have any recollection of what the 6 spccif'ic, for instance, restriction on your lifting is, 7 like nothing over 25 pounds, nothing over 50 pounds'? R A Nothing over 20_ 9 Q Nothing over 20. What about with regard to 10 hcnding'' I I A I low far can 1 bend? 12 Q Hither -- it may he a restriction on how far you 13 can bend or how often yott can bend, do you know what the 14 restriction is? 15 A As far as what wcujit? Between I S to 20. 10 Q Did you miss any days of' employment at 17 Diapers.conl for an}, reason'' 1f A Yeah. I9 Q Tell me about, those missed clays of work? 20 A My missed days of work, a lot of them had to deal 21 with my hack, my shoulder, and I had a death in my 22 family Some of it -- a lot of it had to do with my back an(! mr" ri. Ck ')--n- the 1%vo months that vnu were etrnlnverl ?,., 25 Diapcrs.corn, how many clays work did you miss? Pa(Te 15 A I'd say maybe ahout 10, 11, 12 days 2 Q I low many days of those 10 to 12 days did you nlttis 3 related to this death in the family? 4 A Three 5 Q Ilow many were related to your shoulder? 0 A Prohahly about 9 or 10 7 Q Ilow many were rclatcd to your bacl< and neck.' h A About the same, nine or ten. 9 Q Did you present physician notes for any of the 10 absences rclatcd to your hack or your .shoulder? I I A To illy loh? 12 Q Y es. 13 A No, they didn't ask tile, they just told me when I 14 was r eady just come back. 15 Q Were they consecutive days, sir, or were they 16 periodic occasional days off work? 17 A It was about three or four that was consecutive. 18 Some of' it was periodic. 19 Q Prior to your employment at Diapers.com, where 20 did y ou work? 21 A At the Men's Y where I was living at. 22 Q What was your) ob title there? 23 A Customer service. 24 Q What were your job duties? 25 A Answer the phone, answer questions that people Page 14 - Page 17 P age l 6 1 had as far as where they needed to go to get to as far as 2 what area the pool is at, where the weight lifting room. is 3 at, the sauna, the nautilus center, help people fill out 4 papers of' certain activities that was going on that they came to the Y for. Did you have amp hcnding or lifting duties in this position as customer service representative? No. i 9 How many hours per week did you work at the Y? ?10 A Probably about 23. j 1 I So it was a part time position? 12 Yes. 1 . Q What was your hourly rate? 14 , 1 How ion- (it(] you work at thc: 6 n 1 (! say probably six, seven months. Do you remember when you last worked at the 1'r, A Probably about the middle of February. Prollmhly ! ?? the middle of February. 2u C)f 2010? ?l Yes. 22 Why did you leave your cnlployrrtent with the 13 I hcrc was some things that wasn't good for my j t ...lfh ,?t nir. T nr ?{ ant,' the t' 2: a lot to do with it. also. It really wasn't supporting me I Pa??1 anc ;,:Iv two kids I haci to support at the time 1, Do you mind if Mr. Booi<har and cii.;cuss file aulswcr to this question outsidc" ?` AJU, Oncc hc's finished with the qu::stiou_ that's (tnc 131' NI S r i .AR K > !\n? ciihcr reasons wily you felt the. Y" s wnnluct hcticr living conditions. Okay, go ahead, Pete. 10 11 voU want to take a break, Stephonc. t 1 mit Fhs'ritlz: Yeah, we can take a break. 12 :,Iii' wr; Ni:ss Yeah, I'm all right. (-Discussion acid off the record.) I 14 y,,R t t?5'rtat We have nothing further on that question. 16 XIS C*-ARK, Okay. I? BY 1A5 CLARK: 18 Q During your time at the Y, did you miss any days 14 of work") 20 A Yes. 1 Q How many days of work did you miss at the Y? -?2 A Probably about 12, 13. No, 15 days. 23 Q What was the reason for your missed work? 24 A My accident. I had, my back and my neck. And my 25 am HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-343-51.01 Page 18 1 Q An.), other reasons for the missed work? 2 A No. 3 Q Did you provide any doctors' notes to anyone at 4 the Y related to your absences? 5 A Yes. 6 Q Which doctors provided you with those absenteeism 7 notes? 8 A All of them. 9 Q All of them, meaning who, sir? 10 A My physician -- my doctor who did my surgery, and 11 Harrisburg Hospital. 12 Q I think you said Dr. Annstrong and Harrisburg 13 Hospital? 14 A Yes. 15 Q Any other physicians provide you with absence 16 notes? 17 A No. 18 Q Were those days missed consecutive or were they 19 occasional? 20 A A couple of them was consecutive. A few of them 21 was occasional. 22 Q Prior to your work at the Y, where did you work? 23 A Cameron Management. 24 Q When was the last time you worked at Cameron 25 Management? Page 19 1 A The day of my accident, August the 28th. 2 THE WFINESS: An; 1 right; Pete? 3 MR. FOSTER: I can't refresh your recollection, 4 Stephonc. 5 BY MS. CLARK: 6 Q Do you remember what year that was, sir? 7 A '06. 8 Q How long had you worked at Cameron Management at 9 the time of your accident? 10 A Nine months. 11 Q What was your job duties at Cameron Management? 12 A Labor. 13 Q What kind of things did you do as a laborer? 14 A I would lift, use jackhammer, grade, help pour 15 concrete, help form concrete, help form walls for concrete. 16 I would patch holes that's in the walls with concrete. 17 Things that needed to be lifted to put in the crane, set up 18 top as far as different deck when we get ready to pour, I 19 was responsible for setting the equipment up on different 20 decks. 21 Q Anything else? 22 A No. 23 Q ',Alas that full tune or part time? 24 A That was full time. 25 Q Was it 40 hours a week or did you have overtime MAY A., 2010 Page 20 1 opportunities? 2 A Plus. 3 Q On average, do you recall how many hours p 4 you worked? 5 A Including overtime? 6 Q Including overtime? 7 A Probably about 80 hours. 8 Q Per week or per pay period? 9 A Per week. 10 Q What was your hourly rate? 11 A 16.65. 12 Q Let me just go back, if I can, for a moment. 13 said that your hourly rate at the Men's Y was and 7 14 hour? 15 A Yes. 16 Q Was that consistent throughout your eimployn 17 with the Y? 18 A Yes. 19 Q What about during your employment with Ca 20 Management, was your hourly rate of 16.65 an hour 21 consistent throughout that nine month period? 22 A Yes. 23 Q Now, you said your last day of work was Aul 24 28th, 2006, the date of your accident, is that correct` 25 A Yes. week ou 5 an Page 21 1 Q Can you tell me a little bit more about that 2 accident, sir`? 3 A Are you asking me as far as detail how it 4 happened? 5 Q Yes, sir. 6 A My boss came to me one time -- by me being n 7 that job as long as I was, I actually had a little 8 seniority. Even though I had the seniority, I put a lot of 9 action as far as doing my own work to help out the o her 10 laborers. I was asked -- we was backfilling. I was a ked 11 to go back in back of the one wall to put styrofoam u so 12 we could start backfilling with dirt. At that time do n 13 from -- they were like about ten feet away from me, they 14 was removing a fonn from a wall.. And the carpenter 15 foreman, he looked down on me, he said, just watch, ecause 16 when they release it, it might swing my way. So whe they 17 released it, I heard it scraping the wall, and when it 18 started scraping the wall, I looked up. So I started 19 jogging backwards, and there was a piece of rebar stic 'ng 20 up out the ground this way, and I tripped over, and I ind 21 of like spun in the air, and when I came down all this was 22 messed up. 23 Q And when you say all this, the court reporter 24 can't take down your gestures, so if you could specify for 25 me? Page 18 - Page 21 i7TT!"?u-CC AT DDI!`_i7r G"T T7 R, ATATAT F imi II MAY 24, 2010 Pane ,? I A I'm solTy My shoulder- 2 Q Your left shoulder'' 3 A Yes. 4 Q Did VOL, actually fall on your left shoulder? 5 A Ycs. 6 Q Did you fall on airy other part of your body`.' 7 A Wcll, the whole -- I fell on my whole side. R Q The whole left side', A My whole Icft side, but my shoulder caught the IO majori ty of it Q Did you suf[Cr any injuries as a result of that 12 fall") 13 A Yes 14 Q What injuries is it your underslandinP you 15 sufTcre cl as it result of that fall, I G A My glenoid was out of place, my rotator cuff I? would n't stay in place hecaUSC of my gicnoid, which holds 18 the rot ator cuff m place, and that's why I had to have my 19 surgery - 20 Q Any other injuries'' 21 A I had something with my leg, but. it realty wasn't 22 that m ajor- - `.X'hctn v.ot: ;m :;omching wrtl, your lee. cat, ;?o? 25 A 1 had ?r lot of pain in it, and I had a lot of -- Pau- 24 Same place where I had my surgery from Q And that was with Dr. Arnnstrom," A Yes Boric and .(Dint. Orthopedics. 4 t, %Vlicre arc they located`) A 3 I llopc Dnvc, I-Icrshev_ You mentioned earlier that your doctor has put 1 you on lifting, and hending restrictions as a result of that 8 shoulder surgcr?-, is that correct? 9 A Yes. 10 Q Have those restrictions changed at all over time` 1 '. A. .No. 12 Q They've been consistentsinec your shoulder :; sttr?cry in 20(1?`' Ycs, 1 r) Before W(.. L1Ct to the accident that iorw,, I' io hasis of this lititzation, I Just want to as'l< you 'I 1111K, hit ahout what you did to prcparc io:- the x dcposiuon Olhcr than vour attorney -- hccausc I don'; Q want to know anything that you might have discussed with 20 your attoriu;y -- dill you meet with or speak to anyone else x'21 to prcparc for the deposition today'? 22 A No. Did you review any documents in preparation i or 25 A Did I review any? Page 2 ; n I 'c I I was heat up quilt a hit as far as black and blue 2 marks. But us far as the physical hurting of it, it MIS 3 Pd say it was limited. It was something that I could 4 my doctor told me I could get over that 5 Q When you rC(Crence your lcs;, ,n-,• VOU rclcrnnl!, to your Icft leg, sir? 7 A Ycs R Q Did your doctor provide you with any specific 9 treatment relating to your left leg injury`? 1O A No. 1 I Q And you described there was some pain in your 12 left lcg. Can you recall for me how long that pain lasted? 13 A My pain lasted -- I guess you can say for about a 14 good four or five months. 15 Q In the leg? 16 A Yes. 117 Q Now, with regard to your shoulder, you've 19 indicated that you had shoulder surgery some time in 2007, 19 corrcct`? 20 A Yes. 21 Q Any other treatment that you received as a result 22 of' the shoulder injury at that time? 23 A After my surgery I started going to -- what's 24 that word I'm looking for? Physical therapy. 25 Q Where did you go to physical therapy? A I f,, xi you tell me what documents You rcvicwcd to your deposition'? i prcpaualion lot s All my document srnaC (1a1, once of rnv surfcry of rmJ accident What slx:ciftcally are you referring to. sir'? K from day on,,: when I hurt my arm to prescnt tiuping back through the 2006 injury with 10 Camcron'' I i A "lo present. yes 12 Do you have copies of all of your medical records 13 for all Of the u-eatments relating to your injury in 2006. 114 up tnrough the present date? I5 A Yes. 116 Q Have you provided all of those records to your 17 attorney? is A Yes. 19 its. CLARK Pete, I don't think I have anything 20 relating to the 2006 injury. I know that you provided some 21 medical records, but they have been since the date of ?22 Mr. I3ookhart's fail, so I would ask that all of the medical 23 records that Mr flookhart may have be provided to Inc I24 MR, IFOS It R From the 2006 accident? 1 25 MS CLARK: Correct. Page 22 - Page 25 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 1y-& 55 - i -E,v Pa«c 26 1 BY MS. CLARK: 2 Q Mr. Bookhart, other than the medical records, did 3 you revive any other documents in preparation fo- today's 4 deposition? 5 A I reviewed everything that he gave me in front of 6 me. 7 Q Everything that your attorney gave you to look 8 at? 9 A Yes. 10 Q Is there anything else specifically that you 11 recall having looked at aside from the medical records? 12 MR. FOSTER: Stephone, you reviewed this, you 13 reviewed this, you reviewed this. 14 THE WITNESS: Yes. 15 MR. FOSTER: What are they? This is the 16 plaintiff's answer to defendant's motion to compel 17 discovery. 18 MR. FOSTER: The interrogatories, defendant's 19 interrogatories that you answered, you reviewed them, is 20 that right? 21 THE WITNESS: Yes. 22 MR. FOSTER: The response to the request for 23 production of documents, did you review your response? 24 THE WITNESS: Yes. 25 MR. FOSTER: And the Complaint, did you review -- Page 27 1 THE WITNESS: I reviewed that. You have to 2 excuse me; 1 n sor y. 3 BY MS. CLARK: 4 Q That's okay. In preparation for today's 5 depos ition did you speak with any witnesses to the 6 accident? 7 A No. 8 Q Did you visit the scene of your accident in 9 preparation for today's deposition? 10 A No. 11 Q The accident in question happened on November 6, 12 2006, is that your recollection? 13 A November? 14 MR. FOSTER: It's August, I think. 15 MS. CLARK: I might have that wrong. Sorry. 16 MR. FOSTER: August 28. 17 BY MS . CLARK: 18 Q Pin sorry, what was the date of your -- 19 A August 28. 20 Q Of what year? 21 A Last year. 22 Q 2009? 23 A I guess last year, this year. 24 Q August 2009? 25 A Yes. MAY 4, 2010 Page 28 I Q Sorry, I wrote that wrong. Do .you remembe what 2 day of the week that was, sir? 3 A If I recall, it was -- I thini: it was either on a 4 Thursday or a Friday. 5 Q Was anyone with you at the time that you arrived 6 at the McDonald's location in question? 7 A Yes. 8 Q Who was with you? 9 A Kenneth Rice. 10 Q Who is Kenneth Rice? 11 A He's a friend of mine that lived at the Y. 12 Q Why was he with you that day? 13 A I had an interview that day, and the lady who 14 interviewed me, she said, if you know anybody that s 15 looking for a job, bring them with you. So I knock on 16 Kenneth's door, I said, Kenneth, are you looking for a job. 17 He said, yeah. I said, get dressed, come on. 18 Q Where were you interviewing that day? 19 A This place called -- it was a staffing 20 agency. Jacobson Staffing. 21 Q Where were they located? 22 A They're off of Industrial Park Drive in Camp ill 23 -- Mechanicsburg. 24 Q Do you recall what position you were intcrvie wing 25 for that day? Page 29 1 A That was just -- it was a forklift job, but it 2 was a forklift slash order puller, 3 Q Do you remember what company that would ave been 4 with? 5 A Jacobson Staffing. 6 Q They provide temporary placement, is that 7 correct? 8 A Right. 9 Q Do you remember what company they were hi ing for 10 or on behalf of? 11 A I think it was Cadbury. 12 Q When was your interview? 13 A My interview was at 2:00. Are you asking for a J4 time? 15 Q Yes, sir. 16 A 2:00 that afternoon. 17 Q Do you remember who you interviewed with? 18 A I forget the lady's name. 19 Q Did you attend the interview? 20 A Yes, I did. 21 Q Were you on time for the interview? 22 A Yes, I was. 23 Q When did you arrive at the McDonald's? 24 A I arrived at the McDonald's, it was like around 25 between 1, 1:30. Page 26 - page 29 TTT T! TTT`[' ? T TV"1/-TTT T;l1T T7 P. XT A T' AT r7 -71 ?_s,tn_n?oni?i'7_2oz_S t 01 MAY 24, 2010 Page 30 1 Pazc S2 I Q Tell me in your on words what happened when you A No. 2 arrived at the McDonald''. Just take me through the Where was he waiting while you w;;rc inside? ; 3 sequence of events. A He was waiting on the side where I fell down. 4 A When the bus pulled up, I rung the hell, got ofC a ?s Wcrc you carrying the fries out in the open, or s I told Ken, I said, I put nothing in this stomach this 1 were they m a bag? 0 morning, I said, Pin hungry. So I went into McDonald's, 1 had there in my hand. 7 told them what I wanted I came out with some fries. IMJI FOSTER: What was that,' 8 opened the door. It was a mist outside, it was getting Tf-If_,. WITNESS: I had them in my hand out m the. 9 ready to pour down. I walked down their sidewalk. About a Ct open. 10 Coot or two away from tlu; asphalt, there was - 10 13Y MS CLARE.: I 1 r l if, wrrNI::SS? I low was that, Pete? An incline, ! 1 I Q You described earlier, you described it as 12 dcchnc 12 misting at the time that you exited the McDonald I3 I I V MS (MARK i3 location, is that correct. 14 He can't help you. You need to testify as to It 15 what you recall vrni recall how long it had beC17 misting prior to A It was a -- the grade was going down, but then ir, to vpur cxitim; file McDonald's location`' 17 the grade dropped down it little hit more I7 A It .started almost about after we got off the bur,. Ix Let me take you hack. You walked into the What kind of shoes wcrc. you wearing at tlic time Ill McDonald's. Was all you ordered fries? of your fall`' 20 n Yes !20 A Somc David Eden alligators, decent shoes. 21 Q At you Icft the McDonald's, were you carrying 21 (_j How long had you had those at the time" 22 anything other than the Iries you had ordered? I2 Probably for about two years. No r, Wcrc they new when you bought than`' f r ? f ???! ?,??iu a,nti?nn cm? fond while vrn,? y,PrP in Thr ' -- McDonald's location hcfore you exited? Q Do you still have those shoes? PaaC I A No . Yc.s, 1 Rio 2 Q Did Mr RICC 1-10 into the McDonald'' with you" I ts, Volu'1111 continue to wear them after tltc- tnnc n No of the <r;;;a<k:nt'' 4 Q Did the hus say and wait for you to order? N(, 1 ?iom'' The nus" I hcre any puddles or running water on the ? C, ?> yes n tiidewah? o rncarhv al the time that you exited ihc 7 A No McDonal<!'s? S Q So where wcrc you eoinlr, at ihc time dial vot; left 8 A No I 9 the McDonald'' location? 9 When we stopped your story you said that you were 10 A I was going to my joh interview. 10 oxiinw the McDonaid's on the sidewalk and the, grade was I I Q I C you had exited ihc hus, how were you going. to . I I going down "hell me what happened at that point. 12 the job interview? _ A The <nrade was going the first grade was fine, 13 A Joh is right down the street from McDonaid's. 3 it way sU=Eif?ht, but it was going down as far as like the 14 Q So you were going to walk to thcjob site. You 14 handicap ramp, it was a ramp that was going down. When 1 15 weren't carrying anything else? i 15 got like two feet, a Coot and a half away from the asphalt, 10 A No F that's when I slipped and fell. And when I slipped and 17 Q No utnhrelta, or nothing like that? 117 fell, I tried to - 18 A No 18 Q I'm sorry, did you say stepped and fell? ; 19 Q Wcrc you wearing a poncho? 19 A Sii-pried. 20 A No. 120 Q Okay, slipped. Just wanted to be clear. Tell me 21 Q Any rain coat or other rain gear? 21 how you slipped and fell. 22 A No. 22 A I was just walking normally with my fries in my 23 Q And I'm sorry, I asked you and you answered this 23 hand. And I really don't know what was -- at that time I 24 already, I apologize. Did Mr. Rice go into the McDonald's 124 don't know exactly if the sidewalk was level or whatever, 25 location with you? X25 but I just slipped. My shoes just (indicating.) Page 30 -Page 33 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page 34 1 Q Do you recall was it your left foot or your right 2 foot that slipped? 3 A It was my right. 4 Q What happened when your right foot slipped? 5 A I fell. 6 Q Well, in what position did you fall? 7 A A straight position with my arm back in the back 8 trying to break my fall. 9 Q You're putting your right arm behind you as we 10 sit here today? 11 A I put both my anns behind me. 12 Q As you're falling down, your right foot slipped 13 out from underneath you, you put both arms behind you 14 trying to break your fall. What part of your body impacted 15 with the ground, sir? 16 A My buttocks and my right leg. My right leg bent 17 up underneath me. 18 Q Any other part of your body impact the sidewalk 19 when you fell? 20 A It was my butt. My chiropractor had mentioned I 21 could have -- might have fell a little with it on my back, 22 my lower back, because my back had -- my whole back had 23 twisted. 24 Q Any other part of your body impact the sidewalk? 25 A No. 1 Q Your head? 2 A I realh wasn't too sure about that. 3 Q Your neck? 4 A No. Page 35 5 Q Your shoulders? 6 A No. 7 Q What about your left leg? 8 A That -- it impacted a little bit, but I kind of 9 like broke that just a little. My upper thigh. 10 Q You said that your right leg went behind I1 you. How did your left leg impact the ground? 12 A When I slipped this leg went up underneath me, 13 and by inc trying to catch myself it stretched out, my whole 14 leg just stretched out. 15 Q As you are sitting here you were pointing to your 16 right leg going up underneath you, and you're saying that 17 your left leg stretched out straight in front of you? is A Yes. 19 Q Is that correct? Before I continue on with that, 20 have you been back to this McDonald's since the date of 21 your fall? 22 A (Shakes head negatively.) 23 Q No. Have you spoken with anyone from the 24 McDonald's location since your fall? 25 A No. MAY 1 Q Now, after you slipped and fell, tell me what 2 happened after that. 3 A I needed my job. I went to my -- I got up. 4 left leg was in a lot of pain where it bends at. My 5 leg was also in some pain. 6 Q Let me stop you there. You said that your 1 7 leg was in pain where it bends. Do you mean at th 8 the knee, at the ankle? 9 A At the hip. 10 Q And you said that your right leg was in pain. 11 Where was your right leg in pain? 12 A Within the knee, and also where it bends up 13 the upper thigh. 14 Q At the hip and at the knees? 15 A At the hip. 16 Q Okay. 17 A I got up. I attempted to make it to my 18 interview. My interview really didn't last that long 19 I had to wait for the nearest bus, because I was goin 20 go to Holy Spirit, but Holy Spirit didn't want me o 21 there no more because when I was over.there for my 22 I kind of like gave them a little -- a little problem, s 23 wind up having to take the bus to Harrisburg Hospi 24 Q Let's back up just a little bit. So you got up 25 after the fall, you walked to your interview at the 1 staffing company, correct? 2 A Yes. 3 Q Jacobson Staffing. About how far from the 4 McDonald's was the Jacobson Staffing site? 5 A I'd say maybe about -- maybe about a block, 6 and a half. 7 Q Before you walked to your interview at Jacoh 8 Staffing, did you go in and notify anyone at the Me. 9 you had fallen? 10 A No. 11 Q Did you attempt to call 911 or otherwise seek 12 emergency treatment immediately after the fall? 13 A I went to the hospital after I had my -- after 1 14 started feeling a lot more pain at my interview. Wht 15 was at my interview, the lady, she was asking, are yc 16 right. I said no. Then I explained to her. She said, 17 you going to be able to work. I said, I don't know. 18 told her why. So my interview kind of like got cut s 19 from that. 7lien after that I came back up to McDon 20 and told them. 21 Q So after your interview and before you sought 22 medical treatment, you came back up to the McDona 23 A Yes. 24 Q Do you remember approximately what tiine it 25 that you returned to the McDonald's? 1, 2010 Page 36 hip, at So to shoulder .I Page 37 's all e nd I )rt d's 's? Page 34 - }age 37 T-UTCTTrFC AT.RRT(rTTT FOT.T7, & NATAT.F. 717-540-0220/717-393-5101 M/k Y 2,4, LV IV Page 3b' Pa?C 40 I A It was like about maybe about 3:30. I know the I you had Callen'? 2 bus had came about 4 something. _ I'M no! rcaliy the type oC person to pro back and 3 Q After your interview at Jacobson Staffing, did ? loot: at somcthinL where I had an accident at. 4 you walk from the Jacobson's location back to the 4 Do you know if Mr. 1licc actually observed your 5 McDonald's to report your injury`s = Ial t'' Was he watching you at the time you fel;" t; A Yes, and that's where I sat. n A 1 tc. was turned to the side ways, and then when 1 7 MR. FOSTER: You didn't report the injury at came outside 1 said, Ken, are you ready. That was when he 8 McDonald's, did you'.' h turned his back to start looking at Inc. He said, where do 9 THI- WITNI•;SS What, this injury here? p we have to go. I said, we have to go straight down the I O Mlt FUS 1 IiR. Yes. 10 street. I T1 I1;: w1TNI:SS l'cah. They got an incident report ' 11 Q At the time you fell, where was he looking? Was 12 and everything. 12 he looking at you or away from you? 13 BY MS_ CLARK 7 r? IIc wtis looking at me, and then he actually turned I4 Q Who did volt talk to at McDonalci's to report the 14 around and tried to catch me 15 injnrv'? (? Did he IouCh VoU at all when vOu were fallin1?1'' It, A I don't 1-emC111her the lady's thtunc, but she was ti la :`,, No 17 heavyset lady with glasses, if I recall. Shc was the store 1- Flow far away Cram him were you dt tltc tine that I8 manager. f, volt icl!' 19 Q Is she the only person that you spoke to at it) n ;vlayhc like about a foot 20 McDonald's') Arc you still in contact with Mr_ Ricc" 21 A According to the accident, yes. 2! Since I moved, I may talk with him maybe like. 22 Q With regard to the incident. 22 ahout once or twice a month. ?z ?. ves 23 L'. he still esidin at Y a4 > The other person that you spoke to at McDonaid's. '?4 what was that regarding'? l25 Q Docs he have a telephone? Pa?P 39 I A There was no other person 2 Q You said only witli regard to the incident, and 3 that suggested that you went to talk to more them one 4 person, that's what I -- 5 A I only spoke to ono person - 6 Q You spoke to her on more than one occasion? 7 A No, the only time I spoke to iici was with icuard 8 to Uhc accident. Q To report the accident', IO A Yes I I Q Did you provide a written statement to McDonald's 12 regarding this accident, or did you only speak to someone 13 ahout what happened? 14 A I spoke to the manager 15 Q Take me through that. 16 A I said, I slipped and fell going down your ramp. 17 She looked at me and said, I'm going back to get the 18 incident papers and you give me your statement about what 19 happened. I gave her the statement. Kenneth Rice gave her 20 his statement. After that I went and sat down for a minute 21 until I knew what time the bus was coming. When I seen the 22 bus coming up the street, I went and caught the bus and 23 went to the hospital. 24 Q At the time that you arrived back at the 25 IvlcDonald's, did you go back out and look at the site where Pat-, c 11 I Y'e.s, hu, i don't i.now it right now is ?t cell pliolu• or a land iinc`? _ Cell phone a I)iki anvorw al Mc;Donald'? provide volt with any dou IIl1CntatiOII. a copv o' tiiu incident report, any other docunu:niat ioil when you went hack to report your fall'' , c) have volt been provided, aside icom what may have received as a result of this litigation, have you at anv to time hccii provided any documentation by McDonald's'? No. j Do you know whether or not anyone at McDonald's 3 actualiv ohserved your fall? 14 A No 15 Q The position at .)acobson Staffing that you were 16 interviewing for, did you actually obtain any offer of 17 employment as a result of that interview? 18 A No. 19 Q Do you know why? 26, A The lady at the office when I called back over 21 there, I asked her, I said, can I get another 22 interview. She had told me, she saicl the job was full 23 Q Did she <.?ivc you any indicaton why you were not 24 selected? 25 A No Page 38 -Page 41 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Page 42 I Q Do you remember when you called her to request 2 another interview or ask about the status of the job that 3 you had interviewed for`' 4 A The day after. 5 Q Did Mr. Rice obtain that position? 6 A Yes. 7 Q Do you know whether or not Mr. Rice was the only 8 person who obtained a position? 9 A Well, basically that job, she was taking people 10 on for that -- she was taking like about 30 to 40 people on 1 I for that j ob at the time. 12 Q At the time you reported the incident to 13 McDonald's, you did not write a statement, you just gave a 14 verbal statement as to the circumstances of the fall, 15 correct? 16 A Yes. 17 Q Have you over given a written statement as to the 18 circumstances of the fall to anyone? 19 A No. 20 Q Have you ever given a verbal statement -- other 21 than discussions with your attorney, of course -- have you 22 ever given a verbal statement to anyone in connection with 23 the fall? 24 A Besides McDonald's? No. 25 Q Have you or anyone acting on your behalf taken Page 43 1 any statements, whether written or verbal, from any 2 individual with regard to this fall? 3 A No. 4 Q You haven't asked Mr. Rice to put in writing his 5 recollection of the accident? 6 A No. 7 Q You haven't asked him to provide you verbally 8 with any statements as to how the fall occurred? 9 A Hum-um. 10 Q No? 11 A No. 12 Q You said that after you reported the accident to 13 McDonald's you stayed and waited for the bus, correct? 14 A Yes. 15 Q You initially were going to go to Holy Spirit, 16 but ultunalely decided to go to Harrisburg? 17 A Yes. 18 Q You started to mention there was a reason why you 19 didn't go to holy Spirit Hospital. Can you tell me what 20 that was? 21 A When I had my accident with my shoulder I was in 22 a lot of pain. I wanted pain medicine when they took me 23 over there, and the lady, she said, I'm not allowed to give 24 you no pain medicine till you see the doctor. So at that 25 time I got frustrated, you know, and in some ways I kind of T" T/-TTnc AT -on 7/'_TJ P UnT -P7 R. AT A T AT R 717-S17-101-5 AY 4, 2010 IvL Page 44 1 like acted out. So when I actually -- after I ?-,ol sect and 2 everything; the person that was With me had stated, they 3 said, well, I overheard that they didn't want you co ning 4 back over here. I said, okay, no problem - 5 Q Who was with you`? 6 A At that time my fiancee was with me. 7 Q So you went to Harrisburg Hospital instead? 8 A Yes. 9 Q Do you remember about what time you arriv'd at 10 the hospital? 11 A I'd say maybe about 4:15, 4:30. 12 Q What were your complaints at that tune? 13 A My leg, my lower back, and my neck, and r right 14 side of my back. 15 MR. FOSTER: And the right side of what`? 16 THE WITNESS: The right side of my back. 17 BY MS. CLARK: 18 Q Your leg, your lower back, your neck, and t 19 right side of your back? 20 A Yes. 21 Q Tell me what your complaints were with reg rd to 22 your leg? 23 A I was havim a lot of -- I was having a lot of 24 sharp pain. I started getting muscle spasms in my 1 g. 25 Mainly it was spasms with sharp pains in my leg. Page 45 1 Q When you say you were having pain in your leg, 2 which leg? Right leg, left leg? 3 A My right leg was swelling a lot because of how I 4 sat on it when I fell. 5 Q Any other complaints with regard to you right 6 leg? 7 A That was it as far as that. 8 Q Did they provide you with any specific t eatment 9 regarding your leg at the hospital? 10 A Well, they didn't. She just told me if I hid 11 pain medicine, take the pain medicine, so they ave me a 12 prescription for some Vicodin. 13 Q Do you recall how much Vicodin they gave you? 14 A You mean the dosage? 15 Q Yes. 16 A 7.5s. 17 Q How many pills did they give you? 18 A 30. 19 Q Do you remember what the instructions were as to 20 how you were to take it? 21 A Take one or two or as needed. 22 Q What about with regard to your lower balk, what 23 were your complaints in the lower back at that ime? 24 A I was very stiff, I couldn't bend, I can't 25 twist. A lot of pain in the middle where my sp ne is at Page 42 - Page 45 an-m?ni7in i MA T 1-4, GU 1 U Pave 46 hurled. - ?) Can you describe Lhc pain for me'' Was it 3 shooting? What was it like? 4 A At that Limc it was shooting. The majority of 5 the times it was very stiff, and it's very hard for me to 0 twist, bend. It was very hard for me to have any motion- ? t l When you're saying the majority of times, are you rcfcrrinc, to since your treatment in the hospital on that 9 day 10 \ Ycs I I What about with regard to your neck? 12 n Still have problems I can't -- 13 Q For the moment I just want to know what your i4 complaints were at the time that you showed up at Lhc !5 hospital. Ir, A I can't turn or bend my neck. 17 () Did they provide you with any trcaU]]cnt rclatinc, 18 to your neck at Ilarrishurg Hospital" )Q A No, they had just told Inc to go scc my physician 2() (t Your family doctor, or a more specific doctor`' 21 \ n more specific doctor, like as in a 22 chiropractor. ?Z 1 1)id II1Cv CCfC? VOt! L(` a 4p^!'tflC rhycl :an No I don't think I asked this. What treatment, if Pave 47 1 any, did they provtcle you with regard to your lower hack', 2 n The hospital" 3 Q Um-hum. 4 None. 5 Finally, you said Lhat you had complaints to the 0 right side of your lower hack. What specifically do you 7 recall your complaints wcrc at IlarrIShnrg IIospttai with s regard to your rifaht side lower hack'' 9 A I had a lot Of muscle spasms in my right side - IU The pain was shooting up my right side. When I tried to I I head over I couldn't even bend fully. As a matter of fact, 12 1 couldn't even bend halfway. When I did try to hend I had 13 a lot of'-- a lot of pain. And a lot of inflammation. 14 Q Did Lhcy provide you any treatment with regard to 15 your right side lower hack? 10 The doctor who seen me told me I just need to go 17 ahead and try to get a whirlpool, sit in a whirlpool. 18 Q Do you recall if they performed any tests while 19 you were at Harrisburg Hospital? 20 n The only thing that they did, they took -- they 21 just took X-rays, that's it. 22 Q What was your understanding of what the results 23 of the X-rays were? 24 A My tailbone, I suffered a hairline fracture in 25 that. They re-took -- they re-Cook pictures of my left Pa2c 4' ! shoulder C.? Wltat's your understanding of what the X-rays i 3 showed wiLh regard to your sliouldcr`> t , A n]us;i,, strain or - it wasn'I that, hecausc S !'m trying, to t.l]ink what it was. Tltc doctor told 111C, it ?uoul<l have hcen a muscle strain or P torn lip>ament. What did you tell dic hospitai ahout 11ow you were injured? How it happened? 10 ? Y"es. 1 1 I told them 1 slipped and fell. 1 <? Did you tell them where you slipped and fell? 1 don't Chink I did Yes,. I did a what did you tell them? I 1 ioid them I slipnad and fell al MCI)Oliuld"s Anlr c%J)LInation for why tit"! rcc;mk vvotlicl 117 nuhCatc that you 1„II at a fnend's house'' i I ; Any what now'' Inc ?j I)o you hav?: any explanation as to why the n]cdlcai '20 records i rom l lamshura I10Snltal would indicate that YOU told them that you tell at a friend's house" 22 A No. v,, P td ?h, -- ] men bone that the] gav: ou v..co.:n r) ,th_. tna. tY). A ,vii`, 1h-, h iiVl('l.' V;7n ""11i <ttT; ')!I-- 25 instructions, medications, et cetera, as a result of your Pa<ue 40 anpearancc at ?farrishurg Hospital`' <<? i )Id thcv Drovidc VOL! with any walking dcviccs,,, Cnltcl lcs. What dill they tell you with regard tc? the u.sc of ?, the crutches'' j Llsc them to the hest of In%ahiltty, don't if-v, to y 1tsc, Cmc. use then] both. )id th(n" ?,ivc you any indication as to how lon( you were I() use the crutches? t No. I? ,, i low lonI, did you, in fact, use the crutches that 13 you wore provided by Harrisburg Hospital? 14 n 1 used the crutches I'd say maybe fm about a 15 month, month and a half. 16 Q When you stopped using the crutches; did you 1; conti nue to use any other assistive devices? is A My cane. 19 Q When did you start using the cane? Immediately 20 after the crutches? 21 A Yes. 22 Q Was the cane prescribed by any physician? 23 A No. It was recommended. 24 Q Who recommended it? '5 A Dr. Becker. 'age 46 - Page 49 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220!717-393-5101 MAY 74, 201 0 Page 50 Page 52 1 Q What's your understanding of what Dr. Becker's 1 Q What specifically was your complaint with r egard 2 recommncndation was with regard to the use of the cane? 2 to the lower part of your back at that tune? he said because of how my back is 3 A He had told me 3 A It was just -- it hurted badly. , 4 and how I fell, I needed the support. Because from when 4 Q What about with regard to your neck? 5 they had took -- I forget what that is. He took one and 5 A Pain, stiffness. 6 then my physical therapist tool: the same thing, they gave 6 Q Can you describe the pain in either your low °r 7 me this -- the}, put this device on my back and they put one 7 part of your back or your neck? Was it shooting, as it 8 on my neck, and when they seen how I was stepping, I 8 constant? 9 couldn't put too much pressure on my leg. So he had told 9 A Some of both. 10 me, he said, if 1 was you, I'd tr}, to go ahead and get a 10 Q If you can recall, can you describe the level o f I 1 cane or something to break the full pressure, because I 11 your pain at that time`? You know, if we were top t it on 12 didn't have, on one side, my pressure was very low. 12 a scale of 1 to 10? 13 MS. CLARK: Okay, I have to call a quick break. 13 MR. FOSTER: We're talking about the first vis it? 14 (Recess taken from 11:10 to 11:12.) 14 BY MS. CLARK: 15 BY MS. CLARK: 15 Q The first visit with Dr. Becker, correct. 16 Q Mr. Bookhart, are you ready to continue? 16 A About a 9. 17 A (Nods affirmatively.) 17 Q What kind of treatment did he provide to you at 18 Q That's a yes? 18 that initial appointment? 19 A Yes. 19 A The majority of it, he did a lot of cracking. 20 Q After you treated at the hospital, do you 20 Because he felt as though I had a lot of pinched ne es. A 21 remember the next time you sought medical treatment? 21 little of his therapeutic work, like every other day o 22 A I sought medical treatment after -- I really 22 come in and see him like about twice a week. 23 wasn't trying to get -- I really wasn't trying to go to 23 Q When you say therapeutic work, can you be ore 24 just anybody, so there was a lady who comes to the Y for 24 specific about what you mean by that? 25 Bible study, and she gave me the number of Dr. Becker, so 1 25 A Just loosening -- I should say try to loosen u Page 51 Page 53 1 called him up, and I told him who told me to call. so they 1 the areas that I was having problems with. Basicall y he 2 seen me riLTht awm,. I think it was maybe like a day or two 2 was just trying to see how severe I was. 3 afterwards. 3 Q Was he using heat, ice, electronic stimulation . 4 Q A day or two after the accident? 4 A Some of everything. 5 A After my initial visit, yeah. 5 Q When you say cracking, you mean he was ma nually 6 MR. FOSTER: If you want to stand up. 6 manipulating your back trying to move your back t change 7 THE WITNESS: Can 1? 7 your alignment? 8 MS. CLARK: Yes. If you need to take another 8 A He did that, but he didn't do it on a physical -- 9 break or wall: around for a minute or two? 9 real physically, because he knew I was -- when I w nt to go 10 THE WITNESS: Can I? 10 see hum I was very jumpy, I was nervous and tense. 1 1 MS. CLARK: Absolutely, take the opportunity to 11 Q How many times total did you treat with Dr. 12 do that. 12 Becker, to your recollection? 13 (Recess taken from 11:14 to 11:17.) 13 A Well, to when lie told me he felt as though th it 14 BY MS. CLARK: 14 problem -- I'd say about six or seven times. 15 Q Are you ready? 15 Q In total? 16 A Yes. 16 A Yes. 17 Q Do you want to stand for a little while? 17 Q Over what period of tune, if you recall? 18 A Please. 18 A I'd say within that whole month. 19 Q Not a problem. So you said that you treated with 19 Q Did he provide you with any medication as a 20 Dr. Becker a day or two after you were seen at Harrisburg 20 result of the treatment that you received from Dr. B cker? 21 Hospital, correct? 21 A Yes. 22 A Yes. 22 Q What medication did he give you? 23 Q Do you recall what your complaints were at the 23 A I don't know what it is, I don't know the n e of 24 lime that you treated with Dr. Becker? 24 it, but it was something that it was a pain -- it was i 25 A My lower part of my back and my neck. 25 medicine that was supposed to deal with the pain, b t not Page 50 -IPage 53 i7T T/-"- Q A T uv Tru'r POT T7. R, W A T A T .R 717-540-0220/717-393-5101 IVIA Y G4, GU I U Page 54 1 on a level like Vicodin does. What else was it? And it 2 was m ore for muscle spasms, also. 3 Q Were they over the counter medications or were 4 Ihcv p rescription medications? 5 A Those were the medications that h, sold at his 6 of fiCC, Q So you didn't have to go to a pharmacy to ontain theme 9 A Not from him I didn't. Itl Q Wcrc they samples, or did you have to pay for 11 them" 12 A I paid for them 1:3 Q Did he recommend any further treatment aside from 14 what h e was providing to you'' S A Ycs to Q What did he rCCOMPICnd, 10 VOUr UndCrslandlnr;'? 17 A That I go sec a therapist. 18 Q Any other treatment recommended by Dr. Becker'' 19 A No. 20 () Did he place you on any physical restrictions? 21 A Yes. 22 What physical restrictions did he place you on? A. No iifting Basically no strenuous work to where 24 i had t o hcnd or life No idling at all" page 56 A My lower back and up around my neck. Oh, when ti 2 was physically checking my neck, my last visit that I seen him, he said I jammed my neck. 4 Q You said that he recommended physical therapy, is that correct'' Yes_ Did you ti-cat with any physical therapist'? i A Yes. L) Q Who did you treat with? I O A Madden therapists. I Q When did you start treating with Madden ?i2 therapists? 3 A It look from me getting -- getting my scripts and 14 everything Lill(! for diem to send everything for to he filed. I ; 1'd sa?? nriyhi ahoui - 1'd sav ghoul lour day-; tr, ;i h I LI wCCI: Aflcr the ;ICCidcnC' ?I i 19 C! .After Dr Iicckor, Okay. Sri ei I1111c over Zl 11101101 20 aller the accident LI 2 } P; No. That's not a month 22 ?> Weli, if you treated with Dr. Becker for about a 3 month" 1, rv z? iikc ahour a weer: ahe° that 25 Q A week after the first time you saw Dr. Becker'? Page 55 11 I A Yes. 2 r i Ilow long did those restrictions last? 3 A Till present. 4 Q Did he provide you with a written note regarding 5 those physical restrictions? 6 A No. 7 Q What about with regard to tyre strenuous work? t Flow long did those restrictions last'' 9 A I'm still following them, even though f don't see to him. I 1 Q Did he provide you anything in writing with 12 regard to those restrictions'.' 13 A No. 14 Q Did Dr. Becker ever provide you with a diagnosis? 15 A The diagnosis, lie seen me -- he was saying I had 16 -- the reason why my neck was cracking the way it was, was 17 because of the pinched nerves, that I had a lot of them, 18 and 1 still do 19 Q Did lie provide you with any other diagnoses? 20 A Muscle problems. 21 Q Anything else? 22 A Some of my -- I forgot what it was that he ;aid 23 It was something else. I can't think of it right now. 24 Q With regard to the muscle problems, what did he 25 relate that diagnosis to? Where in your body? PaL,c A No, it was ahout a week after my last vtstl with him, hccausc I had to get everything straightened out as 3 far a,s tide -- what i.5 1hat thing they call when %i doctor 4 <<iv cs you another they neodcd a script from my doctor, and Ihcii thi?v had asked Dr Becker to send some records 6 over to liwin, and thc}/ wasn't going to scc me without Iris 7 records, statinlr. what was actually wrong with mc, so it toot: b ahour a week after ; seen him my last time- Flow many occasions dui you treat with Madden 10 Physical711crapy'' 1 1 A 1 seen Madden for about four times until.... 1:? r Until what? 3 A Until McDonald'"', insurance company said they 14 wasngoing to pay 1of, my insurance -- pay to see. 15 Q Over what period of time did you treat at Madden 16 Physical Therapy' .17 A You mean how many tunes? ? j 18 C1 You said it was four times. t 19 A Y' ;S. 20 Q Four times over a week, over two weeks, over a 21 month? 22 A It was four time,, basically within -- I'd say 23 within that week 24 Q What kind of treatment did Madden Physical 25 Therapy provide you? 'age 54 -Page 57 HUGHES, ALBRIGHT, F©LTZ & NATALE 717-540-0220/717-393-5101 MAY124, 2010 Page 8 1 Page 60 1 A When 1 first went to them they took like four 1 think it was one more. It was just them two. At t iat time 2 meter reads of my back, my neck, how far I could bend my 2 I really was supposed to come in and give that an go home, 3 back, how far I could bend my neck sideways and to the 3 but Bruce Rudy wanted to see me right away. So hen he 4 front. They gave me -- basically they was trying to get me 4 seen me, he looked, he said everything was intact t iat he 5 to get to a point where I could turn sideways, bend 5 could see of, because I have a plate like 13 screws in my 6 frontwards. I was to where I could tilt my neck sideways 6 shoulder. He said it's a possibility that I could ha ve 7 and to the front. As far as that was concerned, that went 7 strained it or I could have tore a ligament when I t ried to 8 for about maybe about a month until I got cut off. 8 break my fall. So he kept me on Vicodins, but he ;aid that 9 Q Did they provide you with a home exercise program 9 fall didn't make it no better, so they put me back i -- 10 that you could do on your own after your physical therapy 10 they put me back in rehab. They put me back in p ysical I 1 ended? 11 therapy out at Hershey for my ann, and everything after 12 A No, because I wasn't -- my back and my neck was 12 that has been -- it hasn't been the same since. 13 so severe that they didn't want me doing nothing. 13 Q At the time that you fell at McDonald's wem you 14 Q Did they provide you with any diagnosis, to your 14 still on pain medication, specifically Vicodin, relat ng to 15 understanding? 15 your shoulder injury? 16 A All my records, my neck and my back are severely 16 A Yes. 17 injured. 17 Q Were you on any other medications at that ti me of 18 Q Did they tell you what the naive of your injury to 18 your fall at McDonald's as a result of the shoulder 'njury? 19 the neck and the back was? 19 A I was still on my Vicodins. 20 A Basically a lot of it -- some of it had to deal 20 Q Anything else? 21 with the muscle and some had to deal with the bone. 21 A Not at that time. 22 Because I still have a lot of cracking in my back, cracking 22 Q You said that they -- that Mr. Rudy -- again, 23 in the neck. 23 he's with the Bone and Joint Center? 24 Q Did they provide you with any medications? 24 A Yes. 25 A No, but they knew that I was on medication as far 25 Q You said he sent you back to rehab for your rm. Page 59 Page 61 1 as for my shoulder. They asked me what type of medicine, 1 Where did you receive rehab for your arm? 2 what type of medication I was on. I-told them. I told I A Downstairs. 3 them I was on Vicodin. They told me if I feel comfortable 3 Q So still in the Bone and Joint Center? 4 I can continue it, to continue it. 4 A Yes. 5 Q So at that time you were still on Vicodin from 5 Q How many occasions did you rehab relating your 6 your shoulder injury as a result of the Cameron fall? 6 shoulder at the Bone and Joint Center? 7 A Yes, because at that time when I went to -- when 7 A The second time? 8 I went back out Hershey Medical, when I went back out there 8 Q Yes. 9 -- well, when I called my doctor who did my shoulder 9 M1Z. FosmE : After the McDonald's. 10 surgery, I told her what had happened. She wanted to see 10 BY Ms. CLARK: I 1 me right away. So I seen her like about a day after. 11 Q After the McDonald's fall. 12 Q A day after what? 12 A I seen him about -- I'd say I seen him about ve 13 A It was like a day after I seen Madden Physical 13 times. 14 Therapy. 14 Q Over what period of time? 15 Q Do you remember what that physician -- was that 15 A Within that month. 16 Dr. Armstrong? 16 Q Did they provide you with a home exercise pr gram 17 A No, that was with her assistant who assisted me 17 after you stopped going to rehab at the Bone and Joi nt 18 on my shoulder. 18 Center? 19 Q But that still would have been the Bone and Joint 19 A Yes. 20 Center that I mentioned earlier? 20 Q What kind of home exercise program did they put 21 A Yes. 2 1 you on? 22 Q _NVhat treatment did they provide to you? 2 2 A It was numerous ones. I had some that I could 23 A They did the same thing that they did to me when 2 3 tie a large exercise rubber band to a door or to the he ad 24 I first hurt my shoulder. They gave me CT scans, they gave 2 4 of the bed. Or I could tie the rubber band to my fool and 25 me -- it was another MR]. Then I forgot what else. I 2 5 try to work my arm. Page 58-?age61 "TTl;UT'c AT -PPIC:NT -POT.T7. Rt. NATALF 717-_540-0220/717-393-5101 ivil-, Y G'4, LU 1 U Paac 62 I Q What wore their instructions to you about how 2 often you were to be performing those home exercise'? 3 A Every other day. 4 Q Did you follow that schedule'? 5 A Yes. 6 Q For how long? 7 A Till today. s Q So you currently still do that home exercise program every other day'? It) A Yes, because f lost my range of motion, I lost my i i I ranoc of motion to the point where it's not like the way it 12 was 13 0 Prior to the fall at McDonald's, had you been on 14 the scone home exercise program? 15 A Yes I() Q Was it cvcry ollicr day you were required to do 17 those home exercises during the, tutic heforc your Gall at I h McDonald's? 19 A Yes, until 1 felt comfortable that i could move 20 uh or do more. 21 Q Did you treat with any other medical providers 22 after the McDonald's fall? A No, bccawuc ! didn' i have no -- wait a minute. I 14 seen him hkc mavhc on(, time, afterwards. but since ! really dtun't have too much or too good of medical insurance, 1 Pauc 6 I had to stop. 2 You said you had to sec him. Him who'' 3 A Mr. -- Michael -- I forgot his name. Fie was the 4 therapist. Fie was over in physical therapy at Madden. Q Do you have a family physician? 6 A Yes. Q Who is your family physician? h A Nlary.fo Szada. ?i (1) Where is he out of'! 10 A She's out of Steelton. I I Q Pin sorry, did you say Mary? I2 A Mary. 13 MR F01,TF R: It's Mary.lo, right? 14 Tfi!%AVlTNI:SS- Mary.to. 15 BY MS CLARK: 16 Q Have you seen him for any conditions related to 17 the McDonald's fall? 19 A Yes. 19 Q How often have you treated with her related to 20 the McDonald's fall? 2I A Well, it was only -- she was only limited to only 22 do so much with me, but she kept track of how my pain 23 levels were, and she just kept me on Vicodins. ?4 Q Did she provide you with any other treatment ?5 relating to the McDonald's fall? Page 64 1 n No Q Did you treat with her retarding the earlier fall j at Cameron'? 'I I n No. I went to their doctor_ We've talked about Dr. Armstrong, the Bona and 6 Joint Center, Madden Physical Therapy, and we talked about lvlarv,lo in Steelton. Since your fall at Cameron, have you s treated with any other medical providers at any time for ? 9 any reason? 10 MR. FOSTER Becker. 1 1 13Y MS. CLARK: C? Becker. I apologize. Those arc the only oncs'' No other medical providers that you can recall" No :,('t 1; talk ?i little bit about thc noel, pain that G vote talkcct ahoui, the neck complaints that you had earlier Arc you still suf('Cxing from a11y issues rclA n[, to vour neck it thi5 time" Vcry much j Tcll me what vour complaints arc currently with 2I regard to vour neck. A Stiffness, muscle spasms, my motion to turn, to __ bend. experience stiffness in your neck'? Pa(„c tip i ?t Fwcrv dav- I What about with regard to the muscle spasms'.' ' n Every day almost. 4 Q Flow oftcn'? I got about four of them yesterday. I c, Q I-Iavc they changed at all since the time of your 7 fall a t McDonald's? 1 j What about with regard to the range of motion? No. 1 it hasn't changed? 12 >> 1-lum-um. 3 CVhat about with regard to your leg? 14 n. Hoy', is my lcg feeling now? 16 A I have very little pain, 17 MR. FOSTER In the right Ieg? is MS. CLARK. That's what he referred to earlier, i 19 THE WITNESS: The right leg. 20 BY M S. CLARK: 21 Q So very little pain. Any other complaints with 22 regard to your leg? 23 ? I No. 24 Q What about with regard to the low back? A Every day. 'age 62 - Page 65 HUGHES, ALBRIGHT,. FOLTZ & NATALE 717-540-0220/717-393-5101 Page 66 1 Q Tell me what your current complaints are with 2 regard to the low back. 3 A Stiffness, the pain, muscle spasms, crackness in 4 the lo wer part of my waist. 5 Q Anything else? 6 A Just hard for me to get dressed in the mornings. 7 Q Let's talk about the stiffness. How often do you 8 experi ence the stiffness? 9 A That's every day. 10 Q Has it changed at all since the time of the fall 11 at Mc Donald's? 12 A It got worse. 13 Q What about with regard to the pain? 14 A It got different as far as pain-wise. It's ease 15 bad. 16 Q Describe the difference in pain from the time of 17 the fall to now. 18 A Some times I wake up in the middle of the night, 19 my pain ranges from between a 7 and 8. Basically when I'm 20 feeling the neck pain, I'm feeling the back pain. 21 Q How often are you experiencing the back pain? 22 A I feel that every day. 23 Q What about with regard to the muscle spasms, how 24 often do you get muscle spasms in your low back? 25 A I'd say maybe about three to four times a day. Page 67 1 Q Has it changed at all over time since the fall? 2 A No. 3 Q What about with regard to the cracking at the 4 waist? 5 A Between the waist, my neck and my back, all that 6 is still the same. It just got worse because of what 1 7 can't get. 8 Q What do you mean? 9 A My therapy, my physical therapy. I need that; I 10 can't get it. 11 Q You mentioned earlier that you have health 12 insurance. Can you tell me who your health insurer is? 13 A It's really not a big insurance 14 company. Allstate. 15 Q How did you obtain that health insurance? 16 A That was through 1FC Temp Agency. 17 Q And you've had that since the time of the fall at 18 McDonald's? 19 A No. 20 Q Or prior to that, after that? 21 A I got that afterwards. 22 Q Can you tell me when did you obtain that health 23 insurance? 24 A The time when I started with them. 25 MR. FOSTER: Stephone, temp agency got you the 1 forklift job, is that right? 2 THE WITNESS: YeS. MAY 4, 2010 I Page 68 3 BY MS. CLARI.: 4 Q So in March of this year. 5 A Yes. 6 Q That's when you obtained that health insurai 7 A Yes. Because you have to be working for th 8 order to obtain that insurance. And then once you' 9 off you have no more insurance with them. 10 Q So you had that from March through April? 11 A Yes. 12 Q So currently you have no health insurance? 13 A No. 14 Q Let me go back to your shoulders. Going all 15 way back to the Cameron fall. Okay? 16 A Okay. 17 Q You mentioned that they had given you somf 18 restrictions with regard to bending and lifting at thz 19 time. Did they tell you that they expected any futu: 20 treatment as a result of that shoulder injury in the 21 Cameron fall? 22 A Can you reexplain that a little bit? 23 Q Sure, not a problem. You mentioned they pu 24 restrictions on you regarding lifting and bending as 25 Cameron fall, correct? 1 A Yes. 2 Q Did the doctors who treated you with regard 3 your shoulder injury with regard to the Cameron fa 4 they tell you, you were going to need any further k 5 future treatment? 6 A They said a possibility. 7 Q What kind of future treatment did they tell y 8 you might have to have? 9 A Physical therapy. 10 Q Any other treatment they expected in the futi I1 A No. 12 MR. FOSTER: They operated on hiun. 13 MS. CLARK: 1 understand that. Future treatmi 14 anything other than what they actually provided to 15 BY MS. CLARK: 16 Q Was that injury covered by workers' 17 A What, my shoulder? 18 Q Yes. 19 A Yes. 20 Q Did you have to bring a claim or go to court 21 regarding that workers' compensation in 22 A Not until after--- not until after -- not until I 23 was closing my case. 24 Q Did you have an attorney who worked with 25 regard to that case? in laid the Page 69 did of with Page 66 -page 69 TTTTruFC AT RRTCvT4T FOT.T7 Sr. NATALE 717-540-0220/717-393-5101 1VIA, Y 2-4, Lv 1 u Page 70 I A Yes. 2 Q Who worked with VOL! with regard to that workers' 3 compensation case? 4 n Joseph Dixon. 5 Q Was that case actually resolved? G A Yes. 7 Q You received a settlement for that case') 8 A Yes Q As part of'that settlement what did that resolve? Ili Your medical, your wages. I I A Basically that was -- I'm trying to think how 12 they said it. It was for wages and -- yeah, and medical. 3 Willi regard to the walucs, can you recall what 14 specifically that settlement covcrcd with regard to your 15 waocs" Did it involve future wage losscs? 16 n No 11 Q As part of the workers' compensation injury, do 18 you recall if' Cameron Managernent ever asked you to go to 19 what's called an indepenclent medical examination with 20 doctor that they selected? 21 A Yes 22 Q Do you rcmcmhcr what physician they required you to sc:: for that c."amination" You mean llreir tlocinr'' Then- doctor n Dr Kancda Page 71 (> Do you rcmcmhcr where Dr Kaneda was located" 3 A On Union Deposit. 4 Q Do you remember the name of the practice group 5 Dr. Kaneda was with? 0 A Orthopedic institute of Pennsylvania Q I want to tall: to you it little hit more about the 8 physical limitations that you've identified in your 9 compiaint_ We already lalkcd ahout the lifting 10 restriction, so I won't go over that again. You indicated 1 I also you have limited range of motion in Your hack and left 12 arm Can you tell me f urthcr what you mean by that'' 13 MR FOSTER. As of today? 14 MS CLARK: This is part of his Complaint, so I'm 15 going over whatever formed the basis for his Complaint. 10 'I'lls: wrrrrt:SS: t can't fiend, I can't twist. All :7 the rotations that I'm supposed to have physically, I can't 18 do. 19 13Y MS CLJSRK 20 Q And that's related to your back and your left 21 ann'? 22 A Yes 23 Q With regard to the left arm, are these 24 limitations different from the limitations that you had 25 following your shoulder surgery? Passe i I A Very inuch different. Specifically, can You tell me how 0iey're 3 different from die. limitations and range of motion you had 4 af?lcr the Shoulder surrzery? n When 1 hac my firsi initial visit to my physical therapy- after I had my surgery, my range of motion in my arn-, was 80, 90 percent_ After they seen that. my range of 8 motion was getting good and everything, they terminated 9 me I'm not going to say terminated me. They wrote me 10 off. So after this accident. after- the accident at McDonald's, and when I tried to break the fait, my - 1 2 losi my range os. motion and 1 haven't Lot it 'rD2IC < You say' that you can walk short dlstanccs oni i4 is Liiat ?;orrcct", Yc, Was thr l! reslric loll unposed iw ?x physician o ?s 'hat self-imposed restriction" 8 n iViy physical therapist told me it mrgtu occur 19 hccausc of the lower hack, you know, was darnaoccl. Ile had 20 itist told mc, he said, just watch how far you wall: and how 21 you walls Did he provide you anything in writing that .ndicated that you were not to vrill: long distances" ".r not too sure 25 Q Did he give you any indication as to how long Pauc 1 that limitation would last? flc said it could last me for a good bit. What about with re,,ard to bending`' You said 4 vou'rc not permittcd to bend. Is that restriction 5 physician in-Iposcd or self-imposed'' c, n Botft. What physician imposed that restriction on vou'' n Madden Physical Therapy. U Do you recall when they imposed that restriction I(' on vou" 1 , Vly SCCond Clay I went to sce them. c, Did they tell you how long that restriction was to remain in place? 4 A No, but he had told me it's a process that's 15 going to take along - that's going to take a while. 16 Q Did he provide you anything in writing that 17 indicated that you were not to perform any bending 18 activities? 19 A I think so, but then I'm not too sure. I got 20 some papers from them. 2i Q You indicated that you need assistance getting 22 dressed. Is that restriction physician imposed or 23 self-imposed? 24 A Mr. Becker, he had told me-- my chiropractor, he 25 told me there might come a time where I have to have Page 70 -Page 73 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 1?1 act ?c i aabv Pa(-,c 74 1 somebody help me get dressed. As a matter of fact, Madden 2 told me the same thing because of the -- because of the -- 3 their meter reading that they put on me, and by reading so 4 low it could cause me not to be able to pull myself- to put 5 my socks on or for me to kind of bend over to pull my pants 6 up or to tie my shoes? 7 Q Did they provide you anything in writing imposing 8 those restrictions on you? 9 A They provided my -- I forgot what it was. They 10 provided -- they provided a letter -- I mean, they provided I 1 in one of the paragraphs, I think, will have problems 12 bending, will have problems dressing. And it was due 13 because of lack of ability to bend. 14 Q With regard to Mr. Rice, have you ever discussed 15 with him his observations of your fall or the condition of 16 the sidewalk? 17 A I never really came out with him and discussed 18 that, it was just he would actually talk about it some 19 time. 20 Q What did he tell you? 21 A You know, he was stating that that certain area 22 isn't safe. He said it's a hazard. What else? That's 23 about what I remember right now. 24 Q You identified in your discover}, responses a 25 gentleman by the name of Tim Tansamore who submitted a 1 report in this matter - is? Page 75 Can you tell me who Mr. Tansamore 3 A Mr. Tansamore is a friend of mine who works where 4 I lived at. He's a certified construction engineer. He's 5 certified in concretes as far as knowing measurements, and 6 concrete, knowing the difference slopes of concretes, 7 knowing different textures in concrete, that is, walls, 8 columns, sidewalks. Anything basically that had to deal 9 with building form. 10 Q How did you know Mr. Tansamore? 11 A Because the building I live in, he does 12 maintenance there, plus he's a cook. 13 Q So he does maintenance and cooking at your 14 current residence? 15 A Yes. 16 Q By whom is he employed? 17 A He's employed by -- I can't think of the 18 gentleman's name, but he's employed by the Pints Bar and 19 Grill. 20 Q Do you know if he's ever been qualified as an 21 expert in litigation previously? 22 A Do I know if he has been? 23 Q Yes. 24 A No. 25 Q Were you present with hi-in at the tune that he _ IvIAY124, 2010 Page 76 1 tool, the measurements that form the basis for his ieport? 2 A No. 3 Q) Your discovery responses indicate that you' e 4 stating a claim for lost wages in connection with tl?is 5 fall, is that correct? 6 A Yes. 7 Q Has any physician indicated to you that you are 8 completely incapable of working`? 9 A Yeah. 10 Q Who? 11 A I had -- 12 THE WITNESS: Can I tell them about the thir 13 just had, Pete? 14 MR. FOSTER: Well, the question is, has any 15 physician told you that you are incapable of worki 16 meaning any kind of work at all. If any physician 17 you've got to respond as to who that physician is a 18 they've told you. If no physician has told you that 19 incapable of working, and the question is -- I'm as; 20 the basis of the question includes any kind of work 21 whether or not any physician has told you that. 22 THE WITNESS: Madden Physical Therapy toh 23 going to have difficulty. 24 BY MS. CLARK: 25 Q What specifically did they tell you you're go I 1 to have difficulty with in terms of working? 2 A Bending, stooping, grabbing and holding 3 able to grip things. 4 Q But they haven't told you that you're inc, 5 of performing any kind of work? 6 A As far as me getting back in construction 7 told me I can't do. 8 Q Did they tell you there was anything that 9 do in terms of work? 10 A Yeah, work I don't know hour to do. 11 Q Like what? 12 A Office work. 13 Q Has anyone else ever told you that you're 14 completely incapable of working? 15 A No, not. 16 Q Have you applied for social security disal 17 benefits at any time? 18 A Yes. 19 Q When? 20 A Back in '08. 21 Q Were those benefits granted? 22 A They denied me the first time. 23 Q When was that? 24 A Let ine see. June -- July, August, Septeml: 25 think it was in July of last year when they did t1- what u're me I'm Page 77 being they can r r Page 74 - ICage 77 rT r+ Trr,r AT nnT!_` uT _ U117 T7 p,,.Tn-rn7? 71-,_?nn_nooni7i7_1gz_.?1nt I MAY 24, 2010 Page 78 I Q You said they denied you the first time. Have 2 you submitted It second application for social security 3 disability benefits? 4 A Yes. 5 Q When was that', 6 A I just had my hearing last month. 7 Q have you received a decision with regard to that s hearing`' 9 A "I'ltat I'm waiting for. to Q Did you suhmit anv medical evidence with regard I I to your application lot social security disability 12 benefits', i 3 A Lots 14 Q From whom did you suhnut medical documentation in I.S support of that application? 16 A F,vcrybody. 17 Q F,vcryhody that we've already talked about here 18 today? 19 A Yes. 20 C?t Anybody else? 21 A No 22 Q Did you submit any other documentation other than niudical docurttcntation in suppori of your application for em other 25 individual" Pagc 79 1 A No. kverybody that you just mentioned was 2 involved in my case, if not physically. 3 MR. FOS'T'ER I believe what she's asking you, 4 Slephone, is aside from medical records, physician, chiropractor, therapist, were there any witnesses, 6 non-medical people involved in your social security 7 application so far as the paper worl<. s rlilt wrrrn:Ss Are you talking ahout somebody that 9 was with me? No. That's what you're savin(Y'' 10 HY MS CI.AM- I I Q Was there any other -- anything other than 12 medical records, did you suhmit any other documentation in 13 support of'your application aside from medical records? 14 A No, everything was medical. 15 Q No other experts or anything like that, that 16 you're aware of") 17 A (Shakes head negatively). is Q Do you have an attonicy assisting with you with 19 that'? 20 A Ycs_ 21 Q Who is assisting you with that application? 22 A Katherine Nivcns. 23 MR FOSTER: Do you mind, Crystal, if I try to 24 clarify this particular line of questioning? 25 MS. CLARK: Go for it Pa(,c 80 1 MR FOSTEt: Traditionally, Stcphone, there arc rehabilitation experts that examine you and testily. Now 3 or at least suhmit records. Technically speaking, i ?i they're not doctors or therapists. Did you have It rehahilitation expert in connection with the social 0 security case? 11ii, WITNESS: prom them, no. 8 MR. FOSTER From anybody supporting your case. 9 THE WITNESS: Well, basically everything that was 10 supporting my case was what I had from my previous accident; 1 i that thev went over also, and to this accident here 12 Mlt. FOS'rca When I ask you, though, ahout a i rchahilitation exper', does that ring a hell? 14 l ii; v?crN?s?,: "ihc only rchahilitation [ think of l i is Madden Is that what you're asking nu;" to wit i?(?;'rFtlz. Not really I?? sa^, ::.r.lu< We'll ohtatn th:: SI)1 h;;neiil I Ik unlormation that's fine. You filled out an authorization j I9 for us to d() that Al;t 20 M, :W, C: 21 C, Slncc your employment at Diapers.co n, have you 1 22 taken any other steps to find alternative employment? Vol, 'r" o°YY,nr. !Irt:'•'"1n{n\,iT €,.1i r.•n,, v..? that correct? t'a??c f; 1 ?? i itlF.wtr;?r:`s 1'calt, just getting uncmploynr?n! _ Ina: a11. <1 I iavc you put in any applications anywhere for i cmplt,vmcnt'' i A Nn i 7 t? ? iavc volt signal up for any lob swrch websitcs. j 8 for instanct:, through the Unemployment Compensation Board? No. I ( i 1avu you sought any training or vocational 1 assistance with regard to potential future employment since ?)iapcr;.I:om'' 4 Q Ac barn of your Complaint you indicate that you 15 experiemcxl ti ios? oI Ilk's plcasurc: a:; e result of the to accident at McOonald's. Can you tell me, aside from thc. 17 medical and physical issues that we already talked about 18 here today, how has this accident and the injuries that you 19 allege affected you in your ability to enjoy life's 120 pleasures? j 21 A Well, one, I really haven't had a chance to hold 22 my oldest son, 1 haven't had a chance to hold my baby, my 23 youngest. 1 play drums on a professional level. I can't do 24 it no more. 1 :;an`t hunt, 1 can't fish. I don't know if I 25 want to say this or not. Page 78 -Page 81 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 h/ Y124,-201 0 Page 92 Page 84 MR. FOSTER: Go for it. 2 THE. WITNESS: My sex life is the pits. As far as 3 wanting to go and do things with my friend and her kid and 4 her grandson, I just don't -- Pin just not feeling it. My 5 attitude has been different towards things. I'm just not 6 able to do the things I'm used to, that I was able to 7 before. 8 BY MS. CLARK: 9 Q Let's go back and talk a little bit about these 10 things. You said you can't hold your children. Were you 1 1 able to do that prior to the fall at McDonald's? 12 A I held my oldest son twice. 13 Q Prior to the fall at McDonald's? 14 A Yes. 15 Q And since then you haven't at all? 16 A None. I haven't held neither of them. 17 Q You said that you can't play drums. How often 18 prior to the fail at McDonald's would you play drums? 19 A Zero. 20 Q So you weren't doing that before the fall at 21 McDonald's? 22 A Yeah, I was playing drums on a regular basis 23 every weekend. 24 Q Listen carefully to my questions. Before your 25 fall at McDonald's, how often were you playing drums? 1 times, 30 times. 2 Q Since the fall at McDonald's, hovoften ha?e you 3 hunted or fished`? 4 A None. 5 Q Prior to the fall at McDonald's, you indicat d 6 that now you're having difficulty in your sex life. Prior 7 to McDonald's, how often did you have sexual act vity? 8 A Everyday, 9 Q Since the fall at McDonald's`? 10 A Maybe twice a month. 11 Q is that a result of incapability or just a loss 12 of libido? 13 A Incapability. 14 Q You said that your attitude is different towa s 15 things. Can you describe for me what you mean b that? 16 A Most -- a lot of people feel depression, they 17 don't want to be around people. I've been shutting myself 18 down from folks. Basically between my ann and t is here, 19 just took a toll on me as far as just wanting to get 20 involved with people. Some time I don't even go - I don't 21 even go to church like I used to, because my attitud 's not 22 right. Some times people say things to me out of th 23 ordinary, I snap. I'm not going to say I snap, I just 24 watch an attitude. I'm not a -- as you could say, I' not 25 -- I am, but then I'm not a people person now. Page 83 Page 85 1 A Oh, every other weekend. Every other weekend, 1 Q Anything else regarding your loss of life's 2 and about three times during the wedk`practice. 2 pleasures? 3 MR. FOSTER: Do you want to take a break? 3 A That's about it. 4 THE WITNESS: No, I'm all right. 4 Q Other than the workers' compensation injury hat 5 BY MS. CLARK: 5 we al ready talked about today, and this litigation, h E ve 6 Q Since the fall at McDonald's, how often have you 6 you ever been involved in litigation of any other kin as a 7 played the drums? 7 plaintiff or a defendant? 8 A None. 8 A No. 9 Q Why is that? 9 Q Have you ever had any other accidents or 10 A My lower back and my arm. 10 injuri es? 11 Q You said that you can't hunt and fish. How often 11 A Besides my shoulder and this? 12 before your fall at McDonald's did you hunt and fish? 12 Q Um-hum. 13 A I hunted every -year, every day that I could get 13 A No. 14 out in the woods. I went fishing I guess you could say 14 Q have you ever been arrested or convicted of a y 15 almost on a regular basis. 15 crime? 16 Q How often, Mr. Bookhart? 16 A Back in '95, misdemeanors. 17 A Well, when the hunting season come in, I would 17 Q For what? 18 hunt during the season. 18 A Parking violations, speeding. 19 Q You had a hunting license? 19 Q Have you ever served any jail time? 20 A Yes. Had a fishing license, also. 20 A 60 days. 21 Q What kind of hunting license? 21 Q Relating to what? 22 A Deer license, big game license. 22 A Traffic violations. 23 Q You said that you went fishing. How often would 23 Q Where? 24 you go fishing? 24 A Pennsylvania. 25 A I'd say maybe out of a year, probably about 25 25 Q What county? Page 82 - I age 85 TTTTrT-;T-'C AT RRTC:T-TT Ti/lT.T7 R,. NATAT.F. 717-540-079.0/717-191-15101 MA Y G4, GU I U Page 86 1 A Dauphin. 2 Q Any other arrests or convictions? 3 A No. 4 Q In your discovery responses you've identified a 5 couple of out of pocket medical expenses I just want to 6 get a little bit more information from you on that. You 7 indicated you've experienced approximately 250 -- you paid 8 approximately 5250 to Becker Chiropractic relating to your 9 treatment, is that correct, I0 n That should have hcen Madden Physical Therapy. I I Q You've also indicated that you had $120 in 12 medical CXpcrhsCti for Madden Physical Therapy? 13 A Ycs. 14 Q Do you recall what the expenses were to Becker 15 Chiropractic? I6 A Including the medicine and that -- yeah, you're 17 about right, about two something. 18 Q What were those charges for, sir'> 19 A The visit, initial when I go in and get set up to 20 be laid down on the table to loosen my back and my neck up 21 Q So that $250 expense was for the initial visit'? A Yes 1 think you :,aid earlier the remainder of the 4 mcdrea uratmcnts wcr•c narti by McDonald's. is that ? 5 co rccl Page 87 A They wcrc supposed to, yes. 2 Q What do you mean they were supposed to" 3 A Because some of them, from what I undcrstand, 4 haven't been paid yet They've been catling Inc Q But $120 is what you've paid to Becker') 6 A Yes. 7 ( l Do you know whether or not there are any R outstandine hills that have not hcen paid to Becker" 9 A Lct'.s see, last phone call I cot irom them, I 10 think it's maybe one or two. I I Q DO you IMMAI how much that is? 12 A No, I don't 13 Q Do you have receipts for any of the monies that 14 you've paid to Becker- Chiropractic to date? 15 A Somewhere in my papers t do. l6 Q f law you provided those to your attorney.' 17 A I Prot one of them here, and I think he should is have - I9 ,\iR FOs'rF.R That's from Madden. 20 vts. CLARK I don't believe that there were bills 21 in any of the materials you provided me in discovery, Pete, 22 so if you could please consult with your client and get any 23 of' the receipts that he has for these materials and provide 24 them to me, f would appreciate it. 25 MR. FOSTER He has one bill from Madden. Par^ 88 Ms_ Ct.ARia 'T make a copy of that hefore we lcavt; here today, but anything>, else I'll need. 3 r?t? FOSTFA We'll do it. 4 HY MS CLARK Sinc . we're Roing to address that by receipts, IT just luo on. Yott indicated also that you have paid approxtn,ratc`.y S7S out of pocket for mcciications. Do you r resat` tihal'; i C' A. y' lU Q Where did you obtain those medications from? 1 ] A Rite Aide Pharmacy. i %i Can you tcli me what Rite Aide? l , Market Streel downtown ' \Vhat w<« dial n"I mean what medication'' Vrcodin tend Ncurontin, Naprotin (phonetic') h Naoroxcn 19 A Naproxcn I lorgot thC. muscle rclaxcr tlral they i20 gavC mc_ 21 yn. other out of pocket medical expenses that you 22 recall - oLlicr than to Becker, Maddcn, and for the Q Arc you covered by Medicare or Medicaid, sir? a. No. Ma'am. ?i I know 1 askecl you earlier what your date of birth was. What's your current agc, sir? % tv!? don't think 1 have anv other i !1 CItICStA011s. (Thc deposition was concluded at 1) : I ?. i Page 86 - Page 89 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 MAY ?4, 2010 Pace 90 I COUNTY OF DAUPHIN 2 SS 3 COMMONWEALTH OF PENNSYLVANIA 4 1, Karen C. Albright, a Notary Public, authorized to 5 administer oaths within and for the Coimnonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of STEPFIONE BOOKHART. b I further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 1 I Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 I further certify I am not a relative or employee or 16 attorney or counsel to any of the parties, or a relative or 17 employee of such attorney or counsel, or financially IS interested directly or indirectly in this action. 19 I further certify that the said deposition 20 constitutes a true record of the testimony given by the 21 said witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 18th day of June, 2010. 24 25 Karen C. Albright, RPR Page 90 - age 90 UTTT!`-uCc AT uuTruT PM T7 Rr NATAT.F. 717-540-0220/717-393-5101 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHONE BOOKHART, Plaintiff v. CHEYUNG ENTERPRISES, INC., Defendant NO. 09-7816 CIVIL TERM CIVIL ACTION - LAWS r JURY TRIAL DEMANDED '.. j? =rn NOTICE rv YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO. DEFENDANT AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY OR BY FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHONE BOOKHART, NO. 09-7816 CIVIL TERM Plaintiff CIVIL ACTION - LAW V. JURY TRIAL DEMANDED CHEYUNG ENTERPRISES, INC., Defendant AMENDED COMPLAINT Stephone Bookhart is an adult individual who resides at 701 North Front Street, Harrisburg, Dauphin County, Pennsylvania 17102. 2. Defendant Cheyung Enterprises, Inc. is a restaurant corporation registered to do business in the Commonwealth of Pennsylvania, with an office at 2286 West Harrisburg Pike, Middletown, PA 17057. 3. On August 28, 2009, at approximately 2:00 p.m., Plaintiff consumed and paid for a meal at Defendant's said restaurant at 4230 Trindle Road, Camp Hill, PA, and as such he was a business invitee of Defendant. 4. Prior to Plaintiff leaving said restaurant it had been raining hard for a period of time in the area of said restaurant and on said restaurant. 5. Located on the northern side of said restaurant for ingress and egress, is a fifteen foot long and two foot wide walkway made of cement mixed with pebbles. 6. Said walkway is built on a downward grade in. a westerly direction leading from a doorway of said restaurant. 7. Said walkway consisting of cement with pebbles leading in a downward grade for guests leaving said restaurant constitutes a dangerous condition at said restaurant when it becomes wet, because the surface becomes extremely slippery which causes patrons to slip and fall on said walkway. 8. When Plaintiff left said restaurant at said time and place, he slipped and fell on the wet surface of said walkway and suffered severe injuries. 9. Defendant knew or should have known that said walkway, when it is wet due to its surface, becomes extremely slippery, creating a dangerous condition Arl-dch can injure a patron of Defendant restaurant walking thereon. 10. The aforesaid occurrence and the injuries to Plaintiff resulting therefrom were caused solely by the negligence of the Defendant by: (1) failing to keep said walkway free of rainwater; (2) constructing said walkway to said business premises of pebbles and cement when it knew or should have known that the surface of said walkway, when wet, creates a dangerous condition which could cause business patrons to slip and fall on it; (3) failing to warn business patrons of said restaurant that said walkway, when wet, creates a dangerous condition; and (4) failing to remove the rainwater from said walkway prior to Plaintiff's fall and resultant injuries. 11. Defendant owed a high duty of care to Plaintiff, as a business invitee, which it violated by permitting the dangerous condition of rainwater being located on said cement and pebble walkway, when it knew or should have known that business patrons could walk on said walkway in leaving said premises and slip on the surface of said walkway and injure themselves. I-). Plaintiff's injuries from said fall consisted of: a) Cervical myopasm; b) Narrowing of the disc spaces in the cervical spine; c) Myopasm of the thoracic spine; d) Narrowing of the disc spaces in the thoracic spine; e) Neck pain; f) Back pain; g) Bruising of the sternum; h) Pain in the sternum area; i) Emotional distress; and j) Left shoulder strain. 13. Plaintiff's injuries were caused solely by the negligence of Defendant, as described. 14. Due to said negligence of Defendant causing said injuries to Plaintiff, Plaintiff has been unable to work for an extended period of time and may never be able to work. 15. Plaintiff makes claim for lost wages and future lost wages due to Defendant's negligence, as described. 16. Due to Defendant's said negligence, Plaintiff has been forced to incur medical expenses for his injuries and will incur future medical expenses for said injuries. 17. Plaintiff makes claim for medical expenses already incurred and future medical expenses to be incurred for his injuries due to Defendant's negligence. 18. Plaintiff makes claim against Defendant for compensation for past pain and suffering and future pain and suffering caused by Defendant's negligence, as aforesaid. 19. Plaintiff snakes claim against Defendant for compensation for past pain and suffering and future pain and suffering caused by Defendant's negligence, as aforesaid. 20. Plaintiff has suffered a loss of life's pleasures due to Defendant's negligence, as aforesaid, for which he seeks compensation from Defendant. WHEREFORE, for all the foregoing reasons, Plaintiff Stephone Bookhart seeks money damages against Defendant Cheyung Enterprises, Inc. in excess of the compulsory arbitration limits. December3, 2009 Peter B. Foster, Esquire Attorney for Plaintiff 114 South Street Harrisburg, PA 17101 717-234-9321 I.D. #15357 VERIFICATION The undersigned, Stephone Bookhart, hereby verifies that the facts set forth in the foregoing Complaint are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, unworn falsification to authorities. December 3 ,2009 Stephone Bookhart CERTIFICATE OF SERVICE I hereby certify that on this date, December 1, 2009, I served a copy of the foregoing Amended Complaint on the Defendant by mailing said copy by first class mail at Harrisburg, PA, to the attorney for the Defendant at the following address: Crystal Clark, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, Suite 600 Harrisburg, PA 17101 December`3 , 2009 Re?? ??- 740--?- Peter B. Foster, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Angela Kelly, for the firm of Thomas, Thomas & Hafer, LLP, hereby certify tha? I have this day served the foregoing Response to Plaintiffs Motion for Partial Summa Judgment by depositing a copy of the same in the United States Mail, postage prepaid, Harrisburg, Pennsylvania, addressed to: Alphonso Arnold, Jr., Esquire 17 North 2nd Street, 16th Floor Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP gel A. Kelly Date: July 10, 2012 1114484.1 rw rl1wT 7')T L' A C STEPHONE BOOKHART, Plaintiff V. CHEUNG ENTERPRISES, INC., Defendant IN THE COUKI Ur CUMBERLAND COUN'T'Y, PENNSYLVANIA CIVIL ACTION - LAW NO.2009 Civil 7816 JURY TRIAL DEMANDED ORDER AND NOW, this 1.3 day of , 2o12, due to its unreasonably late filing after the discovery deadline passed and prejudiced suffered by Defendant by relying on the December 2011 Scheduling order and filing its Motion for Summary Judgment, Plaintiff s Motion for an Extension of Procedural Schedule is DENIED. BY THE COURT: G JT. C) C N ? =M C= - ?r - =;0 r V. ? 2 C =W C-1 °- CX) DISTRIBUTION: Alphonso Arnold, Jr., Esquire, 17 North 2nd Street, 16d' Floor, Harrisburg a A 1710 , PA 17108-0999 John F. Yaninek, Esquire, Thomas, Thomas & Hafer, LLP, PO Box 999 eop•es J ta),Pd `7113?j? STEPHONE BOOKHART, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW CHEUNG ENTERPRISES, INC., : Defendant. : NO. 09-7816 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO PA.R.C.P. 1035.2 BEFORE GUIDO, MASLAND and PECK, JJ. ORDER OF COURT AND NOW, this 16'h day of October, 2012, upon consideration of the Defendant's Motion for Summary Judgment, the oral argument by the parties held on September 7, 2012, and for the reasons set forth in the accompanying opinion, IT IS HEREBY ORDERED AND DIRECTED that Defendant's motion for summary judgment is GRANTED. Alphonso Arnold, Jr., Esq. 17 N. Second Street, 10h Floor Harrisburg, PA 17101 Attorney for Plaintiff ?John F. Yaninek, Esq. Thomas, Thomas and Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendant a? 145 BY THE COURT, Christyle L. Peck, J. C « - ro c) AV/, STEPHONE BOOKHART, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW CHEUNG ENTERPRISES, INC., : Defendant. : NO. 09-7816 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO PA.R.C.P.1035.2 BEFORE GUIDO, MASLAND and PECK, JJ. OPINION and ORDER OF COURT Peck, J., October , 2012- PROCEDURAL HISTORY Stephone Bookhart ("Plaintiff') filed an amended complaint on December 3, 2009, which set forth a cause of action in negligence against Cheung Enterprises, Inc. ("Defendant") on behalf of Plaintiff.' On June 28, 2012, Defendant filed a motion for summary judgment.2 On June 29, 2012, Plaintiff filed a motion for partial summary judgment.3 On July 11, 2012, Defendant responded to Plaintiffs motion for partial summary judgment.4 On September 7, 2012, argument was heard from the parties regarding Defendant's motion for summary judgment.' On October 5, 2012, argument was heard from the parties regarding Plaintiff's motion for partial summary judgment.6 ' Am. Compl., Dec. 3, 2009. 2 Def's Mot. for Summ. J., June 28, 2012. 3 Pl.'s Mot. for Partial Summ. J. Pursuant to Pa.R.C.P. 1035.2, June 29, 2012. 4 Def.'s Reply to Pl.'s Mot. for Partial Summ. J., July, 11, 2012. 5 Def's Mot. for Summ. J. 6 Pl.'s Mot. for Partial Summ. J. Pursuant to Pa.R.C.P. 1035.2. Thereafter, this Court denied Plaintiffs motion for partial summary judgment.' Defendant's motion for summary judgment is now before this Court. STATEMENT OF FACTS Viewing the motion for summary judgment in the light most favorable to Plaintiff, the following facts are disclosed by the record: Defendant is a corporation registered to do business in the Commonwealth of Pennsylvania, with an office in Middletown, Pennsylvania.8 Defendant owns a McDonald's restaurant ("the Restaurant").9 On August 28, 2009, Plaintiff slipped and fell at the Restaurant.10 Plaintiff had an interview scheduled for 2:00 p.m. on that day with Jacobson Staffing in Camp Hill, Pennsylvania." At about 1:30 p.m. Plaintiff and his friend, Kenneth Rice, traveled by bus to the Restaurant, located about a block from Jacobson Staffing. 12 It began "misting" rain as Plaintiff and Mr. Rice got off the bus at the Restaurant. 13 Plaintiff went into the Restaurant and purchased an order of french fries while Mr. Rice waited outside. 14 It was still "misting" rain when Plaintiff exited the Restaurant carrying the french fries and walked down a ramp. 15 The ramp in question is comprised of a mix of cement and pebbles that are imbedded in the cement.16 The ramp is built on a downward grade in a westerly direction leading from a doorway of the ' In Re: Pl.'s Mot. For Partial Summ. J. Before Guido, Ebert, and Peck, JJ. Order of Ct. (Oct. 9, 2012); See also In Re: Pl.'s Mot. For Partial Summ. J. Before Guido, Ebert, and Peck, JJ. Am. Order of Ct. (Oct. 10, 2012). s Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶2, Dec. 28, 2009. 9 Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶3. '0 Bookhart Dep. 28-34. 11 Bookhart Dep. 28-29 (May 24, 20 1 0)(hereinafter "Bookhart Dep. _"). 12 Bookhart Dep. 28-30; 37; Am. Compl., 13; It is not disputed that Plaintiff was at the Restaurant. (See Am. Compl., ¶3, admitted in Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶3). 13 Bookhart Dep. 32. 14 Bookhart Dep. 30-32. 15 Bookhart Dep. at 30-33; It is not disputed that it rained that day. (See Am. Compl., 14, admitted in Def.'s Answer with New Matter to Pl.'s Am. Compl., 14). 16 Am. Compl., ¶5, admitted in Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶5. 2 Restaurant. 1 7 There were no puddles or running water either on or nearby the ramp on the day in question. 18 Plaintiff was wearing leather soled shoes. 19 Plaintiff slipped and fell on the portion of the ramp located about a foot and a half to two feet away from where the cement ramp turns to asphalt. 20 Plaintiff's photographs of record depict the asphalt as the end of the ramp and the beginning of the parking lot.21 Plaintiff alleged in his amended complaint that he slipped on the wet surface of the ramp. 22 At his deposition, however, Plaintiff could not explain the exact cause of his fall, stating, " I was just walking normally with my fries in my hand. And I really don't know what was -- at that time I don't know exactly if the sidewalk was level or whatever but I just slipped. My shoes just (indicating. y.23 Plaintiff's right foot slipped and he fell in a straight position with his arm back in an attempt to break his fall.24 Mr. Rice, who was waiting outside, witnessed the fall.25 After his fall, Plaintiff walked to his interview at Jacobson Staffing.26 At 3:30 p.m. Plaintiff walked back to the Restaurant and Plaintiff and Mr. Rice filed an incident report with the manager of the Restaurant regarding Plaintiff's slip and fall on the ramp.27 17 Am. Compl., ¶6, admitted in Def's Answer with New Matter to Pl.'s Am. Compl., ¶6. " Bookhart Dep. 33. 19 Pl.'s Answer To Def.'s Mot. To Compel Disc., Pl.'s Response to Def.'s Request for Production of Documents, p. 2, 118, Apr. 30, 2010. 20 Bookhart Dep. 33; It is not disputed that Plaintiff fell. (See Pl.'s Mot. for Partial Summ. J., 12, admitted in Def.'s Reply to Pl.'s Mot. for Partial Summ. J., 12). 21 Pl.'s Answer To Def's Mot. To Compel Disc., Pl.'s Resp. to Def's Request for Prod. of Docs., p. 2, ¶10 (See attached Photographs). 22 Am. Compl., 18. "Bookhart Dep. 33. 24 Bookhart Dep. 34. 25 Bookhart Dep. 40; Pl.'s Answer To Def.'s Interrogs., ¶5, Apr. 28, 2010. 26 Bookhart Dep. 36-37. 27 Bookhart Dep. 38-39. 3 At about 4:00 p.m. Plaintiff took a bus to Harrisburg Hospital.28 Plaintiff arrived at Harrisburg Hospital at about 4:30 p.m. 29 Tim Tansmore, whom Plaintiff intended to call as an expert at trial, was not previously qualified as an expert in litigation, but is a certified construction engineer. 30 Mr. Tansmore is employed by Pints Bar and Grill.31 Mr. Tansmore is Plaintiffs friend who does the maintenance and cooking at the building where Plaintiff lives. 32 In Mr. Tansmore's opinion, there was a drop of approximately a half-inch to one inch at the end of the ramp.33 Based on his assessment of the ramp's dimensions and construction, Mr. Tansmore concluded that "the ramp was not laid correctly" and "the ramp in question could cause one to fall on its surface when wet or otherwise."34 Plaintiff s alleged injuries from the fall included: cervical myopasm; narrowing of the disc spaces in the cervical spine; myopasm of the thoracic spine; narrowing of the disc spaces in the thoracic spine; neck pain; back pain; bruising of the sternum; pain in the sternum area; left shoulder strain; and emotional distress.35 Plaintiff has alleged the fall and his resultant injuries were caused solely by the negligence of the Defendant by: (1) failing to keep the ramp free of rain water; (2) constructing the ramp of pebbles and cement when it knew or should have known that the surface of the ramp, when wet, created a dangerous condition which could cause business patrons to slip and fall on it; (3) failing to warn 28 Bookhart Dep. 36; 38-39. 29 Bookhart Dep. 44. 30 Bookhart Dep. 75; Plaintiff has not provided Mr. Tansmore's curriculum vitae. (See Pl.'s Answer To Def's Mot. To Compel Disc., Pl.'s Resp. to Def.'s Request for Prod. of Docs., p. 1, 14); Pl.'s Answer To Def's Interrogs., ¶6. 31 Bookhart Dep. 75. 32 Bookhart Dep. 75. 33 Pl.'s Answer To Def.'s Mot. To Compel Disc., Findings on Conc. Ramp, p. 1, 13, (See also the dimension of 0.5"-1" provided in the figure on p.3 titled "Side View"). 34 Pl.'s Answer To Def's Mot. To Compel Disc., Findings on Conc. Ramp, p. 1-2, 14. 35 Am. Compl., ¶12. 4 business patrons that the ramp, when wet, created a dangerous condition; and (4) failing to remove the rainwater from the ramp prior to Plaintiff's fall and resultant injuries. 36 DISCUSSION L Summary akment Standard ofReview "Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality." Liles v. Balmer, 567 A.2d 691, 692 (Pa. Super. 1989). After the relevant pleadings are closed, a party may move for summary judgment in two instances: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2. "[T]he court may grant summary judgment only when the right to such a judgment is clear and free from doubt." Sebast v. Kakouras, 915 A.2d 1147, 1153 (Pa. 2007). "In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). "[W]here a motion for summary judgment has been made and properly supported, parties seeking to avoid the imposition of summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial." Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). H. Analysis There is no evidence of record that establishes a dangerous condition existed which caused Plaintiffs accident. Nor is there any evidence of record that establishes 36 Am. Compl., ¶10. 5 Defendant had actual or constructive knowledge that "misty" rain on the ramp constituted a dangerous condition. "Pennsylvania law places the burden on the plaintiff to establish the existence of negligence on the part of the defendant by proving four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages." Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 722 (Pa. Super. 1997). "Thus, establishing a breach of a legal duty is a condition precedent to a finding of negligence." Id. "The nature of the duty which is owed in any given situation hinges primarily upon the relationship between the parties at the time of the plaintiffs injury." Id. "The duty of a possessor of land towards a third person entering the land has been historically measured by the status of the entrant at the time of the accident." Treadway v. Ebert Motor Co., 436 A.2d 994, 998 (Pa. Super. 1981). "A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Estate of Swift, 690 A.2d at 722. "The landowner's duty of protection toward a business visitor is the highest duty owed to any entrant upon the land." Treadway, 436 A.2d at 998. Applying section 343 of the Restatement (Second) of Torts, entitled "Dangerous Conditions Known to or Discoverable by Possessor", Pennsylvania courts have explained that a party is subject to liability for physical harm caused to an invitee only if: he knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitees will not realize it or will fail to protect themselves against it, and the party fails to exercise reasonable care to protect the invitees against the danger. Blackman v. Fed. Reams Inv. Trust, 664 A.2d 139, 142 (Pa. Super. 1995)(citing the Restatement (Second) of Torts § 343 (1965)). In the absence of any evidence to indicate that defendant was actively negligent in creating the condition or had actual knowledge of its existence, plaintiffs case must be supported by evidence to prove that the condition 6 was unsafe and that defendant had constructive notice of it, the burden of proof of which was on the plaintiff. Harclerode v. G. C. Murphy Co., 217 A.2d 778, 779 (Pa. Super. 1966). There is no evidence of record that the ramp when wet with "misty" rain posed an unreasonable risk of harm. Plaintiff testified in his deposition that there were no puddles or running water on the ramp. Plaintiff's photographs of the ramp depict a slight, gradual incline, not a steep dangerous one. The photographs show pebbles embedded into the cement portion of the ramp, apparently an attempt made by the Defendant to provide more traction on the ramp for anyone using it. Plaintiffs expert prepared a minimal report that made two conclusive statements based on limited findings. Plaintiff's expert made no finding that any of the complained of conditions of the ramp were unsafe or, for example, violated any applicable building codes. See, g..g_, Zito v. Merit Outlet Stores, 647 A.2d 573, 574 (Pa. Super. 1994)(where an expert's opinion that a ramp posed a dangerous condition was based upon known building codes which were attached to his report). Nowhere in the record does Plaintiff evidence the required proof that the condition of the ramp was unsafe. Plaintiff's testimony further failed to indicate what exactly caused him to slip. "[T]he mere existence of negligence and the occurrence of injury are insufficient to impose liability", as "[t]here remains to be proved the vitally important link of causation". Cuthbert v. City of Philadelphia, 209 A.2d 261, 263 (Pa. 1965). The evidence merely establishes that Plaintiff had an accident at the Restaurant. "The mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence." Estate of Swift, 690 A.2d at 722. "Defendant ... [is] not an insurer, and therefore the mere happening of an accident [does] not impose liability upon it." Treadway, 436 A.2d at 997-998. Even assuming arguendo that the ramp was slippery when wet and constituted a dangerous condition, there is no evidence of record to establish that Defendant had actual or constructive knowledge that "misty" rain on the ramp constituted a dangerous condition. "Logically, the invitees case-in-chief must consist of evidence which tends to 7 prove either that the proprietor knew, or in the exercise of reasonable care ought to have known, of the existence of the harm-causing condition." Moultrey v. Great A & P Tea Co., 422 A.2d 593, 596 (Pa. Super. 1980). "For a danger to be `known,' it must `not only be known to exist, but ... also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated."' Carrender v. Fitterer, 469 A.2d 120, 123-124 (Pa. 1983). "Although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion." Id. Plaintiff has presented no evidence to establish Defendant knew or ought to have known that the ramp presented an unreasonable risk of harm to Plaintiff. Defendant had no reason to expect that Plaintiff, or any person entering or exiting its business, would not exercise caution on a ramp when it was raining outside. In short, Defendant should not have expected that its invitees would not realize the condition or fail to protect themselves against it. Plaintiff has raised no substantial issues of material fact demonstrating the existence of a dangerous condition or that Defendant knew Plaintiff would not realize the condition and fail to protect himself from it. Plaintiff therefore has failed to establish that Defendant owed Plaintiff a legal duty to inform him of the ramp, a condition precedent to any finding of negligence. Plaintiff has failed to make out a prima facie case of negligence against Defendant. Defendant's motion for summary judgment must be granted. Accordingly, the following Order shall be entered: 8 ORDER OF COURT AND NOW, this 16th day of October, 2012, upon consideration of the Defendant's motion for summary judgment and the oral argument by the parties held on September 7, 2012, IT IS HEREBY ORDERED AND DIRECTED that Defendant's motion for summary judgment is GRANTED. BY THE COURT, s Christylee L. Peck Christylee L. Peck, J. Alphonso Arnold, Jr., Esq. 17 N. Second Street, 16th Floor Harrisburg, PA 17101 Attorney for Plaintiff John F. Yaninek, Esq. Thomas, Thomas and Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendant 9 STEPHONE BOOKHART, Plaintiff v. CHEUNG ENTERPRISES, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION -LAW c c-, -~, ~ *;~ rn~ ~ ~~ ~~~., N0.09-7816 CIVIL TERM ~~ ° u . cn~ r ,z mac, te z ~' ° r -- c~ ~~ _ _ , . ~ ~+ . --~ ..~, c.~ c~ ~ -~; NOTICE OF APPEAL Notice is hereby given that STEPHONE BOOKHART, Plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the order in this matter entered October 16, 2012. The order has been entered in the docket as evidenced by the attached copy of the docket entry. A request for a transcript has been made. Date: November 15, 2012 By: Alphonso Arnold, Jr. No. 29704 For Stephone Bookhart, Plaintiff/Appellant g s~. ~~ cu s ~ ,e~u "~8 SwPer~or li+~ CERTIFICATE OF SERVICE Alphonso Arnold, Jr., Esquire, hereby certifies that a true and correct copy of the foregoing, Notice of Appeal was served upon the following persons, first class mail, postage prepaid: Hon. Christylee L. Peck 1 Courthouse Square Room 405 Carlisle, PA 17103 Date: November 15.2012 John F. Yaninek, Esq. Thomas, Thomas & Hafer P. O. Box 999 Harrisburg, PA 17108 Alpho so Arnold, Jr., Esquire No. 29704 ~1034C~211142012 Cumberland County Prothonotary's Office PYS510 Civil Case Print 2009-07816 BROOKHART STEPHONE (vs) CHEYUNG ENTERPRISES INC Reference No... Case Type.....: TORT - PREMISES LIABILITY Judgment...... 00 Judge Assigned: PECK CHRISTYLEE L Disposed Desc.: ------------ Case Comments ------------- Page 1 Filed......... 11/10/2009 Time.......... 2:28 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt l.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info BOOKHART STEPHONE PLAINTIFF FOSTER PETER B 701 NORTH FRONT STREET ARNOLD ALPHONSO JR HARRISBURG PA 17102 CHEYUNG ENTERPRISES INC DEFENDANT YANINEK JOHN F 2286 WEST HARRISBURG PIKE MIDDLETOWN PA 17057 * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 11/10/2009 COMPLAINT - CIVIL ACTION FILED BY PETER B FOSTER ESQ FOR PLFF ------------------------------------------------------------------- 11/16/2009 SHERIFF'S RETURN SERVED COMPLAINT UPON DEFT AT 4230 TRINDLE ROAD CAMP HILL 17011 SHERIFF COST: $41.94 ------------------------------------------------------------------- 12/07/2009 PRAECIPE TO CHANGE NAME OF DEFT TO CHEYUNG ENTERPRISES INC - BY PETER B FOSTER ATTY FOR PLFF ------------------------------------------------------------------- 12/07/2009 AMENDED COMPLAINT - BY PETER B FOSTER ATTY FOR PLFF ------------------------------------------------------------------- 12/28/2009 DEFENDANT'S ANSWER WITH NEW MATTER OT PLFFS AMENDED COMPLAINT - BY CRYSTAL H CLARK ATTY FOR DEFT -------------------------------------------------------------------- 1/22/2010 PLAINTIFF'S REPLY TO DEFTS NEW MATTER - BY PETER B FOSTER ATTY FOR PLFF ------------------------------------------------------------------- 3/25/2010 DEFENDANTS' MOTION TO COMPEL PLAINTIFF TO ANSWER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS - BY CRYSTAL H CLARK ESQ ------------------------------------------------------------------- 4/09/2010 ORDER OF COURT - 4/9/10 IN RE: DEFTS MOTION TO COMPEL PLFF TO ANSWER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS - IT IS ORDERED 1- A RULE IS ISSUED UPON PLFF TO SHOW CAUSE WHY THE REQUESTED RELIEF SHOULD NOT BE GRANTED 2- PLFF SHALL FILE AN ANSWER TO THE MOTION WITHIN 21 DAYS OF THE DATE OF THIS ORDER 3- THE PETITION SHALL BE DECIDED UNDER PA RCPP 206.7 4- DEPOSTIIONS SHALL BE COMPLETED WITHIN 45 DAYS OF THE DATE OF THIS ORDER 5- ARGUMENT SHALL BE HELD ON 5/10/10 AT 2:30 PM IN CR5 CUMBERLAND COUNTY COURTHOUSE 6- BRIEFS SHALL BE SUBMITTED AT LEAST 7 DAYS PRIOR TO ARGUMENT - BY ALBERT H MASLAND J - COPIES MAILED 4/9/10 4/28/2010 PLAINTIFF'S ANSWERS TO DEFTS INTERRGATORIES - BY PETER B FOSTER ATTY FOR PLFF ------------------------------------------------------------------- 4/30/2010 PLAINTIFF'S ANSWER TO DEFTS MOTION TO COMPEL DISCOVERY - BY PETER B FOSTER ATTY FOR PLFF ------------ --------------------- ------- ---------- 5/04/2010 DEFENDANT'S MOTION TO WITHDRAW PRIOR MOTION TO COMPEL PLFF TO ANSWER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS - BY CRYSTAL H CLARK ATTY FOR DEFT ------------------------------------------------------------------- 5/06/2010 ORDER - 5/6/10 IN RE: DEFTS MOTION TO WITHDRAW PRIOR MOTION TO COMPEL PLFF TO ANSWER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS - MOTION IS GRANTED - BY ALBERT H MASLAND J - COPIES MAILED 5/6/10 5/07/2010 PLAINTIFF'S ANSWERS TO DEFTS INTERROGATORIES - BY PETER B FOSTER ATTY FOR PLFF 10340211142012 Cumberland County Prothonotary's Office Page PYS510 Civil Case Print 2009-07816 BROOKHART STEPHONE (vs) CHEYUNG ENTERPRISES INC Reference No..: Filed........: 11/10/2009 Case Type.....: TORT - PREMISES LIABILITY Time.........: 2:28 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: PECK CHRISTYLEE L Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt l.: Higher Crt 2.: ------------------------------------------------------------------- 6/16/2011 WITHDRAWAL OF APPEARANCE FOR DEFENDANT - BY CRYSTAL H CLARK ESQ ------------------------------------------------------------------- 6/16/2011 ENTRY OF APPEARANCE FOR DEFENDANT - BY JOHN F YANINEK ESQ ------------------------------------------------------------------- 11/15/2011 DEFENDANTS MOTION FOR STATUS CONFERENCE - BY JOHN F YANINEK ATTY FOR DEF ------------------------------------------------------------------- 11/21/2011 ORDER - 11/18/11 - IN RE: DEFT'S MOTION - ORDERED THAT A CASE MANAGEMENT CONFERENCE WILL BE HELD ON THIS MATTER 12/20/11 @ 8:45 AM - CONFERENCE WILL TAKE PLACE BEFORE THE HONORABLE ALBERT H MASLAND IN CR 5 AND COUNSEL FOR ALL PARTIES SHALL ATTEND - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 11/21/11 ------------------------------------------------------------------- 11/21/2011 PRAECIPE TO ENTER APPEARANCE - BY ALPHONSO ARNOLD JR ATTY FOR PLFF -------------------------------------------------------------- 1/12/2012 CASE MANAGEMENT ORDER - 1/12/12 - IN RE: AGREEMENT OF THE PARTIES - ORDERED THAT THE FOLLOWING DEADLINES SHALL APPLY TO THIS CASE: DISCOVERY INCLUDING DEPOSITIONS SHALL BE COMPLETED BY 3/30/12 PLFF'S EXPERT REPORTS SHALL BE PROVIDED TO DEFT BY 4/30/12 DEFT'S EXPERT REPORTS SHALL BE PROVIDED TO PLFF BY 5/31/12 MOTIONS FOR SUMMARY JUDGMENT AND MOTIONS IN LIMINE SHALL BE FILED BY 6/29/12 - EITHER PARTY MAY LIST THIS MATTER FOR TRIAL ON OR AFTER 7/2/12 - BY THE COURT ALBERT H MASLAND J COPIES MAILED 1/12/12 ------------------------------------------------------------------- 6/28/2012 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - BY JOHN F YANINEK ATTY FOR DEFT ------------------------------------------------------------------- 6/28/2012 PRAE~'~IPE FOR LISTING CASE FOR ARGUMENT - DEFT'S MOTION FOR SUMMARY JUDGMENT - BY JOHN F YANINIK ATTY FOR DEFT ------------------------------------------------------------------- 6/29/2012 PLAINTIFF'S MOTION FOR EXTENSION OF PROCEDURAL SCHEDULE - BY ALPHONSO ARNOLD JR ATTY FOR PLFF ------------------------------------------------------------------- 6/29/2012 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO PA RCP 1035.2 - BY ALPHONSO ARNOLD JR ATTY FOR PLFF 7/03/2012 ORDER OF COURT - 7/3/12 - IN RE: PLFF'S MOTION FOR EXTENSION OF PROCEDURAL SCHEDULE - A RULE IS ISSUED ON DEFTS TO SHOW CAUSE WHY THE REQUESTED RELIEF SHOULD NOT BE GRANTED - RULE RETURNABLE 20 DAYS AFTER SVC - ***ANY ANSWER FILED SHALL BE FORWARDED BY THE PROTHONOTARY TO CHAMBERS*** - BY THE COURT ALBERT H MASLAND J 7/3/12 -------------------------------------------------------------------- 7/09/2012 DEFENDANT'S REPLY TO PLAINTIFF'S MOTION FOR EXTENSION OF PROCEDURAL SCHEDULE - BY JOHN F YANINEK ATTY FOR DEFT ------------------------------------------ ------------------------- 7/11/2012 DEFENDANT'S REPLY TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - BY JOHN F YANINEK ATTY FOR DEFT 7/13/2012 ORDER - 7/13/12 - IN RE: PLFF'S MOTION FOR AN EXTENSION OF PROCEDURAL SCHEDULE IS DENIED - BY THE COURT ALBERT H MASLAND J COPIES MAILED 7/13/12 -------------------------------------------------------------------- 9/17/2012 PRAECIPE FOR LISTING CASE FOR ARGUMENT - PLFF'S MOTION FO RPARTIAL SUMMARY JUDGMENT - BY ALPHONSO ARNOLD JR ATTY FOR PLFF -------------------------------------------------------------------- 10/10/2012 ORDER OF COURT - 10/9/12 - IN RE: PLFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - DENIED - BY THE COURT CHRISTYLEE L PECK J COPIES MAILED 10/10/12 10/10/2012 AMENDED ORDER OF COURT - 10/10/12 - IN RE: PLFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - THE PRIOR ORDER OF COURT DATED 10/9/12 IS HEREBY AMENDED TO REFLECT THE CORRECT CAPTION AS STATED ABOVE - IN ALL OTHER RESPECTS THE PRIOR ORDER OF COURT SHALL REMAIN IN FULL FORCE AND EFFECT - BY THE COURT CHRISTYLEE L PECK J 10346211142012 Cumberland County Prothonotary's Office Page 3 PYS510 Civil Case Print 2009-07816 BROOKHART STEPHONE (vs) CHEYUNG ENTERPRISES INC Reference No..: Filed........: 11/10/2009 Case Type.....: TORT - PREMISES LIABILITY Time.........: 2:28 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: PECK CHRISTYLEE L Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 Case Comments ------ Hig er Crt 1.: Higher Crt 2.: COPIES MAILED 10/10/12 ------------------------------------------------------------------- 10/16/2012 ORDER OF COURT DATED 10-16-12 IN RE DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO PA RCP 1035.2 BEFORE GUIDO MASLAND AND PECK JJ - MOTION IS **GRANTED** - BY THE COURT CHRISTYLEE L PECK J- COPIES MAILED 10-16-12 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beq~ Bal Pmts/Ad~ End Bal ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 PREACIPE ARGUME 19.75 19.75 .00 PREACIPE ARGUME 19.75 -------------- 19.75 .00 118.00 ---------- --- 118.00 --------- .00 *************************************** ************** *************************** * End of Case Information * *************************************** ***************************************** TRUE COPY FROM RECORD M Testimorry whereof, I here unto set my hand STEPHONE BOOKHART, Plaintiff, v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW CHEUNG ENTERPRISES, INC., Defendant. N0.09-7816 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO PA.R.C.P. 1035.2 BEFORE GUIDO. MASLAND and PECK, JJ. ORDER OF COURT AND NOW, this 16th day of October, 2012, upon consideration of the Defendant's Motion for Summary Judgment, the oral argument by the parties held on September 7, 2012, and for the reasons set forth in the accompanying opinion, IT IS HEREBY ORDERED AND DIRECTED that Defendant's motion for summary judgment is GRANTED. lphonso Arnold, Jr., Esq. 17 N. Second Street, 16th Floor Harrisburg, PA 17101 Attorney for Plaintiff John F. Yaninek, Esq. Thomas, Thomas and Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendant - } ,~ BY THE COURT, `-~= ' ~= ' ~~~ `'fi'L.(i=,~' .fit ~ ~ ~ _~ ~ .:- ~ -; <-, . ~~ Christyle L. Peck, J. ~= ~ -~ f.. ,~-., 5TEPHONE BOOKHART, : IN THE COURT OF COMMON PLEAS OF Plaintiff, :CUMBERLAND COUNTY, PENNSYLVANIA v. :CIVIL ACTION -LAW CHEUNG ENTERPRISES, INC., Defendant. NO. 09-7816 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO PA.R.C.P. 1035.2 BEFORE GLTIDO, MASLAND and PECK, JJ. OPINION and ORDER OF COURT Peck, J., October , 2012 - PROCEDURAL HISTORY Stephone Bookhart ("Plaintiff') filed an amended complaint on December 3, 2009, which set forth a cause of action in negligence against Cheung Enterprises, Inc. ("Defendant") on behalf of Plaintiff.' On June 28, 2012, Defendant filed a motion for summary judgment.2 On June 29, 2012, Plaintiff filed a motion for partial summary judgment.3 On July 11, 2012, Defendant responded to Plaintiff s motion for partial summary judgment.4 On September 7, 2012, argument was heard from the parties regarding Defendant's motion for summary judgment.5 On October 5, 2012, argument was heard from the parties regarding Plaintiff's motion for partial summary judgment.b 1 Am. Compl., Dec. 3, 2009. z Def.'s Mot. for Summ. J., June 28, 2012. 3 PI.'s Mot. for Partial Summ. J. Pursuant to Pa.R.C.P. 1035.2, June 29, 2012. a Def.'s Reply to Pl.'s Mot. for Partial Summ. J., July, 11, 2012. 5 Def.'s Mot. for Summ. J. b Pl.'s Mot. for Partial Summ. J. Pursuant to Pa.R.C.P. 1035.2. Thereafter, this Court denied Plaintiffls motion for partial summary judgment.' Defendant's motion for summary judgment is now before this Court. STATEMENT OF FACTS Viewing the motion for summary judgment in the light most favorable to Plaintiff, the following facts are disclosed by the record: Defendant is a corporation registered to do business in the Commonwealth of Pennsylvania, with an office in Middletown, Pennsylvania.8 Defendant owns a McDonald's restaurant ("the Restaurant").9 On August 28, 2009, Plaintiff slipped and fell at the Restaurant.10 Plaintiff had an interview scheduled for 2:00 p.m. on that day with Jacobson Staffing in Camp Hill, Pennsylvania. ~ 1 At about 1:30 p.m. Plaintiff and his friend, Kenneth Rice, traveled by bus to the Restaurant, located about a block from Jacobson Staffing.12 It began "misting" rain as Plaintiff and Mr. Rice got off the bus at the Restaurant.13 Plaintiff went into the Restaurant and purchased an order of french fries while Mr. Rice waited outside.14 It was still "misting" rain when Plaintiff exited the Restaurant carrying the french fries and walked down a ramp.~s The ramp in question is comprised of a mix of cement and pebbles that are imbedded in the cement.16 The ramp is built on a downward grade in a westerly direction leading from a doorway of the In Re: Pl.'s Mot. For Partial Summ. J. Before Guido, Ebert, and Peck, JJ. Order of Ct. (Oct. 9, 2012); See also In Re: Pl.'s Mot. For Partial Summ. J. Before Guido, Ebert, and Peck, JJ. Am. Order of Ct. (Oct. 10, 2012). 8 Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶2, Dec. 28, 2009. 9 Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶3. io Bookhart Dep. 28-34. " Bookhart Dep. 28-29 (May 24, 2010)(hereinafter "Bookhart Dep: _"). 'z Bookhart Dep. 28-30; 37; Am. Compl., ¶3; It is not disputed that Plaintiff was at the Restaurant. (See Am. Compl., ¶3, admitted in Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶3). 13 Bookhart Dep. 32. 14 Bookhart Dep. 30-32. 15 Bookhart Dep, at 30-33; It is not disputed that it rained that day. (See Am. Compl., ¶4, admitted in Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶4). 16 Am. Compl., ¶5, admitted in De£'s Answer with New Matter to Pl.'s Am. Compl., ¶5. 2 Restaurant.17 There were no puddles or running water either on or nearby the ramp on the day in question.lg Plaintiff was wearing leather soled shoes.19 Plaintiff slipped and fell on the portion of the ramp located about a foot and a half to two feet away from where the cement ramp turns to asphalt.20 Plaintiff s photographs of record depict the asphalt as the end of the ramp and the -beginning of the parking lot.21 Plaintiff alleged in his amended complaint that he slipped on the wet surface of the ramp.22 At his deposition, however, Plaintiff could not explain the exact cause of his fall, stating, "I was just walking normally with my fries in my hand. And I really don't know what was -- at that time I don't know exactly if the sidewalk was level or whatever but I just slipped. My shoes just (indicating.)".23 Plaintiff s right foot slipped and he fell in a straight position with his arm back in an attempt to break his fa11.24 Mr. Rice, who was waiting outside, witnessed the fall.25 After his fall, Plaintiff walked to his interview at Jacobson Staffmg.26 At 3:30 p.m. Plaintiff walked back to the Restaurant and Plaintiff and Mr. Rice filed an incident report with the manager of the Restaurant regarding Plaintiffs slip and fall on the ramp.27 " Am. Compl., ¶6, admitted in Def.'s Answer with New Matter to Pl.'s Am. Compl., ¶6. '$ Bookhart Dep. 33. 19 Pl.'s Answer To De£'s Mot. To Compel Disc., Pl.'s Response to Def.'s Request for Production of Documents, p. 2, ¶ 18, Apr. 30, 2010. 20 Bookhart Dep. 33; It is not disputed that Plaintiff fell. (See Pl.'s Mot, for Partial Summ. J., ~(2, admitted in Def.'s Reply to Pl.'s Mot. for Partial Summ. J., ¶2). 2' Pl.'s Answer To Def.'s Mot. To Compel Disc., Pl.'s Resp. to De£'s Request for Prod, of Docs., p. 2, ¶10 (See attached Photographs). 22 Am. Compl., ¶8. zs Bookhart Dep. 33. za Bookhart Dep. 34. zs Bookhart Dep. 40; Pl.'s Answer To De£'s Interrogs., ¶5, Apr. 28, 2010. z6 Bookhart Dep. 36-37. 27 Bookhart Dep. 38-39. 3 At about 4:00 p.m. Plaintiff took a bus to Harrisburg Hospital.28 Plaintiff arrived at Harrisburg Hospital at about 4:30 p.m,z9 Tim Tansmore, whom Plaintiff intended to call as an expert at trial, was not previously qualified as an expert in litigation, but is a certified construction engineer.3o Mr. Tansmore is employed by Pints Bar and Grill.31 Mr. Tansmore is Plaintiffs friend who does the maintenance and cooking at the building where Plaintiff lives.32 In Mr. Tansmore's opinion, there was a drop of approximately ahalf--inch to one inch at the end of the ramp.33 Based on his assessment of the ramp's dimensions and construction, Mr. Tansmore concluded that "the ramp was not laid correctly" and "the ramp in question could cause one to fall on its surface when wet or otherwise." 34 Plaintiff ~ atleuerl injuries from the fall included: cervical myopasm; narrowing of the disc spaces in the cervical spine; myopasm of the thoracic spine; narrowing of the disc spaces in the thoracic spine; neck pain; back pain; bruising of the sternum; pain in the sternum area; left shoulder strain; and emotional distress.35 Plaintiff has alleged the fall and his resultant injuries were caused solely by the negligence of the Defendant by: (1) failing to keep the ramp free of rain water; (2) constructing the ramp of pebbles and cement when it knew or should have known that the surface of the ramp, when wet, created a dangerous condition which could cause business patrons to slip and fall on it; (3) failing to warn za Bookhart Dep. 36; 38-39. z9 Bookhart Dep. 44. so Bookhart Dep. 75; Plaintiff has not provided Mr. Tansmore's curriculum vitae. (See Pl.'s Answer To De£'s Mot. To Compel Disc., Pl.'s Resp. to Def.'s Request for Prod. of Docs., p. 1, ¶4); Pl.'s Answer To Def.'s Interrogs., ¶6. 3i Bookhart Dep. 75. sz Bookhart Dep. 75. ss Pl.'s Answer To Def.'s Mot. To Compel Disc., Findings on Conc. Ramp, p. 1, ¶3, (See also the dimension of 0.5"-1" provided in the figure on p.3 titled "Side View"). sa Pl.'s Answer To Def.'s Mot. To Compel Disc., Findings on Conc. Ramp, p. 1-2, ¶4. 3s Am. Cornpl., ¶12, 4 business patrons that the ramp, when wet, created a dangerous condition; and (4) failing to remove the rainwater from the ramp prior to Plaintiff's fall and resultant injuries. 36 DISCUSSION I. Summary Judgment Standard of Review "Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality." Liles v. Balmer, 567 A.2d 691, 692 (Pa. Super. 1989). After the relevant pleadings are closed, a party may move for summary judgment in two instances: (1 }whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2. "[T]he court may grant summary judgment only when the right to such a judgment is clear and free from doubt." Sebast v. Kakouras, 915 A.2d 1147, 1153 (Pa. 2007). "In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). "[W]here a motion for summary judgment has been made and properly supported, parties seeking to avoid the imposition of summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial." Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). II. Analysis There is no evidence of record that establishes a dangerous condition existed which caused Plaintiff's accident. Nor is there any evidence of record that establishes s6 Am. Compl., ¶10. 5 Defendant had actual or constructive knowledge that "misty" rain on the ramp constituted a dangerous condition. "Pennsylvania law places the burden on the plaintiff to establish the existence of negligence on the part of the defendant by proving four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages." Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 722 (Pa. Super. 1997). "Thus, establishing a breach of a legal duty is a condition precedent to a finding of negligence." Id. "The nature of the duty which is owed in any given situation hinges primarily upon the relationship between the parties at the time of the plaintiffs injury." Id. "The duty of a possessor of land towards a third person entering the land has been historically measured by the status of the entrant at the time of the accident." Treadway v. Ebert Motor Co., 436 A.2d 994, 998 (Pa. Super. 1981). "A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Estate of Swift, 690 A.2d at 722. "The landowner's duty of protection toward a business visitor is the highest duty owed to any entrant upon the land." Treadway, 436 A.2d at 998. Applying section 343 of the Restatement (Second) of Torts, entitled "Dangerous Conditions Known to or Discoverable by Possessor", Pennsylvania courts have explained that a party is subject to liability for physical harm caused to an invitee only if: he knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitees will not realize it or will fail to protect themselves against it, and the party fails to exercise reasonable care to protect the invitees against the danger. Blackman v. Fed. Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. 1995)(citing the Restatement (Second) of Torts § 343 (1965)). In the absence of any evidence to indicate that defendant was actively negligent in creating the condition or had actual knowledge of its existence, plaintiffs case must be supported by evidence to prove that the condition 6 was unsafe and that defendant had constructive notice of it, the burden of proof of which was.on the plaintiff. Harclerode v. G. C. Murphy Co., 217 A.2d 778, 779 (Pa. Super. 1966}. There is no evidence of record that the ramp when wet with "misty" rain posed an unreasonable risk of harm. Plaintiff testified in his deposition that there were no puddles or running water on the ramp. Plaintiff's photographs of the ramp depict a slight, gradual incline, not a steep dangerous one. The photographs show pebbles embedded into the cement portion of the ramp, apparently an attempt made by the Defendant to provide more traction on the ramp for. anyone using it. Plaintiff's expert prepared a minimal report that made two conclusive statements based on limited findings. Plaintiff s expert made no finding that any of the complained of conditions of the ramp were unsafe or, for example, violated any applicable building codes. See, ems., Zito v. Merit Outlet Stores, 647 A.2d 573, 574 (Pa. Super. 1994)(where an expert's opinion that a ramp posed a dangerous condition was based upon known building codes which were attached to his report). Nowhere in the record does Plaintiff evidence the required proof that the condition of the ramp was unsafe. Plaintiff's testimony further failed to indicate what exactly caused him to slip. "[T]he mere existence of negligence and the occurrence of injury are insufficient to impose liability", as "[t]here remains to be proved the vitally important link of causation". Cuthbert v. City. of Philadelphia, 209 A.2d 261, 263 (Pa. 1965). The evidence merely establishes that Plaintiff had an accident at the Restaurant. "The mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence." Estate of Swift, 690 A.2d at 722. "Defendant ... [is] not an insurer, and therefore the mere happening of an accident [does] not impose liability upon it." Treadway, 436 A.2d at 997-998. Even assuming arguendo that the ramp was slippery when wet and constituted a dangerous condition, there is no evidence of record to establish that Defendant had actual or constructive knowledge that "misty" rain on the ramp constituted a dangerous condition. "Logically, the invitees case-in-chief must consist of evidence which tends to 7 prove either that the proprietor knew, or in the exercise of reasonable care ought to have known, of the existence of the harm-causing condition." MoultreY v. Great A & P Tea Co., 422 A.2d 593, 596 (Pa. Super. 1980). "For a danger to be `known,' it must `not only be known to exist, but ... also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated. "' Carrender v. Fitterer, 469 A.2d 120, 123-124 (Pa. 1983). "Although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion." Id. Plaintiff has presented no evidence to establish Defendant knew or ought to have known that the ramp presented an unreasonable risk of harm to Plaintiff. Defendant had no reason to expect that Plaintiff, or any person entering or exiting its business, would not exercise caution on a ramp when it was raining outside. In short, Defendant should not have expected that its invitees would not realize the condition or fail to protect themselves against it. Plaintiff has raised no substantial issues of material fact demonstrating the existence of a dangerous condition or that Defendant knew Plaintiff would not realize the condition and fail to protect himself from it. Plaintiff therefore has failed to establish that Defendant owed Plaintiff a legal duty to inform him of the ramp, a condition precedent to any finding of negligence. Plaintiff has failed to make out a prima facie case of negligence against Defendant. Defendant's motion for summary judgment must be granted. Accordingly, the following Order shall be entered: 8 f ORDER OF COURT AND NOW, this 16th day of October, 2012, upon consideration of the Defendant's motion for summary judgment and the oral argument by the parties held on September 7, 2012, IT IS HEREBY ORDERED AND DIRECTED that Defendant's motion for summary judgment is GRANTED. BY THE COURT, s Christylee L. Peck Christylee L. Peck, J. Alphonso Arnold, Jr., Esq. 17 N. Second Street, 16th Floor Harrisburg, PA 17101 Attorney for Plaintiff Sohn F. Yaninek, Esq. Thomas, Thomas and Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendant 9 Karen Reid Bramblett, Esq. Prothonotary Mary A. Graybill, Esq. lleputy Prothonotary Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Stephone Bookhart Appellant v. Cheung Enterprises 2008 MDA 2012 Trial Court Docket No: Dear David D. Buell: Middle District November 15, 2012 09-7816 Civil Term Pennsylvania Judicial Center N.O. Box 62435 601 Commonv`~ealth .Avenue, Suite 1600 Harrisburg, PA 17106-2435 ~~1 ~ ~~z-1 z9a www. superior. court, state.pa. us Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Mary A. Graybill, Esq. Deputy Prothonotary /alv Enclosure 10:49 A.M. •• . Appeal Docket Sheet Docket Number: 2008 MDA 2012 Page 1 of 2 November 15, 2012 Superior Court of Pennsylvania Secure CA~P'1F1oN Stephone Bookhart Appellant v. Cheung Enterprises CASE INI=ORM;RTI4N Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: November 15, 2012 Awaiting Original Record Journal Number: Case Category: Civil Case Type(s): Civil Action Law CC@#,1®Afi~~CASES RELATED CASES S~F4i~ULE~ Etll?NT Next Event Type: Receive Docketing Statement Next Event Due Date: November 29, 2012 Next Event Type: Original Record Received Next Event Due Date: January 14, 2013 COUNSEL INFORfii~-Tlt)N Appellant Bookhart, Stephone Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Arnold, Alphonso, Jr. Bar No: 029704 Address: 17 N. Second Street, 16th Floor Harrisburg, PA 17101 Phone No: (717) 260-3060 Fax No: Receive Mail: Yes Receive EMail: Yes EMail Address: prinumpecomcast.net Appellee Cheung Enterprises Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Yaninek, John F. Bar No: 055741 ' Law Firm: Mette, Evans & Woodside Address: Thomas Thomas & Hafer Llp 305 N Front St PO Box 999 Harrisburg, PA 17108--0999 Phone No: (717) 441-3952 Fax No: Receive Mail: Yes Receive EMail: Yes EMail Address: jyaninek@tthlaw.com 10:49 A.M. . Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 2008 MDA 2012 Page 2 of 2 .S@CUI'@ November 15, 2012 FEE INfQRMATION Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 11/14/2012 Notice of Appeal 73.50 11/15/2012 2012-SPR-M-001060 73.50 AGEi-ICY/T~t1AL COURT {NFORIN{~4TtON Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: October 16, 2012 Judicial District: 09 Documents Received: November 15, 2012 Notice of Appeal Filed: November 14, 2012 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):09-7816 Civil Term Lower Ct Judge(s): Peck, Christylee L. Judge 4R1lGINAL RECORp CONTENT Original Record Item Filed Date Content Description Date of Remand of Record: BRIEI~tNG`3CHEDUILE ,None None DOCKET ENTRY , Filed Date Docket Entry /Representing Participant Type Filed By November 15, 2012 Notice of Appeal Docketed Appellant Bookhart, Stephone November 15, 2012 Docketing Statement Exited (Civil) Middle District Filing Office 6upreme Court of peuuop1bania Irene M.Bizzoso,Esq. 601 Commonwealth Avenue,Suite 4500 Prothonotary Middle District P.O.Box 62575 Elizabeth E.Zisk Harrisburg,PA 17106 Chief Clerk (717)787-6181 October 28, 2013 www.Pacourts.us RE: Stephone Bookhart, Petitioner V. Cheung Enterprises, Inc., Respondent No. 822 MAL 2013 Trial Court Docket No: 09-7816 Civil Term Superior Docket Number: 2008 MDA 2012 Appeal Docket No: , Date Petition for Allowance of Appeal Filed: October 25, 2013 R Disposition: <((�t Disposition Date: =° Reargument/Reconsideration Disposition: - Reargument/Reconsideration Disposition Date: /hms cc: Buell, David D., Prothonotary IN THE SUPREME COURT OF PENNSYLVANIA 200q- e MIDDLE DISTRICT e4 C,u,( : No. 822 MAL 2013 STEPHONE BOOKHART, Petitioner v. CHEUNG ENTERPRISES, INC., Respondent : Petition for Allowance of Appeal from the : Order of the Superior Court ORDER CY7 (J PER CURIAM AND NOW, this 9th day of April, 2014, the Petition for Allowance of Appeal is DENIED. As Of 4 /9 /2v014Zabeth E. Zisk Attest: } t _ %;; Chief Clerk Supreme Court of Pennsylvania