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HomeMy WebLinkAbout04-4171IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SCOTT SHANE, V. Plaintiff, Docket No. '0 ? - y 17 / (? . ?l1 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, Defendant. Civil Action at Law NOTICE TO DEFEND 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, PA 17013 Phone: (717)249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ,SC-o f*- .f l1Gr? CIVIL ACTION - LAW Plaintiff, o 4- 4 1-71 G% t/-" «" V. COMMONWEALTH of PENNSYLVANIA,: DEPARTMENT OF CORRECTIONS, Defendant. JURY TRIAL DEMANDED .?- COMPLAINT'S -dr 1. PARTIES jG 1 Roo`('f" "6' .5&, j6.4 544-We- B o'4 '4 1. Plaintiff C-reig-Shirk is an adult, ago-54-,and resides at 910 N. 9`h St,?,t, Reading,- Berks County, Pennsylvania. /? 6,23 2. Defendant Commonwealth of Pennsylvania, Department of Corrections is a state government agency with a central office of business located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania. If. FACTS 3. Defendant operates numerous state correctional institutions within its boundaries, including the State Correctional Institution at Rockview ("SCI - Rockview") in Centre County, Pennsylvania. 4. On September 9, 2002, Defendant operated SCI - Rockview. 5, On September 9, 2002, Plaintiff resided at SCI - Rockview as an inmate. 6. As of September 9, 2002, Defendant had classified the Plaintiff as Custody Level 2R. 7. On September!), 2002, Defendant employed Plaintiff on an inmate carpentry work detail. 8. On September 9, 2002, Defendant employed a Mr. Figurelle as the supervisor of inmates assigned to the carpentry detail at SCI - Rockview. 9. On September 9, 2002, Defendant owned a structure connected to the main boiler house at SCI - Rockview. 10. The structure in question was a fixture. 11. Prior to September 9, 2002, defense staff had affixed and removed 4 x 8 OSB plywood sheets several times on the roof of the structure in question. 12. On September 9, 2002, Mr. Figurelle ordered the Plaintiff to climb upon the roof of the structure connected to the boiler house and remove the remaining four sheets of 4 x 8 plywood from the roof decking. 13. As of September 9, 2002, DOC policy required work supervisors to maintain visual contact on Level 2R inmate workers throughout the work day. 14. The roof had no fall protection guardrail or other such employee safety device. 15. As directed, the Plaintiff climbed upon the roof, approximately sixteen feet off of the ground. 16. Mr. Figurelle, another supervisor, and several inmate workers were inside of the main boiler house removing roof-support joists outside of the view of the Plaintiff atop the roof of the neighboring structure. 17. The Plaintiff stood upon one sheet of plywood. 18. The Plaintiff removed the first two sheets of plywood with a battery-operated screw gun and passed them down to another inmate standing on the ground. 19. Rockview Maintenance Department policy required inmate workers to wear a safety harness line when working more than six feet off of the ground. 20. On September 9, 2002, the Defendant provided no lanyard safety harness line to the Plaintiff for his safety on the roof. 21. The sheet of plywood upon which the Plaintiff was standing suddenly broke loose. 22. Plaintiff then fell to the ground and landed on his feet and right wrist. 23. Plaintiff proceeded to the Rockview infirmary with assistance from others. 24. Medical staff took x-rays of the heels of the feet of the Plaintiff. 25. The x-rays showed that the impact of the fall had caused both heels of the Plaintiff to shatter. 26. On September 12, 2002, staff drove the plaintiff to the Nittany Valley Foot and Ankle Center of Centre County. 27. Christine Weikert, M.D., applied temporary casts to the feet of the Plaintiff at the Nittany Valley Foot and Ankle Center. 28. The Plaintiff required a wheelchair from September 9, 2002 until January 23, 2003. 29. On September 24, 2002, medical personnel replaced the temporary casts with more permanent casts. 30. On October 23, 2002, Mr. Figurelle rated the Plaintiff on an Inmate Progress Report covering for the past quarter year as having exhibited "good" observation of safety rules and as having a "good" accident record. 31. On October 31, 2002, Doctor Weikert re-cast the feet of the Plaintiff. 32. On November 19, 2002, Dr. Weikert removed the casts and provided the Plaintiff with orthopedic boots. 33. The Plaintiff required crutches from January 23, 2003 until March 31, 2003. 34. On February 5, 2003, Dr. John Symons injected a steroid into the right wrist of the Plaintiff due to carpal tunnel damage sustained from the impact of the fall on the wrist. 35. The Pennsylvania Department of General Services, Bureau of Risk & Insurance Management denied Administrative Tort Claim #257851 of the Plaintiff on grounds of alleged superseding contributory negligence. 36. On June 5, 2003, the Plaintiff began wearing orthopedic boots by permission of the Defendant. 37. On September 15, 2003, Dr. Romeo prescribed Motrin and analgesic balm to the Plaintiff for his pain and suffering. 38. On October 7, 2003, Ms. Kennedy, a medical assistant, injected the right ankle of the Plaintiff with Kenalog-10, a steroid. 39. On November 19, 2003, Ms. Kennedy injected the left ankle of the Plaintiff with a steroid shot. 40. On December 2, 2003, Ms. Kennedy injected the right wrist of the Plaintiff with a steroid shot. 41. Every night, the Plaintiff soaks in a tub of water, applies Ben-Gay ointment, and ingests Motrin to alleviate his pain and suffering. 42. The Defendant has reassigned the Plaintiff to a light-duty janitor position. 43. Prior to September 9, 2002, the Plaintiff had been a physically active man. 44. Doctor Weikert recommended that the Plaintiff obtain surgery on his feet and retain the services of a chiropractor if the Defendant discharges him onto parole. III. CAUSE OF ACTION 45. Plaintiff sustained physical injury due to the negligence of the Defendant and its agents. 46. Plaintiff sustained pain and suffering due to the negligence of the Defendant and its agents. 47. Defendant owed a duty of care to Plaintiff on September 9, 2002. 48. Defendant breached its duty of care to Plaintiff. 49. Defendant committed negligence toward the Plaintiff. 50. Mr. Figurelle acted as an agent on behalf of the Defendant at all relevant times. 51. Defendant and its agents breached their duty of care toward Plaintiff by knowingly, recklessly, and carelessly permitting Plaintiff to conduct carpentry work on the roof of the secondary boiler house structure without protective lanyard safety harness line or guardrail. WHEREFORE, Plaintiff hereby demands judgment against Defendant as follows: a. Compensatory damages for more than $25,000; b. Costs; and c. Any other relief deemed appropriate by the Court. Respectfully Submitted, WISBURG PRIS N PROJECT, INC. BY: David L. Glassm , taff Attorney P.O. Box 128 Lewisburg, PA 17837 Phone: (570)523-1104 Date: Pui%A 19 2004 VERIFICATION I declare under penalty of perjury pursuant to 18 Pa. C.S.A. 4904 that the foregoing Complaint is true and correct to the best of my knowledge. Cott Shane Executed on August _, 2004. s ?l ?i C G` v C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SCOTT SHANE, V. Plaintiff, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, Defendant. Docket No. O Y - yI'I I C,; J-e.,, Civil Action at Law NOTICE TO DEFEND 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 import you. an t to 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.TfIE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717)249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SCOTT SHANE, Plaintiff, • Docket No. 04-4171 Civil Term V. COMMONWEALTH OF PENNSYLVANIA,: Jury Trial Demanded DEPARTMENT OF CORRECTIONS, SCI - ROCKVIEW, Defendant. AMENDED COMPLAIN 'T' PARTIES 1. Plaintiff Scott Shane is an adult, age 37, and resides at SCI - Rockview, Route 26, Box A, Bellefonte, Centre County, Pennsylvania. 2. Defendant Commonwealth of Pennsylvania, Department of Corrections, State Correctional Institution at Rockview is a state government agency with a central office of business located at 55 Utley Drive, Camp Hill, Cumberland County, Pennsylvania. II. FACTS 3. Defendant operates numerous state correctional institutions within its boundaries, including the State Correctional Institution at Rockview ("SCI - Rockview") in Centre County, Pennsylvania. 4. On September 9, 2002, Defendant operated SCI - Rockview. 5. On September 9, 2002, Plaintiff resided at SCI - Rockview as an inmate. 6. As of September 9, 2002, Defendant had classified the Plaintiff as Custody Level 2R. 7. On September 9, 2002, Defendant employed Plaintiff on an inmate carpentry work detail. 8. On September 9, 2002, Defendant employed a Mr. Figurelle as the supervisor of inmates assigned to the carpentry detail at SCI - Rockview. 9. On September 9, 2002, Defendant owned a structure connected to the main boiler house at SCI - Rockview. 10. The structure in question was a fixture. 11. Prior to September 9, 2002, defense staff had affixed and removed 4 x 8 OSB Plywood sheets several times on the roof of the structure in question. 12. On September 9, 2002, Mr. Figurelle ordered the Plaintiff to climb upon the roof of the structure connected to the boiler house and remove the remaining four sheets of 4 x 8 plywood from the roof decking. 13. As of September 9, 2002, DOC policy required work supervisors to maintain visual contact on Level 2R inmate workers throughout the work day. 14. The roof had no fall protection guardrail or other such employee safety device. 15. As directed, the Plaintiff climbed upon the roof, approximately sixteen feet off of the ground. 16. Mr. Figurelle, another supervisor, and several inmate workers were inside of the main boiler house removing roof-support joists outside of the view of the Plaintiff atop the roof of the neighboring structure. 17. The Plaintiff stood upon one sheet of plywood. 18. The Plaintiff removed the first two sheets of plywood with a battery-operated screw gun and passed them down to another inmate standing on the ground. 19. Rockview Maintenance Department policy required inmate workers to wear a safety harness line when working more than six feet off of the ground. 20. On September 9, 2002, the Defendant provided. no lanyard safety harness line to the Plaintiff for his safety on the roof. 21. The sheet of plywood upon which the Plaintiff was standing suddenly broke loose. 22. Plaintiff then fell to the ground and landed on his feet and right wrist. 23. Plaintiff proceeded to the Rockview infirmary with assistance from others. 24. Medical staff took x-rays of the heels of the feet of the Plaintiff. 25. The x-rays showed that the impact of the fall had caused both heels of the Plaintiff to shatter. 26. On September 12, 2002, staff drove the plaintiff to the Nittany Valley Foot and Ankle Center of Centre County. 27. Christine Weikert, M.D., applied temporary casts to the feet of the Plaintiff at the Nittany Valley Foot and Ankle Center. 28. The Plaintiff required a wheelchair from September 9, 2002 until January 23, 2003. 29. On September 24, 2002, medical personnel replaced the temporary casts with more permanent casts. 30. On October 23, 2002, Mr. Figurelle rated the Plaintiff on an Inmate Progress Report covering for the past quarter year as having exhibited "good" observation of safety rules and as having a "good" accident record. 31. On October 31, 2002, Doctor Weikert re-cast the feet of the Plaintiff. 32. On November 19, 2002, Dr. Weikert removed the casts and provided the Plaintiff with orthopedic boots. 33. The Plaintiff required crutches from January 23, 2003 until March 31, 2003. 34. On February 5, 2003, Dr. John Symons injected a steroid into the right wrist of the Plaintiff due to carpal tunnel damage sustained from the impact of the fall on the wrist. 35. The Pennsylvania Department of General Services, Bureau of Risk & Insurance Management denied Administrative Tort Claim #257851 of the Plaintiff on grounds of alleged superseding contributory negligence. 36. On June 5, 2003, the Plaintiff began wearing orthopedic boots by permission of the Defendant. 37. On September 15, 2003, Dr. Romeo Prescribed Motrin and analgesic balm to the Plaintiff for his pain and suffering. 38. On October 7, 2003, Ms. Kennedy, a medical assistant, injected the right ankle of the Plaintiff with Kenalog-10, a steroid. 39. On November 19, 2003, Ms. Kennedy injected the left ankle of the Plaintiff with a steroid shot. 40. On December 2, 2003, Ms. Kennedy injected the right wrist of the Plaintiff with a steroid shot. 41. Every night, the Plaintiff soaks in a tub of water, applies Ben-Gay ointment, and ingests Motrin to alleviate his pain and suffering. 42. The Defendant has reassigned the Plaintiff to a light-duty janitor position. 43. Prior to September 9, 2002, the Plaintiff had been a physically active man. 44. Doctor Weikert recommended that the Plaintiff obtain surgery on his feet and retain the services of a chiropractor if the Defendant discharges him onto parole. III. CAUSE OF ACTION 45. Plaintiff sustained physical injury due to the negligence of the Defendant and its agents. 46. Plaintiff sustained pain and suffering due to the negligence of the Defendant and its agents. 47. Defendant owed a duty of care to Plaintiff on September 9, 2002. 48. Defendant breached its duty of care to Plaintiff. 49. Defendant committed negligence toward the Plaintiff. 50. Mr. Figurelle acted as an agent on behalf of the Defendant at all relevant times. 51. Defendant and its agents breached their duty of care toward Plaintiff by knowingly, recklessly, and carelessly permitting Plaintiff to conduct carpentry work on the roof of the secondary boiler house structure without a protective lanyard safety harness line or guardrail and under otherwise unsafe conditions without supervision. WHEREFORE, Plaintiff hereby demands judgment against Defendant as follows: a. Compensatory damages for more than $25,000; b. Costs; and C. Any other relief deemed appropriate by the Court. Respectfully Submitted, WISBU G PPORISON PROJECT, INC. BY: David L. Glassm ?StaffAttorney P.O. Box 128 Lewisburg, PA 17837 Phone: (570)523-1104 Date: August 31, 2004 VERIFICATION I declare under penalty of perjury pursuant to 18 Pa. C.S.A. 4904 that the foregoing averments in my Amended Complaint are true and correct to the best of my knowledge. Executed on August o2 2004. N C7 o 6 r TI ry'. 1 4: Cn r* -N c R Z im ? =oin - ` r rj "yl ?l `?fil L • a N 2 O Office of Attorney General Torts Litigation Section 15'" Floor, Strawberry Square Harrisburg, PA 17120 SHANE, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4171 CIVIL TERM Defendant CIVIL ACTION - LAW ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Defendant, Commonwealth of Pennsylvania, Department of Corrections, State Correctional Institution at Rockview, in regard to the above case. D IEL R. TE DEPUTY ATTORNEY GENERAL #30986 CERTIFICAT nr U8 -• ZE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: David L. Glassman, Esquire Lewisburg Prison Project, Inc. P.O. Box 128 Lewisburg, PA 17837 NIEL E Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-31 7 DATED: qTA 910 4 t-, r 7) 1 F- rv ,;? W ny ? u I O L (a(' j'?_ ;tl: ?I YY7 N 1 ..1 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-04171 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHANE SCOTT VS PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: PENNSYLVANIA ATTORNEY GENERAL TORT CLAIMS DIVISION but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On October 4th , 2004 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answers- Docketing 6.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Dauphin County 26.25 Sheriff of Cumberland County .00 51.25 10/04/2004 LEWISBURG PRISON PROJECT Sworn and subscribed before me this k day of Q/?L a C)6 AID y` P of onotar SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-04171 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHANE SCOTT VS PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: SCI ROCKVIEW but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of CENTRE County, Pennsylvania, to serve the within COMPLAINT & NOTICE On October 4th , 2004 , this office was in receipt of the attached return from CENTRE Sheriff's Costs: So answer-s- Docketing 6.00 Out of County 9.00 Surcharge 10.00 1?. Thomas Kline Dep Centre County 25.95 Sheriff of Cumberland County .00 50.95 10/04/2004 LEWISBURG PRISON PROJECT Sworn and subscribe before me this day of D?C3L3 A D. P)?ot onotar SHERIFF'S RETURN - REGULAR CASE NO: 2004-04171 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHANE SCOTT VS PENNSYLVANIA COMMONWEALTH OF CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF CORRECTIONS the DEFENDANT , at 0935:00 HOURS, on the 13th day of September, 2004 at 55 UTLEY DRIVE CAMP HILL, PA 17011 by handing to STACEY JARVIS, CLERICAL SUPV. ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.36 Affidavit .00 Surcharge 10.00 .00 38.36 Sworn and Subscribed to before this _ 4k day of U 4 A.D. Prothon tary 1117 So Answers: R. Thomas Kline 10/04/2004 LEWISBURG PRISON PROJECT By.? 66 Deputy Sheriff In The Court of Common Pleas of Cumberland County, Pennsylvania Scott Shane vs. Commonwealth of Pennsylvania. Department of Corrections et al SERVE: Pennsylvania Attorney General No. 04-4171 civil . Now, September 7. 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within , 20___,_, at o'clock M. served the upon at by handing to a and made known to Sheriff of copy of the original the contents thereof. So answers, COSTS Sworn and subscribed before SERVICE me this _ day of 20` MILEAGE AFFIDAVIT County, PA (mb f the iff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph:(717)255-2660 fax:(717)255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin SHANE SCOTT vs • PA ATTORNEY GENERAL Sheriff's Return No. 6569-T - - -2004 OTHER COUNTY NO. 04 4171 J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy AND NOW:September 17, 2004 at 11:40AM served the within NOTICE OF AMENDED COMPLAINT upon PA ATTORNEY GENERAL by personally handing to CATHY STEHMAN-RCPT 1 true attested copy(ies) of the original NOTICE OF AMENDED COMPLAINT and making known to him/her the contents thereof at STRAWBERRY SQUARE 15TH FLOOR , PA 00000-0000 Sworn and subscribed to tefore me this 20TH day of SEPTEMBER, 2004 NOTARIAL SEAL MARY JANE SNYDER., Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, ; ? t? Sheriff of Dauphin Co By De y Sheriff Sheriff's Costs:$26.25 PD 09/10/2004 RCPT NO 199459 ET In The Court of Common Pleas of Cumberland County, Pennsylvania Scott Shane vs. Commonwealth of Pennsylvania, Department of Corrections et al SERVE: SCI Rockview 04-4171 civil No. Now, Septernber 7. 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Centre County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, ?a??ern?e(L I& 1'? 20011, at as- o'clock- AM. served the within Ayrl e Ad xod- Camp 1 a,A4 upon ACT AOCAV C?Q- n at Rpx A? ?DeI(e? ,L, (a°n?tC Caun,l,? IJennS? lJania byhandingto A&-tCMo )apt , AS-,t, Sc,ge2in?e??AK{ a copy of the original and made known to m ?1) d aei the contents thereof. ;7,,w,e,rs? Me.. den y A/ayn? Sheriff of County, PA COSTS Sworn and subscribed before SERVICE OQ $ me this J day of 120 ? MILEAGE 3,a f AFFIDAVIT a• 5-d k&L,d -s S, ?9 5? yq Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 SCOTT SHANE, Plaintiff V. Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 IN THE COURT" OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF : NO. 04-4171 CIVIL TERM CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, Defendant : CIVIL ACTION - LAW NOTICE TO PLEAD TO ALL PARTIES: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. RESPECTFULLY SUBMITTED: GERALD J. PAPPERT Attorney General BY)DNYMIEE*L r R. MOTE ior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 SCOTT SHANE, Plaintiff V. Daniel R. Goodemote Senior Deputy Attorney General Direct Dial 717-783-3147 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF : NO. 04-4171 CIVIL TERM CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, Defendant : CIVIL ACTION - LAW ANSWER AND NEW MATTER OF DEFENDANT, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW TO PLAINTIFF'S COMPLAIN Defendant, Commonwealth of Pennsylvania, Department of Corrections, State Correctional Institution at Rockview, by and through the Office; of Attorney General, files the following Answer to Plaintiff's Complaint: Admitted as stated. 2. Denied. The principal place of business of the Commonwealth of Pennsylvania, Department of Corrections, is located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania. Admitted that the Defendant operates state correctional institutions located within the Commonwealth of Pennsylvania, including the State Correctional Institution at Rockview (SCI-Rockview) in Centre County, Pennsylvania. 4. Admitted as stated. 5. Admitted as stated. 6. Admitted as stated. 7. Admitted as stated. 8. Admitted as stated. 9. Admitted as stated. 10. The allegation of paragraph 10 is a conclusion of law to which no responsive pleading is required. To the extent a responsive pleading is required, the Commonwealth Defendant avers that the structure connected to the main boiler house was a temporary structure which housed a boiler rented by the Commonwealth Defendant. 11. Denied. Plywood was not affixed to the structure in question prior to September 9, 2002. 12. Denied as stated. On September 9, 2002, Mr. Figurelle ordered the Plaintiff to remove plywood. Scaffolding was in place and it was expected that Plaintiff would stand upon the scaffolding to remove the plywood. 13. It is believed and therefore averred that such a policy was in place on September 9, 2002. By way of further answer, said regulation addresses security provisions for inmates and is not a safety regulation. 14. Denied. The scaffolding in place at the time of the accident had railing on it. 15. Denied that Plaintiff was ordered to climb up on the roof. It is denied that the roof was approximately 16 feet off the ground. The Commonwealth Defendant avers that it was approximately 12 feet off the ground. 16. Denied as stated. The allegation in paragraph 115 provides no time frame for the events in question. By way of further answer, at the time of Plaintiff's fall, Mr. Figurelle was retrieving tools from a truck. 17. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the trath of these averments. 18. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 19. Denied. 20. Admitted. 21. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 22. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 23. Admitted. 24. Admitted. 25. Admitted only that the x-rays showed fractures to both heels. The remainder of the allegations to paragraph 25 are denied as x-rays cannot show the cause of an injury. 26. Admitted. 27. Denied as stated. Medical records indicate that Jones Compression Dressings with bilateral splints were applied. 28. Denied as stated. Crutches were provided to the Plaintiff on October 31, 2002 and a notation was made that a wheelchair may be used for extended periods of weight bearing. 29. Admitted. 30. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. By way of further answer, the Commonwealth Defendant avers that it cannot locate the record in question. 31. Admitted. 32. Admitted. 33. Denied. The medical records do not indicate that crutches were required for the period stated. 34. Admitted only that on February 5, 2002, Dr. John Symons injected a steroid into the right wrist of the Plaintiff due to carpal tunnel damage to Plaintiff s wrist. There is no documentation that the carpal tunnel was in fact caused from the fall described in Plaintiffs Complaint. 35. Admitted. 36. Admitted. 37. Admitted only that Dr. Romeo prescribed Motrin to the Plaintiff on September 15, 2003. Medical records indicate that Dr. Symons prescribed an analgesic balm to the Plaintiff on August 21, 2003. The remaining allegations of paragraph 37 are denied. 38. Admitted. 39. Admitted. 40. Admitted. 41. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 42. Admitted. 43. Denied. After reasonable investigation, the Commonwealth Defendant is without sufficient knowledge or information to form a belief as to the truth of these averments. 44. Denied as stated. On December 24, 2002, Dr. Weikert wrote inmate "may want to pursue" surgery at some point in the future. 45. Denied generally pursuant to Rule 1029(e) of the; Pennsylvania Rules of Civil Procedure. 46. Denied generally pursuant to Rule 1029(e) of the; Pennsylvania Rules of Civil Procedure. 47. Denied as a legal conclusion to which no responsive pleading is required. 48. Denied generally pursuant to Rule 1029(e) of the; Pennsylvania Rules of Civil Procedure. 49. This paragraph is denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 50. Admitted. 51. This paragraph is denied generally pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. WHEREFORE, the Commonwealth Defendant demands judgment in its favor and against the Plaintiff. NEW MATTER 52. The present action is controlled by the provisions of 1 Pa. C. S. §2310 and Act No. 1980-142, set forth in 42 Pa. C.S. §§8501, et seq., which Acts are incorporated herein and pled by reference. The Commonwealth Defendant asserts all the defenses contained therein. 53. The Plaintiff was contributorily negligent and/or failed to mitigate the claimed damages, thereby limiting and/or barring any recovery. RESPECTFULLY SUBMITTED: GERALD J. PAPPERT ATTORNEY GENERAL BY: 4v?, NIEL O DEMOTE Sr. Deputy Attorney General #30986 VERIFICATION I, O FFRE Y F}- ??A CKo? N , VERIFY THAT THE FOREGOING STATEMENTS ARE TRUE AND CORRECT TO THE BEST OF MY INFORMATION, KNOWLEDGE AND BELIEF, AND ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa. C.S.S4904 RELATING TO UNSINORN FALSIFICATION TO AUTHORITIES. n Date: 11l 9 l o oo4 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: David L. Glassman, Esquire Lewisburg Prison Project, Inc. P.O. Box 128 Lewisburg, PA 17837 ?D NIEL R,. GO EMOTE Senior Deputy Attorney General #30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-31DATED: I @0"'q h.? ' ?. fa G : ? ? ? ?.. ? ` ? '-? t rT'1 -? -r- 1 - ? _. ?,.,i ? 7 1 » f'- ? ? 7? ° ? .. .{ ?? Cam) `?:?"7 ` GJ - °': Lewisburg Prison Project, Inc. P.O. Box 128 Lewisburg, PA 17837 SCOTT SHANE, Plaintiff, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, David L. Glassman Staff Attorney Phone: (.570)523-1104 :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. :NO. 04-4171 CIVIL TERM Defendant. :CIVIL ACTION - LAW PLAINTIFF'S REPLY TO NEW MATTER Plaintiff Scott Shane, by and through David L. Glassman, his attorney, files the following Reply to New Matter filed by the Defendant: 52. Denied as a legal conclusion to which no responsive pleading is required. 53. Denied as a legal conclusion to which no responsive pleading is required. WHEREFORE, Plaintiff Scott Shane hereby demands judgment against Defendant Commonwealth of Pennsylvania, Department of Corrections, State Correctional Institution at Rockview. Respectfully Submitted, LEWISBURG PRISON PROJECT, INC. BY: -" CY z4L , David L. Glass ; n, Staff Attorney P.O. Box 128 t' Lewisburg, PA 17837 Phone: (570)523-1104 Penna. Attorney ID #51200 Date: February a, 2005 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General 15' Floor, Strawberry Square Harrisburg, PA 17120 art 9 •?, DAVID L. GLQ,., MAN Staff Attorney. PA ID #51200 Lewisburg Prison Project, Inc. P.O. Box 128 Lewisburg, PA 17837 (570)523-1104 DATED: February A, 2005 VERIFICATION I, SCOTT SHANE, VERIFY THAT THE FOREGOING STATEMENTS ARE TRUE AND CORRECT TO THE BEST OF MY INFORMATION, KNOWLEDGE, AND BELIEF, AND ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa. C.S. §4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. Scott Shams Date: February a, 2005 ,, ,:, ??::? LEWISBURG PRISON PROJECT H of d P.O. Box 128 Ph'. 570.523.1104 Fax: 570.523.3944 Lewisburg PA 17837 Email: prisonproject@dejazzd.com Organized in 1973 February 9, 2005 Curtis R. Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 RE: Scott Shane v. Commonwealth of Pennsylvania, Department of Corrections Cumberland County No. 04-4171 Civil Dear Mr. Long: I am enclosing an original plus one copy of "Plaintiff's Reply to New Matter" in the above-referenced matter. Kindly file the original, date stamp the copy, and return the copy to me in the enclosed self-addressed stamped envelope. This afternoon, defense counsel verbally consented to my request to file this Reply beyond the time specified in their Notice to Plead and in Rule 1026(a). My client had experienced difficulty in returning his signed verification to me from state prison. C_. Sincerely, David L. Glassman Staff Attomey?-' enclosures cc: Daniel Goodemote, Senior Dep. Attorney General Scott Shane, #DX-2035, SCI - Rockview PENNSYLVANIA INSTITUTIONAL LAW PROJECT By: Angus R. Love, Esquire Identification No. 22392 Suite 523, 924 Cherry Street Philadelphia, PA 19107 Telephone: (215) 925-2966 Facsimile : (215) 925-5337 for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. Plaintiff, vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, NO. 04-4171 CIVIL TERM Defendants. CIVIL ACTION - LAW PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as attorney for Plaintiff Scott Shane. Respectfully submitted, Pennsylvania By: Date: October 28, 2005 924 Cherry St., Ste. 523 Philadelphia, PA 19107 (215) 925-2966 (Telephone) (215) 925-5337 (Facsimile) Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on October 28, 2005, a copy of Plaintiffs Praecipe for Entry of Appearance was mailed First Class Mail, Postage Paid as follows: Daniel R. Goodemote, Esquire Senior Deputy Attorney General Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 171, ?9 ? i'' ' ? ? -? S , ?y l? tf3,,..: "L ^tti ? ? ? iry?? ?? ? ? ? ? ? r ' '' l_, ? ? ? ? ? ,.1 Lewisburg Prison Project, Inc. P.O. Box 128 Lewisburg, PA 17837 David L. Glassman Staff Attorney Phone: (570)523-1104 SCOTT SHANE, Plaintiff, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. :NO. 04-4171 CIVIL TERM Defendant. CIVIL ACTION - LAW PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance as attorney for plaintiff Scott Shane. Respectfully Submitted, LEWISBURG PRISON PROJECT, INC. BY: ?: 1 _ - 7 David L. Glassman, Staff Attorney P.O. Box 128 Lewisburg, PA 17837 Phone: (570)523-1104 Penna. Attorney ID #51200 Date: ?? ?`< 2005 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General 15`n Floor, Strawberry Square Harrisburg, PA 17120 Lewisburg Prison Project, Inc. P.O. Box 128 Lewisburg, PA 17837 (570)523-1104/ DATED: C 12?-(, 2 2005 C ? x. ? m= ?? v ?ti;, ti ??? Y? ? ? ?c ? m i7 . c__ `:°• ;>' O .,,p< ..J Lewisburg Prison Project By: Cheryl Tennant Humes, Esq. PA Bar #202544 P.O. Box 128 Lewisburg, PA 17837 Phone: (570)523-1104 SCOTT SHANE, :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA. Plaintiff, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, :NO. 04-4171 CIVIL TERM Defendants :CIVIL ACTION - LAW PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as an attorney for Plaintiff Scott Shane. Respectfully submitted, LEWISBURG PRISON PROJECT Cheryl ennant Humes, Esq. PA Bar #202544 P. O. Box 128 Lewisburg, PA 17837 (570) 523-1104 Attorney for Plaintiff Lewisburg Prison Project By: Cheryl Tennant Humes, Esq. PA Bar #202544 P.O. Box 128 Lewisburg, PA 17837 Phone: (570)523-1104 SCOTT SHANE, :IN THE COURT OF COMMON YLhAb :OF CUMBERLAND COUNTY, PENNA. Plaintiff, V. COMMONWEALTH OF . PENNSYLVANIA, DEPARTMENT :NO. 04-4171 CIVIL TERM OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, Defendants :CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that on February 16, 2007, a copy of Plaintiff's Praecipe for Entry of Appearance was mailed First Class Mail, Postage Paid to the following: Daniel R. Goodemote, Esquire Senior Deputy Attorney General Office of Attorney General 15' Floor, Strawberry Square Harrisburg, PA 17120 liza W Cheryl T nnant Humes, Esq. PA Bar #202544 P. O. Box 128 Lewisburg, PA 17837 (570) 523-1104 Attorney for Plaintiff N C . !, Y -i .56 r i,r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SCOTT SHANE, Plaintiff, V. NO. 04-4171 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITITUTION AT ROCKVIEW, Defendants. CIVIL ACTION- LAW PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance as attorney for Plaintiff Scott Shane. I Q/i Cheryllfennant Humes, Esquire Attorney for Plaintiff PAID#202544 LEWISBURG PRISON PROJECT P. O. Box 128 Lewisburg, PA 17836 (570) 523-1104 (570) 523-3944 (fax) Date: June 30 , 2008 CERTIFICATE OF SERVICE I, Cheryl T. Humes, Esq., Attorney for Plaintiff, hereby certify that the Praecipe to Withdraw Appearance has been served upon the following via first class mail to the following: Daniel R. Goodemote, Esq. Senior Deputy Attorney General Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 ATTORNEY FOR DEFENDANTS Angus Love, Esq. Pennsylvania Institutional Law Project The Cast Iron Building, Suite 304 South 718 Arch Street Philadelphia, PA 19106 DATE: June 7, 2008 Cheryl it. Humes, Esq. ,? ?C; ?j ?? WILLIAM J. FOX, ESQUIRE Law Offices of William J. Fox, P.C. Attorney Id. 69898 1417 Locust Street, 4" Floor Philadelphia, PA 19102 (215) 546-2477 SCOTT SHANE Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW Defendants Attorney for Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA COURT OF COMMON PLEAS NO. 04-4171 CIVIL TERM ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Plaintiff, Scott Shane, as co-counsel in the above captioned matter. Date- 4,/ WILLIAM/./FOX, ESQUIRE Attorney f laintiff .?y. ./ ? j W i.. ?} r° ??. ?? s a ? ,. Lf J .,. ?1? ?/+? ?? ? '?r`k?,.. 1.-. C"'? Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial 717-783-3147 dgoodemote@attorneygeneral. gov SCOTT SHANE, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF : NO. 04-4171 CIVIL TERM CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, Defendant : CIVIL ACTION - LAW DEPARTMENT OF CORRECTIONS' MOTION FOR SUMMARY JUDGMENT This Motion for Summary Judgment is filed by Defendant, Commonwealth of Pennsylvania, Department of Corrections, SCI - Rockview (DOC). In support, DOC avers: 1. Plaintiff is Scott Shane. 2. Defendant is the Commonwealth of Pennsylvania, Department of Corrections. 3. Plaintiff a Complaint against DOC, on or about September 2, 2004 4. DOC filed its Answer and New Matter on or about December 1, 2004. 5. On December 9, 2002, Plaintiff's was an inmate at the State Correctional Institution at Rockview (SCI - Rockview). Plaintiff was a member of the prison carpentry crew assigned to dismantle a temporary structure which housed a boiler. Plaintiffs Complaint, para. 7, 9. 6. At the time the incident occurred, Plaintiff was removing the sheets of OSB board from the roof. Plaintiffs Complaint, para. 18. 7. Plaintiff was standing on one of the sheets of OSB board while removing OSB sheets. Plaintiffs Complaint, para. 17 Plaintiff alleges that suddenly, the sheet of OSB board he was standing broke loose. Plaintiffs Complaint, para. 21. 8. Plaintiff fell to the ground striking primarily his feet and right wrist. Plaintiffs Complaint, para. 22. 9. Plaintiff alleges DOC "breached their duty of care toward Plaintiff by knowingly, recklessly and carelessly permitting Plaintiff to conduct carpentry work on the roof of the secondary boiler house structure without a protective lanyard safety harness line or guiderail and under otherwise unsafe conditions without supervision." Plaintiffs Complaint, para. 51. 10. The pleadings are closed and all discovery relevant to this motion has been completed. 11. This motion is filed at a time which will not unreasonably delay trial. 12. Defendant PennDOT is a Commonwealth agency. 13. The Commonwealth and its agencies continue to enjoy sovereign immunity. 14. The Commonwealth and its agencies are subject to suit only where a plaintiff's action is within one of the exceptions to the Sovereign Immunity Act 42 Pa.C.S. §8522(b). 15. The only possible exception Plaintiff's action could be within is §8522(b) (4), the "real estate exception." 16. The exception, as it relates to this case requires Plaintiff to show "...[a] dangerous condition of... real estate ... including highways under the jurisdiction of a Commonwealth agency." 42 Pa.C.S. §8522(b) (4). 17. In order to state a cause of action which meets the real estate exception to sovereign immunity, Plaintiff must show that a defect of the Commonwealth real estate itself caused Plaintiff's injuries. 18. Plaintiff's Complaint does not allege, nor is there evidence in the record which shows a defect of the Commonwealth real estate caused Plaintiff's injury. 19. Both Plaintiff's Complaint and Plaintiff's expert report, attached as Exhibit A, fault DOC for failing to provide fall protection. Neither the Complaint, nor the expert report describe a dangerous condition of Commonwealth real estate which caused Plaintiff's injuries. 20. No judge has previously ruled on any issue in this matter. 21. Plaintiff does not concur in this motion. WHEREFORE, Defendant DOC respectfully requests this Honorable Court to enter an order granting Defendant's Motion for Summary Judgment. Respectfully submitted, Thomas W. Corbett, Jr. Attorney General By: 4.,o "44) aniel Goodemote Supreme Court No. 30986 Shane v. Commonwealth of Pennsylvania CIV NO. 04-4171 Purpose of Report The purpose of this report is to evaluate fall protection methods and obligations with respect to the September 9, 2002, fall incident involving Mr. Shane at the SCI-Rockview temporary boiler structure. Description of Work Activity, Fall Exposures and Method of Fall Protection As stated in the PA DOC Extraordinary Occurrence Report #ROC 31 - 9/09/02, Mr. Shane was removing 4' x 8' sheets of OSB (oriented strand board) from the roof of the temporary boiler structure. When down to the last two sheets (see Figure 1, Figure 2 and Photo 3), Mr. Shane removed the screws that secured the piece upon which he was standing. The piece then slid off of the roof, causing Mr. Shane to fall. As depicted in Figure 2, an individual standing on the original roof deck at the eave would be exposed to a fall hazard of approximately 1210". This is the approximate location of Mr. Shane at the time of the incident. Removal of the last row of OSB from the roof was to have taken place from a guarded scaffold platform, however interrogatories seem to dispute whether or not a scaffold was set- up. But, at the time of the incident, interrogatories concur that Mr. Shane was working from the roof deck and not from a scaffold. Applicable Laws & Consensus Standards In this instance and at the time of the incident, fall protection requirements from three different sources could have reasonably had application to individuals performing this type of work at SCI - Rockview. The Pennsylvania Department of Labor and Industry (PA L&I) is assigned the responsibility of regulating DOC safety standards' and these standards apply equally to anyone employed or permitted to work for compensation of any kind to whomever payable. In this manner, PA L&I safety standards apply to inmates who are compensated for their work''. However, the DOC safety policy (policy number 15.1.1, effective July 16, 2003") does reference the Occupational Safety & Health Administration (OSHA) and American National Standards Institute (ANSI). Specifically, section 1 (General Safety), subsection A (Staff Responsibilities), paragraph 4f (Facility Safety Manager/Fire and Safety Specialist) of this policy states that one of the responsibilities of the Facility Safety Manager/Fire Safety Specialist is to, "ensure operational programs use appropriate safety guidelines, such as OSHA guidelines and ANSI standards for the following areas: (1) walking/working surfaces; (2) scaffolding; (3) powered industrial trucks; (4) personal protective equipment; and (5) vision conservation." Shane v. Commonwealth of Pennsylvania CIV NO. 04-4171 At time of the incident, DOC safety policy did not specifically address the subject of fall protection. As the issue of fall protection lies within the scope of "walking/working surfaces," one may be reasonably left to conclude that OSHA and ANSI standards are incorporated into DOC safety policy by this reference' For these reasons, the PA L&I, OSHA and ANSI fall protection regulations in effect at the time of the incident will be considered within the scope of this report. Fail Protection Standards On September 9, 2002, the following standards pertained to fall protection for the work activity in which Mr. Shane was engaged at the time of the incident: • PA L&I PA Act 174, Sec.2(a) (General Safety & Health Requirements) - All establishments shall be so constructed, equipped, arranged, operated, and conducted as to provide reasonable and adequate protection for the life, limb, health, safety, and morals of all persons employed therein. PA Act 174, Sec.2(g) (General Safety & Health Requirements) - All building construction, demolition, and cleaning, including window cleaning, shall be conducted in a manner as to avoid accident hazards to workers or the public. Scaffolds, ladders, material hoists, window cleaning devices, safety belts, and other equipment used in such operations, shall be designed, manufactured, constructed, and erected as to be safe for the purpose intended. All stairs, open-sided floors, platforms, and runways shall be provided with proper railings and toe-boards. PA Code Title 34 (Labor & Industry), Chapter 39 (Safety Standards - General), Section 25(i) Apparel - lifebelts. All persons working aloft should be required to wear lifebelts properly secured when exposed to a falling hazard. PA Code Title 34 (Labor & Industry), Chapter 39 (Safety Standards - General), Section 33(b) Construction - construction & demolition. All work involving construction shall"' be performed in accordance with Chapter 47, Subchapter G (relating to railings, toeboards, open-sided floors, platforms, and runways), and Chapter 21 (relating to ladders). In demolition work, care should be taken at all times to observe the fundamental rules of safety, such as precaution against collapse, proper disposal of debris, avoidance of traps in floors and protection against nail punctures by the wearing of good shoes and gloves and guarding against contact with upturned nails. Scaffolds, if used, shall be constructed in accordance with the provisions of Chapter 47, Subchapter G. PA Code Title 34 (Labor & Industry), Chapter 47 (Miscellaneous Provisions), Subchapter G (Railings, Toeboards, Open-sided floors, Platforms & Runways), Section 231 Railings Shane v. Commonwealth of Pennsylvania CIV NO. 04-4171 for all installations - installation. Railing shall be installed along the edges of every open- sided floor, working platform", runway or balcony which is 6 feet or more above floor or ground level and along the edges of all other platforms or openings in walls, floors or ground levels where the safety of persons is involved. Railings or handrailings shall be installed on all stairways 3 feet or more in height. PA Code Title 34 (Labor & Industry), Chapter 47 (Miscellaneous Provisions), Subchapter G (Railings, Toeboards, Open-sided floors, Platforms & Runways), Section 251 Runways & platforms for all installations - general requirements. Runways and platforms, except those erected for a specific temporary purpose, shall be constructed in a permanent and substantial manner. Runways or platforms 6 or more feet above floor or ground level shall have all open sides guarded with standard railings and toeboards. Runways or platforms constructed over conveyors used for the movement of materials, regardless of height, shall have all sides guarded with standard railings and toeboards. • OSHA In this situation, OSHA's construction""` fall protection regulations apply (29 CFR 1926, Subpart M).'" 29 CFR 1926.501(b)(1) - Unprotected sides and edgesX. Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systemsX' 29 CFR 1926.501(b)(15) - Walkinglworking surfaces not otherwise addressee. Except as provided in 1926.500(a)(2) or in 1926.501 (b)(1) through (b)(14), each employee on a walking/working surface 6 feet (1.8 m) or more above lower levels shall be protected from failing by a guardrail system, safety net system, or personal fall arrest system. It is worth noting that, in accordance with OSHA fall protection definitions and regulatory scope, the work being performed at the time of the incident was neither considered leading edge work nor roofing workX"'. Also, although the process of installing roof sheathing is covered under OSHA's Interim Fall Protection Compliance Guidelines for Residential Construction (OSHA Directive Number STD 3-0.1A), the act of removing sheathing is not"'". Therefore, the alternative methods of fail protection explained in this Directive are not able to be used for the sheathing removal process. • ANSI In this situation, American National Standard A10.18 -1996 applies (Safety Requirements for Temporary Floor Holes, Wall Openings, Stairways and Other Unprotected Edges)." Shane v. Commonwealth of Pennsylvania CIV NO. 04-4171 §1.3.1 - General- Exceptions & Interpretations. This standard requires the guarding of unprotected floor holes, wall openings and other unprotected edges or the use of safety nets or personal fall arrest systems when guardrails are not in place. §3.1 - Guarding Unprotected Edges on Walking/Working Surfaces"'. Guardrail systems, personal fall arrest system, or safety net systems shall be used at unprotected edges including floor perimeters and low-slope roofs where walking/working surfaces are six feet or more above adjacent floor or ground level (lower levels). Evaluation and Conclusion At the time of the incident, Mr. Shane was exposed to a fall hazard of approximately 12'10" while working from the roof deck. PA L&I - Fall protection must be provided for working platforms when a fall hazard of 6 feet or more exists. PA L&I regulations require the installation of guardrails in these cases. However, the use of a "lifebelt" is a permissible alternative for situations such as this one, where the use of guardrails would be generally impractical. While Mr. Shane worked from the roof deck, neither working platform (roof) guardrails nor a "lifebelt" was used to provide fall protection. OSHA - Fall protection must be provided when a fall hazard of 6 feet or more exists. Regardless of whether an inspector would consider this exposure as an "unprotected side/edge" or "walking/working surface not otherwise addressed", the permissible methods for providing fall protection are identical: guardrails, a safety net or personal fall arrest system. While Mr. Shane worked from the roof deck, neither working platform (roof) guardrails, nor a safety net, nor a personal fall arrest system was used to provide fall protection. ANSI - Fall protection must be provided when a fall hazard of 6 feet or more exists. In the case of ANSI, a specific reference of scope is made in regards to unprotected edges on low-slope roofs. As the roof on the structure that houses the temporary boiler has a slope of 4:12, it is considered a low-slope roof. Permissible methods for providing fall protection are identical to those specified for OSHA: guardrails, a safety net or personal fall arrest system. While Mr. Shane worked from the roof deck, neither working platform (roof) guardrails, nor a safety net, nor a personal fall arrest system was used to provide fall protection. Based on the facts gathered through review of deposition transcripts, inspection of the temporary boiler structure at SCI-Rockview and my experience and expertise in the field of construction safety and construction safety regulation, I feel that in this incident adequate fall protection was not provided and/or used while work had taken place from the roof. This conclusion is being reached without deference to instructions given on how the work was to Shane v. Commonwealth of Pennsylvania CIV NO. 04-4171 be completed and is the result solely of an evaluation of the fall protection methods in place on the roof of the temporary boiler structure at the time of the incident. Crai?fA. Shall , CSP President, S tyWorN Inc. lZ Z?k Da 'Section 5(a) of the Occupational Safety and Health Act (OSHAct) of 1970 states, "Each employer, (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees, and (2) shall comply with occupational safety and health standards promulgated under this Act. " However, section 3, paragraph 5 of the OSHAct states, "The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State. " Under the OSHAct, each state is responsible for the promulgation and enforcement of safety and health laws that protect its own State and local-level public sector employees. In Pennsylvania, this responsibility is assigned not to OSHA, but to the PA Department of Labor and Industry ("Department"). From PA Act 174 of 1937 (General Safety Law), as amended June 28, 1951 and July 13, 1953: PA Act 174 Preamble - To provide for the safety and to protect the health and morals of persons while employed; prescribing certain regulations and restrictions concerning places where persons are employed, and the equipment, apparatus, materials, devices and machinery used therein; prescribing certain powers and duties of the Department of Labor and industry relative to the enforcement of this act; and fixing penalties. (Title amended July 13, 1953, P.L.438, No. 97) Compiler's Note: Section 3 of Reorganization Plan No. 2 of 1975 provided that Act 174 is suspended insofar as it conflicts with Reorganization Plan No. 2. Compiler's Note: Section 16(a)(1) of Act 147 of 1971 provided that Act 174 is repealed insofar as it is inconsistent with Act 147. PA Act 174, Sec.1 (Definitions) - The term "establishment" shall mean any room, building or place within this Commonwealth where persons are employed or permitted to work for 5 Shane v. Commonwealth of Pennsylvania CIV NO. 04-4171 compensation of any kind to whomever payable, except farms or private dwellings, and shall include those owned or under the control of the Commonwealth, and any political subdivision thereof, as well as school districts. PA Act 174, Sec. 12 (Rules & Regulations) - The Department of Labor and Industry shall have the power and its duty shall be to make, alter, amend, and repeal rules and regulations for carrying into effect all the provisions of this act, and applying such provisions to specific conditions. PA Act 174, Sec. 13 (Enforcement, Right of Entry) - The provisions of this act shall be enforced by the Department of Labor and Industry. For the purpose of enforcing the provisions of this act, the Secretary of Labor and Industry, or his duly authorized representative, shall have the power to enter any room, building, or place where labor is employed, and to issue the necessary instructions to the superintendent, manager, or responsible agent of the employer, to correct violations of this act or regulations based on this act. PA Act 174 of 1937 has broad application. "Establishments" include not only those privately owned, but also those owned or under the control of the Commonwealth. Also, protection is afforded not only to employees, but to any persons who work for any form of compensation. In the case file documentation, this application of appropriate law is correctly eluded to in the February 19, 2003, letters from Mr. Robert Fink (OSHA Area Director - Harrisburg) to Mr. Scott Shane and Mr. Charles J. Sludden, Jr. (PA L&I Director). Similarly, the DOC applied the January 2, 2001 version of its safety policy (15.1.1), "to all persons employed by, incarcerated in, or who have business with the Department of Corrections." W It is unclear as to whether or not this identical provision was stated in the January 2, 2001 safety policy 15.1.1. The information provided in the May 3, 2007 discovery request response does not include the DOC Safety Policy in its entirety, specifically Section 1A (General Safety - Staff Responsibilities). 'V Such has been the case for the construction-related activity of excavation & trenching. The DOC safety policy references OSHA standard 29 CFR 1926.652, which is the construction standard that regulates cave-in protective systems. " Although the use of lifebelts in not required, as evident by use of the word "should" in this section, this form of fall protection does provide an alternative to using guardrails to provide fall protection. V' PA Code Title 34 (Labor & industry), Chapter 39 (Safety Standards - General), Section 4 Effect. The safe practices described in this subchapter largely conform to common sense and are aimed at a considerable reduction of industrial accidents. Those requirements using the terminology "shall" rather than "should" are enforceable as mandatory requirements, subject to the penalty prescribed in § 39.5 (relating to penalty). '" PA Code Title 34 (Labor & Industry), Chapter 47 (Miscellaneous Provisions), Subchapter G (Railings, Toeboards, Open-sided floors, Platforms & Runways), Section 221 Definitions. Platform is defined as a raised working floor or stage. °1i 29 CFR 1926.32(8) defines "construction work" as work for construction, alteration, and/or repair, including painting and decorating. Shane v. Commonwealth of Pennsylvania CIV NO. 04-4171 'x In 1926.501(b), OSHA identifies fifteen different scenarios in which a fall hazard may exist and prescribes acceptable methods of fall protection in each case. A review of this section, and of the respective definitions provided in 1926.500(b), shows that the work activity of removing the OSB sheets from the roof could, depending on interpretation of an OSHA inspector, fall under the requirements of an "unprotected side/edge" or "walking/Working surface not otherwise addressed". In either case, the fall protection requirements are the same. x 1926.500(b) defines "unprotected sides and edges" as any side or edge (except at entrances to points of access) of a walking/working surface, e.g., floor, roof, ramp, or runway where there is no wall or guardrail system at least 39 inches (1.0 m) high. x' 1926.500(b) defines "personal fall arrest system" as a system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, a body belt or body harness and may include a lanyard, deceleration device, lifeline, or suitable combinations of these. As of January 1, 1998, the use of a body belt for fall arrest is prohibited. "' 1926.500(b) defines "walking/working surface" as any surface, whether horizontal or vertical on which an employee walks or works, including, but not limited to, floors, roofs, ramps, bridges, runways, formwork and concrete reinforcing steel but not including ladders, vehicles, or trailers, on which employees must be located in order to perform their job duties. 1926.500(b) defines "leading edge" as, "the edge of a floor, roof, or formwork for a floor or other walking/working surface (such as the deck) which changes location as additional floor, roof, decking, or formwork sections are placed, formed, or constructed. A leading edge is considered to be an "unprotected side and edge" during periods when it is not actively and continuously under construction." However, traditionally, OSHA views leading edge work as involving metal decking and precast concrete, not wood. 1926.500(b) defines "roofing work" as, "the hoisting, storage, application, and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck." x'" This Directive is very specific in its scope. While the actual construction of this building (stick frame) lies within the scope of this Directive, the activity of removing roof sheathing does not. This Directive specifically defines four groups of activities to which these alternate methods of fall protection would be available. These groups are: • Group 1 - Installation of floor joists, floor sheathing, and roof sheathing; erecting exterior walls; setting and bracing roof trusses and rafters. • Grou 2 - Working on concrete and block foundation walls and related formwork. • Group 3 - This group consists of the following activities when performed in attics and on roofs: installing drywall, insulation, HVAC systems, electrical systems (including alarms, telephone lines and cable TV), plumbing and carpentry. • Group 4 - Roofing work (removal, repair or installation of weatherproofing roofing materials such as shingles, the and tar paper). It is important to note that while Group 4 specifically includes removal of roof covering materials, Group 1 does not include removal of roof sheathing material. xr The scope of this standard, as defined in section 1. 1, includes, "other unprotected edges including low- slope roofs during construction and demolition activities." The term, "low slope" is defined under section 2.9 as a roof with a maximum slope of 4 inches in 12 inches. Refer to Figure 2. "Section 2.15 of ANSI A10.18-1996 defines "walking/working. surface" as a floor, stairway, low-slope roof, runway, elevated platform or other surface on which persons walk or work. M 3 0 w t + 1 1 t i + 1 t 1 + i + + i i t Z t ' i t 1 Q i + t + 1 1 i + 1 1 t 1 i 1 1 ? 1 i 1 I\j it A 2 r?J t?- 1.n Caw-?n?S d,o 30 ?? s 0 IL O_ 0 oL D W 0 7 ? u a= ? w? ?? t't to `? _r-'r" ?? ? ?? ? T? o ?? S ?gcv o ? `? -? ? I ,?,? ?? ??? ? i ?...? ;? ? :1s \???1 ? 11. 1? ?? , ? o- y •?, i V J+ 7 ? ,? o ? a _, ,a ? ? N ?n ?? ? ?? ti ? `? VERIFICATION The facts set forth in this Department of Corrections' Motion for Summary Judgment are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities. aniel Goode Dated: January 29, 2009 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: William J. Fox, Esquire 1417 Locust Street, 0' Floor Philadelphia, PA 19102 (Attorney for Plaintiff) iel R. doo' demote Senior Deputy Attorney General Supreme Court No. 30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-3147 DATED: January 29, 2009 ro rr, rnr x,45 .. W P b WILLIAM J. FOX, ESQUIRE Law Offices of William J. Fox, P.C. Attorney Id. 69898 1417 Locust Street, 4t6 Floor Philadelphia, PA 19102 (215) 546-2477 SCOTT SHANE Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW Defendants Attorney for Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA COURT OF COMMON PLEAS NO. 04-4171 CIVIL TERM PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1. Admitted. 2. Admitted. 3. Admitted in part. The original complaint was filed on August 23, 2004. The Amended Complaint was filed on September 4, 2004. 4. Admitted. 5. Denied. Paragraphs 7 and 9 of Plaintiff's Complaint and Amended Complaint both refer to the accident as occurring on September 9, 2002. By way of further answer, Plaintiff's Amended Complaint speaks for itself. 6. Denied as stated. Plaintiff's Amended complaint speaks for itself. It is admitted that, right before his fall, Plaintiff was removing OSB board from the roof of a structure on the prison grounds. 7. Admitted in part. Plaintiff was standing on one piece of OSB board after having removed an adjacent piece. While he was.standing on said OSB board, that he had not yet begun to unfasten and remove screws, he heard a cracking sound, the screws and/or nails holding the OSB board gave way and the board and Plaintiff fell off the roof. Plaintiff fell approximately twelve feet to the ground, shattering his ankle and permanently injuring his ankle. He has had four surgeries to his ankle - - the fourth of which just took place in February of 2009. Plaintiff was working on the roof without any fall protection. There was no guard rail to protect him from failing. He was not tied off with a harness and lanyard to protect him from falling. As a prisoner, Plaintiff had no say in what work would be done and how it would be done. He had no say in whether he could accept or decline the orders of his superiors.' The temporary roof over the boiler was not properly protected, had turned gray, weathered and decrepit. 8. Admitted in part. Plaintiff s whole body fell approximately twelve feet to the ground. Plaintiff sustained life altering injuries to his ankle. At present, he walks with a limp and is unable to run. He takes medication everyday to minimize the pain. The medication only lasts so long. Not a day goes by where Plaintiff does not have pain in his right ankle. 9. Admitted in part. Plaintiff s Amended Complaint speaks for itself. It is further asserted that the Amended Complaint sets out enough facts and provides detailed notice of his claims to Defendant. 10. Denied. Plaintiffs counsel has informed Defense counsel that he needs to take the deposition of at least one or two other Commonwealth employees. Counsel for Defendant, Daniel 'Plaintiff will supplement these answers in his brief with citations to testimony and with an Affidavit clearing up matters not addressed in his deposition. 2 Goodemote, Esquire, acknowledged this in a recent letter to undersigned counsel. (A true correct copy of Mr. Goodemote's correspondence is appended hereto as Exhibit "A".) 11. Neither admitted nor denied. 12. Denied. This allegation is a conclusion of law and therefore is denied. 13. Denied. This allegation is a conclusion of law and therefore is denied. Furthermore, Defendant's claim of immunity is not applicable, in this case, pursuant to 42 Pa.C.S. § 8522. 14. Denied. This allegation is a conclusion of law. 15. Denied. This allegation is a conclusion of law. 16. Denied. This allegation is a conclusion of law and a misstatement of law. 42 Pa.C.S. § 8522(b)(4) provides: "A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth - owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5)." Plaintiff was injured for two reasons: 1) He was required to work at a height of more than 12 feet with out fall protection, meaning there was no railing or other safety equipment provided to him to protect him or anyone else from falling from a great height. Plaintiff was ordered to get on the roof. Once up their, the defect existed - - no fall protection; 2) the roof sheathing was installed improperly and without proper protection creating the likelihood that said surface would weather, weaken and become decrepit and give way as occurred to Plaintiff. 17. Denied as a conclusion of law. By way of further answer, the property was defective in that it did not contain any fall protection. The roof sheathing was not protected creating the circumstance it would weather, become decrepit, weaken and become susceptible to breaking from 3 the joists as it did in Plaintiff's case. The Department of Corrections policies and practices require that fall protection be afforded to prisoners. Furthermore, the DOC adopts OSHA standards regarding fall protection. Thus when an inmate is required to get on a roof to work, the roof should hold up and not break away from the structure upon which it has been secured. An inmate should not be subjected to the peril of falling from a great height. He should be protected from falling for the simple and obvious reason that when people fall from heights above four feet they are likely to suffer great harm. In this case, Plaintiff fell over 12 feet - - a height the same as the top of the backboard of a basketball hoop. 18. Denied as a conclusion of law. By way of further answer, Plaintiff's Amended Complaint alleges the defect in detail. 19. Denied. The magic language dangerous condition may not have been used. However, it is obvious that anyone who works more than 12 feet off the ground without fall protection and on a working surface not protected from the elements, that the person is exposed to a dangerous condition. Discovery has not yet closed and Plaintiff intends to supplement the report. Especially since Plaintiff's expert has not had the benefit of reviewing deposition transcripts of the witnesses present at the time he fell. 20. Admitted. 21. Admitted. Plaintiff opposes this motion. WHEREFORE, Plaintiff, Joseph Shane, respectfully requests that this honorable Court enter an Order denying Defendant's Motion for Summary Judgment. Respectfully submitted. r y WILLIAM J. 01, ESQUIRE Attorney fo laintiff Date: Febru Z 27, 2009 4 SCOTT SHANE Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW Defendants CUMBERLAND COUNTY, PENNSYLVANIA COURT OF COMMON PLEAS NO. 04-4171 CIVIL TERM CERTIFICATE OF SERVICE I, William J. Fox, Esquire, attorney for Plaintiff, hereby certify that a true and correct copy of the foregoing Response to Motion For Summary Judgment was served upon counsel for Defendant by U.S. First Class Mail on February 27, 2009 at the address below: Daniel R. Goodmote Office of Attorney General Torts Litigation Section 15' Floor, Strawberry Square Harrisburg, PA 17120 J. FOX, ESQUIRE COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL January 30, 2009 TOM CORBETT ATTORNEY GENERAL Office of Attorney General Torts Litigation Section 151h Floor, Strawberry Square Harrisburg, PA 17120 (717) 787-6763 (717) 705-7241 Fax dgoodemote@attomeygeneral.gov William J. Fox, Esquire 1417 Locust Street, 4`h Floor Philadelphia, PA 19102 RE: Scott Shane v. Corrections Cumberland County No. 04-41.71 Civil Dear Bill: This letter will confirm our recent conversation regarding the above case. You indicated to me that you wanted to take a couple more depositions. With respect to settlement, I advise you that I was unprepared to make an offer at this time, as 1 have been directed to file a Motion for Summary Judgment. I anticipate filing my Motion within the next 10 days. After reading the Cumberland County Local Rules of Civil Procedure, I believe that listing this case is premature. In the trial list as called, all counsel must indicate that discovery has been completed and that all pre-trial actions have been taken and the case is ready for trial in all respects. Since that is obviously not the case, and we do not have the depositions scheduled that you wish to take, I do not believe the case should be listed now. Of course, I will work with you to move this case along so that we can proceed to trial in a timely manner. Very truly u9 rs, G? aniel R. Goo emote DRG/smm Senior Deputy Attorney General „? S, ? M;;3 V? _ `1 •?R ,;;r? r ` ? ? ?? fE. ? ? 7 . . ia.:3 ?`ti; x? a (??(A'. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Scott Shane vs. - s? Commonwealth of Pennsylvania Department of Corrections State Correctinal Institution No. O4 -1 7I " Terr&,at Rockview 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: William J. Fox, Esquire (Name and Address) 1417 Locust Street, 4th Floor, Philadelphia, PA 19102 (b) for defendants: Daniel R. Goodmote, Esquire - Office of Attorney General (Name and Address) 15th Floor, Strawberry Square, Harrisburg, PA 17120 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 12, 2010 Date: March 22, 2010 c) rv q Tl,- ?. r=`, t37 Signature William J. Fox, Es( 1 e Print your name Plaintiff Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. 3v T WILLIAM J. FOX, ESQUIRE Law Offices of William J. Fox, P.C. Attorney Id. 69898 1528 Walnut Street, Suite 515 Philadelphia, PA 19102 (215) 546-2477 SCOTTSHANE Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW Defendants Attorney for Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA COURT OF COMMON PLEAS NO. 04-4171 CIVIL TERM • ca =rn cn r°' • C PLAINTIFF'S RESPONSE TO DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT 1. Admitted. 2. Admitted. sa. i a cw-? c E 3. Admitted in part. The original complaint was filed on August 23, 2004. The Amended Complaint was filed on September 4, 2004. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 2 10 -11. Admitted. 12. Admitted in part. Denied in part. I ti admitted that Plaintiff was removing Osb plywood from a building owned by Defendant. Plaintiff's Second Amended Complaint speaks for itself. The building from which Plaintiff fell was part of the realty of Defendant. (A Copy of the Second Amended Complaint is attached hereto as Exhibit "A".) 13. Admitted in part. Plaintiff's Second Amended Complaint speaks for itself. By way of further answer, Plaintiff was standing on one piece of OSB board after having removed an adjacent piece. While he was standing on said OSB board, from which he had not yet begun to unfasten and remove screws, he heard a cracking sound, the screws and/or nails holding the OSB board gave way and the board and Plaintiff fell off the roof. Plaintiff fell approximately twelve feet to the ground, shattering his ankle and permanently injuring his ankle. He has had four surgeries to his ankle - - the fourth of which took place in February of 2009. Plaintiff was working on the roof without any fall protection. There was no guard rail to protect him from failing. He was not tied off with a harness and lanyard to protect him from falling. As a prisoner, Plaintiff had no say in what work would be done and how it would be done. He had no say in whether he could accept or decline the orders of his superiors. The temporary roof over the boiler was not properly protected, had turned gray, weathered and decrepit. When he was directed to go on a decrepit and dangerous roof without any fall protection, he had to obey the order. 14. Admitted in part. Defendant was negligent in numerous ways as set forth in the Second Amended Complaint. Defendant was also negligent in failing to maintain the roof from becoming decrepit and dangerous. 15. Admitted. Plaintiff's whole body fell approximately twelve feet to the ground. Plaintiff 3 sustained life altering injuries to his heels. At present, he walks with a limp and is unable to run. He takes medication everyday to minimize the pain. The medication only lasts so long. Not a day goes by where Plaintiff does not have pain in his right ankle. 16. Admitted. 17 - 19. Denied as conclusions of law. 20. Admitted. 21 - 26. The allegations contained in paragraphs 21 through 26 of Defendant's Motion contain conclusions of law and, therefore, said allegations are denied. By way of further answer, 42 Pa.C.S. § 8522(b)(4) provides: "A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth - owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5)." Plaintiff was injured for two reasons: 1) He was directed to work at a height of more than 12 feet with out fall protection, meaning there was no railing or other safety equipment provided to him to protect him or anyone else from falling from a great height. Once up on the decrepit roof, the defective and dangerous condition existed - - no fall protection; 2) the roof sheathing was installed improperly and without proper protection causing it to become exposed to the weather, weakened and decrepit and to give way as occurred to Plaintiff. The roof sheathing was so decrepit that it broke from the joists as it did in Plaintiff's case. The Department of Corrections policies and practices require that fall protection be afforded to prisoners. Furthermore, the DOC adopts OSHA standards regarding fall protection. Thus when an inmate is required to get on a roof to work, the roof should hold up and not break away from the structure upon 4 which it has been secured. An inmate should not be subjected to the peril of falling from a great height. He should be protected from falling for the simple and obvious reason that when people fall from heights above four feet, they are likely to suffer great harm. In this case, Plaintiff fell over 12 feet - - a height the same as the top of the backboard of a basketball hoop. He suffered great harm and continues to suffer ten years after the incident occurred. 27. Admitted. Plaintiff opposes this motion 28. Denied as a conclusion of law. WHEREFORE, Plaintiff, Scott Shane, respectfully requests that this honorable Court enter an Order denying Defendant's Motion for Summary Judgment. Respectfully submitted. WILLIAM J. F?, ES Attorney for Pl ntiff Date: April 6, 2012 5 WILLIAM J. FOX, ESQUIRE Law Offices of William J. Fox, P.C. Attorney Id. 69898 1528 Walnut Street, Suite 515 Philadelphia, PA 19102 (215) 546-2477 SCOTT SHANE Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW Defendant Attorney for Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA COURT OF COMMON PLEAS NO. 04-4171 CIVIL TERM PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT I. STANDARD Pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, the Court may grant a motion for summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2; See also Penn Center House. Inc. v. Hoffm , 520 Pa. 171, 175, 553 A.2d 900, 902 (1989). In determining whether there is a genuine issue of material fact, the Court must examine the entire record, including the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and expert reports, if any. Pa.R.C.P. 1035.2; See also Penn Center, at 176, 552 A.2d at 903. Moreover, the Court must accept as true all well-pleaded facts, giving the non-moving party the benefit of all reasonable 6 inferences drawn therefrom. Thompson v. Nason Hospital, 370 Pa. Super. 115,117,535A.2d 1177, 1178 (1988). Based on the entire record, the party who filed the motion bears the burden of demonstrating that no issue of fact exists for trial. Penn Center, at 176, 552 A.2d at 903. If a dispute of fact exists, the Court cannot, in a motion for summary judgment, assess credibility of one party over another. Disputes of material facts and credibility can only be decided by a jury at trial. Borough of Nanty Glo v. American Surety Co., 309 Pa. 236, 163 A. 523, 524 (1932). In deciding this Motion, the Court need not look beyond Plaintiff's Counter Statement of Facts below to determine that genuine issues of material fact exist. II. COUNTER-STATEMENT OF FACTS Testimony of Plaintiff, Scott Shane Plaintiff, Scott Shane, is 45 years old, having been born on March 3, 1967. (N.T. S. Shane, p. 5, Exhibit: "B") During the time that Mr. Shane was an inmate at Rockview Prison, he was assigned to work on the carpentry crew and worked under Mr. Figurelle. (N.T. S. Shane, p. 15-17, Exhibit "B") Just before the accident, Mr. Shane had removed a piece of plywood and handed it down to the fellow co-workers. While standing on a piece of plywood, that had not been unscrewed, Mr. Shane heard a loud noise he describes as a crack and then the plywood he was standing on lost its mooring and slid off of the roof with Mr. Shane on top of it. (N.T. S. Shane, p. 24-25, Exhibit «B„) Before Mr. Shane had heard the cracking noise on the plywood upon which he stood, he had not removed any of the screws that fastened said piece of plywood to the joice . (N. T. S. Shane, p. 25, Exhibit "B") Mr. Shane described the plywood on the roof as being old and not properly covered. (N.T. S. Shane, p. 26, Exhibit "B") When landing from the fall, Mr. Shane landed on an angle crushing his heels. After falling, Mr. Shane could not feel his legs and thought he was paralyzed. (N.T. S. Shane, p.31-32, Exhibit "B") As a result of the fall, Mr. Shane shattered both of his heels and injured his wrist. (N.T. S. Shane, p 33-38., Exhibit "B") Since the accident September 9, 2002, Plaintiff has suffered pain everyday. (N.T. S. Shane, p. 36-38, Exhibit "B") As a result of Mr. Shane's injuries, he is required to take Tramadol on a daily basis. (N.T. S. Shane, p. 39-40, Exhibit "B") Mr. Shane has undergone two surgeries to his left ankle and one surgery to his right. He is still treating with a foot and ankle specialist, Steven Boc, M.D. (N.T. S. Shane, p. 47, Exhibit "B") Mr. Shane has not been able to work in the automotive industry due to the pain from standing and working on concrete over a long period. The only job he has been able to maintain is that of a driver for a courier company, a job that he performs in pain. (N.T. S. Shane, p. 41-44, Exhibit "B") Testimony of Eugene Figurelle Mr. Figurelle is employed by the Department of Corrections and holds the position of Corrections Carpenter Trade Instructor. (N.T. E. Figurelle, p. 7, Exhibit "C") Inmates were not trained in fall protection nor were they provided with any literature regarding fall protection. (N.T. E. Figurelle, p. 14-15, Exhibit "C") Prior to Mr. Shane falling on September 9, 2002, the DOC did not provide inmates safety harnesses when working on roofs. (N.T. E. Figurelle, p. 16-17, Exhibit "C") Mr. Figurelle was not required to perform an investigation as to the cause of Mr. Shane's fall. 8 (N.T. E. Figurelle, p. 17-18, Exhibit "C") Mr. Figurelle described the height of the building from which Mr. Shane fell as 10 feet high. (N.T. E. Figurelle, p. 19, Exhibit "C") When the structure was built, the roof consisted of half inch OSB boards. (N.T. E. Figurelle, p. 20, Exhibit "C") Mr. Figurelle indicates that before the roof was removed from the building, scaffolding was built beside it to provide access to the roof. (N.T. E. Figurelle, p. 21-23, Exhibit «C„) Mr. Figurelle described the scaffolding as having a railing that was level or flush with the bottom of the roof/eave. The scaffolding contained a walking surface three feet below the eave. (N.T. E. Figurelle, p. 24, Exhibit "C") Mr. Figurelle confirms that Mr. Shane's duties were to get on the roof, take the screws out of the OSB board and hand the boards down to the edge of the roof and then the boards would be carried to the ground. (N.T. E. Figurelle, p. 27, Exhibit "C") Mr. Figurelle described the OSB board as weathered and grayish in color. (N.T. E. Figurelle, p. 27, Exhibit "C") As an inmate, Mr. Shane was required to carry out the orders of Mr. Figurelle. If he failed to carry out the orders he would be subject to discipline. (N.T. E. Figurelle, p. 27-30, Exhibit "C") Mr. Figurelle admitted that, pursuant to D.O.C.'s policies and practices, inmates under his supervision were not permitted to refuse his orders directing inmates to perform work. (N.T. E. Figurelle, p. 30, Exhibit "C") Mr. Figurelle testified that Mr. Shane always obeyed his orders and was an "excellent worker". (N.T. E. Figurelle, p. 28, Exhibit "C") Mr. Figurelle did not see and does not know how Mr. Shane fell from the roof. (N.T. E. Figurelle, p. 32, Exhibit "C") 9 Though Mr. Figurelle prepared part of an Incident Report, he did not obtain any statements from any of the inmates or other DOC employees working at the time Mr. Shane fell. (N.T. E. Figurelle, p. 33-36, Exhibit "C") Mr. Figurelle confirmed that he did not complete the entire Incident Report. At the time of Mr. Shane's fall, Mr. Figurelle did not know if there were any policies, practices or procedures in place to investigate a fall or an accident at a particular job site. (N.T. E. Figurelle, p. 3 8, Exhibit "C") Mr. Figurelle did not take any photographs of the scene where Mr. Shane fell. (N.T. E. Figurelle, p. 38, Exhibit "C") Testimony of Michael Sidorick Mr. Sidorick was employed by the Department of Corrections as a Corrections Officer or Corrections Carpenter Trade Instructor from 1984 until January of 2008. (N.T. M. Sidorick, p. 8-9, Exhibit "D".) The height of the roof from which Mr. Shane fell was 10 feet high at the eave. (N.T. M. Sidorick, p. 13, Exhibit "D".) The building from which Mr. Shane fell was constructed one year before he fell. (N.T. M. Sidorick, p. 14, Exhibit "D".)' The OSB board was only covered with tar paper, no shingles. (N.T. M. Sidorick, p. 14-15, Exhibit "D".) Mr. Sidorick claims that scaffolding was built on the eave side of the building. (N.T. M. Sidorick, p. 17, Exhibit "D".) The scaffolding was approximately "three feet, four feet below the roof." (N.T. M. Sidorick, p. 18, 20, Exhibit "D".) The alleged scaffolding contained a railing.' The height of the railing was "flush with the bottom of the roof." (N.T. M. Sidorick, p. 21, Exhibit "D".) 'Plaintiff has requested from Defendant a copy of the work orders indicating when the building, from which Mr. Shane fell, was built. As of the filing of this brief, the D.O.C. has not supplied any documents indicating when it was built. 2Mr. Shane testified that there was no scaffolding. Whether scaffolding was used is an issue of fact for the jury to decide. 10 Mr. Sidorick did not know of any safety standards or policies issued by the D.O.C. He testified that he would determine on his own what safety protocol to follow. (N.T. M. Sidorick, p. 45-46, Exhibit "D".) Mr. Sidorick described Plaintiff s work habits as "pretty above board." (N.T. M. Sidorick, p. 46, Exhibit "D".) Mr. Sidorick did not investigate the cause of the accident. Mr. Sidorick was not questioned regarding the accident and did not give a written statement of what he observed. Mr. Sidorick was never trained in fall protection safety. (N.T. M. Sidorick, p. 46-47, Exhibit "D".) Testimony of Michael Wenrick Mr. Wenrick was offered by the Defendant as an employee with knowledge of Defendant's safety practices, policies and procedures. Mr. Wenrick is the Rockview "Corrections institutions safety manager." (N.T. M. Wenrick, p. 11, Exhibit "E".) The D.O.C. does not have any fall protection policies. (N.T. M. Wenrick, p. 17-18, Exhibit "E".) However, the Department of Corrections maintains the policy to adopt and/or follow the safety guidelines promulgated by the Pennsylvania Department of Labor & Industry. (N.T. M. Wenrick, p. 18-19, 48-50, Exhibit "E".) Specifically, the Labor and Industry Code, which the D.O.C. relies upon for safety policies, states that lifebelts should be worn when an inmate is exposed to a fall hazzard. 34 Pa. Code § 39.25(1). Surfaces more than six feet above ground must have railings on all open sides. 34 Pa. Code § 47.251. Mr. Wenrick explained that his understanding of fall protection is that workers who work above six feet in height must have fall protection in the form of a "harness or a scaffolding with safety railing, safety chains, toe-kick protection." (N.T. M. Wenrick, p. 19-20, Exhibit "E".) Mr. Wenrick read the testimony of Mr. Sidorick and Mr. Figurelle with regard to the position of the 11 scaffolding railings. (N.T. M. Wenrick, p. 27-29, Exhibit "E".) Mr. Wenrick states that the scaffold railings "should have been above the eave of the roof' and not flush with the roof. The railings provided no fall protection to Mr. Shane while he was on the roof. He also states that Mr. Shane should have been provided a safety harness (under the alleged current rules). (N.T. M. Wenrick, p. 32-33, Exhibit "E".)3 When reviewing the Labor and Industry regulations regarding fall protection, it is clear that the policies that Mr. Wenrick describes in his deposition where also in force in 2002 when Plaintiff fell. With regard to work assignments issued by Corrections Carpenter Trade Instructors, inmates "may not refuse to perform those tasks as assigned." (See Inmate Handbook, p. 66-70, attached hereto as Exhibit "F".) Expert Report of Julius Pereira, III, R.A. Mr. Pereira, a registered architect, provided the following analysis: Reasonable safety measures involving workers engaged in roofing activities on a steep sloped roof with unprotected sides and edges 6 feet or more above lower levels required that they be protected from falling by guardrail systems, safety net systems, or personal fall arrest systems. With the railing at or below the level of the lowest portion of the roof, it is unlikely such a railing would have prevented a fall from the roof. The DOC Safety manager Mr. Wenrick, also recognized this failure. (See page 4 of Mr. Pereira's expert report attached hereto as Exhibit "G".) As to the condition of the roof sheathing, Mr. Pereira found: OSB needs to be protected. Mr. Sidorick testified there was tar paper on the OSB. Mr. Figurelle testified there was no weather protection on the OSB and it was weathered grayish color. Mr. Shane testified that the OSB appeared old and exposed to the weather. (SS26) If Mr. Figurelle is correct, the Osb would have been unprotected and exposed to the weather for at least six months, allowing the OSB to 'Mr. Wenrick claims to only speak for the safety policies of the D.O.C. presently and not at the time of Mr. Shane's fall. However, fall protection policies have not substantially changed since 2002. There is nothing revolutionary or new about the safety standard rule that workers working more than six feet above ground should have fall protection. 12 deteriorate and weaken. If the OSB had been left exposed to the weather for at least six months, extra care and precautions should have been taken to prevent the unexpected of the OSB while there were workers on the roof. (Exhibit "G", p. 5) Mr. Pereira gives the following expert opinions: 1. The DOC's failure to provide safety harnesses (Lifebelts) for those inmates working on the subject roof and exposed to a falling hazard did not comply with the requirements of the Pennsylvania Code and was a cause of Mr. Shane's fall. 2. The DOC's failure to provide any adequate fall protection, including scaffolding and safety railing of a height to have prevent a fall from the subject roof or safety harnesses did not comply with reasonable standards for safe construction projects, such as OSHA fall protection standards which are used by the building trades and was a cause of Mr. Shane's fall. 3. The DOC's failure to provide adequate fall training regarding fall safety as part of their carpenter trade instruction deprived Mr. Shane of the information necessary to work safely on the roof and to avoid falling. 4. If the OSB had been left exposed to the weather for at least six months, extra care and precautions should have been taken to prevent the unexpected failure of the OSB while there were workers on the roof. 5. The DOC's actions are especially egregious given that they claimed to have a carpenter trade instruction program, yet failed to address fundamental safety requirements for fall protection when working on roofs where they would be exposed to a falling hazard. (Exhibit "G", p. 5) III. ARGUMENT A. THE DANGEROUS CONDITION DERIVES AND ORIGINATES FROM THE COMMONWEALTH REALTY. Section 8522 (b)(4) provides for waiver of sovereign immunity where plaintiffs injury was caused by "a dangerous condition of Commonwealth real estate ... including Commonwealth-owned real property." Sovereign immunity is not waived where a defect in construction, maintenance, repair, or design of real property owned by the Commonwealth caused a plaintiff's injuries. Jones 13 v, Southeastern Penn. Transp. Authority, 565 Pa. 211, 225, 772 A.2d 435, 443-44 (Penn. Sup. Ct. 2001). Whether the real property in question was a dangerous condition and whether a defendant had knowledge of the dangerous condition are questions of fact for the jury. Finn v, City of Philadelphia, 664 A.2d 1342, 1345 (Pa. 1995). Where the dangerous condition was structurally part of the property, rather than an external condition, the real estate exception is met. See Stahl v. Cocalico School Dist., 112 Pa. Comwlth., 50, 53, 534 A.2d 1141, 1142. In Stahl, the plaintiff alleged that a defective skylight in a school building was a dangerous condition and an exception to sovereign immunity. Stahl v. Cocalico School Dist, 534 A.2d at 1142 The plaintiff's 12 year-old son was killed when he fell through a skylight on the roof of the school while he was on the roof retrieving a stray ball. Stahl, at 1142. The Commonwealth Court held that plaintiffs had pled facts that could show that "the government- owned real property" was " unsafe for activities for which it was regularly used, intended to be used, or reasonably foreseen to be used," and, therefore, that the skylight was a dangerous condition that fell within the real estate exception to sovereign immunity. Id. at 1143-44. The circumstances of Mr. Shane's injuries are almost identical to that of the Plaintiff's son in Stahl. Just as the skylight in that case was a part of the building, which was owned by Cocalico School District, the roof of the boiler room in Mr. Shane's case is part of the building owned by D.O.C. Here the evidence is clear that the plywood was affixed to the roof by the Defendants themselves and was defective. Plaintiff can persuasively argue that the plywood derived from the roof itself and thus was a dangerous condition of Defendant's real estate. Because the plywood was affixed to the roof it was, in essence, the roof itself. Defendant's reliance on Jones v. SEPTA and other similar cases is misplaced. The rock salt that caused the plaintiff's injuries in Jones v. SEPTA was completely separate from the train 14 platform itself. The salt merely existed, temporarily, on top of the platform. In the case at bar, Plaintiff fell from a defective roof, not some movable substance that was on the roof. In this case, the structure and the plywood were one and the same. Whether the roof constituted a dangerous condition is a question of fact that should not be decided on summary judgment. See Bendas v. Township of White Deer, 531 Pa. 180, 185, 611 A.2d 1184, 1187 (1992). Plaintiff properly plead that the defect in the roof caused Plaintiff to fall as follows: 12. On September 9, 2002, Mr. Figurelle ordered the Plaintiff to climb upon the roof of the structure connected to the boiler house and remove the remaining four sheets of 4 X 8 plywood from the roof decking. 13. As of September 9, 2002, D.O.C. policy required work supervisors to maintain visual contact on Level 2R inmate workers throughout the day. 14. Plaintiff was sent up to perform his work without fall protection such as a guardrail, safety line or other such fall protection devices. 15. As directed, the Plaintiff climbed on the roof, approximately sixteen feet off of the ground. 16. Mr. Figurelle, another supervisor and several innate workers were inside the main boiler house removing roof-supportjoists outside of the view of the Plaintiff atop the roof of the neighboring structure. 17. The Plaintiff stood upon one sheet of plywood. 18. The Plaintiff removed the first two sheets of plywood with a battery- operated screw gun and passed them down to another inmate standing on the ground. 19. Rockview Maintenance Department policy required inmate workers to wear a safety harness line when working more than six feet off of the ground. 20. On September 9, 2002, the Defendant provided no lanyard safety harness line to the Plaintiff for his safety on the roof. 21. At the time Plaintiff fell, there was either no form of fall protection and/or inadequate fall protection. 22. The plywood upon which Mr. Shane was standing was weathered, grayish in color, decrepit and had been exposed to the elements for a long period of time without any adequate protection. 15 23. As an inmate, Plaintiff was required to obey the directives of Corrections Officers supervising any construction work he was performing. 24. Plaintiff was ordered to go onto the roof and remove plywood. 25. Plaintiff had no choice but to obey the directive from the Correction Officer supervising the dismantling of the roof. 26. Due to the decrepit condition of the plywood, the sheet of plywood upon which the Plaintiff was standing suddenly broke loose causing Plaintiff to fall to the ground. 27. Plaintiff then fell to the ground, landed on his feet and right wrist, fractured both heels and sustained other injuries. (See Plaintiff's Second Amended Complaint attached hereto as Exhibit "A".) The description of the condition of the roof in the testimony of Plaintiff, Mr. Figurelle and Mr. Sidorick is clear, the roof was: 1) gray in color, due to exposure; 2) not properly covered; and, 3) had existed this way for a period of one year.2 (See Counter Statement of Facts and Exhibits "B", "C", and "D".) It is obvious that the defective plywood (or OSB board) gave way causing Plaintiff to slide off the roof. Defendant does not and cannot dispute that Plaintiff was required to get on a roof that had existed for more than a year without any shingles or adequate protection. Day in day out, the OSB board was pelted with sun, rain, snow, wind, moisture and other elements with nothing more than tar paper. The color of the OSB had turned gray due to exposure to the elements. Such a roof is ripe with exposure to the elements and is going to be insecure, unsound and defective. Such a roof was defective and dangerous at the time Plaintiff was ordered to get on top of it. Such a roof was negligently constructed and designed because there were no shingles or proper water proofing to 2In Discovery practice, Plaintiff requested maintenance and repair records regarding the subject roof, but none existed and/or were not supplied. Defendant did not take any photographs of the accident site or of the roof and materials from which it was constructed. 16 protect the integrity of the plywood roof. A jury can easily infer that wood and screws, over time, exposed to the elements will rot, blister, rust, expand, contract and deteriorate. A jury could easily infer that a roof exposed for a year to the elements in a four season climate will deteriorate and become dangerous. Add to this defective condition a total lack of fall protection and you have ripe opportunity for a serious accident to occur as befell Mr. Shane. In its Brief, Defendant does not address the broken roof that started Plaintiff sliding off of the roof. Defendant ignores this crucial fact and acts as if though Plaintiff, sua sponte, just fell off of the roof. Plaintiff was performing his job as "ordered and directed" and the roof broke. It would be no different if the roof caved in and Plaintiff fell to the ground through the roof instead of sliding off of the roof. Either way, the defective condition of the roof caused Plaintiff's fall and severe harm. The Commonwealth's invocation of sovereign immunity fails when a plaintiff alleges, "for example, that a substance or an object on Commonwealth realty was the result of a defect in the property or in its construction, maintenance, repair or design." Jones v. SEPTA, 772 A.2d at 443-44. The facts in this case convincingly demonstrate that a genuine issue of material fact exists as to whether Mr. Shane's fall was the result of a "defect in the property or in its construction, maintenance, repair or design." Id. The evidence certainly demonstrates that the roof upon which Mr. Shane was ordered to work upon was not maintained, was not in good repair, was defectively designed and poorly constructed. What constitutes a dangerous condition is a question of fact that must be decided by the jury. Bendas v. Township of White Deer, 611 A.2d at 1187 n.6. B. IT WAS UNEXPECTED FOR PLAINTIFF - - NOT DEFENDANT "[A]ssuming all other requirements of the statutory exception at 42 Pa. C.S. § 8522(b)(4) are met, the Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges, 17 for example, that a substance or an object on Commonwealth realty was the result of a defect in the property or in its construction, maintenance, repair or design." Raker v. PA. Dept. Of Corrections, 844 A.2d 659, 662 ( Pa. Cmwlth. 2004) citing Jones v. SEPTa, 772 A.2d at 443-444. Here a factual issues exists as to whether Defendant failed to properly construct, maintain and repair the roof from which Mr. Shane fell. Defendant misstates Mr. Pereira's opinion by taking out of context the statement: "If the OSB had been left exposed to the weather for at least six months, extra care and precautions should have been taken to prevent the unexpected failure of the OSB while there were workers on the roof." (Exhibit "G", p. 5) The DOC was negligent from the beginning by allowing the OSB to remain exposed and by not properly protecting the OSB roof with shingles or other appropriate roofing covering. At the time of the incident, it was known to Defendant's employees, Correction Officers Figurelle and Sidorick, that the OSB was exposed, weathered and grey. Plaintiff had no choice but to obey orders and get up on the roof and remove that OSB. There cannot be any consideration of comparative fault under these circumstances. Furthermore, Plaintiff was not trained in safely working on roofs at ten plus feet heights above the ground or in fall protection safety. What Defendant failed to do is to provide Mr. Shane with safe work conditions so that he would avoid the hazard of the unexpected failure of the OSB. It was unexpected to Plaintiff, not Defendant. C. DEFENDANT HAD NOTICE Defendant failed to properly construct the roof, maintain it and repair it. Raker, 844 A.2d at 662. From the time Defendant constructed the building, it had notice of its defective construction and of its failure to maintain it and repair it. Defendant's investigation of this accident is almost nonexistent. Despite the obvious fact that Defendant is the party in control of the property and of the investigation following Mr. Shane's fall, Defendant failed to evaluate the structure or OSB board; 18 failed to take any photographs of the accident site or OSB board; and, failed to interview any of the other inmates that witnessed the fall. Defendant's suggestion that it was not aware of the poor condition of the roof is without merit and not credible. In this case, a jury could easily find that Defendant covered-up what was obvious decrepit conditions and/or that Defendant, for self-serving reasons, purposefully failed to conduct a legitimate investigation of Plaintiff's fall. A jury could certainly infer by Defendant's own admissions, that the roof was not covered, exposed, weathered and gray, and that Defendant had notice of the roof s poor and defective condition. What is also critical in this case is that Defendant failed to provide any discovery indicating the manner in which the building was built; when it was built (other than testimony); whether it was maintained or repaired. What is especially missing is any evidence describing the products used to cover the roof. If your going to engage in shoddy construction, you have to protect inmates working on shoddy structures. Here, it is painfully obvious, that the safety of the inmates working on the roof was totally discarded. CONCLUSION For all of the foregoing reasons, Defendant's Second Motion For Summary Judgment should be denied. WHEREFORE, Plaintiff, Scott Shane, respectfully requests that this honorable Court enter an Order denying Defendant's Motion for Summary Judgment. Respectfully submitted. WILLIAM OX,'ES)QUIRE Attorney fo laintiff Date: April 6, 2012 19 CERTIFICATE OF SERVICE I, William J. Fox, Esquire, attorney for Plaintiff, hereby certify that a true and correct copy of the foregoing Brief In Opposition To Defendant's Second Motion For Summary Judgment was served upon counsel for Defendant by U.S. First Class mail to the address below: Daniel R. Goodmote Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 20 74- WILLIAM J. FOX, ESQUIRE Law Offices of William J. Fox, P.C. Attorney Id. 69898 1417 Locust Street, 4`h Floor Philadelphia, PA 19102 (215) 546-2477 SCOTT SHANE Plaintiffs . Attorney for Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA COURT OF COMMON PLEAS NO. 04-4171 CIVIL TERM V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS STATE CORRECTIONAL INSTITUTE AT ROCKVIEW Jury Trial Demand Defendants SECOND AMENDED COMPLAINT 1. Plaintiff Scott Shane is an adult, age 37, and resides at 3355 Morning Glory Road, Philadelphia, PA 19154. 2. Defendant Commonwealth of Pennsylvania, Department of Corrections, State Correctional Institution at Rockview is a state government agency with a central office of business located at 55 Utley Drive, Camp Hill, Cumberland County, Pennsylvania. 3. Defendant operates numerous state correctional institutions within its boundaries, including the State Correctional Institution at Rockview ("SCI - Rockview") in Centre County, Pennsylvania. 4. On September 9, 2002, Defendant operated SCI - Rockview. 5. On September 9, 2002, Plaintiff resided at SCI - Rockview as an inmate. 6. As of September 9, 2002, Defendant had classified the Plaintiff as Custody Level 2R. 7. On September 9, 2002, Defendant employed Plaintiff on an inmate carpentry work detail. 8. On September 9, 2002, Defendant employed a Mr. Figurelle as the supervisor of inmates assigned to the carpentry detail at SCI - Rockview. 9. On September 9, 2002, Defendant owned a structure connected to the main boiler house at SCI - Rockview. 10. The structure in question was a building and/or fixture. 11. Prior to September 9, 2002, defense staff had affixed and removed 4 x 8 OSB plywood sheets several times on the roof of the structure in question. 12. On September 9, 2002, Mr. Figurelle ordered the Plaintiff to climb upon the roof of the structure connected to the boiler house and remove the remaining four sheets of 4 x 8 plywood from the roof decking. 13. As of September 9, 2002, DOC policy required work supervisors to maintain visual contact on Level 2R inmate workers throughout the work day. 14. Plaintiff was sent up to perform his work without fall protection such as a guardrail, safety line or other such fall protection devices. 15. As directed, the Plaintiff climbed upon the roof, approximately sixteen feet off of the ground. 16. Mr. Figurelle, another supervisor, and several inmate workers were inside of the main boiler house removing roof-support joists outside of the view of the Plaintiff atop the roof of the neighboring structure. 17. The Plaintiff stood upon one sheet of plywood. 18. The Plaintiff removed the first two sheets of plywood with a battery-operated screw gun and passed them down to another inmate standing on the ground. 19. Rockview Maintenance Department policy required inmate workers to wear a safety 2 harness line when working more than six feet off of the ground. 20. On September 9, 2002, the Defendant provided no lanyard safety harness line, or other fall protection device, to the Plaintiff for his safety on the roof. 21. At the time Plaintiff fell, there was either no form of fall protection and/or inadequate fall protection. 22. The plywood upon which Mr. Shane was standing was weathered, grayish in color, decrepit and had been exposed to the elements for a long period of time without any adequate protection. 23. As an inmate, Plaintiff was required to obey the directives of Correction Officers supervising any construction work he was performing. 24. Plaintiff was ordered to go onto the roof and remove the plywood. 25. Plaintiff had no choice but to obey the directive from the Correction Officer supervising the dismantling of the roof. 26. Due to the decrepit condition of the plywood, the sheet of plywood upon which the Plaintiff was standing suddenly broke loose causing Plaintiff to fall to the ground. 27. Plaintiff then fell to the ground, landed on his feet and right wrist, fractured both heels and sustained other injuries. 28. Plaintiff proceeded to the Rockview infirmary with assistance from others. 29. Medical staff took x-rays of the heels of the feet of the Plaintiff. 30. The x-rays showed that the impact of the fall had caused both heels of the Plaintiff to shatter. 31. On September 12, 2002, staff drove the Plaintiff to the Nittany Valley Foot and Ankle Center of Centre County. 32. Christine Weikert, M.D., applied temporary casts to the feet of the Plaintiff at the 3 Nittany Valley Foot and Ankle Center. 33. The Plaintiff required a wheelchair from September 9, 2002 to January 23, 2003. 34. On September 24, 2002, medical personnel replaced the temporary casts with more permanent casts. 35. On October 23, 2002, Mr. Figurelle rated the Plaintiff on an Inmate Progress Report covering for the past quarter year as having exhibited "good" observation of safety rules and as having a "good" accident record. 36. On October 31, 2002, Dr. Weikert re-cast the feet of the Plaintiff. 37. On November 19, 2002, Dr. Weikert removed the casts and provided the Plaintiff with orthopedic boots. 38. The Plaintiff required crutches from January 23, 2003 until March 31, 2003. 39. On February 5, 2005, Dr. John Symons injected a steroid into the right wrist of the Plaintiff due to carpal tunnel damage sustained from the impact of the fall on the wrist. 40. The Pennsylvania Department of General Services, Bureau of Risk & Insurance Management denied Administrative Tort Claim # 257851 of the Plaintiff on ground of alleged superseding contributory negligence. 41. On June 5, 2003, the Plaintiff began wearing orthopedic boots by permission of the Defendant. 42. On September 15, 2003, Dr. Romeo prescribed Motrin and analgesic balm to the Plaintiff for his pain and suffering. 43. On October 7, 2003, Ms. Kennedy, a medical assistant, injected the right ankle of the Plaintiff with Kenalog-10, a steroid. 44. On November 19, 2003, Ms. Kennedy injected the left ankle of the Plaintiff with a steroid shot. 4 45. On December 2, 2003, Ms. Kennedy injected the right wrist of the Plaintiff with a steroid shot. 46. Every night, the Plaintiff soaks in a tub of water, applies Ben-Gay ointment, and ingests Motrin to alleviate his pain and suffering. 47. The Defendant has reassigned the Plaintiff to a light-duty janitor position. 48. Prior to September 9, 2002, the Plaintiff had been a physically active man. 49. As a result of the fall Plaintiff has had multiple surgeries. COUNT I - NEGLIGENCE 50. Plaintiff incorporates paragraphs 1 through 49 of this Complaint as though same were fully set forth at length herein. 51. On September 9, 2002, Plaintiff fell from the aforementioned structure due to the decrepit condition of the roof and the failure of Defendant to provide fall protection to Plaintiff. 52. As a result of the fall, Plaintiff sustained bilateral calcaneal fractures and other serious injuries due to this fall. 53. The roof was not properly covered and was allowed to weather, turn grey and become decrepit over time. 54. Defendant's aforementioned actions, failures to act and omissions created the hazardous and dangerous condition which caused Plaintiff to fall. 55. At all times relevant, Defendant knew that Plaintiff was required to obey commands of the Correction Officer supervising the work and, therefore, that Plaintiff had no choice but to climb onto the roof and work without fall protection. 56. At all times relevant, Defendant knew that the subject roof was not properly protected, became weathered and decrepit and constituted a dangerous and defective condition. 57. At all times relevant, Defendant owned, maintained, managed, controlled and/or had 5 dominion over the premises where Plaintiff fell. 58. At all times relevant, Defendants had knowledge, both express and constructive, of the weathered, decrepit and defective condition of the roof from which Plaintiff fell. 59. Due to the dangerous and defective condition of the building and roof and failure of Defendant provide Plaintiff with fall protection, Plaintiff was caused to fall and sustain serious injuries. 60. Defendant and its agents and employees breached their duty of care toward Plaintiff by knowingly, recklessly, and carelessly permitting Plaintiff to conduct carpentry work on the roof of the secondary boiler house structure without a protective lanyard safety harness line or guardrail and under otherwise unsafe conditions without supervision. 61. The aforesaid accident was caused solely by the negligence of Defendants, in that they: (a) allowed the dangerous condition to exist which Defendants knew or should have known created a hazard to pedestrians, invitees and the general public; (b) failed to maintain a proper and adequate observation of the conditions then and there existing; (c) failed to properly maintain the surface and roof on the subject premises in accordance with the building codes and ordinances regarding roofs and slopes; (d) failed to provide fall protection for those working on said roof, including Plaintiff, (e) failed to act with due care and regard for the position and safety of others; (f) failed to exercise reasonable care to protect said Plaintiff from the dangers of working from heights above six feet; (g) failed to properly clean, clear and maintain the sidewalk adjacent to Defendant's business free of ice and hazardous slippery conditions; 62. As a result of the aforesaid negligence of the Defendants, Plaintiff, Scott Shane, 6 suffered, among other things, bilateral calcaneal fractures which required casting and several surgeries, multiple bruises, contusions and lacerations of the limbs and body, as well as severe shock to his nerves and nervous system, all or some of which are permanent in nature. 63. Plaintiff, Scott Shane, has suffered, and is likely to suffer in the future, pain and inconvenience, and he has been prevented from attending his usual duties and occupations, to his great financial loss. 64. Plaintiff, Scott Shane, has expended, and will expend in the future, various sums of money for medical treatment of his injuries, to his great financial detriment. 65. Solely due to the negligence of the Defendants as hereinbefore alleged, Plaintiff, Scott Shane, has expended, and may reasonably be expected to expend in the future, large sums of money for medicine and medical attention in treatment of his injuries. 66. Solely due to the negligence of Defendants, Plaintiff, Scott Shane, has suffered mental anguish, fear, frustration, humiliation, loss of life's pleasures, loss of feeling of well- being, loss of productivity, and permanent and severe impairment of bodily function. WHEREFORE, Plaintiff, Scott Shane, claims damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars with interest, costs and delay damages pursuant to Rule 238. BY: Dated: February 14, 2011 7 Respectfully Submitted, VERIFICATION I, WILLIAM J. FOX, ESQUIRE, attorney for Plaintiff, Scott Shane, in this action, and authorized to verify that the statements made in the foregoing Second Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that the statements made in said Pleading are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATED: February 14.2011 8 9 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SCOTT SHANE, PLAINTIFF VS COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTE AT ROCKVIEW, DEFENDANT NO. 04-4171 DEPOSITION OF: SCOTT SHANE TAKEN BY: DEFENDANT BEFORE: MELISSA FLINN, REPORTER NOTARY PUBLIC DATE: NOVEMBER 3, 2008 12:15 P.M. PLACE: BELLEFONTE PENNDOT MAINTENANCE OFFICE 1000 EAST BISHOP STREET BELLEFONTE, PENNSYLVANIA GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: LAW OFFICES OF WILLIAM J. FOX, P.C. BY: WILLIAM J. FOX, ESQUIRE 1417 LOCUST STREET, 4TH FLOOR PHILADELPHIA, PA 19102 215-526-2477 FOR - PLAINTIFF OFFICE OF ATTORNEY GENERAL BY: DANIEL R. GOODEMOTE, SENIOR DEPUTY ATTORNEY GENERAL STRAWBERRY SQUARE HARRISBURG, PA 17120 717-783-3147 FOR - DEFENDANT GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 3 1 2 TABLE OF CONTENTS 3 4 WITNESS 5 FOR DEFENDANT DIRECT CROSS 6 Scott Shane 4 -- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved to the time of trial . SCOTT SHANE, called as a witness, being sworn, testified as follows: DIRECT EXAMINATION BY MR. GOODEMOTE: Q Mr. Shane, we've met before. A Yes. Q Would you please state your name for the record. A Scott Charles Shane. Q You were here during the previous depositions; is that correct? A Yes. Q Did you hear the instructions your counsel gave the last witness? I know you weren't here for the first one. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Did you understand those instructions? A Yes. Q So I don't have to go through those? A Yes. Q Hopefully, you will follow them better than Mr. Figurelle did. A Yes, I will try my best. Q Particularly with the verbal responses and the not cutting off the questions and it will make for a cleaner record. Okay? A Yes. Q What is your date of birth? A 3/3/67. Q What is your current address? A 3355 Morning Glory Road, Philadelphia, PA 19154. Q How long have you resided at that address? A Since the end of last February, of this year. Q February of '08? A Yes, we just purchased this home. Q When you say "we," who is we? A I was married Valentine's Day, so my GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 new wife. Q Congratulations. A Thank you. Q So you and your wife reside at the address you just gave? A Yes. Q You've been married since 2/1412008; correct? A Yes. Q What is your wife's name? A Denise Shane. Q Where did you reside prior to your current address on Morning Glory Road? A 128 East Ontario Street, Philadelphia, PA 19134. Q How long did you live on Ontario Street? A I was paroled -- I lived there a little over a year, I would say, from when I left the center. Q That takes us back to early 2007; is that about right? A Yes. Q You mentioned a center. What center was that? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 7 7 L E 7 8 C J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Kintock, The Kintock Group. Q What is that center? A It's a private halfway house, which is a reentry program coming from upstate, incarceration. Q How long were you assigned there? A I was there, made parole, I left Rockview the 22nd of August and I was there well past my minimum because they had to approve home plans and all, to, I would say about August of '06, I would say. Then I went to my home on Ontario Street. Q So you went to your home on Ontario Street in '07; is that right? A '06. Q Back in '06? A Yes, end of the summer of '06, till I bought, purchased my home. Q When were you released from Rockview? A August 22, 2005. Q So you spent about a year at the halfway house, roughly? A Yes. Q Roughly August of '05 to roughly August of '06? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 8 L E E S 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, it was sometime towards the end of the su mmer. Q We don't have to be exact, I'm just trying to get an idea of where you have been. So previous to that, you were incarcerated at Rockview. When were you first sent to Rockview? A 2000, July of 2000, from Camp Hill. Q July of 2000? A Yes. Q Prior to that, you were at Camp Hill? A Camp Hill for three months. Q Where were you prior to Camp Hill? A Graterford for a week. Q Where were you prior to Graterford? A I was in Philadelphia County, I'm trying to figure out which one. I started out in CFCF, and I believe I went upstate from CFCF. Q How long did you spend at CFCF? A I was arrested on October 31st. I got to CFCF probably like the 2nd, October 2nd of '98. Q Where did you reside prior to being arrested? A 34 -- I'm trying to think of my address -- 3428 D Street, 26 D Street, something like that. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A 19134. Q Street? A years. Q A Q A Q A Q completed? A Q completed? A Q A Q A Q A D the letter? D as in David, yes, Philadelphia, PA About how long did you reside on D On and off, from 19 -- about eight So it takes us back to about 1990. Yes. Where did you attend high school? Mastbaum, Philadelphia, PA 19134. Did you graduate? No. What's the furthest grade you I have my GED. Okay. What's the furthest grade you Eleventh. When did you obtain your GED? 1990 -- let me think -- 1994. Are you currently employed? Yes. Who are you employed by? Instant Courier Services. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What is your position with Instant Courier Services? A I drive a truck for them. Q Is that local or cross-country? A Tri-state. The furthest we go is, like, Virginia, once in a while. It's pretty close, I'm home every night. Q You anticipated my next question. How long have you been employed by Instant Courier Services? A The past 18 months. Q So that takes us back to early '07, spring '07? A April '07. Q Were you employed prior to that but after your release from the halfway house? A Yes. Q Where were you employed? MR. FOX: After the release from the halfway house. BY MR. GOODEMOTE: Q After you were released from the halfway house, but before Instant Courier Services, were you working? A Yes. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Where? A Preferred Automotive. Q What did you do for Preferred Automotive? A Automotive repairs. Q How long did you work there, approximately? A Seven months. Q Full time -- A Yes. Q -- or part time. Full time. What was your rate of pay for Preferred Automotive? A When I left, it was like eight dollars an hour. Q Let me go to your current job, Instant Courier Services. What was your rate of pay, either salary or hourly? A Let me think. I think it's 15.25. Q Per hour? A Yes. Q Were there any other jobs after your release from the halfway house but before you started at Preferred Automotive? A No. Q So you had two jobs since your GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 release? A I had one after Preferred. Q Let's fill that in. Who was that? A I drove a truck for approximately a year for a moving company. Q Full-time job? A Not really; when they had the work. It was up and down. You might work two days one week and that's the reason I didn't stay too long. Q Did you have an hourly rate that you made with the moving company? A Yes, it was like nine dollars an hour. Q Did you work prior to your incarceration at Rockview? A Yes. Q Well, I guess it started at Graterford in the state system, I guess. A We're talking about work in the state system? Q No, what I'm trying to do -- I'm sorry, I'm asking a bad question. Before being incarcerated the last time, wherever it may have been, did you work prior? A Yes, odd-and-end jobs, nothing serious. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 13 E 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What type of work did you do? ' A Automotive, which is my trade. s Q What was the last automotive job you had before Preferred Automotive? A Pete's Auto Clinic. Q When did you work for Pete's Auto Clinic? I know we're going back now, so if you can approximate, fine. If you can't... A '96, summer of '96. Q About how long did you work for Pete's? A I worked there on and off since I was 12 years old, so we're going back a long ways. I started out pumping gas there and his dog bit me. He no longer has it. I don't even know what it is today. I don't think it exists anymore. Q What would be the first year that you worked there pumping gas? A '79. Q So off and on from 1979 through '96, you worked at Pete's Auto Clinic? A Yes. Q First pumping gas and then repairing automobiles? A Moving to the shop, yes. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 14 L 4 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How did you learn the auto trade? A I was a quick learner and then I was interested and took it at Mastbaum, at vo-tech. They had a good vo-tech program. Q How many years did you study automotive at Mastbaum? A I studied Mastbaum, my first and second year there. For 11th grade, I was going to, I alternated academics with trade and they shipped me -- I went at 2:30, it was called Randolph Skills Center, strictly automotive for a week, and doubled up academic classes in the off weeks. Q So two, two-and-a half years, something like that? A Basically, yeah. It was actually -- it was actually, like, over three years with the full time at Randolph because you got more time than just one class, one period in Mastbaum, so it was like you doubled everything up, so I did like two and one for the 11th grade. Q Before you left Pete's in '96, do you know what your hourly rate was then? A I have no idea. Q Did you ever work full time at Pete's Auto Clinic? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q How many years did you work full time A Total? Q Total. I'm just trying to get an idea. A Four years. If you added everything up, it probably would add up to about four years. Q Did you have any construction experience or training prior to your experience at Rockview? A I labored here and there for people, but nothing extensive, like stay on the ground, stuff like that, concrete -- nothing, you know, just like a helper-type status. Q More like a laborer. I got you. A People in there, lot of contractors in the neighborhood growing up. Q Let's go to your training at Rockview. How long were you in the -- first of all, did they have a name for the program you were in or what did they call the construction crew? A It was the carpentry crew, outside carpentry detail. Q Let's call it the carpentry crew. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Maybe we should call it something else so I can say it. A I don't know. That's what we referred to it. Q We'll go with carpentry -- let's call it the crew. When we refer to it as the crew, we know we are talking about the carpentry crew. How long were you assigned to the carpentry crew? A I want to say approximately a year. It's probably less. Q Around a year? A Around a year that I got hurt. Q The entire time you were assigned to the carpentry crew, were you supervised by Mr. Figurelle? A Yes. Q What types of things did you do on the carpentry crew? Obviously, we know you were dismantling a building at the time you were injured, but prior to that, what types of things did you do? A Prior to the boiler house job that they had, most of my time would be spent on the old police barracks, which was about four miles down the road from Rockview. The prison had acquired, GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 however they do that, I guess the police moved to a new building and the state picked up that building and we gutted it and refurbished it for offices and a weight room for the guards, so I did a lot of work there. Q Did you work most of the prior year that you were there in that building? A Yes, the majority of my time on his crew, when I was assigned to that crew, was at the police barracks; did a couple of odds and ends besides that, if something else would come up, but the bulk of our time was at the police barracks. Q Would you generally work five days a week? A Yes. Q What were the hours you normally worked, if there was a normal? A It was considered an eight-hour job, but by the time you were able to get processed out and processed in, it was really less than eight, a lot less than eight hours work time, but it was classified as a full-time job. Q Actual work time, was more like seven, six, five? A Probably five, maybe less sometimes, GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 18 1 L y 4 5 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 depending. Q While you were on Mr. Figurelle's crew, did you have the opportunity to at least work in proximity to Mr. Sidorick? A On occasion. Q Did Mr. Sidorick's crew ever work at the police barracks -- A Yes. Q -- when you were there? Was it part of the time, most of the time? I'm just trying to get an idea for how often you had worked. A Well, I was there most of the time. Q As a matter of operation and not necessarily -- we know you were a member of Mr. Figurelle's crew, but obviously -- maybe not obviously, correct me if I'm wrong -- would Mr. Sidorick teach you things or supervise you maybe when Mr. Figurelle was doing something else? Or did it kind of work that way or did it not work that way? A It didn't really work out that way. I mean with me personally, no. Q So you didn't have a chance to work that closely with Mr. Sidorick -- A No. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q -- prior to the accident? A Correct. Q Do you remember the accident as you sit here? A Oh, yes. Q In your own words, why don't you just tell me what happened. I may break in to get more detail or ask you some other questions, but let's start off in your words, just tell me what happened. A That morning started out like any other morning. Once we got out gate 6 and was processed, we ended up first going to the police barracks and then the call came in, they weren't sure it was going to go, but there was talk that we might get pulled off that for an emergency job at the boiler house, which is what happened. When my crew arrived on the scene, Mr. Sidorick's crew had already been there and they were on the ground working. Q Let me stop you there. About what time do you think the crew got to the, your crew got to the boiler house? A By 9:00 a.m., between 8:30 and 9:00 a.m. I would say we were on the scene at the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 boiler house. Q Pick it up from there. A We had the truck that Mr. Figurelle was using, which was like an enclosed van that could carry tools or plywood or whatnot. It was like an old truck. The whole crew was in it. We all got all our tools and set up. Mr. Figurelle assigned everybody a job, which was we put up a ladder on the right corner of the building, which would be the front by the right side of the fascia and basically the whole crew went up and started dismantling the plywood. Q So when you say the right side of the building, you would be standing on the side of the building? A No, like this is the front of the building -- or this is the front of the building. What you are looking at it would be the front right corner. So say by that window, the ladder is up, to get up onto the roof, that's where the ladder was. I don't know where your drawing is. Q Here's the drawing back (handing.) A Okay. Right on this side is where the ladder was, the side that I allegedly fell from. Q This is the roof. GEIGER A LORIA REPORTING SERVICE 1-800-222-4577 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A This is the front. Q This is the front wall? A Wall and the ladder was up here, so they're right looking at the building. Q So the roof is pitched front to back, not side to side? A Right here is the low point of the roof. This would be the back wall -- Q Did you have, like, a gabled roof? A Just one side. MR. FOX: Shed roof. BY MR. GOODEMOTE: Q Shed roof, one side. A So half of A. Q And it slants. The high point or the low point is in the front and it slants up? A Correct. So the top of the roof would be bolted to the main boiler house. The ladder would be, not right on the edge, but right here, where this X is is the ladder. Q Approximately how many feet from the edge of the building? A The ladder? Q Yes. A Five feet, six feet. It wasn't going GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nowhere. Q I believe there was testimony earlier that they started -- I have to get reoriented -- so this is the other, on the left side in removing the roof; is that correct? A No, because the roof was started to be removed from the very top. Q That makes sense. A We started working down. Q Did they begin removal from the top left or the top right? A You know what, it was so unorganized, people were just taking everything off. It was like ants on a little piece of crumb (demonstrating.) It was nuts. But as it worked down, there was two remaining rows when we pulled the crew off for a break and this and that. Mr. Figurelle and Mr. Sidorick was talking with the boiler house gentleman -- I don't really know who he was -- but he was a DOC employee that ran the boiler house. And there was also some of the guys in my crew and Mr. Figurelle -- or Sidorick's crew were talking with the inmates that worked the boiler house. Then there was a few guys that went up and took the next row off, just GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 goofing around, killing time. By then, Mr. Figurelle, Mr. Sidorick, and the inmate would have been David Gottle (phonetic) had a ladder up against the front, on the interior walls, so this is the inside of the addition; one ladder up against that wall, one ladder against this wall and two inmates were removing the joists from this end, which would be the left. You looking at this wall would be this side. Q Okay. A Mr. Figurelle then asked me to go up -- there were four sheets remaining on the bottom row -- asked me to go up, take them off, and then we could break for lunch. There was no room for more people up there. Q Just four sheets left on the last row on the right side? A Correct. While I was up on the roof, Inmate MaCode (phonetic) was on the ladder, but the ladder was moved towards the middle because I was working to the left going to the right. So we're looking at it, so I'm going this way, that way, the ladder is over there originally when I went up, but as I went up to remove the last rail, the ladder GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was moved to the middle. So as I unscrewed the screws, I'm standing on the one looking at, it would be the one to the right, get the screws off, passed the wood down to MaCode (phonetic,) who was on the ladder, who then passed it down to David Collins on the ground. Q So when you removed the fourth one, you were standing on the third one? A Correct. Q The one adjacent to that -- A Correct. By the time, when I just passed down the second sheet from the left to go down, I started to stand up, get myself situated so it would be on, you know, sturdy, and there was a big cracking noise, and the second one remaining that I was basically lifting up off of from this passing down, broke loose and I went off the side and fell to the ground and shattered my heels. Well, I didn't know that's what happened at the time, but... Q Had you removed any of the screws from the sheet that gave away? A No, I never had a chance to do anything to that sheet because I just got done GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 25 E E S 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 passing down the second sheet, so what happened, I was initially not kneeling, but squatting, and as I was moving up to stand up to move down the roof, big noise cracked and it just went off. I didn't have a chance to react. I just went off the side. It happened so fast. Luckily, the guy on the ladder, luckily was able to duck down or it would have been ugly because the wood probably would have got him right in his neck. Q So it's your testimony that none of the screws were removed yet from the piece that you were standing on? A Not by me. Q Were the screws removed from that piece by anybody that you know of? A Not that I know of. Q You didn't see anybody remove screws from that board? A No, because we started from the top, but there were goofballs on the crew, so anything could have happened, but to my knowledge, no. Q What were the roofing sheeting, what was that attached to, what did that screw into? A The joists. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Wooden joists? A Yes. Q As far as you know, had any of the other sheets gave way or broken loose while you were working on dismantling that building, that you know of? A Excuse me? Q In other words -- MR. FOX: Before he fell? BY MR. GOODEMOTE: Q Before you fell, did any of the other sheets break loose in a manner that you've described the one you were standing on broke loose? A No. Q Do you have any idea what would have caused your sheet or the sheet you were standing on to break loose in the manner that it did? A Aside from it being old and maybe the weather, it wasn't really covered properly, but I wasn't a carpenter. I don't have the knowledge. I have no idea. Q You don't know. That's fine. At any time after your fall, did you tell anyone at corrections your version of what happened? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q Were you asked? A I believe not. No. Q You weren't asked, but you didn't tell anybody A I don't really think I did because nobody really asked me anything in the infirmary or nothing. I would say no. Q Did you have any warning that sheet was going to give away? A No. Q I think you were describing you had just handed the sheet next to it, which, if you're going from the right, would be the third sheet, correct, the sheet you handed down -- A It was the second sheet. I was standing on the third sheet. There was four in a row. Q the right coi second going A Q come up with A I'm counting from this corner, from -ner, so you would be standing on the to the third? Yes. If you count from the other way, you different numbers. Yes, I see what you are saying now. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So the sheet that you had handed down would have been the third one from the right-hand corner? A Cor rect. MR. FOX: While facing the building? MR. GOODEMOTE: While facing the building? A Correct. BY MR. GOODEMOTE: Q When you handed that sheet down, you were standing on the second sheet from the corner, the one that gave way? A Yes. Q You heard Mr. Sidorick testify that he said something to you about getting off the roof. You were here for that testimony? A Yes, I was. Q Do you recall him instructing you to get off the roof and stand on the scaffolding? A No. Q You do not recall that? A No. Q Did anybody instruct you to stand on the scaffolding when removing the last row? A No. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How about earlier in the day? A No, we only had a ladder there anyway, but no. Q You are saying there was no scaffolding? A No scaffolding was there. Q No wooden scaffolding was there? A Not while I was there. Q So what Mr. Sidorick said about telling you to get off the roof and remove it from the scaffolding couldn't be true because there was no scaffolding there? A Not only there was no scaffolding, I was never told by any supervisor, any inmate or nothing to get off the roof and go anywhere. Q How did you plan, if you planned, how did you think you were going to remove the last piece? A From the ladder. Q Did Mr. Figurelle ever advise you not to stand on the last row while removing the last row of sheeting, if you know? A No. Q Do you remember anything about the fall itself, other than what you have told us so GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 far, it basically gave way and you landed on your ankles? A You said do I remember anything about it? No. What exactly happened that day, I have nightmares sometimes about it. I'll never forget it. To me, this happened yesterday. That's how vivid it is. Q Do you know where the board went, in other words? I'm not suggesting you should have. A I know where it went. Q Tell me about it, then. A Here's the ladder, where it was originally, but it was moved over this way when we working. Remember I told you it was moved? Q Right. How far from the right -- I'm doing this again to create a record because when you point, she can't take that down -- how far from the right front corner was the ladder? A Looking at the building, you got the 4 by 8 and a 4 by 8, so you are looking at 16 feet over was the ladder at this time, not like when we started, it was towards the corner. It was more towards the middle. As I fell, I fell half that distance, so I fell probably eight feet out, down, straight GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 down, and the plywood went towards my right as I'm coming off, so looking at it, it would be towards the left. MR. FOX: I didn't understand that. When you're facing the building, did the plywood go to the left or to the right? A To the left, facing the building, and I went pretty much straight down. The plywood went away from me. BY MR. GOODEMOTE: Q Okay. A Everything was like slow motion. It was like I seen the board hit and I just didn't have time to straighten up. Q The board hit before you did? A Yes. Q You hit primarily on your feet. A I landed on an angle and landed on my heels. I didn't come straight down. I landed on an angle and crushed my heels like... Q When you hit and you were on an angle, you were angled towards the building or away from the building? A My head would be towards the building. Q What's the first thing you remember GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 after hitting the ground? A When I hit the ground, I didn't feel nothing at first. But I didn't -- I couldn't feel my legs, neither. It was just like a tingling. I thought I was paralyzed, is the first. I couldn't even hear anybody, everything was blocked out. My lower half was tingling. It was tingling and I couldn't feel nothing. I thought I was paralyzed. I don't know how soon after that, just the pain came in, and to this day, my whole life I never felt nothing as painful as that. It was crazy. I just -- it was nuts. But nobody would let me move, they were holding me down. They wouldn't let me move. Q Who was the first one to come to you? A I couldn't recall. It was an inmate, though. Probably, if I had to say exactly who was there first, would have been David Collins because he was the ground guy. Q You're putting two and two together rather than having an actual memory; is that correct? A It was so much pain, I couldn't even think straight. MR. FOX: Don't guess. If you know, GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you know. If you don't know, don't guess. BY MR. GOODEMOTE: Q How long was it before the medical people got there? A I couldn't even tell you. Q You can't estimate, that's fine. You don't know you don't know. Where did they take you? A To the infirmary. Q Were you treated at the infirmary or were you taken to the hospital? A They kept me in the infirmary for, after it happened, I was there a couple of days. Q Did you then go to the hospital? A Once the x-rays were taken and they seen the severity, they gave me morphine and everything to dull the pain and it was like a day or so after that I, initially when I was, the day it hurt, so about the 11th or something I went to Nittany Valley, State College. Q What injuries did you receive in the fall, as you understand them? A I don't know. Like the doctors say -- Q I don't want the medical terms. I want your understanding of what your injuries GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were. A I shattered both my heels, like dropping a light bulb, basically. Q Any other injuries besides that? Not that that's not enough, but -- A It was some time -- not initially, no, because the ankles and everything were so much a mess, it was later on I was having problems with my wrist and stuff, started injecting my wrist in the medical infirmary; problems with my back. But for the most part, the majority of my stay in the infirmary, my feet were giving my enough problems that nothing else seemed to really bother me at first. It was after I was discharged from the infirmary I was starting to see other problems. Q How long were you in the infirmary total? A Straight through? A month. I believe it was a month. Q After a month and you're released is when you started noticing some other problems? A Yes. Q Your back, your lower back? A The first thing I noticed was my wrist. I was having problems with my wrist. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Which one? A My right. Q Do you know whether that absorbed any of the impact, if you know? A When I came down, the way I landed and then went back, I sort of, like, jammed it. Q You sort of tried to catch yourself when your body -- A Was going back after I hit and went back, so I wouldn't hit my head. It was like an instinct, reached back and messed it up somehow. Q Ever had any diagnosis, I mean, strain, sprain, break, anything like that? A I'm trying to think of the name. I had carpal tunnel, is what the Wexford (phonetic) doctor was telling me, who was the medical at the time, carpel tunnel. They were injecting it, like, every other month, sometimes every month. Q Do you have any current problems with your wrist? A Once in a while it acts up, but nothing as serious like when I was incarcerated at the time initially. Q I'm only talking about your right wrist now. Is there any way you're limited with GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that wrist in any significant manner as we sit here today? A No. Q Let's move to your back. I know we'll get to your feet because, obviously, that's a different ball game. You had some back pain after you were released from the infirmary; correct? A Yes. Q Tell me about that. A My lower back, it's always aching and nowadays it prevents me from sleeping comfortable. I can't lay really long periods, I'm constantly moving around. Q Ever have back problems before the accident? A No. Q Have the doctors told you anything about your back, have they any diagnosis or any treatment that they've prescribed or anything like that? A Recently, I went to a chiropractor, which I never did in my life, and prior to him doing anything he took x-rays and there's some damage in my, I don't know what you would call it, vertebrae or whatever it is, a couple of them are GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like closed, so -- but by like a regular doctor, I complain about it and they don't know. They don't know what's going on with it. Q Do you have any significant restrictions on your activity because of your back as you sit here today? A Well, overall, I can't do too much. Q Is that because -- A I'm limited because of my ankles. Q It's not really the back that -- correct me if I'm wrong -- but what I believe you are telling me is you're limited so much by your heels, that the back is really not a significant restriction on your activity at this point? A Aside from bugging me with sleeping, I don't really lift anything because of my heels. I can't walk carrying a load, so I can't really put the strain on my back. So aside from bothering me sleeping, not letting me sleep like I want to, no. Q Let's get to your heels. Do you have pain every day? A Every day; just a matter of how much. Q Every day all day? A All day every day I feel something. I'm never 100 percent, never. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q On your average day -- do you have average days? A My average day consists of feeling -- when I feel, like, really good, it only takes one second, a curve in the pavement to have my foot go like this and it wakes it back up, let's me know I'm messed up. So I'm always in pain. Q Let's say that happens. You hit an uneven surface and you tweak your foot or something. To maybe I or your attorney would be a tweak, to you it sounds like it's more. Tell me what that causes. Does it cause -- A Severe pain. Q Severe pain. How long would the severe pain last for? And maybe there's nothing typical, you've got to tell me that, too. A It would be every situation is different. It could go right away, but it's always pain, but I'm saying the intensity of it will dull down right away. If I do it bad enough, it could last a few hours. Q Do you take anything prescription-wise for the pain? A Yes. Q What is prescribed for your pain? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Tramadol, which is the synthetic drug for Ultram. Q I don't know what Tramadol is. A It was -- from my doctor now, it came out, like, in the '70s for arthritis and stuff like that. It's a nonnarcotic that tricks your endorphins to think you're taking morphine, so it's a nonnarcotic. I started receiving it in Rockview and I was able, upon my release, my doctors I deal with, they think because of my past history with drug abuse that I'm better off sticking with that if it helps, so that's what I remain taking. Q Do you take Tramadol every day? A Oh, yes. Q Is there like a maintenance dosage? Are you supposed to take so much per day or does it depend on your symptoms? A I'm supposed to take two tablets every four to six hours. Sometimes I might not need it, so it will be a little longer. Q Do you know what the dosage is? A Fifty milligrams. MR. FOX: Each tablet? A Yes, per tablet, so 100 milligrams a dose. I take up to three doses a day. Depending GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on how late I'm up, it might be four per day. BY MR. GOODEMOTE: Q Anything else that you take for the pain? A Tylenol, stuff like that, but that's the primary medication I take. Q You have been taking that pretty much since 2002? A I've been taking that since they started me in Rockview with it, which was not right away because I was on real heavy duty stuff, but yes. Q Let's go work-wise. I'm trying to break down what your symptoms are today and how it affects you, so let's start with things that might be work related. Does that make sense, to try to take it that way? A No, I don't understand what you want. MR. GOODEMOTE: Let's go off the record. (Discussion held off the record.) BY MR. GOODEMOTE: Q At some point, we sent some written questions to one of your attorneys, I believe Angus Love was the one who filed the answers. It talked GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about the fact you were limited in working in the automotive industry and perhaps the construction industry. A Yes. Q Why don't -- do you remember those? A Yes. Q You sat down with your attorneys and helped with those answers; correct? A Yes. Q Just tell me the background of that answer. A The automotive industry, I ended up having to leave it because I couldn't perform my duties standing on the hard concrete eight hours a day. It was killing me. By the end of the shift, my ankles were so swollen, I'm surprised I lasted seven months doing it. I had to work because I was in the center, to keep my passes and stuff going, so I just investigated and figured I could do a driving job which, like now with my driving job, if I drive too long, it stiffens up and cramps up, but it's not as severe as standing, you know. It's progressive. Q What I get from what you are telling me then, you can't work in the automotive industry GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because of the standing all day is too much pain. A I can't do it. Q It would be a similar answer in the construction industry because basically you are standing all day? A Correct. Q You mentioned in response to one of my previous questions that you can't carry things and walk at the same time, I assume a certain weight. A I can carry -- it all depends on how beat up I feel, what I'm up to feeling later on that day. If I do too much, I'm going it pay for it later on that day, well into the next day, especially when I get up in the middle of the night to go to the bathroom, I have to hold onto the wall to get to my toilet. I try and do -- I'm a very active, well, I used to be a really active person, but like now, I still tend to forget my limitations, so sometimes I pay the price. I forget. But it wakes me back up real quick toward the end of the day, but... Q How about hobbies or things like that? Are there leisure activities that you used to engage in that you don't engage in now because GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of your injuries? A Sure, softball, I used to play a lot of softball; running around on the beach playing Frisbees or flag football, get in a league, lot of leagues, I can't do that anymore. It's -- I don't even -- I can't even run for the bus today. I have to sit there and watch it go by because I can't run to the bus. It gets frustrating. Then the winter is coming and now I know what my grandparents, Oh, it's going to rain. I forget about it, I'm like, Damn, why do I feel like crap today; oh, well; then it starts to rain. And you know, that's what it is. I'm like a damn weatherman. It's -- there's a lot of things. I think about my future when I'm a grandparent because I'm still pretty young. My oldest child is 23, my daughter; my son outside is 20. Any time I could be a grandfather. What am I going to do, you know, with my grandchildren. What am I going to do 20 years from now. That's my problem, my biggest -- I bought a house. Am I going to be able to provide to pay the mortgage. It stresses me out. Q Where are your future work plans? Are they staying in your current position? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 44 7 L L E 7 8 C 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A My -- Q To the extent you have them. A The job I have now I have to have because it's -- I'm driving a truck for a company, I have to be medically cleared to drive. Now, my problem that I worry about is I just had one done, physical, and they gave me -- I'm only allowed to get it for one year because of my injuries. They can go up to three years. I can only go every year. I have to get a rephysical for. The options I have, I go every 12 to 18 months for a tune-up. I go and get scoped, tighten up a couple of ligaments, try to get them to keep motion in my ankle. That's what I go through every 12 to 18 months. I've had three since I've been home. Q Basically a surgery? A Basically, yes. Q It's a scope surgery? A Scope and they tighten up my ligaments because it gets to the point where I can't put no pressure on it and my mobility goes out, plus the arthritis, it's really bad. The doctor already informed me that when they don't work anymore, the only option at this moment in time is to fuse them. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 45 L 4 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I have two bad ankles, so what's my option down the road. How long is that going to be? I don't know. So I don't know what I'm going to do down the road. Q Fair enough. As part of our discovery, we asked you certain questions and I don't do this to embarrass you, but I need to get the full scope of what your case looks like. You indicated that you had 13 convictions. I don't really want to go in-depth, but tell me, to the extent you can, what those 13 convictions were for. A A lot of them were like auto thef -- receiving stolen property, unauthorized use. Q Okay. A I had two robberies. That's the majority of it right there. It's public knowledge. You can probably pull it off the Internet these days. I mean, for real. Q I don't know if it's quite that easy. A Well, you can obtain it. I don't hide it from nobody. My employer knows what I was in prison for. Q You mentioned drug issues. Do you have any convictions for drug charges? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 46 1 L 4 5 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. Q The best you can describe them, two robberies and the rest were basically receiving stolen property or related offenses? A I know of two robberies. Some of it goes back from when I was like a kid that I forgot about. When the parole man asked me, I was like, I don't remember, but the big stuff was the two robberies and everything else was like receiving stolen property, unauthorized use, which is a stolen car, stuff of that nature. Q Okay. A How many RSPs and all that, I have no idea. The two big ones were the two robberies. Q Are you currently under court supervision at all? A I'm on state parole. Q How long? A 2015. Q Let me look through my notes. We are just about done, if we're not done. (Brief pause.) Q I take it you're currently under, you still treat with a doctor for your heels because you mentioned about going back and getting your GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 47 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tune-ups. A Yes. Q Who is the current doctor you are seeing? A My foot and ankle specialist is Steven Boc. Q B-a-c-h? A B-o-c. Q When was the last time you saw Dr. Boc? A Two or three weeks ago. Q Your last surgery was '06; is that right? A Might have been '07. I had three. I was trying to get the exact dates. I had '06 and maybe two in '07, something like that. I had three, two on my left and one on my right. MR. FOX: Two in '06 and the last one is September of '07. MR. GOODEMOTE: September of '07? MR. FOX: Yes, I think discovery was answered in ' 06. I probably owe you some updates. MR. GOODEMOTE: I guess I owe you a letter now. Those are all I have. Thanks. (The depo sition was concluded at 1:14 p.m.) GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 48 1 L 4 5 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF PENNSYLVANIA ss. COUNTY OF DAUPHIN I, Melissa Flinn, a Reporter-Notary Public authorized to administer oaths within and for the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of SCOTT SHANE. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said reporter Melissa Flinn, a Reporter approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence contained fully and accurately in the notes by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto subscribed my hand this 14th day of November, 2008. - , e ewe Z & - ------------ elissa Flinn My commission expires: November 21, 2009 GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 c IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SCOTT SHANE, PLAINTIFF VS NO. 04-4171 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTE AT ROCKVIEW, DEFENDANT : DEPOSITION OF: EUGENE FIGURELLE TAKEN BY: PLAINTIFF BEFORE: MELISSA FLINN, REPORTER NOTARY PUBLIC DATE: NOVEMBER 3, 2008 11:10 A.M. PLACE: BELLEFONTE PENNDOT MAINTENANCE OFFICE 1000 EAST BISHOP STREET BELLEFONTE, PENNSYLVANIA GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: LAW OFFICES OF WILLIAM J. FOX, P.C. BY: WILLIAM J. FOX, ESQUIRE 1417 LOCUST STREET, 4TH FLOOR PHILADELPHIA, PA 19102 215-546-2477 FOR - PLAINTIFF OFFICE OF ATTORNEY GENERAL BY: DANIEL R. GOODEMOTE, SENIOR DEPUTY ATTORNEY GENERAL STRAWBERRY SQUARE HARRISBURG, PA 17120 717-783-3147 FOR - DEFENDANT ALSO PRESENT: SCOTT SHANE GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 3 1( 1. 1L 14 1` 1E 17 18 19 20 21 22 23 24 25 1 2 3 FOR PLAINTIFF Eugene Figurelle TABLE OF CONTENTS WITNESS DIRECT CROSS 4 -- EXHIBIT INDEX Fiauro elle 1 Pages from Inmate Handbook 2 Extraordinary Occurrence Report MAR 28 33 GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 4 L L E i C 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved to the time of trial. EUGENE FIGURELLE, called as a witness, being sworn, testified as follows: DIRECT EXAMINATION BY MR. FOX: Q Good morning, Officer Figurelle. My name is William Fox. As you probably know, I represent Scott Shane in a lawsuit against the Commonwealth with regard to a fall in September of '02. Before we begin, I need to give you some instructions. A Okay. Q All of your responses must be verbal. The court reporter can only take down verbal responses. She can't take down a nod or a shake. If you like to talk like this, you can't do it GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 5 _I (indicating.) E 1C 11 1L 13 14 15 16 17 18 19 20 21 22 23 24 25 Please wait until I complete my question before you answer. Often, people will anticipate where I'm going and cut me off and start to give me an answer. Often, they're right, sometimes they're wrong. Either way, we're trying to get a good record so later on, when we read the transcript, we'll understand the full question that I asked. A Okay. Q I'll try to give you the same courtesy and allow you to finish your answer before I ask my next question. If you don't understand my question, please let me know and I'll do my best to rephrase it. If you answer my question, I will assume you understood it. Often in the course of these types of proceedings, people don't remember everything, but later on their memory may be jogged by a fact that comes up. If you don't remember something early in the deposition that you remember later on, feel free to stop me and interrupt me and say, Hey, I remember a question you asked a few minutes ago and we'll readdress it. A Okay. Q By the same token, we don't want you GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 6 1 to guess today. If you don' t know an answer to a 2 question, please say I don't know. 3 A Okay. 4 Q Guessing never helps anybody. If you 5 need to t ake a break, let me know. I don't think 5 we'll be here too long. I'l l just ask that you 7 answer an y pending question before you take the 3 break. 1( l: lL 1? 14 1E 1E 17 18 19 20 21 22 23 24 25 Could you give us -- I don't know what address you want to give, his office address? MR. GOODEMOTE: That's fine. BY MR. FOX: Q Could you give us your present office address. A At Rockview? Q Yes. A SCI Rockview, Box A, Bellefonte, Route 26, I think. Q Do you plan to retire in the near future? A Six years. Q In the past 24 hours, have you ingested any medicine, controlled substance or alcohol that would prevent you from understanding my questions or testifying truthfully today? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Had some wine, but no. Q Last night? A Yesterday afternoon. Q Are you presently under any medication or any other substance that would prevent you from understanding my questions or testifying truthfully? A I don't think so. Q How old are you, sir? A I'm 52. I'm a little hard of hearing, so if you see me leaning forward... Q Is your right ear better than the left? A No, it doesn't matter. Q I will try to speak up. A It's not that bad. If you see me leaning in, that's why I'm doing it. Q When were you first hired by the DOC? A August of '88. Q What was your first position? A Same position I have now. Q Which is? A Corrections carpenter trade instructor. Q Are you still at Rockview? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, I am. Q Prior to that time, where were you employed? A Altoona Vo-Tech. Q What did you do there? A I taught carpentry and cabinetmaking to adults. Q Have you received any training in the field of c arpentry or cabinetmaking, training or schooling in the field of carpentry or cabinetmak ing? A Yes. Q Explain briefly what that was. A From the beginning, I went to Altoona Vo-Tech, t ook cabinetmaking, carpentry both there and United States Army, had a carpentry course there. Q When did you get out of the Army? A '77. Q When did you start teaching at Altoona Vo-Tech? A I would be guessing, '86, '87. Q What did you do between '77 and '86? A Worked for a contractor and I went to school. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 9 E E 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Where did you go to school? A Penn State. Q Did you get your degree? A Yes. Q In what? A Correction -- industrial education. There's more to it than that, I can't remember the exact title. Q I guess you became certified by the state of Pennsylvania to be a vo-tech teacher, essentially? A I was never certified. You don't need certification to teach at the vo-tech, especially with adults, but my degree is vocational industrial education. Q You started with the DOC in '88 and have been a corrections carpenter trade instructor ever since? A Yes, sir. Q As part of your duties, do you provide any in-class teaching to the inmates? A In class? Q Yes. A No. Well, we provide training. Basically, the whole time we have them, we show GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them how to do this and how to do that, if that's what you mean. Q On-the-job training? A Yes. Q Was any training done in the shop? A Some. Q Most of it out on the job? A Ninety-nine percent of it, yes. We have a training program, or I have a training program set up where we do a little, you know, as we're -- we do a job, we go through a little bit at a time. Q You give them a heads-up as to what you are doing. If they need any training, you give it to them? A Well, yes do a job and they say, somebody will come and this, can you show me, something else. Q When did and no. I mean, we come to How do you do this, or say, I don't know how to do and we'll stop and do Mr. Shane come under your supervision? A I don't remember the year. Until you said '02, I forgot what year this happened. Q I'm going to represent to you this GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accident happened September 9, 2002. Prior to that time -- A Was he on my crew? Q Yes, approximately, if you don't know for sure. A Probably at least several years, I'm guessing. I don't know. Q You think it was at least two years? A I'd be guessing if I told you two years. I have no idea. You get so many people coming and going, okay. I mean, I have those records, but I have no idea when. Q In preparation for today's deposition, did you review any documents regarding the fall or regarding -- A I don't have anything. Q -- regarding your supervision of Mr. Shane? A No. Q In preparation for today's deposition, did you speak with, not regarding conversations with Mr. Goodemote, but did you speak with any of your supervisors or Mr. Sidorick about your testimony? A Yes. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 12 L E E c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Who did you speak with? A Mr. Sidorick and my supervisors. They asked why, because most of them weren't around then. Q They wanted to know why you are not at work today? A Well, what's the whole thing about, because most of them weren't there whenever this happened. Q You said you had a conversation with Mr. Sidorick. A Yes. Q When did you have that? A About this? Q Yes. A Off and on, every time we heard something was coming up. Q Did you actually discuss your testimony or the facts of this case with Mr. Sidorick? A We discussed what happened, basically trying to refresh each other's memories because some of the things were, you know -- like I said, some things you remember, I remember myself and then he remembered things himself, but that's about GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 13 11 what we talked about. f c 1C 11 14 15 16 17 18 19 20 21 22 23 24 25 Q When was the last conversation you had 3 with Mr. Sidorick before today's deposition? E A You mean beside today? Q Besides meeting him this morning. > A A week ago. Q Could you tell me what the contents of your conversation were. A Basically is this still going on; what are they talking about now; what's, you know, what do you think the questions are going to be; things of the normal, I'm thinking, questions. Q Did you discuss the specific incident where Mr. Shane fell? A Yes. Q As part of your duties, did you have any -- strike that. As a corrections carpenter trade instructor, did you have any duties with regard to job safety? A Yeah, we did safety; ladder safety; scaffold safety, and general safety. Q When you say ladder safety, scaffold safety, what do you mean? A When you put up a ladder, it should extend this far above the roof; when you're on GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 scaffolding, you know, basically make sure it's level, plumb, you put such a big block underneath it, leveling out, things like that; very basic. Q Did you ever provide training to the inmates with regard to job safety? A You mean like handouts? Q Handouts, classroom. A Yes. Q You did? A Yes. Q Explain to me what these hand-outs would have said. A I don't know who developed them, I can't remember. I just obtained them over the years. For example, the ladder safety one says, like I said, when you set up a ladder, make sure it's on a level surface, make sure it extends three foot above the roof, don't stand on the top step. They're -- it's a -- like I said, I don't remember where I got it from, but it's a general safety. Q Did you ever hand out safety literature with regard to fall protection to any inmates? A No. Q Did any of your supervisors ever GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 require you to engage -- strike that -- to provide any training to inmates with regard to fall protection? A No. Q Are you aware of what policies regarding safety the DOC follows with regard to construction jobs, carpenter jobs that are done at Rockview and other Department of Corrections? A I don't understand the question. Q Are there any policies the DOC follows -- I'll give you an example, OSHA, ANSI -- that they prescribe to, adhere to, whatever language you want to use, with regard to work that is performed at DOC properties? A Whenever I first heard about this, I went to my supervisor -- I don't know if it was Mr. Bower then, I'm guessing it was -- and asked him, Do we have a policy on falls because, and he said no, we do not, is what he told me. So until recently, we never had anything. I never received training on it or anything like that. So as far as I know -- and I just asked recently about it again. I said, What do we have and they said we have nothing. We have no policy under that. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 16 1 I asked our safety guy and he did ? print me out a thing a couple months ago about -- I 3 don't know if it was OSHA. Q 1926 by any chance? A What? Q OSHA's regulation 1926, which governs f c 1C 17 1L 14 15 16 17 18 19 20 21 22 23 24 25 fall protection. A I don't know. It was a thing on -- it was a thing on, not on building, but something on fall protection, because the reason I asked is we had received harnesses since then because of one job we were doing. We were up on a roof and it was a metal roof, very steep, and we had harnesses. That's the only way we stayed on the roof. They gave us the harnesses and I asked them what was the life of the harnesses and they said they didn't know. So our safety manager did research on the safety harnesses and we found out what they recommend and since then we've replaced some of them. But as for policy, no, we don't follow OSHA or anything else. Q Have you ever heard of rule 1926? A No, I have not. Q Prior to the time Mr. Shane had GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fallen, had DOC ever required inmates to wear safety harnesses or -- A We never had anything then. Q The answer is no? A No. Q Again, try to wait until I complete my question. I'm sorry if I'm long-winded, I've been accused of that a few times. I've received some policies that talk about fall protection in trenches. Are you familiar with that? A I don't work in trenches. Q I think it's from 2005. A I know general, you know, from working in the field, when they're in the trench, they're supposed to have the walls that go down. Q Have to be stable. A But there's walls you can put in and work inside of them if they're so deep, but what they are, I don't know. I have no idea. Q Following Mr. Shane's fall, were you required to perform an investigation as to the cause of his fall? A No. Q Were you required to prepare an incident report? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 18 L C E i 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I think I did. I'm pretty sure I did. Q I think you did. We have it if we need it later on. Let's actually talk about the building where this happened. It's my understanding there's a boiler and there's a temporary structure put around the boiler. A Yes. Q Do you know when that temporary structure was built around that boiler? A I believe the previous fall. Q So a year earlier, approximately? A When did we tear it down? Q He fell in September '02, so it was still up. The fall would be approximately a year before. A It was -- no, it was probably -- it was late fall, maybe early winter, maybe, because we got the temporary boiler in and it was only supposed to be there for so long. How long, I can't remember. Q Did you have anything to do with building the temporary structure? A Yes. Q Did you work on that with Mr. Sidorick in building it? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, I can't remember. I can't remember if he built it with one of our labor foreman or - - we built three of these things. We build one -- they get a boiler in the one year, the next year we build another one, so which one, who worked on... Q With regard to the particular building that Mr. Sha ne fell off, do you recall what the dimensions o f that temporary structure were? A Exactly? Q No, approximately. A Approximately 15, 14 foot wide; 30, 40 foot long, m aybe, and maybe 10 foot high. Every one we built got higher. I can't remember if this was the firs t one we built, the second one we built or the third one. There's one there now. Q Was that structure ever fully torn down? A It was totally torn down. Q Even after Mr. Shane fell, you continued with the job? A We continued the job and tore it the rest of the way down. Q Did you build another one in its place? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 20 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 A We didn't build another one until the 2 following -- we rented boilers because our boilers 3 were old or bad, whatever, so every time they got 4 these temporary boilers in, we had to build a 5 temporary building. 6 Q I got you. With regard to the 7 structure Mr. Shane fell from, it's my understanding it was built with 2 by 6's or 2 by 9 4's, do you recall? A The walls or the roof? Q The walls and I guess -- why don't you tell me what you recall building it with. A I'm just guessing the walls were 2 by 4 and the roof was at least 2 by 6, if not 2 by 8. Q Do you know what sheeting was placed on the roof? A OSB board. Q Do you know what the width of that was, the thickness of it? A I believe it was -- it's not quite half-inch, but they call it half-inch. Q In your experience in construction, has it been typical to use OSB as a sheeting on the roof? A Yes. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Explain to me the process of breaking down or tearing down that roof. Did you get a work order to tear that temporary structure down? A I don't know. Q Well -- A It was a work order or a verbal order, it was either/or. I'm guessing it was a verbal order, but... Q You don't recall? A Don't recall. Q You got an order to tear it down. A Yes. Q Tell me what was the first thing you did to start. A First thing we did, we went down, we built a set of scaffold, wooden scaffold, or Mr. Sidorick built a wooden scaffolding across the front of the building, the whole length of the building. So whenever we got so far down, we could work off the scaffold and take the rest of the building down. Q Okay. A We had both sets of inmates there. I don't know what else you want. Q Did you participate in building the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 scaffolding or is that something Mr. Sidorick had done? A It was like both of us. I think he -- it was more of that because I was getting, I was issuing tools, but I'm pretty sure he did most of the construction of the scaffold, if I'm not mistaken. Q Was the scaffolding built the day Mr. Shane fell or had it been done prior to that? A I couldn't tell you. If it was, it was the day before or several days before. Q Do you know if it was done that day? A I can't remember. I mean, if it was put in, it was only put in that day. It's a several day -- you know, whatever. Q Could you describe the scaffolding for me. A It was made out of wood, wooden posts, wooden planks. I don't know, I mean, cross braces, whatever you need. Q What are cross braces? A To keep the legs from moving. Q Were they metal or wood? A The whole thing was out of wood. Q Was it the type of scaffolding that GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had been used on other jobs or was it built from scratch? A No, it was built from scratch. Q Had you, in your experience in that time frame of '01/'02, had you built similar scaffolding like that in the past? A I built it before. You mean at Rockview? Q Yes, at Rockview. A Yeah, you always build, anything that would make the job easier, safer to do, and you would build it. Whether it's that scale or not, no, but yeah. Q Could you describe the exact dimensions of the scaffolding or approximately what it looked like. From the ground looking up, what did it look like? A I'm saying -- the height? Q The height, what did it look like? A Yay-wide. MR. GOODEMOTE: You need to make that verbal. You're doing a lot of hand gestures. A Three foot wide, maybe. BY MR. FOX: Q Off the building? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Off the building; height-wise, as high as the roof; handrail, roughly 30 inches, 36 inches high from the walking surface. Q Was the handrail wood, also? A Yes, 2-by-10 planking, I'm guessing, to walk on. Q With the eave, where would the scaffolding surface, the walking surface of the scaffolding have been in relationship to the eave, that you recall? A The walking surface? Q Yes. A Three foot below it, maybe. The eave was probably about this height (indicating.) Q Waist high if you're standing on -- A I would say about there. Q If you're standing on the scaffolding, the eave would have been waist high? A Yes. Q Did you actually witness Mr. Shane fall from the roof? A No, I did not. Q Where were you at the time? A I was inside the truck issuing tools. There was an inmate with me, we were getting tool GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 out of the truck. Q First time you saw him was when he was on the ground? A When he was on the ground. The back of the truck was facing the building where we were working and had -- the back of the truck was open. It was a box truck. Q You were in the truck. Where was Mr. Sidorick? A On the scaffolding. Q The inside of the building? A Outside. Q Outside of the building. Do you know what he was doing at that time? A He was working with the inmates and they were still tearing the building down. They were taking the plywood or OSB board off it and then were going to take the rafters off. Q Mr. Sidorick, I think, described the scaffolding as being anchored into the bottom wall of the shed, so if I understood him correctly, it was angled down into the wall. Do you recall something similar to that? A It was -- there was posts holding it up and cross pieces going in tying it to the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 building, that they could be torn down once we got down to that lower level. Q Were the posts into the building or were they actually on the surface, that you recall? A Don't remember offhand. I would have to guess. Q In your experience -- don't guess -- in your experience, would you have the posts going down to the ground surface -- A Depends on the. Q -- or would you have them angled into the wall? A Depends on the location, situation, the ground surface. Q What was the location, what was the surface outside this particular shed like? A Blacktop, I believe. I believe it's blacktop down there. Q So a surface like that would be an okay surface to build a scaffolding on? A Yes, I would believe so. Q And the idea was to tear that whole wall off in addition to the roof; correct? A Once we got the roof off, then you can work your way down, the scaffold would be tore off GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 27 F c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as it came off. Q Explain to me how work pursued that morning or -- strike that. What was Mr. Shane doing, what was his assignment on that day? A He was up on the roof taking the screws out of the OSB board, handing the boards down to the edge of the roof and then it went onto the ground. Q Other than the OSB boards at the time you started this job, was there any other type of roofing material on top of the OSB? A I don't believe there was anything over top of the OSB. Q Would you say that the OSB had gotten a weathered look to it? A Yes. Q Like a grayish color? A Yes, grayish color. Q Grayish, you know what I'm talking about; right? A Yes. Q So you ordered him up there; correct? A Yes. Q Now, would you agree with the statement that inmates are required to follow your GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 28 L E C S 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 orders when you order them to do something? A Yes. Q If they don't do it, there's some substantial consequences; correct? A Yes, there could be. Q Did Mr. Shane typically obey your orders? A He was an excellent worker. Q Do you recall an incident where he didn't obey an order? A I can't think of any offhand. Q I have some records here and I want to see if these records are dated more recently than 2002. I wanted to know if they still existed back in '02. A Okay. Q I'm looking at work assignments, it says DC-ADM 816. We might as well mark it. (Pages from Inmate Handbook marked as Figurelle Exhibit Number 1.) BY MR. FOX: Q Let's start with the first page. I highlighted number 1, number 3 and number 7 and number 8. Take the time to review those for me. It's page 66 of the inmate handbook we're looking GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at, the 2005 edition. I want you to read them to yourself and then I will ask you a couple of questions. A Okay. Q Those policies that you just read, were they in existence back in '01 and '02? A I have no idea. Q The one sentence on paragraph 1 says -- I'm assuming where it says you, they're referring to an inmate -- it says, You do not have a right to be assigned or continue to work in any particular work assignment. I understand that's stating an inmate does not have a right to either be assigned or not to be assigned; would that be accurate? A Which one is this again? Q Number 1 (handing.) A The second sentence there? Q Yes. A You do not have the right to be assigned or continue to work in any particular work assignment. I have no idea. I mean, I understand the first sentence. I mean, they're supposed to work regardless what the compensation is. Different inmates get paid different... GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q They have to work. If the prison says you are not working, you are not working? A Correct. Q That's what I think that means. Was that the case back in '02? A The same. Q Back in '02, if they failed to report or refused to work, was that considered misconduct? A Yes, sir. Q If you're absent from your job without prior knowledge to a staff member, is that also considered misconduct? A It could have been, yes. Q Number 7 basically says that you will be required to do certain work by the crew supervisor. I'll quote one sentence, You may, at times, depending upon facility needs, be assigned tasks unrelated to your present job. You may not refuse to perform those tasks as assigned. A That is correct. Q Was that the case in '02? A Yes. What I meant before by saying I don't know what the -- we don't get a copy of the handbook, so it could be or could not be in that handbook. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 31 E 1( 1] 1L 14 15 16 17 18 19 20 21 22 23 24 25 1 Q I will try to paraphrase, that might ? be easier. If somebody, if an inmate engaged in 3 misconduct, they could be removed from a work I assignment; would that be one of the penalties? A Yes. > Q If an inmate is injured on the job, according to F, it says here the work supervisor must complete an incident report? A Yes. Q It also says here, I'll quote -- this is page 68, paragraph F(2,) If you are unable to work as a result of self-inflicted injuries or injuries sustained as a result of a provoked assault or your carelessness, you will not be eligible to receive pay. Was that policy in place back in '02? A Couldn't tell you. Q Let me ask it this way: If a worker didn't just fall off a roof, but went and jumped off a roof and got injured, would they, under those circumstances, be eligible to receive medical pay, whatever they call it? A I would pay that person as long as they were a member of my crew. As long as they were assigned to me, they all got paid. Once they GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 32 F E 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L were taken off my crew, I was no longer responsible for their pay status, so that would have to go to 3 whoever does that, but it wasn't me. Q When you saw Mr. Shane on the ground, did he say anything to you? After the fall, I'm talking about now. A Beside that he was hurting? Q Other than that. A I cannot -- I don't know. I know we got there and made him stay on the ground, stay comfortable. Q Did he explain to you how he fell when he was on the ground? A He said he took the screws out of the -- I can't remember. I would only be guessing. Q Don't guess. A I don't know. Q Eventually medical came and took him to the infirmary, I guess. A Correct. Once we got him comfortable -- well, again, I can't remember which one of us called medical. I can't remember. Q That what happened? A Medical came and took him and then we GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 33 L 4 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stayed there and finished the job. Q After he was injured, did he ever come under your supervision again for any reason? A I don't think he ever came back. I seen him walking by, but... Q I'm sure you saw him there. (Extraordinary Occurrence Report marked as Figurelle Exhibit Number 2.) BY MR. FOX: Q I'm going to ask you to quickly just page through that and I'll ask you a couple of questions. A (Reading.) Okay. Q Do you recognize that document? A Yes, I do. Q Can you identify that for me. A It's my incident report that I made Q Did you type in the information that is on the first two pages? A Did I type it in? No, sir. Q Did you type in any of the information on the second page? A No, I did not. Q On one line, it states an GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 34 f 1( 1] 1L 14 15 16 17 18 19 20 21 22 23 24 25 1 investigation into this accident is not warranted. ? Do you see that? 3 A Yes, I do. Q Midway down? A Yes. > Q Did you type that in? A No, I did not. Q Is your signature at the bottom of that page? A No, it's not. Q Whose signatures are there? A I'm guessing this is Frank Tennis's and this is, I'm guessing Superintendent Meyers. Q What would their role have been in this particular injury to Mr. Shane? A They're -- I don't understand. Q What were their position? A Superintendent and deputy superintendent. Q So if somebody is injured, they have to sign off on an incident report? A I'm guessing -- and I'm guessing. When I'm done with it, I turn it into control. Where it goes from there, I don't know. Q On the next page is a handwritten GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 35 11 document? f 1( 1L 14 1? 1E 17 18 19 20 21 22 23 24 25 2 A Yes. 3 Q That is correct? 4 A Yes. D Q Did you fill that out? 5 A Yes, sir. Q You reported it to R.W. Meyers, who was the superintendent? A The superintendent. That's who we send it to. Q The day of the incident, is that what that is for? A Yes. Q September 9th -- A That would be... Q The time of the incident would have been 10:40 a.m.? A Either that or I'm guessing that would be the date of the incident and -- yeah, I'm pretty sure that would be the date and the time of the incident. Q The location of the incident was boiler house. A Correct. Q Type of incident, fall from roof. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 36 1( l: l? l? l? 1E 17 18 19 20 21 22 23 24 25 1 A Yes. 2 Q Is that your signature next to that? 3 A Yes, sir. 4 Q In preparing this incident report, did D you talk to any inmates or anyone that witnessed 5 Mr. -- A I'm sure -- I don't know preparing it. 3 Probably, we talked about it after, after it all j occurred. The inmates who were there, and Mr. Sidorick, we all, of course we all discussed it. Anything like this, you would talk amongst yourselves. Q Did you get any statements from any of those inmates? A No, I did not. Q Do you know why Superintendent Meyers decided not to investigate the accident? A No, sir. Q Following this accident, were there any rule changes with regard to inmates working on the roofs? A No, sir. Q Were you disciplined for any reason as a result of this accident? A No, sir. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 37 E E 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Was your job changed for any reason following this accident? A No, sir. Q As part of discovery, I was given a number of inmate review forms that you would fill out for the inmates that are on your crew. Do you recall having to do those back in '01/'02? A Yes. Q At any given time, did you have to, with regard to Mr. Shane, ever have to write him up for misconduct? A No, sir. But then I've probably only written up five, six people in my 20 years because there's things happen and you talk to them, you -- the problem is, okay, it's when you write them up, to me, is when they do something serious. Q I understand. Did Mr. Shane have any safety harness or any safety line on him at the time he was working on the roof? A No, he did not. Q Prior to working at the Department of Corrections, have you ever installed or repaired roofs as part of your duties? A Yes. Q Had you worked with OSB on roofs prior GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 38 11 to working for the DOC? 1( 1. 1L 14 1E 1E 17 18 19 20 21 22 23 24 25 2 A Yes. 3 MR. FOX: Let me take a break. We'll I be right back. (Recess.) 5 BY MR. FOX: i Q At the time of this accident, was there any policies, practices or procedures in 3 place to investigate a fall or an accident at a i particular job site? A Don't know. Q Did anybody take any photographs of the scene where Mr. Shane fell? A Don't know that, either. Q Did you take any photographs? A We are not allowed cameras. Q Did anybody instruct you to take photographs of the scene where Mr. Shane -- A No. Q After this happened, were you required to report this to any of your supervisors? A Yes. Q Who did you report it to? A My immediate supervisor and then we have to do an incident report. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 39 l? l? 1E 1i 18 19 20 21 22 23 24 25 1 Q Who was your immediate supervisor back 2 then? 3 A It was either Mr. Whitten or '02 -- 4 was it Mr. Whitten? 5 Q That's who Mr. Sidorick mentioned. 6 A I'm guessing it was Mr. Whitten. 7 Q If it wasn't him, it may have been 3 somebody else? a A If it wasn't him, it would have been -- I'm just -- if he wasn't there, it would have been one of the supervisors at maintenance. ' Q Who was that? A Mr. Bower. I'm pretty sure it was Mr. Whitten, though. It might have been Mr. McLean because Mr. McLean was in charge of the boiler house. Q After he was taken away, did you proceed to the job and go back to business? A We finished the job. Q Do you know what type of wood that he was standing on that fell? A Piece of OSB board. Q Do you know what the size of that piece of wood was? A 4 by 8, I'm assuming. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 40 L Q You're assuming, you don't know for 2 sure? 3 A Well -- 4 Q Do you know if it was a bottom-rung piece f 1C 1] l? 14 15 16 17 18 19 20 21 22 23 24 25 > A Bottom piece. ' Q Do you know if the bottom rung, would they typically run 4 by 4's or would it be 4 by 8's running -- A 4 by 8. Q Running across? A It would be 4 by 8, yeah. You would, if it was - - I don't remember if we started on that end when we started the sheets. I'm pretty sure when it was laying on the ground, it was a piece of 4 by 8. Q I think I asked this: Nobody took any statements of any of the prisoners? A No, we didn't. All we're required to do, if some body gets hurt, is make an incident report. Q Which is on Figurelle 2; correct? A Correct. MR. FOX: Those are all I have. Thank you. I appreciate you coming down. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 41 11 (The deposition was concluded at 12:01 p.m.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1E 17 18 19 20 21 22 23 24 25 GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 42 1( 1. 1? 1S 1E 17 18 19 20 21 22 23 24 25 1 STATE OF PENNSYLVANIA ss. 2 COUNTY OF DAUPHIN 3 I, Melissa Flinn, a Reporter-Notary Public 4 authorized to administer oaths within and for the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of EUGENE FIGURELLE. 3 I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said reporter Melissa Flinn, a Reporter approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence contained fully and accurately in the notes by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto subscribed my hand this 14th day of November, 2008. - - ----- ----------------- elissa Flinn My commission expires: November 21, 2009 GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 D M W IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SCOTT SHANE, PLAINTIFF VS : NO. 04-4171 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTE AT ROCKVIEW, DEFENDANT : DEPOSITION OF: MICHAEL SIDORICK TAKEN BY: PLAINTIFF BEFORE: MELISSA FLINN, REPORTER NOTARY PUBLIC DATE: NOVEMBER 3, 2008, 10:05 A.M. PLACE: BELLEFONTE PENNDOT MAINTENANCE OFFICE 1000 EAST BISHOP STREET BELLEFONTE, PENNSYLVANIA GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: LAW OFFICES OF WILLIAM J. FOX, P.C. BY: WILLIAM J. FOX, ESQUIRE 1417 LOCUST STREET, 4TH FLOOR PHILADELPHIA, PA 19102 215-546-2477 FOR - PLAINTIFF OFFICE OF ATTORNEY GENERAL BY: DANIEL R. GOODEMOTE, SENIOR DEPUTY ATTORNEY GENERAL STRAWBERRY SQUARE HARRISBURG, PA 17120 717-783-3147 FOR - DEFENDANT ALSO PRESENT: SCOTT SHANE GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 3 L 4 E E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR PLAINTIFF Michael Sidorick TABLE OF CONTENTS WITNESS DIRECT CROSS 4 -- EXHIBIT INDEX Sidorick MAR PRO 1 Drawing of Scaffolding 47 18 2 Drawing of Shed 47 36 GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 4 L E i c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved to the time of trial. MICHAEL SIDORICK, called as a witness, being sworn, testified as follows: DIRECT EXAMINATION BY MR. FOX: Q Good morning, Mr. Sidorick. My name is William Fox. I represent Scott Shane, who was injured in an accident back on September 9th of 2002. I believe you were working at the time and that's why we asked you to come here today. Before we begin, I need to give you some instructions. All your answers today must be verbal. The court reporter seated to your left can only take down verbal responses, so an uh-huh or a nod of the head cannot be transcribed, so I'll ask GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 5 C L E i c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that you make your responses verbal. A Yes. Q Please wait until I complete my question before you respond. Often, people will talk over one another and it's hard for the court reporter to take down two people talking at the same time, so I'll ask you to wait until I finish my question before you respond. That also gives us a cleaner record, we know exactly what the question is. I'll try to give you the same courtesy and allow you to finish your response before I ask my next question. If you do not understand my question, ask me, I'll do my best to rephrase it. If you answer my question, I will assume that you understood the question. If at any time you need a break, just say I need a break, no problem. I don't think we'll be here too long today, but nonetheless, you may need a break for any reason. I'll just ask that you answer any pending question before you take your break. This is not an endurance or memory contest. Often in the course of a deposition, people will not remember something right away, but later on some other fact will come up that will jog GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 6 E f 1C 11 l? 1? 14 15 16 17 18 19 20 21 22 23 24 25 I their memory. If that occurs at the end of the deposition or in the middle of it, if you remember 3 something that you didn't remember earlier and you E want to stop me, just say, Bill, hold on, I remember some information about a question you asked ten minutes ago and we'll revisit that issue. At the same time, we don't want you to guess, either. If you don't know an answer, please don't guess, that doesn't help anybody. Just tell me you don't know. A Yes. Q That's fine. The purpose of today's deposition is to get your understanding of what happened on September 9th with Mr. Shane so that later on, if necessary, if we go to court or whatever, I will have your testimony, I will understand what you said, and it may be necessary to use the transcript at that time. That's why we have this proceeding. At least that's why I asked you to come here today with the subpoena. You received a subpoena? A Yes, I did. Q Please state your name and address for the record. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 7 7 L 4 C E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A It's Michael F. Sidorick, 7 Race Street, Apartment 103, Clearfield, Pennsylvania and I am trying to think of the zip now. It just evaded me. Q That's all right. If it comes to you, let us know. A I have it out in my vehicle on the subpoena. Q We have it. I had to send you a letter, we have it. A It bothers me that I forgot that. Q In the past 24 hours, have you ingested any kind of medication or any alcohol or any substance that would prevent you from understanding my questions today? A No. Q Are you presently under the influence of any type of medication that would prevent you from understanding my questions? A No. Q Is there anything at all that you've ingested that would affect your ability to testify truthfully today? A No. Q How old are you, sir? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 8 E E c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I'll be -- 58. I'll be 59 in November 23rd. Q Happy birthday. My youngest daughter turns two tomorrow. Have you ever had your deposition taken before? A Yes, once when I was a guard. It would have been probably '86. Q So you've been through this proceeding before, you have an idea of what it's like, at least? A Yes, sir. Q When were you first employed by the Department of Corrections? A Would have been January of '84. Q How long were you employed for? A I retired January 11th of this year, '08. Q Are you currently working anywhere else? A Yes, I am. Q What are you doing? A I'm working now at Mahoning Outdoor Furnace as a fabricator of the outdoor furnace and then on the road, too, delivering and repair. Q What was your first job with the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 9 E i 8 c 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Department of Corrections? A Would be a CO. I started in '84 as a corrections officer. MR. FOX: (Cell phone ringing.) I'm going to ask you to hold on a second. This is Scott Shane (indicating.) (Brief pause.) BY MR. FOX: Q I think you told me you were a CO. A Yes. Then in May of '89, the carpenter trades instructor position became available, and being in the construction trade all my life, I put in for it and received that position. Q What was the title of that position? A It's the corrections carpenter trade instructor. Q You received that position in '89? A Yes, May of '89. Q How long did you have that position? A Until my termination upon retirement. Q Did you retire -- (Scott Shane enters room.) BY MR. FOX: Q You voluntarily retired in January of GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 10 7 L L C E 7 8 C 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this year? A Yes, I did. Q Did your job basically mean you instruct the prisoners on how to become carpenters? A Basically, yes. We were the maintenance department and we had to repair, manufacture carpenter items and then we had to give three, at least a three-hour vo-tech training a week, which would be hands-on. That was our position. So basically, yes, it was to instruct inmates on how to become carpenters on the street. Q Did Mr. Shane ever take any of your classes? A No, he did not work for me per se. Q Prior to being hired by the DOC in 1984, were you a licensed carpenter or in any type of trade? A It would -- I was a union carpenter from '74 to '77 and then I was in the construction trade from there until my employment at DOC. Q Had you gone through an apprentice program whe n you were a union carpenter? A Yes, I did. Q Did you complete that program? A Yes, I did. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 11 Q What was your title when you -- A Journeyman carpenter. 3 Q Did you ever do any roofing in your f 1C 1] 1L 14 15 16 17 18 19 20 21 22 23 24 25 E background? > A Yes, I did. Q Explain the circumstances of when you may have done that. A I'm not quite sure I understand what you're asking me. Q Did you do roofing as a carpenter or when you were in the construction business? A It would be as a carpenter after the union stint; union was heavy construction. It was building schools and large buildings, form work, things like that. Q Did you own a company or did you work for somebody after you left the union? A My father owned Sidorick Construction Contracting and then through my course of, after the union stint, was into that until the time of employment at DOC, so I had numerous opportunities to put roofs on. Q Was it mostly residential or residential and commercial? A Probably mostly residential. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 12 1( l: l: l? 1E 1? 18 19 20 21 22 23 24 25 1 Q While you were working at DOC, I guess 2 at any time during your 24 years there, did you 3 ever have the occasion to install a roof on any 4 facility a t either Rockview or any other fac ility 5 you worked at? 5 A Yes. 7 Q With regard -- are you familiar with 3 the boiler structure where Mr. Shane fell? A Yes. Q Had you ever installed a roof on that structure? A Yes. Q Had you done any of that work prior to the time Mr. Shane fell? A On this structure? Q Yes. A Yes. Q Could you describe that structure for me, what it was. A It was a containment building to protect a temporary boiler system that was installed. It was a shed roof, be a structure built up against the existing building with a, I'm thinking now a 5/12 pitch roof that came out and that's basically just like a little shed built up GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 13 11 along side a building. f c 1C 1] l? 14 15 16 17 18 19 20 21 22 23 24 25 Q What were the approximate dimensions 3 of that b uilding? A I'm thinking probably 30 feet long, possibly 16 feet deep, and 10 feet at the eave, 10 foot high at the eave. Q You said it was a shed, so the shed went into an existing building? A Into the boiler house structure. Q Was there already a building in place when this shed was built on to it? A Yes. Q What was the exterior structure of the building before the shed was attached to it? A You're talking the structure of the boiler house proffer? Q I guess the fascia. What was on the fascia, the exterior of the building before you attached the shed? Was it wood, aluminum siding, block? A The building was attached to a concrete structure. Q So the shed was attached to a concrete structure, essentially? A Yes. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you build that shed, did you supervise that construction? A Mr. Figurelle's crew and myself and our crew. There was two crews building the structure, so we -- to answer your question, yes, it was supervised by both of us. Q Do you recall when the structure was built? A Boy, probably a year before this accident occurred. Q Do you know if Mr. Shane participated in the construction of the shed? A I can't say if he was there during the construction period. Q What were the walls made out of, of the shed? A They were 2-by-6 structure with OSB board attached. Q How about the roof, what was the roof made of? A The roof was the same thing, 2-by-8 rafter system with OSB decking. Q Was there any tar paper or shingles placed on the OSB after it was installed? A There was a, I think it was 30 or 50 GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pound black tar paper over the OSB board. Q They call that felt? A You could say; felt is a little thinner, it's like 15 pounds, but you could say 30 pound felt would be... Q Was there anything else put on it? A No. Q How long was that structure up before the incident? I think you said it was a year. A Probably. I would say six months. Q Six months? A Yeah, it was supposed to be only a temporary facility. It was going to be taken down to build a higher facility, they were getting another boiler in that was a little bit larger than the one that was there. Q Do you remember what the width of the OSB was? A Half - inch. Q Have you ever installed -- before you worked for the DOC, have you ever used a half-inch OSB as a roofing product? A Yes, that's standard. Q In your experience, did you also use three-quarter inch plywood as a roofing sheeting? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 16 E 1( 1] lL 1-: 14 1E 16 17 18 19 20 21 22 23 24 25 L A I would say not very often. 2 Q Not very often? 3 A No, that's a little overkill for a I roof structure; five-eighths I've used. Q I believe this incident happened on > the morning of September 9, 2002. A I would have to say yes. Q If I'm off -- A It's a long time ago. Q Is it 9/9 or 9/2, Scott? MR. SHANE: 9/9, I believe. BY MR. FOX: Q We're just trying to get a rough time frame. A Sure. Q Were you working that day? A Yes, I was. Q What was your assignment for that day? A We were to dismantle the shed structure. Q The shed structure? A Yes. You want the particulars of exactly -- Q Explain to me how you were going to go about doing that. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 17 1( 1] lL l? 14 1? 1E 17 18 19 20 21 22 23 24 25 1 A Naturally, you start from the roof system down. My inmates, we were taking off -- I 3 think Mr. Figurelle's crew was taking off the felt. Q Okay. A They were going to take off the OSB board, which was secured with screws -- I believe inch-and-a-half dry wall screws -- my crew would go behind and dismantle the rafter system, so it would be almost like a puzzle system. They would go ahead and take it so far, we would pull the rafters off, hand them down, and keep going along the structure. This is what we were -- that was my assignment for that situation. Q Were you actually participating in this work? A Yes, I was. Q You were? A I was actually up on the scaffold. Q Where was the scaffold located that you were working at? A The scaffold was built right against the structure on the eave side, the ten-foot side. Q What kind of scaffolding was it? A It was a wooden structure built against the building, which I have constructed many GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 18 E E 1C 11 12 1? 14 15 16 17 18 19 20 21 22 23 24 25 times. ' Q A wooden scaffolding system? A Yes. Q Describe the dimensions of the scaffold for me. A It would be two foot wide to hold two planks and it would be, it was probably about three feet, four feet below the roof. You would stand so you could reach. Any higher, it's too high, any lower, you're here (indicating.) That's about standard. It is a brace going this way, 45 this way, 45 going down against the building for the support and a three-foot railing around the outside of it; top, middle, knee kick and toe kick. The structure was sound, to my ability. Q What was holding the scaffolding up? A The brace going down into the bottom of the building. If I could draw you -- do you want a drawing? Q Sure, I will give you a piece of paper. A I will give you a side view of it. This would be your building, this would be your overhang. The scaffolding would come out past the overhang -- there's not much overhang on it, that's GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 19 L 4 E E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a little dramatic -- it was like six inches coming out because it didn't need much. This was 32 inches; you had your railing, three foot; you have your brace coming diagonal this way attached. Q Into the building? A Into the building. Q Into the building that's being removed? A At the base of the building. Q The intention was to remove that building at some point? A Yes. Q Go ahead. A Then an aerial view, you have a 45 brace going this way, which if I could give you a -- this is your structure right here; top railing, middle of the toe kick. This is going here and then every few feet, every other structure, every other brace, we had one coming down to the ground attached to the bottom. This would give you additional support for the weight. Q What was the length of the scaffolding? A It would be the full length of the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 20 E c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 building, which would probably be 30 feet. I'm ' assuming it's 30 feet. Q I understand, it could be a little less, a little more. A If anything, it would be a little more. It could be 40 feet as far as that, but it's the full length of the building. Q So you have the eave, which is essentially the bottom of the roof? A Yeah, sticks out over the edge. Q And then approximately three feet below that you had two planks running along the length of the building? A Yes. Q Behind it, approximately 32 inches wide was a three-foot high railing? A Well, the total length of this is 32 inches. Your railing is right at the edge of this, so minus about six inches. Q Of overhang? A Of overhang. You would have approximately 26 inches of actual walkway with two planks right there, 2-by-12 planks. Q And right behind is the railing? A Is your railing. The railing is high GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 21 f 1C 1] 1L l? 14 15 16 17 18 19 20 21 22 23 24 25 L enough to code, three foot. Q Would you say the railing was about 3 flush with the bottom of the roof, the height of ! the railing? > A I would say that. > Q Was that installed that morning? A No, I believe it was installed possibly, if memory serves me right, maybe three or four days before the actual dismemberment of the roof system. Q Was your crew the crew that installed that particular scaffolding? A I would say; I would say. Q Are you sure of that or are you -- A To answer it honestly, no. I wouldn't be absolutely sure if it was a combined effort or was strictly my crew. Q Would there be a work order requisition or some kind of document that indicates that you were ordered by your supervisor to set up that scaffolding? A Possibility that they would still have the existing work order at the facility. Q Is that how the normal course of business worked, you would get a work order to go GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 22 E C 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 build a scaffolding of that nature? ' A It wouldn't actually be the 3 scaffolding. It would be, the work order would say dismantle boiler house structure. It was up to us, as being trade instructors, that whatever would need to be involved in the dismembering of this building, safety features involved like the scaffolding, whatever it would take to tear this down, it's up to us. They wouldn't actually say in a course of events show up on the job, build scaffolding of this nature, no. It's up to us to dismantle this building. The work order would just say that. Q So the work order was a general work order? A Yes. Q It was up to you to determine whether or not scaffolding was needed? A Yes. Q Was there anybody above you that made that decision, either Lieutenant Figurelle or yourself, or was that your decision to make? A Mr. Figurelle and our decision both to put the scaffolding up. It's part of the... Q Were you the same rank, were you GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 23 L 4 E 7 8 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 peers? A Yes. Q Neither of you were each other's supervisors? A No. Q If I understand your testimony correctly, there would be no work order that exists that would instruct you or Mr. Figurelle to install a scaffolding at this building? A No. Q How long would it take to build a scaffolding of that size, approximately 30 feet, I guess it was around 10 feet or so high, how long would that typically take? A On the street, probably one day. At the facility, with everything going on with the inmates getting in and out of the building, out of the gate, it could have taken us three or four days to do this. Q Did you keep logs of work that was done as part of your job duties? A My own, every day I would write down what I did. Those documents would be... Q MIA? A Exactly. Once you retire, I kind of GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 24 -- but I kept a running order every day of what we did. f c 1C 11 l? 14 15 16 17 18 19 20 21 22 23 24 25 3 Q Did the DOC require you to keep a log E of the work performed each day? A I would say no. We did have training > sheets we filled out every day for the vo-tech training course, but again, it would evade me where they are right now. Q Who did you turn those into? A My supervisor, which would have been at that time Robert Whitten. Q Do you know how to spell his name? A W-h-i-t-t-e-n. Q What was his job title? A It would be an FM-1, facilities, maintenance manager 1. Q Maintenance or facility manager? A Facility. Q Manager 1. A Right. Q Did Mr. Whitten have any procedures, that you were aware of, that required you to verbally or in writing report to him what your workers did each day? A No. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 25 F f 1C 11 1L l? 14 15 16 17 18 19 20 21 22 23 24 25 L Q Are you aware of any policies of the DOC that maybe you didn't follow but existed that 3 required or suggested that you provide written logs I of the work performed each day from your crew? A No. Q I think you said to get to the position you were promoted to in '89 as corrections carpenter trade instructor you took a test; is that correct? A No, at the time testing was not required. It was up until a few years ago they started that. You just had to write kind of a resume of your expertise or job descriptions of what you did, send it in and they would grade you on said -- they evaluated you on this. That was all we had to do at that time. Q At any time, were you required to take any type of test or exam to maintain that position? A No. Q Did the DOC ever send you to continuing education classes on new carpentry techniques, building techniques or anything of that nature? A No, just asbestos removal. Q You were still a CO; right? You were GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 26 E 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a CO that also was basically handling the carpenter detail? A Yes. Q So you still had to guard these guys to a certain extent. I know they had certain restrictions reduced so they could go out and do these jobs; correct? A Yes. Q They had to obtain a status. What was the status they had to have before they could go out? A They had a rating of like 2-R, 2-CM, which was their outside status; CM meaning they could be left alone for like an hour; R was continual observation. Q Does that mean visual observation? A Yes. Q They had to be within your eyesight at all times? A Yes. Q It doesn't mean you would necessarily look at them at all times, they just needed to be within your eyesight? A Yes. Q As the corrections carpenter trade GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 27 1 instructor, was most of the instructing done on the 2 j ob? 3 A Yes. 4 Q Did you ever give any actual 5 in-classroom type of instruction? 6 A In the shop, yes. 7 Q What pe rcentage of your time would be 3 devoted to yo ur shop instruction versus out on-the- job training? D l: l? lE 17 18 19 20 21 22 23 24 25 A As I stated before, we required, like, two to three hours of actual vo-tech, if you want to quote that, in the shop, like whatever book work you had, reading a rule, square, maybe cutting out steps, laying things out of that nature, blueprint reading, that would be in the shop. When you went on the job site, this would come into play. You would show them how to do things and then let them go ahead and... Q Do it? A Do it. Q With regard to safety, did you have any duties regarding safety? A Such as any special duties? Q Let's start with that. I'll try to be more descriptive. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 28 MR. GOODEMOTE: I'll object to the form because I don't know what a special duty is. 3 MR. FOX: He said special duties, not E S 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me. A You mean as far as like that I was a safety officer or something? BY MR. FOX: Q Why don't we start there. Were you a safety officer? A No. Q Was Mr. Whitten a safety officer? A No. Q Was there a safety officer on the premises? A Dennis -- Denny Seager. Q How do you spell Seager? A That's a good one. Let's try S-e-a-g-e-r. He's still there at the facility. Q Not like the singer, Bob Seager. A No. Q So is Seager on the premises full time? A I would say yes. Q Was there any requirement that he had to come and inspect the job before you started with GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 29 f 1c 1] 1L 19 1E 17 18 19 20 21 22 23 24 25 1 regard to scaffolding was set up properly or for any other reason? 3 A Not, he would just make periodic, you I know, he would go around and if he saw this, if he saw anything like that, maybe he would stop in and see that things are at a safety standard. ' Q So he could come out and inspect the job site; if he didn't like something, he would instruct you or whoever to go ahead and take the appropriate safety precautions? A Yes. Q If somebody got injured on the job, did you have any duty to contact Mr. Seager or Mr. Whitten or any other supervisor that somebody had been injured? A Mr. Seager probably no, but your immediate supervisor, yes. Q That would have been Mr. Whitten back then? A Yes. You had to fill accident reports out, things of that nature. Q On the day in question, when Mr. Shane fell, he wasn't under your direct supervision; is that accurate? Let me rephrase that. He wasn't part of your particular crew? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 30 1 A No. ? Q He was part of Officer Figurelle's 3 crew? A Yes. Q How many men were on your crew that day? r 1( 17 l? 19 l? lE 17 18 19 20 21 22 23 24 25 A I would say probably five. i Q Now, did you all meet at the same location and go to the job or would you get your men and then come to the job separately from Officer Figurelle? A No, we, probably at that time, would go to gate 6 and then you would pick up your crew. They would all be waiting at gate 6. And they'd come out to the carpenter shop, they would get your orders for the day, and then you would -- if you're going to go outside, you would gather what you needed and then you would exit the institution through the main gate. Q Now, would that be your crew and Figurelle's crew, all the guys would meet there or was that just your crew? A No, that was -- you mean at gate 6? Q Yes. A That was all the, the whole outside GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 31 F c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 detail would meet at gate 6. ' Q How many guys were there on any given s day, approximately? A Oh, there might be 50, 60 inmates at one time. Q And there may be ten... A Work bosses, we call them. Q Like yourself, picking up the crew? A Yes. Q Now, when you had a crew, did you stick with it for a period? A Yes, depending on if by attrition some would go home; they might be in the hole or something, they would get written up or whatever. Most of the time, if things prevailed nicely, you might have -- I had some on there for three or four years. Q So you tried to keep the crew together depending on the circumstances? A Yes. Q So on this day when Mr. Shane fell, it wasn't your obligation to do a safety report? Was it the obligation of officer -- I'm sorry, an accident report. It was the obligation of Officer Figurelle to do that? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 32 lc 1. l? l? 14 1E 1E 17 18 19 20 21 22 23 24 25 1 A Yes, I would just be a witness to the z situation. 3 Q Did Officer Figurelle or anybody else I ever question you about the incident regarding Mr. Shane's fall? A No. Q Did you actually see Mr. Shane fall off the roof? A I actually saw him exiting the roof when he was already in, say, mid air. Q So you saw him fall? A Yes, he was on his way. Q Did he scream or say anything? A I didn't hear anything, no. I think it was probably too fast for anything to transpire. Q Could you describe specifically what you saw. Let me back up. Where in the fall did you come in at, if you know what I mean? A If I could go through step by step of what, I can perceive what transpired. Q I don't want to know what you perceived, I want to know exactly what you saw. You didn't see him when he was on the roof when he started to fall? A Yes, I did. I saw him before the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 33 c 1( 1] l? l? 14 15 16 17 18 19 20 21 22 23 24 25 1 fall. ? Q You saw him before the fall? 3 A What I feel, what I saw caused the I fall. Q Okay. A Is that where you want to go with this? Q No. I've read the incident reports, I know what you've written and you are under oath here today, sir. A Yes, I am. Q I want to know exactly what you saw. You just, ten seconds ago, you told me you didn't see him until the fall had already started. What I want you to do is tell me when you first started to see him. I want you to start there. When he was already in the fall, I want to know where you saw him. MR. GOODEMOTE: I'm going to object to the form because I don't know where we are starting. A I'm not sure I understand what you want here. BY MR. FOX: Q You told me you didn't see him on the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 34 L 4 E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 roof when he started to fall. You may have saw him before that during the course of the day, I understand that. I'm trying to know exactly what you saw when you first learned he was falling. I think you told me he was in the process of falling. A Okay. Q Where was he in the process? A Him and a piece of plywood were in the process of probably maybe two feet off the roof. Q So the plywood was off the roof? A Him and the plywood were going together. Q The plywood was coming off on a horizontal, the eight feet wide coming down -- A 4-by-4 sheet. We stagger them for strengths. We start 4 by 8, 4 by 4, so you overlap the joints. Q It was a 4-by-4 sheet? A 4-by-4 piece. Q He was off. He was approximately two feet off of the roof? A I'm estimating the distance because it's tough to, with gravity pulling, it's tough to determine exactly. He was off -- the plywood and GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 35 L L E E c 1C II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Shane were coming off the roof when I, when I observed. Q Was there any safety harness on Mr. Shane at that time? A Not required by DOC. Q I didn't ask you what was required, sir. I asked you if there was any safety harness on him. A No. Q When you first saw Mr. Shane, how far, in relation to the eave, was he below the eave, above the eave? A Below the eave. Q Tell me as he fell what did you see. A I saw him going down and hitting the ground. Q Did the board stay under his feet or did it go somewh ere else? A No, the board kind of skidded out. Q The n he landed down? A He land ed down. Q How did he land, if you recall? A On his feet. Q Did he fall to the ground, stay on his feet? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 36 1 1 1 1 1 1 1 17 18 19 20 21 22 23 24 25 1 A He hit the ground on his feet and then 2 fell. 3 Q Now, in relationship to the building 4 while observing this, where were you standing? 5 A On the scaffolding. 6 Q You were on the scaffolding. 7 A Taking down the rafters. 8 Q So were you towards the edge -- if 9 you're facing the back of the shed from the ground, o were you on the left side or the right side? 1 A I would be on the left side of 2 Mr. Shane. 3 Q I'm trying to draw what I will call a 4 bad version of a building. This is the ground, 5 this is the roof. You are standing somewhere over 6 here. Am I correct to say Mr. Shane was somewhere over here? A I'm not following your drawing. Q This is the boiler building. It's attached to this back here. This is the shed. A What is this here? Q This is the ground. A This is -- Q This is the wall, roof, wall. A Okay, okay. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 37 1f l: l: lE 17 18 19 20 21 22 23 24 25 1 Q This is like a pitched shed; right? 2 A Absolutely. I would be approximately 3 right here and Mr. Shane would be right here. 4 Q You were toward the middle left. 5 Would you say that Mr. Shane was closer to the 5 right edge or was he closer to something else? 7 A I would say he was probably maybe ten 3 feet in from the edge. Q Ten feet in from the right edge? A Yes, he would be about right there. Q Is that about right? A Yes, I would say that's pretty accurate. Q So you were up here removing rafters? A Yes, the rafters that were tied against the boiler house structure. Q Was there anybody else on the inside of the boiler working to remove rafters from the wall? A Yes. Q Was there scaffolding in there to do that work? A No, it was impossible to put scaffolding because your boiler sat right in here. We had ladders, a ladder against the building and GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 38 1 one individual was on the ladder taking the nails 2 out, pulling the rafter away from the building and 3 then sliding them over to me and my other inmate, 4 they were taking them off the roof. 5 Q Approximately how many rafters had you j removed from that structure at the time Mr. Shane 1 had fallen? D l: l? l: 14 1E 1E 17 18 19 20 21 22 23 24 25 3 A Sixteen-inch centers, I would say a maybe eight. Q That would be approximately 12 feet? A Probably 12 feet. Q From the side? A Yes. Q If the building was 30 feet wide, approximately, you were roughly at the ten-foot mark on one side and Mr. Shane, you believe, was at the ten-foot mark on the other side? A I would say, I would say yes. Q He would be coming in from the edge of the building and you would be coming in from the other edge? A Right, meeting at the middle, so to speak. Q Before Mr. Shane fell, within that, let's say a five-minute time frame before he fell, GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 39 1 had you or Mr. Figurelle given him any instructions 2 with regard to the task he was handling? 3 A Yes, I did. 4 Q What did you, what instruction did you 51 give him? D l: l: 1E 17 18 19 20 21 22 23 24 25 A Told Mr. Shane to get off the roof, I get on the scaffolding if you are going to remove 3 the screws from the plywood. a Q Did he obey your instruction? A No. Q What is the consequence if a prisoner doesn't obey instructions from a CO? A If you're inside, you could write the individual up for disobeying a direct order. Q Isn't it a direct order when you give a prisoner working on a job site outside the same type of direct order? A There's a gray area here. Q Explain the gray area. A If you wrote every inmate up on the outside details, that kind of, not actually refuse a direct order -- it wasn't actually a direct order. I did not say, This is a direct order, please get off the roof. You have a different rapport on an GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 40 f 1( 1] l? 14 1E 1E 17 18 19 20 21 22 23 24 25 1 outside detail with your inmates working. You have 2 respect both ways, you treat them as men working at 3 a job site. You can't have sort of an iron-fist 4 approach, you get nothing done. So to write each individual up that would do something like this, 5 you would never have a crew. Q Did he hear you? You were I approximately ten or more feet away. Did he hear you when you gave that -- A Yes, he did. Q He did. How did he respond? A I got this, don't worry, something of that nature. I mean, like I say... Q What did you say after he said that? A I just said, You better get off the roof. Q Where was Corrections Officer Figurelle at this point in time? A He was on the ground. I believe he was getting something out of the vehicle, our work truck. I'm not sure. You would have to ask him, but he was on the ground. Q Did he tell you he saw Mr. Shane fall? A No. Q Did he tell you he did not see him GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 41 li fall? lc 1. 1L l? 1E 17 18 19 20 21 22 23 24 25 2 A No. 3 Q Do you know if he saw Mr. Shane fall? 4 A That's not -- I can't speak for him. D Q I'm not asking you -- 5 A No, he never told me anything. I know 7 what you are asking me, no. Q After t his incident occurred, there's a guy on the ground hurt pretty bad. Would you agree Mr. Shane was hurt pretty bad? A Absolut ely. Q Did you and CO Figurelle ever discuss what happened? A Yes. Q Did you ask him if he saw what happened? A No, I never asked him exactly did he see what happened, no. Q You said you gave that instruction to Mr. Shane. Mr. Shane said I got it. You said get down. Did you go back to doing what you were doing? A Yes, went back taking the rafters down. I looked over to see if he complied or how he was doing. That's when I looked up and he was GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 42 D l: l; l? lE 17 18 19 20 21 22 23 24 25 1 gone. 2 Q He was gone? 3 A Yes. 4 Q Did you hear anything that would lead 5 you to indicate that he was falling off or did you, 5 or did you just look -- 7 A No, there was no -- I always, just 3 looked up to see how things were progressing and he was coming off the roof. No, there was nothing like, I'm falling or something like this, no. There was nothing said, I didn't hear anything. Q From the time you told him to get off the roof until the time he fell, approximately how much time lapsed? A Couple of minutes. Q What happened to Mr. Shane, once he fell, what was done to assist him with his injuries? A Immediately ceased everything; come off the scaffolding; asked Mr. Shane how are you; is he cognizant. He was okay. He said he was in pain, his feet. We tried to make him comfortable, put, I think it was one of our coats under his head, and I can't recall who, but one of us -- but medical was called immediately. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 43 1 I don't know if it was one of the 2 boiler house personnel that heard the commotion out 3 there and one of us hollered in, I can't recall. 4 The medical was informed and we just tried to make D sure the other inmates weren't, because somebody is 5 down, like, they're inmates, they could take advantage. 3 Q So you had to PnnnnP in vno,r n-n+-n1 1( 1. l? 1E 17 18 19 20 21 22 23 24 25 a security? A Right, and try to make him as comfortable as he was, talk to him, make light of the situation, just kept him there until medical arrived. Q Do you know how i nnn it tnnle to get there? A Boy, the exact minutes, I'm not sure, but it was a little bit. Q Medical took him, he's out of your -- he's no longer your problem, medical has now got him, right, or he's no longer under the supervision of Officer Figurelle? A I like putting that better. Q I didn't mean to cast a dispersion by that. A No, that was fine. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 44 t 1( 17 lc 1. 14 1? 1E 17 18 19 20 21 22 23 24 25 1 Q Strike that last question. After 2 medical comes and picks him up, he's no longer 3 under the supervision of Officer Figurelle; is that 4 correct? D A That would be correct. 5 Q Medical takes him, do whatever they 7 do. Just a couple of quick questions. Have you served in the military? A Yes. Q When and what service? A From 1969 to 1973, U.S. Navy, Vietnam. Q Honorable discharge? A Yes. Q Where did you go to high school? A I Moshannon Valley Junior/Senior High School. Q Any college? A Two years of Penn State. Q With regard to safety on the job, I know there was a safety officer, you told me that was Mr. Seager. But I know you are not the safety officer, but I'm asking your knowledge, based on your 24 years of work there, a large part of that as a carpenter, supervisor, is there any particular standards of safety specifications or policies that GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 45 F 1( l7 1L 14 15 16 17 18 19 20 21 22 23 24 25 L you're aware that the DOC prescribed to or would ? follow back in the '01/'02 time frame? 3 If the question is long-winded, did ? they try to follow OSHA standards, ANSI standards > or any other type of safety standards when it came to construction, carpentry work? A I think it's basically up to the individuals doing the work, that would be knowledgeable of the safety standards, but I would say no. Q When you say individual, do you mean the corrections officers or do you mean the actual inmates? A No, the corrections officers. Q So it would be up to the corrections officers' safety knowledge as to how to handle a particular -- A Yes, because we have not done jobs that we thought were, until it was rectified. Q Okay. A The safety wasn't there at the time, until the job was rectified to suit our standards of safety. Q Would there be a job order out there that would pinpoint the time when you were giving GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 46 1 the order or you and your coworkers, your peers, 2 were given the orders to go and build that shed? 3 A There should be. There should be at 4 the facility. 5 Q There should be a job order to tear it 0 down? D 1. l? 1. l? 1E 17 18 19 20 21 22 23 24 25 7 A I would say yes. 3 MR. FOX: I'll make an informal a request. I'll try to send a letter in writing. MR. GOODEMOTE: Letter is fine. BY MR. FOX: Q Prior to this incident, did you have any familiarity with Mr. Shane's work habits? A Yes. Q What was it? A I would say pretty above board. Q I think you answered this, but I wanted to make sure I covered it, did you have any responsibility to investigate the cause of Mr. Shane's fall after it occurred? A No. Q I think you already testified that nobody spoke with you regarding, nobody came to you in the course of a formal or informal investigation and asked for a statement from you with regard to GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 47 1( 1. 1L l? 14 1` 1E 17 18 19 20 21 22 23 24 25 1 that fall? 2 A No. 3 MR. FOX: I want to take five minutes 4 with my client. We'll be back. 5 (Recess.) 5 (Drawing of Scaffolding marked as 7 Sidorick Exhibit Number 1; Drawing of Shed marked 3 as Sidorick Exhibit Number 2.) 3 MR. FOX: Let the record reflect we i marked Mr. Sidorick's drawing of the scaffolding as Exhibit Sidorick 1 and then we marked my rough drawing of the shed with numerous notes on it as Exhibit Sidorick 2. I'm just checking my notes. A That's no problem. BY MR. FOX: Q During the time you were employed at Department of Corrections, I guess toward your last ten years, were you ever required to, by either Mr. Seager or Mr. Whitten, or any other supervisor, to learn OSHA safety reg 1926 regarding fall protection? A No. Q Do you remember what the weather was like on the day of fall? A About like it is out there right now. GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 48 1( 17 lL 14 1E 1E 17 18 19 20 21 22 23 24 25 1 MR. GOODEMOTE: For the record, why 2 don't you describe that because I'm not sure we're 3 going to remember it. 4 BY MR. FOX: 5 Q Clear and dry? 5 A Clear and dry. Q Do you know what surface Mr. Shane fell to, was it dirt? A Macadam, asphalt, whatever you want to call it. Q Is there a difference between the two? A No, it depends on where you come from. MR. FOX: If it's a running surface, it's macadam; if it's a road, it's asphalt. I'm sure I could come up with more questions, but at this time I'm starved to think of any. Thank you for your time, I appreciate it. (The deposition was concluded at 11:05 a.m.) GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 49 L STATE OF PENNSYLVANIA ss. ' COUNTY OF DAUPHIN 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, Melissa Flinn, a Reporter-Notary Public authorized to administer oaths within and for the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of MICHAEL SIDORICK. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said reporter Melissa Flinn, a Reporter approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence contained fully and accurately in the notes by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto subscribed my hand this 14th day of November, 2008. Melissa Flinn My commission expires: November 21, 2009 GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 1 .1 w: 10 :1 S1 iyl Scott Shane v Commonwealth of PA, Dept. of Corrections -Rockview Michael wenrick Page 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SCOTT SHANE, ) Plaintiff ) VS ) COMMONWEALTH OF ) PENNSYLVANIA, ) DEPARTMENT OF CORRECTIONS) STATE CORRECTIONAL ) INSTITUTE AT ROCKVIEW, ) Defendants ) --000-- DEPONENT: Michael Wenrick TAKEN BY: Plaintiff Civil Term No. 04-4171 DATE: Monday, February 22, 2010 TIME: 10:45 a.m. PLACE: Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, Pennsylvania REPORTER: Roxy C. Cressler Reporter, Notary Public - - 000 - - _ KEY REPORTERS keyreporters@comcast.net 1300 Garrison Drive, York, PA 17404 (717) 764.7801 Fax (717) 764.6367 Key Reporters 717.764.7801 keyreporters@comcast.net Scott Shane v Comwnrealth of PA, Dept. of Corrections -Rockviev Michael Nenrick Page 2 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: LAW OFFICES OF WILLIAM J. FOX, P.C. BY: WILLIAM J. FOX, Esquire 215.546.2477 1417 Locust Street, 4th Floor Philadelphia, Pennsylvania 19102 Counsel for Plaintiff OFFICE OF ATTORNEY GENERAL 717.783.3147 BY: DANIEL GOODEMOTE, Esquire Senior Deputy Attorney General Torts and Litigation Section 15th Floor, Strawberry Square Harrisburg, Pennsylvania 17120 Counsel for Defendants Key Reporters 717.764.7801 keyreporters@comcast.net Scott Shane v Commonwealth of PA, Dept. of Corrections -Rockview Michael Menrick Page 3 Page 5 1 INDEX TO DEPONENT 1 STIPULATION s 2 EXAMINATION PAGE 2 It is hereby stipulated and agreed 3 By Mr. Fox 5, 49, 56 3 by and between counsel for the respective 4 5 58 4 parties that the deposition is being taken for By Mr. Goodemote 48,55,57 5 purposes of discovery, that reading, signing, 6 6 sealing, certification and filing are waived; 7 7 that all objections, except as to the form of 8 8 the question, are reserved to the time of 9 9 trial. 10 10 **** 11 11 MICHAEL WENRICI, 12 12 called upon by the Plaintiff to give 13 14 13 testimony, being duly sworn by me testified INDEX TO EXHIBITS 14 as follows: 15 15 EXAMINATION (None) 16 BY MR- FOX: 16 17 Q Good morning, Mr. Wenrick. i 17 18 A Good morning. 18 19 Q My name is Bill Fox. I represent 1 19 20 Scott Shane with regard to an accident that 21 21 occurred a while back in September of 2002. 22 22 A Um-hum. 23 23 Q He fell off a roof and injured both 24 24 of his ankles, and his head, many surgeries; ; 25 25 and I represent him in a lawsuit against the Page 4 Page 6 I 1 1 commonwealth, essentially. 2 2 We have asked you to come in today 3 3 because I think you may have knowledge of 5 4 certain policies that may help my side of the { 6 DEPOSITION SUPPORT INDEX 5 case understand some things. So that's why we 7 6 asked you here today. 8 7 A Okay. DIRECT FOR DEPONENT NOT TO ANSWER 8 Q Before we begin, I need to give you 9 9 some basic instructions. All of your ` 10 Page Line Page Line Page Line 10 responses today must be verbal. The court 11 11 reporter, seated to your right, cannot take 12 13 12 down nonverbal responses such as a nod or a REQUEST FOR PRODUCTION OF DOCUMENTS 13 shake of the head. 14 14 A Okay. 15 Page Line Page Line Page Line 15 Q So I will ask that you make all of 16 34 12-14 36 17-18 39 7-8 16 your responses verbal. 17 17 Please wait until I complete my ° is 18 question before you respond. Often witnesses a 19 0 QUESTIONS MARKED or CERTIFIED QUESTIONS 19 anticipate what I am going to ask, often they 2 20 are correct, but they will cut me off before I Page Line Page Line Page Line 21 finish my question. 22 22 A Okay. 23 23 Q And we are trying to get a record 24 24 that we can later on read, and sometimes when a 25 25 you cut me off-not saying that you will--but Key Reporters 717.764.7801 keyreporters@comcast.net Pages 3 to 6 Scott Shane v Coamonvealth of PA, Dept. of Correct ions -Rockviev Michael venrick I Page 7 Page 9 1 sometimes, when it occurs, it is hard to 1 the O.C. -- 2 understand the transcript later on as to what 2 MR. GOODEMOTE: We'll find him. If 3 the actual question was. I will try to give 3 you lea ve, you'll -- Yeah, he'll help, I know. 4 you the same courtesy and allow you to finish 4 MR. FOX: -- you will accept 5 your response before I ask my next question. 5 service of subpoena on his behalf? 6 A Thank you. 6 MR. GOODEMOTE: Sure. 7 Q If you do not understand my 7 MR. FOX: Okay. Thanks. 8 question, please let me know. I will do my 8 BY MR. FOX: 9 best to rephrase it. 9 Q Mr. Wenrick, how old are you? 10 If you answer the question, I will 10 A Thirty-three years old. 11 assume that you understood it. 11 Q Did you go to college? 12 If you need to take a break at any 12 A Some. 13 time, just let us know. That's fine. I will 13 Q Where at? 14 just ask that you answer any pending question 14 A Penn State University. 15 before you take the break. 15 Q All right. And what did you study 16 If you are not sure of a specific 16 there? 17 answer but you can give an approximation, let 17 A Administration of justice. 18 us know and that's all it will be is an 18 Q What years did you go there? 19 approximation. 19 A 1996 to '97, two semesters. 20 A Okay. 20 Q Okay. Any other college schooling? 21 Q However, we do not want you to 21 A Grantham University. 22 guess today, 22 Q Is that G-R-A-N-T-H-A-M? 23 A Right. 23 A Yes. 24 Q I don't know is a perfectly 24 Q And where is there located? 25 acceptable response. Often people's memory 25 A Phoenix. Page 8 Page 10 1 during the course of a deposition will be 1 Q Arizona? 2 jogged later on; so, if I ask you a question 2 A Arizona. It was an online course I 3 early on that you can't recall but later on 3 took while I was in Iraq, an online schooling. 4 something jogs your memory, please interrupt 4 Q Okay. Were you in the military? 5 me and we will revisit that original question. 5 A Yes. 6 A Okay. 6 Q Okay. Other than Penn State and 7 Q I think that's enough for 7 Grantham University have you attended any 8 instructions. 8 other college? 9 Are you presently under the 9 A Bucks County Community College. 10 influence of any medication or substance that 10 Q Okay. When was that? 11 would prevent you from understanding my 11 A That's been ongoing. Its mostly 12 questions or testifying truthfully today? 12 certifications for emergency services. 13 A No, I am not. 13 Q What branch of the military were 14 Q Would you please state your full 14 you in or are you still in? 15 name and address for the record? 15 A No, I am medically retired from the 16 A Michael Joseph Wenrick. 16 Army. 17 Do you want my home address or my 17 Q Okay. And when did you retire? 18 work? 18 A Last year, 2009. 19 MR- FOX: Do you have a preference? 19 Q Okay. What was your rank? 20 MR. GOODEMOTE: Work. 20 A E6, staff sergeant. 21 BY MR FOX: 21 Q Where did you grow up? 22 Q Work is fine. 22 A Pleasant Gap, Pennsylvania. 23 A One Rockview Place, Bellefonte, 23 Q Where did you attend high school? 24 Pennsylvania, 16823. 24 A Bellefonte High School, Bellefonte, 25 MR. FOX: If per chance he leaves 2 5 Pennsylvania. Key Reporters 717.764.7801 keyreporters@comcast.net Pages 7 to 10 Scott Shane v Commonwealth of PA. Dept. of Corrections-Rock-view Michael Menrick Page 11 Page 13 1 Q Okay. And when were you first 1 A That's really the only type of 2 employed by the Department of Convections? 2 audits. 3 A March -- I believe March 2nd or 3rd 3 Q Okay. And explain to me what you 4 of 2001. 4 were auditing, this adult accreditation. 5 Q And what was your first position? 5 A Basically my same area of expertise 6 A Corrections officer. 6 that I work at Rockview, as safety. When I go 7 Q Okay. How long did you remain in 7 to these other institutions, there is a list 8 that position? 8 of ACA standards that all correctional 9 A Until March of 2008. 9 institutions abide by. Every three years is 10 Q All right. What position did you 10 an accreditation inspection by an outside 11 undertake then? 11 source other than the state of Pennsylvania. 12 A Corrections institutions safety 12 For the mock audits, we go to help 13 manager. 13 them prepare for their, you know, actual 14 Q Have you ever worked out of 14 audit, and we are just looking at, you know, 15 Rockville? 15 recordkeeping, and general cleanliness, things 16 A Rockview? 16 like that. 17 Q I am song, Rockview. 17 Q Okay. Did you need to take any 18 A At a different company, do you 18 test to be promoted to the position of 19 mean? 19 corrections institution safety manager? 20 Q No, Rockview, the prison. 20 A No. 21 MR. FOX: Is it Rockville or 21 Q Okay. Prior to March of 2008, did 22 Rockview? 22 you have any duties that would -- 23 MR GOODEMOTE: Rockview. 23 Were you just a C.O. prior to March 24 BY MR. FOX: 24 of 2008 or did you have other duties in 25 Q Have you ever worked out of 125 addition to being a C.O.? r Page 12 Page 14 1 Rockview? 1 A I was a C.O., but I was -- I was 2 A Out of Rockview? 2 the mentee to the safety manager for since two s 3 Q Yeah, the State Correctional 3 thousand -- since I returned from Iraq in 4 Institute at Rockview. 4 2006. 5 A I don't understand the question. 5 Q Okay. And were you the mentor or d 6 MR GOODEMOTE: I think he is 6 the mentee? 7 asking you if you ever worked at Rockview. 7 A The mentee. a 8 BY MR FOX: 8 Q All right. So you worked under the 9 Q At Rockview, yes. 9 -- 10 A I work at Rockview currently. 10 A The safety manager. 11 Q Okay. How long have you been at 11 Q -- the safety manager? 12 Rockview? 12 A Yes. > 13 A Since March 2nd of 2001, 2nd or 13 Q From'06 to '08? 14 3rd. 14 A Yeah. Roughly, yes. 15 Q Okay. Have you ever worked at any 15 Q Okay. 16 other facility for the Department of 16 A I am not -- 17 Corrections other than at Rockview? 17 Q And who was that safety manager? 18 A I have done audits at other 18 A Dennis Sager. 19 facilities. 19 Q How do you spell his last name? 20 Q Okay. What type of audits? 20 A S-A-G-E-R 21 A Mock ACA audits. 21 Q Okay. Is Dennis still at Rockview? 22 Q And what does that mean? 22 A No, he is retired. 23 A. Adult Accreditation Association, I 23 Q Have you replaced him? 2 4 think. 24 A Yes. 25 Q Okay. What other type of audits? ., , 25 Q Okay. Is your title also known as Key Reporters 717.764.7801 keyreporters@comcast.net Pages 11 to 14 Scott Shane v Conwnwealth of PA, Dept. of Correct ions -Rockview Michael Nenrick Page 15 1 safety manager? 1 2 A My title? 2 3 Q Yes. 3 4 A Yes, yes. 4 5 Q Are you referred to safety manager 5 6 more than corrections institution safety 6 7 manager? 7 8 A Yes. 8 9 Q Okay. Thank you. Did Mr. Sager 9 10 retire in March of '08? 10 11 A March of -- 11 12 Q At the time that you were promoted, 12 13 did he retire -- 13 14 A Yes. 14 15 Q -- or close in time? 15 16 A Yes. 16 17 Q Okay. So you have had the position 17 18 approximately two years? 18 19 A Correct. 19 20 Q All right. Are you familiar with 20 21 the safety policies that -- Strike that. 21 22 Are you familiar with the safety 22 23 policies of the Department of Corrections with 23 24 regard to work in the field of, I would say, 24 25 carpentry and construction that is carried out 2 5 Page 16 1 by inmates of the different Department of 1 2 Corrections institutions? 2 3 A Yes, I am familiar with, you know, 3 4 safety policies as defined in the Department 4 5 of Corrections policy manual as far as safety 5 6 goes. 6 7 Q Okay. Have you ever taken part in 7 8 drafting any of the policies contained in the 8 9 Department of Corrections safety manual? 9 10 A Local policies and procedures. 10 11 Q Okay. What do you mean by local? 11 12 A The department will issue out a 12 13 policy. Once you get to each institution, you 13 14 can write a local procedure that defines -- 14 15 that's specific to that institution. 15 16 Since not all institutions are the 16 17 same, there may be certain aspects that 17 18 require further, you know, further procedures 18 19 than are defined in the statewide policy. 19 20 Q Okay. Can you give me an example 20 21 of the local procedure that you may have 21 22 participated in drafting at Rockview? 22 23 A Lockout/tagout. 23 24 Q And could you explain your 24 25 involvement in lockout/taeout? 25 Page 17 A Basically we've identified what equipment that we have at Rockview that requires lockout/tagout. And our local procedure, we would give specific direction as to, you know, how we want -- how we want our employees at Rockview to implement the lockout/tagout policy. Q Okay. A So basically it's more or less a roadmap of how -- how to implement the statewide policy at Rockview. Q Okay. Any other local policies you participated in? A Lockout/tagout is the only one so far, yeah. Q Okay. Have you ever taken any coursework with regard to fall protection? A No, I haven't. Q Have you ever received any training from the Department of Corrections with regards to fall protection? A No, I haven't. Q Does the Department of Corrections safety manual deal with the issues of fall protection? Page 18 A There is no department policy. Q Okay. Does the department's policy adopt any other fall protection safety measures? A Not that I am aware of. Q Not that you are aware of. Have you ever done anything to implement a fall protection policy within the Department of Corrections? A A policy, no. We do -- we do follow the Labor and Industry and OSHA guidelines at Rockview in respect to fall protection. Although, there is no departmental policy. Q All right. So the practice -- There is no policy but the practice is to follow OSHA's guidelines with regard to fall protection? A That's correct. Q All right. A And we do -- We follow the OSHA guidelines even though the Department of Corrections -- the Department of Corrections falls under the Labor and Industry and not OSHA. But the OSHA guidelines are, you know, Key Reporters 717.764.7801 keyreporters@comcast.net Pages 15 to 18 Scott Shane v Comsonwealth of PA, Dept. of Corrections-Aockview Michael wenrick Page 19 Page 21 1 a little stricter so we kind of error on the 1 Figurelle? Or do you know Lieutenant 2 side of going through the -- 2 Figurelle? 3 Q If I understand you correctly, and 3 A He is - he is a trades instructor. 4 I wasn't aware of this, the Department of 4 Q Okay. Have you ever worked with 5 Corrections, within the Commonwealth 5 him or any of his crews? 6 government system, falls under Labor and 6 A As far as carpentry goes? I mean I 7 Industry? 7 am aware that he works at Rockview. I haven't 8 A Yes. 8 ever worked with him. He is in the 9 Q Okay. Do you know if -- that the 9 maintenance department. 10 more general Labor and Industry departments 10 Q Okay. Yeah, I guess my question -- 11 have adopted OSHA's fall protection 11 It's a general question. Have you ever worked 12 guidelines? 12 out in the field when he was taking a crew out 13 A I am unaware of their practice. 13 to perform some job? 14 Q Are you aware of the number or the 14 A No, I haven't. 15 section within OSHA's regulations that deals 15 Q Okay. Do you know Lieutenant 16 with fall protection? 16 Sidorick, who I will represent to you is now 17 A I can't recall. I -- And I 17 retired? 18 reference it through manual. 18 A When you say lieutenant, he was a 19 Q Okay. Are you familiar with, and I 19 -- he is also a trades instructor. 20 may be wrong, does 1926 sound familiar? 20 Q All right. 21 A No. 21 A Lieutenant is on the corrections 22 Q No. Okay. That's why we have 22 side. 23 books, so we can look them up, right? 23 Q For some reason I had them as 24 Do you have a basic understanding 24 lieutenants in that. I don't -- I thought -- 25 of what measures should be taken, generally 25 Whatever. Page 20 Page 22 1 speaking, now with regard to protecting 1 A I do know him, yes. 2 workers who, let's say, work above a height of 2 Q Okay. Have you ever discussed this 3 six feet? 3 case with, I will call him, Mr. Sidorick, now 4 A Yes, I do. 4 that he is retired? 5 Q Would you explain to me your 5 A No. 6 understanding of that? 6 Q Okay. Have you ever discussed this 7 A My understanding is that above six 7 case with Dennis Sager? 8 feet, fall protection currently is required 8 A No. 9 through OSHA guidelines in the form of a 9 Q Okay. 10 harness or a scaffolding with safety railing, 10 A I was actually unaware of the case t 11 safety chains, toe-kick protection. 11 until I got deposed -- or get the notice for 12 Q Okay. Do you know if those types 12 the deposition. 13 of practices were followed by the Department 13 Q Okay. What is the practice at the 14 of Corrections back in 2002? 14 department if an inmate is injured while 15 A I don't know. I can't comment on 15 working on a particular construction site? 16 their practices that far back. 16 A If it's the -- The supervisor or 17 Q Okay. And back in 2002 were you 17 the staff member would report the injury into 18 just a basic corrections officer? 18 the control center, the control center would 19 A Yes, I was. 19 report to medical and we would have our 20 Q Okay. Did you ever have any 20 medical staff respond. 21 carpentry detail? 21 We have an emergency type vehicle 22 A As a corrections officer? 22 that they respond; RNs and LPNs man that 23 Q Yes. 23 vehicle. They come and respond, bring them 24 A No. 24 back to the institution's emergency room, an 25 Q Okay. Did you know Lieutenant 25 M.D., or a doctor, does an assessment of the Key Reporters 717.764.7801 keyreporters@comcast.net Pages 19 to 22 Scott Shane v Comonwealth of PA, Dept. of Corrections -Rockview Michael Menrick Page 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 patient and determines whether they need, you know, any outside medical care or, you know, any - what kind of treatment they need. Q Is there a process in place to perform an investigation about the accident occurred that caused the inmate to be injured? MR GOODEMOTE: Are you talking cur --'The question is currently? MR FOX: At any time, if he knows. THE DEPONENT: Currently, yes, we do provide accident investigations in the form of gathering staff incident reports. I mean we are not qualified accident investigators, but as far as gathering information from witnesses, and, you know, pictures, if it's needed, things like that, currently we do that. BY MR. FOX: Q All right. Was that done back in 2002? A I can't comment on that. I am not aware. Q Okay. Is whether an investigation, every time -- Let's say, every time, I will put a threshold, every time an inmate is Page 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seriously injured. A Um-hum Q And, you know, when I say seriously injured, he is required to leave the job site and get medical attention. You know. A Um-hum. MR. GOODEMOTE: You need to say yes or no. THE DEPONENT: Oh, yes. BY MR. FOX: Q Okay, that's -- We will go with those basic facts. At this juncture now, since you have been the safety manager, is there an investigation performed each time such an occurrence happens? A Currently, yes. Q Okay. A And the accident reports are forwarded to Central Office, the chief of environmental safety. Q Okay. Before you can conduct a safety - Strike that. Before you can conduct an investigation, are you the one that oversees the investigation when an injury on a job site Page 25 1 occurs? 2 A I can -- I actually conduct the 3 investigation and the staff interviews, 4 currently, yes. 5 Q Okay. So you conduct it yourself? 6 A Yes. 7 Q Okay. All right. Do you have any 8 discretion as to whether you will conduct an 9 investigation into, what I call, a serious 10 accident? 11 A I am required to conduct an 12 investigation. 13 Q Was that always the case, as far as 14 you know? Was there a time when there was 15 discretion given to the safety manager on 16 whether or not they could conduct an 17 investigation? 18 A I am not aware of any time that it 19 -- that that's changed. That, you know, it 20 may or may not have changed. 21 Q Okay. Are you required to get 22 permission from an assistant superintendent or 23 superintendent before you can conduct the 24 investigation? 25 A No. Page 26 1 Q All right. So somebody, a crew 2 will notify you, or a crew chief. I call them 3 a crew chief, but I don't know if that's what 4 you call them. 5 A Um-hum. 6 Q They will notify you that, hey, one 7 of my inmates got injured, he is at the 8 infirmary -- 9 A Um-hum. 10 Q -- what happens at that point? 11 A Actually the notification, if there 12 is a serious accident, usually comes from the 13 control center, to me, usually via radio. I 14 immediately go to wherever the scene of the 15 accident was, and I have a predetermined form 16 that I fill out that I can -- you know, that 17 it specifies the cause of the accident, what 18 body part, you know, preliminarily whether I 19 felt it was an accident due to negligence or 20 due to, you know, an unsafe act. 21 And then from there, I gather the 22 D.C. 121 Extraordinary Occurrence reports from 23 the staff members involved. And if needed, I 24 will get statements from inmates, too, to put 25 in with my accident report. Key Reporters 717.764.7801 keyreporters@comcast.net Pages 23 to 26 Scott Shane v Commonwealth of PA, Dept. of Corrections-Rockview Michael wenrick Page 27 1 Q Okay. Do you typically bring a 1 2 camera out to the accident scene? 2 3 A Yes. 3 4 Q Okay. I suspect, in this day and 4 5 age, you would have a digital camera at your 5 6 disposal for these type of matters? 6 7 A Yes, I have access to a digital 7 8 camera. 8 9 Q Okay. Are you more inclined to use 9 10 a 35-millimeter type of camera for these type 10 11 of tasks? 11 12 A No. No, I usually -- I like to 12 13 use, you know, something that I can download 13 14 onto my computer. 14 15 Q Okay. Now, I know you didn't 15 16 investigate the matter. And I don't know, did 16 17 you have a chance to read the depositions of 17 18 Corrections Officers Figurelle or Sidorick 18 19 before coming here today? 19 2 0 A I briefly looked over them. 1 20 21 didn't read too in depth. 21 22 Q Okay, and why don't we do this now. 22 23 Have you looked at anything else before coming 23 24 here today -- 24 25 A No. 25 Page 28 1 Q -- in preparation? 1 2 A I looked at the depositions in the 2 3 superintendent's assistant's office. 3 4 Q Okay. 4 5 A But other, any other documents in 5 6 regards to this, I -- 6 7 Q Okay. 7 8 A -- I hadn't taken a -- I -- 8 9 Q Did you look at the occurrence 9 10 report with regard to this matter? 10 11 A No, I haven't. 11 12 Q Okay. Did you review any of your 12 13 -- did the O.C. safety policies before coming 13 14 here today? 14 15 A I did. I did check on the -- if -- 15 16 what the status was, or, you know, as far as 16 17 the fall protection policy with my supervisor, 17 18 Central Office, just to see where they were, 18 19 or in regards to the fall protection policy, 19 20 but that was -- 20 21 Q It was if -- My understanding -- 21 22 I have read those policies, too, or 22 23 they may have changed since I last read them, 23 24 but I saw provisions in there for fall 24 25 protection with regard to dieting trenches, 25 Page 29 but I didn't see, other than that particular type of task, I didn't see much other with regard to working at heights on fall protection; is that your understanding also? A Right. That's my understanding as well, yes. Q Okay. In the depositions of Officers Sidorick and Figurelle, they describe the scaffolding, it was up. And I want to kind of just maybe -- I will jog your memory with a para -- I will paraphrase their testimony. It is kind of like a hypothetical question, I guess. A Okay. Q And it is my understanding that Mr. -- It's not disputed that Mr. Shane fell from the roof surface. I don't think its disputed that he was at the edge of the roof surface pulling up OSB board, okay? A Okay. Q It's also not disputed that there was no harness type of line hooked onto him while he was performing that. A Okay. Q Both Officer Figurelle and Officer Page 30 Sidorick testified that some type of wooden scaffolding was built. And my understanding is the height of this scaffolding ended just below the eve, or the overhang, of the roof. So if you understand what I mean? A I -- Q There is a little bit of an overhang of the roof -- A Um-hum, I understand that. Q - hanging over the wall and then the scaffolding came up just below that and then about three feet below the roof would have been planks from which they could stand on. A Okay. Q That's what was set up. Now, Mr. -- My understanding, also, that the way the accident happened, Mr. Shane was up on the roof, a board slid off the roof with him on it and he fell to the ground injuring both of his ankles. Given the task that he was up on the roof working, under those circumstances I just described, was he, with your knowledge of the fall protection volicies, was he Key Reporters 717.764.7801 keyreporters®comcast.net Pages 27 to 30 Scott Shane v Comonvealth of PA, Dept. of Corrections -Rockview Michael wenrick Page 31 1 adequately protected when he was performing 1 2 that job function up on the roof? 2 3 A From my understanding of the 3 4 depositions that I read before, inmate Shane 4 5 was given orders to not be on the roof. 5 6 Q Well, there is actually dispute to 6 7 that. 7 8 A Okay. 8 9 Q His crew chief was Officer 9 10 Figurelle who ordered him up there and said he 10 11 was supposed to be up there. 11 12 A Okay. 12 13 Q Officer Sidorick states in his 13 14 testimony that while he was up there, he told 14 15 him to get off the roof. 15 16 A Okay. 16 17 Q However, he had been up on that 17 18 roof removing all of these planks and he had 18 19 to unscrew the OSB board. 19 20 A Okay. 20 21 Q So I think it's -- Mr. Shane 21 22 disputes that. He says he was ordered up 22 23 there to remove the screws. 23 24 A Okay. 24 25 Q I am not asking you to weigh in on 25 Page 32 1 whether -- 1 2 A Okay. 2 3 Q -- he was told to get off. 3 4 A I understand. Okay. 4 5 Q I want you to assume that he was 5 6 ordered to go up on the roof and remove 6 7 screws, and then, I guess, I think his 7 8 testimony was, to remove the screws and then 8 9 hand the board down. 9 10 A Okay. As far as the position of 10 11 the scaffolding, the safety railings should 11 12 have been above the eve of the roof. I am not 12 13 -- I can't really comment on how the 13 14 scaffolding was set up, or, you know, what the 14 15 position of the scaffolding was, what the 15 16 actual height of the scaffolding was, because 16 17 I wasn't there. 17 18 You know, as far as practice for 18 19 scaffolding use, yes, the safety railing 19 20 should have been above where the -- where 20 21 there would actually be a chance to fall out 21 22 over it. 22 23 Q Let's assume, you know, he is 23 24 standing on the surface of the roof. How high 24 25 above the surface of the roof should the 25 Page 33 safety railing be? A It depends what the function -- what their actual function was there for. If they were planning to take - you know, to work at chest height at the eve, then the scaffolding would have been lower than the eve. You know, if they were going to actually work up on the roof, if that was their intention to work on the roof, then of course the scaffolding would have needed to have been higher; and currently a harness would have been in order. Q Okay. And when you say, currently, is that a D.O.C. practice now? A That's an S.C.R. Rockview practice now, is -- Q Okay. A -- all of your inmates, regardless of whether they are using scaffolding or working on a ladder, wear harnesses now. Q All right. With regard to the job Mr. Shane was working on at the time he fell, he was removing OSB board from a roof of a shed that was a temporary structure placed over a boiler. Page 34 A Okay. Q My question to you is, are you aware of whether the Department of Corrections would keep the work orders of when that shed was first built? A That's really not my department. I am not -- That's more of a -- You know, that would be a maintenance policy or in regard to how, you know, how long they keep their records. Q Okay. MR. FOX: I asked for those. Did you ever find those or even take a chance to look for those? MR. GOODEMOTE: I don't remember looking for them. MR. FOX: It's from the last depositions. Off the record. (Off-the-record discussion occurred.) MR. FOX. Back on the record. BY MR. FOX: Q Are you aware of any paperwork that the crew chief or the carpenter instructors are required to fill out when suvervisin2 Key Reporters 717.764.7801 keyreportersCcomcast.net Pages 31 to 34 Scott Shane V Commonwealth of PA, Dept. of Corrections -Rockview Michael wenrick Page 35 1 inmates on a job site? 1 2 A Again, that's a maintenance -- that 2 3 would be maintenance procedure. I am not 3 4 familiar with their - 4 5 Q In the last two years or even when 5 6 you were being mentored by Mr. Sager -- 6 7 A Yes. 7 8 Q - did you, in the course of an 8 9 investigation of an accident, ever review 9 10 maintenance records, work orders and the like, 10 11 to determine -- or to ascertain information as 11 12 to what type of job was being done? 12 13 A I don't recall ever reviewing any 13 14 type of maintenance records. Basically, you 14 15 know, a staff statement on a D.C. 121 is where 15 16 you would get your -- your information for 16 17 that. I don't ever recall doing an 17 18 investigation that had taken me to the point 18 19 of having to review maintenance records. 19 20 Q When you go out to do an 20 21 investigation, I guess ever since you started 21 22 mentoring in '06 under Mr. Sager, is there a 22 23 checklist that you are required to check off 23 24 in performing your investigation? 24 25 A Yes. 25 Page 36 1 Q What's the name of that checklist 1 2 or the form that maybe you are required to 2 3 fill out? 3 4 A Well, actually, the actual accident 4 5 form is a -- is a form that Mr. Sager had 5 6 formulated. 6 7 As far as the department goes, I 7 8 don't think they have an accident 8 9 investigation form that's in any kind of 9 10 policy or anything. The one that we use at 10 11 Rockview is specific to Rockview. 11 12 Q Do you know when Mr. Sager created 12 13 that form? 13 14 A I - I don't recall. It was -- it 14 15 was one of his documents that was passed on to 15 16 me. 16 17 MR. FOX: I will make a request for 17 18 that form, too. 18 19 MR. GOODEMOTE: Okay. 19 20 BY MR. FOX: 20 21 Q Was this a computer-generated form 21 22 or something typed up that you just would 22 23 copy, or both? 23 24 A Um. 24 25 Q Let me ask you this. When you were 25 Page 37 working with Mr. Sager, did you have a database of forms and you could find this form in it? A Yeah, yes. Q Okay. Was it also something that you could grab a copy of when you needed it? A Normally, like even now when I go out on an accident investigation, I print the form off and I handwrite the form as I'm doing my investigation and then I will type it into a -- Q A formal report? A Yes. And then I will just -- I keep a file in my office, in my files, as far as what the accident reports that I do, as well as all the staff statements and stuff like that. But that's strictly my practice. I am not sure what his -- Q Okay. With regard to Mr. Shane's fall, there was no accident investigation. So I don't know. A Okay. Q That form doesn't exist -- A Okay. Q -- as far as I know, from what I Page 38 have read. A Okay. Q So your practice is you keep your handwritten forms in your file and then you generate the report that goes to, what did you call it, the Central Office? A The report, actually, an accident report, investigation report, goes to the superintendent; the deputy superintendent; the deputy superintendent for centralized services; the chief of environmental safety, and my file. Q Okay. Before that document is transmitted, does the superintendent need to signoff on it? A No. Q Okay. Does anybody other than yourself need to signoff on that report before it is transmitted into, you know, a final form? A No. Q Okay. A Basically the form is used as a fact-gathering tool. Q Okay. How long is this Key Reporters 717.764.7801 keyreporters®comcast.net Pages 35 to 38 Scott Shane v Commonwealth of PA, Dept. of Corrections -Rockview Michael Wenrick Page 39 1 investigation form that you use, how many 1 2 pages? 2 3 A I believe it's three pages. 3 4 Q You don't happen to have a sample 4 5 of that with you today, do you? 5 6 A No, I don't. 6 7 Q Would it be difficult for you to 7 8 provide a copy of that form to Mr. GOODEMOTE? 8 9 A I would -- A request through the 9 10 superintendent for me to release that 10 11 information would be all I ask 11 12 Q Okay. Yeah, well, that's fine. 12 13 A Yeah. 13 14 Q Whatever protocol you have to go 14 15 through, I would expect you would. 15 16 This document has previously been 16 17 marked as Exhibit Figurelle 2. I just have a 17 18 few questions on it here. 18 19 MR FOX: I don't know if you have 19 20 it. If you don't, here. 20 21 MR GOODEMOTE: Okay. 21 22 THE DEPONENT: (Reviews document.) 22 23 BY MR. FOX: 23 24 Q My biggest focus here is the first 24 25 two pages. 25 Page 401 1 A Um-hum. 1 2 MR- GOODEMOTE: Yes? Was that a 2 3 yes? 3 4 THE DEPONENT: Oh. I wasn't sure 4 5 who you were talking to. 5 6 MR. FOX: That's all right. 6 7 I don't think I asked him a 7 8 question, so. 8 9 MR. "DEMOTE: Okay. 9 10 BY MR FOX: 10 11 Q Do these first two pages look 11 12 familiar to you as forms still being used by 12 13 the Department of Corrections? 13 14 A Yes, they do. 14 15 Q Okay. Is this the form you were 15 16 referring to earlier, the investigation form 16 17 that you use? 17 18 A This is the actual -- the 18 19 computer-generated extraordinary occurrence 19 20 report, and page three of, I guess that would 20 21 be Figurelle Exhibit 2, would be the 21 22 handwritten version of that form. 22 23 Q Okay. All right. I will represent 23 24 to you here that page three was penned by Mr. 24 25 Figurelle, based on his deposition testimonv. 25 Page 41 A Okay. Q And page two is signed by Deputy Superintendent Tennis and Superintendent Meyers; do you see that? A Yes, I do. Q Is that still the practice now that the superintendent and deputy signoff on the accident investigation form you complete? A No, they do not signoff on my accident investigation. Q They do not? A This here is the extraordinary occurrence report. Q Which is different than the report you fill out? A Yes, yes. Q Okay. I am sorry. I didn't get that clear, that's why. A Okay. Q Okay. Now, on this particular form, on the second page, it has investigative information. A Yes. Q It says, an investigation into this accident is not warranted. Do you know who Page 42 would have typed that information in? Because Mr. Figurelle stated that he did not type that in. A Um. Q And I guess my question is, is that something Mr. Sager would have typed in or you don't know? A No, this report, this actual extraordinary occurrence report, had actually nothing to do with the safety manager coming from the - that looks like the report was completed by the deputy superintendent as the reporting official. Q Okay. That makes sense. I see that next to his name. Okay. All right. Now, let me ask you this. In the course of your job duties, do you now, on occasion, have to fill out an extraordinary occurrence report? A It all depends what the -- what the occurrence is. In the event that I would -- I would witness an inmate assault or a staff assault or something along those lines that had kind of nothing to do with the safety aspect and I needed to report, you know, my Key Reporters 717.764.7801 keyreporters@comcast.net Pages 39 to 42 Scott Shane v Coamonwealth of PA, Dept. of Corrections -RoCkview Michael Menrick Page 43 1 version, I would use an extraordinary 1 2 occurrence report. 2 3 Q Okay. 3 4 A As far as a accident or a fire 4 5 investigation, I specifically use those forms 5 6 in lieu of doing an extraordinary occurrence 6 7 report because they expect more information 7 8 from me than just the statement. 8 9 Q Okay. 9 10 MR. FOX: Why don't we take about a 10 11 five-minute break? I will look at my notes, 11 12 and I am almost done. 12 13 (Recess occurred at 11:30 a.m.; 13 14 reconvened at 11:35 a.m.) 14 15 MR. FOX: Okay, let's go back on. 15 16 BY MR. FOX: 16 17 Q The job titles or positions of Mr. 17 18 Sidorick and Mr. Figurelle was corrections 18 19 carpenter trade instructor? 19 20 A Yes. 20 21 Q And are you aware of whether or not 21 22 those individuals receive any training in fall 22 23 protection? 23 24 A From the department? 24 25 Q Yes. 25 Page 44 1 A As far as my knowledge, no. 1 2 Q Okay. Are you aware of whether 2 3 D.O.C. employees with the position of 3 4 carpenter trade instructor are required to 4 5 pass any test before obtaining such position? 5 6 A I do believe the trade instructor 6 7 position is a civil service. To my knowledge, 7 8 yes, they do have to take a test for that 8 9 position. 9 10 Q Okay. Has that always been the 10 11 case as far as you know or is that a more 11 12 recent requirement? 12 13 A As far as I know, it's been like 13 14 that. 14 15 Q Okay. You have described for me 15 16 the accident report that you complete, the 16 17 three-page document. Are there any other 17 18 documents you are required to complete in 18 19 addition to the accident report after 19 20 conducting an investigation? 20 21 A No. 21 22 Q Are you aware of whether or not the 22 23 carpenter trade instructors are required to 23 24 fill out any paperwork? 24 25 A A report, an extraordinary 25 Page 45 occurrence report, a D.C. 121, part two. Q Could that have been the third page of Exhibit Figurelle 2? A (Reviews document.) Correction, it is at 121, part three. Yes. Q Okay. A Employee report of incident. Q Okay. A And that's not -- that's not strictly for an accident. That's any -- any type of incident. A staff assault, any type of incident at all, extraordinary occurrence reports are filled out. Q Okay. So when an injury occurs, the instructor is required to fill out that report detailing the injury or the accident? A Yes. Q Okay. A Something additional, if it's a -- if it's an accident that involves an exposure to, say, chemical exposure, they do fill a exposure report. Q Right. A So that's -- Q Hazardous substance type of report? Page 46 A Right, yes. Q Okay. And of course if there is some other occurrence, like an inmate fight, they would fill that report out for that purpose? A Exactly, yes. Q Okay. Are the instructors required to take witness statements as to how the accident occurred or is that your job? A From the inmates? Q Yes. A The practice is that if an instructor has an accident on his crew, normally the instructor as well as the other inmates that are there will fill out -- The inmates don't fill out the extraordinary occurrence reports, but they will put it on just a normal inmate request form, if they are requested to do so. Well, if they are ordered to do so, I shouldn't say requested. If they are ordered to do so, they can give a -- they can give a statement. Q Um-hum. A We try more or less to rely on staff statements. But we do interview Key Reporters 717.764.7801 keyreporters@comcast.net Pages 43 to 46 Scott Shane v Commonwealth of PA, Dept. of Corrections -Rockview Michael Menrick Page 47 1 inmates, and their testimony, per say, is, you 1 2 know, quoted as a statement in my final 2 3 report. 3 4 Q Okay. Do you have discretion on 4 5 whether or not to have a inmate write down a 5 6 statement as to what he or she witnessed? 6 7 A Do you mean can I request an 7 8 irunate? 8 9 Q Yes. 9 10 A Yes, I can. 10 11 Q Okay. Or you can write it down 11 12 yourself and then just put it in quotes? 12 13 A Yes. 13 14 Q Okay. You said now the Department 14 15 of Corrections uses safety harnesses or 15 16 lanyards when they are above a certain height. 16 17 What -- 17 18 A The S.C.R- Rockview uses -- 18 19 Q I am sorry, Rock-view. Rock-view 19 20 does, okay. 20 21 What type of lanyards or safety 21 22 harnesses are issued to the inmates? 22 23 A The five point with the shock, the 23 24 shock protection fall lanyard. 24 25 Q So basically you hook, I will call 25 Page 48 1 it, the cable into a secure surface -- 1 2 A Yes. 2 3 Q - and then that harnesses onto the 3 4 five point system? 4 5 A Yes. Well, there is different 5 6 applications, too. If they are going to be 6 7 climbing, they may use two lanyards. That way 7 8 they are, at every aspect of the job, they are 8 9 tied off at some point. 9 10 MR FOX: Okay. Let me look at my 10 11 notes one more time. I think we are done. 11 12 BY MR FOX: 12 13 Q You don't know when the shed was 13 14 built of which Mr. Shane was on top of when he 14 15 fell? 15 16 A I don't have that knowledge, no. 16 17 MR. FOX: All right. Thanks. I 17 18 appreciate it. 18 19 THE DEPONENT: Thank you. 19 20 MR GOODEMOTE: Just one or two 20 21 questions because I don't think the record is 21 22 clear, at least it's not clear to me. 22 23 EXAM NATION 23 24 BY MR. GOODEMOTE: 24 25 Q Mr. Fox was asking you some 25 Page 49 questions about the regulations and you got into OSHA and L and I - A Um-hum. Q -- and I am not sure whether he said it or you said it in response. You said, corrections falls under L and I. And when you said that, did you mean that corrections falls under L and I's regulations? A Corrections uses L and I as our guideline as opposed to OSHA. Q Okay. And you didn't mean that corrections is answerable to the Department of Labor and Industry? A No. MR. GOODEMOTE: Okay. That's all. MR. FOX: Thanks for that clarity. RE-EXAMINATION BY MR. FOX: Q All right. So can you just specifically point to me what guidelines from Labor and Industry corrections follows? A Well, basically any projects. For example, if we were going to add, you know, a construction project within our institution, the Labor and Industry would be our inspecting Page 50 agency as far as, you know, us following their guidelines. Q All right. With regard to safety at a construction site, let's say at Rockview A Um-hum. Q -- are you following Labor and Industry's safety guidelines? A Yes, we're following Labor and Industry as well as OSHA, which are the strict -- Currently, OSHA, which are the stricter guidelines. OSHA are -- Some of their guidelines are easier to interpret. Q Okay. A As far as fall protection, even though it's not required by the department, there is no policy in place from the Department of Corrections, we follow OSHA's guidelines which are more or less a mirror of Labor and Industry's guidelines, just a little bit stricter. Q Okay. And how far back has, as far as since you have been employed, since '01, is it your understanding the Department of Corrections followed Labor and Industrys Key Reporters 717.764.7801 keyreporters@comcast.net Pages 47 to 50 Scott Shane v Comonwealth of PA, Dept. of corrections -Rockview Michael Nenrick Page 51 1 guidelines? 1 2 A I can testify as far back when I 2 3 took over as the safety manager. As a 3 4 corrections officer, I had no -- that wasn't 4 5 in my scope of practice to, you know, to work 5 6 with any types of those guidelines or 6 7 anything. 7 8 Q Okay. Who would have knowledge of 8 9 that information that's still employed? Let's 9 10 start there. 10 11 A Maybe Doug Morin or Bob McSurdy. 11 12 Q And what are their positions? 12 13 A The chief of environmental safety 13 14 and the assistant chief of environmental 14 15 safety. 15 16 Q And now the title suggested they 16 17 are in charge of safety with regard to 17 18 environmental issues, does that also include 18 19 with regard to construction and building 19 20 projects? 20 21 A I am not familiar with their -- you 21 22 know, with what their actual duties are. 22 23 Q Okay. 23 24 A They are my -- my authority as far 24 25 as safety goes. 25 Page 52 1 Q Who is your direct supervisor? 1 2 A Deputy of facility management. 2 3 Q And who is that? 3 4 A BrianThompson. 4 5 Q And how long has Mr. Thompson been 5 6 in that position? 6 7 A I believe he started about two 7 8 years, about the same time that I did. 8 9 Q Would Mr. Sager know information 9 10 regarding the D.O.C. following Labor and 10 11 Industry guidelines? 11 12 A I am not sure what his knowledge 12 13 is. 13 14 Q But would he be the guy you would 14 15 expect that would have that knowledge prior to 15 16 you coming into that position? 16 17 A I would think so, yeah. 17 18 Q Okay. And do you know how long Mr. 18 19 Sager held the position of safety manager? 19 20 A I- I don't know. 20 21 Q Did he hold the position of safety 21 22 manager when you first went to Rockview in 22 23 '01? 23 24 A Yes. 24 25 Q Okay. I am a little confused, 25 Page 53 still, on what guidelines the Department of Corrections follows from Labor and Industry, and I think I have a good idea of it, but I am not sure I have nailed it down, so to speak. A Um-hum. MR. GOODEMOTE: Yes? THE DEPONENT: Yes. BY MR. FOX: Q Now, if the Department of Corrections is going to pursue a project that they are going to do in-house and use their own workers and their own crews to build, with regard to the actual construction and the techniques in using construction, do they follow guidelines contained in or promulgated by the Labor and Industry department with regard to the actual construction? A As far as I can comment on that, I know that our construction projects are reported to Labor and Industry -- Q Okay. A - and an inspector from Labor and Industry inspects our projects. Q Okay. Now, does that also include safety issues? Will Labor and Industry Page 54 inspect whether or not the construction is being performed in a safe manner? A I am not -- They haven't inspected our construction projects since I have been the safety manager. Q Okay. A So I honestly can't comment on, you know, what their practice is, as far as, you know, if they even do routine safety inspections. Q However, they are, they do inspect to make sure the construction is being properly performed? A According to the code, yes. Q According to code, okay. Now, what code? Does Labor have its own code or are they following some other code? A I -- I -- Q You don't know? A I don't know. Q Does Labor have its own safety code or are they following some other code? A As far as I know, they have their own safety code. Q Okay. And so I understand your Key Reporters 717.764.7801 keyreporters@comcast.net Pages 51 to 54 Scott Shane v Cossionwealth of PA, Dept. Of Corrections -Rockview Michael Nenrick Page 55 Page 57; 1 more recent testimony correctly, when it comes 1 you know, wherever they get their infor -- 2 to following safety code with regard to fall 2 You know, I am assuming Labor and 3 protection, instead of using Labor and 3 Industry guidelines, since that's who we 4 Industry's, you follow OSHA now as a practice? 4 follow under -- or fall under, you know, with 5 A Yes. 5 our lockout/tagout and things like that. Of 6 MR FOX: Okay. All right. I am 6 course it's in the policy that that's, you 7 truly done now. 7 know, point by point, the way that we do 8 MR GOODEMOTE: Okay. And we are 8 business so that is required for us to do it 4 9 still not quite truly done. 9 that way. But with the fall protection, there 10 MR FOX: Oh, maybe I am not. 10 is no policy. 11 MR. GOODEMOTE: Maybe I am going to 11 Q Another way of looking at it, 12 try to clarify one more time because we've -- 12 maybe, is if the D.O.C. doesn't have a 13 These are real lawyer questions, but we need 13 specific guideline or regulation as to how to 14 to know. 14 perform a certain function and do it safely, 15 RE-EXAMINATION 15 it will refer to the Labor and Industry 16 BY MR. GOODEMOTE: 16 guidelines? 17 Q We are talking in terns of 17 A Yes. 18 guidelines. And when I think of a guideline, 18 Q Okay. All right. 19 a guideline is something that you try to 19 RE-EXAMINATION 20 follow but maybe you don't have to follow so I 20 BY MR. GOODEMOTE: 21 just want to get your testimony clear. 21 Q I am still a little confused, 22 If you are subject to the Labor and 22 though. When you do an in-house project 23 Industry safety rules-we will just call them 23 and I know they haven't done one since you 24 rules--are you required to follow those or is 24 have been there 25 it something that you just -- 25 A Um-hum. Page 56 Page 58 1 A Well, since there is no D.O.C. 1 Q - but you indicated that Labor and 2 policy in regards to fall protection, I would 2 Industry comes in and actually inspect the 3 say, no, we are not required to follow those. 3 job. What are they inspecting it for? I mean 4 Q Okay. Okay. And the same thing, 4 is it for the construction guidelines? 5 you are not subject to OSHA but you try to 5 A The inspector, the inspector from 6 follow those guidelines but there is no policy 6 Labor and Industry, that the only inspector 7 that says you have to follow OSHA guidelines? 7 that I have ever seen or to come in and 8 A Exactly, yes. 8 inspect at Rockview has been there to inspect 9 MR GOODEMOTE: Okay. 9 the, you know, the workmanship and the actual, 10 RE-EXAMINATION 10 you know, the code, the code enforcement side 11 BY MR. FOX: 11 of it. 12 Q The practice is--just a follow-up 12 Q See if whatever, the project meets 13 to Mr. Goodetnote's question--the practice is 13 code? 14 to follow the Labor and Industry's safety 14 A Exactly. 15 code? 15 Q Okay. Not particularly for safety? 16 A Yes. 16 A Not to my knowledge, no. 17 Q Okay. As far as you know, there is 17 MR GOODEMOTE: Okay. All right. 18 no D.O.C. rule requiring you to do that? 18 I think we are clear. 19 A In regards to fall protection. 19 MR. FOX: Yeah, I got it. I got 20 Q Okay. There is a D.O.C. rule that 20 it. 21 requires you to follow other safety 21 MR- GOODEMOTE: I finally got it. 22 regulations? 22 RE-EXAMINATION 23 A Sure. Any time that there is a 23 BY MR. FOX: 24 policy, the policy is -- You know, certain 24 Q But also, but I think if - But if 125 aspects of our policy are taken directly from, 25 there is no - Key Reporters 717.764.7801 keyreporters@comcast.net Pages 55 to 58 Scott Shane v Commonwealth of PA, Dept. of Corrections-Rockview Michael Menrick Page 59 1, 1 But if there is a safety question 2 that isn't addressed in the D.O.C. regulations 3 on how to properly maybe perform a certain 4 job, the practice is to look to Labor and 5 Industry's codes on safety? 6 A Yes. 7 Q Okay. 8 MR. FOX: You got that? 9 MR. GOODEMOTE: Okay, we got it, 10 finally. 11 MR. FOX: Okay. Thanks. We will 12 leave you alone. 13 (At 12:00 p.m., the deposition was 14 concluded.) 15 t 16 17 18 19 20 21 22 23 24 25 Key Reporters 717.764.7801 keyreporters@comcast.net ?X???? In XIII. Work Assignments (DC-ADM 816) A. General 1. All medically cleared inmates must accept any task assigned to them regardless of the amount of compensation offered in return. You do not have a right to be assigned, or continue to work in any particular work assignment. 2. If you are able to work, you will be assigned to a job depending upon job availability. Your job will be assigned through the Corrections Employment Vocational Coordinator. Your interests are a factor in making assignments. Your abilities, qualifications, and the availability of space on the job are also considered. However, as stated in Section V.G. of this handbook, if you test below the 8th grade competency level in reading, as measured by the TABE, you must enroll in the education program. 3. Failure to report to or refusal to work is regarded as a misconduct. Absence from your job location without prior knowledge and permission from a staff member is not allowed. 4. The job you desire may have a waiting list, or require special qualifications and your work assignment may be to an area that was not your first choice. This assignment, however, may be a stepping- stone to other jobs in the future. 5. Many job assignments provide on-the-job training, which can be of vocational benefit to you. 6. If you work irregular hours, you may be permitted recreational activity in designated areas at designated times. 7. You are expected to carry your share of the work, and to do any task assigned. You may be required by the crew supervisor to do any job relating to the general duties of the work crew. You may, at times, depending upon facility needs, be assigned tasks unrelated to your present job. You may not refuse to perform those tasks as assigned. 8. You may not leave your place of work without approval from the work or crew supervisor and you must have a pass, properly signed, indicating where you are going and the time you left work. Inmate Handbook Page 67 9. Your job performance and conduct will be evaluated periodically and the evaluation will become part of your record. B. Pay System If you work, you will be paid for the hours you work according to the pay system described in DC-ADM 816, "Inmate Compensation." Most jobs are paid on the hourly basis. The pay system has three classes of hourly pay based on the skill level required. Each class has four pay steps. You begin at the bottom step of the class and can be considered for increases based on your skill, interest, and on-the-job performance. Pay is calculated monthly and credited to your account. Some Correctional Industries jobs include a bonus based on quotas or profits. C. Length of Work Day or Work Week 1. The standard workday consists of six hours, and the standard workweek consists of five days. You will only be paid for actual hours worked, as verified by the work supervisor. Hours of work will be figured from the time of arrival at, and departure from, the classroom or work site. 2. You will not be allowed to work more than five days a week or six hours per day under normal circumstances. In a department that functions seven days per week, where job changes are more frequent, you will be permitted to work more than five days per week without being eligible for overtime pay. 3. You may be granted a one-half hour break to visit the Barber or Beauty Shop monthly and the Commissary weekly, if these opportunities are not available during your non-work hours. D. Pay Rates 1. The pay rates for skilled classifications are listed in the DC-ADM 816. 2. You will be assigned the starting step of the pay class that matches your work skill. If you are starting at the unskilled pay level of Class 1, Step A, you will be evaluated by the Work Supervisor in 60 days for advancement to the next skill level. The Work Supervisor will base your advancement on your performance. Advancement to the next higher class can only occur if there is an opening in that class. Inmate Handbook Page 68 3. The General Labor Pool Allowance shall be used as the pay grade for temporary assignment. 4. If you participate in, or have completed, vocational training, you will not receive a reduction in pay rate if you are reassigned to an assignment that uses those skills. E. Pay Changes 1. Pay raises and demotions will be at the discretion of the Work Supervisor based upon your performance as documented on the DC- 48B, Inmate Progress Report. You are not entitled to pay raises and they are not automatic. Raises may be awarded only in one-step increments and are based on your work performance. The first pay raise and later increases will not be granted until, you complete two months of satisfactory performance. Pay raises are effective in the first full pay period of the month following the approval of the raise. Demotions may be effective immediately. 2. You may be removed from a work assignment by a Unit Management Team action or misconduct proceeding. If you are found guilty of a Class 1, Category A misconduct, as defined in the DC-ADM 801, you will be removed from your work assignment. 3. The Work Supervisor may temporarily suspend you pending unit management team review or misconduct proceedings. F. Illness or Injury 1. If you suffer a job-related injury, as verified by the medical department, you are eligible to continue to be paid at the rate earned on the day prior to the injury. The Work Supervisor must complete an incident report documenting the injury and referencing the medical department's examination and determination of the injury. You will not be eligible for pay increases or bonuses during this time. The medical pay period shall not exceed 90 calendar days and each case will be reviewed every 30 days to determine if the medical pay should continue. After 90 days, you will be paid the Medical Allowance Compensation Rate. 2. If you are unable to work as a result of self-inflicted injuries or injuries sustained as a result of a provoked assault or your carelessness, you will not be eligible to receive pay. Inmate Handbook Pace 69 3. You will not be paid during times of illness or injury unless you get an excuse from work from the medical department. If.,a work assignment that you are able to perform becomes available, you may be assigned to that position and receive pay appropriate for that assignment. You must follow the advice of the medical staff and take all reasonable steps to improve your health during this time. Failure to do so may result in the stopping of your pay. 4. If you are unable to work for medical or mental health reasons, or you are confined to a Mental Health Unit (MHU), you are eligible for the General Labor Pool Allowance for a maximum of five days per week. If you are admitted to an MHU due to attempted suicide or self-inflicted injuries you will be not eligible for the General Labor Pool Allowance. Following release by the medical or mental health department, and an evaluation by the Corrections Vocational Employment Coordinator, you may return to a previous job assignment. G. General Labor Pool 1. If you do not have a work assignment, including education, through no fault of your own, or if you remain in the assessment unit or diagnostic classification center more than 60 calendar days, you will be placed in the General Labor Pool. While you are in the General Labor Pool, you will be eligible to receive the General Labor Pool Allowance as listed in policy DC-ADM 816, for a maximum of five days a week. You will be eligible to receive the General Labor Pool Allowance for six months, with the possibility of a three month extension granted by the Facility Manager, until you are given a work or school assignment. You must maintain a proper level of personal hygiene, the cleanliness and orderliness of your living area, accept work assignments for the housing unit, accept any employment offered, and participate in recommended programs. 2. If you receive the General Labor Pool Allowance and do not maintain an acceptable level of personal hygiene, cleanliness of your living quarters or other areas assigned to you, or fail to participate in programming, the Unit Manager will make an assessment if you are to continue receiving the General Labor Pool Allowance. This assessment will include an interview with you and an evaluation by the medical and/or mental health department. The Unit Manager will tell you of the outcome of the assessment and instruct you on ways to improve your performance. Inmate Handbook Page 70 3. If, because of a verified medical or Mental Health condition, you cannot maintain an acceptable level of personal hygiene, clean your living quarters, or some other area assigned to you, or participate in programming, you may collect the Medical Allowance. H. Assignment to Restricted Housing Unit (RHU) If you are sent to the RHU you will not be paid unless you are assigned a job in that unit. Exceptions to this may be approved by the PRC as outlined in the DC-ADM 816. ?6#7'Fl;7`- C7 Pereira Consulting, LLC 104 Spindle Lane Chadds Ford. PA 19317 (610) 388-7891 J uliusPerei rra @oDrn cast net LJ William J. Fox, Esq. William J. Fox, P.C. 1417 Locust Street, 4t' Floor Philadelphia, PA 19102 Re: Scott Shane Dear Attorney Fox: February 3, 2012 On September 9, 2002 Scott Shane was removing exiting roof sheathing boards from a temporary boiler shed roof at the SCI Rockview, 1 Rockview Place, Bellefonte, PA. The roof sheathing board Mr. Shane was standing on unexpectedly failed and caused him to fall more than ten feet to the ground below resulting in Mr. Shane being injured. You requested I evaluate the circumstances leading to Mr. Shane's fall and provide my opinions regarding the fall protection provided at the time Mr. Shane fell. To that end, I reviewed the following information. A. INFORMATION REVIEWED 1. Second Amended Complaint, 2. Plaintiffs Response to Motion for Summary Judgment, 3. Responses of Defendant, Commonwealth of Pennsylvania, Department of Corrections, State Institution at Rockview to Plaintiffs First Set of Interrogatories. 4. Pennsylvania Department of Corrections, Extraordinary Occurrence Report, 5. Scott Shane deposition transcript, 6. Eugene Figurelle deposition transcript, 7. Michael Sidorick deposition transcript, 8. Michael Wenrick deposition transcript, 9. December 2007 report by Craig A. Shaffer. B. SITE CONDITIONS SCI Rockview is part of the Pennsylvania Department of Corrections' (DOC). It is one of 24 Adult Male Institutions throughout the commonwealth. Originally opened in 1915, SCI Rockview is a medium- securi institution housing lesser security risk prisoners. SCI Rockveiw is a sprawling multiple building facility?3 The building that Mr. Shane was working on at the time of this incident was a containment building for temporary boiler (MS12, 13). The rectangular building had a temporary shed roof that sloped at about 4:12 to 5:12 and was about 10' to 12'-10° high at the eave (MS12, 13, EF19, Shaffer report). The roof sheathing of the temporary shed was oriented strand board (OSB). The OSB was screwed to the shed rafters. DOC correction officers Michael Sidorick and Eugene Figurelle were carpenter trade instructors for the DOC. Mr. Sidorick testified there was tar paper on the OSB (MS14, 15). Mr. Figurelle testified there was no weather protection on the OSB and it was a weathered grayish color (EF27). 1 portal.state.pa.us 2 bing.com/maps. 3 maps.google.com. William J. Fox, Esq. February 3, 2012 Page 2 Mr. Sidorick and Mr. Figurelle testified that a 2' wide wood scaffolding had been constructed along the eave side of the shed (MS17, 18, EF21). The scaffolding walking surface was three to four feet below the roof (MS18). There was a 3' high railing around the outside (MS18). Mr. Shane testified there was no scaffolding, but only a ladder to the roof (SS23, 29, 20, 21, 24). Mr. Shane was not wearing any fall protection while working on the roof (MS35, EF37). C. MR. SHANE'S FALL Mr. Shane was incarcerated at SCI Rockview (SS7). Prior to this incident, Mr. Shane had been assigned to an outside carpentry detail supervised by Mr. Figurelle for approximately a year (SS15, 16). The carpentry craws were part of the trade instruction training program provided for the inmates by SCI Rockview. The program included class-room and on the job instruction (MS25, 26, EF9, 10). Mr. Figurelle identified that about ninety nine percent of the training program is on the job (EF10). Mr. Shane testified that most of his involvement with the carpentry detail prior to this incident involved gutting and refurbishing an old police barracks (SS16, 17). At the time of this incident the roof sheathing was being removed from the top of the shed roof to the lower portion of the roof (SS22). Mr. Shane testified that Mr. Figurelle directed him to go on the roof and remove the four remaining sheets of wood (SS23). As an inmate, Mr. Shane was required to follow orders (EF27, 28). Mr. Shane was on the roof taking down the OSB sheathing and handing them down (SS27, 28). Mr. Shane testified he did not remove any screws from the sheet of sheathing he was standing on when it made a big cracking noise, broke loose and caused him and the sheathing to fall off the eave side of the roof to the ground (SS24, 25, 31). Mr. Shane was not wearing a safety harness (MS35 EF37). Mr. Sidorick was removing the rafters when Mr. Shane fell (MS41). Mr. Sidorick saw Mr. Shane after he fell from the roof and was below the eave and described how Mr. Shane and the plywood fell off the roof together (MS32-36). Mr. Figurelle prepared the DOC Extraordinary Occurrence Report (EF17, 18). In preparing the report Mr. Figurelle testified that he probably spoke to the other inmates who were there and Mr. Sidorick (EF36), however Mr. Figurelle did not obtain any statements from anyone or take photographs of the conditions (EF36, 38). The Extraordinary Occurrence Report states: On September 9, 2002 at 1040 hours, Scott Shane, DX2035, was removing OSB (plywood) from the roof of the building covering the temporary boiler. Inmate Shane had two pieces left to remove and he unscrewed the OSB while he was still standing on it. When the last screw was removed, the OSB slid off the roof with inmate Shane. He fell 10-12 feet onto the ground, landing on his feet. He complained of severe pain in both feet and ankles. The medical department was contacted and upon their arrival at the boilerhouse they placed inmate Shane on a backboard and transported him to the medical department. He was examined and admitted to the Treatment Building Infirmary. Mr. Figurelle did not see Mr. Shane's fall (EF24). Mr. Figurelle did not investigate Mr. Shane's fall (EF17). In writing the report Mr. Figurelle testified that he relied on information obtained from Mr. Sidorick and inmates at the scene, however no written statements were obtained from the inmates (EF36). Mr. Figurelle did not retain or take any photographs of the OSB panel involved in Mr. Shane's fall. Mr. Sidorick testified that he was working removing rafters when Mr. Shane fell and only saw him after he had already fallen from the roof. This indicates that Mr. Sidorick did not see Mr. Shane immediately prior to his fall. There is nothing in the record reviewed to support Mr. Figurelle's statement that Mr. Shane "... unscrewed the OSB while he was still standing on it." The statement is contradicted by Mr. Shane's testimony that he did not unscrew the sheathing. William J. Fox, Esq. February 3, 2012 Page 3 D. APPLICABLE STANDARDS FOR SAFE ROOFING WORK Mr. Shane was an inmate participating in a trade instruction training program, which was about ninety nine percent on the job training, not running a business. The work involved DOC construction projects. Mr. Shane provided construction labor on these DOC projects, under the direct supervision of DOC personnel. The DOC is a department in the Pennsylvania government. The Pennsylvania Code4 sets forth rules and recommendations to safeguard the lives, limbs, and health of workers in all establishments within this Commonwealth. The Pennsylvania Code states: • Lifebelts. All persons working aloft should be required to wear lifebelts properly secured when exposed to a falling hazard. In addition to the requirements of the Pennsylvania Code, federal requirements regarding safe construction are applicable to the subject DOC roofing work. The Occupational Safety and Health Administration (OSHA) was created in the 1970's to establish and enforce standards to assure safe work environments, including construction activities5. The OSHA Safety and Health Regulations for Construction, Subpart M, specifically addresses fall protection for construction activities, including roofings. The building had a shed roof that sloped at about 4:12 - 5:12 that was at least 10 feet above the adjacent ground. OSHA in Interpretation M-47 identifies that a low-slope roof has a slope of less than 4 in 12 and a steep roof has a slope greater than 4 in 12. OSHA Section 1925.501(b)(10) requires: "Roofing work on Low-slope roofs." Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system. Or, on roofs 50-feet (15.25 m) or less in width (see Appendix A to subpart M of this part), the use of a safety monitoring system alone [i.e. without the warning line system] is permitted. OSHA Section 1925.501 (b)(11 1) requires: • "Steep roofs." Each employee on a steep roof with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems with toeboards, safety net systems, or personal fall arrest systems. The OSHA conventional fall protection requirements are cited in information generally available to the construction industry, such as the Fall Protection Field Guides which identifies the need for adequate fall protection, a training program to train workers in fall protection measures and that workers are selected and trained to work safely at heights. E. ANALYSIS Fall protection is fundamental safety requirement for safe construction work where there is the potential for fall. Information regarding falling hazards is found in enforced codes and safety references. The Pennsylvania Code addresses falling hazards involved with construction and identified that all persons working aloft should be required to wear lifebelts properly secured when exposed to a falling hazard. 4 pacode.com., Title 34 Labor and Industry, Chapter 39, Safety Standards-General, adopted June 14, 1930, amended through August 1, 1968, unless otherwise noted. 5 osha.gov. 6 osha.gov, CFR1926.502. 7 osha.gov, Interpretations and Clarifications Subpart M - Fall Protection (29CFR 1926, 500-503, February 1995. 8 Fall Protection Field Guide, Construction Safety Council, 1995. William J. Fox, Esq. February 3, 2012 Page 4 Information regarding the prevention of construction fall hazards is found in OSHA and information generally available to the construction industry. All address the hazards associated with falls from heights and the protection necessary to prevent such falls. The DOC provides carpenter trade instruction for inmates. As part of the training program the DOC utilized inmates to provide labor for DOC construction projects. Mr. Figurelle testified that he taught job safety as part of the program (EF13, 14). He testified the DOC provided training in general safety and used handouts, but the safety literature regarding fall protection was not given to inmates (EF13, 14). Mr. Figurelle also testified that the DOC had no policy regarding falls, nor was he aware of the federal requirements of OSHA 1926 (EF15, 16). Mr. Figurelle and Mr. Sidorick were the DOC's carpenter trade instructors responsible for on the job training of the inmates on the roof. The DOC job training did not include information regarding the Pennsylvania Code or applicable standards for fall hazards protection when inmates were working on roofs. Mr. Figurelle and Mr. Sidorick were unaware of the applicable requirements of the Pennsylvania Code and OSHA regarding fall protection. Michael Wenrick is employed by DOC as Corrections Institutions Safety Manager (MW11). Mr. Wenrick testified that the DOC did not have specific guideline regarding fall protection (MW55-59). He identified that the DOC now .follows OSHA guidelines uses safety harnesses (MW18, 47, 50, 56). Mr. Wenrick testified that at the time of Mr. Shane's fall the DOC practice was to look to Labor and Industry requirements. If the DOC had consulted the Labor and Industry requirements as embodied in the Pennsylvania Code, they would have realized that the Pennsylvania Code addressed the situation and stressed the need to wear lifebelts properly secured when exposed to a failing hazard. The DOC claims that scaffolding was used and harness lines were not required. While there is disagreement regarding the installation of scaffolding, even if it is assumed that the scaffolding was installed, it was constructed too low. White the scaffolding may have provided access to the building and the roof, its safety function was limited by its height. Mr. Sidorick testified that the scaffolding was only 2' wide wood scaffolding had been constructed along the eave side of the shed; with the walking surface was T to 4' below the roof and a 3' high railing around the outside. This would have placed the top of the railing at or below the lowest surface of the roof and the outer edge of the railing about 2' from the edge of the eave. With the scaffolding as much as 4' below the roof, the inmates working removing the OSB from the upper portion of the roof would have had to climb on the roof. With the scaffolding in that position, Mr. Shane would have had to climb onto the roof to safely reach and remove the upper most screws holding the bottom 4' wide OSB panels. The slope of the subject roof was more than 1:4, therefore, it was a steep slope roof. Reasonable safety measures involving workers engaged in roofing activities on a steep sloped roof with unprotected sides and edges 6 feet (1.8 m) or more above lower levels required they be protected from falling by guardrail systems, safety net systems, or personal fall arrest systems. With the railing at or below the level of the lowest portion of the roof, it is unlikely such a railing would have prevented a fall from the roof. The DOC Safety manager Mr. Wenrick, also recognized this failure. He testified that if the intention was to be working on the roof, then the scaffolding and safety railing needed to be higher, above where there was a chance to fall out over it (MW32, 33). Based on Mr. Sidorick's description of the scaffolding and railing, it was not. No nets or fall arrest systems (Safety harnesses) were provided. With the scaffolding railing in the position in was as testified to by Mr. Sidorick, it would have been ineffective in preventing a fall from the subject roof, as evidenced by Mr. Shane's fall. Mr. Wenrick also testified that harnesses are required now. Such safety harnesses were readily available at the time Mr. Shane fell9, but the DOC chose not to utilize them for the safety of inmates working on the roof. Had such a safety harness been used, Mr. Shane would have been prevented from falling from the roof and not sustained the injuries he did. The DOC's claim that harness lines were not required is contradicted by the requirements of the Pennsylvania Code as cited above. Mr. Figurelle testified that the temporary roof had been installed in the late fall, early winter of the year before Mr. Shane fell (EF18). Mr. Sidorick similarly testified that the temporary roof had been installed McMaster-Carr, Catalog No. 96, 1990. William J. Fox, Esq. February 3, 2012 Page 5 about six months before Mr. Shane fell (MS15). OSB needs to be protected. Mr. Sidorick testified there was tar paper on the OSB. Mr. Figurelle testified there was no weather protection on the OSB and it was a weathered grayish color. Mr. Shane testified that the OSB appeared old and exposed to the weather (SS26). If Mr. Figurelle is correct, the OSB would have been unprotected and exposed to the weather for at least six months, allowing the OSB to deteriorate an weaken. If the OSB had been left exposed to the weather for at least six months, extra care and precautions should have been taken to prevent the unexpected failure of the OSB while there were workers on the roof. Mr. Shane was not given an option regarding working on the subject roof. As an inmate he was required to follow orders. Despite being involved in a carpentry trade instruction program, Mr. Shane was not provided fundamental training regarding fall safety, including the need for guardrail systems, safety net systems, or personal fall arrest systems when working at heights where he would be exposed to a falling hazard. This deprived Mr. Shane of the information necessary to work safety on the roof and to avoid falling. F. FINDINGS Based on my review of the materials and my experience and within the bounds of reasonable technical and professional certainty it is my opinion that: 1. The DOC's failure to provide safety harnesses (Lifebelts) for those inmates working on the subject roof and exposed to a falling hazard did not comply with the requirements of the Pennsylvania Code and was a cause of Mr. Shane's fall. 2. The DOC's failure to provide any adequate fall protection, including scaffolding and safety railing of a height to have prevent a fall from the subject roof or safety harnesses did not comply with reasonable standards for safe construction projects, such as OSHA fall protection standards which are used by the building trades and was a cause of Mr. Shane's fall. 3. The DOC's failure to provide adequate fall training regarding fall safety as part of their carpenter trade instruction deprived Mr. Shane of the information necessary to work safely on the roof and to avoid falling. 4. If the OSB had been left exposed to the weather for at least six months, extra care and precautions should have been taken to prevent the unexpected failure of the OSB while there were workers on the roof. 5. The DOC's actions are especially egregious given that they claimed to have a carpenter trade instruction program, yet failed to address fundamental safety requirements for fall protection when working on roofs where they would be exposed to a falling hazard. 6. There is nothing in the record reviewed to support Mr. Figurelle's statement in the Extraordinary Occurrence Report that Mr. Shane unscrewed the OSB before he fell. I reserve the right to amend my findings if additional information becomes available. Thank you for the assignment. If you require anything further concerning this matter please let me know. 7reira III, RA, CX9 v ' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within mS,4 for ex Argument Court.) a" i F i it i 91 (1: E} CAPTION OF CASE (entire caption must be stated in full) SCOTT SHANE vs. COMMONWEALTH OF PENNSYLVANIA 1528 Walnut_ Street, Suite 515, Philadelphia, PA 19102 - ---------------------------------------------- (b) for defendants: Daniel R. Goodmote, Esquire - Office of Attorney General -------------- ---__----------------------- ----- ------------------ (Name and Address) 15th Floor, Strawberry Square, Harrisburg, PA 17120 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): --------- Defendants'-Motion- for -Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: William J. Fox, Esquire (Name and Address) S 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Signatufe William U. Fox, Esquire ----------------------------- Print your name 1 ),,-, Date: -----------? 3 ------- "1.? DEiRLAND COUNTY PENNSYLVANIA No. _Q _41 71____, Ci-vjj-- Term Scott Shane, Plaintiff ----------------------------- Attorney for 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 relisted. amp Ng. 95P? `may 2-a 73,y5 l Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial 717-783-3147 dgoodemote @attomeygeneral. gov ?A SCOTT SHANE, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4171 CIVIL TERM Defendant CIVIL ACTION - LAW DEPARTMENT OF CORRECTIONS' MOTION FOR SUMMARY JUDGMENT This Motion for Summary Judgment is filed by Defendant, Commonwealth of Pennsylvania, Department of Corrections, SCI - Rockview (the Department). In support, the Department avers: 1. Plaintiff, Scott Shane., filed a Complaint on or about August 23, 2004. 2. Plaintiff filed an Amended Complaint against the Department on or about September 2, 2004. 3. The Department filed its Answer and New Matter to the Amended Complaint on or about December 1, 2004. 4. The Department filed a Motion for Summary Judgment on February 3, 2009. 5. Plaintiff filed his response to the Department's Motion on March2, 2009. 6. Argument was held before the Court on May 12, 2010. At that time, it was agreed that the Department's motion would be dismissed without prejudice and that Plaintiff would file an amended complaint. 7. Judge Guido entered an Order dismissing the Department's motion without prejudice on June 1, 2010. 8. Plaintiff filed a Second Amended Complaint on or about February 17, 2011. 9. The Department filed its Answer and New Matter to the Second Amended Complaint on March 14, 2011. 10. According to Plaintiff's Second Amended Complaint, he was an inmate at the State Correctional Institution at Rockview (SCI Rockview) on September 9, 2002. Second Amended Complaint, ¶5. 11. On that date, Plaintiff was on the inmate carpentry work detail..5econd Amended Complaint, ¶7. 12. On that date, Plaintiff was removing the 4 x 8 sheets of plywood which served as the roof of the temporary structure. Second Amended Complaint, ¶12, Dep. of Michael Sidorick p. 12, 1. 18 - p. 13, 1.1. Attached hereto as "Exhibit A." 13. Plaintiff claims he was standing on one sheet of plywood and it suddenly broke loose, causing Plaintiff to fall to the ground. Second Amended Complaint, ¶¶17, 26. 14. Plaintiff alleges the Department was negligent, in part by failing to provide Plaintiff with fall protection. Second Amended Complaint, T¶14, 19, 20, 21, 59, 60, 61(4), ()9, 15. Plaintiff alleges he was injured as a result of the fall. Second Amended Complaint, ¶¶27- 34, 62-66 16. The pleadings are closed and the parties have completed all discovery relevant to this motion. 17. The Department is a Commonwealth agency. 18. The Commonwealth and its agencies continue to enjoy sovereign immunity. 19. The Commonwealth and its agencies are subject to suit only where a plaintiff's action is within one of the exceptions to the Sovereign Immunity Act 42 Pa.C.S. §8522(b). 20. Plaintiff alleges the structure in question was a building and/or a fixture. 21. The only possible exception to sovereign immunity which could apply to Plaintiff's action is §8522(b) (4), the "real estate exception." 22. The exception, as it relates to this case requires Plaintiff to show "...[a] dangerous condition of ... real estate ... including highways under the jurisdiction of a Commonwealth agency." 42 Pa.C.S. §8522(b) (4). 23. In order to state a cause of action which meets the real estate exception to sovereign immunity, Plaintiff must show " [a] dangerous condition of Commonwealth agency real estate ....." 42.Pa.C.S. §8522(b)(4). 24. In order to recover, Plaintiff must show that a defect of the Commonwealth real estate itself caused Plaintiff's injuries. 25. The allegations related to negligence for failing to provide fall protection do not describe a dangerous condition of Commonwealth real estate and they are not within any of the exceptions to sovereign immunity set forth in the Sovereign Immunity Act, 42 Pa.C.S. §8522(b). 26. There is no evidence in the record that the Department had either actual or constructive notice of the defective condition of the OSB board which Plaintiff alleges existed and caused his fall. 27. Plaintiff does not concur in this motion. 28. The remaining allegations of negligence not addressed above are boilerplate and have to applicability to the facts or the evidence of this case. Respectfully submitted, Linda L. Kelly Attorney General .'?7T!1!%' r?R l ?• D By: Daniel R. Goodemote Senior Deputy Attorney General Supreme Court No. 30986 EXHIBIT "A" • C7 E MICHAEL SIDOROCK November 3, 2008 SHANE VS COMMONWEALTH OF PA 14 1 Q Did you build that shed, did you 1 2 supervise that construction? 2 3 A Mr. Figurelle's crew and myself and 3 4 our crew. There was two crews building the 4 5 structure, so we - to answer your question, yes, 5 6 it was supervised by both of us. 6 7 Q Do you recall when the structure was 7 B built? 8 9 A Boy, probably a year before this 9 10 accident occurred. 10 11 Q Do you know if Mr. Shane participated 11 12 in the construction of the shed? 12 13 A I can't say if he was there during the 13 14 construction period. 14 15 Q What were the walls made out of, of 15 16 the shed? 16 1 7 A They were 2-by-6 structure with OSB 17 18 board attached. 18 19 Q Now about the roof, what was the roof 19 20 made oP 20 21 A The roof was the same thing, 2-by-8 21 22 rafter system with OSB decking. 22 23 Q Was there any tar paper or shingles ' 23 2.4 placed on the OSB after it was installed? 24 2 5 A There was a, I think it was 30 or 50 25 15 pound black tar paper over the OSB board. 1 Q They call that felt? 2 3 A You could say; felt is a little 3 4 thinner, it's like 15 pounds, but you could say 30 4 3 pound felt would be... 5 6 Q Was there anything else put on it? 6 A No. 7 8 Q How long was that structure up before 8 the incident? I think you said it was a year. 9 1 C? A Probably. I would say six months. 10 1 Q Six months? 11 1 A Yeah, it was supposed to be only a 12 1 3 temporary facility. It was going to be taken down 13 1 4 to build a higher facility, they were getting 14 1 another boiler in that was a little bit larger than 15 16 the one that was there. 6 1 t Q Do you remember what the width of the 7 1 8 OSB was? 18 19 A Ilalf-inch. 19 2 C, Q Have you ever installed -- before you 20 z worked for the DOC, have you ever used a half-inch 21 22 OSB as a roofing product? 22 3 A Yes, that's standard. 23 24 Q In your experience, did you also use 24 2'5 three-quarter inch plywood as a roofing sheeting? 25 16 A 1 would say not very often. Q Not very often? A No, that's a little overkill for a roof structure; five-eighths I've used. Q 1 believe this incident happened on the morning of September 9, 2002. A I would have to say yes. Q If I'm off -- A It's a long time ago. Q Is it 9/9 or 9/2, Scott? MR. SHANE: 9/9, I believe. BY MR. FOX: Q We're just trying to get a rough time frame. A Sure. Q Were you working that day? A Yes, l was. Q What was your assignment for that day? A We were to dismantle the shed structure. Q The shed structure? A Yes. You want the particulars of exactly -- Q Explain to me how you were going to go about doing that. 17 A Naturally, you start from the roof system down. My inmates, we were taking off - I think Mr. Figurelle's crew was taking off the felt. Q Okay. A They were going to take off the OSB board, which was secured with screws - I believe inch-and-a-half dry wall screws - my crew would go behind and dismantle the rafter system, so it would be almost like a puzzle system. They would go ahead and take it so far, we would pull the rafters off, hand them down, and keep going along the structure. This is what we were -- that was my assignment for that situation. Q Were you actually participating in this work? A Yes, I was. Q You were? A I was actually up on the scaffold. Q Where was the scaffold located that you were working at? A The scaffold was built right against the structure on the eave side, the ten-foot side. Q What kind of scaffolding was it? A It was a wooden structure built against the building, which I have constructed many 5 {Pages 1.4 to 17} Geiger & Loria Reporting Service - 800-222-4577 • MICHAEL SIDOROCK November 3, 2008 SHANE VS COMMONWEALTH OF PA 42 1 gone. 1 2 Q He was gone? 2 3 A Yes. 3 4 Q Did you hear anything that would lead 4 5 you to indicate that he was falling off or did you, 5 6 or did you just look - 6 7 A No, there was no - I always, just 7 8 looked up to see how things were progressing and he 8 9 was coming off the roof. No, there was nothing 9 1-0 like, I'm falling or something like this, no. 10 1 1 There was nothing said, I didn't hear anything. 11 12 Q From the time you told him to get off 1.2 1.3 the roof until the time he fell, approximately how 13 14 much time lapsed? 14 5 A Couple of minutes. 15 16 Q What happened to Mr. Shane, once he 16 7 fell, what was done to assist him with his 17 19 injuries? 18 9 A Immediately ceased everything; come 19 20 off the scaffolding; asked Mr. Shane how are you; 20 21 is he cognizant. He was okay. He said he was in 21 22 pain, his feet. We tried to make him comfortable, 22 2 3 put, I think it was one of our coats under his 23 14 head, and I can't recall who, but one of us - but 24 25 medical was called immediately. 25 43 I don't know if it was one of the 1 2 boiler house personnel that heard the commotion out 2 3 there and one of us hollered in, I can't recall. 3 4 The medical was informed and we just tried to make 4 5 sure the other inmates weren't, because somebody is 5 6 down, like, they're inmates, they could take 6 7 advantage. 7 8 Q So you had to engage in your natural 8 9 security? 9 1.0 A Right, and try to make him as 10 1 1 comfortable as he was, talk to him, make light of 11 1 2 the situation, just kept him there until medical 12 3 arrived. 13 4 Q Do you know how long it took medical 14 w 5 to get there? 15 1 6 A Boy, the exact minutes, I'm not sure, 16 1 7 but it was a little bit. 17 1 8 Q Medical took him, he's out of your - 18 1. 9 he's no longer your problem, medical has now got 19 20 him, right, or he's no longer under the supervision 20 21 of Officer Figurelle? 21 22 A I like putting that better. 22 23 Q I didn't mean to cast a dispersion by 23 24 that. 24 25 A No, that was fine. 25 44 Q Strike that last question. After medical comes and picks him up, he's no longer under the supervision of Officer Figurelle; is that correct? A That would be correct. Q Medical takes him, do whatever they do. Just a couple of quick questions. Have you served in the military? A Yes. Q When and what service? A From 1969 to 1973, U.S. Navy, Vietnam. Q Honorable discharge? A Yes. Q Where did you go to high school? A Moshannon Valley Junior/Senior High School. Q Any college? A Two years of Penn State. Q With regard to safety on the job, I know there was a safety officer, you told me that was Mr. Seager. But I know you are not the safety officer, but I'm asking your knowledge, based on your 24 years of work there, a large part of that as a carpenter, supervisor, is there any particular standards of safety specifications or policies that 45 you're aware that the DOC prescribed to or would follow back in the'01P02 time frame? If the question is long-winded, did they try to follow OSHA standards, ANSI standards or any other type of safety standards when it came to construction, carpentry work? A I think it's basically up to the individuals doing the work, that would be knowledgeable of the safety standards, but I would say no. Q When you say individual, do you mean the corrections officers or do you mean the actual inmates? A No, the corrections officers. Q So it would be up to the corrections officers' safety knowledge as to how to handle a particular -- A Yes, because we have not done jobs that we thought were, until it was rectified. Q Okay. A The safety wasn't there at the time, until the job was rectified to suit our standards of safety. Q Would there be a job order out there that would pinpoint the time when you were giving 12 (Pa.ges 42 to 45) Geiger & Loria Reporting Service - 800-222-4577 11 C7 E MICHAEL SIDOROCK November 3, 2008 SHANE VS COMMONWEALTH OF PA 46 z 3 4 5 8 9 0 11 12 14 1= 16 17 18 19 20 21 2! L i 24 2 5 the order or you and your coworkers, your peers, were given the orders to go and build that shed? A There should be. There should be at the facility. Q There should be a job order to tear it down? A I would say yes. MR. FOX: rll make an informal request. I'll try to send a letter in writing. MR. GOODEMOTE: Letter is fine. BY MR. FOX: Q Prior to this incident, did you have any familiarity with Mr. Shane's work habits? A Yes. Q What was it? A I would say pretty above board. Q I think you answered this, but I wanted to make sure I covered it, did you have any responsibility to investigate the cause of Mr. Shane's fall after it occurred? A No. Q I think you already testified that nobody spoke with you regarding, nobody came to you in the course of a formal or informal investigation and asked for a statement from you with reeard to 47 i 3 4 U 3 a 10 11 13 14 1 :) 16 l8 19 i L L i i 24 L5 that fall? A No. MR. FOX: I want to take five minutes with my client. We'll be back. (Recess.) (Drawing of Scaffolding marked as Sidorick Exhibit Number 1; Drawing of Shed marked as Sidorick Exhibit Number 2.) MR FOX: Let the record reflect we marked Mr. Sidorick's drawing of the scaffolding as Exhibit Sidorick 1 and then we marked my rough drawing of the shed with numerous notes on it as Exhibit Sidorick 2. I'm just checking my notes. A That's no problem. BY MR. FOX: Q During the time you were employed at Department of Corrections, I guess toward your last ten years, were you ever required to, by either Mr. Seager or Mr. Whitten, or any other supervisor, to learn OSHA safety reg 1926 regarding fall protection? A No. Q Do you remember what the weather was like on the day of fall? A About like it is out there right now. 48 1 MR. GOODEMOTE: For the record, why 2 don't you describe that because I'm not sure we're 3 going to remember it. 4 BY MR FOX: 5 Q Clear and dry? 6 A Clear and dry. 7 Q Do you know what surface Mr. Shane 8 fell to, was it dirt? 9 A Macadam, asphalt, whatever you want to 10 call it. 11 Q Is there a difference between the two? 12 A No, it depends on where you come from. 13 MR- FOX: If it's a running surface, 14 it's macadam; if it's a road, it's asphalt. I'm 15 sure 1 could come up with more questions, but at 16 this time I'm starved to think of any. Thank you 17 for your time, I appreciate it. 18 (The deposition was concluded at 11:05 am.) 19 20 21 22 23 24 25 1 STATE OF PENNSYLVANIA s 2 COUNTY OF DAUPIUN 3 I, Mdse Flunk a Reporter-Notary Public 4 audnrimd to admunsw oads within and for the Communwealtis of Pau Sylvania and take dep-mms 6 m the teal of muses, do hereby catffy that the 1 foregoing is the tnsctimorry of MICHAEL SIDORICK e I furtlc certify that before the taking 9 of s d depesuion, the wmras was duly swot 10 that the questions and answers were taken down II stmograpMally by the said reporta Melissa 12 Flinn, a Reporter approved and agreed to, and i3 aflarwuds reduced to typewrmN uda the 14 direction of the said Reports is I furiha cerbfy that the proceedmgs and 16 -Ionce mmsi..d fully and accuntdy m the II notes by me orn the within dep AthM and that this 18 copy m a correct trartscnpt of the same to tesmnony wbwxwf, I have Iwoumo 20 subscribed my Ford dt. 14th day of November, 2008 23 4 My cummssion expu. November 21, 2009 2s 13 (Pages 46 to 49) Geiger 8r, Loria Reporting Service - 800-222-4577 EXHIBIT "B" Part 3 Pennsylvania Department of Corrections D Use of Force Revised 1100 f Revise Attachment D 6.3.1, section 17 Employee Report of Incident Occurrence To: Title: Date Time From (Name Printed): Title: Location of Incident: Employee Signature f-? Type of incident: ?l L ?p l?c tl Inmates i / Name and Number Staff Involved Name and Title Witnesses Qz? U- s E- I 4 1. Detailed description of the occurrence. U Nv E= ? ?E- OS C?h`tC E' w/?S 7 r ?S'Ti9a•.c7,: A-77 E` S 7 .S l 7e%,, Z.,* 07 2T ivTU WF- i ulu 413ti S? G O T ?.Z-S L ?sc?r ? ? r4 Div ?.c? l J (" T??-Try ?--a.. r i? L ,C 7 G Y • e I EXHIBIT "C" s Pereira Consulting, LLC 104 Spindle Lane Chadds Ford, PA 19317 (610) 388-7891 .luliusperti ro @com cast net William J. Fox, Esq. William J. Fox, P.C. 1417 Locust Street, 40' Floor Philadelphia, PA 19102 Re; Scott Shane Dear Attorney Fox: RECEIVED Office of Attorney General F EB 13 2012 Torts Utigation February 3, 2012 On September 9, 2002 Scott Shane was removing exiting roof sheathing boards from a temporary boiler shed roof at the SCI Rockview, 1 Rockview Place, Bellefonte, PA. The roof sheathing board Mr. Shane was standing on unexpectedly failed and caused him to fall more than ten feet to the ground below resulting in Mr. Shane being injured- You requested I evaluate the circumstances leading to Mr. Shane's fall and provide my opinions regarding the fall protection provided at the time Mr. Shane fell. To that end, I reviewed the following information. A. INFORMATION REVIEWED Second Amended Complaint, Plaintiffs Response to Motion for Summary Judgment, Responses of Defendant, Commonwealth of Pennsylvania, Department of Corrections, State Institution at Rockview to Plaintiffs First Set of Interrogatories. Pennsylvania Department of Corrections, Extraordinary Occurrence Report, Scott Shane deposition transcript, Eugene Figurelle deposition transcript, Michael Sidorick deposition transcript, Michael Wenrick deposition transcript, December 2007 report by Craig A. Shaffer. B. SITE CONDITIONS SCI Rockview is part of the Pennsylvania Department of Corrections' (DOC). It is one of 24 Adult Male Institutions throughout the commonwealth. Originally opened in 1915, SCI Rockview is a medium- security, institution housing lesser security risk prisoners. SCI Rockveiw is a sprawling multiple building facility" The building that Mr. Shane was working on at the time of this incident was a containment building for temporary boiler (MS12, 13). The rectangular building had a temporary shed roof that sloped at about 4:12 to 5:12 and was about 10' to 12'-10" high at the eave (MS12, 13, EF19, Shaffer report) The roof sheathing of the temporary shed was oriented strand board (OSB). The OSS was screwed to the shed rafters. DOC correction officers Michael Sidorick and Eugene Figurelle were carpenter trade instructors for the DOC. Mr. Sidorick tested there was tar paper on the OSB (MS14, 15). Mr. Figurelle testified there was no weather protection on the OSB and it was a weathered grayish color (EF27) 1 portal.state.pa.us 2 bing.comJmaps. 3 maps.google.com. William J. Fox, Esq. February 3, 2012 Page 2 Mr. Sidorick and Mr. Figurelle testified that a T wide wood scaffolding had been constructed along the eave side of the shed (MS17, 18, EF21). The scaffolding walking surface was three to four feet below the roof (MS18) There was a 3' high railing around the outside (MS18). Mr. Shane testified there was no scaffolding, but only a ladder to the roof (SS23, 29, 20, 21, 24). Mr. Shane was not wearing any fall protection while working on the roof (MS35, EF37)_ C. MR. SHANE'S FALL Mr. Shane was incarcerated at SCI Rockview (SS7). Prior to this incident, Mr. Shane had been assigned to an outside carpentry detail supervised by Mr. Figurelle for approximately a year (SS15, 16). The carpentry crews were part of the trade instruction training program provided for the inmates by SCI Rockview. The program included class-room and on the job instruction (MS25, 26, EF9, 10). Mr. Figurelle identified that about ninety nine percent of the training program is on the job (EF10), Mr. Shane testified that most of his involvement with the carpentry detail prior to this incident involved gutting and refurbishing an old police barracks (SS16, 17). At the time of this incident the roof sheathing was being removed from the top of the shed roof to the ,ower portion of the roof (SS22). Mr. Shane testified that Mr. Figurelle directed him to go on the roof and remove the four remaining sheets of wood (SS23). As an inmate, Mr. Shane was required to follow orders (EF27, 28). Mr. Shane was on the roof taking down the OSB sheathing and handing them down (SS27. 28). Mr. Shane testified he did not remove any screws from the sheet of sheathing he was standing on when it made a big cracking noise, broke loose and caused him and the sheathing to fall off the eave side of the roof to the ground (SS24, 25, 31). Mr. Shane was not wearing a safety harness (MS35 EF37). Mr Sidorick was removing the rafters when Mr. Shane fell (MS41). Mr. Sidorick saw Mr. Shane after he fell from the roof and was below the eave and described how Mr. Shane and the plywood fell off the roof together (MS32-36). Mr. Figurelle prepared the DOC Extraordinary Occurrence Report (EF17, 18). In preparing the report Mr. Figurelle testified that he probably spoke to the other inmates who were there and Mr. Sidorick (EF36), however Mr. Figurelle did not obtain any statements from anyone or take photographs of the conditions (EF36, 38). The Extraordinary Occurrence Report states: On September 9, 2002 at 1040 hours, Scott Shane, DX2035, was removing OSB (plywood) from the roof of the building covering the temporary boiler. Inmate Shane had two pieces left to remove and he unscrewed the OSB while he was still standing on it. When the last screw was removed, the OSB slid off the roof with inmate Shane. He fell 10-12 feet onto the ground, landing on his feet. He complained of severe pain in both feet and ankles. The medical department was contacted and upon their arrival at the boilerhouse they placed inmate Shane on a backboard and transported him to the medical department. He was examined and admitted to the Treatment Building Infirmary Mr. Figurelle did not see Mr. Shane's fall (EF24). Mr. Figurelle did not investigate Mr. Shane°s fall (EF17). In writing the report Mr. Figurelle testified that he relied on information obtained from Mr. Sidorick and inmates at the scene, however no written statements were obtained from the inmates (EF36). Mr. Figurelle did not retain or take any photographs of the OSB panel involved in Mr. Shane's fall. Mr. Sidorick testified that he was working removing rafters when Mr. Shane fell and only saw him after he had already fallen from the roof. This indicates that Mr. Sidorick did not see Mr. Shane immediately prior to his fall. There is nothing in the record reviewed to support Mr. Figurelle's statement that Mr. Shane ".. unscrewed the OSB while he was still standing on it." The statement is contradicted by Mr. Shane's testimony that he did not unscrew the sheathing- William J. Fox, Esq. February 3, 2012 Page 3 0. APPLICABLE STANDARDS FOR SAFE ROOFING WORK Mr. Shane was an inmate participating in a trade instruction training program, which was about ninety nine percent on the job training, not running a business. The work involved DOC construction projects Mr. Shane provided construction labor on these DOC projects, under the direct supervision of DOC personnel. The DOC is a department in the Pennsylvania government. The Pennsylvania Code4 sets forth rules and recommendations to safeguard the lives, limbs, and health of workers in all establishments within this Commonwealth. The Pennsylvania Code states: Lifebelts. All persons working aloft should be required to wear lifebelts properly secured when exposed to a falling hazard. In addition to the requirements of the Pennsylvania Code, federal requirements regarding safe construction are applicable to the subject DOC roofing work. The Occupational Safety and Health Administration (OSHA) was created in the 1970's to establish and enforce standards to assure safe work environments, including construction activities5. The OSHA Safety and Health Regulations for Construction, Subpart M, specifically addresses fall protection for construction activities, including roofings. The building had a shed roof that sloped at about 4:12 - 5:12 that was at least 10 feet above the adjacent ground. OSHA in Interpretation M-47 identifies that a low-slope roof has a slope of less than 4 in 12 and a steep roof has a slope greater than 4 in 12. OSHA Section 1925.501(b)(10) requires- "Roofing work on Low-slope roofs." Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fail arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system. Or, on roofs 50-feet (15.25 m) or less in width (see Appendix A to subpart M of this part), the use of a safety monitoring system alone [i.e. without the warning line system) is permitted. OSHA Section 1925.501 (b)(11 1) requires, • "Steep roofs." Each employee on a steep roof with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems with toeboards, safety net systems, or personal fall arrest systems. The OSHA conventional fall protection requirements are cited in information generally available to the construction industry, such as the Fall Protection Field Guides which identifies the need for adequate fall protection, a training program to train workers in fall protection measures and that workers are selected and trained to work safely at heights. E. ANALYSIS Fall protection is fundamental safety requirement for safe construction work where there is the potential for fall. Information regarding falling hazards is found in enforced codes and safety references. The Pennsylvania Code addresses falling hazards involved with construction and identified that all persons working aloft should be required to wear lifebelts properly secured when exposed to a falling hazard. pacode.com., Title 34 Labor and Industry. Chapter 39, Safety Standards-General, adopted June 14, 1930, amended through August 1, 1968, unless otherwise noted. osha.gov. osha.gov, CFR1926.502. osha.gov, Interpretations and Clarifications Subpart M - Fall Protection (29CFR 1926, 500-503, February 1995. Fall Protection Field Guide, Construction Safety Council, 1995 William J. Fox, Esq. February 3, 2012 Page 4 Information regarding the prevention of construction fall hazards is found in OSHA and information generally available to the construction industry. All address the hazards associated with falls from heights and the protection necessary to prevent such falls. The DOC provides carpenter trade instruction for inmates. As part of the training program the DOG utilized inmates to provide labor for DOC construction projects. Mr, Figurelle testified that he taught job safety as part of the program (EF13, 14). He testified the DOC provided training In general safety and used handouts, but the safety literature regarding fail protection was not given to inmates (EF13, 14). Mr. Figurelle also testified that the DOC had no policy regarding falls, nor was he aware of the federal requirements of OSHA 1926 (EF15, 16). Mr. Figurelle and Mr. Sidorick were the DOC's carpenter trade instructors responsible for on the job training of the inmates on the roof. The DOC job training did not include information regarding the Pennsylvania Code or applicable standards for fall hazards protection when inmates were working on roofs. Mr. Figurelle and Mr. Sidorick were unaware of the applicable requirements of the Pennsylvania Code and OSHA regarding fall protection. Michael Wenrick is employed by DOC as Corrections Institutions Safety Manager (MW11). Mr. Wenrick testified that the DOC did not have specific guideline regarding fall protection (MW55-59). He identified that the DOC now follows OSHA guidelines uses safety harnesses (MW18, 47, 50, 56). Mr. Wenrick testified that at the time of Mr. Shane's fall the DOC practice was to look to Labor and Industry requirements. If the DOC had consulted the Labor and Industry requirements as embodied in the Pennsylvania Code, they would have realized that the Pennsylvania Code addressed the situation and stressed the need to wear lifebelts properly secured when exposed to a failing hazard. The DOC claims that scaffolding was used and harness lines were not required. While there is disagreement regarding the installation of scaffolding, even if it is assumed that the scaffolding was installed, it was constructed too low. While the scaffolding may have provided access to the building and the roof, its safety function was limited by its height. Mr. Sidorick testified that the scaffolding was only 2' wide wood scaffolding had been constructed along the eave side of the shed; with the walking surface was S to 4' below the roof and a 3' high railing around the outside. This would have placed the top of the railing at or below the lowest surface of the roof and the outer edge of the railing about 2' from the edge of the eave. With the scaffolding as much as 4' below the roof, the inmates working removing the OSB from the upper portion of the roof would have had to climb on the roof. With the scaffolding in that position, Mr. Shane would have had to climb onto the roof to safety reach and remove the upper most screws holding the bottom 4' wide OSB panels. The slope of the subject roof was more than 1:4, therefore, it was a steep slope roof. Reasonable safety measures involving workers engaged in roofing activities on a steep sloped roof with unprotected sides and edges 6 feet (1.8 m) or more above lower levels required they be protected from falling by guardrail systems, safety net systems, or personal fall arrest systems. With the railing at or below the level of the lowest portion of the roof, it is unlikely such a ail--g would have prevented a fall from the roof. The DOC Safety manager Mr. Wenrick, also recognized this failure. He testified that if the intention was to be working on the roof, then the scaffolding and safety railing needed to be higher, above where there was a chance to fall out over it (MW32, 33), Based on Mr. Sidorick's description of the scaffolding and railing, it was not. No nets or fall arrest systems (Safety harnesses) were provided. With the scaffolding railing in the position in was as testified to by Mr. Sidorick, it would have been ineffective in preventing a fall from the subject roof, as evidenced by Mr. Shane's fall. Mr. Wenrick also testified that harnesses are required now. Such safety harnesses were readily available at the time Mr. Shane fells, but the DOC chose not to utilize them for the safety of inmates working on the roof. Had such a safety harness been used, Mr. Shane would have been prevented from falling from the roof and not sustained the injuries he did. The DOC's claim that harness lines were not required is contradicted by the requirements of the Pennsylvania Code as cited above. Mr. Figurelle testified that the temporary roof had been installed in the late fall, early winter of the year before Mr. Shane fell (EF18)- Mr. Sidorick similarly testified that the temporary roof had been installed 9 McMaster-Carr, Catalog No. 96, 1990, William J. Fox, Esq. February 3, 2012 Page 5 about six months before Mr Shane fell (MS15). OSB needs to be protected- Mr. Sidorick testified there was tar paper on the OSB. Mr. Figurelle testified there was no weather protection on the OSS and it was a weathered grayish color. Mr. Shane testified that the OSB appeared old and exposed to the weather (SS26). If Mr. Figurelle is correct, the OSB would have been unprotected and exposed to the weather for at least six months, allowing the OSB to deteriorate an weaken. If the OSS had been left exposed to the weather for at least six months, extra care and precautions should have been taken to prevent the unexpected failure of the OSB while there were workers on the roof. Mr. Shane was not given an option regarding working on the subject roof. As an inmate he was required to follow orders. Despite being involved in a carpentry trade instruction program, Mr. Shane was not provided fundamental training regarding fall safety, including the need for guardrail systems, safety net systems, or personal fall arrest systems when working at heights where he would be exposed to a failing hazard. This deprived Mr. Shane of the information necessary to work safely on the roof and to avoid failing. F. FINDINGS Based on my review of the materials and my experience and within the bounds of reasonable technical and professional certainty it is my opinion that; I . The DOC's failure to provide safety harnesses (Lifebelts) for those inmates working on the subject roof and exposed to a falling hazard did not comply with the requirements of the Pennsylvania Code and was a cause of Mr. Shane's fall. 2. The DOC's failure to provide any adequate fall protection, including scaffolding and safety railing of a height to have prevent a fall from the subject roof or safety harnesses did not comply with reasonable standards for safe construction projects, such as OSHA fall protection standards which are used by the building trades and was a cause of Mr. Shane's fall. 3. The DOC's failure to provide adequate fall training regarding fall safety as part of their carpenter trade instruction deprived Mr. Shane of the information necessary to work safely on the roof and to avoid falling. 4. If the OSB had been left exposed to the weather for at least six months, extra care and precautions should have been taken to prevent the unexpected failure of the OSB while there were workers on the roof. 5. The DOC's actions are especially egregious given that they claimed to have a carpenter trade instruction program, yet failed to address fundamental safety requirements for fall protection when working on roofs where they would be exposed to a falling hazard. 6. There is nothing in the record reviewed to support Mr. Figurelle's statement in the Extraordinary Occurrence Report that Mr. Shane unscrewed the OSB before he fell. I reserve the right to amend my findings if additional information becomes available. Thank you for the assignment. If you require anything further concerning this matter please let me know Julius reira Ili, RA, EXHIBIT "D" C C` SCOTT SHANE November 3, 2008 SHANE VS COMMONWEALTH OF PA 22 1 - nowhere. 1 1 Q I believe there was testimony earlier 2 that they started -- I have to get reoriented -- so 3 this is the other, on the left side in removing the 4 roof; is that correct? 5 A No, because the roof was started to be 6 removed from the very top. 7 Q That makes sense. 8 A We started working down. 9 1 Q Did they begin removal from the top 10 11 left or the top right? 11 12 A You know what, it was so unorganized., 12 13 people were just taking everything off. It was 13 11 like ants on a little piece of crumb 14 1 5 (demonstrating.) It was nuts. But as it worked 15 16 down, there was two remaining rows when we pulled 16 1 1 the crew off' for a break and this and that. 17 1 8 Mr. Figurelle and Mr. Sidorick was 18 19 talking with the boiler house gentleman - I don't 19 20 really know who he was -- but he was a DOC employee 20 21 that ran the boiler house. And there was also some 21 22 of the guys in my crew and Mr. Figurelle - or 22 23 Sidorick's crew were talking with the inmates that 23 24 worked the boiler house. Then there was a few guys 24 25 that went up and took the next row off, just 25 23 1 goofing around, killing time. 1 By then, Mr. Figurelle, Mr. Sidorick, 2 3 and the inmate would have been David Gottle 3 4 (phonetic) had a ladder up against the front, on 4 the interior walls, so this is the inside of the 5 6 addition; one ladder up against that wall, one 6 ladder against this wall and two inmates were 7 8 removing the joists from this end, which would be 8 9 the left. You looking at this wall would be this 9 1 0 side. 10 11 Q Okay. 11 2 A Mr. Figurelle then asked me to go 12 up -- there were four sheets remaining on the 13 1 4 bottom row - asked me to go up, take them off, and 14 15 then we could break for lunch. There was no room 3 15 E i 6 for more people up there. 16 = 7 Q Just four sheets left on the last row 1 1 8 on the right side? 18 1 9 A Correct_ While I was up on the roof, 19 20 Inmate MaCode (phonetic) was on the ladder, but the E 20 2 1 ladder was moved towards the middle because I was 21 2 working to the left going to the right. So we're 22 looking at it, so I'm going this way, that way, the 23 2 4 ladder is over there originally when I went up, but 24 2 5 as I went up to remove the last rail, the ladder l 25 24 was moved to the middle. So as I unscrewed the screws, I'm standing on the one looking at, it would be the one to the right, get the screws off, passed the wood down to MaCode (phonetic,) who was on the ladder, who then passed it down to David Collins on the ground. Q So when you removed the fourth one, you were standing on the third one? A Correct. Q The one adjacent to that -- A Cont. By the time, when I just passed down the second sheet from the left to go down, l started to stand up, get myself situated so it would be on, you know, sturdy, and there was a big cracking noise, and the second one remaining that I was basically lifting up off of from this passing down, broke loose and I went off the side and fell to the ground and shattered my heels. Well, I didn't know that's what happened at the time, but... Q Had you removed any of the screws from the sheet that gave away? A No, I never had a chance to do anvthine to that sheet because I iust F-ot done 2.5 passing down the second sheet, so what happened, I was initially not kneeling, but squatting, and as I was moving up to stand up to move down the roof, big noise cracked and it just went off. I didn't have a chance to react. I just went off the side. It happened so fast. Luckily, the guy on the ladder, luckily was able to duck down or it would have been ugly because the wood probably would have got him right in his neck. Q So it's your testimony that none of the screws were removed yet from the piece that you were standing on? A Not by me. Q Were the screws removed from that piece by anybody that you know of? A Not that I know of. Q You didn't see anybody remove screws from that board? A No, because we started from the top, but there were goofballs on the crew, so anything could have happened, but to my knowledge, no. Q What were the roofing sheeting, what was that attached to, what did that screw into? A The joists. - 7 (Pages 22 to 25) Geiger & Loria Reporting Service - 800-222-4577 • C n SCOTT SHANE November 3, 2008 SHANE VS COMMONWEALTH OF PA 261 1 Q Wooden joists? 1 A Yes. 2 -3 Q As far as you know, had any of the 3 4 other sheets gave way or broken loose while you 4 were working on dismantling that building, that you 5 6 know or 6 7 A Excuse me? 7 8 Q In other words -- 8 MR. FOX: Before he fell`? 9 10 BY MR. GOODEMOTE: 10 Q Before you fell, did any of the other 11 12 sheets break loose in a manner that you've 12 13 described the one you were standing on broke 13 1 4 loose? 14 15 A No. 15 16 Q Do you have any idea what would have 16 17 caused your sheet or the sheet you were standing on 17 1 8 to break loose in the manner that it did? 18 1 9 A Aside from it being old and maybe the 19 2 0 weather, it wasn't really covered properly, but I 20 ;'I wasn't a carpenter. I don't have the knowledge. 1 21 22 have no idea 22 2 3 Q You don't know. That's fine. At any 23 2 4 time after your fall, did you tell anyone at 24 5 corrections your version of what h?pyened? 25 27 1 A No. 1 2 Q Were you asked? 2 A I believe not. No. 3 4 Q You weren't asked, but you didn't tell I 4 anybody- 5 6 A I don't really think I did because 6 nobody really asked me anything in the infirmary or 7 8 nothing. I would say no. 8 9 Q Did you have any warning that sheet 9 10 was going to give away? 10 al A No. 11 Q I think you were describing you had 12 3 just handed the sheet next to it, which, if you're 13 4 going from the right, would be the third sheet, 14 = 5 correct, the sheet you handed down -- 15 6 A It was the second sheet. I was 16 = .1 standing on the third sheet. There was four in a 17 8 row. 18 9 Q I'm counting from this corner, from 19 0 the right comer, so you would be standing on the 2 0 '- second going to the third? 21 2 2 A Yes. 22 2 3 Q If you count from the other way, you 23 ,A come up with different numbers. 24 5 A Yes, I see what you are saying now. 125 28 Q So the sheet that you had handed down would have been the third one from the right-hand corner? A Correct. MR. FOX: While facing the building? MR. GOODEMOTE: While facing the building? A Correct. BY MR- GOODEMOTE: Q When you handed that sheet down, you were standing on the second sheet from the corner, the one that gave way? A Yes. Q You heard Mr. Sidorick testify that he said something to you about getting off the roof. You were here for that testimony? A Yes, 1 was. Q Do you recall him instructing you to get off the roof and stand on the scaffolding? A No. Q You do not recall that? A No. Q Did anybody instruct you to stand on the scaffolding when removing the last row? A No. 29 Q How about earlier in the day? A No, we only had a ladder there anyway, but no. Q You are saying there was no scaffolding? A No scaffolding was there. Q No wooden scaffolding was there? A Not while I was there. Q So what Mr. Sidorick said about telling you to get off the roof and remove it from the scaffolding couldn't be true because there was no scaffolding there? A Not only there was no scaffolding, l was never told by any supervisor, any inmate or nothing to get off the roof and go anywhere. Q How did you plan, if you planned, how did you think you were going to remove the last piece? A From the ladder. Q Did Mr. Figurelle ever advise you not to stand on the last row while removing the last row of sheeting, if you know? A No. Q Do you remember anything about the fall itself, other than what you have told us so 8 (Pages 26 to 29) Geiger & Loria Reporting Service - 800-222-4577 EXHIBIT "E" n • MICHAEL SIDOROCK November 3, 2008 SHANE VS COMMONWEALTH OF PA 18 i times. 1 Q A wooden scaffolding system? 2 A Yes. 3 Q Describe the dimensions of the 4 scaffold for me. 5 A It would be two foot wide to hold two 6 planks and it would be, it was probably about three 7 feet, four feet below the roof. You would stand so B you could reach. Any higher, it's too high, any 9 10 lower, you're here (indicating.) That's about 10 1 ' standard. It is a brace going this way, 45 this 11 12 way, 45 going down against the building for the 12 1 3 support and a three-foot railing around the outside 13 14 of it; top, middle, knee kick and toe kick. The 14 15 structure was sound, to my ability. 15 16 Q What was holding the scaffolding up? 16 17 A The brace going down into the bottom 17 18 of the building. If I could draw you -- do you 18 1 9 want a drawing? 19 20 Q Sure, I will give you a piece of 20 21 paper. 21 22 A I will give you a side view of it. 22 23 This would be your building, this would be your 23 24 overhang. The scaffolding would come out past the 24 2 5 overhang -- there's not much overhang on it, that's 25 19 , 1 a little dramatic -- it was like six inches coming 1 2 out because it didn't need much. 2 3 This was 32 inches; you had your 3 4 railing, three foot; you have your brace coming 4 5 diagonal this way attached. 5 6 Q Into the building? 6 7 A Into the building. 7 8 Q Into the building that's being 8 9 removed? 9 1.0 A At the base of the building. 10 1 1 Q The intention was to remove that 11 1.2 building at some point? 12 13 A Yes. 13 1 4 Q Go ahead. ` 14 1.5 A Then an aerial view, you have a 45 '- 5 16 brace going this way, which if I could give you - 6 1 ? a -- this is your structure right here; top !- 7 18 railing, middle of the toe kick. This is going 18 1.9 here and then every few feet, every other 19 20 structure, every other brace, we had one coming 2 0 21 down to the ground attached to the bottom. This 21 2 2 would give you additional support for the weight. 22 2 3 Q What was the length of the 23 24 scaffolding? 1 24 25 A It would be the full length of the 2 5 20 building, which would probably be 30 feet. I'm assuming its 30 feet. Q I understand, it could be a little less, a little more. A If anything, it would be a little more. It could be 40 feet as far as that, but it's the full length of the building. Q So you have the eave, which is essentially the bottom of the roof? A Yeah, sticks out over the edge. Q And then approximately three feet below that you had two planks running along the length of the building? A Yes. Q Behind it, approximately 32 inches wide was a three-foot high railing? A Well, the total length of this is 32 inches. Your railing is right at the edge of this, so minus about six inches. Q Of overhang? A Of overhang. You would have approximately 26 inches of actual walkway with two planks right there, 2-by-12 planks. Q And right behind is the railing? A Is your railing. The railing is high 21 enough to code, three foot. Q Would you say the railing was about flush with the bottom of the roof, the height of the railing? A I would say that. Q Was that installed that morning? A No, I believe it was installed possibly, if memory serves me right, maybe three or four days before the actual dismemberment of the roof system. Q Was your crew the crew that installed that particular scaffolding? A I would say; I would say. Q Are you sure of that or are you -- A To answer it honestly, no. I wouldn't be absolutely sure if it was a combined effort or was strictly my crew. Q Would there be a work order requisition or some kind of document that indicates that you were ordered by your supervisor to set up that scaffolding? A Possibility that they would still have the existing work order at the facility. Q Is that how the normal course of business worked, you would get a work order to go 6 (Pa.ges 18 to 21) Geiger & Loria Reporting Service - 800-222-4577 CERTIFICATE OF SERVICE I hereby certify that I am this day sending a copy of the foregoing document to all persons and in the manner indicated below. SERVICE MADE BY FIRST CLASS MAIL ADDRESSED AS FOLLOWS: William J. Fox, Esquire 1417 Locust Street, 4t' Floor Philadelphia, PA 19102 (Attorney for Plaintiff) x Diniel R. G6odernet? Senior Deputy Attorney General Supreme Court No. 30986 Office of Attorney General Torts Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-3147 DATED: March 7, 2012 C) us, mw :X-7! PRAECIPE FOR LISTING CASE FOR JURY TRIAL m ri m C/3 r of (Must be typewritten and submitted in triplicate) r- —4 C r, 3 r -r; TO THE PROTHONOTARY OF CUMBERLAND COUNTY =c. 71- fir': Please list the following case for a Jury Trial. 2-' CAPTION OF CASE ,(entire caption must be stated in full] (check one) SCOTT SHANE ❑ Civil Action—Law ❑ Appeal from arbitration El (other) (Plaintiff) No. 04-04171 Civil Term vs. COMMONWEALTH OF PENNSYLVANIA, The trial list will be called on 4/22/2014 DEPARTMENT OF CORRECTIONS, STATE and CORRECTIONAL INSTITUTE AT ROCKVIEW (Defendant) Pretrials will be held on 5/7/2014 (Briefs are due 5 days before pretrials) vs. Trials commence on 5/19/2014 Indicate the attorney who will try case for the party who files this praecipe: WILLIAM J. FOX, ESQUIRE, Attorney for Plaintiff , Scott Shane Indicate trial counsel for other parties if known: DANIEL R. GOODMOTE, ESQUIRE, Senior Deputy Attorney General r This case is ready for trial. Signed: ( 7- 11 Print Name: w; , am J. Fox, Esquire Date: ✓ ( Attorneyfer:P1aintiff, Scott Shane Ya9.7s1L colt a7` Rte. 301 l 9.S' PRAECIPE FOR LISTING CASE FOR JURY TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case for a Jury Trial. • TEE PRO 2014 APT? 30 PH CUNSERL AND COUNTY PENNS LVAiii CAPTION OF CASE jentire caption must be stated in full), SCOTT SHANE (Plaintiff) vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTE AT ROCKVIEW (Defendant) VS. (check one) Civil Action - Law fl Appeal from arbitration P (other) No. 04-04171 Civil Term The trial list will be called on 6/17/2014 and Pretrials will be held on 7/2/2014 (Briefs are due 5 days before pretrials) Trials commence on 7/14/ 2014 Indicate the attorney who will try case for the party who files this praecipe: WILLIAM J. FOX, ESQUIRE, Attorney for Plaintiff, Scott Shane Indicate trial counsel for other parties if known: DANIEL R. GOODMOTE, ESQUIRE, Senior Deputy Attorney General This case is ready for trial. Date: Signed: Print Name: WI Attorney for: P am J. Pox, Esquire a ntiff, Scott Shane I'Vk-L, COt IPaD VAvZLISD00-.