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HomeMy WebLinkAbout01-2379 STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW v. : NO. 0/- .;2379 Co\(-T~ FLYING J INC. t/dIb/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CNIL ACTION - LAW v. : NO. FLYING J INC. t/d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted qui ere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA. SI NO TIENE ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRlTA ABAJO PARA AVERlGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 2 STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. CIVIL ACTION - LAW ; NO. 0/- :23 79 ~ -rUfJo'- FLYING J INC. t/d!b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs, Stewart McLain and Jennifer McLain, are adult individuals, husband and wife, and currently reside at 2509 Independence Drive, Jacksonville Beach, Duval County, Florida. 2. Defendant, Flying J Inc., trading and doing business as, Flying J Travel Plaza, here in after Flying J Inc., is a corporation authorized to do and is doing business at ISOI Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 3. Defendant, Flying J. Inc., owns, operates and maintains a truck stop business and parking lot at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 4. The facts and occurrences hereinafter related took place on or about January 29, 2000, at approximately 8:00 p.m., on the aforesaid parking lot. 5. Plaintifflawfully parked his tractor-trailer in the parking lot owed by Defendant. 6. Plaintiff was an invitee and was lawfully using the facilities on the Defendant's property. 7. At that time and place, Plaintiff, Stewart McLain, exited the drivers' lounge door of Defendant's facilities to return to his tractor-trailer. 3 8. The parking lot had "black ice" on it, so a slippery, dangerous condition existed. 9. Mr. McLain could not see the condition of the parking lot and was not aware of this situation until after his accident. 10. No markings or signs of any kind were in place warning of the slippery and dangerous condition of the parking lot, nor were there any verbal warnings of any kind conveyed to Mr. McLain that would have alerted him to the danger. Furthermore, no salt, cinders, aggregate or material was placed on the parking lot surface to increase traction and reduce the slipping hazard. 11. The Defendant had a duty to maintain the parking lot in a safe condition. 12. The icy, slippery condition of the parking lot presented a dangerous condition known to the Defendant, or which could have and should have been reasonably known to the Defendant, which created a reasonably foreseeable risk of harm suffered by the Plaintiff. 13. The Defendant had sufficient time prior to Mr. McLain's slip and fall to have taken measures to protect against the dangerous condition that existed on the parking lot and prevent the kind of injuries suffered by Mr. McLain, but Defendant failed to do so. Appropriately removing the black ice from the parking lot, and placing sand, salt, cinders or some other substance on the parking lot was necessary, but Defendant failed to do so. 14. The aforementioned slippery condition of the parking lot represented a condition that existed for an adequate and sufficient time before Mr. McLain's slip and fall, which could have and should had given the Defendant adequate time to correct the condition and warn Mr. McLain of the condition. 15. As a result of Defendant's negligence, Plaintiff suffered abrasions, a right elbow contusion, and a right patellar dislocation, which has required surgery and physical therapy. 4 COUNT I STEWART McLAIN v. FLYING J INC t/d!b/a FLYING J TRAVEL PLAZA 16. Paragraphs 1 through 15 of Plaintiffs' Complaint are incorporated herein as if set forth by reference. 17. At all times relevant thereto, Defendant, Flying J Inc, through its agent and employees, was in exclusive control of the parking lot and was responsible for the inspection and maintenance of the parking lot, including snow and ice removal. 18. Plaintiff, Stewart McLain, was owed the highest duty of care by Defendant Flying J Inc., to keep and maintain the parking lot in a safe condition for the benefit of patrons. 19. The aforementioned accident and resulting injuries sustained by Plaintiff, Stewart McLain, are the direct and proximate result of negligent conduct of Defendant, Flying J Inc., and its agents and employees, as follows: a. failure to exercise the highest degree of care that a landowner owes to business invites utilizing the premises for its intended purposes; b. failure to properly maintain the premises by allowing an unsafe hazard in the form of ice in an area used by business invites; c. failure to inspect its premises to determine whether there were any conditions that could pose a hazard to business invites; d. failure to post adequate and proper warnings concerning the dangers posed to business invites by the deceptive condition of the parking lot; e. failure to post "Caution Icy Parking Lot," or similar signs to warn business invites of potential danger; f. failure to use any non-slip materials and to advise business invites of the presence of ice; g. failure to remove the unsafe condition from its premises; 5 h. failure to place rock salt or other deicing agents on the parking lot; 1. failure to hire and properly train reasonably competent personnel to supervise the area and regularly inspect the same; and m. failure to hire a competent and responsible contractor for the removal of snow and ice from the aforesaid parking lot. 20. As a result of the aforementioned slip and fall, Plaintiff, Stewart McLain, sustained painful and severe injuries including, but not limited to, abrasions, to the right knee, a right elbow contusion, and a right patellar dislocation, requiring surgery. 21. By reason of the aforesaid injuries sustained by Plaintiff, Stewart McLain, incurred liability for medical treatment, medications, hospitalizations and similar miscellaneous expenses in an effort to restore himselfto health, and claim is made therefor. 22. Because of the nature of his injuries, Plaintiff, Stewart McLain, has been advised and therefore avers that he may incur similar expenses in the future, and claim is made therefor. 23. As a result of the aforesaid injuries, Plaintiff, Stewart McLain, has undergone and in the future will undergo great physical and mental suffering, great inconvenience in carrying out his daily activities, loss oflife's pleasures and enjoyment, and claim is made therefor. 24. As a result of the aforesaid injuries, Plaintiff, Stewart McLain, has been and in the future will be subject to great humiliation and embarrassment, and claim is made therefor. 25. As a result of the aforesaid injuries, Plaintiff, Stewart McLain, has sustained and may in the future sustain work loss, loss of opportunity and a permanent diminution of his earning power and capacity, including the loss of his business and associated expenses, and claim is made therefor. 6 26. Plaintiff, Stewart McLain, continues to be plagued by persistent pain, swelling, and limitation and therefore avers that his injuries may be of permanent nature, causing residual problems for the remainder of his lifetime, and claim is made therefor. 27. As a result of the aforesaid accident and irijuries, Plaintiff, Stewart McLain, has sustained scars which have resulted in a permanent disfigurement, and claim is made therefor. WHEREFORE, Plaintiff, Stewart McLain, demands judgment against Defendants, Flying J Inc. tfdib/a Flying J Travel Plaza, in an amount in excess of Twenty-five Thousand ($25,000) Dollars, exclusive of interest and costs and in excess of jurisdictional amount requiring compulsory arbitration. COUNT II JENNIFER McLAIN v. FLYING J INe tfdib/a FLYING J TRAVEL PLAZA 28. Paragraphs one through twenty-eight of this Complaint are incorporated herein by reference. 29. By reason of the aforesaid injuries sustained by her husband, Plaintiff, Jennifer McLain, was required to incur liability for medical treatments, specialized medical equipment, medications, and similar miscellaneous expenses in an effort to restore her husband to health, and may be required to incur similar expenses in the future and claim is made therefor. 30. By reason of the aforesaid injuries sustained by her husband, Plaintiff, Jennifer McLain, has been deprived of the assistance, companionship, consortium, and society of her husband and claim is made therefor. 7 WHEREFORE, Plaintiff, Jennifer McLain, demands judgment against Defendant, Flying J Inc., t/d!b/a Flying J Travel Plaza, in an amount in excess of Twenty-five Thousand ($25,000) Dollars, exclusive of interest and costs and in excess of jurisdictional amount requiring compulsory arbitration. Respectfully Submitted, NA VITSKY, OLSON & WISNESKI LLP D~'drJ ~O, ()OtJ I NV MICHAE . NA VITS ESQUIRE J.D. No.5' 803 2040 Linglestown Road, Suite 303 Harrisburg, P A 17110 (717) 541-9205 Counsel for Plaintiffs 8 VERIFICATION I, Stewart D. McLain, do hereby swear or affirm that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S.A. 94904, relating to unsworn falsification to authorities. Ck /1G+ xi }vfC t.a-:-.. / Wf.lNESS ~1\\~--' Stewart D. McLain VERIFICATION I, Jennifer S. McLain, do hereby swear or affirm that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S.A. g4904, relating to unsworn falsification to authorities. ~~~~' (~;1.MC~ Jennifer S. McLain WITNESS rv n t/ r ~ Jt- ~hP -- ~ '0 ~ - ~ "- O~ 0 ..J::.. j 0' ~~ ~ ~ i?, -.:r 2~: .. 8 ~ ~ -Vl".c I~ mr;: .,,) _, V) Z:l.: i'~) ..._ 71_. t.., ~i-, ~C.J ~r~ ~ (~=~ ~? ::v- ~ >, :< :< <Jl SHERIFF'S RETURN - REGULAR CASE NO: 2001-02379 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCLAIN STEWART D ET AL VS FLYING J INC ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE FLYING J INC was served upon the DEFENDANT , at 1508:00 HOURS, on the 25th day of April 2001 at 1501 HARRISBURG PIKE CARLISLE, PA 17013 ROGER LOCKBAUM ASSISTANT by handing to MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3.10 10.00 .00 .00 31.10 Sworn and Subscribed to before me this 4(~ day of J1::Jj if;(~~~ A.D. . L.Jjot1tnocaryo ',-XJ f 0 So ;;~~ R. Thomas Kline 04/26/2001 NAVITSKY OLSON & WISNESKI By: fid~ #7Z ' Deputy Sheri~ SHERIFF'S RETURN - REGULAR CASE NO: 2001-02379 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCLAIN STEWART D ET AL VS FLYING J INC ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County, pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FLYING J TRAVEL PLAZA the DEFENDANT , at 1508:00 HOURS, on the 25th day of April 2001 at 1501 HARRISBURG PIKE CARLISLE, PA 17013 by handing to ROGER LOCKBAUM a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 1. 00 .00 .00 7.00 ~f#fL~,a., R. Thomas Kline 04/26/2001 NAVITSKY OLSON & WISNESKI Sworn and Subscribed to before me this 4..#,. day of -7\~U . I ( , A.D. By: ~ >>#}i/" ~ ;/;:?'/,~ Deputy Shen.ff {/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CIVIL ACTION LAW NO.: 01-2379 FL YING 1., INC., tld/b/a FLYING 1. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO: Prothonotary - Cumberland County Kindly enter the appearance of the undersigned on behalf of Defendant, Flying J., Inc., tldlb/a Flying 1. Travel Plaza, in connection with the above-referenced case. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, :~~E~& GTtL-- T;ma~ ;.,"""" fuqwre 100 Pi~ ~et - 4th Fl. P.O. Box 803 Harrisburg, PA 17108-0803 LD.52918 (717) 232-9323 Attorney for Defendant, Flying J., Inc., tld/b/a Flying J. Travel Plaza DATE: 105 _A ILIABI TJMILLPG\7133 71SXVI20614150000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CIVIL ACTION LAW NO.: 01-2379 FL YING J., INC., t/dib/a FLYING 1. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Shonu V. McEchron, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this L day of May, 2001, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: TO: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, P A 17110 (FOR PLAINTIFFS) 1>12... ..7 ? . 'T<--- ,) ".1/ .rh~r-~--, . SHONU V. MCECHRON \05_ A\LlAB\TJM\LLPG\ 71339\SXV\20614\50000 '..;' C)__ (:;-, ~" ":-.:( s- ~.) ..~ :~., ~. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING J., INC., t1d/b/a FLYING J. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT. FLYING J., INC.. TO PLAINTIFFS' COMPLAINT 1. Admitted in part; denied in part. It is admitted only that Plaintiffs are who they say they are. The remaining allegations of this paragraph are denied because Defendant, after reasonable investigation and inquiry, lacks information sufficient to form a belief as to the truth thereof, and accordingly proof is demanded at trial, if relevant. 2. Admitted. 3. Admitted in part; denied in part. It is admitted only that Defendant, Flying J. Inc., operates and maintains a truck stop business at ISOI Harrisburg Pike, Carlisle, Cumberland County, PA. The remaining allegations of this paragraph are denied and proof thereof is demanded at trial, if relevant. 4. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.RC.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 5. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 6. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 7. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 8. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 9. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, ifre1evant. 10. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 11. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 2 12. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 13. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 14. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 15. Denied. The allegations set forth in this paragraph constitute conclusions oflaw within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. COUNT I: STEWART D. MCLAIN V. FLYING J., INC. 16. Defendant incorporates by reference its responses to paragraphs 1-15 above, as if set forth at length herein. 17. Admitted. 18. Denied. The allegations of this paragraph constitute conclusions of law to which no further responsive pleading is required, and accordingly the same are denied and proof thereof is demanded at trial, if relevant. 19. Denied. Defendant, Flying J., Inc., specifically denies all allegations of Negligence as set forth in this paragraph, together with its subparts (a) through (m). To the contrary, at all times relevant to the material and well-pleaded allegations set forth in Plaintiffs' 3 Complaint, Defendant acted with due care under the circumstances then and there prevailing. Further, the allegations of this paragraph constitute conclusions of law which are deemed denied within the meaning ofPa.RC.P. 1029(e), and accordingly, proof thereof is demanded at trial, if relevant. 20.-27. Denied. The allegations set forth in these paragraphs are denied In accordance with Pa.RC.P. 1029(e), and proofthereofis demanded at trial, if relevant. WHEREFORE, Defendant, Flying J., Inc., demands judgment in its favor and against Plaintiff, Stewart McLain, together with such other relief as this Court shall deem appropriate. COUNT II: JENNIFER S. MCLAIN V. FLYING J.. INC. 28. Defendant incorporates by reference its responses to paragraphs 1-27 above as if set forth at length herein. 29.-30. Denied. The allegations set forth in these paragraphs constitute conclusions of law within the meaning of Pa.RC.P. 1029(e), and accordingly the same are denied and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant, Flying J., Inc., demands judgment it its favor and against Plaintiff, Jennifer McLain, together with such other relief as this Court shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFFS Plaintiffs' Complaint fails to state a cause of action as against Defendant upon which relief may be granted as a matter oflaw. 4 31. No act or omission on the part of Defendant was a substantial contributing factor in bringing about Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied. 32. Plaintiffs' Complaint fails to state a cause of action under the doctrine of Hills and Ridges. 33. Plaintiffs' injuries and/or damages, if any, were caused in whole or in part by acts and/or omissions on the part of persons and/or entities other than Defendant, Flying J., Inc., and over which Flying J., Inc. had neither control nor right of control. 34. Defendant reserves its right to raise one or more of those defenses reserved at Pa.R.C.P. 1030. 35. Plaintiffs' claims may be barred and/or limited by the doctrines of rais judicata and/or collateral estoppel. 36. The injuries and/or damages of Plaintiff, Stewart McLain, if any, were not caused by any act or omission or any other liability producing conduct on the part of Defendant, Flying J., Inc., but were the result of pre-existing medical conditions and/or injuries, and accordingly Defendant is not responsible therefore. The claims of Plaintiff, Jennifer S. McLain, being derivative in nature, are or may be barred by such contributory or comparative negligence and/or assumption of the risk on the part of Stewart D. McLain, as may be established at trial. WHEREFORE, Defendant, Flying J., Inc., demands judgment in its favor and against Plaintiffs, together with such other relief as this Court shall deem appropriate. 5 DATE: MAy 2 (, tml 105 _A ILIABI TJMILLPG\71347\SXV\20614150000 Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEM~ & . ~rIN . BY: (^~--A 'l}..~ Timo~tJ~ allon, Esquire 100 Pine Stre . 4th FL P.O. Box 803 Harrisburg, P A 171 08-0803 LD.52918 (717) 232-9323 Attorney for Defendant, Flying J., Inc., t/d/b/a Flying J. Travel Plaza 6 VERIFICATION I, Anthony Lucas, General Manager for Defendant, Flying J., Inc., Vd/b/a Flying J. Travel Plaza in the above matter, veritY that the facts set forti1 in thc ANSWER WITH NEW MA TIER TO PLAINTIFFS' COMPLAINT, are true to the best of my knowledge. information and belief. If the above statements are not trne, the deponent is subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. I I ~.VV , ?~UCAS DATE: \D5..AIUAll\TJMIU.PG\71355\SXV\20614\:lOllOO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CIVIL ACTION LAW NO.: 01-2379 FLYING J., INC., t/d/b/a FLYINGJ. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Shonu V. McEchron, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this dtday of May, 2001, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: TO: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg,PA 17110 (FOR PLAINTIFFS) /y~/ V. MCECHRON \05_ A \L1AS\ TJM\LLPG\ 71339\SXV\20614\50000 -.~~"" STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW v. NO. 01-2379 Civil Term ORIGIN"'L. FLYING J INC. t/d/b/a FLYING J TRAVEL PLAZA, Defendant JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER Plaintiffs' Complaint states a cause of action against Defendant upon which relief may be granted as a matter oflaw. 31. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Defendant's negligence was a substantial contributing factor in bringing about Plaintiffs injuries and damages. 32. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. The hills and ridges doctrine does not apply to this case. 33. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Defendant's negligence was a substantial contributing factor in bringing about Plaintiff s injuries and damages. Defendant is responsible for the acts and/or omissions on the part of any other person and/or entity that had control or right of control over the premise. 34. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Defendant reserves no right to raise any defense other than those specifically raised in its Answer or New Matter. 35. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. The Doctrines of Res Judicata and/or Collateral Estoppel do not apply to this case. 36. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiff, Stewart McLain, was injured as a direct result of the Defendant's negligence. He suffered from no pre- existing medical condition or injury in any way connected with the injuries and damages suffered as a result ofthe Defendant's negligence. Plaintiff, Jennifer S. McLain, having filed a loss of consortium claim, appropriately raises such a claim, and the claim is not in any fashion barred by contributory negligence or reduced by comparative negligence or eliminated by the Doctrine of Assumption of the Risk on the part of Stewart McLain, as Stewart McLain was not contributorily negligent or comparatively negligent or assumed the risk of any injury. Respectfully submitted, D", ilia! 71/ JiJ I ~t(il7['((;~ Mi,hMl i~""y, !.D. No. ~~~ i 2040 Linglestown Ro d, Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiffs ISNESKl LLP 2 COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF CUMBERLAND I, MICHAEL J. NA VITSKY, being duly sworn according to law, depose and say that I am counsel for Plaintiffs, Stewart D. McLain and Jennifer S. McLain, and I am authorized to make this affidavit on behalf of said Plaintiffs, and that the facts set forth in the foregoing Response to New Matter are true and correct to the best of my knowledge, information and belief, or are true and correct based on the information obtained from Plaintiffs. Sworn and subscribed . ~ HAEL t . VITSKY 'v \,; before me this 31st day of mo..y , 2001. 1l~ E. ,1rAudOo/l Notary Publi;-W r CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm ofNavitsky, Olson & Wisneski LLP, do hereby certify that on this 31st day of June, 2001 served a true and correct copy of Plaintiffs' Response to Defendant's New Matter, upon all counsel of record via postage prepaid first class United States mail addressed as follows: Timothy J. McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 100 Pine Street, Fourth Floor P.O. Box 803 Harrisburg, P A 17108-0803 Counsel for Defendants "-- 1~'7< tJ~ Jessie K. Walsh 3 0 C> r-: c:: s: ~= -orc' JT1il' ::.-~ 2:1: 6j);~ - , --...-- - r;: C,: -,] "- :.;': ~c ;- ::T, )>0 r;: '--', C :.;.:~\ ~ S~j (,,) -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING J., INC., t/dlb/a FLYING J. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO: Prothonotary - Cumberland County Kindly enter the appearance of the undersigned on behalf of Defendant, Flying J., Inc., t/dIb/a Flying J. Travel Plaza, in connection with the above-referenced case. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOG . i DATE: l\ \ \9103 BY: Jo e F M ha I, De ehe, Warner, Co eman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3509 Attorney for Defendant, Flying J., Inc., t/dIb/a Flying J. Travel Plaza \05_ A IUABIJPMISLPGl1381 081KAB120614100 \ 38 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CIVIL ACTION LAW NO.: 01-2379 FLYING J., INC., Ud/b/a FLYING 1. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Ellen M. Palmer, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~ day of f\\J\\~~ 2003, I served a true and correct copy of the foregoing document via United States First Class Mail, postage pre-paid as follows: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, PA 17110 r (Yl. ~~:.: ' '., Q " -.~ o. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYL VANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, - vs- Plaintiffs, NOTICE OF SUBSTITUTION OF COUNSEL FLYING J., INC., t/dIb/a! FLYING J. TRAVEL PLAZA CIVIL ACTION LAW No.: 01-2379 Defendants. PLEASE TAKE NOTICE that NIXON PEABODY LLP, 1300 Clinton Square, P.O. Box 3 I 05 I, Rochester, New York 14603- I 05 I, be and hereby substituted for Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crum Mill Road, Suite B, Harrisburg, PA 17112, as counsel of record for defendant FLYING J., INC., t/dlb/a FLYING J. TRAVEL PLAZA in the above-captioned matter and that all pleadings, correspondence and other items in this matter should be served upon Nixon Peabody LLP at the office and post office address below. Dated: October 8, 2004 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By_ ;(~~ 4200 Crum Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 R769832_1 SO ORDERED: JUDGE R769832.1 NIXON PEABODY LLP By; -4//C./ David L. Cook Clinton Square P.O. Box 31051 Rochester, New York 14603-105 I Telephone; (585) 263-1000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYL VANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING J., INC., t/dlb/a FLYING J. TRAVEL PLAZA Defendant JURY TR[A.L DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \~ day of October 2004, I served a true and correct copy of the foregoing document via United States First Class Mail, postage pre-paid as follows: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Ling1estown Rd., Ste. 303 Harrisburg, PA 17110 David L. Cook, Esquire Clinton Square PO Box 31051 Rochester, NY 14603-1051 ~\\~ Joann~:-parr \\\ .~ \\. \\ - "" r::'~, l;;:~ .r.- C::") C") -I ("'1 -'jl ,-1 -'r ('i ~ ,~) (~,.? r",) '" STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW NO. 01-2379 Civil Term ORIGINAL v. FLYING J INC. tJdlb/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED PLAINTIFF'S PETITION FOR A STATUS CONFERENCE AND NOW, comes, Stewart D. McLain and his wife, Jennifer S. McLain, by their attorneys Navitsky, Olson & Wisneski LLP, and hereby Petition Your Honorable Court to schedule a status conference in the above-captioned case for the following reasons: 1. Plaintiffs, Stewart D. McLain and Jennifer S. McLain, are adult individuals who reside in Jacksonville, Florida. 2. Defendant, Flying J. Inc., owns, operates, and maintains a truck stop business and parking lot at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 3. The accident made subject of this action and outlined in detail in Plaintiffs' Complaint took place on January 29,2000, at approximately 8:00 p.m. and occurred on Defendant's parking lot. 4. Plaintiff, Stewart McLain, slipped and fell on "black ice" artificially created by Defendant, thereby injuring his knee. 5. Most discovery has been conducted in this matter and the case is ready for trial. Plaintiff requests production of all witness statements from Defendant simply to insure that are fact witnesses have been deposed. 6. A status conference is requested in this case in order to schedule the pretrial conference, a trial date, and to discuss settlement. WHEREFORE, a status conference is requested for establishing pre-trial and trial deadlines and to discuss settlement. Respectfully submitted, Dale: \~~\D~ N~~~tY l~S~ISNES~ LLP Michael J. Ntv1kY, ESqU~~ LD. No. 58803-- ' 2040 Linglestown Road, Suite 03 Harrisburg, PAl 711 0 (717) 541-9205 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm ofNavitsky, Olson & Wisneski LLP, do I C> hereby certify that on this ~ day of December, 2004 served a true and correct copy of Plaintiffs' Petition for Status Conference upon all counsel of record via postage prepaid first class United States mail addressed as follows: David L. Cook, Esquire Nixon Peabody, LLP P.O. Box 31051 Rochester, NY 14603 Counsel for Defendant _J /I/0\'~' /{, I ,! /~ "/",) L tz--(LJ//~ Jessie K. Walsh "i' ......., q r--> f''<-i c; .......~.; " .1 r-,:. ~, "'", ,-, I ::~ 1- .~"J ~'. r""; r ;' ]) , , .;'1 '-'1 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, MOTION OF ADMISSION PRO HAC VICE FOR DAVID L. COOK, ESQ. STEWARTD. MCLAIN AND JENNIFER S. MCLAIN, . vs- Case No. 01-2379 FLYING J, INC. Vd/b/a, FLYING J TRAVEL PLAZA, Defendant. PLEASE TAKE NOTICE that upon the annexed affidavit of Craig Tractenberg, Esq., and the accompanying declaration of David L. Cook, Esq., defendant Flying J, Inc. ("Flying J"), by its attorneys Nixon Peabody LLP, moves this Court at the Cumberland County Courthouse, One Courthouse Way, Carlisle, Pennsylvania, for an Order admitting David L. Cook, Esq. to practice pro hac vice in these proceedings on behalf of defendant Flying J, pursuant to the Rules of Practice ofthe Court of Common Pleas of Cumberland County, Pennsylvania and Pennsylvania Bar Admission Rule 301. Dated: JanuaryL( ,2005 NIXON PEABODY LLP /// r-; .k1-.. By: /~//t} I v ) { Craig Tractenberg 0, 15."1 :JcP3'i6 '?(, 1818 Market Street 11 th Floor Philadelphia, Pennsylvania 19103-3647 Telephone: (215) 246-3520 Attorney for Defendant R801801.2 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, AFFIDAVIT OF CRAIG TRACTENBERG, ESQ. IN SUPPORT OF MOTION FOR PRO HAC VICE STEWART D. MCLAIN AND JENNIFER S. MCLAIN, - vs- FLYING J, INC. t/dlbla, FLYING J TRAVEL PLAZA, Case No. 01-2379 Defendant. ST ATE OF PENNSYLVANIA ) ) ss. COUNTY OF CUMBERLAND ) CRAIG R. TRACTENBERG, an attorney duly licensed to practice in the Commonwealth of Pennsylvania, under penalty of peJjury affirms as follows: I. I am a member of the law firm of Nixon Peabody LLP, which is counsel for Defendant Flying J, Inc. ("Flying J") in the above-captioned action. 2. I submit this affidavit in support of the instant motion to admit David L. Cook, Esq. pro hac vice to represent Flying J. in the above-captioned action. 3. David L. Cook is a member of the law firm of Nixon Peabody LLP, Clinton Square, P.O. Box 31051, Rochester, New York 14603. Mr. Cook is an attorney in good standing and is admitted to practice law in New York State courts as well as before the United States District Court for the Western District of New York, the United States District Court for the Southern District of New York, United States Court of Appeals for the Second Circuit, and the United States Supreme Court. R7879222 , -2- 4. To my knowledge, Mr. Cook has never been disciplined by any Bar Association, and there are no disciplinary proceedings pending against him. 5. The admission of Mr. Cook pro hac vice in this action on behalf of Flying J, Inc. will assist in the presentation of issues for adjudication by this Court. 6. If admitted pro hac vice, said attorney will abide by all rules of this Court. 7. The Declaration of David L. Cook, Esq. is attached hereto and incorporated herein by reference. 8. For the foregoing reasons, I respectfully request that this Court grant the Motion for pro hac vice admission of David L. Cook and permit him to appear and speak in the above-captioned matter in the same manner as attorneys of the Bar of this Court. Respectfully submitted, NIXON PEA/DY LLP ./1 A By: /t~'t) It ~ Craig Tractenberg 1818 Market Street II th Floor Philadelphia, Pennsylvania 19103-3647 Telephone: (215) 246-3520 Attorney for Defendant :;rom to before,me this i/. day of -l.anuary, 2005 /&1tu(''''/; 'C/~- Veronica Love-Robinson, Notary Public Philadelphia, Philadelphia County My commission expires July 7, 2008 R7879222 ~ ' CERTIFICATE OF SERVICE ] hereby certify that on the '1/ day of January 2005, ] caused to be served a true and correct copy of the foregoing Motion to Appear Pro Hac Vice with attached supporting papers upon the following: Michael Navitsky Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Ste 303 Harrisburg, PA 17110 by causing the same to be placed in properly addressed, postage pre-paid packaging and depositing same in the United States Mail. ..4;/A CraIg Tractenberg ,/ R787922.2 ,..., c:;.~ <:;;,:, ""' <- ?,<.~ -. 0.) - ". :~ o -n ~-D ",DF:; -'n;}" -D 'c", (~!.,;;, .J.-.-\1 (~?:f~ T" '.:...J :.4 c:? f'') _1 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, DECLARATION OF DAVID L. COOK, ESQ. - vs- Case No. 01-2379 FLYING J, INC. t1d!b/a, FLYING J TRAVEL PLAZA, Defendant. DAVID L. COOK, being duly sworn, deposes and says: I. I make this affidavit in support of the pending motion for an order, pursuant to the Rules of Practice of the Court of Common Pleas of Cumberland County, Pennsylvania and Pennsylvania Bar Admission Rule 301, admitting me pro hac vice in order to appear in this action as counsel of record for Defendant Flying J, Inc. ("Flying J") in the above-captioned action. 2. I am a member in good standing of the Bar ofthe State of New York and I am admitted to practice law in New York State courts as well as before the United States District Court for the Western District of New York, the United States District Court for the Southern District of New York, United States Court of Appeals for the Second Circuit, and the United States Supreme Court. 3. I am a member of the firm Nixon Peabody LLP, Clinton Square, Rochester, New York 14603, telephone number 585-263-1381. 4. I have never been disciplined by any Bar Association, and there are no disciplinary proceedings pending against me. R787922.2 1 -2- 5. Nixon Peabody LLP acts as Flying J's counsel and represents Flying J. in connection with the aforementioned action. Accordingly, Flying J. has requested that I appear as defense counsel in this action. WHEREFORE, I respectfully request that I be admitted pro hac vice in this action to represent Flying J, the defendant herein. _.iJd~~ David L. Cook DEBORAH J. SEXTON NOTARY PUBLIC State of New'lblll R~I.t'etion #: 01SE5033813 Quellfied In Monroe Coun\y Cer1lflcata Filed In Monroe COinllr, Commlaalon Explree: 09I2et20 c;;;., R787922.2 ,...., "'" l;~,:::"\ U' ~- "2~ - w - c I !:: ....'*'" o -1'\ ,-I ,]:,,, rr,C\ ~'O\,)., -0,' ~?~C} '02:~jr; () :.--~ (,'i1 c;? N _\ -., SUPREME COURT OF THE STATE OF NEW YORK APPELIATE DIVISION, FOURTH DEPARTMENT ROCHESTER, NEW YORK I, JO ANN M. WAHL, Clerk of the Appellate Division of the Supreme Court in the Fourth Judicial Department, State of New York, do hereby certify that DA VID L. COOK was duly admitted to practice as an attorney and counselor at law in all courts of this state by this Court, on June 23,1988, and appears in good standing upon the roll of attorneys and counselors, and other records, in this office and has registered with the administrative office of the Courts as required by Judiciary Law 9468-a. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of this Court, at the City of Rochester, January 12, 2005. tLY'n. l;J..JJ- Clerk ,..., <= c:? G.f'\ '- ::r;::"" -~ .- ~ - o -., ~.,., p'r:: -.::Jro :~,]C( ()( ) :;~~~ ~':;:)rn '-;<1 T~' ~'J~ .......-:.. :r;" :::t S? N ..... COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, ORDER GRANTING PRO HAC VICE ADMISSION - vs- Case No. 0]-2379 FLYING J, INe. t/d/b/a, FLYING J TRAVEL PLAZA, Defendant. Defendant F]ying J, Inc. ("Flying J"), by and through its attorneys, Nixon Peabody LLP, having moved this Court for an Order admitting pro hac vice David L. Cook, Esq. of the law firm Nixon Peabody LLP, for the purpose of appearing, participating and representing F]ying J in any pre-trial, trial, or post-trial proceedings before this Court in the above-captioned matter; and Notice thereof having been given to all counselor parties ofrecord, and the Court having duly considered the moving papers, including the affidavit of Craig R. Tractenberg, Esq. and the declaration of David L. Cook, Esq. submitted in support thereof: NOW it is hereby: ORDERED, ADJUDGED AND DECREED that David L. Cook, Esq. of the Jaw firm of Nixon Peabody LLP is hereby admitted to the Court of Common Pleas, Cumberland County, Pennsylvania pro hac vice solely for the purpose of representing F]ying J in the above-captioned matter. DATE: Presiding Judge R80183Q.2 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, MOTION OF ADMISSION PRO HAC VICE FOR DAVID L. COOK, ESQ. - vs- FL YINO J, INC. t/d/b/a, FL YINO J TRAVEL PLAZA, Case No. 01-2379 Defendant. PLEASE TAKE NOTICE that upon the annexed affidavit of Craig Tractenberg, Esq., and the accompanying declaration of David L. Cook, Esq., defendant Flying J, Inc. ("Flying J"), by its attorneys Nixon Peabody LLP, moves this Court at the Cumberland County Courthouse, One Courthouse Way, Carlisle, Pennsylvania, for an Order admitting David L. Cook, Esq. to practice pro hac vice in these proceedings on behalf of defendant Flying J, pursuant to the Rules of Practice ofthe Court of Common Pleas of Cumberland County, Pennsylvania and Pennsylvania Bar Admission Rule 301. Dated: January L( ,2005 NIXON PEABODY LLP /;// .rJ kr.. By: /~//tJ I v ) ( Craig Tractenberg f" r1..,"5<-P 3'16 56 1818 Market Street 11 th Floor Philadelphia, Pennsylvania 19103-3647 Telephone: (215) 246-3520 Attorney for Defendant R801801.2 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, AFFIDAVIT OF CRAIG TRACTENBERG, ESQ. IN SUPPORT OF MOTION FOR PRO HAC VICE STEW ART D. MCLAIN AND JENNIFER S. MCLAIN, - vs- FLYING J, INC. t/dlbla, FLYING J TRAVEL PLAZA, Case No. 01-2379 Defendant. i STATE OF PENNSYLVANIA ) ) ss. COUNTY OF CUMBERLAND ) CRAIG R. TRACTENBERG, an attorney duly licensed to practice in the Commonwealth of Pennsylvania, under penalty of peIjury affirms as follows: I. I am a member of the law firm of Nixon Peabody LLP, which is counsel for Defendant Flying J, Inc. ("Flying J") in the above-captioned action. 2. I submit this affidavit in support of the instant motion to admit David L. Cook, Esq. pro hac vice to represent Flying J. in the above-captioned action. 3. David L. Cook is a member of the law firm of Nixon Peabody LLP, Clinton Square, P.O. Box 31051, Rochester, New York 14603. Mr. Cook is an attorney in good standing and is admitted to practice law in New York State courts as well as before the United States District Court for the Western District of New York, the United States District Court for the Southem District of New York, United States Court of Appeals for the Second Circuit, and the United States Supreme Court. R787922.2 -2- 4. To my knowledge, Mr. Cook has never been disciplined by any Bar Association, and there are no disciplinary proceedings pending against him. 5. The admission ofMr. Cook pro hac vice in this action on behalf of Flying J, Inc. will assist in the presentation of issues for adjudication by this Court. 6. If admitted pro hac vice, said attorney will abide by all rules of this Court. 7. The Declaration of David L. Cook, Esq. is attached hereto and incorporated herein by reference. 8. For the foregoing reasons, I respectfully request that this Court grant the Motion for pro hac vice admission of David L. Cook and permit him to appear and speak in the above-captioned matter in the same manner as attorneys of the Bar of this Court. Respectfully submitted, NIXON PEA/Y LLP /! A By: ./ L<' t.; I ' L--7 Craig Tractenberg 1818 Market Street II th Floor Philadelphia, Pennsylvania 19103-3647 Telephone: (215) 246-3520 Attorney for Defendant A. om to befor. e,me this day of January, 2005 {&1tu ,,-oy' II(. /~~a- N AL Veronica Love-Robinson, Notary Public Philadelphia, Philadelphia County My commission expires July 7, 2008 R787922.2 ~ . CERTIFICATE OF SERVICE I hereby certify that on the '1/ day of January 2005, I caused to be served a true and correct copy of the foregoing Motion to Appear Pro Hac Vice with attached supporting papers upon the following: Michael Navitsky Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Ste 303 Hanisburg, PA 17110 by causing the same to be placed in properly addressed, postage pre-paid packaging and depositing same in the United States Mail. ~/A Cnllg Tractenberg ./ R787922.2 ~ Z:";l ,-,' ,- ~;-;. 0' -- o -0 ...J ~\,\:0 " 'i<~ wn~..~ --O~ C1(J-) .,\;,,,", ~:\. --,,,- <2.r':~ "(';,;l:'ii ~:;~ ~. .';:1 ',4 Y': ~ q? t" -' - '\"'. ~0' -------- COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, DECLARATION OF DAVID L. COOK, ESQ. - vs- Case No. 01-2379 FLYING J, INe. t/dIb/a, FLYING J TRAVEL PLAZA, Defendant. DAVID L. COOK, being duly sworn, deposes and says: I. I make this affidavit in support of the pending motion for an order, pursuant to the Rules of Practice of the Court of Common Pleas of Cumberland County, Pennsylvania and Pennsylvania Bar Admission Rule 301, admitting me pro hac vice in order to appear in this action as counsel of record for Defendant Flying J, Inc. ("Flying J") in the above-captioned action. 2. I am a member in good standing of the Bar of the State of New York and I am admitted to practice law in New York State courts as well as before the United States District Court for the Western District of New York, the United States District Court for the Southern District of New York, United States Court of Appeals for the Second Circuit, and the United States Supreme Court. 3. I am a member ofthe firm Nixon Peabody LLP, Clinton Square, Rochester, New York 14603, telephone number 585-263-1381. 4. I have never been disciplined by any Bar Association, and there are no disciplinary proceedings pending against me. R787922.2 \ - 2 - 5. Nixon Peabody LLP acts as Flying J's counsel and represents Flying J. in connection with the aforementioned action. Accordingly, Flying J. has requested that I appear as defense counsel in this action. WHEREFORE, I respectfully request that I be admitted pro hac vice in this action to represent Flying J, the defendant herein. _ ,ti-d ~~ David L. Cook DEBORAH J. SEXTON NOTARY PUBLIC... State of New '/blII 1I~llltratlon .: G1SE503361S Qualified In Monroe County CertIflcate flied In Monroe Coilt1tY, COmmlalon ExpIrM: 08/2112O a;., R787922.2 <)j- ~ _. /1 . - \' rc? ~ <- ?;;: - Q\ .-' ':1:--,1 'f"C\ ":g\~) (...,) r'"') _1-} -; '2~:~~\ q: N -l \ - 2 - 5. Nixon Peabody LLP acts as Flying J's counsel and represents Flying J. in connection with the aforementioned action. Accordingly, Flying J. has requested that I appear as defense counsel in this action. WHEREFORE, I respectfully request that I be admitted pro hac vice in this action to represent Flying J, the defendant herein. _/J-d LU David L. Cook DEBORAH J. SEXTON NOTARY PUBUC Slate 01 New ~ R~I.tr.tion #: 01SE50336111 Qualified In Monroe County Cer1\flcala Flied In Monroe Coul!lr, CommIMlon ExpIr88: 08126/20 ~ R787922.2 <)J- ~ _. ~ ';;::::~'> 0' '- ";::;. .... v) r. II - (?\ .-\ .-('\ ::r"._. n C:, ":9'11~) ~'.)'1:, \;~~ (;.:~ 1 (~,:.rA r)1 :.:'.\ ~i? :l":. ::),.. co .' r.::l SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FOURTH DEPARTMENT ROCHESTER, NEW YORK I, JO ANN M. WAHL, Clerk of the Appellate Division of the Supreme Court in the Fourth Judicial Department, State of New York, do hereby certify that DA VID L. COOK was duly admitted to practice as an attorney and counselor at law in all courts of this state by this Court, on June 23,1988, and appears in good standing upon the roll of attorneys and counselors, and other records, in this office and has registered with the administrative office of the Courts as required by Judiciary Law 9468-a. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of this Court, at the City of Rochester, January 12,2005. tLYh. lJJJJ- Clerk :ss-- ~0' ~ ~ <- ':,I""... ~ <fl - o -n ~-n f'n~ ..ofJ:\ .'n'-' ;::.:? r;: ..,.J. " I')::,J .c..o .<.,{n :::::'\ "r"" ~:JJ ";P-'IIo '::$ c:,? :::, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, ORDER GRANTING PRO HAC VICE ADMISSION - vs- Case No. 01-2379 FLYING J, INC. t/dlbla, FLYING J TRAVEL PLAZA, Defendant. Defendant Flying J, Inc. ("Flying J"), by and through its attorneys, Nixon Peabody LLP, having moved this Court for an Order admitting pro hac vice David L. Cook, Esq. of the law firm Nixon Peabody LLP, for the purpose of appearing, participating and representing Flying J in any pre-trial, trial, or post-trial proceedings before this Court in the above-captioned matter; and Notice thereof having been given to all counselor parties of record, and the Court having duly considered the moving papers, including the affidavit of Craig R. Tractenberg, Esq. and the declaration of David L. Cook, Esq. submitted in support thereof: NOW it is hereby: ORDERED, ADJUDGED AND DECREED that David L. Cook, Esq. of the law firm of Nixon Peabody LLP is hereby admitted to the Court of Common Pleas, Cumberland County, Pennsylvania pro hac vice solely for the purpose of representing Flying J in the above-captioned matter. DATE: Presiding Judge R801830.2 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEW ART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, MOTION OF ADMISSION PRO HAC VICE FOR DA VlD L. COOK, ESQ. - vs- FLYING J, INe. t/dfb/a, FLYING J TRAVEL PLAZA, Case No. 01-2379 Defendant. PLEASE TAKE NOTICE that upon the annexed affidavit of Craig Tractenberg, Esq., and the accompanying declaration of David L. Cook, Esq., defendant Flying J, Inc. ("Flying J"), by its attorneys Nixon Peabody LLP, moves this Court at the Cumberland County Courthouse, One Courthouse Way, Carlisle, Pennsylvania, for an Order admitting David L. Cook, Esq. to practice pro hac vice in these proceedings on behalf of defendant Flying J, pursuant to the Rules of Practice of the Court of Common Pleas of Cumberland County, Pennsylvania and Pennsylvania Bar Admission Rule 301. Dated: Januaryl./ ,2005 NIXON PEABODY LLP ..-/ /;:7" --7 b- By: /~/0 I v ) ( Craig Tractenberg ('4 r5c"'"l S cf 5'/6 ?6 1818 Market Street 11 th Floor Philadelphia, Pennsylvania 19103-3647 Telephone: (215) 246-3520 Attorney for Defendant R801801.2 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs, AFFIDAVIT OF CRAIG TRACTENBERG, ESQ. IN SUPPORT OF MOTION FOR PRO HAC VICE STEWART D. MCLAIN AND JENNIFER S. MCLAIN, - vs- FLYING J, INC. t/dIb/a, FLYING J TRAVEL PLAZA, Case No. 01-2379 Defendant. STATE OF PENNSYLVANIA ) ) ss. COUNTY OF CUMBERLAND ) CRAIG R. TRACTENBERG, an attorney duly licensed to practice in the Commonwealth of Pennsylvania, under penalty of peIjury affirms as follows: I. I am a member of the law firm of Nixon Peabody LLP, which is counsel for Defendant Flying J, Inc. ("Flying J") in the above-captioned action. 2. I submit this affidavit in support of the instant motion to admit David L. Cook, Esq. pro hac vice to represent Flying J. in the above-captioned action. 3. David L. Cook is a member of the law firm of Nixon Peabody LLP, Clinton Square, P.O. Box 3 I 051, Rochester, New York 14603. Mr. Cook is an attorney in good standing and is admitted to practice law in New York State courts as well as before the United States District Court for the Western District of New York, the United States District Court for the Southern District of New York, United States Court of Appeals for the Second Circuit, and the United States Supreme Court. R787922.2 - 2 - 4. To my knowledge, Mr. Cook has never been disciplined by any Bar Association, and there are no disciplinary proceedings pending against him. 5. The admission of Mr. Cook pro hac vice in this action on behalf of Flying J, Inc. will assist in the presentation of issues for adjudication by this Court. 6. If admitted pro hac vice, said attorney will abide by all rules of this Court. 7. The Declaration of David L. Cook, Esq. is attached hereto and incorporated herein by reference. 8. For the foregoing reasons, I respectfully request that this Court grant the Motion for pro hac vice admission of David L. Cook and permit him to appear and speak in the above-captioned matter in the same manner as attorneys of the Bar of this Court. Respectfully submitted, NIXON PEABODY LLP " By / i~v; -1~ Craig Tractenberg 1818 Market Street 11 th Floor Philadelphia, Pennsylvania 19103-3647 Telephone: (215) 246-3520 Attorney for Defendant ~orn to before,me this . day of ~anuary, 2005 {&1hl-L /:\< II[ /~4-- N Veronica Love-Robinson, Notary Public Philadelphia, Philadelphia County My commission expires July 7,2008 R7879222 . ' CERTIFICATE OF SERVICE J hereby certify that on the '1/ day of January 2005, J caused to be served a true and correct copy of the foregoing Motion to Appear Pro Hac Vice with attached supporting papers upon the following: Michael Navitsky Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Ste 303 Harrisburg, P A J 7110 by causing the same to be placed in properly addressed, postage pre-paid packaging and depositing same in the United States Mail. /4;/A Cnug Tractenberg // R787922.2 ~ (:',~ 2f' <- ~ 0.) .- o -n ::;\ _..-~ rnf~ ~\1.;...~ -:U"""- <) 1. ,~\() ":f):),} '.",CJ c;jrn -..\ -...-~ ':'" ,-<.. ~ cr: 1') _l - '\"". -=\~ --- . COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, DECLARATION OF DAVID L. COOK, ESQ. - vs- Case No. 01-2379 FLYING J, INC. t/dlb/a, FLYING J TRAVEL PLAZA, Defendant. DAVID L. COOK, being duly sworn, deposes and says: 1. 1 make this affidavit in support of the pending motion for an order, pursuant to the Rules of Practice of the Court of Common Pleas of Cumberland County, Pennsylvania and Pennsylvania Bar Admission Rule 301, admitting me pro hac vice in order to appear in this action as counsel of record for Defendant Flying J, Inc. ("Flying J") in the above-captioned action. 2. I am a member in good standing of the Bar of the State of New York and I am admitted to practice law in New York State courts as well as before the United States District Court for the Western District of New York, the United States District Court for the Southern District of New York, United States Court of Appeals for the Second Circuit, and the United States Supreme Court. 3. I am a member of the firm Nixon Peabody LLP, Clinton Square, Rochester, New York 14603, telephone number 585-263-1381. 4. I have never been disciplined by any Bar Association, and there are no disciplinary proceedings pending against me. R787922.2 -2- 5. Nixon Peabody LLP acts as Flying J's counsel and represents Flying J. in connection with the aforementioned action. Accordingly, Flying J. has requested that I appear as defense counsel in this action. WHEREFORE, I respectfully request that I be admitted pro hac vice in this action to represent Plying J, the defendant herein. _.~~~ David 1. Cook DEBORAH J. SEXTON NOTARY PUBLIC State of New 'lb/Ir R~lllra~on #: 01SES033813 Qualified In Mol\fll8 County Certlflcate Filed In Monroe CO~(,.. CoIYlllli88Ion ExpIre8: 0812612O R787922.2 <;J ~ -------- : ~ c~:,) <.J' ~ v:J - II () -\l :.::t ."'\' r{~~\ ~(:_''t--) ~t) <.:-1, ,,-1 :2.;;-~~ "'j (~:,~ ~ Sz:. c') .' '~~J l") _I - SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FOURTH DEPARTMENT ROCHESTER, NEW YORK I, JO ANN M. WAHL, Clerk of the Appellate Division of the Supreme Court in the Fourth Judicial Department, State of New York, do hereby certify that DA VID L. COOK was duly admitted to practice as an attorney and counselor at law in all courts of this state by this Court, on June 23,1988, and appears in good standing upon the roll of attorneys and counselors, and other records, in this office and has registered with the administrative office of the Courts as required by Judiciary Law 9468-a. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of this Court, at the City of Rochester, January 12, 2005. tLY'n. 11)AV- Clerk ~ ~~ "" c=' r:::l """ <- ';1:::" -- - w o -n ~'fi )'l"\F ."Orf;, ..)0 ,:'j L :,1 C), _'!'~' --r, (~B ?)\n ,",}, K:'f) ......::, - :'.":""" :::1: Cf? r0 -J 0.\ FEB 0 ? 2005 ~r COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA STEW ART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, ORDER GRANTING PRO HAC VICE ADMISSION - vs- Case No. 01-2379 FLYING J, INC. t/dlbla, FLYING J TRAVEL PLAZA, Defendant. Defendant Flying J, Inc. ("Flying J"), by and through its attorneys, Nixon Peabody LLP, having moved this Court for an Order admitting pro hac vice David 1. Cook, Esq. of the law firm Nixon Peabody LLP, for the purpose of appearing, participating and representing Plying J in any pre-trial, trial, or post-trial proceedings before this Court in the above-captioned matter; and Notice thereof having been given to all counselor parties ofrecord, and the Court having duly considered the moving papers, including the affidavit of Craig R. Tractenberg, Esq. and the declaration of David 1. Cook, Esq. submitted in support thereof: NOW it is hereby: ORDERED, ADJUDGED AND DECREED that David 1. Cook, Esq. of the law firm of Nixon Peabody LLP is hereby admitted to the Court of Common Pleas, Cumberland County, Pennsylvania pro hac vice solely for the purpose of representing Flying J in the above-captioned matter. DATE: <j...t. ;1 l.()/J)" J . 1:1/j r~\ D( \~:?()S R801830.2 0,;:0 Presiding Judge 20 ;(;1 r (_n':l C"",-, t, - (j_ :UuG .Jr, ..;,...: STEWART D. McLAIN and JENNIFER S. McLAIN, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 01-2379 CIVIL FLYING J INC. t/dlb/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this 0/. day of February, 2005, following conference with counsel in Chambers, it is ordered and directed that: I. All discovery in this case shall be completed on or before July 15, 2005. 2. The Prothonotary is ordered and directed to list this case for the trial term commencing September 19, 2005. Counsel for the plaintiffs will verify the listing not later than August 1,2005. BY THE COURT, ,-a~ Kevin ,Hess, J. ~chael J. Navitsky, Esquire For the Plaintiffs ~id L. Cook, Esquire ..l For the Defendants :r1m -.! su;~~ pJ ~.'-E3:J -; 1 Stewart D. McLain and Jennifer S. McLain, his wife : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. Flying J Inc. tld/b/a Flying J Travel Plaza : NO. 01-2379 CIVIL TERM ORDER OF COURT AND NOW, August 24, 2005, by agreement of counsel, the above captioned case is stricken from the September 19, 2005 trial term. Counsel is directed to relist the case when ready. By the Court, Michael J. Navitsky, Esquire For the Plaintiff David 1. Cook, Esquire For the Defendant ~ /I1A--~ f.1J}.bS Cj-- Court Administrator jhk V il\;\-I~Y]),S"',< ,',::,:1 d ~11 '","'~' ~-''''~J ''''''! -, .'."",; I \i1'.',' .-, -'i!1 O~ :5 H\i 92 ~nv seaz AWlONOf-llOUd 3Hl :10 381::l:l0-0311:l 1 Stewart D. McLain and Jennifer S. McLain, his wife IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. Flying J Inc. t/dlb/a Flying J Travel Plaza : NO. 01-2379 CIVIL TERM ORDER OF COURT AND NOW, August 24, 2005, by agreement of counsd, the above captioned case is stricken from the September 19, 2005 trial term. Counsel is directed to relist the case when ready. By the Court, ~ George E. Hoffer, PJ. Michael J. Navitsky, Esquire For the Plaintiff David 1. Cook, Esquire For the Defendant ~ /I'lA-~ f. .19.D1 Cf-- Court Administrator jhk ~ A.H'!!1:Y: '. -:.,-"'1<1'""'"'\ ""':ilv o ~ :6 11\1 92 gn~ SOOl '\'8VlONOH.i.O!Jd 3Hl ::10 38830--0311:1 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and sutrnitted in duplicate) 'ro THE PIDrnOl'Pl'ARY OF CU1BERlAN) COUNTY .O~I~nr\qi\1 nD~'Q'.I'\j"...,~\~ Please list the following case: (Check one) x for JURY trial at the next tenn of civil court. for trial without a jury. CAPTION OF CASE (entire caption IlUSt be stated in full) (check one) Stewart D. kLain, and tis wife, Jennifer: S. ~in, (X) Civil Action - Law Appeal from Al:bi tration (other) ( Plaintiff) vs. Flying J Inc., t/d/bIa Flying J Travel. Plaza The trial list will be called on ... Auaust 22,n2006 Trials ccmrence on Septedler 18, 2006 (Defendant) Pretrials will be held on August. 30, 2006 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) vs. No. 01-2379 Civil :g Indicate the attorney wb:3 will try case for the party who files this praecipe: ' MiChael. J. Navitsky, Esquire 2040 Ling1estawn Rd., Ste 303IJI Harrisburg, PA 17110 , Indicate trial counsel for other parties if known: David L. Cook, Esquire, P.O. Box 31051 Rochester, NY 14603, eno........l for Defendant This case is ready for trial, Signed: Print Narre: Mi J. Navi re Date: May 2, 2006 Attomey for: Plaintiffs STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CNIL ACTION - LAW v. : NO. 01-2379 Civil Term FLYING J INC. tld/b/a FLYING J TRAVEL PLAZA, Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm ofNavitsky, Olson & Wisneski LLP, do hereby certify that on this 2nd day of May, 2006 served a true and correct copy of the Praecipe to List Case for Trial upon all counsel of record via postage prepaid first class United States mail addressed as follows: David 1. Cook, Esquire Nixon Peabody, LLP P.O. Box 31051 Rochester, NY 14603 Counsel for Defendant J~FJ~ Jessie K. Walsh . .-> (::=') ~~ \..":) -n -\ f~~5 L. L., ""D :;0: r~:'l (.~) ~ ':"~l :.<.: 4. Stewart D. McLain, and His Wife Jennifer S. McLain : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. Flying 1., Inc., t/d/b/a Flying J Travel Plaza : NO. Ol-2379ClVIL TERM Michael 1. Navitsky, Esquire For the Plaintiff We 1. esley Oler, ORDER OF COURT is continued from the September 18, 2006 trial tenn. COunsel are requested to relist the case for AND NOW, August 29, 2006, by agt"eemeIJt of collD8el, the above captioned case trial at such time as they deem appropriate. By the CoUrt, David L. Cook, Esquire For the Defendant tj'-(.-o<;, ~ ~ Jb{s Court Administrator lkd :'--:.:i/'{nJ 6 fl : II H~ S- dJS 9DDl AtfV.LOj'"..);. _ . 3Hl:lO :j~~YJ" c)-O~11J.:l If'" - .. PRAECIPE FOR LISTING CASE FOR TRIAL ORI~~w , (Must be typewritten and submitted in duplicate) TO THE PIDI'HONJI'ARY OF CUMBERLAND COUNTY Please list the following case: (Check one) (X ) for JURY trial at the next tenn of civil court. for trial without a jury. ----------------------------------------- CAPI'ION OF CASE (entire caption must be stated in full) (check one) Stewart D. McLain, and his wife, Jermifer S. ~Lain, ( X ) Civil Action - Law Appeal from Arbitration (other) (Plaintiff) vs. F1ying ol, Inc., t/d/b/a F1ying J Trave1 P1aza The trial list will be called on October 10, 2006 Trials coomence on ~ 6, 2006 ( Defendant) Pretrials will be held on Oct. 18. 2006 (Briefs are due 5 days before pretrials.) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 01-2379 Civil H Indicate the attomey who will try case for the party who files this praecipe: Hicbae1 J. Navitsky, Esq., 2040 Ling1estovn Rd., Ste. 303, Harrisburq, PA 17110 Indicate trial counsel for other parties if known: IBvi~ L. Cook, Esq..;, P,.;O. Box 3]051, RoChester, NY 14603 - for Defendant This case is ready for trial. Signed: Print Narre: Date: Sept. 11, 2006 Attomey for: P1aintiffs "." .... STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CNIL ACTION - LAW v. : NO. 01-2379 Civil Term FLYING J INe. t/d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the Jaw firm ofNavitsky, Olson & Wisneski LLP, do hereby certify that on this It o/day of September, 2006 served a true and correct copy of the Praecipe to List Case for Trial upon all counsel of record via postage prepaid first class United States mail addressed as follows: David L. Cook, Esquire Nixon Peabody, LLP P.O. Box 31051 Rochester, NY 14603 Counsel for Defendant ---J~ 1JLJkl Jessie K. Walsh ~ w (,_"J c::} 1"'0 v 'lo ALED-OFFICE OF THE PR01HO"~OTARY STEW ART D. McLAIN and JENNIFER S. McLAIN, his wife, Plaintiffs 20D& OCT 20 M11l ~ \ 3 IN THE <OOMKT"Qff.i(i:(Q~ PLEAS OF CUMBERLAFffi)I~1')t1NiW, PENNSYLVANIA vs. CIVIL ACTION - LAW 01-2379 CIVIL FL YING J INe. t/d/b/a FL YING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held October 19,2006, was Michael 1. Navitsky, Esquire, attorney for the plaintiffs. Counsel for the defendant, Flying J, David L. Cook, Esquire, and Terence J. Robinson, Esquire, participated by telephone. A petition for the participation of Mr. Robinson pro hoc vice is pending. This case involves a slip and fall accident that took place on January 29, 2000, at approximately 8:00 p.m. at the defendant's truck stop in Cumberland County. The plaintiff slipped and fell on "black ice" which had been created when piles of snow had melted and refrozen. Counsel for the plaintiff has objected to the testimony of maintenance manager Jack Baba, contending that he had not been identified as a witness until very recently. It appears, however, that Mr. Baba was mentioned as having been the maintenance manager in the deposition of Anthony Lucas, held on September 24, 2001. Jury selection in this case will occur on November 6,2006. The trial of the case will commence on November 9, 2006. The trial is not expected to last more than two days. October 19, 2006 -Ai " Michael 1. Navitsky, Esquire F or the Plaintiffs David L. Cook, Esquire For the Defendants Court Administrator . T , STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LA W r~~~ /'\ " I. vnf~~~\.o"~frtki v. : NO. 01-2379 Civil Term FLYING J INe. t/d/b/a FLYING J TRAVEL PLAZA, Defendants : JURY TRIAL DEMANDED PLAINTIFFS' PROPOSED POINTS FOR CHARGE AND NOW, into Court, through undersigned counsel comes the Plaintiffs, Stewart D. McLain and Jennifer S. McLain, and respectfully request that the Court instruct the Jury with the proposed Points for Charge, along with the Court's standard instructions in a civil case involving negligence and personal injury damages. Respectfully submitted, Date: [II~' of:, II . . , . PLAINTIFFS' POINTS FOR CHARGE NO.1 7.00 (Civ) OWNER OF LAND (DUTY OF CARE-GENERALLY) The standard or level of care owed by an owner of land to a person who entered the land depends on whether the person who entered was an invitee, a licensee, or a trespasser. 2 . . . . , PLAINTIFFS' POINTS FOR CHARGE NO.2 7.01A (Civ) OWNER OF LAND (INVITEE, PUBLIC INVITEE, AND BUSINESS VISITOR DEFINED) An invitee can be a public invitee or a business visitor. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. 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 owner ofthe land. 3 I ' ., , PLAINTIFFS' POINTS FOR CHARGE NO.3 7.02A (Civ) OWNER OF LAND (DUTY OF CARE OWED TO INVITEES GENERALLY) An owner of land is required to use reasonable care in the maintenance and use of the land, and to protect invitees from foreseeable harm. An owner of land is also required to inspect the premises and to discover dangerous conditions. An owner of land is liable for harm caused to invitees by a condition on the land if: 1. the owner knows or by using reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm, and 2. the owner should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it, and 3. the owner fails to use reasonable care to protect the invitees against the danger. An owner of land is liable to invitees for any harm that the owner should have anticipated, regardless of whether the danger is known or obvious. 4 " . . 1 ' PLAINTIFFS' POINTS FOR CHARGE NO.4 7.03 (Civ) OWNER'S DUTY OF CARE (DEFECT OR UNSAFE CONDITION IN ABUTTING PUBLIC SIDEWALK) One in possession of land is required to maintain the abutting public sidewalks in a reasonably safe condition to prevent or eliminate any hazardous or unsafe condition that, upon all the circumstances involved, would be an unreasonable risk of harm to pedestrians properly using walks. I 5 , . . . , . PLAINTIFFS' POINTS FOR CHARGE NO.5 7.10 (Civ) OWNER OF LAND TO ADJOINING LAND OUTSIDE OF THE PROPERTY) (DUTY OWNER, OF AND CARE OTHERS One who owns land in a developed or residential area has a duty to make reasonable inspections of the property, and to correct any conditions unreasonably dangerous to others that could be discovered by the use of reasonable care and that could be made reasonably safe by repair or otherwise. Therefore, if you find that the location of the defendant's property was in a developed or residential area, and that the plaintiff was caused harm by a dangerous condition on the defendant's property, and that the defendant by using reasonable care could have discovered the defect and the risk arising from it and could have made it reasonably safe by repair or otherwise, you may find the defendant liable for the resulting damage. 6 " . .. . . . . PLAINTIFFS' POINTS FOR CHARGE NO.6 OWNER OF LAND (DUTY OF CARE) Where a specific, localized, isolated patch of ice exists, it is comparatively easy for a property owner to take the necessary steps to alleviate the condition, while at the same time considerably more difficult for the pedestrian to avoid it even exercising the utmost care. Williams v. Shultz, 429 Pa. 429, 240 A.2d 812 CPa. 1968). 7 , . , ., . . . ' PLAINTIFFS' POINTS FOR CHARGE NO.7 3.00 (Civ) ISSUES IN THE CASE The plaintiff claims he was injured by the negligent conduct of the defendant. The plaintiff has the burden of proving his claims. The issues for you to decide, in accordance with the law as I give it to you are: 1. Was the defendant negligent? 2. Was the defendant's conduct a factual cause in bringing about injury to the plaintiff? 8 ., , .0 . . . . PLAINTIFFS' POINTS FOR CHARGE NO.8 3.01 (Civ) NEGLIGENCE-DEFINITION The legal term "negligence," otherwise known as carelessness, is the absence of ordinary care that a reasonably prudent person would use in the circumstances presented here. Negligent conduct may consist either of an act or a failure to act when there is a duty to do so. In other words, negligence is the failure to do something that a reasonably careful person would do, or doing something that a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. 9 .. I " . . . . PLAINTIFFS' POINTS FOR CHARGE NO.9 3.15 (Civ) FACTUAL CAUSE The plaintiff must prove to you that the defendant's conduct caused the plaintiffs damages. This is referred to as "factual cause." The question is: "Was the defendant's negligent conduct a factual cause in bringing about the plaintiffs damages?" Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. An act is a factual cause of an outcome if, in the absence of the act, the outcome would not have occurred. In order for conduct of a party to be a factual cause, the conduct must not be fanciful or imaginary, but must have played a real role in causing the injury. Therefore, in determining factual cause, you must decide whether the negligent conduct of the defendant was more than an insignificant factor in bringing about any harm to the plaintiff. Under Pennsylvania law, conduct can be found to be a contributing factor if the action or omission alleged to have caused the harm was an actual, real factor, not a negligible, imaginary, or fanciful factor, or a factor having no connection or only an insignificant connection with the injury. However, factual cause does not mean it is the only, primary, or even the most important factor in causing the injury. A cause may be found to be a factual cause as long as it contributes to the injury in a way that is not minimal or insignificant. To be a contributing factor, the defendant's conduct need not be the only factor. The fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability as long as his own negligence is a factual cause of the InJury. Remember, a factual cause is an actual, real factor, although the result may be unusual or unexpected. A factual cause cannot be an imaginary or fanciful factor having no connection or only an insignificant connection with the injury. Although a factual cause cannot be minimal or insignificant with regard to the injury, it can be relatively minor in relation to other factors and need not be quantified as being either considerable or large. 10 " , ,. . ' PLAINTIFFS' POINTS FOR CHARGE NO. 10 6.00 (Civ) DAMAGES If you find that the defendant is liable to the plaintiff, you must then find an amount of money damages you believe will fairly and adequately compensate the plaintiff for all the physical and financial injury he has sustained as a result of the occurrence. The amount you award today must compensate the plaintiff completely for damage sustained in the past, as well as damage the plaintiff will sustain in the future. 11 " . .' ~," , . . PLAINTIFFS' POINTS FOR CHARGE NO. 11 6.03 (Civ) PREEXISTING CONDITION OR INJURY Damages should be awarded for all injuries caused by the accident even if: 1. the injuries caused by the accident were more severe than could have been foreseen because of the plaintiff s prior physical condition; or 2. a preexisting medical condition was aggravated by the accident. If you find that the plaintiff did have a preexisting condition that was aggravated by the defendant's negligence, the defendant is responsible for any aggravation caused by the accident. I remind you that the defendant can be held responsible only for those injuries or the aggravation of a prior injury or condition that you find was factually caused by the accident. 12 , , ,', . .. 1 j '. I PLAINTIFFS' POINTS FOR CHARGE NO. 12 6.05 (Civ) OTHER CONTRIBUTING CAUSES The plaintiff is entitled to recover damages for all injuries that the defendant's negligence was a factual cause in producing. The defendant's negligence need not be the sole cause of the injuries; other causes may have contributed to producing the final result. The fact that some other factor may have been a contributing cause of an injury does not relieve a defendant of liability, unless you find that such other cause would have produced the injury complained of independently of his negligence. Even though prior conditions or concurrent causes may have contributed to an injury, if the defendant's negligence was a factual cause in producing the injury, the defendant is liable for the full amount of damages sustained, without any apportionment or diminution for the other conditions or causes. 13 II "" I. 1Il." t } I ..' PLAINTIFFS' POINTS FOR CHARGE NO. 13 6.07 (Civ) PAST LOST EARNINGS AND LOST EARNINGS CAPACITY The plaintiff is entitled to be compensated for the amount of earnings that he has lost up to the time of the trial as a result of his injuries. This amount is the difference between what he could have earned but for the harm and less any sum he actually earned in any employment. It is not essential to recovery that the plaintiff should have been employed at the time of the accident, but his opportunities for employment are relevant in determining the amount he could have earned. 14 ." /'1 l J 1l 11 l I " PLAINTIFFS' POINTS FOR CHARGE NO. 14 6.09 (Civ) PAST AND FUTURE-NONECONOMIC LOSS The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement. First, the plaintiff must have experienced pain and suffering in order to be able to claim damage awards for past noneconomic loss and for future noneconomic loss. You are instructed that the plaintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find he has endured from the time of the injury until today and that the plaintiff is also entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress you find he will endure in the future as a result of his injuries. Second, the plaintiff must have experienced embarrassment and humiliation in order to claim noneconomic loss. The plaintiff is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe he has endured and will continue to endure in the future as a result of his injuries. Third, the plaintiff must suffer loss of enjoyment of life. The plaintiff is entitled to be fairly and adequately compensated for the loss of his ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today and to be fairly and adequately compensated for the loss of his ability to enjoy any ofthe pleasures oflife in the future as a result of his injuries. Fourth, there must be disfigurement. The disfigurement that the plaintiff has sustained is a separate item of damages recognized by the law. Therefore, in addition to any sums you award for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment of life, the plaintiff is entitled to be fairly and adequately compensated for the disfigurement he has suffered from the time of the injury to the present and that he will continue to suffer during the future duration of his life. In considering the plaintiffs claims for damage awards for past and future noneconomic loss, you will consider the following factors: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of the physical pain and mental anguish that the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injuries; and (8) in the case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff. 15 ..... I 4 l" ". :JI.' 4/: 1, 1.. f PLAINTIFFS' POINTS FOR CHARGE NO. 15 6.10 (Civ) LOSS OF CONSORTIUM The plaintiffs spouse is entitled to be compensated for the past, present, and future loss of the injured party's services to her and the past, present, and future loss of companionship of her spouse. Consortium claims are losses arising out of the marital relationship. Consortium is the marital fellowship of a husband and a wife and includes the company, society, cooperation, affection, and aid of the other in the marital relationship. Such claims include a loss of support, comfort, and assistance, the loss of association, and companionship, and the loss of ability to engage in sexual relations. 16 .." , t r JL I PLAINTIFFS' POINTS FOR CHARGE NO. 16 6.12 (Civ) INCIDENT AL COSTS In addition to the costs of medical care, the plaintiff is entitled to be compensated for all other incidental costs incurred as a result of the accident, or that you find will be incurred in the future. These expenses may include: (1) Expenses that the Plaintiff incurred for the retention of additional help in the business; 17 (2) Cost of transportation, food, lodging and other incidental expenses incurred in seeking medical treatment, such as out-of-pocket expenses; (3) Interest on loans to pay bills; (4) Transportation to give comfort to the injured Plaintiff; (5) Household help during the period of convalescence; (6) Cost of telephone calls, food, lodging and transportation for the accompanying spouse and travel related expenses; (7) And such miscellaneous expenses as Plaintiffs were permitted to offer into evidence during this trial. .. II ". 1 ... . (. , .. . l -. PLAINTIFFS' POINTS FOR CHARGE NO. 17 6.21 (Civ) DAMAGES-LIFE EXPECTANCY If you find that the plaintiffs injuries will continue beyond today, you must determine the life expectancy of the plaintiff. According to statistics compiled by the United States Department of Health and Human Services, the average life expectancy of all persons of the plaintiffs age at the time of accident, sex, and race was 32 years. This figure is offered to you only as a guide, and you are not bound to accept it if you believe that the plaintiff would have lived longer or less than the average individual in his category. In reaching this decision, you are to consider the plaintiffs health prior to the accident, his manner of living, his personal habits, and other factors that may have affected the duration of his life. 18 r<) r--.\. \~-' ~'-;1 \ c:;. :r>1l ~:.. ...0 tJi STEWART D. MCLAIN, and his wife, JENNIFER S. MCLAIN, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW v. FLYING J, INC., t/d/b/a FLYING J TRAVEL PLAZA, DEFENDANT 01-2379 CIVIL TERM VERDICT QUESTION 1: Do you find that defendant was negligent? YES NO V" If you answer "Yes," proceed to Question 2. If you answer "No," plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. QUESTION 2: Was the negligence of defendant a factual cause in bringing about harm to plaintiff? YES NO If you answer "Yes," proceed to Question 3. If you answer "No," plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. g.U ESTION 3: Was plaintiff contributorily negligent? YES NO If you answer "No," proceed to Question 6. If you answer "Yes," proceed to Question 4. QUESTION 4: Was the contributory negligence a factual cause in bringing about harm to plaintiff? YES NO If you answer "No," proceed to Question 6. If you answer "Yes," proceed to Question 5. QUESTION 5: If you have answered "Yes" to questions 1, 2, 3, and 4, then answer the following: Taking the combined causal negligence that was a factual cause in bringing about plaintiff's harm as 100 percent, what percentage of that causal negligence is attributable to the defendant, and what percentage was attributable to plaintiff? PERCENTAGE OF CAUSAL NEGLIGENCE ATTRIBUTABLE TO DEFENDANT % PERCENTAGE OF CAUSAL NEGLIGENCE ATTRIBUTABLE TO PLAINTIFF % TOTAL 100% If you have found plaintiffs percentage of negligence to be greater than 50 percent, plaintiff cannot recover damages from defendant, and you should not answer any further questions and should return to the courtroom. If you have found plaintiff's percentage of causal negligence to be 50 percent or less, proceed to Question 6. QUESTION 6: State the amount of compensatory damages you find plaintiff, Stewart D. McLain sustained as a result of the causal negligence of defendant without reduction for the percentage of causal negligence, if any, that you have attributed to plaintiff. MEDICAL EXPENSES S INCIDENTAL EXPENSES S LOST INCOME S NON-ECONOMIC DAMAGES S TOTAL S QUESTION 7: If you have awarded compensatory damages to plaintiff in Question 6, state the total amount of damages for loss of consortium that you find Jennifer S. McLain sustained as a result of the causal negligence of defendant. TOTALS /I f!1J 0 to (Date) CASE NO.: 1l..JJ S\-~Q.n:l. J). 1\1 c.Let.) 1\ e.+ A..J DOCKET NO.: D J - d-.3 7 Cf VS uror # Name 1 23 WISER, RA YE z- 1:; 3fOYER, DEROR.^&H L. 3 25 SAYLOR, WILLIAM T. III -:r- ~ G.!11H~l\.T~R, W..ULA K 5 31 MILLHOUSE, ANGELA :::fi? --- 11 MK:J:, RFf../.. ,.., 26 GETZ,5USAN -&-- 14 vv 15l!It, n.N.1-IN -9- rZ,l. 1m r, l~~n:R ]Ol:lN 11't- 3~ cey, CI RUSTY H. ! 1 20 BRANTNER, JUDITH B. t~ 36 Hurl(".!1 RD; D4~ RLENE 13 10 EPPLEY, DAVID L. . ~ 17 R"' RIlOYR :pD A l\T(,iS C. is 19 NYE, JANICE D. . 16 28 MIELO, KATHLEEN ANN 17 6 ST AKEM, HOLLY 18 18 CORNETT, DAVID M. . , 19 2 fL\RTL~E,JAMES ~ 38 lt~ ~ TeOT ~ VIRCIN"ClM:" 21 30 TURNAGE, DENNIS L 22 9 JOHNSON, KAREN fr; ~:1 ~, 1 IaB1.~R, DONALD W. ~ ~ SAMUeL, MOliAN 2~ 'i3- ---- -EOBINRON. M,"' lUli: -2~ :\4 ~~~IS~ANDY E. .. .-- >,7 ~! --.BO~ AfTER, JAY -28 ---3 DLUZE~. ::%l. 4 ---fll~;mLI!K, rAMELA-K ':+(1 5_ El.1..~ TIMOT~J Monday, November 06, 2006 COURTROOM NO.: {t~ PI '/t 1\ a ~ + Jd.fj, ,J 0.. FlY'1<<f J. TI"~t..-( .:p{a.-za.. DATE: ,,- 0" - DC, Random No. -1962141726 lea~b3b344 -1160247072 ~Q?~B~985 -1037189251 -:1.(I'3:Fi9gSl -940388511 8f)962S~ 98991!~5 ..-s66~2.Br38 -555640940 -2~';~LSBeS- -197956804 -~ -93139777 -12609010 73808350 145753206 175205042 <::25354.4793 706119404 1064673287 11622249S1 l5~H~4ga- 16328rS466 1666450931 l-i'83~531% t8::>U4b3323 ~~~lY68 .21137,)6461 Page 1 of 1 ----.-. ,'-,.~:'~~ "':"'*V@j . ..': ',".-", ,',P ....,.._d..', _ _', ~, Jury Panel for Courtroom No. {i,4. Juror # Name ~.l- 2 3- 4 i- 6 9 10 ~ -'l-3 ..11 ~ ..l~ '" -i5' L"> 18 "19 20 1?~ 23 A .,M 25 26 28 A 29 - i? /Ji;;JJw~ lGBLER,-VOI4ALD YIr HARTLINE, JAMES nT TT1:~SIG, LE:E'e- niWL~K, f'1'ilvmLl\. K. ELL~ 'flMOfIfY J ST AKEM, HOLLY JOHNSON, KAREN E. EPPLEY, DAVID L. ~.r R"FT"^1 . RQURror:.tN, MARiE \ 'mER, Inn ~ "l S'fEY.l.'f::K, uEI:SU.lVU1 L. OAl{I:SUUK,l'KANCES C. CORNETT, DAVID M. NYE, JANICE D. BRANTNER, JUDITH B. FILe, LE~R JOlIN -- 'l? .o--iJ2J- WISER, RAY E 3Ahft:f~L, IVIUff)u~ SAYLOR, WILLIAM T. III GETZ, SUSAN MIELO, KATHLEEN ANN C~\-IIDr JER, P AUL/.. K 30 TURNAGE, DENNIS L 31 MILLHOUSE, ANGELA ~2 BO'~}~R1fA~~K, JAY q ~:~~~~~,D::~~1f>4~ 38 . - ~B~~lCOUP, TvlKGtMIA~ ; t \? ~ <:;ffi', CHRISTY II. -17 A> V UACf I Total number of jurors going to the courtroom: 30 Monday, November 06, 2006 Pagelofl l ~. o "" COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES - vs- Plaintiffs, I FL YING 1., INC., t/d/b/a/ FL YING 1. TRA VEL PLAZA, Defendant. ! CIVIL ACTION LA W No.: 01-2379 Defendant, Flying J., Inc. ("Flying J"), hereby moves the Court to prohibit Plaintiff, Stewart D. McLain ("McLain"), from testifying that he heard Kevin Addington ("Addington") order Flying J employees to spread salt and sand. On January 29, 2000, McLain fell and injured himself at a Flying J facility in Carlisle, Pennsylvania (the "Carlisle Facility"). At the time, Addington was the night manager on duty at the Carlisle Facility. Upon information and belief, Flying J believes that McLain will testify that shortly after his fall he heard Addington tell other unidentified Flying J employees to spread some salt and sand so that no one else would get hurt (the "alleged statement"). (Stewart McLain Dep. 76:5-9, Sept. 24, 2001 ("Exhibit A").) McLain seeks to admit the alleged statement to show that Flying J's negligence created slippery conditions at the Carlisle Facility, as evidenced by Addington feeling the need to make the alleged statement. However, salt and sand was spread in the area where McLain fell, per the policy of Flying J to regularly monitor conditions and spread salt and sand whenever slippery conditions occur. Anthony Lucas, the General Manager of the Carlisle Facility in January 2000 will testify that he inspected the accident site on January 31, 2000, and that there was salt and sand in the area. (Anthony Lucas Dep. 11 :14-12:3, Sept. 24,2001) ("Exhibit B").) Therefore, 10181026.1 a. " 10 - 2 - any attempt to admit the alleged statement violates Pa.R.E. 407 regarding subsequent remedial measures. "When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent or engaged in culpable conduct." Pa.R.E.407. While Defendants may argue that the alleged statement does not assert that salt and sand were spread, and that they are therefore not seeking to introduce subsequent remedial measures, the fact is that salt and sand was spread on the area. (Lucas Dep. 11 :14-12:3.) Therefore, Pa.R.E. 407 applies, and Flying J requests that the Court preclude McLain from testifying regarding the alleged statement. Respectfully submitted, NIXON PEABODY LLP By: ~~~ David L. Cook Terence L. Robinson Jr. Attorneys for Flying J, Inc. Clinton Square P.O. Box 31051 Rochester, New York 14603-1051 Telephone: (585) 263-1000 Dated: Rochester, New York November L, 2006 10181026.1 r--:; ~ ~,.:? c::r ~ (:1: \ _J -c ~..... ~-~ N ., r') c.~.: STEWART D. MCLAIN, and his : IN THE COURT OF COMMON PLEAS OF wife, JENNIFER S. MCLAIN, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : CIVIL ACTION-LAW V. FLYING J, INC., tld/b/a FLYING J TRAVEL PLAZA, DEFENDANT : 01-2379 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of November, 2006, Terence L. Robinson, Jr., Esquire, is admitted pro hac vice in this case. ~chael J. Navitsky, Esquire 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 For Plaintiffs ~avid L. Cook, Esquire Clinton Square P.O. Box 31051 Rochester, NY 14603-1051 For Defendant :sal 00 :21 !<d S I l,ON 9UOl 1\.[1;/ i (':;\', . \', 'cJ "l!1j _1("' AU .,,;..\..11 >\J, .~,~...l,~" :Jj"IJ....1V :D1J:IO"{Ifll::l